Academic journal article Melbourne University Law Review

A Tale of Two Systems: The Use of International Law in Constitutional Interpretation in Australia and South Africa

Academic journal article Melbourne University Law Review

A Tale of Two Systems: The Use of International Law in Constitutional Interpretation in Australia and South Africa

Article excerpt

[The use of international law in constitutional interpretation has sparked heated debate between judges on the High Court of Australia, most recently in the Court's decision in Al-Kateb v Godwin. This article examines the attitudes, anxieties and assumptions that appear to underlie High Court decision-making on the issue. This examination is undertaken in light of the work of the Constitutional Court of South Africa. The work of this Court provides a useful comparison to the extent that the South African legal system has been restructured to enable a close engagement with international law. The South African experience of the last decade provides an informed basis and a developing body of case law against which to assess concerns regarding the Australian legal system's relationship with international law.]

CONTENTS

I   Introduction
II  Comparing Constitutions
       A Origins
       B Judicial Review and Constitutional Interpretation
III Constitutional Interpretation and International Law in Australia
       A The Australian Constitution and International Law
       B Attitudes, Anxieties and Assumptions
             1 International Law Is Pervasive and Vague
             2 International Law Is Not Relevant to the Domestic Legal
               Context
             3 Use of International Law Oversteps the Bounds of the
               Judiciary
             4 International Law Requires Special Expertise
IV  Constitutional Interpretation and International Law in South Africa
       A The South African Constitution and International Law
       B The Impact of International Law
             1 Limited Use of International Law
             2 Translation to the Domestic Context
             3 Respect for the Separation of Powers
             4 A Developing Expertise
V   Conclusion

   The claim that the Constitution should be read consistently with
   the rules of international law has been decisively rejected by
   members of this Court on several occasions. As a matter of
   constitutional doctrine, it must be regarded as heretical. (1)

   [W]ith every respect to those of a contrary view, opinions that
   seek to cut off contemporary Australian law (including
   constitutional law) from the persuasive force of international
   law are doomed to fail. They will be seen in the future much
   as the reasoning of Taney CJ in Dred Scott v Sandford, (2)
   Black J in Korematsu [v United States] (3) and Starke J in
   Ex parte Walsh (4) are now viewed: with a mixture of curiosity
   and embarrassment ... The fact is that it is often helpful for
   national judges to check their own constitutional thinking
   against principles expressing the rules of a 'wider
   civilization'. (5)

I INTRODUCTION

The use of international law in constitutional interpretation has sparked heated debate in legal systems governed by a written constitution. (6) For example, in a case before the United States Supreme Court, considering the constitutionality of the execution of mentally disabled offenders, Scalia J described his colleague Steven J's reference to the critical views of the 'world community' as deserving a 'Prize for the Court's Most Feeble Effort to fabricate "national consensus"'. (7) In the High Court of Australia, the issue produced unusually strong opposing responses in the recent decision in Al-Kateb v Godwin, (8) as the dicta set out above from McHugh and Kirby JJ demonstrates. The decision concerned whether the Australian Constitution permits the indefinite detention of a person refused permission to remain in Australia, who could not be deported because he was effectively 'stateless'. A majority of the Court found that it does. Given the clear international legal prohibition against arbitrary detention in human rights treaties to which Australia is party, one issue in the case was whether international law could assist in the interpretive exercise. Disagreement on the use of international law in constitutional interpretation also emerged in other High Court decisions handed down around the same time, such as in Re Woolley; Ex parte Applicants M276/2003 (by their next friend GS) (9) and Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji. …

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