Sie sind auf Seite 1von 25

Federal treaty jurisdiction: A belated reply to Mark Leeming SC

Oliver Jones*
This article revisits the 1999 comment by Mark Leeming SC on federal treaty jurisdiction. By s 75(i) of the Constitution, the jurisdiction consists of matters arising under any treaty. Where those matters do so directly, s 38(a) of the Judiciary Act 1903 (Cth) makes the jurisdiction largely exclusive to the High Court. Mr Leeming concluded that s 38(a) took its content from the handful of treaties that apply without implementing legislation. The author disagrees with this conclusion. Although they take effect without implementing legislation, Mr Leemings treaties do not independently bring rights and obligations to the domestic plane. They are instead adopted by a domestic legal instrument or rule. Accordingly, they fall short of the directness that s 38(a) requires. The author proposes that s 75(i) and s 38(a) instead enable the High Court to make declarations on whether, in the particular circumstances of an individual or entity, the Commonwealth has breached its obligations under an unincorporated treaty regarding the rights of persons within Australian territory.

INTRODUCTION
It is nearly a decade since a comment by Mark Leeming SC on federal treaty jurisdiction appeared in the Public Law Review.1 The piece remains one of the most thorough and constructive examinations of s 75(i) of the Constitution and s 38(a) of the Judiciary Act 1903 (Cth) ever undertaken. Mr Leemings central conclusion was novel: jurisdiction in matters directly arising under treaties, made exclusive to the High Court by s 38(a), was only enlivened by the handful of treaties that applied without implementing legislation. Mr Leemings article has been cited by the High Court and2 his central conclusion has even been mentioned in argument before that court.3 It has also been examined by the Australian Law Reform Commission, in a discussion noting the view that federal treaty jurisdiction had potential for future development.4 The signicance of the article, and the jurisdiction itself, make it worth investigating whether Mr Leemings views remain valid. This article seeks to reconsider Mr Leemings central conclusion, and to argue that, in the authors view, there is a different, modern and exciting role for s 38(a).

MR LEEMINGS

CONCLUSIONS

Mr Leeming appropriately avoided opining on the precise scope of s 75(i). Back then, a debate raged about whether the provision embraced the interpretation of implementing legislation (legislation that gives effect to provisions of treaties concluded by Australia in domestic law) or was instead conned
* LLB (Hons) BA (Intl Studies) (UTS); BCL (Oxon). University Medallist in Law 2001, British Chevening Scholar 2004-2005. Faculty of Law, University of Hong Kong. Formerly Associate, Public International Law and International Commercial Arbitration, Herbert Smith LLP, London. E-mail: (oliver.jones@oriel.oxon.net). The author would like to thank the anonymous referee, Assoc Prof Damien Cremean, Mr Gim Del Villar, Ms Silvia Farre-Munoz, the Hon Leslie Katz SC, Mr Mark Leeming SC and Mr David Lewis. The views expressed in this article are those of the author and do not necessarily reect those of any person or body with whom he is associated. 1 2

Leeming M, Federal Treaty Jurisdiction (1999) 10 PLR 173.

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 33, n 100 (McHugh and Gummow JJ); 77 ALJR 699; 195 ALR 502; [2003] HCA 6.
3 4

Ruhani v Director of Police [2004] HCA Trans 440.

Australian Law Reform Commission, ALRC 92: The Judicial Power of the Commonwealth: A Review of Judiciary Act 1903 (Cth) 1903 and Related Legislation (2001) at [7.15] and [7.23] (http://www.alrc.gov.au (viewed 2 May 2007)).

94

(2007) 18 PLR 94

Electronic copy available at: http://ssrn.com/abstract=1688155

Federal treaty jurisdiction: A belated reply to Mark Leeming SC

to some less interstitial consideration of treaties, without detailing what form that might take. McLelland J, in Bluett v Fadden (1956) 56 SR (NSW) 254; 73 WN (NSW) 193 (Bluett), and Kirby J, in Re East; Ex parte Nguyen (1998) 196 CLR 354; 73 ALJR 140; 159 ALR 108; [1998] HCA 73 (East), subscribed to the former.5 Miles CJ, in R v Donyadideh (1993) 115 ACTR 1; 114 FLR 43 (Donyadideh), believed in the latter.6 Since Mr Leemings article, Callinan and Heydon JJ, in Ruhani v Director of Police (2005) 222 CLR 489; 79 ALJR 1431; 219 ALR 199; [2005] HCA 42 (Ruhani), have gone some way toward joining Miles CJ.7 However, as Mr Leeming pointed out,8 the debate does not matter a great deal. Even if McLelland and Kirby JJ were correct, the interpretation of an implementing statute would almost certainly produce a co-extensive matter arising under a law made by the Commonwealth Parliament. Accordingly, the Federal Court,9 State courts10 and the Northern Territory Supreme Court11 would retain full jurisdiction. Even the High Court would, on certain occasions, be in the same position.12 The ACT Supreme Court would also be unaffected, as it has a comprehensive jurisdiction for the administration of justice in the ACT.13 The more important question is when matters arise directly under a treaty. For s 38(a) gives the High Court a jurisdiction in such matters that is exclusive of the several courts of the States.14 In other cases, those courts may exercise federal treaty jurisdiction.15 Through some opaque drafting, the Supreme Court of the Northern Territory is in the same position.16 Yet, despite Mr Leemings assumption to the contrary,17 the High Courts jurisdiction under s 38(a) is not necessarily exclusive of the Federal Court. The latter is not engaged by the provision. On
5 Bluett v Fadden (1956) 56 SR (NSW) 254 at 260-261; 73 WN (NSW) 193; Re East; Ex parte Nguyen (1998) 196 CLR 354 at 385; 73 ALJR 140; 159 ALR 108; [1998] HCA 73. 6 7 8 9

R v Donyadideh (1993) 115 ACTR 1 at 6; 114 FLR 43. Ruhani v Director of Police (2005) 222 CLR 489 at 579; 79 ALJR 1431; 219 ALR 199; [2005] HCA 42. Leeming, n 1 at 174. Judiciary Act 1903 (Cth), s 39B(1A)(c).

Judiciary Act 1903 (Cth), s 39(2); Constitution, s 76(ii). See also Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), s 4(1). This would still be the case where Western Australian courts exercise jurisdiction over the Indian Ocean Territories, since such jurisdiction is conferred as if the Territory were part of Western Australia: see Cocos (Keeling) Islands Act 1955 (Cth), s 15AAB(1); Christmas Island Act 1958 (Cth), s 14B(1).
11 Judiciary Act 1903 (Cth), s 67C(c); Northern Territory Supreme Court Act 1961 (Cth) (repealed), ss 15(1)(a) and 15(2); Judiciary Act 1903 (Cth), s 39(2) (as at 31 December 1910). See also Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), s 4(1). This would still be the case where the Northern Territory Supreme Court exercises jurisdiction over the Territory of Ashmore and Cartier Islands, as a broad jurisdiction is conferred in and in relation to the Territory: see Ashmore and Cartier Islands Acceptance Act 1933 (Cth), s 12(1). 12

10

Constitution, s 76(ii). See, eg Ruhani v Director of Police (2005) 222 CLR 489; 79 ALJR 1431; 219 ALR 199; [2005] HCA 42.

13 Australian Capital Territory (Self-Government) Act 1988 (Cth), s 48A. See also Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), s 4(1). The ACT Supreme Court would also be unaffected where it exercises jurisdiction over Jervis Bay and the Australian territories in and around Antarctica, as that jurisdiction is, one way or another, equally broad: see Jervis Bay Acceptance Act 1915 (Cth), s 4D(1); Heard and McDonald Islands Act 1953 (Cth), s 9(1); Australian Antarctic Territory Act 1954 (Cth), s 10(1). The Supreme Court of Norfolk Island is in the same position, including when it exercises jurisdiction over the Coral Sea Islands: see Supreme Court Act 1960 (NFI), s 5(1); Coral Sea Islands Act 1969 (Cth), s 8(1). 14 For the reasons given at n 10, the exclusion would still apply where Western Australian courts exercise jurisdiction over the Indian Ocean Territories. 15 16

Judiciary Act 1903 (Cth), s 39(2).

See legislation at n 11, which denes the jurisdiction of the Northern Territory Supreme Court by reference to that of its South Australian counterpart as at 31 December 1910. The exclusion would probably not apply where the Northern Territory Supreme Court exercises jurisdiction over Ashmore and Cartier Islands, as that jurisdiction is broad and, unlike Western Australia, is not conferred as if the islands were part of the Northern Territory.
17 Leeming, n 1 at 174 and 178. See also Minogue v Williams [1999] FCA 1585 at [14] (Weinberg J), affirmed Minogue v Williams (2000) 60 ALD 366 at 374 (the court); [2000] FCA 125; Matchett v Deputy Commissioner of Taxation (2000) 158 FLR 171 at 186 (OKeefe J); [2000] NSWSC 975.

(2007) 18 PLR 94

95

Electronic copy available at: http://ssrn.com/abstract=1688155

Jones

the other hand, it is not subject to a specic conferral of federal treaty jurisdiction, to any degree. Nonetheless, the Federal Court would appear to have all such jurisdiction, including that specied in s 38(a), to the extent that it falls within another conferral. The most obvious of these has already been touched upon: the Federal Courts broad jurisdiction by s 39B(1A)(c) of the Judiciary Act to adjudicate in matters arising under laws of the Commonwealth Parliament. The Supreme Court of the ACT is in a similar position. While it too escapes s 38(a) and lacks a specic conferral with respect to treaties, it enjoys a sufficiently broad conferral of jurisdiction by federal law in relation to the ACT.18 Still, even with its impact conned to the States and the Northern Territory, the scope of s 38(a) remains the aspect of federal treaty jurisdiction with the most practical signicance. So it was to this question that Mr Leeming devoted the remainder of his article.19 In essence, he noted that there were a number of exceptional situations where treaties took effect in Australian law without implementing legislation. Those situations elucidated the High Courts jurisdiction under s 38(a).20 Mr Leeming also addressed the issue of whether matters referable to implementing legislation attracted s 38(a). He spoke of the very real problems21 that s 38(a) would produce, if it were to cover such matters.22 He also recounted, without protest, the view expressed by Senator OConnor in the Parliamentary debates on s 38(a) to the effect that some United Kingdom implementing legislation applying in Australia by paramount force (the Extradition Act 1870 (Imp)), should fall outside the provision and be left to State courts.23 The foregoing implies that Mr Leeming, quite understandably, considered all matters referable to implementing legislation to escape the reach of s 38(a). Mr Leeming felt similarly about Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; 69 ALJR 423; 128 ALR 353 (Teoh), then in its heyday. He concluded that, while ratication of a treaty could generate a legitimate expectation such that a decision-maker must accord procedural fairness in relation to conformity with the treaty, a proceeding to enforce this obligation did not constitute a matter directly arising under the treaty. Rather, it directly arose under the legislation empowering the decision-maker.24 This was because, while the treaty informed the content of the decision-makers obligation to accord procedural fairness, the obligation itself was created by the enabling legislation. Teoh can be put to one side for now. Since Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; 77 ALJR 699; 195 ALR 502; [2003] HCA 6 (Lam), it is questionable whether the judgment will have any ongoing role.25 In any event, it is hard to fault Mr Leemings view that a Teoh claim does not engage s 38(a).

A PROBLEMATIC

APPROACH

There remains Mr Leemings central conclusion: that the scope of s 38(a) is dictated by treaties that operate sans implementing legislation. This is less easy to pass by. Treaties of the kind identied by Mr Leeming undoubtedly exist. The requirement of having implementing legislation in order for a
18 See legislation at n 13. On the same basis, this would also be the case where the ACT Supreme Court exercises jurisdiction over Jervis Bay and the territories in and around Antarctica. The position of the Supreme Court of Norfolk Island is indistinguishable, including with respect to the Coral Sea Islands. The ACT Supreme Court would once instead have been subject to s 38(a), as its jurisdiction was dened by reference to that of the New South Wales Supreme Court: see Australian Capital Territory Supreme Court Act 1933 (Cth), s 11 (repealed). 19 20 21 22 23 24 25

Leeming, n 1 at 175-178, esp 178. Leeming, n 1 at 174. Leeming, n 1 at 174. Leeming, n 1 at 174. Leeming, n 1 at 176. Leeming, n 1 at 177-178.

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 32-34 (McHugh and Gummow JJ), 38 (Hayne J) and 45-48 (Callinan J); 77 ALJR 699; 195 ALR 502; [2003] HCA 6. See also the abolition of Teoh claims under South Australian law by Administrative Decisions (Effect of International Instruments) Act 1996 (SA), s 3. Compare Thanh Tra Lam v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 184.

