墨尔本大学：《作为宪法解释的国际法》（英文版）

THE UNIVERISITY OF MELBOURNE FACULTY OF LAW Public Law and Legal Theory Research Paper No 33 2002 INTERNATIONAL LAW ASA TOOL OF CONSTITUTIONAL INTERPRETATION Kristen Walker This paper can be downloaded without charge from the Social Science Research Network Electronic Library at http:/ssm.com/abstractid=319921

THE UNIVERISITY OF MELBOURNE FACULTY OF LAW Public Law and Legal Theory Research Paper No. 33 2002 INTERNATIONAL LAW AS A TOOL OF CONSTITUTIONAL INTERPRETATION Kristen Walker This paper can be downloaded without charge from the Social Science Research Network Electronic Library at: http://ssrn.com/abstract_id=319921

INTERNATIONAL LAW AS A TOOL OF CONSTITUTIONAL INTERPRETATION Kristen Walker INTRODUCTION In a series of judgments in the past five years Justice Kirby has developed an interpretive principle concerning the use of international law in constitutional interpretation. He has adapted the words of Brennan J in Mabo v queensland [No 2to formulate the proposition that The common law, and constitutional law, do not necessarily conform with international law. However, international law is a legitimate and important influence on the development of the common law and constitutional law, especially when international law declares the existence of universal and fundamental rights. 2 So far, he is very much alone in his endeavour, though as Kirby j himself has noted today's heresies sometimes become tomorrow s orthodoxy.3 In this paper I will explain and assess Kirby J's interpretive principle. I shall argue that international law should, as Kirby J asserts, be considered a legitimate influence on constitutional interpretation. I also argue that Kirby J's approach is not entirely new, as there is support for the use of international law in constitutional interpretation BSc LLB(Hons)LLM(Melb), LLM(Columbia). Senior Lecturer in Law, The University of Melbourne I would like to thank Simona Gory for research assistance; all errors remain my own. A version of this paper was presented at the Public Law Weekend, ANU Law School, 2 November 2001 Mabo v Queensland(No 2/(1992)175 CLR 1, 42 Newcrest Mining(WA)v The Commonwealth (1997)190 CLR 513, 657. And see Kartinyeni v The Commonwealth(1998)195 CLR 337, 417-418, Sinanovic v R(1998)154 ALR 702, 708: Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka(2001)179 ALR 296, 314; Levy v victoria (1997)189 CLR 589, 644-5; Re East; EX parte Nguyen(1998)196 CLR 354, 380-1; Michael Kirby, International Law: Down in the Engineroom", ANZSIL/ASIL Joint Meeting, 26 June 2000, 6-7 http://www.hcourt.gov.au/speeches/kirbyj/kirbyj_inter_law.htmMichaelKirby,domEstic Implementation of Human Rights Norms"ANU Conference on Implementing International Human Rights6December1997,29-32,http://www.hcourt.gov.au/speeches/kirbyj/kirbyj_inthrts.htm 3 Kirby, "Domestic Implementation",32

