Federal Treaty Jurisdiction

7/28/2019 Federal Treaty Jurisdiction

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Federal treaty jurisdiction: A belated reply to

Mark Leeming SCOliver Jones*

This article revisits the 1999 comment by Mark Leeming SC on federal treatyjurisdiction. By s 75(i) of the Constitution, the jurisdiction consists of mattersarising under any treaty. Where those matters do so directly, s 38(a) of theJudiciary Act 1903 (Cth) makes the jurisdiction largely exclusive to the HighCourt. Mr Leeming concluded that s 38(a) took its content from the handful oftreaties that apply without implementing legislation. The author disagreeswith this conclusion. Although they take effect without implementinglegislation, Mr Leemings treaties do not independently bring rights andobligations to the domestic plane. They are instead adopted by a domesticlegal instrument or rule. Accordingly, they fall short of the directness that

s 38(a) requires. The author proposes that s 75(i) and s 38(a) instead enablethe High Court to make declarations on whether, in the particular circum-stances of an individual or entity, the Commonwealth has breached itsobligations under an unincorporated treaty regarding the rights of personswithin Australian territory.

INTRODUCTION

It is nearly a decade since a comment by Mark Leeming SC on federal treaty jurisdiction appeared inthe Public Law Review.1 The piece remains one of the most thorough and constructive examinationsof s 75(i) of the Constitution and s 38(a) of the Judiciary Act 1903 (Cth) ever undertaken.Mr Leemings central conclusion was novel: jurisdiction in matters directly arising under treaties,made exclusive to the High Court by s 38(a), was only enlivened by the handful of treaties thatapplied without implementing legislation.

Mr Leemings article has been cited by the High Court and

2

his central conclusion has even beenmentioned in argument before that court.3 It has also been examined by the Australian Law ReformCommission, in a discussion noting the view that federal treaty jurisdiction had potential for futuredevelopment.4 The significance of the article, and the jurisdiction itself, make it worth investigatingwhether Mr Leemings views remain valid. This article seeks to reconsider Mr Leemings centralconclusion, and to argue that, in the authors view, there is a different, modern and exciting role fors 38(a).

MR LEEMINGS CONCLUSIONS

Mr Leeming appropriately avoided opining on the precise scope of s 75(i). Back then, a debate ragedabout whether the provision embraced the interpretation of implementing legislation (legislation thatgives effect to provisions of treaties concluded by Australia in domestic law) or was instead confined

* LLB (Hons) BA (Intl Studies) (UTS); BCL (Oxon). University Medallist in Law 2001, British Chevening Scholar 2004-2005.

Faculty of Law, University of Hong Kong. Formerly Associate, Public International Law and International CommercialArbitration, Herbert Smith LLP, London. E-mail: ([email protected]). The author would like to thank the anonymousreferee, Assoc Prof Damien Cremean, Mr Gim Del Villar, Ms Silvia Farre-Munoz, the Hon Leslie Katz SC, Mr MarkLeeming SC and Mr David Lewis. The views expressed in this article are those of the author and do not necessarily reflect thoseof any person or body with whom he is associated.

1 Leeming M, Federal Treaty Jurisdiction (1999) 10 PLR 173.

2Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 33, n 100 (McHughand Gummow JJ); 77 ALJR 699; 195 ALR 502; [2003] HCA 6.

3Ruhani v Director of Police [2004] HCA Trans 440.

4 Australian Law Reform Commission, ALRC 92: The Judicial Power of the Commonwealth: A Review of Judiciary Act 1903(Cth) 1903 and Related Legislation (2001) at [7.15] and [7.23] (http://www.alrc.gov.au (viewed 2 May 2007)).