96

(2007) 18 PLR 94

Federal treaty jurisdiction: A belated reply to Mark Leeming SC

treaty to have domestic effect can be traced back, in Australia, to a decision of the Privy Council in the late 19th century: Walker v Baird [1892] AC 491. Yet, even on that occasion, a handful of treaties were said by counsel to be exempt from the rule.26 Similar statements have since been made or adopted by the High Court.27 It was, then, defensible for Mr Leeming to identify four such treaties: treaties recognising foreign governments, treaties concluding peace, treaties determining international boundaries and, arguably in certain circumstances, treaties on migration. However, Mr Leemings conclusion that those treaties satisfy s 38(a) is now untenable.

The meaning of s 38(a)


In evaluating Mr Leemings views, a discussion of the meaning of s 38(a) is rstly required. Clearly, the provision takes its meaning from s 75(i). And to understand the latter, it is necessary to return to the debate on whether the interpretation of implementing legislation attracts s 75(i). As indicated, that debate lacks practical signicance. However, several of its participants have discussed s 75(i) in broad terms. The starting point is that, like all other conferrals of jurisdiction in Ch III of the Constitution, the word matter in s 75(i) requires an immediate right, duty or liability to be established by the determination of the Court.28 In Bluett, McLelland J argued that, so understood, a matter arises under a treaty wherever the decision of the case depends upon the interpretation of the treaty.29 As a result, s 75(i) embraced cases requiring the construction of implementing legislation. In Donyadideh, Miles CJ rejected this view. Essentially, his Honour concluded that McLelland J was impliedly extending s 75(i) to matters that merely involve the interpretation of treaties. This was impermissible. A companion conferral of jurisdiction, s 76(i) only acquired such a reach with its express terms matters arising under the Constitution or involving its interpretation. Section 75(i) could not be allowed to do the same, without equally clear drafting. Rather, the provision should take its cue from another companion conferral, s 76(ii), which provided for jurisdiction in matters arising under laws made by the Commonwealth Parliament. The High Court had interpreted s 76(ii) so that it would operate where the right, duty or liability in question owed its existence to a federal statute, depended on the statute for its enforcement or had its source in that instrument. Section 75(i) was to be interpreted in the same way, with the result that it would only embrace rights, duties or liabilities having a corresponding relationship with treaties.30 Unfortunately, Miles CJ provided no indication of when this would occur. In East, Kirby J derived inspiration from the positions of both McLelland J and Miles CJ. He accepted that s 75(i) could operate in the circumstances described by Miles CJ.31 However, Kirby J amplied Miles CJs words, stating that s 75(i) would apply wherever directly or indirectly, the right claimed or the duty asserted owes its existence to the treaty, depends upon the treaty for its enforcement or directly or indirectly draws upon the treaty as the source of the right or duty in controversy (emphasis added).32 With this expansion in hand, Kirby J was able to agree with McLelland J that the jurisdiction could be engaged by matters that had no other connection with a treaty than that they depend[ed] on the construction or effect of the treaty.33 In supporting McLelland J, Kirby J was untroubled by Miles CJs argument that, read in light of s 76(i), McLelland Js view impermissibly added words to s 75(i) that had been expressly withheld. To
26 27

Walker v Baird [1892] AC 491 at 492. Note, however, the Boards lack of enthusiasm at 497.

See, eg Victoria v Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416 at 480-482 (Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ); 70 ALJR 680; 66 IR 392; 138 ALR 129.

28 Re Judiciary and Navigation Acts (1921) 29 CLR 257 at 266 (Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ); 27 ALR 193. See also, eg Agtrack (NT) Pty Ltd v Hateld (2005) 223 CLR 251 at 260-262 (Gleeson CJ, McHugh, Gummow, Heydon and Hayne JJ); 79 ALJR 1389; 218 ALR 677; [2005] HCA 38. 29 30 31 32 33

Bluett v Fadden (1956) 56 SR (NSW) 254 at 261; 73 WN (NSW) 193. R v Donyadideh (1993) 115 ACTR 1 at 6; 114 FLR 43. Re East; Ex parte Nguyen (1998) 196 CLR 354 at 385; 73 ALJR 140; 159 ALR 108; [1998] HCA 73. Re East; Ex parte Nguyen (1998) 196 CLR 354 at 385; 73 ALJR 140; 159 ALR 108; [1998] HCA 73. Re East; Ex parte Nguyen (1998) 196 CLR 354 at 385; 73 ALJR 140; 159 ALR 108; [1998] HCA 73.

(2007) 18 PLR 94

97

Jones

Kirby J, this represented an inappropriate use of the principle of construction expressio unius et exclusio alterius. His Honour also rejected a submission by the Commonwealth that would have precluded at least the position of McLelland J, namely that s 75(i) was a drafting error without any meaningful operation.34 As a jurisdictional provision in a constitutional setting, it was instead necessary to give the provision a broad reach. In this respect, Kirby J drew upon a well-established principle of construction that provisions conferring jurisdiction should be interpreted generously.35 In East, Kirby J made another signicant contribution to the law in this area. As indicated, Kirby J reformulated Miles CJs description of s 75(i) to extend the provision to the interpretation of implementing legislation. His Honour did so by adding the words directly or indirectly36. It appears to follow that Kirby J considered such interpretation to be a matter arising indirectly under a treaty, which would thus fall outside s 38(a). However, Kirby J provided no express indication of when treaty matters would arise directly and, therefore, satisfy s 38(a). Where, then, have McLelland J, Miles CJ and Kirby J left us in ascertaining the meaning of s 38(a)? We know that s 75(i) may or may not extend to matters that merely depend on the construction or effect of a treaty, specically the interpretation of implementing legislation. However, if the provision does so, those matters can be said to arise under a treaty indirectly and, as such, do not attract s 38(a). There is no reason to doubt this result. The key question, though, is whether their Honours have laid the groundwork for discovering when matters arise directly under a treaty and thus fall within s 38(a). Let us return to the terminology of Miles CJ, namely that a matter arises under a treaty when the right, duty or liability in question owes its existence to a treaty, depends upon a treaty for its enforcement or has its source in a treaty? His Honour borrowed this language from statements on s 76(ii) by Latham CJ in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141; [1945] ALR 245 and Walsh J in Felton v Mulligan (1971) 124 CLR 367; 45 ALJR 525; [1972] ALR 33.37 Both were unanimously endorsed by the High Court in LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575; 57 ALJR 701; 49 ALR 599 (LNC).38 As Kirby J noted in Ruhani, such descriptions of the ambit of s 76(ii) refer to matters that arise both directly and indirectly under that provision.39 Further, as already discussed, in East his Honour gave the language a similar reach in the context of s 75(i). Accordingly, the case law on s 76(ii), in its application to s 75(i), cannot constitute the test for the application of s 38(a). Still, this case law sows the seed for the meaning of s 38(a). In Ruhani, Kirby J referred to a decision of Dixon J on s 76(ii), Federal Capital Commission v Laristan Building and Investment Co Pty Ltd (1929) 42 CLR 582 (Laristan). It was also endorsed in LNC.40 In Laristan, Dixon J held that a matter arose under a law made by Parliament, for the purposes of s 76(ii), when the relevant right was conferred by regulations made under an ordinance, which was itself made under s 12 of the Seat of Government (Administration) Act 1910 (Cth) (Administration Act).41 Kirby J states [t]he law invoked was thus twice removed42 and, as such, was an instance of a matter arising indirectly. In Laristan itself, Dixon J undertook a similar analysis, when he suggested,
34 35 36 37

Re East; Ex parte Nguyen (1998) 196 CLR 354 at 385; 73 ALJR 140; 159 ALR 108; [1998] HCA 73. Re East; Ex parte Nguyen (1998) 196 CLR 354 at 383; 73 ALJR 140; 159 ALR 108; [1998] HCA 73. Re East; Ex parte Nguyen (1998) 196 CLR 354 at 385; 73 ALJR 140; 159 ALR 108; [1998] HCA 73.

R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at 154; [1945] ALR 245; Felton v Mulligan (1971) 124 CLR 367 at 408; 45 ALJR 525; [1972] ALR 33.
38 LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575 at 581 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ) and 582-583 (Murphy J); 57 ALJR 701; 49 ALR 599. 39 40

Ruhani v Director of Police (2005) 222 CLR 489 at 555; 79 ALJR 1431; 219 ALR 199; [2005] HCA 42.

LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575 at 581 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ) and 582-583 (Murphy J); 57 ALJR 701; 49 ALR 599.
41 42

Federal Capital Commission v Laristan Building and Investment Co Pty Ltd (1929) 42 CLR 582 at 585-586. Ruhani v Director of Police (2005) 222 CLR 489 at 555; 79 ALJR 1431; 219 ALR 199; [2005] HCA 42.

98

(2007) 18 PLR 94

Federal treaty jurisdiction: A belated reply to Mark Leeming SC

in obiter, that matters arose indirectly under a law made by Parliament where a claim of right was made under the statutes, subordinate legislation and common law which continued in force in the ACT by virtue of ss 4 7 of the Administration Act and s 6 of the Seat of Government Acceptance Act 1909 (Cth).43 LNC itself can be classied in the same way. In that case, a matter arising indirectly was comprised by an action to enforce a contract for the transfer of rights conferred by a licence granted under regulations, which were in turn made under a federal statute.44 It is submitted that these cases yield the following principle: a matter arises indirectly under a federal statute where the right, duty or liability in question is immediately referable to an instrument or rule that enjoys the force of law, but is separate from the statute itself. The instrument or rule may be utilised by the statute. However, it has a distinct legal form, whether as subordinate legislation, an executive decision, a contract or a provision of the common law. Any may preclude a relationship of directness between the relevant right, duty or liability and a statute. On the other hand, administrative policies or other measures lacking strict legal effect will not suffice. Nor will an instrument that merely has a eeting role in the application of statutory rights, duties or liabilities, such as a proclamation of the day on which a statute commences. Yet the foregoing begs the question: when does the necessary relationship of directness between a right, duty or liability and a statute exist? The answer is clear: when there is no such intervening instrument or rule. In other words, a matter directly arises under a federal statute when the right, duty or liability is solely referable to a provision of that statute. Just as the case law on s 76(ii) has been applied to s 75(i), so too should the former provide the basis for a test of directly arising, for the purposes of s 38(a). Thus, a matter arises indirectly under a treaty where the right, duty or liability in question is immediately referable to an instrument or rule that has the force of law, and is of continuing application, but is distinct from the treaty itself.45 On the other hand, a matter will directly arise under a treaty, and attract s 38(a), where the right, duty or liability is created by a provision of the treaty alone, without the intervention of any such instrument or rule. Much as Mr Leeming concluded, matters reliant on implementing legislation or enabling legislation that once clearly permitted Teoh claims clearly fail to satisfy this criterion. However, the four categories of treaties he offers as applying without implementing legislation and, as such, falling within s 38(a), are in the same position. They do not independently bring international norms to the domestic plane. Rather, each is adopted by an instrument or rule with the force of law that is separate from the treaty itself. No rights, duties or liabilities exist by virtue of the treaties alone. It follows that, despite his views, Mr Leemings treaties fall outside s 38(a).

Treaties recognising foreign governments


Let us begin with the rst category of treaties offered by Mr Leeming: treaties recognising foreign governments. It should be noted, in passing, that the cases Mr Leeming mentions may have involved unilateral declarations rather than treaties, and one dealt with recognition of states rather than governments.46 Nonetheless, in the rst case, Bank of Ethiopia v National Bank of Egypt and Liguori [1937] Ch 513 (Bank of Ethiopia), Clauson J was deciding whether the claimant, an Ethiopian bank,
43 44

Federal Capital Commission v Laristan Building and Investment Co Pty Ltd (1929) 42 CLR 582 at 585-586.

LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575 at 578, 580, 582 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ) and 583 (Murphy J); 57 ALJR 701; 49 ALR 599.
45 The intervening instrument or rule will ordinarily be domestic in nature. However, it might also exist under international law, in the form of an instrument made under a treaty, analogous to subordinate legislation or an executive decision. This would presumably not affect protocols to treaties, as they are considered to be treaties in their own right: McNair A, Law of Treaties (OUP, 1961), p 23; Jennings R and Watts A, Oppenheims International Law (9th ed, Longman, 1992), Vol II, p 1209, [586], n 2. 46 Note that several members of the House of Lords equated these subjects of recognition in Government of the Republic of Spain v SS Arantzazu Mendi (The Arantzazu Mendi) [1939] AC 256 at 264 (Lord Atkin), 267 (Lord Thankerton) and 268 (Lord Macmillan), compare at 267 (Lord Russell) and 268 (Lord Wright). However, as the correspondence of the Foreign Secretary in that case suggests (see at 264), there is a distinction between the two under international law. In any event, treaties or unilateral declarations recognising governments have receded in signicance in Australia and the United Kingdom, as both

(2007) 18 PLR 94

99

Jones

had capacity to sue in the English courts. This required his Lordship to determine whether the claimant had been dissolved. That issue, in turn, depended on a contest between a decree of dissolution by the Italian Government, which had recently occupied Ethiopia, and a contrary decree by the Ethiopian Emperor, in exile in England. Clauson J preferred Italys decree on the basis that the British Executive had recognised it as the de facto government of Ethiopia. This represents the judicial view that the executive stance on such recognition is conclusive before local courts, as both bodies should speak with one voice.47 The principle might be considered sound. However, if a treaty had been present, its effect would have come down to a judicial election to follow it when deciding between the laws of rival governments, as part of the common law of civil procedure.48 Thus, from the jurisdictional perspective, any claimed right, duty or liability would have been immediately referable to a domestic legal rule that was separate from the treaty itself. Section 38(a) would not have applied. The second case, The Jupiter [1924] P 236, was little different. It was brought not long after the Russian Revolution, by a company claiming possession of a ship. The Soviet Union asserted that it was the rightful owner and objected to its involvement in the proceedings. The Court of Appeal had to decide whether to hear the case. It concluded that the jurisdiction of English courts did not, at least ordinarily, extend to adjudicating claims against a foreign state, without its consent.49 This immunity was considered necessary to preserve comity between states.50 And the Soviet Union was taken to be a state, since it had been recognised as such by the British Executive.51 This was another instance of the one voice principle on questions of recognition.52 Yet, even if a treaty had been involved, the case would have been Bank of Ethiopias stable mate. It would have comprised a judicial decision to use the treaty, in the course of giving an entity a status that grounded a common law restriction on jurisdiction. Whatever the merits of doing so, any right, duty or liability would be based on a domestic legal rule, rather than the treaty itself. There would have been no directness permitting the application of s 38(a).53
states now refuse to engage in such recognition and conne themselves to recognition of states alone: Hayden B, News Release by the Minister for Foreign Affairs and Trade, Mr Bill Hayden, 19 January 1988 (1992) 12 Aust YBIL 357; Somalia v Woodhouse Drake & Carey (Suisse) SA (The Mary) [1993] QB 54 at 62-63 (Hobhouse J).
47 Collins Mr Justice L, Foreign Relations and the Judiciary (2002) 51 ICLQ 485 at 487. See also Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347 at 368 (Gummow J); 83 ALR 265. 48 Indeed, now that the United Kingdom Executive refuses to indicate whether or not it recognises governments, the one voice principle is considered by United Kingdom courts not to apply. Accordingly, those courts have chosen to conduct their own inquiry into the question of whether or not an entity can be treated as a government, with due regard to any dealings by the United Kingdom Executive with that entity: see, eg Somalia v Woodhouse Drake & Carey (Suisse) SA (The Mary) [1993] QB 54. 49 Note that the decision was qualied and a similar action allowed to proceed by the Privy Council in Juan Ysmael & Co Inc v Indonesia [1955] AC 72. 50 51 52

The Jupiter [1924] P 236 at 242 (Bankes LJ), 242, 243-244 (Scrutton LJ) and 245 (Atkin LJ). The Jupiter [1924] P 236 at 238 (Hill J), 242 (Bankes LJ) and 242 (Scrutton LJ).

Collins, n 47 at 487. See also Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347 at 368 (Gummow J); 83 ALR 265.
53 Note that the treaty would, in effect, have been allowed by the judiciary to enliven an existing common law immunity for a particular state. The jurisdictional position is no different where treaties are permitted to do the same by providing for the domestic presence of representatives of a state. Nor is it any different where treaties restrict existing common law immunities of states or their representatives. In that situation, the treaties only operate to diminish common law immunities because the judiciary has decided to make those immunities subject to a doctrine of waiver that it enables treaties to trigger. Accordingly, in all cases, there is a rule with the force of law having the effect that no matters directly arise under the treaties. See: by analogy, Chow Hung Ching v R (1948) 77 CLR 449 at 466 (Latham CJ), 471, 472 (Starke J), 478-482, 484 (Dixon J) and 488 (McTiernan J); [1949] ALR 298; and, directly, Fenton Textile Association Ltd v Krassin (1922) 38 LTR 259, as the latter was explained in Mann F, Studies in International Law (OUP, 1973), pp 338-339. See also Manns remarks at pp 331-332. It may be added that treaties creating entirely new immunities require implementing legislation and, therefore, also fail to attract s 38(a): Parlement Belge (1879) 4 PD 129 at 150 (Phillimore J), again as explained by Mann at pp 336-337.

100

(2007) 18 PLR 94

Federal treaty jurisdiction: A belated reply to Mark Leeming SC

Treaties of peace
This brings us to the next category of treaties invoked by Mr Leeming: treaties of peace. These also do not satisfy s 38(a). The case Mr Leeming cites, Porter v Freudenberg [1915] 1 KB 857, concerned an ancient rule of the English common law54 that restricts the capacity of an enemy alien to sue.55 Those restrictions are lifted upon the conclusion of peace,56 which may be identied by the presence of a treaty of peace.57 Here, a rule of the common law goes so far as to operate according to the presence of a treaty. However, the treaty only has this effect because the judiciary, when formulating procedural rules for enemy aliens, decides to use it, rather than an inquiry of fact and/or international law, including an event such as an armistice, in order to identify the point at which hostilities have ceased and normal relations in the courts should resume. This again involves the one voice principle.58 Whether wise or not, this choice, forming part of a rule of the common law, means that s 38(a) cannot apply. The authors analysis is bolstered by the evidence of Owen Dixon KC to the Royal Commission on the Constitution regarding s 75(i), where he said [a] state of war may be ended or commenced and the rights and duties of persons may be affected by the change from one [s]tate or another; but this results from the general law relating to peace and war, and not from the terms of the treaty.59

Treaties determining international boundaries


We can now turn to the third category of treaties said by Mr Leeming to engage s 38(a): treaties determining international boundaries. In this context, Mr Leeming relies on constitutional, criminal and contractual cases in which an issue has been, or could have been, international boundaries as they

54 55 56

Porter v Freudenberg [1915] 1 KB 857 at 880 (the court). For a modern exploration of the rule, see Amin v Brown [2005] EWHC 1670.

Porter v Freudenberg [1915] 1 KB 857 at 871 and 880 (the court). See also Singh v Commonwealth (2004) 222 CLR 322 at 399 (Gummow, Hayne and Heydon JJ); 78 ALJR 1383; 209 ALR 355; [2004] HCA 43.
57

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 33 (McHugh and Gummow JJ); 77 ALJR 699; 195 ALR 502; [2003] HCA 6.

58 Collins, n 47 at 487. See also Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347 at 368 (Gummow J); 83 ALR 265 and Amin v Brown [2005] EWHC 1670 at [30] (Lawrence Collins J). Note, that in the absence of treaties, executive statements as to the existence or termination of a state of war could be treated as conclusive of the question, again regardless of the position dictated by an inquiry of fact and/or international law: R v Bottrill; Ex parte Kuechenmeister [1947] KB 41 at 50 (Scott LJ), 53 (Tucker LJ) and 56 (Asquith LJ). In any event, the common law in this area is now effectively redundant, as nations such as the United Kingdom or Australia virtually never declare or terminate traditional states of war, and the restriction on the capacity of an enemy alien to sue does not extend to persons from nations subject to other uses of force, including individual or collective self-defence or military action authorised by the United Nations Security Council: Amin v Brown [2005] EWHC 1670 at [27]-[28], [30] and [46] (Lawrence Collins J). 59

Report of the Royal Commission on the Constitution (Australian Government Printer, 1929), p 785. See also, eg the analysis by Mann, n 53, p 333-334. By referring to the commencement of war, Mr Dixons statement extended to treaties affecting belligerent rights. It is no surprise, then, that they are in the same position as treaties of peace. Within the law of prize, in the United Kingdom, the relevant treaties and custom appear to be introduced into the local legal system by statutes. Matters would, therefore, not directly arise under the treaties. In any event, in Australia, it appears that no court may presently exercise jurisdiction in matters immediately referable to the law of prize. Even if that law arose in another context, it would hardly be material to the current debate. As for Australia, it would almost inevitably exist through custom, not treaties. See Australian Law Reform Commission, ALRC 48: Criminal Admiralty Jurisdiction and Prize (1990), Ch 6, esp [142]-[148] and [156]-[158], [161] (http://www.alrc.gov.au (viewed 2 May 2007)). Treaties affecting belligerent rights outside the law of prize are, from the jurisdictional standpoint, in the same boat. It is submitted that those treaties only become part of domestic law to the extent that an arm of government, in developing or implementing the law relating to war and peace, elects to follow them. The result is that s 38(a) does not apply. The foregoing nds support in the potential impact of one of the Hague Conventions at the hands of the judiciary in Porter v Freudenberg [1915] 1 KB 857 at 874-880 (the court), when read with Mabo v Queensland (No 2) (1992) 175 CLR 1 at 15 (Mason CJ and McHugh J) and 42 (Brennan J); 66 ALJR 408; 107 ALR 1. See also Crawford J and Edeson W R, International Law and Australian Law in Ryan K (ed), International Law in Australia (2nd ed, Law Book Co, 1984), pp 96-97. See, to the contrary, Mann, n 53, pp 334-335.

(2007) 18 PLR 94

101

Jones

exist under treaties.60 The judiciary has traditionally chosen to follow such treaties, yet again exemplifying the one voice principle.61 Still, the jurisdictional analysis need not change. The constitutional case, Horta v Commonwealth (1994) 181 CLR 183; 68 ALJR 620; 123 ALR 1, is not decisive. The plaintiff argued that the Constitution dened the scope of the external affairs power by reference to the validity of treaties determining international boundaries. However, this was rejected by a joint judgment of the entire court.62 In the other case, Re: Director of Public Prosecutions (Cth); Ex parte Lawler (1994) 179 CLR 270; 68 ALJR 289; 119 ALR 655, a statute63 and a contract64 marked out their geographical reach by reference to international boundaries. A subordinate legislative instrument,65 an executive decision66 or even a rule of the common law67 may do the same. A variety of criminal and civil proceedings could emerge.68 Still, in all these situations, a domestic legal instrument or rule elects to adopt international boundaries as a reference point for rights, duties or liabilities. It may or may not go so far as to mention relevant treaties. However, given the one voice principle, the judiciary would elect to follow the treaties so mentioned or would interpret any general reference to international boundaries in accordance with such treaties. This may or may not be defensible. Yet, from the jurisdictional perspective, it comes down to domestic legal instruments and rules. There is nothing referable to a treaty alone. Accordingly, s 38(a) is not satised.69
60 Leeming, n 1 at 175. See, in the same vein, New South Wales v Commonwealth (Sea and Submerged Lands Act Case) (1975) 135 CLR 337; 50 ALJR 218; 8 ALR 1; Chen Yin Ten v Little (1976) 28 FLR 480; 11 ALR 353; A Raptis & Son v South Australia (1977) 138 CLR 346; 51 ALJR 637; 15 ALR 223; Li Chia Hsing v Rankin (1978) 141 CLR 182; 53 ALJR 192; 23 ALR 151. 61

Post Offce v Estuary Radio Ltd [1968] 2 QB 740 at 753-754 (the court); Collins, n 47 at 487; Petrotimor Companhia de Petroleos SARL v Commonwealth (2003) 126 FCR 354 at 361-362 (Black CJ and Hill J); 197 ALR 461; [2003] FCAFC 3. See also Coe v Commonwealth (1979) 53 ALJR 403 at 408 (Gibbs J), 410 (Jacobs J), 412 (Aickin J) and 412 (Murphy J); 24 ALR 118; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame (2005) 222 CLR 439 at 456-457 (Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ); 79 ALJR 1309; 218 ALR 483; [2005] HCA 36 and authorities cited there; Christian v R [2007] 2 WLR 120 at 124-125 (Lord Hoffmann, Lord Steyn, Lord Carswell) and 134-135 (Lord Hope of Craighead). Compare the more questioning approach suggested in Christian v R [2007] 2 WLR 120 at 130-131 (Lord Woolf). Horta v Commonwealth (1994) 181 CLR 183 at 195 (the court); 68 ALJR 620; 123 ALR 1. Fisheries Management Act 1991 (Cth) ss 4(1), 100(1).

62 63 64

See the lease referred to at Re Director of Public Prosecutions (Cth); Ex parte Lawler (1994) 179 CLR 270 at 287 (Deane and Gaudron JJ); 68 ALJR 289; 119 ALR 655.
65 66

See, for example, Seas and Submerged Lands (Limits of Contiguous Zone) Proclamation 1999 (Cth).

