The Relationship Between Treaties and Domestic Law

Introduction

The focus of this seminar is on practical treaty making. Today, I will endeavour to give you a practical overview of the key issues arising in the relationship between treaties and domestic law. The literature is extensive on this topic. Some of that literature is footnoted in my paper. I hope this will assist you to read further in this area, if I succeed in whetting your appetite.

I will begin by considering the relationship between treaties and domestic law when viewed through the prism of international law. I will then view the relationship through the prism of domestic law, particularly focussing on the position under Australian domestic law.

The prism of international law

Turning first to international law, I note that a number of theories have been advanced to explain the relationship between international and domestic law. The theory of dualism, for example, contends that international law and domestic law are separate legal orders. Accordingly, international law cannot 'operate directly' in the domestic sphere, needing to be 'transformed' into domestic law by the legal acts of States.2 On the other hand, the theory of monism views 'all law as part of the same universal normative order'.3 As such, international law does not need to be 'transformed' to apply in the domestic legal order.4

Although of interest, this is not the occasion to dwell on theory. Instead I would like to make a number of practical points about the relationship between treaties and domestic law from the perspective of international law.

The first of these points is that treaties are governed by international law not domestic law.

This is made clear by the Vienna Convention on the Law of Treaties ('Vienna Convention'), which defines the term 'treaty' for the purposes of the Convention to mean a written international agreement between States governed by international law.5 I note that international organisations can also conclude treaties.

Accordingly, an international court or tribunal called on to interpret a treaty will apply the relevant principles of international law not the domestic law of the States which are parties to the treaty.

The second point is that States must ensure their domestic law permits them to meet their treaty obligations.

In many cases, States must implement parts of treaties in domestic law to ensure they can meet their treaty obligations. While it is a matter for States to determine how to go about this implementation, a failure to implement appropriately may have serious consequences for a State under international law. Such a failure could lead to a dispute with another State, resulting in proceedings before an international court or tribunal. Proceedings of this type can impose significant financial and political costs.

The third point is that a failure to get it right domestically is no defence internationally.

To put it more formally, a State 'cannot plead provisions of its own law or deficiencies in that law' in answer to a claim it is in breach of a treaty obligation.6 In this regard, I note that Article 27 of the Vienna Convention, in part, provides that:

A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.

The prism of domestic law

I will now view the relationship between treaties and domestic law through the prism of domestic law.

It reveals no great insight to state that the view through the prism of domestic law will differ according to the domestic legal system being considered. In large part, the differences will be due to the constitutional framework in which a legal system functions.

The United Kingdom model

By way of example, in parliamentary systems based on the United Kingdom model, treaties only become part of domestic law if an enabling act of the parliament has been passed.7 Returning to the international legal theories I mentioned earlier, this approach reflects the theory of dualism in its requirement that a treaty be transformed into domestic law through an act of parliament.

The basis of this approach is to be found in the doctrine of separation of powers.8 The executive is empowered to conclude treaties on the international plane. If treaties could become part of domestic law without an act of parliament, the executive, in effect, would be able to bring about a substantial change to domestic law without check by the legislative arm of government.9

The United States

In contrast to the position in parliamentary systems of the UK type, the constitutional framework in the United States allows for treaties to become part of domestic law without being transformed through legislation. The US Constitution provides for treaties to which the US is a party to become the law of the land.10 This provision was intended 'to assure the supremacy of treaties' over the laws of the US states.11

The position under US law can be considered also in the context of the doctrine of separation of powers. Unlike parliamentary systems, where the approval of parliament is not required for the executive act of becoming party to a treaty, the US Constitution requires that the Senate gives its 'Advice and Consent' to the President making a treaty.12 Accordingly, a treaty will not become the law of the land without the approval of the Senate. As such, there is a legislative check to the power of the executive to conclude treaties.

Because of the constitutional position I have outlined, treaties in the US context are often referred to as 'self-executing'. However, not all treaties will be self-executing. In some circumstances, legislation may be required. For example, a treaty 'cannot itself enact criminal law'.13 If a treaty required parties to criminalise certain acts, the US Congress would have to enact an appropriate law.

