(e) the determination of the constitutionality of legislation regulating New Guinea(and later Papua and New Guinea) under the League of Nations mandate system(and later the United Nations trusteeshi system); and (a the freedom of political communication cases; and the interpretation of Ch Ill of the constitution I will not consider all of these areas in detail suffice it to say that international law was, as we know, rejected as a limitation on legislative power in both Polites and Horta, with the exception of some legislation enacted under the external affairs power. 23 Evatt J's attempts to confine the Commonwealth's power over trust and mandated territories failed. Constitutionally, of course, international law has proved significant as a source of legislative power because of the Commonwealth Parliament's capacity to legislate to give effect to Australia's international obligations but that has been much written about elsewhere and thus will not be addressed here. Rather I will focus on two areas where international law has been used in determining a constitutional issue: Ch Ill of the Constitution and the implied freedom of political communication Sykes v Cleary(1992)176 CLR 77 2 Jolley v Mainka(1993)49 CLR 243; Ffrost v Stevenson(1937)58 CLR 528; Fishwick v Cleland (1960)106CLR186 Nationwide News v Wills(1992)177 CLR 1: Australian Capital Television Pty Ltd v The Commonwealth(1992)177 CLR 106: Theophanous v Herald Weekly Times Ltd(1994)124 ALR 1 That is, legislation enacted in reliance on a treaty must be"reasonably capable of being considered appropriate and adapted"to implementing the treaty: Industrial Relations case, (1996)187 CLR 416 5089 4 See n 21. above See, eg, Andrew Byrnes and Hilary Charlesworth, " Federalism and the International Legal Order Recent Developments in Australia"(1985)79 American Journal of International Law 622; Kidwai External Affairs Power and the Constitutions of British Dominions"(1976)9 University of Queensland Law Journal 167. JT Ludeke. "The External Affairs Power: Another province for law and order" (1994)68 Australian Law Journal 250: Brian Opeskin and Don Rothwell, The Impact of Treaties on Australian Federalism"(1995)27 Case Western Joumal of Intemational Law 1; Don Rothwell, " The High Court and the External Affairs Power: A Consideration of its Inner and Outer Limits(1993)15 Adelaide Law Review 209 James Crawford and william Edeson "International law and Australian Law in KW Ryan(ed), International Law in Australia(2nd ed, 1984)71; Geoffrey Sawer, Australian Constitutional Law in Relation to International Relations and International Law"in KW Ryan, Intemational Law in Australia(2nd ed, Sydney)35: Leslie Zines, The High Court and the Constitution (3rded,1992)
(e) the determination of the constitutionality of legislation regulating New Guinea (and later Papua and New Guinea) under the League of Nations mandate system (and later the United Nations trusteeship system);21 and (f) the freedom of political communication cases; and the interpretation of Ch III of the Constitution.22 I will not consider all of these areas in detail — suffice it to say that international law was, as we know, rejected as a limitation on legislative power in both Polites and Horta, with the exception of some legislation enacted under the external affairs power.23 Evatt J's attempts to confine the Commonwealth's power over trust and mandated territories failed.24 Constitutionally, of course, international law has proved significant as a source of legislative power because of the Commonwealth Parliament's capacity to legislate to give effect to Australia's international obligations, but that has been much written about elsewhere25 and thus will not be addressed here. Rather, I will focus on two areas where international law has been used in determining a constitutional issue: Ch III of the Constitution and the implied freedom of political communication. 20 Sykes v Cleary (1992) 176 CLR 77. 21 Jolley v Mainka(1993) 49 CLR 243; Ffrost v Stevenson (1937) 58 CLR 528; Fishwick v Cleland (1960) 106 CLR 186. 22 Nationwide News v Wills (1992) 177 CLR 1; Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106; Theophanous v Herald & Weekly Times Ltd (1994) 124 ALR 1. 23 That is, legislation enacted in reliance on a treaty must be "reasonably capable of being considered appropriate and adapted" to implementing the treaty: Industrial Relations case, (1996) 187 CLR 416, 508-9. 24 See n 21, above. 25 See, eg, Andrew Byrnes and Hilary Charlesworth, “Federalism and the International Legal Order: Recent Developments in Australia” (1985) 79 American Journal of International Law 622; Kidwai, “External Affairs Power and the Constitutions of British Dominions” (1976) 9 University of Queensland Law Journal 167; JT Ludeke, “The External Affairs Power: Another Province for Law and Order” (1994) 68 Australian Law Journal 250; Brian Opeskin and Don Rothwell, “The Impact of Treaties on Australian Federalism” (1995) 27 Case Western Journal of International Law 1; Don Rothwell, “The High Court and the External Affairs Power: A Consideration of its Inner and Outer Limits” (1993) 15 Adelaide Law Review 209; James Crawford and William Edeson, “International Law and Australian Law” in KW Ryan (ed), International Law in Australia (2nd ed, 1984) 71; Geoffrey Sawer, “Australian Constitutional Law in Relation to International Relations and International Law” in KW Ryan, International Law in Australia (2nd ed, Sydney) 35; Leslie Zines, The High Court and the Constitution (3rd ed, 1992). 5