See, for example, Ruddock v Vadarlis (2001) 110 FCR 491 at 514 (Beaumont J) and 523-527, 545-546 (French J); 183 ALR 1; 66 ALD 25; [2001] FCA 1329.
67

See, for example, Commonwealth v Yarmirr (2001) 208 CLR 1 at 45-47 (Gleeson CJ, Gaudron, Gummow and Hayne JJ) and 111 (Kirby J); 75 ALJR 1582; 184 ALR 113; [2001] HCA 56.

68 See, eg Post Offce v Estuary Radio Ltd [1968] 2 QB 740; Re Director of Public Prosecutions (Cth); Ex parte Lawler (1994) 179 CLR 270; 68 ALJR 289; 119 ALR 655. 69 Note that, by reference to this category, Crawford and Edeson, n 59, pp 92-93, make the broader suggestion that any treaties that have subjects within prerogative powers should be accorded independent domestic effect. See also Mann, n 53, p 330. The principal authority, Post Offce v Estuary Radio Ltd [1968] 2 QB 740 at 755 (the court), speaks in obiter and concerns treaties on international boundaries, which even Crawford and Edeson doubt their suggestion should cover. Further, as already demonstrated, no notion of independent domestic effect emerges from the current treatment of treaties on recognition, immunities, peace or belligerent rights. In any event, the suggestion has a deeper difficulty. It asks treaties to function as domestic exercises of prerogative powers. This will almost inevitably require the judiciary to resolve complex questions as to whether the treaties were intended to have domestic effect, either in whole or part, and the manner in which breaches are to be enforceable on the domestic plane. While such an exercise is not unheard of in the worlds legal systems, it is hardly an ideal approach to domestic law-making. There is no compelling reason for its adoption in Australia, as an exception to the treatment of all other treaties. Instead, the courts can simply require any rights, duties or liabilities in the relevant treaties to be the subject of domestic provision by the Executive under the prerogative. In these circumstances, the treaties would not automatically be part of domestic law and would require a further executive decision in order have such an impact. Accordingly, s 38(a) would not apply.

102

(2007) 18 PLR 94

Federal treaty jurisdiction: A belated reply to Mark Leeming SC

Treaties on migration
This leaves us with the nal category of treaties relied on by Mr Leeming as applying without implementing legislation and attracting s 38(a): treaties on migration. In this instance, Mr Leeming was inspired by the remarks of Senator OConnor in Parliamentary debates on s 38(a) of the Judiciary Bill 1903. Before federation, there was, in effect, a treaty between Queensland and Japan which entitled Japanese subjects to enter and travel or reside in the colony. Not long after federation, the treaty became inconsistent with the now infamous Immigration Restriction Act 1901 (Cth). This occurred despite the fact that foreign citizens had a common law right to enter all parts of the British Empire and Australian vice-regals historically had been (or, in some cases, wrongly believed they were) obliged by British statutory instructions to refuse assent to Bills inconsistent with treaties. This did not prevent the Immigration Restriction Act from entering into force. However, presumably, there was a risk that the Queensland Executive might seek to give effect to the treaty over the statute. Senator OConnor, possibly for centralist ends, wanted the relationship between the two instruments, and any future such questions, to be resolved by the High Court alone under s 38(a).70 This aim cannot be realised. Senator OConnors position fails to appreciate the domestic operation of treaties regarding migration, which have not traditionally been counted among those that apply without implementing legislation, much less where doing so would be inconsistent with another statute. In any event, the controversy he envisages would only emerge if there were a state executive decision to apply the treaty in preference to federal legislation. Under the appropriate test, this instrument would prevent s 38(a) from applying.

High Court support


In short, Mr Leeming was correct to exclude treaties which are the subject of implementing legislation, or legislation that once clearly permitted Teoh claims from s 38(a). However, despite his views, each of the four categories of treaties applying without implementing legislation that were put forward by Mr Leeming also fail to satisfy s 38(a). In this respect, the authors position is consistent with the High Court case mentioned in the introduction to this article as having cited Mr Leemings article: Lam. In that case, McHugh and Gummow JJ,71 with support from Hayne J72 and Callinan J,73 seriously questioned the decision in Teoh. In doing so, their Honours referred to other, more innocuous, instances of treaties affecting domestic law. One such instance was where the taking of a step by the executive government in the conduct of external affairs, whilst of itself neither creating rights nor imposing liabilities, may supply a step in a broader process of resolution of justiciable disputes.74 A general reference to Mr Leemings treaties then appeared.75 This strengthens the authors resolve. When treaties apply without implementing legislation, they enter a broader framework of domestic law and operate at its behest. Such treaties cannot engage s 38(a). They depend on a domestic legal instrument or rule and, as such, lack the directness that the provision requires. In other words, at no point can one identify a claimed right, duty or liability that is created by a provision of the treaty alone.
70 71

Leeming, n 1 at 176-177.

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 32-34; 77 ALJR 699; 195 ALR 502; [2003] HCA 6.
72 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 38; 77 ALJR 699; 195 ALR 502; [2003] HCA 6. 73 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 45-48; 77 ALJR 699; 195 ALR 502; [2003] HCA 6. 74 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 33; 77 ALJR 699; 195 ALR 502; [2003] HCA 6. 75 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 33, n 100; 77 ALJR 699; 195 ALR 502; [2003] HCA 6.

(2007) 18 PLR 94

103

Jones

THE

PROPOSAL

The question, then, is what does attract s 38(a)? If the provision excludes treaties that take effect through implementing legislation, legislation that once clearly permitted Teoh claims, or any other instrument or rule with the force of law, when does it apply? It is submitted that, as a result of s 75(i), the High Court has jurisdiction to make declarations on whether, in the particular circumstances of an individual or entity, the Commonwealth has breached obligations under an unincorporated treaty regarding the rights of persons within Australian territory (the proposal). This is where s 38(a) operates.

The road to acceptance


For the proposal to be good in law, it must negotiate s 75(i). This provision carries a raft of requirements, many of which ow from the general jurisprudence on Ch III of the Constitution. They are as follows. 1. The proposal must give rise to a matter, which, as indicated, exists where there is a controversy regarding an immediate right, duty or liability to be established by the determination of the Court.76 2. The proposal must be reconciled with the rule in Walker v Baird, namely that treaties have no effect on domestic law without implementing legislation or, exceptionally, adoption by another legal instrument or rule. 3. The proposal must not require the High Court to give an advisory opinion, in the sense of determining abstract questions or making declaration[s] of the law divorced from any attempt to administer that law.77 4. The proposal must comprise an exercise of judicial power, as that term is used in s 71 of the Constitution. 5. The granting of declaratory relief under the proposal must have some foreseeable impact.78 6. At least as a practical matter, an applicant for a declaration under the proposal must have standing.79 7. The subject matter of a proceeding pursuant to the proposal must observe the rules regarding justiciability.80 If these requirements are satised, it can then be seen whether the proposal satises s 38(a), by supplying a right, duty or liability that is created by a provision of the treaty alone. It should be noted that the proposal is not entirely unprecedented. In a recent paper,81 Dr Wendy Lacey and Mr David Wright argue that the common law of Australia should be developed to allow a person to obtain a declaration as to whether their rights under certain human rights treaties have been violated. Nevertheless, the submission of Lacey and Wright differs from the proposal in several respects. In the rst place, the authors rely on the common law to authorise the granting of declaratory relief, in contrast to the proposals reliance on s 75(i). Further, Lacey and Wright argue that a declaration could only be granted in respect of the human rights treaties they nominate: the International Covenant on
76 Re Judiciary and Navigation Acts (1921) 29 CLR 257 at 266 (Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ); 27 ALR 193. See also, eg Agtrack (NT) Pty Ltd v Hateld (2005) 223 CLR 251 at 260-262 (Gleeson CJ, McHugh, Gummow, Heydon and Hayne JJ); 79 ALJR 1389; 218 ALR 677; [2005] HCA 38. 77 Re Judiciary and Navigation Acts (1921) 29 CLR 257 at 266 (Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ); 27 ALR 193. 78 Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591 at 613 (Gaudron J); 74 ALJR 604; 169 ALR 616; [2000] HCA 11. 79 Batemans Bay Local Aboriginal Land Council v Aboriginal Community Benet Fund Pty Ltd (1998) 194 CLR 247 at 262 (Gaudron, Gummow and Kirby JJ); 72 ALJR 1270; 98 LGERA 410; 155 ALR 684; [1998] HCA 49. 80 Re East; Ex parte Nguyen (1998) 196 CLR 354 at 362 (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ); 73 ALJR 140; 159 ALR 108; [1998] HCA 73. 81 Lacey W and Wright D, Highlighting Inconsistency: The Declaration as a Remedy in Administrative Law and International Human Rights Standards in Finn C (ed), Shaping Administrative Law for the Next Generation: Fresh Perspectives (Australian Institute of Administrative Law, 2005), p 32.

104

(2007) 18 PLR 94

Federal treaty jurisdiction: A belated reply to Mark Leeming SC

Civil and Political Rights (ICCPR),82 the International Convention on the Elimination of All Forms of Racial Discrimination (the Racial Discrimination Convention)83 and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Torture Convention).84 The authors invoke those treaties principally because they have become part of Australian law, albeit to a limited degree, by being scheduled to federal legislation.85 In contrast, the proposal does not embrace these treaties. This is because, in its current form, the proposal is conned to unincorporated treaties and excludes all other treaties, even where they have only been introduced into Australian law to a very limited extent. On the other hand, the proposal is not conned to specic unincorporated treaties it is attracted by any such treaty so far as it concerns the rights of persons within Australian territory. Despite these differences, much of the analysis of Lacey and Wright will be instructive in examining whether the proposal meets the requirements of s 75(i).

A constitutional matter?
The opening requirement is that the proposal give rise to a matter. The description provided above can be broken down into several elements. Immediate right, duty or liability The rst element asks that the proposal produce an immediate right, duty or liability. Lacey and Wright take an innovative approach to this question. They argue that, under the existing law regarding declarations, relief is not limited to justiciable or enforceable rights. Rather, it extends to rights having a lesser degree of recognition in Australian law. One instance of that recognition is the scheduling of treaties to federal legislation. As such, declarations may be available in respect of some of those treaties,86 namely: the ICCPR, the Racial Discrimination Convention and the Torture Convention.87 However, this argument cannot help the proposal. Its focus is unincorporated treaties, without any place in Australian law, which impose obligations regarding the rights of persons in Australian territory. The question is: can those obligations constitute an immediate duty? According to OKeefe J, they cannot. In Matchett v Deputy Commissioner of Taxation (2000) 158 FLR 171; [2000] NSWSC 975 (Matchett), his Honour said:
a matter must involve a right or protection (defence) given by the law the law that is the expression of the supreme legislative authority recognised in our legal system and applied in the Courts of Australia. Neither the Treaty of Versailles nor the Charter of the United Nations answers to this description. Neither has been made part of the law of Australia. Neither directly confers any rights to make claims or provides any protections or defences in the Courts. As a consequence those defences against claims made by the DCT, which on the arguments advanced on behalf of the defendants invoke the Treaty of Versailles and the Charter of the United Nations are without foundation and must fail
82 International Covenant on Civil and Political Rights [1980] ATS 23; Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty [1991] ATS 19; First Optional Protocol to the International Covenant on Civil and Political Rights [1991] ATS 39. 83 84 85

International Convention on the Elimination of All Forms of Racial Discrimination [1975] ATS 40. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [1989] ATS 21.

Lacey and Wright, n 81, pp 42-46 and 48-51. ICCPR: Human Rights and Equal Opportunity Commission Act 1986 (Cth) (HREOC Act), Sch 2, Div 3. Racial Discrimination Convention: Racial Discrimination Act 1975 (Cth), Sch. Torture Convention: Crimes (Torture) Act 1988 (Cth), Sch. Note that Lacey and Wright appear mistakenly to assume that these treaties have all been scheduled to the HREOC Act (Lacey and Wright, n 81, pp 34-35). The reason why the authors do not rely on any other treaties scheduled to federal legislation is because, to attract their submission, a treaty must also have been made subject to a formal procedure enabling persons to complain of specic violations before an international body. Nonetheless, their submission would, in time, embrace the Convention on the Elimination of All Forms of Discrimination Against Women [1983] ATS 9, which is scheduled to the Sex Discrimination Act 1984 (Cth): see Optional Protocol to the Elimination of All Forms Of Discrimination Against Women [1999] ATNIF 32.
86 87

See n 85. Lacey and Wright, n 81, pp 48-51.

