Week 11: Human Rights and International Law
This weeks material is the last of the formal study topics for the term. I was glad of this as it was also one of the more convoluted topics, with the links to human rights and international law. It was also the conclusion of the discussions on statutory presumptions, which has been the focus of the last three topics of the course (because this was such a broad topic).
The statutory presumption that legislation will not interfere with fundamental human rights is considered one of the strongest of all statutory presumptions, and as such, still used a lot in recent times. These are manifested through the ‘principle of legality’, and are that;
- Individuals are bound by the law but are otherwise free to determine how they live their lives;
- all individuals enjoy fundamental rights and freedoms;
- government action against an individual should only be according to law;
- laws should not generally be retroactive;
- laws should not apply only to certain groups but to everyone; and
- laws should only be made by a democratically elected legislature
While this statutory presumption is still one of the strongest, and still often used, the historical presumption that statues do not interfere with common law is obviously not longer true, due to the increased amount of legislative law. And the above list is by not means exhaustive, as there are several other rights that are considered fundamental human rights.
If I wasn’t confused enough by exactly how human rights fits into the equation, wait… there’s more! International law needs to be considered. Now, many of these ‘fundamental human rights’ are based on international principles – but that is not of any real importance – it’s just tipping the hat to acknowledge that we’ve adopted a similar approach to the international community. The real reason to consider international law is due to the number of treaties and conventions that Australia has ratified or signed. As a result, we’ve agree be bound by the terms and conditions expressed in the treaty or convention. And while many judges will consider that treaties and conventions are the only sources of international law, there are a few more – there are also international custom and also general principles of law recognised by ‘civilised nations’ . This is where things get a bit murky, as they are a vague source of law.
Probably the last important fact to know about international treaties is how they’re incorporated into the Australian legal system. Australia uses what is known as a ‘dualist approach’, as opposed to a ‘monist approach’. In a monist approach, the treaty would be automatically incorporated into domestic law when the government ratifies the treaty (as happens in the United States). In Australia, the Executive ratifies the treaty, and then the Legislature passes domestic legislation which give it effect. They can either do this by enacted the substance of the treaty in an Act, appending it to an act (in a Schedule), or simply giving executive discretion to the relevant Minister and empowering them to make the necessary changes.
All in all, this is a complicated topic, and I’m glad that I don’t have to deal with it in the near foreseeable future!