Case Studies of International Law: Newcrest Mining (WA) Ltd versus Commonwealth and Western Australia Versus Ward

Abstract

This essay brings an opinion to 2 cases: Newcrest Mining (WA) Ltd v Commonwealth and Western Australia v Ward. The first case argues that Australian laws overlook certain fundamental rights that would otherwise be covered by interpreting international laws. Therefore, it should be incorporated into the interpretation process of legislation and the constitution. The second case dissents this to be more of a personal agenda and a potential breach of the separation of powers. If courts look to international laws to resolve ambiguities in the constitution no matter the intention, it will influence lawmakers and breach the separation of powers. The Constitution will be analysed to draw a fair and direct comparison of why the courts should have the right to co-interpret international law(s) with the constitution whenever the scope of ‘fundamental rights’, limited to human rights specifically, is unspecified, and why courts should do so. Each issue will be analysed from various perspectives with regards to international law and conclude why the Australian courts should adopt Kirby J’s reasoning for a better future.

Public perception: International laws in Constitutive interpretation

The Australian Constitution has been both accepted and rejected to be interpreted in such a way that it is consistent with international law by the HCA in multiple cases. Though developments after the year 1900 may be considered in constitutional interpretation, it does not mean that international law will definitely apply in those areas.[footnoteRef:5] In respect of parliamentary debates and reviews of HCA Judgements, the similarities identified from both clash with each other,[footnoteRef:6] forming a nationwide conflict that sparks reclusive behaviour from politicians or judges alike at the mere mention of the topic. The Australian constitution currently excludes its own Bill of rights and it is for this reason that judges had to refer to this for a better understanding of principles and values in Human Rights.

Australia’s Stance on a Bill of Rights

Former Australian Prime Minister John Howard had argued that having a Bill of rights would cause a power shift from elected politicians to the administrative and judiciary. Politicians should also be trusted to do the 'right thing' instead of limiting what parliament may legislate over. In 1985, Lionel Bowen had tried to initiate a bill of rights which passed through the House of Representatives but was claimed as an ‘outrage’ and refused by the Senate. Only 3 Australian states currently have a human rights Act. Incidentally, the judiciary has mandated that it shall not interpret legislation to interfere with basic human rights unless the expression to interfere is evident. These facts demonstrate Australia’s concurrent anomalous stance on this topic.

Callinan J’s concerns

His theory is that Courts should not influence the legislative assembly by using international laws in correlation with the Constitution as interpretative materials for conflicting materials. The doctrine of Separation of Powers should be strictly adhered to without tampering in this case. However, the crucial basis for his reasoning was where the “legislation is not genuinely ambiguous”, it was referring to the Native Title Act clearly allowing partial extinguishment, and that there was no specific submission in international law on that matter.

Kirby J’s theory

The Australian Constitution lacks a Bill of Rights and only briefly mentions certain personal rights in legislation. In the ‘Interpretative Principle’ section of his written judgement, he wrote that “The duty of the Court is to interpret what the Constitution says and not what individual judges may think it should have said”. In doing so, it demonstrated consideration of Callinan J’s reasoning in this principle. He then acknowledged that international law holds in subsistence the existence of human rights and since Australia was included in several treaties, Parliament had already incorporated international law in its development in legislation and common law. It was also imperative to consider this principle because it was understood to be the law abided by most international communities that Australia is part of.

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Why should International laws be included in interpretation?

The intent of International law is not to limit the legislative power of Australia but rather, to act as the governing integrity of relations between States which facilitates the roles, duties and responsibilities of all involved. Treaties, conventions, customary principles and other recognized principles such as jus cogens are only adhered to since it is mostly in the best interest of a State to do so.[footnoteRef:23] Being part of treaties entitles States to enjoy legal benefits and endorse obligations of other States in exchange with its performance of similar obligations as well. One example that Australia demonstrates is The International Bill of Human Rights.

Point of Convergence

Kirby J’s reasoning does not necessarily discredit Callinan J’s since human rights under international law can be used as an extrinsic interpretation material in conjunction with the Constitution only when ambiguity is clearly present. Otherwise, the constitution should always precede case law created via interpreting international law.[footnoteRef:26] By acquiring a means of interpretation that is synonymous with fundamental human rights under international tribunals, not only would it ensure that international obligations are always considered when issuing verdicts, but a more ‘fairer’ approach would also be available when dealing with human rights.