(2007) 18 PLR 94

105

Jones [N]either of the treaties is part of the law of Australia, and the defences which seek to rely upon them are not matters within the meaning of that term as used in s 75(i) of the Constitution 88

Thus, OKeefe J concludes that an immediate right, duty or liability under s 75(i) must be domestic in nature. It follows that a treaty can only attract s 75(i) if it has been introduced into Australian law in some way, whether by implementing legislation or some other domestic legal instrument or rule. There is no place in the provision for unincorporated treaties. For the proposal to survive, Matchett must be outanked. The circumstances of the case are readily distinguishable. OKeefe J faced unrepresented plaintiffs, who were resisting liability assessed by the Deputy Commissioner of Taxation (DCT). To this end, they invoked two treaties. Only one of these, the Charter of the United Nations (the UN Charter),89 was wholly unincorporated. As OKeefe J indicated,90 the other, the Treaty of Versailles,91 had received some introduction into Australian law.92 Further, the plaintiffs did not rely on those treaties to seek purely declaratory relief, as they would under the proposal. They sought to use them coercively, so as to challenge the validity of the DCTs assessment and, indeed, that of the Constitution itself. However, it is better to confront OKeefe Js thesis head on. It produces unattractive results, which make it untenable. It requires the text of s 75(i), which refers to treaties without qualication, to be read down so as to exclude unincorporated treaties. Further, it leaves s 75(i) with a concurrent, rather than an independent operation. This is because, without unincorporated treaties, any matter that might attract s 75(i) could also fall within another conferral of jurisdiction. Treaties implemented or otherwise utilised by federal legislation could attract s 76(ii), which has been conferred on the Federal Court as well as State and some Territory courts. Treaties the subject of federal executive action could engage the original jurisdiction of the High Court under s 75(v). Lastly, where treaties formed part of legislative or executive action at the state level, or the common law, the High Courts principal function, appellate jurisdiction under s 73(ii), could operate. Leaving s 75(i) with such a marginal role to play goes against the principle of statutory construction that provisions conferring jurisdiction should be interpreted generously. Indeed, Kirby J argued in East that this principle applies with even greater force in a constitutional setting. There is a nal difficulty with the view of OKeefe J. It has already been demonstrated that where treaties are the subject of implementing legislation, or adoption by another domestic legal instrument or rule, any consequential matters do not arise under the treaties directly. Section 38(a) cannot apply. Thus, by excluding unincorporated treaties from s 75(i), OKeefe J denies s 38(a) any potential for application. Indeed, his Honour denies that s 75(i) extends to direct matters, with the result that s 38(a), which has been in force for over a century, would be invalid. One should hesitate before striking down a statutory provision present since the earliest days of federation. On the other hand, the result reached by OKeefe J in the circumstances of the case before him appears right. There must be a limit on the extent to which s 75(i) engages treaties. Although the contrary has been suggested,93 it is unacceptable to argue that s 75(i) converts the provisions of treaties into comprehensively enforceable domestic norms, such as the defences relied on by the
88 Matchett v Deputy Commissioner of Taxation (2000) 158 FLR 171 at 184-185; [2000] NSWSC 975. See also (2000) 158 FLR 171 at 180. A similar conclusion was reached by Weinberg J of the Federal Court in relation to the ICCPR, which is not presently covered by the proposal, in Minogue v Williams [1999] FCA 1585 at [35]. His Honours conclusion was unanimously affirmed on an appeal to the Full Federal Court: Minogue v Williams (2000) 60 ALD 366 at 374; [2000] FCA 125. See further n 132 below. 89 Charter of the United Nations [1945] ATS 1. Note that Charter of the United Nations Act 1945 (Cth) merely represents Parliaments approval of the ratication of the UN Charter, with the result that it remains wholly unincorporated: see Bradley v Commonwealth (1973) 128 CLR 557 at 582 (Barwick CJ and Gibbs J); 47 ALJR 504; 1 ALR 241. 90 91 92 93

Matchett v Deputy Commissioner of Taxation (2000) 158 FLR 171 at 176; [2000] NSWSC 975. Treaty of Peace Between the Allied and Associated Powers and Germany [1920] ATS 1. See Treaty of Peace (Germany) Act 1919 (Cth); Treaty of Peace Regulations 1920 (Cth). See further n 132 below.

See McGinley G, The Status of Treaties in Australian Municipal Law: The Principle of Walker v Baird Reconsidered (1990) 12 Adelaide LR 367 at 374-375.

106

(2007) 18 PLR 94

Federal treaty jurisdiction: A belated reply to Mark Leeming SC

plaintiffs in Matchett or norms amenable to injunctive relief or damages. This hardly ows from the terms of s 75(i). It is also extremely difficult to reconcile with the specic removal of a clause to like effect during the drafting of the Constitution.94 Above all, it would give the Executive Government a comprehensive law-making function at odds with the separation of powers stipulated by ss 1, 61 and 71 of the Constitution, and the democratic system of government at the heart of that document. The proposal provides a middle ground, which is uniquely able to balance these imperatives. It has s 75(i) embrace unincorporated treaties, with the result that their obligations regarding the rights of persons in Australian territory are an immediate duty within s 75(i), for the purpose of purely declaratory relief. Thus, the proposal remains faithful to the text of the provision, by reading treaties with all of the generality that term permits. It gives federal treaty jurisdiction a meaningful, free-standing role, under which it is not a mere second ddle to other conferrals. As will be demonstrated, the proposal also allows s 38(a) to operate, thus reserving its delicate task of assessing treaty compliance to the High Court alone. The proposal even respects the structure of Australian government. It does not allow treaties to be self-executing. Nor does it allow them to affect the validity of legislative or executive action, at any level. It merely allows the High Court to declare whether obligations, which the federal government is entitled to assume for the nation, have been performed. Above all, the proposal sits comfortably with prominent movements in constitutional interpretation. On the one hand, it is consistent with originalism. The proposal is plainly rooted in the text of s 75(i). Further, the intent behind that provision is permissive. The evidence suggests that the founding fathers were either too misguided to have any intent at all for s 75(i)95 or, possibly, inserted the provision for the sake of its future potential, without forecasting what that would be.96 Thus, whether by default or desire, the High Court has sufficient latitude to adopt the proposal. The proposal is also faithful to less orthodox approaches to the Constitution, which would require the High Court to read s 75(i) in light of current needs.97 They are met by the proposal. The focus of treaties has changed radically since federation. They have gone beyond the conduct of states on the international stage to prescriptive provision for private rights in the domestic sphere. Treaty law has, therefore, become an important regulator of conduct with respect to persons within Australian territory. The proposal caters for this development by allowing persons to obtain an authoritative pronouncement on whether Australia has met its treaty obligations. In short, the proposal provides the best available construction of s 75(i). The provision should be read so as to embrace unincorporated treaties. Accordingly, obligations in such treaties regarding the rights of persons in Australian territory can supply immediate duties, for the purposes of matters in which purely declaratory relief is sought. The rule in Walker v Baird There is one snag here: the rule in Walker v Baird. As explained, it only allows treaties domestic effect if they have been the subject either of implementing legislation or, in the exceptional situations addressed by Mr Leeming, some other domestic legal instrument or rule. The rule in Walker v Baird is not mentioned by Lacey and Wright. Presumably, though, they would consider their submission respects the rule because the treaties they specify have been engaged by legislation, namely the schedules to federal legislation, in combination with the domestic rules of declaratory relief. However, the proposal has no refuge of this kind. It concerns unincorporated treaties, which are unavoidably caught by the rule in Walker v Baird. It must be recognised, though, that the proposal is limited. It does not permit the provisions of unincorporated treaties to become fully enforceable rules of domestic law. No credible construction of s 75(i) could allow this to occur. Rather, all s 75(i)
94 95 96 97

See, eg Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 212 (Stephen J); 56 ALJR 625; 39 ALR 417. Zines L, Cowen and Ziness Federal Jurisdiction in Australia (3rd ed, Federation Press, 2002), p 26. Ruhani v Director of Police [2004] HCA Trans 440. See also Zines, n 95, p 26.

See, eg Kirby Justice M, Constitutional Interpretation and Original Intent: A Form of Ancestor Worship? (2000) 24 MULR 1; Goldsworthy J, Interpreting the Constitution in its Second Century (2000) 24 MULR 677.

(2007) 18 PLR 94

107

Jones

permits is purely declaratory relief in respect of compliance with unincorporated treaties. Moreover, those treaties must concern the rights of persons within Australian territory. Thus, the proposal hardly attempts to obliterate the rule in Walker v Baird. It merely qualies that rule, to a limited extent, for a particular class of unincorporated treaties. The issue is: can the proposal have this effect? May it supplant the rule in Walker v Baird to this degree? There are two possible approaches to this question. Under both, the proposal can prevail. One view is that the rule in Walker v Baird exists at common law.98 If this is so, s 75(i) wins hands down. For in any contest between the requirements of the common law and the Constitution, properly understood, the latter must prevail.99 On its best construction, s 75(i) attaches a limitation to the rule in Walker v Baird. Accordingly, to that extent, the rule falls away. However, this rst approach ignores a deeper question. Does the rule in Walker v Baird truly have the common law as its source? The clue lies in its rationale. It generally prevents unincorporated treaties from taking effect in domestic law without implementing legislation because of the separation of powers.100 Law-making is assigned to Parliament, not the Executive. If treaties automatically became fully enforceable on the domestic plane, the Executive would be usurping Parliaments role. This means that the rule cannot exist at common law. It must instead ow, by implication, from the division between legislative and executive power in ss 1 and 61 of the Constitution.101 This conclusion might invite a re-examination of the exceptional situations where Walker v Baird gives treaties effect without implementing legislation. However, placing the rule on a constitutional footing does the proposal no harm. Sections 1 and 61 are not absolute: exceptions are permissible. An obvious, and explicit, exception is membership of Parliament and the Executive.102 A well-known implied exception is subordinate legislation.103 Section 75(i) can be another exception. As indicated, the provision does not fatally wound the separation of powers by giving the Executive unbridled legislative power through self-executing treaties. However, on its best construction, s 75(i) means that, where the Executive performs its established role under s 61 by assuming treaty obligations regarding the rights of persons within Australian territory, there is a modest domestic legal result. With respect to the performance of those obligations, a person may be entitled to purely declaratory relief. Controversy/advisory opinions With an immediate duty owing from an unincorporated treaty in hand, we can return to the remaining element in the description of a constitutional matter: the presence of a controversy. It may be assumed that a controversy requires, at the very least, a factual situation involving persons and/or governments that has raised issues of law between them. As such, this element may be considered together with the prohibition on giving advisory opinions or, in other words, deciding abstract questions or making declarations of the law that do not involve its administration. This is because such a question or want of administration will necessarily be avoided where the court makes a determination with respect to a controversy of the order described. It seems clear that the proposal is satisfactory on this score. As indicated, an applicant must establish that, in their particular circumstances, the Commonwealth has breached its obligations under a relevant treaty. This necessarily supplies a controversy, as it entails a factual situation and the
98 99

Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 225 (Mason J); 54 ALJR 625; 39 ALR 417. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 566 (the court); 71 ALJR 818; 145 ALR 96.

100

See, eg Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287 (Mason CJ and Deane J) and 304 (Gaudron J); 69 ALJR 423; 128 ALR 353. Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 212 (Stephen J); 56 ALJR 625; 39 ALR 417. See also Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287 (Mason CJ and Deane J) and 304 (Gaudron J); 69 ALJR 423; 128 ALR 353. Constitution, s 64. Victorian Stevedoring & General Contracting Co Pty Ltd & Meakes v Dignan (1931) 46 CLR 73; 38 ALR 22.

