The Structure of Domestic Legal System in Australia - Research Paper Example

International Law Name Course Institution Lecturer Date To what extent is international law binding in the Australian legal system? Charlesworth (2006) argues that, international law comprises of the principles and rules for general application in the dealings and conduct of States that form the international organizations. It governs and regulates the international relations between states and the state with the private individuals, transnational companies and minority groups. It is established and built on international conventions, custom, general principles and progressive judicial decisions. Australian legal institution has approached the international obligations in its own unique way. According to Stone (2004), there are quite a number of international conventions that Australia is a signatory to such as the Covenant and convention on; Civil and Political Rights, elimination of Racial Discrimination, Discrimination against women and that on rights of child. However, such treaties are not merely part of Australian law on the basis that Australia has become a signatory to them. To a larger extent, Australia has taken its autonomous stand and in one way or the other it can be said to have flouted or simply disowned the international obligations. Dyzenhaus (2005) argue that, the structure of domestic legal system in Australia developed in early 19th Century. Looking at the way it has responded to the recent expansions set by international legal order, it can be said that it has not fully responded to such expansions for the last 50 years. The Australian domestic system has continued to display quite a high level of anxiety in the way it responds to international law (Charlesworth, Chiam, Hovell & Williams 2003). The interaction of both law has been a major issue since on one hand, Australia sees international law as type of universal safety net and on the other, as a source of capricious and chaotic norms which are inconsistent with those in Australian law. According to Charlesworth, Chiam, Hovell & Williams (2003), there are inconsistencies that are exhibited by Australian government in the way they approach the international legal issues within themselves and between each other. Considering that the international law provides the states to use its self-help measures to enforce their rights that are stipulated under international law, it can e argued that self-help measures has been problematic in Australia. Australia legal system depends on the legislature and the viewpoints of the executive and their interpretation of the statutes is significantly determined together rendering it ineffective to make the obligations of international conventions and covenant binding. International law has currently played an essential role in Australia legal system. It has been influential in Justice System, in area of legislation and exercise of the administrative discretion. Australia legal system can be termed as dualist as its domestic law has not automatically incorporated the public international law. There are however many ways that reveal how international law is influential on Australian domestic law. There are noticeable and apparent influences of international law to Australian legal system. The international law has influenced Australian law through legislation and in exercise of an administrative discretion. There are a number of legislations that relate to treaty obligations which the federal government has passed especially in the area of human rights (Ginsburg 2006). Gregory observes that, international law has influenced the Australia legal system mainly through statutory interpretation. Some doubts that rises in the statutory are interpreted consistent with the international law. However, the legal system adopted a dualist stand which is meant to ensure that there is no direct effect to national law due to absence of the legislation to transform such principles into rules of municipal legal order. As provided by s 51 (xxix) of Australian Constitution, the parliament can make law related to external affairs. Subsequently, Racial Discrimination Act of 1975 (Cth) is such a legislations that the Australian parliament enacted accordingly. Ginsburg (2006) proposes that, as much as the international law has not been immediately relevant to Australian legal system and politics, it has grown its significance in various areas. The issues of trade, crime, human rights, and climate change and terrorism has led to a growing significance to international law. Many issues, particularly that impact in lives of most Australia have been internationalized. There issues of trade law, indigenous issues, refugees’ policies, terrorist threats, environmental protection and security at regional and international level. This has caused the relationship between the domestic law and international law to emerge as a matter of significance. The recent issues that are involving Australian boundaries is quite a case of concern and significance in international law. The move by Australia to set a sea boundary has received criticism by nations like Indonesia and New Zealand as infringing the sea boundaries involved with their economic zones. As Walker (2002) argues, while the law has seemed remote in the past, there are urgent needs that demand Australia legal system to understand and make it transparent as possible. Domestic courts have found themselves relying on the doctrines of the international law to help in decision making following specific issues that have some international interests. In drafting the Australian Constitution, there are aspects of international law that were considered. However, their resolutions were left to the legislature, executive and judiciary. A range of positions have been developed in the last century by the three arms of the government with respect to international law. Generally, the relations between the political organs