THE UNIVERISITY OF MELBOURNE FACULTY OF LAW Public Law and Legal Theory Research Paper No 33 2002 INTERNATIONAL LAW ASA TOOL OF CONSTITUTIONAL INTERPRETATION Kristen Walker This paper can be downloaded without charge from the Social Science Research Network Electronic Library at http:/ssm.com/abstractid=319921
THE UNIVERISITY OF MELBOURNE FACULTY OF LAW Public Law and Legal Theory Research Paper No. 33 2002 INTERNATIONAL LAW AS A TOOL OF CONSTITUTIONAL INTERPRETATION Kristen Walker This paper can be downloaded without charge from the Social Science Research Network Electronic Library at: http://ssrn.com/abstract_id=319921
INTERNATIONAL LAW AS A TOOL OF CONSTITUTIONAL INTERPRETATION Kristen Walker INTRODUCTION In a series of judgments in the past five years Justice Kirby has developed an interpretive principle concerning the use of international law in constitutional interpretation. He has adapted the words of Brennan J in Mabo v queensland [No 2to formulate the proposition that The common law, and constitutional law, do not necessarily conform with international law. However, international law is a legitimate and important influence on the development of the common law and constitutional law, especially when international law declares the existence of universal and fundamental rights. 2 So far, he is very much alone in his endeavour, though as Kirby j himself has noted today's heresies sometimes become tomorrow s orthodoxy.3 In this paper I will explain and assess Kirby J's interpretive principle. I shall argue that international law should, as Kirby J asserts, be considered a legitimate influence on constitutional interpretation. I also argue that Kirby J's approach is not entirely new, as there is support for the use of international law in constitutional interpretation BSc LLB(Hons)LLM(Melb), LLM(Columbia). Senior Lecturer in Law, The University of Melbourne I would like to thank Simona Gory for research assistance; all errors remain my own. A version of this paper was presented at the Public Law Weekend, ANU Law School, 2 November 2001 Mabo v Queensland(No 2/(1992)175 CLR 1, 42 Newcrest Mining(WA)v The Commonwealth (1997)190 CLR 513, 657. And see Kartinyeni v The Commonwealth(1998)195 CLR 337, 417-418, Sinanovic v R(1998)154 ALR 702, 708: Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka(2001)179 ALR 296, 314; Levy v victoria (1997)189 CLR 589, 644-5; Re East; EX parte Nguyen(1998)196 CLR 354, 380-1; Michael Kirby, International Law: Down in the Engineroom", ANZSIL/ASIL Joint Meeting, 26 June 2000, 6-7 http://www.hcourt.gov.au/speeches/kirbyj/kirbyj_inter_law.htmMichaelKirby,domEstic Implementation of Human Rights Norms"ANU Conference on Implementing International Human Rights6December1997,29-32,http://www.hcourt.gov.au/speeches/kirbyj/kirbyj_inthrts.htm 3 Kirby, "Domestic Implementation",32
INTERNATIONAL LAW AS A TOOL OF CONSTITUTIONAL INTERPRETATION Kristen Walker* INTRODUCTION In a series of judgments in the past five years Justice Kirby has developed an interpretive principle concerning the use of international law in constitutional interpretation. He has adapted the words of Brennan J in Mabo v Queensland [No 2]1 to formulate the proposition that: The common law, and constitutional law, do not necessarily conform with international law. However, international law is a legitimate and important influence on the development of the common law and constitutional law, especially when international law declares the existence of universal and fundamental rights.2 So far, he is very much alone in his endeavour, though as Kirby J himself has noted, "today's heresies sometimes become tomorrow's orthodoxy".3 In this paper I will explain and assess Kirby J's interpretive principle. I shall argue that international law should, as Kirby J asserts, be considered a legitimate influence on constitutional interpretation. I also argue that Kirby J's approach is not entirely new, as there is support for the use of international law in constitutional interpretation * BSc LLB(Hons) LLM (Melb), LLM (Columbia). Senior Lecturer in Law, The University of Melbourne. I would like to thank Simona Gory for research assistance; all errors remain my own. A version of this paper was presented at the Public Law Weekend, ANU Law School, 2 November 2001. 1 Mabo v Queensland [No 2] (1992) 175 CLR 1, 42. 2 Newcrest Mining (WA) v The Commonwealth (1997) 190 CLR 513, 657. And see Kartinyeri v The Commonwealth (1998) 195 CLR 337, 417–418, Sinanovic v R (1998) 154 ALR 702, 708; Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001) 179 ALR 296, 314; Levy v Victoria (1997) 189 CLR 589, 644–5; Re East; Ex parte Nguyen (1998) 196 CLR 354, 380–1; Michael Kirby, "International Law: Down in the Engineroom", ANZSIL/ASIL Joint Meeting, 26 June 2000, 6–7, http://www.hcourt.gov.au/speeches/kirbyj/kirbyj_inter_law.htm; Michael Kirby, "Domestic Implementation of Human Rights Norms" ANU Conference on Implementing International Human Rights, 6 December 1997, 29–32, http://www.hcourt.gov.au/speeches/kirbyj/kirbyj_inthrts.htm. 3 Kirby, "Domestic Implementation", 32