INTERNATIONAL LAW AS A TOOL OF CONSTITUTIONAL INTERPRETATION Kristen Walker* INTRODUCTION In a series of judgments in the past five years Justice Kirby has developed an interpretive principle concerning the use of international law in constitutional interpretation. He has adapted the words of Brennan J in Mabo v Queensland [No 2]1 to formulate the proposition that: The common law, and constitutional law, do not necessarily conform with international law. However, international law is a legitimate and important influence on the development of the common law and constitutional law, especially when international law declares the existence of universal and fundamental rights.2 So far, he is very much alone in his endeavour, though as Kirby J himself has noted, "today's heresies sometimes become tomorrow's orthodoxy".3 In this paper I will explain and assess Kirby J's interpretive principle. I shall argue that international law should, as Kirby J asserts, be considered a legitimate influence on constitutional interpretation. I also argue that Kirby J's approach is not entirely new, as there is support for the use of international law in constitutional interpretation * BSc LLB(Hons) LLM (Melb), LLM (Columbia). Senior Lecturer in Law, The University of Melbourne. I would like to thank Simona Gory for research assistance; all errors remain my own. A version of this paper was presented at the Public Law Weekend, ANU Law School, 2 November 2001. 1 Mabo v Queensland [No 2] (1992) 175 CLR 1, 42. 2 Newcrest Mining (WA) v The Commonwealth (1997) 190 CLR 513, 657. And see Kartinyeri v The Commonwealth (1998) 195 CLR 337, 417–418, Sinanovic v R (1998) 154 ALR 702, 708; Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001) 179 ALR 296, 314; Levy v Victoria (1997) 189 CLR 589, 644–5; Re East; Ex parte Nguyen (1998) 196 CLR 354, 380–1; Michael Kirby, "International Law: Down in the Engineroom", ANZSIL/ASIL Joint Meeting, 26 June 2000, 6–7, http://www.hcourt.gov.au/speeches/kirbyj/kirbyj_inter_law.htm; Michael Kirby, "Domestic Implementation of Human Rights Norms" ANU Conference on Implementing International Human Rights, 6 December 1997, 29–32, http://www.hcourt.gov.au/speeches/kirbyj/kirbyj_inthrts.htm. 3 Kirby, "Domestic Implementation", 32

in several cases over the course of the last century. What is new about Kirby J's approach is that he has articulated an explicit interpretive principle, whereas previous cases had involved the ad hoc and unexplained use of international law. It might also be argued that Kirby J's approach is not new in that he is merely extending an existing principle of statutory interpretation to the Constitution. I disagree with such a characterisation, however, as I do not consider the Constitution to be the equivalent to an ordinary statute. Rather, the Constitution is a" -that is although technically an Imperial statute, it is our foundational legal document, developed in Australia and adopted after referenda in each colony. It stands in a special position, subject to a distinct body of jurisprudence concerning its interpretation. Thus although it is correct to say that Kirby j has extended an existing principle into the constitutional arena, I regard this extension as novel -and indeed as controversial, as the discussion of judicial responses to Kirby J's approach in Part ll of this paper reveals In Part I of this article, I shall briefly outline the cases in which members of the High Court have, over the years, drawn on international law in interpreting the Constitution. In Part Il I shall explore in greater detail Kirby J's approach to the use of international law in constitutional interpretation and consider the reaction to that approach by other members of the present High Court. In Part lll I shall provide a normative argument concerning the interaction of international law and constitutional law. I conclude that, while international law has had and should have a role to play in constitutional interpretation, a robust role for international law is unlikely to be accepted by a majority of the Court as presently constituted Kartinyeri 419

in several cases over the course of the last century. What is new about Kirby J's approach is that he has articulated an explicit interpretive principle, whereas previous cases had involved the ad hoc and unexplained use of international law. It might also be argued that Kirby J's approach is not new in that he is merely extending an existing principle of statutory interpretation to the Constitution. I disagree with such a characterisation, however, as I do not consider the Constitution to be the equivalent to an ordinary statute. Rather, the Constitution is a "special" statute4 — that is, although technically an Imperial statute, it is our foundational legal document, developed in Australia and adopted after referenda in each colony. It stands in a special position,5 subject to a distinct body of jurisprudence concerning its interpretation. Thus although it is correct to say that Kirby J has extended an existing principle into the constitutional arena, I regard this extension as novel — and indeed, as controversial, as the discussion of judicial responses to Kirby J's approach in Part II of this paper reveals. In Part I of this article, I shall briefly outline the cases in which members of the High Court have, over the years, drawn on international law in interpreting the Constitution. In Part II I shall explore in greater detail Kirby J's approach to the use of international law in constitutional interpretation and consider the reaction to that approach by other members of the present High Court. In Part III I shall provide a normative argument concerning the interaction of international law and constitutional law. I conclude that, while international law has had and should have a role to play in constitutional interpretation, a robust role for international law is unlikely to be accepted by a majority of the Court as presently constituted. 4 Kartinyeri 419. 2