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to some less interstitial consideration of treaties, without detailing what form that might take.McLelland J, in Bluett v Fadden (1956) 56 SR (NSW) 254; 73 WN (NSW) 193 (Bluett), and Kirby J,

in Re East; Ex parte Nguyen (1998) 196 CLR 354; 73 ALJR 140; 159 ALR 108; [1998] HCA 73(East), subscribed to the former.5 Miles CJ, in R v Donyadideh (1993) 115 ACTR 1; 114 FLR 43(Donyadideh), believed in the latter.6 Since Mr Leemings article, Callinan and Heydon JJ, in Ruhaniv Director of Police (2005) 222 CLR 489; 79 ALJR 1431; 219 ALR 199; [2005] HCA 42 (Ruhani),have gone some way toward joining Miles CJ.7

However, as Mr Leeming pointed out,8 the debate does not matter a great deal. Even if McLellandand Kirby JJ were correct, the interpretation of an implementing statute would almost certainlyproduce a co-extensive matter arising under a law made by the Commonwealth Parliament.Accordingly, the Federal Court,9 State courts10 and the Northern Territory Supreme Court11 wouldretain full jurisdiction. Even the High Court would, on certain occasions, be in the same position.12

The ACT Supreme Court would also be unaffected, as it has a comprehensive jurisdiction for theadministration of justice in the ACT.13

The more important question is when matters arise directly under a treaty. For s 38(a) gives the

High Court a jurisdiction in such matters that is exclusive of the several courts of the States.

14

Inother cases, those courts may exercise federal treaty jurisdiction.15 Through some opaque drafting, theSupreme Court of the Northern Territory is in the same position.16

Yet, despite Mr Leemings assumption to the contrary,17 the High Courts jurisdiction unders 38(a) is not necessarily exclusive of the Federal Court. The latter is not engaged by the provision. On

5Bluett v Fadden (1956) 56 SR (NSW) 254 at 260-261; 73 WN (NSW) 193; Re East; Ex parte Nguyen (1998) 196 CLR 354 at385; 73 ALJR 140; 159 ALR 108; [1998] HCA 73.

6R v Donyadideh (1993) 115 ACTR 1 at 6; 114 FLR 43.

7Ruhani v Director of Police (2005) 222 CLR 489 at 579; 79 ALJR 1431; 219 ALR 199; [2005] HCA 42.

8 Leeming, n 1 at 174.

9Judiciary Act 1903 (Cth), s 39B(1A)(c).

10Judiciary Act 1903 (Cth), s 39(2); Constitution, s 76(ii). See also Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth),

s 4(1). This would still be the case where Western Australian courts exercise jurisdiction over the Indian Ocean Territories, sincesuch jurisdiction is conferred as if the Territory were part of Western Australia: see Cocos (Keeling) Islands Act 1955 (Cth),s 15AAB(1); Christmas Island Act 1958 (Cth), s 14B(1).

11Judiciary Act 1903 (Cth), s 67C(c); Northern Territory Supreme Court Act 1961 (Cth) (repealed), ss 15(1)(a) and 15(2);Judiciary Act 1903 (Cth), s 39(2) (as at 31 December 1910). See also Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth),s 4(1). This would still be the case where the Northern Territory Supreme Court exercises jurisdiction over the Territory ofAshmore and Cartier Islands, as a broad jurisdiction is conferred in and in relation to the Territory: see Ashmore and Cartier

Islands Acceptance Act 1933 (Cth), s 12(1).

12 Constitution, s 76(ii). See, eg Ruhani v Director of Police (2005) 222 CLR 489; 79 ALJR 1431; 219 ALR 199; [2005] HCA42.

13Australian Capital Territory (Self-Government) Act 1988 (Cth), s 48A. See also Jurisdiction of Courts (Cross-Vesting) Act1987 (Cth), s 4(1). The ACT Supreme Court would also be unaffected where it exercises jurisdiction over Jervis Bay and theAustralian territories in and around Antarctica, as that jurisdiction is, one way or another, equally broad: see Jervis Bay

Acceptance Act 1915 (Cth), s 4D(1); Heard and McDonald Islands Act 1953 (Cth), s 9(1); Australian Antarctic Territory Act1954 (Cth), s 10(1). The Supreme Court of Norfolk Island is in the same position, including when it exercises jurisdiction over

the Coral Sea Islands: see Supreme Court Act 1960 (NFI), s 5(1); Coral Sea Islands Act 1969 (Cth), s 8(1).14 For the reasons given at n 10, the exclusion would still apply where Western Australian courts exercise jurisdiction over theIndian Ocean Territories.

15Judiciary Act 1903 (Cth), s 39(2).