in several cases over the course of the last century. What is new about Kirby J's approach is that he has articulated an explicit interpretive principle, whereas previous cases had involved the ad hoc and unexplained use of international law. It might also be argued that Kirby J's approach is not new in that he is merely extending an existing principle of statutory interpretation to the Constitution. I disagree with such a characterisation, however, as I do not consider the Constitution to be the equivalent to an ordinary statute. Rather, the Constitution is a" -that is although technically an Imperial statute, it is our foundational legal document, developed in Australia and adopted after referenda in each colony. It stands in a special position, subject to a distinct body of jurisprudence concerning its interpretation. Thus although it is correct to say that Kirby j has extended an existing principle into the constitutional arena, I regard this extension as novel -and indeed as controversial, as the discussion of judicial responses to Kirby J's approach in Part ll of this paper reveals In Part I of this article, I shall briefly outline the cases in which members of the High Court have, over the years, drawn on international law in interpreting the Constitution. In Part Il I shall explore in greater detail Kirby J's approach to the use of international law in constitutional interpretation and consider the reaction to that approach by other members of the present High Court. In Part lll I shall provide a normative argument concerning the interaction of international law and constitutional law. I conclude that, while international law has had and should have a role to play in constitutional interpretation, a robust role for international law is unlikely to be accepted by a majority of the Court as presently constituted Kartinyeri 419
in several cases over the course of the last century. What is new about Kirby J's approach is that he has articulated an explicit interpretive principle, whereas previous cases had involved the ad hoc and unexplained use of international law. It might also be argued that Kirby J's approach is not new in that he is merely extending an existing principle of statutory interpretation to the Constitution. I disagree with such a characterisation, however, as I do not consider the Constitution to be the equivalent to an ordinary statute. Rather, the Constitution is a "special" statute4 — that is, although technically an Imperial statute, it is our foundational legal document, developed in Australia and adopted after referenda in each colony. It stands in a special position,5 subject to a distinct body of jurisprudence concerning its interpretation. Thus although it is correct to say that Kirby J has extended an existing principle into the constitutional arena, I regard this extension as novel — and indeed, as controversial, as the discussion of judicial responses to Kirby J's approach in Part II of this paper reveals. In Part I of this article, I shall briefly outline the cases in which members of the High Court have, over the years, drawn on international law in interpreting the Constitution. In Part II I shall explore in greater detail Kirby J's approach to the use of international law in constitutional interpretation and consider the reaction to that approach by other members of the present High Court. In Part III I shall provide a normative argument concerning the interaction of international law and constitutional law. I conclude that, while international law has had and should have a role to play in constitutional interpretation, a robust role for international law is unlikely to be accepted by a majority of the Court as presently constituted. 4 Kartinyeri 419. 2