101

102 103

108

(2007) 18 PLR 94

Federal treaty jurisdiction: A belated reply to Mark Leeming SC

presence of legal issues within that situation. Moreover, by determining the application of the treaty in this context, the High Court would avoid deciding abstract questions. It would also be administering the treaty to the case before it. Yet Lacey and Wright are more cautious at this point. They spend some time explaining why declaratory relief under their submission would not amount to an advisory opinion. In the rst place, Lacey and Wright state that, while declaratory relief in public law generally might sometimes resemble an advisory opinion, the High Court has been content to give such relief a generous reach.104 In any event, they argue that their submission does not constitute an advisory opinion, since it requires a court to determine the legal position of the parties to the controversy in relation to one another.105 These arguments are just as easily applied to the proposal. Lacey and Wright then devote signicant attention to the requirement of administration. They are not content with the suggestion that the treaty itself is being administered. They take an alternative route based on Croome v Tasmania (1997) 191 CLR 119; 71 ALJR 430; 91 A Crim R 238; 142 ALR 397. In that case, two male homosexual plaintiffs applied to the High Court for a declaration that Tasmanian legislation criminalising conduct in which they engaged was invalid under s 109 of the Constitution for inconsistency with federal legislation. It was common ground that the Tasmanian legislation would not be enforced against the plaintiffs. As a result, Tasmania took a preliminary objection that the case did not involve a constitutional matter. It argued that, as the Tasmanian legislation was not being enforced, there was no law being administered in the necessary sense. In rejecting this argument, the High Court held that, if the case were to proceed, the Constitution, rather than the Tasmanian legislation, was the law being administered. The status of the Tasmanian legislation in this respect was not material. It was enough that the Constitution would be applied to determine its validity. Lacey and Wright extend Croome to their submission. They argue it involves the administration of the common law authorising declaratory relief, rather than the nominated treaties.106 This may or may not be defensible. However, Croome cannot be likewise applied to the proposal. It does not involve the administration of the Constitution. Such administration arose in Croome because s 109 of the Constitution was central to the substantive question to be determined in that case. However, under the proposal, the only relevant constitutional provision, s 75(i), is purely procedural. It merely gives the court authority to resolve the controversy before it. That resolution itself depends on the application of treaties. Accordingly, only they are administered under the proposal. This is hardly worrying. The requirement that the High Court administer the law is not limited to domestic law. It extends to any law relevantly engaged by the Australian legal system. Thus, in Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491; 76 ALJR 551; 187 ALR 1; [2002] HCA 10, common law rules regarding the conict of laws were held to require that, where torts occurring overseas were litigated in Australia, the governing law was that of the place of occurrence, ie the lex loci delicti. On the facts, this required the law of New Caledonia to be applied. There was no constitutional objection to this course. Similarly, in Ruhani, the High Court upheld its jurisdiction under federal legislation to entertain appeals from the Supreme Court of Nauru, which required it to apply the law of that country. Once again, there was no objection that this did not involve the relevant administration. So it is with the proposal. On its best construction, s 75(i) fastens upon unincorporated treaties regarding the rights of persons within Australian territory. Those treaties can, therefore, be the law administered in the proceedings.

Judicial power
As well as satisfying the various elements of a constitutional matter, the proposal must also comprise an exercise of judicial power. This term does not, of course, appear in s 75(i). However, the immediate recipient of jurisdiction under s 75(i), and the only court intended to be engaged by the proposal, is the
104 105 106

Lacey and Wright, n 81, p 52. Lacey and Wright, n 81, p 54. Lacey and Wright, n 81, pp 52-53.

(2007) 18 PLR 94

109

Jones

High Court. It is created by Ch III of the Constitution and, by s 71 of that chapter, may only exercise judicial power.107 The authorities yield various indicators of judicial power. In justifying their submission, Lacey and Wright focus on one: enforceability.108 It is also the critical indicator of judicial power for the proposal. In essence, the proposal is not coercive. The High Court may only declare that the Commonwealth has breached its obligations under an unincorporated treaty. It may not grant an injunction ensuring compliance with the treaty. Nor may it strike down legislative or executive action placing the Commonwealth in breach thereof. Does this mean that the proposal fails the test of enforceability? If it did, other instances of declaratory relief would be in jeopardy. For it is settled that declarations may be made where no other relief, particularly of a coercive nature, is permitted.109 It follows that enforceability is unlikely to be an indispensable touchstone of judicial power.110 Indeed, so much was acknowledged in Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245; 69 ALJR 191; 127 ALR 1, when Deane, Dawson, Gaudron and McHugh JJ said it is not essential to the exercise of judicial power that the tribunal should be called upon to execute its own decision.111 Rather, Lacey and Wright suggest that relief should merely be conclusive of the controversy before the court, apparently in the sense that the relief determines the relevant facts and their legal consequences.112 This is a threshold that the submission of Lacey and Wright was able to meet. So, too, could the proposal.

Declaratory relief
The next item on the list is the requirement that declaratory relief in accordance with the proposal have some foreseeable impact. This actually forms part of the requirement of a constitutional matter. For a declaration that produces no foreseeable consequences113 is, despite the presence of a factual situation, so divorced from the administration of the law as not to involve a matter.114 This is particularly likely where it concerns superseded rights and liabilities.115 On the other hand, it seems the exclusion may be avoided where a declaration has practical signicance for a party.116
107

R v Kirby; Ex parte Boilermakers Society of Australia (1956) 94 CLR 254; [1956] ALR 163, affirmed sub nom Attorney-General (Cth) v R; Ex parte Boilermakers Society of Australia (1957) 95 CLR 529; [1957] ALR 489; [1957] AC 288. Lacey and Wright, n 81, pp 54-55.

108 109

See, eg Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; 66 ALJR 271; 59 A Crim R 255; 106 ALR 11; High Court Rules, O 26 r 19.
110 Lacey and Wright, n 81, p 55 add that the judgment barring the High Court from giving advisory opinions, on the ground that they did not give rise to a constitutional matter, Re Judiciary and Navigation Acts (1921) 29 CLR 257; 27 ALR 193, still accepted that such opinions involved the exercise of judicial power. This would further demonstrate how enforceability is not essential to judicial power. Note, however, that this characterisation of advisory opinions was undermined in R v Kirby; Ex parte Boilermakers Society of Australia (1956) 94 CLR 254 at 274 (Dixon CJ, McTiernan, Fullagar and Kitto JJ); [1956] ALR 163. 111 Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 269; 69 ALJR 191; 127 ALR 1. See also Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 256-257 (Mason CJ, Brennan and Toohey JJ); 69 ALJR 191; 127 ALR 1. 112 113

Lacey and Wright, n 81, p 55.

Gardner v Dairy Industry Authority (New South Wales) (1978) 52 ALJR 180 at 188 (Mason J), 188 (Jacobs J), 188 (Murphy J) and 188-189 (Aickin J); 18 ALR 55.

114 Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591 at 613 (Gaudron J); 74 ALJR 604; 169 ALR 616; [2000] HCA 11. See also Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 582 (Mason CJ, Dawson, Toohey and Gaudron JJ); 66 ALJR 271; 59 A Crim R 255; 106 ALR 11. 115

Gardner v Dairy Industry Authority (New South Wales) (1978) 52 ALJR 180 at 188 (Mason J), 188 (Jacobs J), 188 (Murphy J) and 188-189 (Aickin J); 18 ALR 55.

116 Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 582 (Mason CJ, Dawson, Toohey and Gaudron JJ); 66 ALJR 271; 59 A Crim R 255; 106 ALR 11.

110

(2007) 18 PLR 94

Federal treaty jurisdiction: A belated reply to Mark Leeming SC

Lacey and Wright ultimately argue that granting declaratory relief in accordance with their submission would have foreseeable consequences.117 The proposal is in the same position. In the rst place, the treaty obligations concerned would hardly be superseded. Rather, they would presently be in force on the international plane. Further, much as Lacey and Wright indicate,118 a declaration as to whether the Commonwealth had discharged treaty obligations in the applicants particular circumstances could have substantial practical importance. It would satisfy any interest that an applicant might have regarding the status of their treatment on the domestic plane under international law. It would also have persuasive value in any negotiations between the parties regarding revision of that treatment. It could even attract public interest and discussion. It is no coincidence that declarations are regularly considered an appropriate remedy in bills of rights based on treaties.119

Standing
An applicant for declaratory relief in accordance with the proposal must have standing. Some authorities once appeared to consider this to be part of the requirement for a constitutional matter.120 More recent authority has decided otherwise.121 The clarication is of little consequence in this article. One way or another, it will always be necessary for an applicant under the proposal to establish standing. On this point, Lacey and Wright did not see any difficulty for their submission. Naturally, an applicant would need a sufficient interest in the subject matter of the relevant case, in accordance with the principles established in Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493; 54 ALJR 176; 45 LGRA 245; 28 ALR 257. However, this could not be a greater problem for their submission than any other administrative law case.122 Standing is equally unproblematic for the proposal. As indicated, the proposal is limited to obligations under unincorporated treaties regarding the rights of persons within Australian territory. Further, an applicant must demonstrate that any failure to comply with those obligations has occurred in their particular circumstances. These requirements have the potential to give an applicant standing. In this context, standing requires a special interest in the subject matter of a proceeding beyond that of
117 118 119

Lacey and Wright, n 81, pp 53-54. Lacey and Wright, n 81, p 54.

See, eg Human Rights Act 2004 (ACT) (2004 Act), s 32, as explained in ACT Bill of Rights Consultative Committee, Towards an ACT Human Rights Act (2003) at [4.30], [4.34] and [4.38] (http://www.jcs.act.gov.au (viewed 2 May 2007)); Charter of Rights and Responsibilities 2006 (Vic), s 36, as analysed in Human Rights Consultation Committee, Rights, Responsibilities and Respect (2005) at [4.5.3] (http://www.justice.vic.gov.au (viewed 2 May 2007)). Note that Stellios J, Federal Dimensions to the ACT Human Rights Act (2005) 47 AIAL Forum 33 at 35 tentatively suggests that the provision for declaratory relief in the 2004 Act impermissibly fails to spawn a matter or the exercise of judicial power. If correct, this conclusion would be just as perilous for the proposal. However, it seems to be based on the assertion that the 2004 Act does not actually create rights. This is difficult to accept. Read appropriately, the 2004 Act confers rights on individuals and enables them to litigate those rights. The latter process is subject to the limits deemed appropriate by the ACT Legislative Assembly. An individual is conned to declaratory relief. Further, the individual may only seek it wheRe (a) the alleged violation is by ACT legislation or statutory instruments; and (b) that law is already at issue in a matter before the ACT Supreme Court to which the individual is a party (see ss 6 and 32(1) (2)). Lastly, if a declaration is made, the 2004 Act denies the individual any other remedy or impact on his or her legal status (see ss 7 and 32(3)). In particular, he or she remains wholly bound by the offending legislation or statutory instrument. However, none of these limits prevent the 2004 Act from supplying rights that ground a matter: compare Abebe v Commonwealth (1999) 197 CLR 510; 73 ALJR 584; 162 ALR 1; [1999] HCA 14. Further, in the context of judicial power, it is unobjectionable that the 2004 Act provides for purely declaratory relief, in a concrete factual situation, where that relief can have practical signicance: compare Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581-582 (Mason CJ, Dawson, Toohey and Gaudron JJ); 66 ALJR 271; 59 A Crim R 255; 106 ALR 11. The proposal, in its limited engagement of treaty obligations, is similarly defensible. See further Lindell G, The Statutory Protection of Rights and Parliamentary Sovereignty: Guidance from the United Kingdom? (2006) 17 PLR 188 at 204-207, esp 206 and Evans S and Evans C, Legal Redress under the Victorian Charter of Rights and Responsibilities (2006) 17 PLR 264 at 270-271.
120 Batemans Bay Local Aboriginal Land Council v Aboriginal Community Benet Fund Pty Ltd (1998) 194 CLR 247 at 262 (Gaudron, Gummow and Kirby JJ); 72 ALJR 1270; 98 LGERA 410; 155 ALR 684; [1998] HCA 49. See also Croome v Tasmania (1997) 191 CLR 119 at 132 (Gaudron, McHugh and Gummow JJ); 71 ALJR 430; 91 A Crim R 238; 142 ALR 397. 121

Truth About Motorways v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591; 74 ALJR 604; 169 ALR 616; [2000] HCA 11. Lacey and Wright, n 81, p 45.

122

(2007) 18 PLR 94

111

Jones

the public at large.123 Applicants under the proposal could have that interest if, in their own situation, they were specically affected by the extent of the Commonwealths performance of obligations regarding the rights of persons in Australian territory and could practically benet from a declaration in the manner discussed.

Justiciability
There is one last requirement imposed by s 75(i). In East, a majority of the High Court held that a matter falling within s 75(i) had to be justiciable.124 Their Honours went on to conclude that no such matter existed where a treaty had been implemented by a statute that provided its own, exclusive regime for remedying contraventions.125 This principle prevented their Honours from exercising federal treaty jurisdiction in relation to the Racial Discrimination Convention, as it was subject to an exclusive mode of enforcement under the Racial Discrimination Act 1975 (Cth).126 In Scott v Bowden (2002) 194 ALR 593; [2002] HCA 60 (Scott), McHugh J cited East in support of the broader proposition that there was no justiciable matter even where a treaty was unincorporated.127 On this basis, McHugh J felt unable to consider the Torture Convention. His Honour did not refer to the fact that the Torture Convention had been implemented by the Crimes (Torture) Act 1988 (Cth). That implementation was partial and non-exclusive of other law.128 However, Scott may be taken to represent an extension of East to that situation, rather than unincorporated treaties.129 The proposal can sidestep East, as it concerned treaties subject to implementing legislation. That case can also be distinguished on the ground that it involved an attempt to enforce a treaty by the coercive remedy of certiorari, instead of being limited to the more modest declarations of the proposal.130 Scott can similarly be discounted, as it concerned a claim for damages for breach of a treaty.131 It may also be classied as a case regarding the justiciability of a treaty subject to some introduction into Australian law.132 Lastly, and most importantly, in neither case was anything like the proposal raised and explored. However, the general requirement stated in East justiciability remains. And we know, from Mason Js decision in Tasmanian Wilderness Society Inc v Fraser (1982) 153 CLR 270; 56 ALJR 763; 48 LGRA 300; 42 ALR 51, that a breach, if there be one on the part of Australia, of its international obligations is not a matter justiciable at the suit of a private citizen.133 Or do we? Mason Js statement would mean the end of the proposal, as its essence is the determination of treaty compliance in private proceedings. Yet, the statement was obiter. The plaintiffs submitted that they could enforce the treaty on the ground that it had been wholly incorporated by certain federal statutes.
123 124

Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493; 54 ALJR 176; 45 LGRA 245; 28 ALR 257.