Ch lll of the constitution Chapter Ill of the Constitution may not appear at first glance to be fertile ground for arguments based on international law. However, international law has had some relevance in determining whether Ch Ill precludes the enactment of ex post facto criminal laws and, if it does, precisely what amounts to such a law. These issues were raised in Polyukhovich, which concerned the validity of the Commonwealth War Crimes Act. Deane J concluded that Ch Ill did preclude ex post facto criminal laws and, although his Honour's decision was based primarily on his conception of the nature of the judicial process, he also drew support from international human rights conventions, such as the European Convention for the Protection of Human Rights (ECHR) and the American Convention on Human Rights, which provided protection against the imposition of retrospective criminal guilt. Australia is not a party to either of these conventions, but Deane J used them to support his conclusion that"ex post facto criminal legislation lies outside the proper limits of the legislative function as a matter of principle. 28 Both Deane J and Gaudron J also made use of principles of international law in their application of the prohibition on ex post facto criminal laws stemming from Ch lll of the Constitution. Because they concluded that such a prohibition existed, it was necessary for them to establish whether the War Crimes Act violated the prohibition It was accepted that the conduct criminalised by the act was not criminal in domestic law at the time of its commission; however, both judges considered it necessary to (1991)172CLR501,611-2 /bid 612 bid 611
1. Ch III of the Constitution Chapter III of the Constitution may not appear at first glance to be fertile ground for arguments based on international law. However, international law has had some relevance in determining whether Ch III precludes the enactment of ex post facto criminal laws and, if it does, precisely what amounts to such a law. These issues were raised in Polyukhovich, which concerned the validity of the Commonwealth War Crimes Act. Deane J concluded that Ch III did preclude ex post facto criminal laws26 and, although his Honour’s decision was based primarily on his conception of the nature of the judicial process, he also drew support from international human rights conventions, such as the European Convention for the Protection of Human Rights (“ECHR”) and the American Convention on Human Rights, which provided protection against the imposition of retrospective criminal guilt.27 Australia is not a party to either of these conventions, but Deane J used them to support his conclusion that “ex post facto criminal legislation lies outside the proper limits of the legislative function” as a matter of principle.28 Both Deane J and Gaudron J also made use of principles of international law in their application of the prohibition on ex post facto criminal laws stemming from Ch III of the Constitution. Because they concluded that such a prohibition existed, it was necessary for them to establish whether the War Crimes Act violated the prohibition. It was accepted that the conduct criminalised by the Act was not criminal in domestic law at the time of its commission; however, both judges considered it necessary to 26 (1991) 172 CLR 501, 611-2. 27 Ibid 612. 28 Ibid 611. 6
determine whether the conduct was criminal at international law at that time in order to determine whether the legislation was truly retrospective. 9 they concluded that the relevant conduct was not criminalised in international law at the time it occurred and thus the legislation was retroactive in nature lorth mentioning, too, are some obiter comments of Deane J to the effect that, if Australia was participating in the establishment and functioning of an international tribunal for the trial and punishment of international crimes, Ch Ill of the Constitution would be inapplicable because the judicial power of the international community rather than that of the commonwealth, would be involved. In addition he foreshadowed a possible further exception to the applicability of ch Ill, where a local tribunal is vested with jurisdiction in relation to an alleged crime against international law: It may be arguable that, in such a case, the judicial power of the Commonwealth is not involved for so long as the alleged crime against nternational law is made punishable as such in the local court. Alternatively, at least where violations of the laws and customs of war are alone involved analogy with the disciplinary powers of military tribunals and largely pragmatic standing outside Ch// 3 bine to dictate recognition of a special jurisdiction This comment on the potential for international law to take a criminal prosecution outside the protection afforded by ch Ill is surprising as Deane J has been one of the leaders of the Court in developing Ch Ill as a protective mechanism, particularly in the area of military courts-martial. These comments will be of particular interest if, as expected, Australia ratifies the Statute of the International Criminal Court id627-8,631,699-700,707 30bd627 See, eg, Re Tyler; Ex parte Foley( 1994)181 CLR 18: Re Nolan: EX parte Young(1991)172 CLR 460; Re Tracey; Ex parte Ryan(1989)166 CLR 518