I note at this point that I will not be dealing in any detail with the more general question of the relationship between international law and domestic law-that is, the incorporation/transformation debate. Although this is a constitutional question, it is not the question on which I wish to focus, and it has been dealt with extensively elsewhere. Briefly, however, it may be noted that in our legal system treaties are not automatically"part of domestic law. Rather, an act of transformation is required to give treaties direct effect in Australian law. In relation to customary international law the position is more complex. It is still possible to argue that customary international law is"part of the Australian common law without requiring legislation to transform customary international law into Australian law, based on English authorities(such as Triquet v Bath and Trendtex Trading Corporation v Central Bank of Nigeria,)and some older Australian cases (such as Polites v The Commonwealth and Chow Hung Ching v R). However, such a proposition was rejected by Dixon CJ in Chow Hung Ching and, more recently, impliedly rejected by a majority of the Full Federal Court in Nulyarimma v Thompson. 13 There is no recent High Court support for an id 384( Gummow and Hayne JJ), Polites 78(Dixon J 6 See, eg, Kristen Walker, "Treaties and the Internationalisation of Australian Law"in Cheryl Saunders ed, Courts of Final Jurisdiction(1995); Andrew Mitchell, "Genocide, Human Rights Implementation And The Relationship Between International And Domestic Law: Nulyarimma v Thompson"(2000)24 MULR 15: James Crawford and William Edeson, "International Law and Australian Law in KW Ryan (ed), International Law in Australia(2 ed, 1984)71; C Alexandrowicz, "International Law in the Municipal Sphere According to Australian Decisions"(1964)13 International and Comparative Law 7 For a fuller discussion of the relationship between treaties and Australian law, see Kristen Walker "Treaties and the Internationalisation of Australian Law in Cheryl Saunders, ed, Courts of Final (1995)20 B(1764)3Bur1478[97ER777 °[1977]1QB529 10(1945)70cLR60 (1948)77CLR449 /bid 477 [199]FCA1192(1sept1999), paras24,52
I note at this point that I will not be dealing in any detail with the more general question of the relationship between international law and domestic law – that is, the incorporation/transformation debate. Although this is a constitutional question, it is not the question on which I wish to focus, and it has been dealt with extensively elsewhere.6 Briefly, however, it may be noted that in our legal system treaties are not automatically "part of" domestic law. Rather, an act of transformation is required to give treaties direct effect in Australian law.7 In relation to customary international law, the position is more complex. It is still possible to argue that customary international law is "part of" the Australian common law without requiring legislation to transform customary international law into Australian law, based on English authorities (such as Triquet v Bath8 and Trendtex Trading Corporation v Central Bank of Nigeria9 ) and some older Australian cases (such as Polites v The Commonwealth10 and Chow Hung Ching v R11). However, such a proposition was rejected by Dixon CJ in Chow Hung Ching12 and, more recently, impliedly rejected by a majority of the Full Federal Court in Nulyarimma v Thompson. 13 There is no recent High Court support for an 5 Ibid 384 (Gummow and Hayne JJ), Polites 78 (Dixon J). 6 See, eg, Kristen Walker, "Treaties and the Internationalisation of Australian Law" in Cheryl Saunders, ed, Courts of Final Jurisdiction (1995); Andrew Mitchell, "Genocide, Human Rights Implementation And The Relationship Between International And Domestic Law : Nulyarimma v Thompson" (2000) 24 MULR 15; James Crawford and William Edeson, “International Law and Australian Law” in KW Ryan (ed), International Law in Australia (2nd ed, 1984) 71; C Alexandrowicz, "International Law in the Municipal Sphere According to Australian Decisions" (1964) 13 International and Comparative Law Quarterly 78. 7 For a fuller discussion of the relationship between treaties and Australian law, see Kristen Walker, "Treaties and the Internationalisation of Australian Law" in Cheryl Saunders, ed, Courts of Final Jurisdiction (1995) 204. 8 (1764) 3 Burr 1478 [97 ER 777]. 9 [1977] 1 QB 529. 10 (1945) 70 CLR 60. 11 (1948) 77 CLR 449. 12 Ibid 477. 13 [1999] FCA 1192 (1 Sept 1999), paras 24, 52. 3