Australia

Let me now turn to the relationship between treaties and domestic law in the Australian context. Australia has a parliamentary system based on the UK model, including the elements of that model relating to the making and implementation of treaties. Consequently, a treaty does not have a direct effect in Australian law unless and until it is incorporated into that law by statute. This fundamental principle was expressed by Mason CJ and Deane J in Teoh's case in the following terms:

It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute. This principle has its foundation in the proposition that in our constitutional system the making and ratification of treaties fall within the province of the Executive in the exercise of its prerogative power, whereas the making and alteration of the law fall within the province of Parliament, not the Executive. So, a treaty which has not been incorporated into our municipal law cannot operate as a direct source of individual rights and obligations under that law.14

I will return later to Teoh's case.

The need for legislative implementation arises when existing legislation be it at Commonwealth and/or State/Territory level does not provide the basis for Australia to meet its obligations under a treaty to which it wishes to become party.

As a general policy, the necessary legislation is put in place prior to the entry into force of a treaty for Australia. This ensures that Australia is able to meet its obligations under the treaty from the moment it becomes a party. Ratification of a treaty without the required legislation would risk Australia 'being left in breach of the treaty if the Parliament subsequently failed or refused, for whatever reason, to pass the legislation'.15 Returning to the point I made earlier, the lack of domestic legislation in such a case would be no defence to a claim under international law that Australia had breached its treaty obligations.

Under international law, Australia has a 'discretion' in how it implements its treaty obligations.16 International law does not dictate that a particular approach be taken to implementing domestic legislation. That said, the bottom line remains that States must ensure that their domestic law permits them to meet their treaty obligations.

As Australia has a federal system of government, with a division of powers between the Commonwealth and State Governments, the legislative approach to implementing treaties may well involve, at least in part, State legislation.17

At the Commonwealth level, there are a number of different ways of giving effect to international obligations in legislation.

One method is to give the force of domestic law to the actual text of the treaty or the operative parts of the treaty. A prominent example of this is the Diplomatic Privileges and Immunities Act 1967. The Act gives the force of law to many of the articles of the Vienna Convention on Diplomatic Relations. This method has the advantage that there is no doubt that the legislation actually implements the treaty obligations. However, it essentially leaves it to the courts to decide what a particular provision of the treaty means - for example, whether the burning of a flag outside the grounds of an embassy amounts to an 'impairment of the dignity of the Mission' within the meaning of Article 22 of the Convention thus rendering it unlawful. Indeed, the issue of 'impairment of the dignity' of a mission was examined by the Federal Court in relation to the placement of crosses outside the Indonesian Embassy some years ago.18 Double taxation agreements also are given the force of law by the International Tax Agreements Act 1953. Interpretations of those agreements by the courts can have important revenue implications.19

Another method of implementing treaties by statute is to include a fairly short provision along the lines that the statute is subject to Australia's obligations under international law, including those under treaties to which Australia is a party. An similar approach is to say that a particular organisation or person will exercise powers under a statute consistent with Australia's international obligations.

This method was highlighted by the decision of the High Court in the Blue Sky case.20 This case involved a bilateral obligation between Australia and New Zealand under the Closer Economic Relations Services Protocol ('the CER Services Protocol'). Under that Protocol, Australia is required to give market access to New Zealand services on terms no less favourable to those given to Australians and vice versa. The Broadcasting Services Act provided for the setting of Australian content standards by the Australian Broadcasting Authority ('the ABA'). Section 160(d) of the Act required the ABA to do so in a manner consistent with Australia's obligations under any convention to which Australia was a party or any agreement between Australia and a foreign country. The High Court found that the then existing Australian content standard for films was inconsistent with the obligations under the CER Services Protocol and was unlawfully made. The High Court referred to the 'indeterminate language' of many of Australia's treaty obligations which was 'compounded by Australia being a party to about 900 treaties'.21

In summary, this short form manner of ensuring that an act is consistent, or administered consistently, with Australia's international obligations has the potential to lead to uncertainty in the administration of the act. That said there remains a place for stating that particular statutes or particular sections of statutes should be administered in accordance with Australia's international obligations. However, in order to avoid uncertainty, it may be best to identify particular international obligations which are relevant rather than making the legislation subject to all of Australia's international obligations.