I note at this point that I will not be dealing in any detail with the more general question of the relationship between international law and domestic law-that is, the incorporation/transformation debate. Although this is a constitutional question, it is not the question on which I wish to focus, and it has been dealt with extensively elsewhere. Briefly, however, it may be noted that in our legal system treaties are not automatically"part of domestic law. Rather, an act of transformation is required to give treaties direct effect in Australian law. In relation to customary international law the position is more complex. It is still possible to argue that customary international law is"part of the Australian common law without requiring legislation to transform customary international law into Australian law, based on English authorities(such as Triquet v Bath and Trendtex Trading Corporation v Central Bank of Nigeria,)and some older Australian cases (such as Polites v The Commonwealth and Chow Hung Ching v R). However, such a proposition was rejected by Dixon CJ in Chow Hung Ching and, more recently, impliedly rejected by a majority of the Full Federal Court in Nulyarimma v Thompson. 13 There is no recent High Court support for an id 384( Gummow and Hayne JJ), Polites 78(Dixon J 6 See, eg, Kristen Walker, "Treaties and the Internationalisation of Australian Law"in Cheryl Saunders ed, Courts of Final Jurisdiction(1995); Andrew Mitchell, "Genocide, Human Rights Implementation And The Relationship Between International And Domestic Law: Nulyarimma v Thompson"(2000)24 MULR 15: James Crawford and William Edeson, "International Law and Australian Law in KW Ryan (ed), International Law in Australia(2 ed, 1984)71; C Alexandrowicz, "International Law in the Municipal Sphere According to Australian Decisions"(1964)13 International and Comparative Law 7 For a fuller discussion of the relationship between treaties and Australian law, see Kristen Walker "Treaties and the Internationalisation of Australian Law in Cheryl Saunders, ed, Courts of Final (1995)20 B(1764)3Bur1478[97ER777 °[1977]1QB529 10(1945)70cLR60 (1948)77CLR449 /bid 477 [199]FCA1192(1sept1999), paras24,52

I note at this point that I will not be dealing in any detail with the more general question of the relationship between international law and domestic law – that is, the incorporation/transformation debate. Although this is a constitutional question, it is not the question on which I wish to focus, and it has been dealt with extensively elsewhere.6 Briefly, however, it may be noted that in our legal system treaties are not automatically "part of" domestic law. Rather, an act of transformation is required to give treaties direct effect in Australian law.7 In relation to customary international law, the position is more complex. It is still possible to argue that customary international law is "part of" the Australian common law without requiring legislation to transform customary international law into Australian law, based on English authorities (such as Triquet v Bath8 and Trendtex Trading Corporation v Central Bank of Nigeria9 ) and some older Australian cases (such as Polites v The Commonwealth10 and Chow Hung Ching v R11). However, such a proposition was rejected by Dixon CJ in Chow Hung Ching12 and, more recently, impliedly rejected by a majority of the Full Federal Court in Nulyarimma v Thompson. 13 There is no recent High Court support for an 5 Ibid 384 (Gummow and Hayne JJ), Polites 78 (Dixon J). 6 See, eg, Kristen Walker, "Treaties and the Internationalisation of Australian Law" in Cheryl Saunders, ed, Courts of Final Jurisdiction (1995); Andrew Mitchell, "Genocide, Human Rights Implementation And The Relationship Between International And Domestic Law : Nulyarimma v Thompson" (2000) 24 MULR 15; James Crawford and William Edeson, “International Law and Australian Law” in KW Ryan (ed), International Law in Australia (2nd ed, 1984) 71; C Alexandrowicz, "International Law in the Municipal Sphere According to Australian Decisions" (1964) 13 International and Comparative Law Quarterly 78. 7 For a fuller discussion of the relationship between treaties and Australian law, see Kristen Walker, "Treaties and the Internationalisation of Australian Law" in Cheryl Saunders, ed, Courts of Final Jurisdiction (1995) 204. 8 (1764) 3 Burr 1478 [97 ER 777]. 9 [1977] 1 QB 529. 10 (1945) 70 CLR 60. 11 (1948) 77 CLR 449. 12 Ibid 477. 13 [1999] FCA 1192 (1 Sept 1999), paras 24, 52. 3