Re East; Ex parte Nguyen (1998) 196 CLR 354 at 362 (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ); 73 ALJR 140; 159 ALR 108; [1998] HCA 73. Re East; Ex parte Nguyen (1998) 196 CLR 354 at 362, 366 (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ); 73 ALJR 140; 159 ALR 108; [1998] HCA 73.

125

126

This conclusion might harm the submission of Lacey and Wright so far as it concerns declaratory relief in respect of the Racial Discrimination Convention. Compare the discussion of justiciability at Lacey and Wright, n 81, pp 55-57. Scott v Bowden (2002) 194 ALR 593 at 595; [2002] HCA 60. Crimes (Torture) Act 1988 (Cth), s 5(1). Compare R v Donyadideh (1993) 115 ACTR 1 at 5 (Miles CJ); 114 FLR 43.

127 128 129 130

Re East; Ex parte Nguyen (1998) 196 CLR 354 at 358, 366 (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ); 73 ALJR 140; 159 ALR 108; [1998] HCA 73. Scott v Bowden (2002) 194 ALR 593 at 594-595 (McHugh J); [2002] HCA 60. To the extent that their conclusions have not already been addressed above, Minogue v Williams [1999] FCA 1585 at [35] and, so far as it concerns the Treaty of Versailles, Matchett v Deputy Commissioner of Taxation (2000) 158 FLR 171 at 176; [2000] NSWSC 975 can be distinguished in the same way. Tasmanian Wilderness Society Inc v Fraser (1982) 153 CLR 270 at 274; 56 ALJR 763; 48 LGRA 300; 42 ALR 51.

131 132

133

112

(2007) 18 PLR 94

Federal treaty jurisdiction: A belated reply to Mark Leeming SC

Mason J denied that the statutes had this effect, thereby disposing of the submission. He then merely added that, without statutory support, breaches of the treaty could not be pursued.134 In addition, the statement is narrower than it appears. His Honour cannot have been suggesting that treaties were inherently non-justiciable. The interpretation and application of treaties has regularly been part of applying implementing legislation,135 interpreting statutes136 and developing or enforcing the common law.137 The task at the heart of the proposal is the same. It is not, therefore, wholly inimical to the judicial function.138 Indeed, as Lacey and Wright indicate for their submission, treaties do not defy judicial application and include standards that are both judicially discoverable and manageable by Australian courts.139 In these circumstances, Mason J must instead be taken to mean that treaties cannot be considered unless there is some jurisdiction to do so. This sits comfortably with those English authorities which have either used the terms jurisdiction and justiciability interchangeably140 or have considered the general barrier to invoking treaties to be jurisdiction alone.141 It is for this reason that a court may apply an unincorporated treaty in the context of statute or common law, as jurisdiction over that law is present. This also places the proposal beyond reproach, as jurisdiction over the treaty would exist as a result of s 75(i). Still, while there is no general ban on the justiciability of treaties, the proposal must also get past specic rules against justiciability. To the extent that they form part of Australian law,142 the rules could preclude proceedings under s 75(i) on particular issues, such as: the legality of the scope of Australian territory;143 the validity of a treaty;144 or war, defence or national security.145 They could also have this effect in more general circumstances, such as where the proceedings would involve
134 135

Tasmanian Wilderness Society Inc v Fraser (1982) 153 CLR 270 at 274; 56 ALJR 763; 48 LGRA 300; 42 ALR 51.

See, eg Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 230-231 (Brennan CJ), 239-240 (Dawson J), 251-252 (McHugh J), 277 (Gummow J), 292 and 294 (Kirby J); 71 ALJR 381; 142 ALR 331. See, eg Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 38 (Brennan, Deane and Dawson JJ); 67 ALJR 125; 110 ALR 97.

136

137

Mabo v Queensland (No 2) (1992) 175 CLR 1 at 15 (Mason CJ and McHugh J) and 42 (Brennan J); 66 ALJR 408; 107 ALR 1; Kuwait Airways Corp v Iraqi Airways Co (No 6) [2002] 2 AC 883. In relation to the latter, see also Mann, n 53, pp 340-347.

Note that there may be some treaties so vague that they do not enliven the external affairs power under s 51(xxix) of the Constitution: Victoria v Commonwealth (1995) 187 CLR 416 at 486 (Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ); 70 ALJR 680; 66 IR 392; 138 ALR 129. It is arguable that the question of whether the Commonwealth has performed obligations under such treaties would be non-justiciable on the ground that it is exclusively political and involves the application of non-judicial norms: compare Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2006) 154 FCR 425 at 430 (Black CJ and Finkelstein J); 232 ALR 478; [2006] FCAFC 116. However, an alternative view in the present context may be that, as such treaties permit so many approaches, the extent of federal compliance is capable of some judicial appraisal, but is unlikely to be found wanting: compare Gerhardy v Brown (1985) 159 CLR 70 at 139 (Brennan J); 59 ALJR 311; 57 ALR 472. In any event, the class is not large and hardly torpedoes the proposal. Much the same may be said of treaties regarding socio-economic policy or the allocation of resources: compare R v Secretary of State for the Home Department; Ex parte Bentley [1994] QB 349 at 363 (the court); R v Secretary of State for the Environment; Ex parte Hammersmith and Fulham LBC [1991] 1 AC 521 at 596-597 (Lord Bridge), 602 (Lord Brandon), 602 (Lord Oliver), 602 (Lord Goff) and 602 (Lord Jauncey); Re Mcfarland [2004] 1 WLR 1289 at 1302-1303 (Lord Scott). This approach accords with what is known under human rights treaties as the margin of discretion: see, eg the opinion of the United Nations Human Rights Committee in Herzberg v Finland (1982) 70 ILR 297 at 303. Compare Lacey and Wright, n 81, pp 56-57.
139 140

138

Lacey and Wright, n 81, p 55. See also p 57.

Maclaine Watson & Co Ltd v Department of Trade and Industry (International Tin Council Case) [1990] 2 AC 418 at 476 (Lord Keith), 476 (Lord Brandon), 476 (Lord Templeman), 483 (Lord Griffiths) and 499-501 (Lord Oliver).
141

British Airways Board v Laker Airways Ltd [1985] 1 AC 58 at 85-86 (Lord Diplock), 95 (Lord Fraser), 95 (Lord Scarman), 96 (Lord Roskill) and 96 (Lord Brightman); Campaign for Nuclear Disarmament v Prime Minister [2002] EWHC 2777 at [36]-[40] (Simon Brown LJ), [49]-[50] (Kay J), and [51], [61] (Richards J); Republic of Ecuador v Occidental Petroleum Co [2006] QB 432 at 441, 454 and 460 (the court). Compare, however, R (on the application of Gentle) v Prime Minister [2007] 2 WLR 195 at 210-211 (the court). Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347 at 369-370 (Gummow J); 83 ALR 265; Hicks v Ruddock (2007) 156 FCR 574 at 579-580 (Tamberlin J); [2007] FCA 299. See n 61.

142

143

(2007) 18 PLR 94

113

Jones

determining the legality of conduct by a foreign state;146 or could, in one way or another, prejudice the conduct of international relations by the Executive.147 The foregoing does not draw the proposal to a close. Obviously, the rules could prevent it from covering the scope of Australias territory or the validity of its treaties, to the extent that it could otherwise do so. Proceedings might also be barred so far as they concern the military, security and foreign states.148 However, this would not be frequent. The major problem would be the last rule. One can almost hear the Commonwealth arguing that any and every determination of treaty obligations would undermine its diplomacy. This is far-fetched. There is ample authority to suggest that diplomacy is unlikely to be affected by proceedings on Commonwealth treaty obligations regarding the rights of persons within Australian territory.149 It should be added that declaratory relief in constitutional litigation is discretionary.150 Even if specic rules against justiciability were not offended, the High Court would nonetheless have signicant latitude to refuse declarations in proceedings under the proposal where it felt there was good reason to do so.151

Enlivening s 38(a)
All that remains is to show how the proposal satises s 38(a). Every other domestic manifestation of treaties takes matters outside s 38(a) because there is a domestic legal instrument or rule between any right, duty or liability in controversy and the treaty. In contrast, treaties subject to the proposal are unincorporated. They are not engaged by any domestic law, with the exception of s 75(i) itself. As indicated, that provision does not produce rights, duties or liabilities that are fully enforceable under domestic law. It simply confers jurisdiction to declare the meaning and application of treaty obligations. Any such obligation would seem to remain a creature of the treaty alone. The proposal should, therefore, attract s 38(a).
144

See, eg Blackburn v Attorney-General (UK) [1971] 1 WLR 1037 at 1040 (Lord Denning MR), 1041 (Salmon LJ) and 1041 (Stamp LJ); R v Secretary of State for Foreign and Commonwealth Affairs; Ex parte Rees-Mogg [1994] QB 552 at 570-571 (the court); Horta v Commonwealth (1994) 181 CLR 183; 68 ALJR 620; 123 ALR 1. See, eg Abbasi v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA 1598 at [83]-[86] and [106] (the court); Campaign for Nuclear Disarmament v Prime Minister [2002] EWHC 2777 at [47] (Simon Brown LJ), [49] (Kay J) and [51] (Richards J); R (on the application of Gentle) v Prime Minister [2007] 2 WLR 195 at 210-211, 212-213 (the court).

145

Petrotimor Companhia de Petroleos SARL v Commonwealth (2003) 126 FCR 354 at 366-372 (Black CJ and Hill J); 197 ALR 461; [2003] FCAFC 3; Hicks v Ruddock (2007) 156 FCR 574; [2007] FCA 299. See also Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1988) 165 CLR 30 at 40 (Mason CJ, Wilson, Deane, Dawson, Toohey and Gaudron JJ); 62 ALJR 344; 78 ALR 449.
147

146

See, eg Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347 at 368-373 (Gummow J); 83 ALR 265; Hicks v Ruddock (2007) 156 FCR 574; [2007] FCA 299; Abbasi v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA 1598 at [37]-[38], [83]-[86] and [106] (the court); Campaign for Nuclear Disarmament v Prime Minister [2002] EWHC 2777 at [41]-[44], [47] (Simon Brown LJ), [49] (Kay J) and [51], [59] (Richards J); Al-Rawi v Secretary of State for Foreign and Commonwealth Affairs [2006] EWCA 1279 at [4]-[5], [62]-[64], [131]-[134], [140] and [147]-[148] (the court). Compare Humane Society International Inc v Kyodo Senpaku Kaisha (2006) 154 FCR 425; 232 ALR 478; [2006] FCAFC 116.

Note that the rule relating to foreign states should not apply merely because the High Courts determination as to governmental conduct within Australian territory might have implications for the status of conduct by other states on their domestic plane: compare R (on the application of Adan) v Secretary of State for the Home Department [2001] 2 AC 477 at 518 (Lord Steyn), 527 (Lord Hobhouse) and 531 (Lord Scott).
149

148

Republic of Ecuador v Occidental Petroleum Co [2006] QB 432 at 450 and 460-461 (the court). See also R v Secretary of State for Foreign and Commonwealth Affairs; Ex parte Everett [1989] QB 811 at 817 (OConnor LJ), 819 (Nicholls LJ) and 820 (Taylor LJ). See, eg Lindon v Commonwealth (No 2) (1996) 70 ALJR 541 at 545 (Kirby J); 136 ALR 251.

150 151

Indeed, it is tempting to explain East and Scott in this way. In theory, the proposal might be capable of extension to treaties that have become the subject of implementing legislation. However, any such extension should be offset against the principle that declaratory relief should be refused where Parliament has settled upon a particular means of giving a treaty domestic effect, certainly where that means is exclusive. It is also possible that a declaration in respect of a wholly unincorporated treaty could be refused where the High Court felt the applicant has an adequate alternative remedy under domestic law.