The preferred method of giving effect to treaties is to translate the relevant provisions of the treaty into traditional legislative language. In so doing, a statute might refer to particular terms in a treaty but use the language of domestic law to give effect to the majority of obligations. Two examples of this approach in recent years are the Space Activities Act 1998, implementing several conventions dealing with space activities, and the Anti-Personnel Mines Convention Act 1998, which implements the convention of that name.

This method introduces an element of certainty into the implementation of treaties which is perhaps lacking in simply giving the treaties the force of law or in stating that a statute is subject to Australia's international treaty obligations.

Regulations may also be used to implement Australia's treaty obligations. An important example in this regard is the Charter of the United Nations Act 1945, which permits regulations to be made to give effect to sanctions imposed by the UN Security Council under Chapter VII of the UN Charter. The reliance on regulations in this case reflects the need often to act urgently to give effect to sanctions.

Before closing on the legislative implementation of treaties, I would like to make a brief reference to the external affairs power in the Constitution,22 which is a subject that merits a presentation in its own right.

There is no doubt that entry into a treaty by Australia enables the Commonwealth to enact laws under the external affairs power to implement the provisions of a treaty. That said, entry into a treaty dealing with a particular subject matter does not mean that the Commonwealth assumes complete legislative power over that whole subject area. In the words of Mason J, as he then was, in the Tasmanian Dams case, entry into a treaty by Australia does not give Parliament the power to:

legislate with respect to the subject-matter of the treaty as if that subject-matter were a new and independent head of Commonwealth power. The law must conform to the treaty and carry its provisions into effect.23

Legislation must be 'capable of being reasonably considered appropriate and adapted' to giving effect to Australia's treaty obligations.24

I would now like to address the indirect effect of treaties on domestic law in Australia, as opposed to their direct effect through legislative implementation.

One area where treaties, as part of international law, can be said to have an indirect effect is as a source in the development of the common law. Brennan J, as he then was, used international law as a source for developing the common law in the Mabo case.25 He stated the principle in the following terms:

The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights.26

A second area in which treaties may have an indirect influence is in the interpretation of statutes. This arises from the presumption that Parliament, in enacting legislation, intends to act consistently with Australia's obligations under international law. It follows that, as a matter of statutory interpretation, domestic statutes will be construed where the language permits, so that the statute conforms to Australia's obligations under international law. For example, the High Court held in 1917 that the Customs Act should be construed consistently with an international principle concerning the right of a foreign vessel to depart from a port.27 To a degree, this common law rule of statutory interpretation has been given statutory force in s.15AB of the Acts Interpretation Act 1901.

However, it remains clear that international obligations under a treaty cannot be used to override the plain words of a statute, even if those plain words are inconsistent with a treaty.

I now turn to the area of administrative law to consider Teoh's case.

Mr Teoh was a Malaysian citizen who was sentenced to prison in Western Australia for drug trafficking. He had a number of young Australian children who could not be cared for by their Australian mother. Mr Teoh was refused permanent residency because he did not fulfil the requirement of good character and an order was made under the Migration Act 1958 to deport him.

The High Court held by a majority of 4 to 1 that in decisions under the Migration Act, the best of interests of children must be a primary consideration. A number of judges in the majority held that there was a legitimate expectation to this effect based on the Rights of the Child Convention, which had not been the subject of legislative implementation.

The concept of a 'legitimate expectation' had been recognised previously by the High Court:

as an interest which falls short of a legal right but which nevertheless provides a basis for implying the common law rules of procedural fairness in relation to an exercise of power.28

The Court recognised that the common law gave a person, with existing or prospective rights or interests, the right to be heard before the exercise of a statutory power prejudiced such rights or interests.29

In terms of general principle, the Court in Teoh's case found that the entry into a treaty by Australia creates a 'legitimate expectation' that the Government and its agencies will act in accordance with the terms of the treaty, even where those terms had not been incorporated into Australian law. It held that where a decision-maker proposes to make a decision inconsistent with such a legitimate expectation, procedural fairness requires that the person affected by the decision be allowed to be heard on the point. The Court made clear that such an expectation would not arise where there is an executive or statutory indication to the contrary.