Other Factors

Another argument that can be put forth is though the Constitution[footnoteRef:28] gives original jurisdiction to the High Court in all matters under any treaty, it does not mean that any or all treaties that Australia is involved in must or should be considered in interpretations. The courts can only interpret legislation in accordance with the Constitution, but they are not compelled to use international materials unless they are incorporated into domestic law.

Conclusion

I would agree more with Kirby J.

Even if the courts look to international laws to interpret ambiguity in the constitution, it would not necessarily breach the separation since the ‘will of parliament to enact laws based on international obligations is already in effect. The courts are merely honouring the decision by carrying out their duties.

I fundamentally disagree with Callinan J that on any occasion, doing so potentially breaches the separation of powers. Judges are not legally bound to use international law in their constitutive interpretation. The materials are available should they require a deeper understanding, but they are always required to adhere strictly to the constitution first-hand. However, the extent of whence Australia can use these materials should also be considered. Due to her unique geographical, environmental, political, socio-economic, and heritage statuses, not every piece of international law is applicable as part of the interpretation process and it should be left up to the discretion of the courts as they see fit.

This conflict may be based on minor misrepresentations or exaggerations. Australia may retain its stance on its bill of rights. However, it should also be noted that Australia is the only country with a common law system whose majority rejects a bill of rights.[footnoteRef:31]. Politicians have a duty to honour treaties and conventions by drafting domestic laws to ensure compliance, therefore Judges adopting human rights principles from International law to create case law is no different.

Bibliography

A Articles/Books/Reports

1. Andrew T. Guzman, ‘International Law: A Compliance Based Theory’ (Working Paper No 47, School of Law, University of California, April 2001)
2. Bouwhuis, Stephen, ‘International Law by the Back Door?’ (1998) 72 Australian Law Journal 794
3. Charlesworth, Hillary et al, ‘Deep Anxieties: Australia and the International Legal Order’ (2003) 25(4) Sydney Law Review 423
4. Courtney Hillebrecht, ‘The Domestic Mechanisms of Compliance with International Human Rights Law: Case Studies from the Inter-American Human Rights System’ (2012) 34(4) Human Rights Quarterly 959
5. Goldsmith, Jack L. and Eric A. Posner, The Limits of International Law (Oxford University Press, 2005)
6. Hovell, Devika and George Williams, ‘A Tale of Two Systems: The Use of International Law in Constitutional Interpretation in Australia and South Africa’ (2005) 29(1) Melbourne University Law Review 95
7. Laura Thomas, ‘Can international human rights law have a legitimate influence on the interpretation of the Australian Constitution?’ (2005) 14(1) Polemic 24
8. Opeskin, Brian R. & Donald R. Rothwell, International Law and Australian Federalism (Melbourne University Press, 1997)
9. Walker, Kristen, 'International Law as a Tool of Constitutional Interpretation' (2002) 28 Monash University Law Review 85
10. Williams, George, Human Rights under the Australian Constitution (Oxford University Press, 1999)

B Cases

1. Al-Kateb v Godwin (2004) 208 ALR 124
2. Horta v The Commonwealth (1994) 181 CLR 183
3. Lamshed v Lake (1958) 99 CLR 132
4. Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji (2004) 208 ALR 201
5. NewCrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513
6. Polites v The Commonwealth (1945) 70 CLR 60
7. Potter v Minahan (1908) 7 CLR 277
8. Re Woolley; Ex parte Applicants M276/2003 by their next friend GS (2004) 210 ALR 369
9. Western Australia v Ward (2002) 213 CLR 1

C Legislation

• Australian Constitution

1. Charter of Human Rights and Responsibilities Act 2008 (Vic)
2. Human Rights Act 2004 (ACT)
3. Human Rights Act 2019 (Qld)
4. Human Rights and Equal Opportunity Commission Act 1986 (Cth)
5. Native Title Act 1993 (Cth)

D Treaties

• Charter of the United Nations ch I–II.

1. International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976)
2. International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976)

• Statute of the International Court of Justice

1. Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948)
2. Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948)
3. Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980)

E Other

1. Commonwealth, Parliamentary Debates, Senate, 28 March 1985
2. Department of Foreign Affairs and Trade, ‘Treaty making process’ (2020)
3. John Howard, ‘2009 Menzies Lecture by John Howard’, The Australian (online 21 August 2009) , archived at
4. Kirby, Justice Michael, ‘The Growing Impact of International Law on the Common Law’ (Lecture, University of Adelaide, 14 October 2009)