International law and the Constitution

The question of whether and to what extent international law norms ought to influence the interpretation of Australia’s Constitution is one that aroused fairly heated debate between Justices McHugh and Kirby in the High Court’s decision in Al-Kateb v Godwin handed down last Friday (which I blogged about here).

The issue also aroused a certain amount of comment box discussion. However, I don’t have the time or energy right now to distill the arguments into a succinct post. Instead, I’ve extracted and copied the passages from McHugh and Kirby’s judgments, so any interested readers can digest them and (if they wish) debate the issues here. The extracts are still fairly long, but much shorter than wading through the entire decision to find them. Here’s the extract.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Mark Platt
Mark Platt
2022 years ago

It is entirely possible that Kirby’s view will become the dominant and orthodox one in the future, as he certainly seems to believe. However I think McHugh’s views on the nature of international law are more persuasive. Most of the international treaties for instance are signed by DFAT officials and Ministers aren’t they? Indeed, couldn’t you argue this indirectly amends the constitution? If regard is to be had to those 900 treaties or so, as well as the general principles of international law, then essentially any manner of constitutional doctrine could be inferred via this fairly vague notion of international law.

I think interpreting the Constitution in conformity with international law is a fairly radical step. Certainly much more radical than interpreting statutes in conformity with treaties the Executive has signed. I’m not sure the former should be supported. It would undermine sovereignty and promote needless judicial activism.

Ken Parish
Ken Parish
2022 years ago

Mark

Yes, I agree. It’s one thing to interpret ordinary laws in accordance with a rebuttable presumption that parliament intended to legislate so as not to breach fundamental international law norms or treaties Australia has ratified, but quite another to interpet the Constitution by that means. In one sense, the latter involves a complete legal fiction in that you’d be interpreting its meaning by reference to international agreements that didn’t even exist when it was drafted, and that therefore by definition the drafters didn’t intend to avoid breaching.

However, there’s not a complete gulf between Kirby and McHugh (as Kirby observes). The key is this passage from McHugh:
Many constitutional lawyers – probably the great majority of them – now accept that developments inside and outside Australia since 1900 may result in insights concerning the meaning of the Constitution that were not present to earlier generations. Because of those insights, the Constitution may have different meanings from those perceived in earlier times. As Professor Ronald Dworkin has often pointed out, the words of a Constitution consist of more than letters and spaces. They contain propositions. And, because of political, social or economic developments inside and outside Australia, later generations may deduce propositions from the words of the Constitution that earlier generations did not perceive. Windeyer J made that point persuasively in Victoria v The Commonwealth[65]. But that is a very different process from asserting that the Constitution must be read to conform to or so far as possible with the rules of international law.
But on this less radical view of the influence of international law norms on the meaning of the Constitution, it would only be possible for such norms to inform our view of the meaning of the Constitution where the norm has been so deeply absorbed into the national fabric and psyche that we read the words that way almost automatically. It couldn’t happen by a conscious, deliberate doctrine of always presumptively interpreting the Constitution in accordance with international law. Judging from the divergent views on these comment threads, that is far from the case with the sorts of norms we’re discussing here. However sad some of us might think it, it seems it isn’t unthinkable in Australia for the executive government to be vested with unlimited powers of detention.

Of course, this says nothing about the constitutional (separation of powers) argument, which I think is far more persuasive (and which doesn’t depend on ephemeral notions like whether norms have been absorbed sufficiently into the national psyche). I certainly don’t think it’s appropriate for international law to inform constitutional interpretation in the way Kirby contends.

Mark Platt
Mark Platt
2022 years ago

Well regarding the question of indefinite detention I think the separation of powers argument is a good one, so I’d pretty much agree. The majority reasoning in this case was weak and deferential I think. Punitive, potentially indefinite detention as a power of the Executive is a chilling thought. I can only hope (really really strongly hope) the Court’s approach would be different if indefinite detention was legislated in peace time for Australian citizens. If international law informs the approach of judges generally I think it is preferable to not solely base reasoning on that. I remember in the Communist Party case I think one of the judges referred to the notion of the rule of law being part of the fabric upon which the words of the Constitution were superimposed. That sort of idea appears to be what McHugh is talking about in that para and seems defensible.
Of course, a humble first year law student such as myself can only look forward to learning about this in more detail in constitutional law!

CurrencyLad
2022 years ago

Ken:

Good idea to post the judges’ comments. As a non lawyer I think it would be very interesting to read something of the philosophy and political orientation behind the Kirby line.

Why aren’t the developments pertaining to s.51 sufficient for Australian law to be considered internationally ‘best practice’? Or is it a question exclusively of legal interpretation?

Any chance of another post on this?

Ken Parish
Ken Parish
2022 years ago

CL

I’m not sure I’m understanding what you’re getting at. Can you explain a bit more extensively?

C.L.
2022 years ago

Maybe for a non-lawyer, it’s way over my head.

But aren’t the judges essentially discussing the merits of the Australian High Court acknowledging international norms of legal interpretation and development?