16 See legislation at n 11, which defines the jurisdiction of the Northern Territory Supreme Court by reference to that of its SouthAustralian counterpart as at 31 December 1910. The exclusion would probably not apply where the Northern Territory Supreme

Court exercises jurisdiction over Ashmore and Cartier Islands, as that jurisdiction is broad and, unlike Western Australia, is notconferred as if the islands were part of the Northern Territory.

17 Leeming, n 1 at 174 and 178. See also Minogue v Williams [1999] FCA 1585 at [14] (Weinberg J), affirmed Minogue vWilliams (2000) 60 ALD 366 at 374 (the court); [2000] FCA 125; Matchett v Deputy Commissioner of Taxation (2000) 158 FLR171 at 186 (OKeefe J); [2000] NSWSC 975.

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the other hand, it is not subject to a specific conferral of federal treaty jurisdiction, to any degree.Nonetheless, the Federal Court would appear to have all such jurisdiction, including that specified in

s 38(a), to the extent that it falls within another conferral. The most obvious of these has already beentouched upon: the Federal Courts broad jurisdiction by s 39B(1A)(c) of the Judiciary Act toadjudicate in matters arising under laws of the Commonwealth Parliament. The Supreme Court of theACT is in a similar position. While it too escapes s 38(a) and lacks a specific conferral with respect totreaties, it enjoys a sufficiently broad conferral of jurisdiction by federal law in relation to the ACT.18

Still, even with its impact confined to the States and the Northern Territory, the scope of s 38(a)remains the aspect of federal treaty jurisdiction with the most practical significance. So it was to thisquestion that Mr Leeming devoted the remainder of his article.19 In essence, he noted that there werea number of exceptional situations where treaties took effect in Australian law without implementinglegislation. Those situations elucidated the High Courts jurisdiction under s 38(a).20

Mr Leeming also addressed the issue of whether matters referable to implementing legislationattracted s 38(a). He spoke of the very real problems21 that s 38(a) would produce, if it were tocover such matters.22 He also recounted, without protest, the view expressed by Senator OConnor in

the Parliamentary debates on s 38(a) to the effect that some United Kingdom implementing legislationapplying in Australia by paramount force (the Extradition Act 1870 (Imp)), should fall outside theprovision and be left to State courts.23 The foregoing implies that Mr Leeming, quite understandably,considered all matters referable to implementing legislation to escape the reach of s 38(a).

Mr Leeming felt similarly about Minister for Immigration and Ethnic Affairs v Teoh (1995) 183CLR 273; 69 ALJR 423; 128 ALR 353 (Teoh), then in its heyday. He concluded that, while ratificationof a treaty could generate a legitimate expectation such that a decision-maker must accord proceduralfairness in relation to conformity with the treaty, a proceeding to enforce this obligation did notconstitute a matter directly arising under the treaty. Rather, it directly arose under the legislationempowering the decision-maker.24 This was because, while the treaty informed the content of thedecision-makers obligation to accord procedural fairness, the obligation itself was created by theenabling legislation.

Teoh can be put to one side for now. Since Re Minister for Immigration and Multicultural and

Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; 77 ALJR 699; 195 ALR 502; [2003] HCA 6(Lam), it is questionable whether the judgment will have any ongoing role.25 In any event, it is hard tofault Mr Leemings view that a Teoh claim does not engage s 38(a).

A PROBLEMATIC APPROACH

There remains Mr Leemings central conclusion: that the scope of s 38(a) is dictated by treaties thatoperate sans implementing legislation. This is less easy to pass by. Treaties of the kind identified byMr Leeming undoubtedly exist. The requirement of having implementing legislation in order for a

18 See legislation at n 13. On the same basis, this would also be the case where the ACT Supreme Court exercises jurisdictionover Jervis Bay and the territories in and around Antarctica. The position of the Supreme Court of Norfolk Island isindistinguishable, including with respect to the Coral Sea Islands. The ACT Supreme Court would once instead have been

subject to s 38(a), as its jurisdiction was defined by reference to that of the New South Wales Supreme Court: see AustralianCapital Territory Supreme Court Act 1933 (Cth), s 11 (repealed).

19

Leeming, n 1 at 175-178, esp 178.20 Leeming, n 1 at 174.




