Legal Research: Constitutional Law, Research Paper Example

Introduction

Australia is a growing country, where the government wasn’t established until centuries after leaving British colonization, becoming the smallest official continent in 1906. The original colonies, Tasmania, Victoria, Queensland, Sydney, South Australia, and Western Australia, provided a mixture of both Federalism and British Parliament Rule to create the constitution. Since the formation of the constitution many different parties have led the government including the Liberal Party, the Labor Party, and the Australian Democrats. Much like the United States, the government operates under a federal democracy, and they choose their cabinet based on Representatives. Australia’s constitution is heavily influence by international law, and its government is made up of several customers that are shared mainly in the western world. In this research, this paper will analyze and critique the Australian legal system and the influence of international law, and how the Australian Constitution is used in interpretation international laws.

Australian Legal System

The Australian legal system is very much influenced by international law, where rules and principles are used in dealing with international organization and relations.[1] Australia is considered a dualist country where international law holds influence to domestic laws. Australia’s municipal law and internationally law do not work together automatically, instead, Australian legal system adopts a dualist view. The laws have no direct effect on the national law in the absence of legislation that transitions them into rules of the municipal legal order. International law has great influence on Australian legal system mainly through legislation, common law, exercise of administrative discretion, and interpretation. The federal government has the ability to enact legislation that integrates the international requirements of the treaty of the Australian municipal law. The Constitution was structured in a way that when states came together to create the powers of the Commonwealth they would be exercise the powers they would keep. These powers include; defence, external affairs, interstate and international trade, marriage and divorce, taxation, bankruptcy, immigration, and corporation. [2]In Australian Constitution, Section 51, the constitution gives parliament the power to make laws for external affairs. “The legislative power of the Commonwealth shall be vested in a Federal Parliament, which shall consist of the Queen, a Senate, and a House of Representatives, and which is herein-after called “The Parliament,” or “The Parliament of the Commonwealth.”[3]

Parliament makes several laws that are binding and are influence greatly by outside laws. However, “no recent decision of any court outside this country is binding on an Australian court.”[4] Not long ago people thought that the practice of international law in Australia law was exclusive to the domain of lawyers and officials employed within the government or for international organizations. Presently, non-state agencies and private legal counsel have gone in front of international panels in several industries. International legal questions are consistently being brought before Australian courts, as the scope of international law is reaching all areas of Australian law. Australia’s dualism makes it possible for the fostering relationship between international and Australian Law where they separate and distinct. The Commonwealth of Australia is structurally set up as a federated constitutional monarchy with the federal government with power divided with the states, and territories. The common law system is traditionally set up between separation of powers between the executive, judicial, and legislative branches of government. Australia law is made by parliament, and the case law is primarily made by the judicial branch. [5] “Australian case law follows a precedent system whereby decisions are made in accordance with prior binding decisions.” [6]

International Law Binding?

International law is consistently joined in legislation as treaties bind Australia with forms of discrimination, human rights, and other issues that are bonded by international laws. Section 38 of the Constitution outlines the sources of international laws.[7] Stated within the Statute of the International Court of Justice, that permits Courts to apply, “international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b) international custom, as evidence of a general practice accepted as law; c) the general principles of law recognized by civilized nations.” [8] International laws expected to be follow within every nation where international organizations are prevalent. One of the most important sources of international laws are international agreements or treaties that bind the contracting nations. These treaties include the Vienna Convention on Diplomatic Relations (1961) and Convention on the Law of Treaties (1969). [9] Legislation however is in charge of implementing treaties obligations into common law. “The provisions of an international treaty, unless given effect in domestic law by legislation, are “res inter alios acta from which [individuals] cannot derive rights and by which they cannot be deprived of rights or subjected to obligations”. [10]

The Australian Constitution Section 61 it gives executive power to enter treaties.[11] The negotiation, conventions, and other parameters that Australia chooses to operate in are left up to the final decision of the Cabinet. In the case of Attorney-General for Canada v Attorney-