The external affairs power can be used to ensure that Australian law adheres to a fairly wide variety of treaties and covenants etc.(?)

If on some of the big issues S.51 is employed in this manner over time, doesn’t Australian law in practice develop the social and cultural flexibilities Justice Kirby seems to be arguing for, even if it takes a lot longer?

Martin Pike
Martin Pike
2022 years ago

Reading the judgements of Kirby, then reading spiels by the other judges on the High Court, is like putting down Franzen to pick up Grisham.

Philosophically, as well as intellectually…

Ken Parish
Ken Parish
2022 years ago

Martin

You’re right. But I still think he’s pushing the proverbial uphill in trying to establish international law as an overt normative influence on constitutional interpretation. And he knows it: that’s why he’s deploying the full weight of his intellectual virtuosity to advance the argument.

Rarefied intellectual pyrotechnics usually fall on fallow ground in judicial discourse. Oliver Wendell Holmes summed it up: “The life of the law has not been logic: it has been experience.”

Martin Pike
Martin Pike
2022 years ago

Hi Ken,

I’m probably overly excitable about lefty judges following my liberal rights based education at NTU.

The current crop of judges on the Court have convinced me to rethink my previous love of right-on judges, and form the view that any judge appointed on a partisan political basis is inherently suspect.

What do you think of appointments on the basis of say at least 60% of both houses, in a secret ballot? The latter being an additional measure to prevent party-wide boycotting of good candidates just because they are a bit lefty or righty.

Ken Parish
Ken Parish
2022 years ago

Martin

I’m not utterly opposed to the idea, although US experience suggests that method isn’t without its drawbacks either. I think in the long run ideologically-based appointments tend to cancel each other out, and their utility is in any event reduced by Justices’ stubbornly independent streak once elected. The only one of the current crop who almost certainly wouldn’t have been approved if 2/3 Senate approval was required is Callinan J.

Moreover, I don’t think there’s anything wrong in democratic theory with High Court Justices being appointed with an eye partly on their broad political/ideological colours. Given that the opportunity to “stack” the Bench only arises fortuitously when a Justive reaches 70 and has to retire, a government will usually have to be in power for quite a few years before it can effect a decisive shift in the complexion of a strongly liberal (or strongly conservative) Bench.

You can mount a reasonable argument that broad judicial orientation should appropriately roughly follow the temper of the times and the general community, albeit with a timelag and a degree of insulation from momentary popular passions. If the Howard government is elected again, it will have been in power for 11 years by the next election, and that must be saying something about the wishes of the Australian people, however much you (or I) might wish it otherwise.

CurrencyLad
2022 years ago

I’ll take that as a no, then!

Ken Parish
Ken Parish
2022 years ago

Sorry CL

But aren’t the judges essentially discussing the merits of the Australian High Court acknowledging international norms of legal interpretation and development?

It’s already well-accepted that international norms can be used in shaping the common law, and in interpreting ordinary legislation in cases of ambiguity (by means of a presumption). But accepting international norms as overt normative influences on interpreting the Constitution itself (as opposed to in the much more diffuse way McHugh J discusses – see quote in my initial comment) is much more problematic. The Constituion is our basic law that can be changed only by the people in referendum.

The external affairs power can be used to ensure that Australian law adheres to a fairly wide variety of treaties and covenants etc.(?)

Yes, but that’s a completely separate issue. That’s about empowering the Commonwealth to enact laws that override what would otherwise be purely State powers, whereas recognising international law as a normative influence on the meaning of the Constitution is about empowering High Court Justices to alter the Constitution rather more easily than they can at the moment, and by reference to values and international instruments for which the Australian people haven’t voted. The High Court already (and unavoidably) alters the meaning of the Constitution by the interpretations it adopts, but democratic considerations suggest that its ability to do so should be fairly tightly constrained. That’s why I disagree with Kirby J despite his elegant arguments.

CurrencyLad
2022 years ago

I’ve mixed a few things up there, I can see that now. This is very interesting. To the library!

I believe in asking stupid questions so I’ll be back with better stupid ones very soon.

CurrencyLad
2022 years ago

Still, though, it could be argued that the nation’s parliaments (State and Commonwealth) have, over time, responded to the best and most widely supported movements for social, cultural and economic change. More often than not, these movements have flowed into Australia’s consciousness and agenda from overseas. Where these have had to do with political and human rights, there is case law pursuant to s.51 for the Commonwealth to seek redress against transgressor States.

That leaves the Commonwealth itself to consider.

Justice Kirby, I presume, is driven principally by a desire to see the Constitution keep pace with what he regards as ‘best human rights practice’. Now I know Kirby is brilliant in all areas of the law and is not some rights monomaniac.

Granted, then, that interpretative convention and the requirements of s.128 restrict the High Court from applying foreign normative approaches to the Constitution; and remembering, at least as I argue, that Kirby is mainly concerned with Bill of Rights sorts of questions vis-a-vis the Commonwealth: I think progessiveness in Australian law is still given a solid voice.