and the judicial system have led to distorted outcomes in the application of international laws. Domestic courts have therefore not confined themselves to a larger extent to the tools of interpretations as well as declaration in the approach to International decision-making. There has been shifting attitudes to international legal norms; skepticism about the application of international human rights law but Australia has shown its progress in embracing its commitments to international trade law. The executive suspicion has led to arguments that the international law infringes the Australian sovereignty. Specifically, does a breach of international law make (i) a statute, or (ii) an executive act, invalid? The international law recognizes the state’s right to engage in countermeasures that range from imposition of sanctions to break off the diplomatic relations. A centralized body such as the legal system is used to determine the existence of breach to the obligations of the international law. Such a body goes ahead to determine some suitable and specific responses to such breach. The state can function with the decisions of those individuals to determine the extent and existence of a breach as well as the extent of countermeasures. The character of international law can therefore be said to favor the more economically and politically powerful state of which Australia counts. International law has a binding nature and treaties are themselves binding due to operation of pacta sunt servanda. The maxim translated in Article 26 of Vienna Convention provides every treaty to be binding upon the parties and the party must perform it in good faith. The state consent after it signs and ratifies the international treaties and is bound by rules which are contained therein. It is crucial that the state remain bound by the obligations even when they breach or purport to withdraw their consent which sanctified such obligations at first place. Those states that have not consented to the treaty cannot be bound as the treaty cannot create rights or obligations for a state without its consent. Customary international law is however binding for all states except for those that persistently object to emerging rule in line with customary international law. (iii) Can international law directly authorize an executive action in the absence of any other authority? Ginsburg (2006) observes that, the international law has been a system that has been used for maintaining peace and security. Member states restrain themselves against anything that may interfere with the territorial integrity or another state’s independence in a manner inconsistent with international law. The Charter put in place promote collective enforcement for states. There are structures like UN Security Council that provide measures against a breaching state. It responds to measures that do not involve force such as disruption of the economic relations by either an imposition of economic sanctions or severe diplomatic relations. It can also authorize the use of force if necessary to restore peace and security. When such regulations are authorized, the international law directly authorizes executive action since lack of cooperation has dire effects to a country. Coercion where necessary can be used to ensure that the subjects of the international relations comply with them. In what ways can international law have some effect on the development of Australian law? Australia may not have experienced far reaching effects of international law due to its dualist model. There are quite a number of advantages that Australia can take if they adopt a monist model. International law has many gaps as it is a product of various actors’ negotiation from diverse cultural and social identities. It therefore tend to be conservative and with an aim of preserving the status quo (Dyzenhaus 2005). However, it can at the same time highlight the shortcomings in Australian legal system. The adoption of such principles has depended on transformation of international law in order to avoid the conflict that may arise between the international law and domestic law. According to French (2009), one development has been seen in the way Australian legal system has adopted it in some areas. The international law has significantly shaped the way Australia legal system have adopted various characteristics of inquisitorial system. In areas like anti-discrimination law, independent body has been allowed to investigate before they bring the parties in dispute together to resolve or for hearing. International customary law has successfully advanced the recognition of indigenous people. Australia has long history of assimilation that affected the rights of indigenous people. The customary law that regulated the indigenous societies has been recognized by Australian courts as considerations in reaching decisions. As Dyzenhaus (2005) observes, international law can be beneficial for Australia as it can be used to update and develop the outdated clauses for Australia legal system to make the nation better in an era of globalization. The keen desire shown by some legislatures in adopting the international law has often been an attempt to strengthen the Australian law against some perceived weakness. There have been sharp contrasting views by members of judiciary on international law that has increased uncertainty of international law position in Australian legal system. Ginsburg (2006) argues that, complexities are further aggravated by Australian tempered states’ attitudes toward international law. Since a great number of legal principles in Australia were adopted in line with the British of which some are as old as hundred years, the recent international law may render such clauses relevant and useful in operation in current decision-making. The justice system can make use of international law in legal practice to override the past precedent clauses by updating them. International cooperation has become