24 Leeming, n 1 at 177-178.

25Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 32-34 (McHughand Gummow JJ), 38 (Hayne J) and 45-48 (Callinan J); 77 ALJR 699; 195 ALR 502; [2003] HCA 6. See also the abolition ofTeoh claims under South Australian law by Administrative Decisions (Effect of International Instruments) Act 1996 (SA), s 3.Compare Thanh Tra Lam v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 184.

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treaty to have domestic effect can be traced back, in Australia, to a decision of the Privy Council in thelate 19th century: Walker v Baird[1892] AC 491. Yet, even on that occasion, a handful of treaties were

said by counsel to be exempt from the rule.

26

Similar statements have since been made or adopted bythe High Court.27 It was, then, defensible for Mr Leeming to identify four such treaties: treatiesrecognising foreign governments, treaties concluding peace, treaties determining internationalboundaries and, arguably in certain circumstances, treaties on migration. However, Mr Leemingsconclusion that those treaties satisfy s 38(a) is now untenable.

The meaning of s 38(a)

In evaluating Mr Leemings views, a discussion of the meaning of s 38(a) is firstly required. Clearly,the provision takes its meaning from s 75(i). And to understand the latter, it is necessary to return tothe debate on whether the interpretation of implementing legislation attracts s 75(i). As indicated, thatdebate lacks practical significance. However, several of its participants have discussed s 75(i) in broadterms. The starting point is that, like all other conferrals of jurisdiction in Ch III of the Constitution,the word matter in s 75(i) requires an immediate right, duty or liability to be established by thedetermination of the Court.28 In Bluett, McLelland J argued that, so understood, a matter arises under

a treaty wherever the decision of the case depends upon the interpretation of the treaty.29

As a result,s 75(i) embraced cases requiring the construction of implementing legislation.

In Donyadideh, Miles CJ rejected this view. Essentially, his Honour concluded that McLelland Jwas impliedly extending s 75(i) to matters that merely involve the interpretation of treaties. This wasimpermissible. A companion conferral of jurisdiction, s 76(i) only acquired such a reach with itsexpress terms matters arising under the Constitution or involving its interpretation. Section 75(i)could not be allowed to do the same, without equally clear drafting. Rather, the provision should takeits cue from another companion conferral, s 76(ii), which provided for jurisdiction in matters arisingunder laws made by the Commonwealth Parliament. The High Court had interpreted s 76(ii) so that itwould operate where the right, duty or liability in question owed its existence to a federal statute,depended on the statute for its enforcement or had its source in that instrument. Section 75(i) was tobe interpreted in the same way, with the result that it would only embrace rights, duties or liabilitieshaving a corresponding relationship with treaties.30 Unfortunately, Miles CJ provided no indication of

when this would occur.In East, Kirby J derived inspiration from the positions of both McLelland J and Miles CJ. He

accepted that s 75(i) could operate in the circumstances described by Miles CJ. 31 However, Kirby Jamplified Miles CJs words, stating that s 75(i) would apply wherever directly or indirectly, the rightclaimed or the duty asserted owes its existence to the treaty, depends upon the treaty for itsenforcement or directly or indirectly draws upon the treaty as the source of the right or duty incontroversy (emphasis added).32 With this expansion in hand, Kirby J was able to agree withMcLelland J that the jurisdiction could be engaged by matters that had no other connection with atreaty than that they depend[ed] on the construction or effect of the treaty. 33

In supporting McLelland J, Kirby J was untroubled by Miles CJs argument that, read in light ofs 76(i), McLelland Js view impermissibly added words to s 75(i) that had been expressly withheld. To

26 Walker v Baird [1892] AC 491 at 492. Note, however, the Boards lack of enthusiasm at 497.

27

See, eg Victoria v Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416 at 480-482 (Brennan CJ, Toohey,Gaudron, McHugh and Gummow JJ); 70 ALJR 680; 66 IR 392; 138 ALR 129.

28Re Judiciary and Navigation Acts (1921) 29 CLR 257 at 266 (Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ); 27 ALR193. See also, eg Agtrack (NT) Pty Ltd v Hatfield (2005) 223 CLR 251 at 260-262 (Gleeson CJ, McHugh, Gummow, Heydonand Hayne JJ); 79 ALJR 1389; 218 ALR 677; [2005] HCA 38.