determine whether the conduct was criminal at international law at that time, in order to determine whether the legislation was truly retrospective.29 They concluded that the relevant conduct was not criminalised in international law at the time it occurred, and thus the legislation was retroactive in nature. Worth mentioning, too, are some obiter comments of Deane J to the effect that, if Australia was participating in the establishment and functioning of an international tribunal for the trial and punishment of international crimes, Ch III of the Constitution would be inapplicable because the judicial power of the international community, rather than that of the Commonwealth, would be involved.30 In addition, he foreshadowed a possible further exception to the applicability of Ch III, where a local tribunal is vested with jurisdiction in relation to an alleged crime against international law: It may be arguable that, in such a case, the judicial power of the Commonwealth is not involved for so long as the alleged crime against international law is made punishable as such in the local court. Alternatively, at least where violations of the laws and customs of war are alone involved, analogy with the disciplinary powers of military tribunals and largely pragmatic considerations might combine to dictate recognition of a special jurisdiction standing outside Ch III.31 This comment on the potential for international law to take a criminal prosecution outside the protection afforded by Ch III is surprising, as Deane J has been one of the leaders of the Court in developing Ch III as a protective mechanism, particularly in the area of military courts-martial.32 These comments will be of particular interest if, as expected, Australia ratifies the Statute of the International Criminal Court. 29 Ibid 627-8, 631, 699-700, 707. 30 Ibid 627. 31 Ibid. 32 See, eg, Re Tyler; Ex parte Foley (1994) 181 CLR 18; Re Nolan; Ex parte Young (1991) 172 CLR 460; Re Tracey; Ex parte Ryan (1989) 166 CLR 518. 7
2. The Implied Freedom of Political Communication Several members of the court have also referred to international conventions in decisions concerning the implied freedom of political communication. In Australian Capital Television and Nationwide News, Mason CJ, Brennan J and Gaudron J used the European Convention on Human Rights in support of the fundamental importance of freedom of communication to representative democracy.These judges did not engage in any in depth discussion or analysis of freedom of expression as guaranteed by the ECHR; rather, they merely used the EChr (to which, of course, Australia is not a party) to demonstrate that other representative democracies value freedom of expression The ECHR was also used by Brennan J in Australian Capital Television in his assessment of whether the freedom of political communication had been violated He noted that in X and the Association of z v United Kingdom a challenge under the ECHR to a ban on political advertisements on British television had failed. Brennan J paid some attention to this case, which was directly on point although not referred to by mason CJ or Gaudron J. Ultimately, Brennan J concluded that the ban on paid political advertising did not violate the implied right to freedom of political expression and the European case, although not decisive, was influential in reaching that conclusion McHugh J, too, considered the ECHR, but found it unnecessary to discuss X and the Association of Z, because he concluded that the constitutional context in which the guarantee of freedom of expression operated in Australia meant that there was no valid analogy between the international instruments and the commonwealth 33 Nationwide News Pty Ltd v Wills(1992)177 CLR 1, 47(Brennan J); Australian Capital Television Pty Ltd v The Commonwealth(1992)177 CLR 106, 140 (Mason J), 211(Gaudron J) y4(192)177CLR106,154
2. The Implied Freedom of Political Communication Several members of the Court have also referred to international conventions in decisions concerning the implied freedom of political communication. In Australian Capital Television and Nationwide News, Mason CJ, Brennan J and Gaudron J used the European Convention on Human Rights in support of the fundamental importance of freedom of communication to representative democracy.33 These judges did not engage in any in depth discussion or analysis of freedom of expression as guaranteed by the ECHR; rather, they merely used the ECHR (to which, of course, Australia is not a party) to demonstrate that other representative democracies value freedom of expression. The ECHR was also used by Brennan J in Australian Capital Television in his assessment of whether the freedom of political communication had been violated. He noted that in X and the Association of Z v United Kingdom a challenge under the ECHR to a ban on political advertisements on British television had failed.34 Brennan J paid some attention to this case, which was directly on point although not referred to by Mason CJ or Gaudron J. Ultimately, Brennan J concluded that the ban on paid political advertising did not violate the implied right to freedom of political expression, and the European case, although not decisive, was influential in reaching that conclusion. McHugh J, too, considered the ECHR , but found it unnecessary to discuss X and the Association of Z, because he concluded that the constitutional context in which the guarantee of freedom of expression operated in Australia meant that there was no valid analogy between the international instruments and the Commonwealth 33 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, 47 (Brennan J); Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106, 140 (Mason J), 211 (Gaudron J). 34 (1992) 177 CLR 106, 154. 8