Disputes over Treaties

By Kerley, Bill | IPA Review, January 1, 1996 | Go to article overview
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Disputes over Treaties

Kerley, Bill, IPA Review

Trick or Treaty? Commonwealth Power to Make and Implement Treaties; report of the Senate Legal and Constitutional References Committee, November 1995.

Treaty-Making and Australia: Globalization versus Sovereignty edited by Philip Alston and Madelaine Chiam The Federation Press in association with the Centre for International and Public Law, ANU, 1995

AUSTRALIA is currently party to about 920 principal international treaties, about 500 of which are bilateral. For some time, critics from industry, the com^ munity and politics have observed that many of these treaties impose obligations that are unclear, unwanted and, in some cases, even unknown to those most affected by them. Considerable disquiet now surrounds the whole issue.

These treaty obligations are usually incorporated in domestic law through new laws and regulations developed by the Commonwealth. However, even those not incorporated in this way, strongly influence our common law and judicial decisionmaking. This pervasive influence has been demonstrated by the Teoh case, amongst others.

This case (Minister of State for Immigration and Ethnic Affairs u Teoh, 1995) concerned the validity of a deportation order and the application of the Convention on the Rights of the Child, a convention which Australia has ratified but not incorporated into law through legislation. The High Court held that the ratification of the Convention created a "legitimate expectation" that a Commonwealth decision-maker would act in accordance with it. The court's ruling means, in effect, that any decisions and rules made by Commonwealth officials, courts or tribunals involving discretionary powers must be made with a thorough knowledge of the expectations established by any treaties Australia has ratified - an impossible requirement.

The Senate Committee report released last November was the result of a wide-ranging public inquiry which gathered a considerable amount of evidence reflecting a wide spectrum of views. The recommendations (outlined in the box below) are practical ones and, if adopted, will deliver more accountability and greater certainty to the treaty-making process.

Treaty-Making and Australia, which consists of papers from a conference at the Australian National University in May 1995, also provides a range of views on the place and importance of international treaties, but the contributors are mainly drawn from those interest groups, lawyers, academics and others with close professional interests in international law. Most of the contributors take the view that international law thoroughly dominates Australian law and practice. Many see this as a welcome, if not irreversible, trend. A typical view is put by David Kinley of the Australian Law Reform Commission: " ... as the web of international relations grows and the globalization of international law grows with it, so the application of the external affairs power will expand."

If so, then Australian law and judicial practice likely to continue to be adventurous, activist and uncertain, as international treaty obligations impact on domestic affairs and the constitutional balance. Justice Kirby's and David Kinley's papers in Treaty-making and Australia detail the influence of international obligations in many areas of Australian life.

SELECTIVE: International law activists, many of whom are represented in this volume, usually favour the imposition of international treaties to impose social rights and obligations. But they like to be selective. For example, Professor John Braithwaite, a leading activist in the consumer movement, disapproves of the Trade Related Intellectual Property Agreement (TRIPS), now under the GATT agreement. In his view, most countries had no idea of the implications of what they were signing.

But TRIPS is not the only agreement signed by Australia with farreaching and unforseen consequences. The Basel Convention on Transboundary Movements of Hazardous Wastes and Their Disposal, which Australia joined in 1992, is but one of many others.

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