By means of: 1) parliaments State and Federal responding to the modern demands of their citizens in a manner where lag times between the desire for reform and actual reform is shorter than ever before; and 2) the restrictions already existing against ultra vires incursions by the States pursuant to s.51 and by the heads of power already existing in the Constitution itself.

The means of changing th Constitution is a major weakness from a Kirby liberal viewpoint I know. But might not s.128 also be seen as imposing a positive sort of immobility (aka conservatism) if it prevents Australian law moving hastily and uncritically according to the ebbs and flows of those short lag times I mentioned above?

The concept of ‘implied rights’ seems to me extremely dangerous and, for the layman and woman, virtually indistinguishable from the ‘implied prejudices’ of an elite – namely the judiciary.

I realise it’s not that simple; that there must be a whole, well developed sub-specialty of law concerned with normative constitutional interpretation. But as a corpus of academic thinking, it nevertheless has no democratically conferred prestige within Australian law and is, I presume, partially alien to our common law.

Section 128 might be the world’s most unglamorous protector of citizens’ rights within a democracy.

Al Bundy
Al Bundy
2022 years ago

You know, this might sound off the topic, but bear with me.

I am reminded of a small Op-Ed piece in the Canberra Times by Editor in Chief, Jack Waterford – proud draft dodger, bill-of-rights advocate and big time supporter of judicial activism; until, that is, the Court laid down a ruling about defamation laws that was unfavorable to the press.

Old Jack was gobsmacked by the case. He pointed out some of the erroneous assumptions and out of touch thinking that showed how little the judges understood about the media and the cynical misuse of defamation law to protect powerful vested interests. How could people who new so little about the way the media industry operated be qualified to make these changes, he asked.

Indeed, on this very rare occasion, I found myself sympathising with Waterford. His gripe was that the Court had made an ill-informed judgement that would have major implications for the way that the defamation law would be interpreted in all future cases.

At least that’s the gist as I recall it; it was, after all, a year or two ago.

Now, like Jack Waterford, I find myself standing back and looking at judges making critical decisions in which the democratic process is entirely over-ridden by the opinions of a small group of elites. I don’t presume to call them uninformed or biased, but they are only human beings, specialists in one very small area of the totality of human knowledge – the law.

Even then, it would appear that the ‘best of the best’ that make their way onto the bench of the High Court can seldom seem to agree with one another. This leads me to deep rooted suspicion that, in many cases, these Justice’s decisions are no different to any field of research…you start off with the conclusion you want, and you set out to prove it.

Kirby, of course, is my favorite. His attempt to resort to ‘International Law’ was unpredictable only in so far as I always underestimate just how far he will go to push his agenda.

You see, I don’t believe in ‘International Law’.

Now before you dismiss this as a case of wilful blindness, let me state my case.

The concept of International Law appears to be beloved by the same people who put great stock in the idea of a world government, in so far as they see great authority in the United Nations. In my opinion it is a fiction. There are no international policemen. There are ‘international courts’ but their authority is nominal, and largely dependent on the agreement of the countries involved to abide by the decision of the court. The jurists involved are almost certain to reflect the domestic agenda of their own country, anyway. Not surprisingly, decisions are hardly binding.

Probably the strongest tenet of the International Law is the treaties and conventions that states sign up. By creating domestic legislation in accordance with an international convention, governments can lend real authority to a treaty or convention, but it will only apply to certain countries – eg most countries are happy to ratify the SOLAS conventions. But many countries are totally indifferent to conventions to, say, protect the waters around Antarctica from unregulated fishing. Clearly such ‘convention-based’ law would be better described by the term multinational law, rather than the rather more grandiose concept of an all-encompassing ‘International Law’.

For example, the NAFTA agreement might be cited as an example of International Trade law. It and it’s clauses do not apply to, say, trade between Australia and Singapore.

So we return to my old friend, Kirby. Mick would have us believe that our Constitution should be interpreted with respect to International Law, particularly the nebulous gimcrackery of warm and fuzzy feelings to be found in the International Human Rights Law and International Humanitarian Law. Remind me again who is currently chairing the UN Committee on Human Rights…Sorry, but I for one don’t recognise the authority of that august body. Oh, and, of course, who are supposed to be the ‘police’ in this charade? Why, the NGOs…hand me my barf bag, please.

As for this notion of jus cogens, oh please. Brussels can sit waggling its finger at the United States all it likes, about peremptory norms on agressive war in Iraq doesn’t make a jot of difference…some kind of ‘law’, eh?

‘International Law’ is consensually based, unpoliceable and unenforcable by the wealth of international bureaucrats whose living depends on it. It is reliant on domestic legislation for its enforcement.

Which brings me back to Kirby. It doesn’t really surprise me at all that he would clutch at the idea of engaging this game of international smoke and mirrors to influence Australian jurisprudence when it suits him.

Anyway, in my very humble (and obviously not very legally watertight) opinion, the High Court should be looking to our own domestic laws to monitor the zeitgeist of social change in Australian, and drawing its conclusions in the context of a modern Australian interpretation of the law.

No need to go looking at ‘International Lore’ to interpret the constitution, thank you very much.