29Bluett v Fadden (1956) 56 SR (NSW) 254 at 261; 73 WN (NSW) 193.

30R v Donyadideh (1993) 115 ACTR 1 at 6; 114 FLR 43.

31Re East; Ex parte Nguyen (1998) 196 CLR 354 at 385; 73 ALJR 140; 159 ALR 108; [1998] HCA 73.




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Kirby J, this represented an inappropriate use of the principle of construction expressio unius etexclusio alterius. His Honour also rejected a submission by the Commonwealth that would have

precluded at least the position of McLelland J, namely that s 75(i) was a drafting error without anymeaningful operation.34 As a jurisdictional provision in a constitutional setting, it was insteadnecessary to give the provision a broad reach. In this respect, Kirby J drew upon a well-establishedprinciple of construction that provisions conferring jurisdiction should be interpreted generously.35

In East, Kirby J made another significant contribution to the law in this area. As indicated, Kirby Jreformulated Miles CJs description of s 75(i) to extend the provision to the interpretation ofimplementing legislation. His Honour did so by adding the words directly or indirectly36. It appearsto follow that Kirby J considered such interpretation to be a matter arising indirectly under a treaty,which would thus fall outside s 38(a). However, Kirby J provided no express indication of when treatymatters would arise directly and, therefore, satisfy s 38(a).

Where, then, have McLelland J, Miles CJ and Kirby J left us in ascertaining the meaning ofs 38(a)? We know that s 75(i) may or may not extend to matters that merely depend on theconstruction or effect of a treaty, specifically the interpretation of implementing legislation. However,

if the provision does so, those matters can be said to arise under a treaty indirectly and, as such, do notattract s 38(a). There is no reason to doubt this result. The key question, though, is whether theirHonours have laid the groundwork for discovering when matters arise directly under a treaty and thusfall within s 38(a).

Let us return to the terminology of Miles CJ, namely that a matter arises under a treaty when theright, duty or liability in question owes its existence to a treaty, depends upon a treaty for itsenforcement or has its source in a treaty? His Honour borrowed this language from statements ons 76(ii) by Latham CJ in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett(1945) 70 CLR 141; [1945] ALR 245 and Walsh J in Felton v Mulligan (1971) 124 CLR 367; 45ALJR 525; [1972] ALR 33.37 Both were unanimously endorsed by the High Court in LNC Industries

Ltd v BMW (Australia) Ltd (1983) 151 CLR 575; 57 ALJR 701; 49 ALR 599 (LNC).38 As Kirby Jnoted in Ruhani, such descriptions of the ambit of s 76(ii) refer to matters that arise both directly andindirectly under that provision.39 Further, as already discussed, in East his Honour gave the languagea similar reach in the context of s 75(i). Accordingly, the case law on s 76(ii), in its application tos 75(i), cannot constitute the test for the application of s 38(a).

Still, this case law sows the seed for the meaning of s 38(a). In Ruhani, Kirby J referred to adecision of Dixon J on s 76(ii), Federal Capital Commission v Laristan Building and Investment CoPty Ltd (1929) 42 CLR 582 (Laristan). It was also endorsed in LNC.40 In Laristan, Dixon J held thata matter arose under a law made by Parliament, for the purposes of s 76(ii), when the relevant rightwas conferred by regulations made under an ordinance, which was itself made under s 12 of the Seatof Government (Administration) Act 1910 (Cth) (Administration Act).41

Kirby J states [t]he law invoked was thus twice removed42 and, as such, was an instance of amatter arising indirectly. In Laristan itself, Dixon J undertook a similar analysis, when he suggested,



36

Re East; Ex parte Nguyen (1998) 196 CLR 354 at 385; 73 ALJR 140; 159 ALR 108; [1998] HCA 73.37R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at 154; [1945] ALR 245;Felton v Mulligan (1971) 124 CLR 367 at 408; 45 ALJR 525; [1972] ALR 33.

38LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575 at 581 (Gibbs CJ, Mason, Wilson, Brennan, Deane andDawson JJ) and 582-583 (Murphy J); 57 ALJR 701; 49 ALR 599.


40LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575 at 581 (Gibbs CJ, Mason, Wilson, Brennan, Deane andDawson JJ) and 582-583 (Murphy J); 57 ALJR 701; 49 ALR 599.

41 Federal Capital Commission v Laristan Building and Investment Co Pty Ltd (1929) 42 CLR 582 at 585-586.


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in obiter, that matters arose indirectly under a law made by Parliament where a claim of right wasmade under the statutes, subordinate legislation and common law which continued in force in the ACT

by virtue of ss 4 7 of the Administration Act and s 6 of the Seat of Government Acceptance Act 1909(Cth).43 LNC itself can be classified in the same way. In that case, a matter arising indirectly wascomprised by an action to enforce a contract for the transfer of rights conferred by a licence grantedunder regulations, which were in turn made under a federal statute.44

It is submitted that these cases yield the following principle: a matter arises indirectly under afederal statute where the right, duty or liability in question is immediately referable to an instrument orrule that enjoys the force of law, but is separate from the statute itself. The instrument or rule may beutilised by the statute. However, it has a distinct legal form, whether as subordinate legislation, anexecutive decision, a contract or a provision of the common law. Any may preclude a relationship ofdirectness between the relevant right, duty or liability and a statute. On the other hand, administrativepolicies or other measures lacking strict legal effect will not suffice. Nor will an instrument that merelyhas a fleeting role in the application of statutory rights, duties or liabilities, such as a proclamation ofthe day on which a statute commences.

Yet the foregoing begs the question: when does the necessary relationship of directness between aright, duty or liability and a statute exist? The answer is clear: when there is no such interveninginstrument or rule. In other words, a matter directly arises under a federal statute when the right, dutyor liability is solely referable to a provision of that statute.

Just as the case law on s 76(ii) has been applied to s 75(i), so too should the former provide thebasis for a test of directly arising, for the purposes of s 38(a). Thus, a matter arises indirectly under atreaty where the right, duty or liability in question is immediately referable to an instrument or rulethat has the force of law, and is of continuing application, but is distinct from the treaty itself.45 On theother hand, a matter will directly arise under a treaty, and attract s 38(a), where the right, duty orliability is created by a provision of the treaty alone, without the intervention of any such instrumentor rule.

Much as Mr Leeming concluded, matters reliant on implementing legislation or enablinglegislation that once clearly permitted Teoh claims clearly fail to satisfy this criterion. However, the

four categories of treaties he offers as applying without implementing legislation and, as such, fallingwithin s 38(a), are in the same position. They do not independently bring international norms to thedomestic plane. Rather, each is adopted by an instrument or rule with the force of law that is separatefrom the treaty itself. No rights, duties or liabilities exist by virtue of the treaties alone. It follows that,despite his views, Mr Leemings treaties fall outside s 38(a).

Treaties recognising foreign governments

Let us begin with the first category of treaties offered by Mr Leeming: treaties recognising foreigngovernments. It should be noted, in passing, that the cases Mr Leeming mentions may have involvedunilateral declarations rather than treaties, and one dealt with recognition of states rather thangovernments.46 Nonetheless, in the first case, Bank of Ethiopia v National Bank of Egypt and Liguori[1937] Ch 513 (Bank of Ethiopia), Clauson J was deciding whether the claimant, an Ethiopian bank,

43 Federal Capital Commission v Laristan Building and Investment Co Pty Ltd (1929) 42 CLR 582 at 585-586.

44LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575 at 578, 580, 582 (Gibbs CJ, Mason, Wilson, Brennan, Deaneand Dawson JJ) and 583 (Murphy J); 57 ALJR 701; 49 ALR 599.

45 The intervening instrument or rule will ordinarily be domestic in nature. However, it might also exist under international law,in the form of an instrument made under a treaty, analogous to subordinate legislation or an executive decision. This wouldpresumably not affect protocols to treaties, as they are considered to be treaties in their own right: McNair A, Law of Treaties(OUP, 1961), p 23; Jennings R and Watts A, Oppenheims International Law (9th ed, Longman, 1992), Vol II, p 1209, [586],n 2.