incorporation approach to customary international law and Sir Anthony Mason, in his extra-judicial writings, has noted that in Australia we seem to prefer the transformation approach to customary international law. However, both treaties and customary international law have been used quite frequently by the courts in the development of the common law and in the interpretation of legislation More recently, treaties have been used in the area of legitimate expectations in administrative law. The question that remains is whether and how international law may be used in constitutional cases I. INTERNATIONAL LAW IN CONSTITUTIONAL CASES: 1901-1996 International law has been raised in various constitutional cases over the years in relation to diverse issues, including (a) international law as a limitation on legislative power (b)international law as a source of legislative power (c) the determination of the existence of a sufficient nexus between a State and the subject matter of a State law (d) the interpretation of section 44 of the Constitution 20 14 Anthony Mason, "International Law as a Source of Domestic Law"in Brian Opeskin(ed) International Law and Australian Federalism(1997), 218. And see generally the discussion in bove n 6 See discussion in Walker, above n 6. 209-218: Rosalie Balkin "International Law and domestic Law"in Sam Blay, Ryszard Piotrowicz and Martin Tsamenyi(eds), Public International Law: An Australian Perspective(1997)119, 122, 132-135 16 Minister for immigration and Ethnic Affairs v Teoh(1995)183 CLR 273 Polites v The Commonwealth(1945)70 CLR 60: Horta v The Commonwealth(1994)181 CLR 183 Polyukhovich v The Commonwealth(1991)172 CLR 501 1 Roche v Kronheimer(1921)29 CLR 329: Rv Burgess; Ex parte Henry (1936)55 CLR 608: Rv Poole: Ex parte Henry ([No 2/(1939)61 CLR 634; Airlines of New South Wales Pty Ltd v New South Wales/No 2](1965)113 CLR 54: The Commonwealth Ta (1983)158 CLR 1; Kirmani v Captain Cook Cruises Pty Ltd(1985)158 CLR 351; Gerhardy v Brown(1985)159 CLR 70 Richardson v Forestry Commission(1988)164 CLR 261; Queensland v The Commonwealth(1989) 167 CLR 232(The Queensland Rainforest Case): Victoria v The Commonwealth(1996)187 CLR 416 (The Industrial Relations case) Inion Steamship Co of Australia Pty Ltd v King(1988)166 CLR 1

incorporation approach to customary international law and Sir Anthony Mason, in his extra–judicial writings, has noted that in Australia we seem to prefer the transformation approach to customary international law.14 However, both treaties and customary international law have been used quite frequently by the Courts in the development of the common law and in the interpretation of legislation.15 More recently, treaties have been used in the area of legitimate expectations in administrative law.16 The question that remains is whether and how international law may be used in constitutional cases. I. INTERNATIONAL LAW IN CONSTITUTIONAL CASES: 1901–1996 International law has been raised in various constitutional cases over the years in relation to diverse issues, including: (a) international law as a limitation on legislative power;17 (b) international law as a source of legislative power;18 (c) the determination of the existence of a sufficient nexus between a State and the subject matter of a State law;19 (d) the interpretation of section 44 of the Constitution;20 14 Anthony Mason, "International Law as a Source of Domestic Law" in Brian Opeskin (ed), International Law and Australian Federalism (1997) , 218. And see generally the discussion in Mitchell, above n 6. 15 See discussion in Walker, above n 6, 209-218; Rosalie Balkin, "International Law and Domestic Law" in Sam Blay, Ryszard Piotrowicz and Martin Tsamenyi (eds), Public International Law: An Australian Perspective (1997) 119, 122, 132-135 16 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. 17 Polites v The Commonwealth (1945) 70 CLR 60; Horta v The Commonwealth (1994) 181 CLR 183; Polyukhovich v The Commonwealth (1991) 172 CLR 501. 18 Roche v Kronheimer (1921) 29 CLR 329; R v Burgess; Ex parte Henry (1936) 55 CLR 608; R v Poole; Ex parte Henry ([No 2] (1939) 61 CLR 634; Airlines of New South Wales Pty Ltd v New South Wales [No 2] (1965) 113 CLR 54; The Commonwealth v Tasmania (1983) 158 CLR 1; Kirmani v Captain Cook Cruises Pty Ltd (1985) 158 CLR 351; Gerhardy v Brown (1985) 159 CLR 70; Richardson v Forestry Commission (1988) 164 CLR 261; Queensland v The Commonwealth (1989) 167 CLR 232 (The Queensland Rainforest Case); Victoria v The Commonwealth (1996) 187 CLR 416 (The Industrial Relations case). 19 Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1. 4