essential in the current national conduct especially in human right area and anti-terrorism. In case Australia adopts a monism model, the international law can provide a platform for cooperation in legal aspect. The documents that Australia adopts can thus become binding for public such as the Bill of Right. French (2009) argues that, adoption of international law can provide Australia with the last chance in justice when legal institutions like domestic court fails to act if justice can use international law like the treaty or customary international law. Dualism has been ineffective in enacting the result of international units like the court. Australia local court can benefit by directly using the doctrine that are developed the international court. If international law is given priority, a national judge or citizen can directly invoke the international law as if it was a national law. The judge can invalidate the national rule if it contradicts with international rules. From the viewpoint of human rights, international law has some advantages including the much limited freedom of press. Should international law norms be used when interpreting the Australian Constitution? Kirby (2010) points out that, international law category covers a variety of different norms including the customary international law, multilateral and bilateral treaties. There includes treaties to which Australia is a party and which it has chosen not to ratify as well as other it is not eligible to ratify. Some international law forms a basic part of legal architecture. There are some international laws that are too important to Australia in the world for its constitutional jurisprudence to ignore. Some provides much useful normative and functional insights that constitutional settlement can draw. International law is not transient and Australia cannot dismiss it as a collection of foreign fashions as it has shown in the past. The divisions and sharp contrast that has continued to dominate the Supreme Court decisions has shown that there are consistent attacks on international law. International law is distinct as some of its norms are particularistic and temporary. Such distinctions should guide on how different norms can be used in constitutional interpretation. Existence of such distinctions should not be used to disqualify an entire category of international law from consideration. Methodologically, Australia should be realistic about constitutional interpretation. On one hand, it has to be certainly alert due to the defects of international law. On the other hand, it should not contrast the rational account of international legislative with a fictionalized account of Australia constitutional interpretation (French 2009). There are five views that ought to be subjected to careful reasoning and be expressed with a more analytical force. As Charlesworth, Chiam, Hovell & Williams (2003) points out, the judicial approaches to international law ought not to be affected by the prevailing attitudes, assumptions and anxieties about the international law. Australia need to move from a view that the international law is vague and pervasive, irrelevant to the domestic context of legal system, requires special expertise and its use as overstepping the bounds of judiciary. According to Hovell & Williams (2005), some countries like South Africa which have incorporated international law in their domestic legal system in different ways and so should Australia. Self-executing provisions approved by national parliament becomes part of South Africa law unless inconsistent with the Act of Parliament or Constitution. Customary international law that is consistent with the Constitution forms part of their law. The court prefers reasonable interpretation of legislation consistent with the international law over any other alternative interpretation in interpreting legislation. The principle applies equally to the constitution and the Bill of Rights. As the court, forum or tribunal interprets the Bill of Rights, they must consider the international law. Walker (2002) observes that, Australia Constitution should establish such a framework to use international law in interpretation of constitution. Firstly, the courts should then consider international law in interpretation of the Bill of Rights. Secondly, in interpreting a Bill of Rights and the whole Constitution, the courts need to prefer reasonable interpretation consistent with the international law over an alternative interpretation consistent with such law. Thirdly, to an extent that Constitution is in a way inconsistent with the international law, the Constitution will prevail. References Charlesworth, H. (2006). No Country is an Island: Australia and international law. UNSW Press. Charlesworth, H., Chiam, M., Hovell, D., & Williams, G. (2003). Deep anxieties: Australia and the international legal order. Sydney L. Rev., 25, 423. Dyzenhaus, D. (2005). The rule of (administrative) law in international law. Law and contemporary problems, 68(3/4), 127-166. French, R. (2009). International Law and Australian Domestic Law*. Supreme Court of New South Wales Annual Conference. Hunter Valley, Pokolbin. Ginsburg, T. (2006). Locking in democracy: Constitutions, commitment and international law. University of Illinois Legal Working Paper Series, 55. Gregory, R. The United Nations as a Source of International Legal Authority. Hovell, D., & Williams, G. (2005). Tale of Two Systems: The Use of International Law in Constitutional Interpretation in Australia and South Africa, A. Melb. UL Rev., 29, 95. Kirby, M. (2010). Constitutional Law and International Law: National Exceptionalism and the Democratic Deficit. U. Notre Dame Austl. L. Rev., 12, 95. Stone, C. D. (2004). Common but differentiated responsibilities in international law. American Journal of International Law, 276-301. Walker, K. (2002). International Law as a Tool of Constitutional Interpretation. Monash University law Review. Vol 28, No 2. Read More