General for Ontario Treaties, is one of the clearest examples on the common law rule in regards to the obligations of treaties in national law. [12] The making of the treaty is considered an executive act, while the exacting the rules is more of an obligation, unless altering existing law would require legislative action. When there is need for the treaties rules to be obligated by the country, “they have to run the risk of obtaining the assent of Parliament to the necessary statute or statutes.”[13] Treaties and other international laws carry the support by the international communication, and is in the best of Australia’s national interest. This is significantly particularly in the human rights initiative that many international communities feel strongly about. For instance in the case of the passage of the Racial Discrimination Act 1975 (Cth) that the international convention pushed for, and Australia agreed to eliminate all forms of racial discrimination.[14] “Thus Australia together with States such as Canada and New Zealand, consider the rule of law essential to lasting peace and security, the realization of sustainable development and economic growth, and the promotion of human rights, accountability and democracy.”[15]

When international laws are not observed, the country is met with disapproval, international discussion, and action from political world organizations. Other actions include a reaction from The General Council of the United Nation, which although is not a law-making body, does provide resolutions, conventions, and treaties that it expects its members to follow. When not observed, the UN Security Council will “take action with respect to threats to peace, breaches of the peace, and acts of aggression, are binding on the 192 member States.[16] International law is often enforced through methods such as diplomatic negotiation, public pressure, national implementation, conciliation, judicial settlement, and arbitration. When Australia does breach international laws or obligations the repercussions include, they are under the obligation to cease the wrongful act, they must offer appropriate assurance, and guarantee of non-repetition.[17] If the country has to go before the Statute of the International Court of Justice, the judgment from the court is binding in the particular case, and it is a part of customary or treaty laws that the judgment be treated as an authoritative interpretation of international law. Treaties and other international agreements are not a form of domestic law unless implemented by legislation, and when there is not statute or law, cannot create any rights or obligations on the citizens of Australia. [18]

International law interpreting Constitution

Australia considerably operates as a dualist country where international law and common law work together and apart at the same time. According to research the Australian statute law is inconsistent with international law. Courts are tasked with the responsibility of interpreting legislation through the Constitution, and creating and applying the common law. Statute is not always clear, and it is up to the Courts to use legal doctrines to interpret. These confusions also include Australia’s international agreement or treaties, and their treaty obligations which are not always clear. The common law within Australia has expanded thanks to international law. Laws on the native people have helped to expand their human rights, and influence through statutory interpretation. Customary international law is practiced within the international community, and states have the ability to change the rules.

In some matters the cases need legislation to be the decision makers in international laws, such as in the case of Broadcasting Services Act 1922 (Cth) which required the Australian Broadcasting Authority to operate in the manner of obligations under the international convention that Australia was party to. [19] There are some matters where there are inconsistencies in international law, where the interpretation is warranted a breech, for instance, the Migration Act 1958 (Cth) that authorized the detention of unlawful non-citizens including children.[20] Although the High Court disagreed, in the manner interpreted, they were obligated to follow the law in the nation’s best interest. This was wrong, even if the international community agreed on a matter, if the country knows the law is outright wrong, they have the obligation to put human rights first. Although there have been in the some inconsistencies, international law should be an influence on Australian law. In the case of Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, it was crucial to the ratification of international treaties by the High Court, in relation to the international Convention on the Rights of the Child. [21] There should be procedural fairness in all aspects of justice, including in the international convention. In the matter of Minister for Immigration and Ethnic Affairs v Teoh (1995), “In its decision in Minister for Immigration and Ethnic Affairs v Teoh, the High Court held that treaties may have some indirect influence on Australian domestic law prior to their implementation through legislation.[22]

There are several cases where international law has heavily influenced domestic law. What has propelled the international campaign has been in the case of Mabo v Queensland (NO 2).[23] The High Court ruled that the common law recognized native title of the Aborigines, which overturned the common law doctrine of terra nullius. [24] In another case, Dietrich v R. who was convicted on the Customs Act 1901 (Cth) argued that he didn’t receive representation. [25] [26] This argument was based on the article 14(3) of the International Covenant on Civil and Political Rights (ICCPCR). Although the article was not a part of Australian law, counsel argued that common law should be interpreted to allow the enforceability of rights under the international agreement. Although the court couldn’t’ accept the article into the case, it is important to note the influence used in the judicial system.

International law is very important in international relations and issues. Treaties and other international agreements are made in the best interests of the participating international communities. Although countries are not obligated to follow unless passed into legislation, they are consequences if breeched. International law should have some influence in domestic law, and in various cases within Australian judicial system can be seen. International law is essential in the establishment of international human rights, economics, and other cases, where international consensus is significant.