(e) the determination of the constitutionality of legislation regulating New Guinea(and later Papua and New Guinea) under the League of Nations mandate system(and later the United Nations trusteeshi system); and (a the freedom of political communication cases; and the interpretation of Ch Ill of the constitution I will not consider all of these areas in detail suffice it to say that international law was, as we know, rejected as a limitation on legislative power in both Polites and Horta, with the exception of some legislation enacted under the external affairs power. 23 Evatt J's attempts to confine the Commonwealth's power over trust and mandated territories failed. Constitutionally, of course, international law has proved significant as a source of legislative power because of the Commonwealth Parliament's capacity to legislate to give effect to Australia's international obligations but that has been much written about elsewhere and thus will not be addressed here. Rather I will focus on two areas where international law has been used in determining a constitutional issue: Ch Ill of the Constitution and the implied freedom of political communication Sykes v Cleary(1992)176 CLR 77 2 Jolley v Mainka(1993)49 CLR 243; Ffrost v Stevenson(1937)58 CLR 528; Fishwick v Cleland (1960)106CLR186 Nationwide News v Wills(1992)177 CLR 1: Australian Capital Television Pty Ltd v The Commonwealth(1992)177 CLR 106: Theophanous v Herald Weekly Times Ltd(1994)124 ALR 1 That is, legislation enacted in reliance on a treaty must be"reasonably capable of being considered appropriate and adapted"to implementing the treaty: Industrial Relations case, (1996)187 CLR 416 5089 4 See n 21. above See, eg, Andrew Byrnes and Hilary Charlesworth, " Federalism and the International Legal Order Recent Developments in Australia"(1985)79 American Journal of International Law 622; Kidwai External Affairs Power and the Constitutions of British Dominions"(1976)9 University of Queensland Law Journal 167. JT Ludeke. "The External Affairs Power: Another province for law and order" (1994)68 Australian Law Journal 250: Brian Opeskin and Don Rothwell, The Impact of Treaties on Australian Federalism"(1995)27 Case Western Joumal of Intemational Law 1; Don Rothwell, " The High Court and the External Affairs Power: A Consideration of its Inner and Outer Limits(1993)15 Adelaide Law Review 209 James Crawford and william Edeson "International law and Australian Law in KW Ryan(ed), International Law in Australia(2nd ed, 1984)71; Geoffrey Sawer, Australian Constitutional Law in Relation to International Relations and International Law"in KW Ryan, Intemational Law in Australia(2nd ed, Sydney)35: Leslie Zines, The High Court and the Constitution (3rded,1992)