114

(2007) 18 PLR 94

Federal treaty jurisdiction: A belated reply to Mark Leeming SC

Nonetheless, there is a wrinkle here. Ruhani comes back to haunt the proposal. Earlier on, the decision helped the proposal negotiate s 75(i), by demonstrating that external law could be judicially administered, where it had been engaged by the Australian legal system. However, when we proceed to s 38(a), Ruhani becomes obstructive. As indicated, the case concerned the jurisdiction of the High Court to determine appeals from the Supreme Court of Nauru. That function was conferred by federal legislation, thus enabling Nauruan law to be administered. The difficulty for the proposal is that some of the judges in Ruhani concluded that, in engaging Nauruan law, the federal legislation had a particular effect. It may simply have stated that the High Court had jurisdiction to decide appeals from the Supreme Court of Nauru. However, by doing so, it converted, for a limited purpose, rights, duties and liabilities under Nauruan law into the same under Australian law. As such, the conferral of jurisdiction, like many others in federal legislation, was double-barrelled. It both empowered a court and, to that end, created legal norms.152 The implications of this for the status of the proposal under s 38(a) are clear. If s 75(i) were likewise double-barrelled, it would, again for a limited purpose, convert the provisions of treaties into rights, duties or liabilities under Australian law. Matters under the proposal would not involve obligations created by treaties alone. Rather, those obligations would have become norms of the Constitution. It would follow that s 38(a) could not apply. However, the truth is s 75(i) has no such character. In the rst place, the argument sits uneasily with the settled notion that the Constitution, almost without exception, does not create actionable private rights.153 Moreover, reading s 75(i) in this way distorts other conferrals in Ch III. If it were double-barrelled, then s 76(ii), by engaging other instruments separate from the Constitution, namely federal statutes, would be the same. This would mean that every right, duty or liability provided for by a treaty or federal statute would have the status of a constitutional norm. It would then follow that every engagement of ss 75(i) and 76(ii) would produce, at least co-extensively, a matter falling within s 76(i), ie one arising under the Constitution or involving its interpretation. This has never been suggested. Of course, questions regarding the scope of ss 75(i) or 76(ii) could attract s 76(i). However, it would be bizarre if s 76(i) could be engaged by rights, duties or liabilities originally created by treaties or federal statutes, on the basis that a conferral of jurisdiction had made them constitutional norms. The conferral and the Constitution itself would become obese, with a content most irregular for a supreme law. Instead, ss 75(i) and 76(ii) must confer jurisdiction in respect of instruments separate from the Constitution, without otherwise affecting their commands. Accordingly, an obligation contested in accordance with the proposal remains a creature of a treaty alone. Section 38(a) applies. There is one nal wrinkle that should also be disposed of. As stated in the footnotes to the discussion of Matchett, the UN Charter remains an unincorporated treaty, notwithstanding the Charter of the United Nations Act 1945 (Cth). That legislation simply represents Parliaments approval of the ratication of the treaty. It does not introduce its provisions into domestic law. The Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention)154 has been held to be in the same position.155 Let us assume these treaties might attract the proposal. The federal legislation approving their ratication would not prevent any proceedings from satisfying s 38(a). As indicated, a matter will not directly arise under a treaty where it is subject to an intervening legal instrument or rule. However, any such intervention must be of continuing application. Thus, legislation simply approving a past event representing a step in the conclusion of a treaty, namely ratication, cannot oust s 38(a).
152

Ruhani v Director of Police (2005) 222 CLR 489 at 499 (Gleeson CJ) and 516, 521 (McHugh J); 79 ALJR 1431; 219 ALR 199; [2005] HCA 42. Compare Ruhani v Director of Police (2005) 222 CLR 489 at 527, 528-530 (Gummow and Hayne JJ) and 555 (Kirby J); 79 ALJR 1431; 219 ALR 199; [2005] HCA 42. Kruger v Commonwealth (1997) 190 CLR 1 at 46 (Brennan CJ), 93 (Toohey J), 124-126 (Gaudron J) and 146-148 (Gummow J); 71 ALJR 991; 146 ALR 126. Convention on the Prevention and Punishment of the Crime of Genocide [1951] ATS 2. Nulyarimma v Thompson (1999) 96 FCR 153 at 162 (Wilcox J) and 177 (Merkel J); 165 ALR 621; [1999] FCA 1192.

153

154 155

(2007) 18 PLR 94

115

Jones

The conclusion that s 38(a) applies means that the High Courts jurisdiction under the proposal is exclusive of the several courts of the States and the Supreme Court of the Northern Territory. However, it should be recalled that s 38(a) does not extend to the Federal Court and the Supreme Court of the ACT. Does this mean they too could partake in the proposal? The answer is no. The Federal Court and the Supreme Court of the ACT might have escaped the clutches of s 38(a). However, those courts have also been denied the benet of the conferral in s 75(i), to any degree. This is fatal to their involvement in the proposal. For the High Courts authority to grant declarations relating to treaties under the proposal ows from s 75(i), as an exception to the separation of powers in ss 1 and 61. Thus, by virtue of one provision or another, the High Court would pursue the proposal alone.

IMPACT

OF THE PROPOSAL

If the proposal, then, surmounts the technical obstacles, the question remains how it would operate in practice. It presently excludes treaties that have been introduced into Australian law. The ICCPR,156 Racial Discrimination Convention and the Torture Convention have already been mentioned. However, in its current form, the proposal would probably also exclude the Convention on the Rights of the Child,157 the Convention on the Elimination of All Forms of Discrimination Against Women,158 the Convention Relating to the Status of Refugees159 and the International Covenant on Economic, Social and Cultural Rights.160 There might come a day when the proposal applies to some of the foregoing, on the basis that it covers treaties whose domestic implementation has been partial and non-exclusive. It would be greedy, though, to seek that now. The proposal embraces numerous wholly unincorporated treaties regarding the rights of persons within Australian territory. At least one was foreshadowed in the previous section, the Genocide Convention. Unincorporated conventions of the International Labour Organisation could presumably also be relevant.161 Other possibilities may be the Convention Against Discrimination in Education162 and perhaps even the Agreement Establishing the International Organisation of Vine and Wine.163 The ipside to identifying the treaties that attract the proposal is to ascertain which domestic acts may be scrutinised for consistency with those instruments. Federal legislative and executive measures are obvious candidates. However, the common law of Australia probably need not be placed in this
156 International Covenant on Civil and Political Rights [1980] ATS 23; Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty [1991] ATS 19; First Optional Protocol to the International Covenant on Civil and Political Rights [1991] ATS 39. See HREOC Act 1986, Div 3, Sch 2. 157

Convention on the Rights of the Child [1991] ATS 4. See HREOC Act 1986, Div 3 and s 47; Commonwealth Gazette, No GN 1, 13 January 1993, pp 85-107.

158

Convention on the Elimination of All Forms of Discrimination Against Women [1983] ATS 9. See Sex Discrimination Act 1984 (Cth). Convention Relating to the Status of Refugees [1954] ATS 5; Protocol Relating to the Status of Refugees [1973] ATS 37. See Migration Act 1958 (Cth), s 36. See also Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 81 ALJR 304 at 313-314 (Gummow ACJ, Callinan, Heydon and Crennan JJ); 231 ALR 340; 92 ALD 513; [2006] HCA 53 and NBGM v Minister for Immigration and Multicultural Affairs (2006) 81 ALJR 337 at 349-350 (Callinan, Heydon and Crennan JJ); 231 ALR 380; 93 ALD 43; [2006] HCA 54. Compare NBGM v Minister for Immigration and Multicultural Affairs (2006) 81 ALJR 337 at 340-342 (Kirby J); 231 ALR 380; 93 ALD 43; [2006] HCA 54.

159

160

International Covenant on Economic, Social and Cultural Rights [1976] ATS 5. See Disability Discrimination Act 1992 (Cth) s 12(8)(d). See, generally, International Labour Organisation Act 1949 (Cth) and International Labour Organisation Act 1973 (Cth). Convention Against Discrimination in Education [1966] ATS 20; Protocol Instituting a Conciliation and Good Offces Commission for the Settlement of Disputes Arising Between Parties to the Convention Against Discrimination in Education [1974] ATS 28.

161 162

163

Agreement Establishing the International Organisation of Vine and Wine [2004] ATS 3. Compare Beringer Blass Wine Estates Ltd v Geographical Indications Committee (2002) 125 FCR 155; 36 AAR 98; 70 ALD 27; [2002] FCAFC 295.

116

(2007) 18 PLR 94

Federal treaty jurisdiction: A belated reply to Mark Leeming SC

position, as it is already subject to development in order to reect treaties.164 More complex is the position of State, Territory and local legislation and decisions. In general, a state cannot invoke its internal law to justify a failure to perform a treaty.165 This rule, as well as principles of state responsibility, means that, within a federation, a national government can be held to have breached treaty obligations, even if the offending conduct is by a sub-national counterpart.166 The national government can prevent this by attaching reservations to treaties. However, such reservations are unpopular and the Commonwealth does not favour them.167 As such, it can be accountable for State, Territory and local breaches of treaty obligations. Indeed, this very thing occurred when the United Nations Human Rights Committee found Tasmanian legislation affecting homosexuals to violate the ICCPR.168 The proposal would operate in the same way. It concerns the Commonwealths treaty obligations, as a matter of international law. It could, therefore, be engaged by the conduct of any Australian government.169

CONCLUSION
Mr Leemings central conclusion should now be re-evaluated. Like implementing legislation and the enabling legislation that once clearly permitted Teoh claims, treaties that apply without implementing legislation do not attract s 38(a). That provision requires any right, duty or liability in controversy to be created by a provision of the treaty alone. Mr Leemings treaties fail to meet this threshold, as each is utilised by a domestic legal instrument or rule. This does not leave s 38(a) without work to do. Together with s 75(i), it gives the High Court exclusive jurisdiction to declare that, in the particular circumstances of an individual or entity, the Commonwealth has breached obligations under an unincorporated treaty regarding the rights of persons within Australian territory. This represents the best construction of s 75(i). Excluding unincorporated treaties would unduly read down the text of that provision. It would give federal treaty jurisdiction a concurrent, rather than an independent operation. It would also run counter to established principles of interpretation regarding conferrals of jurisdiction. Above all, it would leave s 38(a) without any work to do and, after more than a century of operation, would render that provision invalid. On the other hand, allowing s 75(i) to embrace the provisions of unincorporated treaties to the point of making them fully enforceable domestic norms would ignore the text of s 75(i) and its drafting history. It would also disrupt the structure of Australian government and democracy under the Constitution. The proposal is a desirable middle ground. It allows s 75(i) to embrace unincorporated treaties. However, by being conned to purely declaratory relief, it respects the background to and governmental context of s 75(i). Under this interpretation, unincorporated treaties regarding the rights of persons in Australian territory can supply an immediate duty, for the purposes of purely declaratory relief. To this extent, the rule in Walker v Baird, whether as a rule of the common law or norm of the Constitution, gives way. Every other element of a constitutional matter is satised. The proposal entails a controversy and does not invite the High Court to give advisory opinions. The declaratory relief at its heart produces the necessary consequences for applicants. Beyond this, the proposal involves the exercise of judicial
164 165 166

See n 137. Vienna Convention on the Law of Treaties [1974] ATS 2, Arts 27 and 46. See also Art 29.

Crawford J, International Law Commissions Articles on State Responsibility: Introduction, Text and Commentaries (CUP, 2002), pp 94 and 97-98. Council of Australian Governments, Principles and Procedures for Commonwealth-State Consultation on Treaties (1996) at [8.1] (http://www.coag.gov.au (viewed 2 May 2007)).

167

168

Toonen v Australia (1994) 112 ILR 328 at 342. See also First Optional Protocol to the International Covenant on Civil and Political Rights [1991] ATS 39, Art 1.

169

The precise parties to a case implicating State, Territory or local governments would be resolved in practice. The relevant government would probably wish to be heard: compare Toonen v Australia (1994) 112 ILR 328 at 334. The presence of the Commonwealth might be expected, but would not be necessary: compare Ruhani v Director of Police (2005) 222 CLR 489 at 500 (Gleeson CJ), 522 (McHugh J), 531 (Gummow and Hayne JJ), 556-563 (Kirby J) and 565, 578-579 (Callinan and Heydon JJ); 79 ALJR 1431; 219 ALR 199; [2005] HCA 42.

(2007) 18 PLR 94

117

Jones

power. Applicants could well surmount standing. There would not necessarily be any obstacle in the rules regarding justiciability. Importantly, the proposal would have the unique ability to trigger s 38(a), thereby entrusting its work to the High Court alone. Lastly, the reach of the proposal would be substantial, incorporating a broad range of treaties and governmental conduct. The author hopes it will receive further attention soon.

118

(2007) 18 PLR 94