Bibliographies

A Articles/Books/Reports

Banks, Robin. ‘Australian Legal System.’ State Library of NSW. (2007). No 50 pg 349-94.

Beckman, Robert, Butte, Dagmar. ‘Introduction to International Law.’ ILSA. http://www.ilsa.org/jessup/intlawintro.pdf

‘Breach of An International Obligation.’ (n.d). Chapter 3. UN. http://untreaty.un.org/cod/legislativeseries/documents/Book25/Book25_part1_ch3.pdf

‘Comparative Law.’ (n.d). Australian Law Postgraduate Network. http://alpn.edu.au/node/66

Hanks, Peter, Cass, Deborah. Australian Constitutional Law, Materials and Commentary. (Butterworths, Sydney. 1999. pp 956).

Cranwell, Glen. ‘Treaties and Australian Law-Administrative Discretions, Statutes and the Common Law.’ (2001). Queensland University of Technology Law & Justice Journal.

‘Legal Research Guide: Australia.’ (n.d). Library of Congress. http://www.loc.gov/law/help/australia.php

O’Donnell, D.P. State Succession in Municipal Law and International Law. (Cambridge University Press, 1967).

Ratnapla, Suri. Australian Constitutional Law: Foundations and Theory. (Oxford University Press, Melbourne, 2002). pp. 310-313.

Setear, John. ‘Responses to Breach of A Treaty and Rationalist IR Theory: The Rules of Release and Remediation in the Law of Treaties and of State Responsibility.’ http://faculty.virginia.edu/setear/cv/respnses.htm

Statton, John. ‘International Law.’ (2009). State Library of NSW. No.69. http://www.legalanswers.sl.nsw.gov.au/hot_topics/pdf/international_69.pdf

The Practitioner’s Guide to International Law. The Law Society of New South Wales. (New South Wales Young Lawyers International Law Committee 2010). National Library of Australia.

B Cases

Attorney-General for Canada v Attorney-General for Ontario (Cth).

Dietrich v R [1988] VCCA 152.

Mabo v Queensland (NO 2).

Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273.

C Legislation

Australian Constitution, Part 1.

Broadcasting Services Act 1922 (Cth).

Customs Act 1901 (Cth).

Migration Act 1958 (Cth).

Racial Discrimination Act 1975 (Cth).

[1] Beckman, Robert, Butte, Dagmar. ‘Introduction to International Law.’ ILSA. http://www.ilsa.org/jessup/intlawintro.pdf

[2] Banks, Robin. Australian Legal System. State Library of NSW. No 50 pg 349-94.

[3] Australian Constitution, Part 1.

[4] “Comparative Law.” (n.d). Australian Law Postgraduate Network. http://alpn.edu.au/node/66

[5] “Legal Research Guide: Australia.” (n.d). Library of Congress. http://www.loc.gov/law/help/australia.php

[6] Ibid.

[7] Australian Constitution. Sec. 38.

[8] Beckman, Robert, Butte, Dagmar. “Introduction to International Law.” (n.d). ILSA. http://www.ilsa.org/jessup/intlawintro.pdf

[9] “Public International Law.” ALPN. (n.d). http://alpn.edu.au/node/68

[10] Cranwell, Glen. “Treaties and Australian Law-Administrative Discretion, Statutes and the Common Law.” (2001). QUT Law Review.

[11] Australian Constitution. Sec 61.

[12] Attorney-General for Canada v Attorney-General for Ontario (Cth).

[13] Above n.

[14] Racial Discrimination Act 1975 (Cth).

[15] The Practitioner’s Guide to International Law. (2010). The Law Society of New South Wales. National Library of Australia.

[16] Above n.

[17] Above n.

[18] Cranwell, Glen. “Treaties and Australian Law-Administrative Discretions, Statutes and the Common Law.” (2001). QUT Law Review.

[19] Broadcasting Services Act 1922 (Cth).

[20] Migration Act 1958 (Cth).

[21] Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273.

[22] Supra n.

[23] Mabo v Queensland (NO 2).

[24] Above n.

[25] Dietrich v R.

[26] Customs Act 1901 (Cth)