(e) the determination of the constitutionality of legislation regulating New Guinea (and later Papua and New Guinea) under the League of Nations mandate system (and later the United Nations trusteeship system);21 and (f) the freedom of political communication cases; and the interpretation of Ch III of the Constitution.22 I will not consider all of these areas in detail — suffice it to say that international law was, as we know, rejected as a limitation on legislative power in both Polites and Horta, with the exception of some legislation enacted under the external affairs power.23 Evatt J's attempts to confine the Commonwealth's power over trust and mandated territories failed.24 Constitutionally, of course, international law has proved significant as a source of legislative power because of the Commonwealth Parliament's capacity to legislate to give effect to Australia's international obligations, but that has been much written about elsewhere25 and thus will not be addressed here. Rather, I will focus on two areas where international law has been used in determining a constitutional issue: Ch III of the Constitution and the implied freedom of political communication. 20 Sykes v Cleary (1992) 176 CLR 77. 21 Jolley v Mainka(1993) 49 CLR 243; Ffrost v Stevenson (1937) 58 CLR 528; Fishwick v Cleland (1960) 106 CLR 186. 22 Nationwide News v Wills (1992) 177 CLR 1; Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106; Theophanous v Herald & Weekly Times Ltd (1994) 124 ALR 1. 23 That is, legislation enacted in reliance on a treaty must be "reasonably capable of being considered appropriate and adapted" to implementing the treaty: Industrial Relations case, (1996) 187 CLR 416, 508-9. 24 See n 21, above. 25 See, eg, Andrew Byrnes and Hilary Charlesworth, “Federalism and the International Legal Order: Recent Developments in Australia” (1985) 79 American Journal of International Law 622; Kidwai, “External Affairs Power and the Constitutions of British Dominions” (1976) 9 University of Queensland Law Journal 167; JT Ludeke, “The External Affairs Power: Another Province for Law and Order” (1994) 68 Australian Law Journal 250; Brian Opeskin and Don Rothwell, “The Impact of Treaties on Australian Federalism” (1995) 27 Case Western Journal of International Law 1; Don Rothwell, “The High Court and the External Affairs Power: A Consideration of its Inner and Outer Limits” (1993) 15 Adelaide Law Review 209; James Crawford and William Edeson, “International Law and Australian Law” in KW Ryan (ed), International Law in Australia (2nd ed, 1984) 71; Geoffrey Sawer, “Australian Constitutional Law in Relation to International Relations and International Law” in KW Ryan, International Law in Australia (2nd ed, Sydney) 35; Leslie Zines, The High Court and the Constitution (3rd ed, 1992). 5

Ch lll of the constitution Chapter Ill of the Constitution may not appear at first glance to be fertile ground for arguments based on international law. However, international law has had some relevance in determining whether Ch Ill precludes the enactment of ex post facto criminal laws and, if it does, precisely what amounts to such a law. These issues were raised in Polyukhovich, which concerned the validity of the Commonwealth War Crimes Act. Deane J concluded that Ch Ill did preclude ex post facto criminal laws and, although his Honour's decision was based primarily on his conception of the nature of the judicial process, he also drew support from international human rights conventions, such as the European Convention for the Protection of Human Rights (ECHR) and the American Convention on Human Rights, which provided protection against the imposition of retrospective criminal guilt. Australia is not a party to either of these conventions, but Deane J used them to support his conclusion that"ex post facto criminal legislation lies outside the proper limits of the legislative function as a matter of principle. 28 Both Deane J and Gaudron J also made use of principles of international law in their application of the prohibition on ex post facto criminal laws stemming from Ch lll of the Constitution. Because they concluded that such a prohibition existed, it was necessary for them to establish whether the War Crimes Act violated the prohibition It was accepted that the conduct criminalised by the act was not criminal in domestic law at the time of its commission; however, both judges considered it necessary to (1991)172CLR501,611-2 /bid 612 bid 611

1. Ch III of the Constitution Chapter III of the Constitution may not appear at first glance to be fertile ground for arguments based on international law. However, international law has had some relevance in determining whether Ch III precludes the enactment of ex post facto criminal laws and, if it does, precisely what amounts to such a law. These issues were raised in Polyukhovich, which concerned the validity of the Commonwealth War Crimes Act. Deane J concluded that Ch III did preclude ex post facto criminal laws26 and, although his Honour’s decision was based primarily on his conception of the nature of the judicial process, he also drew support from international human rights conventions, such as the European Convention for the Protection of Human Rights (“ECHR”) and the American Convention on Human Rights, which provided protection against the imposition of retrospective criminal guilt.27 Australia is not a party to either of these conventions, but Deane J used them to support his conclusion that “ex post facto criminal legislation lies outside the proper limits of the legislative function” as a matter of principle.28 Both Deane J and Gaudron J also made use of principles of international law in their application of the prohibition on ex post facto criminal laws stemming from Ch III of the Constitution. Because they concluded that such a prohibition existed, it was necessary for them to establish whether the War Crimes Act violated the prohibition. It was accepted that the conduct criminalised by the Act was not criminal in domestic law at the time of its commission; however, both judges considered it necessary to 26 (1991) 172 CLR 501, 611-2. 27 Ibid 612. 28 Ibid 611. 6