46 Note that several members of the House of Lords equated these subjects of recognition in Government of the Republic of

Spain v SS Arantzazu Mendi (The Arantzazu Mendi) [1939] AC 256 at 264 (Lord Atkin), 267 (Lord Thankerton) and 268(Lord Macmillan), compare at 267 (Lord Russell) and 268 (Lord Wright). However, as the correspondence of the Foreign

Secretary in that case suggests (see at 264), there is a distinction between the two under international law. In any event, treatiesor unilateral declarations recognising governments have receded in significance in Australia and the United Kingdom, as both


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had capacity to sue in the English courts. This required his Lordship to determine whether the

claimant had been dissolved. That issue, in turn, depended on a contest between a decree of

dissolution by the Italian Government, which had recently occupied Ethiopia, and a contrary decree bythe Ethiopian Emperor, in exile in England.

Clauson J preferred Italys decree on the basis that the British Executive had recognised it as the

de facto government of Ethiopia. This represents the judicial view that the executive stance on such

recognition is conclusive before local courts, as both bodies should speak with one voice.47 The

principle might be considered sound. However, if a treaty had been present, its effect would have

come down to a judicial election to follow it when deciding between the laws of rival governments, as

part of the common law of civil procedure.48 Thus, from the jurisdictional perspective, any claimed

right, duty or liability would have been immediately referable to a domestic legal rule that was

separate from the treaty itself. Section 38(a) would not have applied.

The second case, The Jupiter [1924] P 236, was little different. It was brought not long after the

Russian Revolution, by a company claiming possession of a ship. The Soviet Union asserted that it

was the rightful owner and objected to its involvement in the proceedings. The Court of Appeal had to

decide whether to hear the case. It concluded that the jurisdiction of English courts did not, at least

ordinarily, extend to adjudicating claims against a foreign state, without its consent.49

This immunity was considered necessary to preserve comity between states.50 And the SovietUnion was taken to be a state, since it had been recognised as such by the British Executive. 51 This

was another instance of the one voice principle on questions of recognition. 52 Yet, even if a treaty

had been involved, the case would have been Bank of Ethiopias stable mate. It would have comprised

a judicial decision to use the treaty, in the course of giving an entity a status that grounded a common

law restriction on jurisdiction. Whatever the merits of doing so, any right, duty or liability would be

based on a domestic legal rule, rather than the treaty itself. There would have been no directness

permitting the application of s 38(a).53

states now refuse to engage in such recognition and confine themselves to recognition of states alone: Hayden B, News Release

by the Minister for Foreign Affairs and Trade, Mr Bill Hayden, 19 January 1988 (1992) 12 Aust YBIL 357; Somalia vWoodhouse Drake & Carey (Suisse) SA (The Mary) [1993] QB 54 at 62-63 (Hobhouse J).

47 Collins Mr Justice L, Foreign Relations and the Judiciary (2002) 51 ICLQ 485 at 487. See also Re Ditfort; Ex parte DeputyCommissioner of Taxation (1988) 19 FCR 347 at 368 (Gummow J); 83 ALR 265.

48 Indeed, now that the United Kingdom Executive refuses to indicate whether or not it recognises governments, the one voiceprinciple is considered by United Kingdom courts not to apply. Accordingly, those courts have chosen to conduct their owninquiry into the question of whether or not an entity can be treated as a government, with due regard to any dealings by the

United Kingdom Executive with that entity: see, eg Somalia v Woodhouse Drake & Carey (Suisse) SA (The Mary) [1993] QB54.

49 Note that the decision was qualified and a similar action allowed to proceed by the Privy Council in Juan Ysmael & Co Incv Indonesia [1955] AC 72.