Prior to Teoh's case the courts recognised that an administrative decision-maker in exercising a discretion under a statute could have regard to a relevant international agreement unless the statute prevented the decision-maker from doing so.30 However, an administrative decision-maker was not required to have regard to international obligations unless the statute directed the decision-maker to do so.

Considering that it represented a development which was not consistent with the proper role of Parliament in implementing treaties in Australian law, the Government acted in response to the outcome in Teoh's case by taking up the High Court's statement that a legitimate expectation would not arise where there is either an executive or statutory indication to the contrary. The Minister for Foreign Affairs, Mr Downer, and the then Attorney-General, Mr Williams, issued a joint statement in 199731 stating that the act of entering into a treaty does not give rise to legitimate expectations in administrative law. The statement replaced a statement made by the then Minister for Foreign Affairs and the then Attorney-General in 1995. The statement foreshadowed the introduction of legislation to address the issue. Legislation was introduced in 1997 and again in 1999. It lapsed on both occasions when Parliament was dissolved for the holding of elections.

Conclusion

That ends my presentation. I hope I have achieved my aim of giving you a practical overview from an Australian perspective of the key issues arising in the relationship between treaties and domestic law. This is a subject which will only grow in importance as treaties are used to create international regimes and standards on an expanding range of matters, which in turn will need to be implemented by Australia.

• 1 Senior Adviser, Office of International Law, Commonwealth Attorney-General's Department. The views expressed in this paper are those of the author and do not necessarily represent those of the Commonwealth Government.
• 2 R. Balkin, International law and domestic law, 119, in S. Blay, R. Piotrowicz and M. Tsamenyi (eds), Public International Law: An Australian Perspective (1997).
• 3 Ibid, 120.
• 4 Ibid.
• 5 Article 2(1).
• 6 I. Brownlie, Principles of Public International Law (5th edn, 1998), 34.
• 7 Ibid, 46.
• 8 Balkin, 128.
• 9 J. Crawford and W. R. Edeson, International law and Australian law, 85, in K. W. Ryan (ed.), International Law in Australia, (2nd edn, 1984).
• 10 Article VI.
• 11 L. Henkin, Foreign Affairs and the US Constitution (2nd edn, 1996), 199.
• 12 Article II, section 2.
• 13 Henkin, 203.
• 14 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 286-287.
• 15 Balkin, 131.
• 16 W. Campbell, The implementation of treaties in Australia, 134, in B. Opeskin and D. Rothwell (eds), International Law and Australian Federalism (1997).
• 17 See discussion on this point by Campbell at 148-151.
• 18 Minister for Foreign Affairs and Trade v Magno (1992-93) 112 ALR 529.
• 19 Federal Commissioner of Taxation v Lamesa Holdings BV (1998) 157 ALR 290.
• 20 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490.
• 21 Blue Sky, at 517-8 per McHugh, Gummow, Kirby and Hayne JJ.
• 22 Section 51(xxix).
• 23 Commonwealth v Tasmania (1983) 158 CLR 1, at 131 per Mason J.
• 24 Richardson v Forestry Commission (1987-88) 164 CLR 261, at 289 per Mason CJ and Brennan J.
• 25 Mabo v Queensland [No.2] (1992) 175 CLR 1.
• 26 Ibid, 42.
• 27 Zachariassen v Commonwealth (1917-18) 24 CLR 166, at 181 per Barton, Isaacs and Rich JJ.
• 28 M. Allars, International law and administrative discretion, 234, in B. Opeskin and D. Rothwell (eds), International Law and Australian Federalism.
• 29 Haoucher v Minister for Immigration (1989-90) 169 CLR 648, see statement at 680 per McHugh J.
• 30 Magno, at 535 per Gummow J.
• 31 Commonwealth of Australia Gazette, No. S 69, 26 February 1997.