determine whether the conduct was criminal at international law at that time in order to determine whether the legislation was truly retrospective. 9 they concluded that the relevant conduct was not criminalised in international law at the time it occurred and thus the legislation was retroactive in nature lorth mentioning, too, are some obiter comments of Deane J to the effect that, if Australia was participating in the establishment and functioning of an international tribunal for the trial and punishment of international crimes, Ch Ill of the Constitution would be inapplicable because the judicial power of the international community rather than that of the commonwealth, would be involved. In addition he foreshadowed a possible further exception to the applicability of ch Ill, where a local tribunal is vested with jurisdiction in relation to an alleged crime against international law: It may be arguable that, in such a case, the judicial power of the Commonwealth is not involved for so long as the alleged crime against nternational law is made punishable as such in the local court. Alternatively, at least where violations of the laws and customs of war are alone involved analogy with the disciplinary powers of military tribunals and largely pragmatic standing outside Ch// 3 bine to dictate recognition of a special jurisdiction This comment on the potential for international law to take a criminal prosecution outside the protection afforded by ch Ill is surprising as Deane J has been one of the leaders of the Court in developing Ch Ill as a protective mechanism, particularly in the area of military courts-martial. These comments will be of particular interest if, as expected, Australia ratifies the Statute of the International Criminal Court id627-8,631,699-700,707 30bd627 See, eg, Re Tyler; Ex parte Foley( 1994)181 CLR 18: Re Nolan: EX parte Young(1991)172 CLR 460; Re Tracey; Ex parte Ryan(1989)166 CLR 518

determine whether the conduct was criminal at international law at that time, in order to determine whether the legislation was truly retrospective.29 They concluded that the relevant conduct was not criminalised in international law at the time it occurred, and thus the legislation was retroactive in nature. Worth mentioning, too, are some obiter comments of Deane J to the effect that, if Australia was participating in the establishment and functioning of an international tribunal for the trial and punishment of international crimes, Ch III of the Constitution would be inapplicable because the judicial power of the international community, rather than that of the Commonwealth, would be involved.30 In addition, he foreshadowed a possible further exception to the applicability of Ch III, where a local tribunal is vested with jurisdiction in relation to an alleged crime against international law: It may be arguable that, in such a case, the judicial power of the Commonwealth is not involved for so long as the alleged crime against international law is made punishable as such in the local court. Alternatively, at least where violations of the laws and customs of war are alone involved, analogy with the disciplinary powers of military tribunals and largely pragmatic considerations might combine to dictate recognition of a special jurisdiction standing outside Ch III.31 This comment on the potential for international law to take a criminal prosecution outside the protection afforded by Ch III is surprising, as Deane J has been one of the leaders of the Court in developing Ch III as a protective mechanism, particularly in the area of military courts-martial.32 These comments will be of particular interest if, as expected, Australia ratifies the Statute of the International Criminal Court. 29 Ibid 627-8, 631, 699-700, 707. 30 Ibid 627. 31 Ibid. 32 See, eg, Re Tyler; Ex parte Foley (1994) 181 CLR 18; Re Nolan; Ex parte Young (1991) 172 CLR 460; Re Tracey; Ex parte Ryan (1989) 166 CLR 518. 7

2. The Implied Freedom of Political Communication Several members of the court have also referred to international conventions in decisions concerning the implied freedom of political communication. In Australian Capital Television and Nationwide News, Mason CJ, Brennan J and Gaudron J used the European Convention on Human Rights in support of the fundamental importance of freedom of communication to representative democracy.These judges did not engage in any in depth discussion or analysis of freedom of expression as guaranteed by the ECHR; rather, they merely used the EChr (to which, of course, Australia is not a party) to demonstrate that other representative democracies value freedom of expression The ECHR was also used by Brennan J in Australian Capital Television in his assessment of whether the freedom of political communication had been violated He noted that in X and the Association of z v United Kingdom a challenge under the ECHR to a ban on political advertisements on British television had failed. Brennan J paid some attention to this case, which was directly on point although not referred to by mason CJ or Gaudron J. Ultimately, Brennan J concluded that the ban on paid political advertising did not violate the implied right to freedom of political expression and the European case, although not decisive, was influential in reaching that conclusion McHugh J, too, considered the ECHR, but found it unnecessary to discuss X and the Association of Z, because he concluded that the constitutional context in which the guarantee of freedom of expression operated in Australia meant that there was no valid analogy between the international instruments and the commonwealth 33 Nationwide News Pty Ltd v Wills(1992)177 CLR 1, 47(Brennan J); Australian Capital Television Pty Ltd v The Commonwealth(1992)177 CLR 106, 140 (Mason J), 211(Gaudron J) y4(192)177CLR106,154