incorporation approach to customary international law and Sir Anthony Mason, in his extra-judicial writings, has noted that in Australia we seem to prefer the transformation approach to customary international law. However, both treaties and customary international law have been used quite frequently by the courts in the development of the common law and in the interpretation of legislation More recently, treaties have been used in the area of legitimate expectations in administrative law. The question that remains is whether and how international law may be used in constitutional cases I. INTERNATIONAL LAW IN CONSTITUTIONAL CASES: 1901-1996 International law has been raised in various constitutional cases over the years in relation to diverse issues, including (a) international law as a limitation on legislative power (b)international law as a source of legislative power (c) the determination of the existence of a sufficient nexus between a State and the subject matter of a State law (d) the interpretation of section 44 of the Constitution 20 14 Anthony Mason, "International Law as a Source of Domestic Law"in Brian Opeskin(ed) International Law and Australian Federalism(1997), 218. And see generally the discussion in bove n 6 See discussion in Walker, above n 6. 209-218: Rosalie Balkin "International Law and domestic Law"in Sam Blay, Ryszard Piotrowicz and Martin Tsamenyi(eds), Public International Law: An Australian Perspective(1997)119, 122, 132-135 16 Minister for immigration and Ethnic Affairs v Teoh(1995)183 CLR 273 Polites v The Commonwealth(1945)70 CLR 60: Horta v The Commonwealth(1994)181 CLR 183 Polyukhovich v The Commonwealth(1991)172 CLR 501 1 Roche v Kronheimer(1921)29 CLR 329: Rv Burgess; Ex parte Henry (1936)55 CLR 608: Rv Poole: Ex parte Henry ([No 2/(1939)61 CLR 634; Airlines of New South Wales Pty Ltd v New South Wales/No 2](1965)113 CLR 54: The Commonwealth Ta (1983)158 CLR 1; Kirmani v Captain Cook Cruises Pty Ltd(1985)158 CLR 351; Gerhardy v Brown(1985)159 CLR 70 Richardson v Forestry Commission(1988)164 CLR 261; Queensland v The Commonwealth(1989) 167 CLR 232(The Queensland Rainforest Case): Victoria v The Commonwealth(1996)187 CLR 416 (The Industrial Relations case) Inion Steamship Co of Australia Pty Ltd v King(1988)166 CLR 1
incorporation approach to customary international law and Sir Anthony Mason, in his extra–judicial writings, has noted that in Australia we seem to prefer the transformation approach to customary international law.14 However, both treaties and customary international law have been used quite frequently by the Courts in the development of the common law and in the interpretation of legislation.15 More recently, treaties have been used in the area of legitimate expectations in administrative law.16 The question that remains is whether and how international law may be used in constitutional cases. I. INTERNATIONAL LAW IN CONSTITUTIONAL CASES: 1901–1996 International law has been raised in various constitutional cases over the years in relation to diverse issues, including: (a) international law as a limitation on legislative power;17 (b) international law as a source of legislative power;18 (c) the determination of the existence of a sufficient nexus between a State and the subject matter of a State law;19 (d) the interpretation of section 44 of the Constitution;20 14 Anthony Mason, "International Law as a Source of Domestic Law" in Brian Opeskin (ed), International Law and Australian Federalism (1997) , 218. And see generally the discussion in Mitchell, above n 6. 15 See discussion in Walker, above n 6, 209-218; Rosalie Balkin, "International Law and Domestic Law" in Sam Blay, Ryszard Piotrowicz and Martin Tsamenyi (eds), Public International Law: An Australian Perspective (1997) 119, 122, 132-135 16 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. 17 Polites v The Commonwealth (1945) 70 CLR 60; Horta v The Commonwealth (1994) 181 CLR 183; Polyukhovich v The Commonwealth (1991) 172 CLR 501. 18 Roche v Kronheimer (1921) 29 CLR 329; R v Burgess; Ex parte Henry (1936) 55 CLR 608; R v Poole; Ex parte Henry ([No 2] (1939) 61 CLR 634; Airlines of New South Wales Pty Ltd v New South Wales [No 2] (1965) 113 CLR 54; The Commonwealth v Tasmania (1983) 158 CLR 1; Kirmani v Captain Cook Cruises Pty Ltd (1985) 158 CLR 351; Gerhardy v Brown (1985) 159 CLR 70; Richardson v Forestry Commission (1988) 164 CLR 261; Queensland v The Commonwealth (1989) 167 CLR 232 (The Queensland Rainforest Case); Victoria v The Commonwealth (1996) 187 CLR 416 (The Industrial Relations case). 19 Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1. 4