2. The Implied Freedom of Political Communication Several members of the Court have also referred to international conventions in decisions concerning the implied freedom of political communication. In Australian Capital Television and Nationwide News, Mason CJ, Brennan J and Gaudron J used the European Convention on Human Rights in support of the fundamental importance of freedom of communication to representative democracy.33 These judges did not engage in any in depth discussion or analysis of freedom of expression as guaranteed by the ECHR; rather, they merely used the ECHR (to which, of course, Australia is not a party) to demonstrate that other representative democracies value freedom of expression. The ECHR was also used by Brennan J in Australian Capital Television in his assessment of whether the freedom of political communication had been violated. He noted that in X and the Association of Z v United Kingdom a challenge under the ECHR to a ban on political advertisements on British television had failed.34 Brennan J paid some attention to this case, which was directly on point although not referred to by Mason CJ or Gaudron J. Ultimately, Brennan J concluded that the ban on paid political advertising did not violate the implied right to freedom of political expression, and the European case, although not decisive, was influential in reaching that conclusion. McHugh J, too, considered the ECHR , but found it unnecessary to discuss X and the Association of Z, because he concluded that the constitutional context in which the guarantee of freedom of expression operated in Australia meant that there was no valid analogy between the international instruments and the Commonwealth 33 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, 47 (Brennan J); Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106, 140 (Mason J), 211 (Gaudron J). 34 (1992) 177 CLR 106, 154. 8

Constitution. Curiously, in the next freedom of expression case, Theophanous v Herald Weekly Times Ltd,o Brennan J approached the relevance of the EChR in the same way as McHugh J had in Australian Capital Television. It is difficult to reconcile Brennan J's use of the ECHR in Australian Capital Television and his rejection of it in Theophanous Conclusion p to 1996 the High Court had referred to international law in various cases involving constitutional issues, though such references have not been frequent However, it cannot be said that there was any coherent approach to the use of international law in constitutional interpretation, other than in relation to the external affairs power. There was no in-depth discussion of the role that international law might play in the determination of constitutional issues or why international law might be relevant. Apart from section 51 (29), the Court has been largely reluctant to allow international law to play a significant role though there are some areas where it has been drawn on in aid of particular conclusions. When international law was used, it was generally as an indication of international values, to give added legitimacy to the right being implied into the Constitution, rather than in any determinative way Kirby j's interpretative principle would give international law a greater role to play in constitutional questions, and it is to a discussion of that approach that I will now turn. lbid 240 (1994)124ALR1 37|bd44

Constitution.35 Curiously, in the next freedom of expression case, Theophanous v Herald & Weekly Times Ltd,36 Brennan J approached the relevance of the ECHR in the same way as McHugh J had in Australian Capital Television. 37 It is difficult to reconcile Brennan J’s use of the ECHR in Australian Capital Television and his rejection of it in Theophanous. 3. Conclusion Up to 1996 the High Court had referred to international law in various cases involving constitutional issues, though such references have not been frequent. However, it cannot be said that there was any coherent approach to the use of international law in constitutional interpretation, other than in relation to the external affairs power. There was no in-depth discussion of the role that international law might play in the determination of constitutional issues or why international law might be relevant. Apart from section 51(29), the Court has been largely reluctant to allow international law to play a significant role, though there are some areas where it has been drawn on in aid of particular conclusions. When international law was used, it was generally as an indication of international values, to give added legitimacy to the right being implied into the Constitution, rather than in any determinative way. Kirby J's interpretative principle would give international law a greater role to play in constitutional questions, and it is to a discussion of that approach that I will now turn. 35 Ibid 240. 36 (1994) 124 ALR 1. 37 Ibid 44. 9