50 The Jupiter [1924] P 236 at 242 (Bankes LJ), 242, 243-244 (Scrutton LJ) and 245 (Atkin LJ).

51 The Jupiter [1924] P 236 at 238 (Hill J), 242 (Bankes LJ) and 242 (Scrutton LJ).

52 Collins, n 47 at 487. See also Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347 at 368 (Gummow J);

83 ALR 265.53 Note that the treaty would, in effect, have been allowed by the judiciary to enliven an existing common law immunity for aparticular state. The jurisdictional position is no different where treaties are permitted to do the same by providing for thedomestic presence of representatives of a state. Nor is it any different where treaties restrict existing common law immunities of

states or their representatives. In that situation, the treaties only operate to diminish common law immunities because thejudiciary has decided to make those immunities subject to a doctrine of waiver that it enables treaties to trigger. Accordingly, inall cases, there is a rule with the force of law having the effect that no matters directly arise under the treaties. See: by analogy,Chow Hung Ching v R (1948) 77 CLR 449 at 466 (Latham CJ), 471, 472 (Starke J), 478-482, 484 (Dixon J) and 488(McTiernan J); [1949] ALR 298; and, directly, Fenton Textile Association Ltd v Krassin (1922) 38 LTR 259, as the latter wasexplained in Mann F, Studies in International Law (OUP, 1973), pp 338-339. See also Manns remarks at pp 331-332. It may beadded that treaties creating entirely new immunities require implementing legislation and, therefore, also fail to attract s 38(a):Parlement Belge (1879) 4 PD 129 at 150 (Phillimore J), again as explained by Mann at pp 336-337.

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Treaties of peace

This brings us to the next category of treaties invoked by Mr Leeming: treaties of peace. These also do

not satisfy s 38(a). The case Mr Leeming cites, Porter v Freudenberg [1915] 1 KB 857, concerned anancient rule of the English common law54 that restricts the capacity of an enemy alien to sue.55

Those restrictions are lifted upon the conclusion of peace,56 which may be identified by the presence

of a treaty of peace.57

Here, a rule of the common law goes so far as to operate according to the presence of a treaty.

However, the treaty only has this effect because the judiciary, when formulating procedural rules for

enemy aliens, decides to use it, rather than an inquiry of fact and/or international law, including an

event such as an armistice, in order to identify the point at which hostilities have ceased and normal

relations in the courts should resume. This again involves the one voice principle. 58 Whether wise or

not, this choice, forming part of a rule of the common law, means that s 38(a) cannot apply.

The authors analysis is bolstered by the evidence of Owen Dixon KC to the Royal Commission

on the Constitution regarding s 75(i), where he said [a] state of war may be ended or commenced and

the rights and duties of persons may be affected by the change from one [s]tate or another; but thisresults from the general law relating to peace and war, and not from the terms of the treaty.59

Treaties determining international boundaries

We can now turn to the third category of treaties said by Mr Leeming to engage s 38(a): treaties

determining international boundaries. In this context, Mr Leeming relies on constitutional, criminal

and contractual cases in which an issue has been, or could have been, international boundaries as they

54 Porter v Freudenberg [1915] 1 KB 857 at 880 (the court).

55 For a modern exploration of the rule, see Amin v Brown [2005] EWHC 1670.

56 Porter v Freudenberg [1915] 1 KB 857 at 871 and 880 (the court). See also Singh v Commonwealth (2004) 222 CLR 322 at

399 (Gummow, Hayne and Heydon JJ); 78 ALJR 1383; 209 ALR 355; [2004] HCA 43.57Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 33 (McHugh andGummow JJ); 77 ALJR 699; 195 ALR 502; [2003] HCA 6.

58 Collins, n 47 at 487. See also Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347 at 368 (Gummow J);83 ALR 265 and Amin v Brown [2005] EWHC 1670 at [30] (Lawrence Collins J). Note, that in the absence of treaties, executivestatements as to the existence or termination of a state of war could be treated as conclusive of the question, again regardless ofthe position dictated by an inquiry of fact and/or international law: R v Bottrill; Ex parte Kuechenmeister [1947] KB 41 at 50(Scott LJ), 53 (Tucker LJ) and 56 (Asquith LJ). In any event, the common law in this area is now effectively redundant, asnations such as the United Kingdom or Australia virtually never declare or terminate traditional states of war, and the restriction

on the capacity of an enemy alien to sue does not extend to persons from nations subject to other uses of force, includingindividual or collective self-defence or military action authorised by the United Nations Security Council: Amin v Brown [2005]EWHC 1670 at [27]-[28], [30] and [46] (Lawrence Collins J).

59Report of the Royal Commission on the Constitution (Australian Government Printer, 1929), p 785. See also, eg the analysisby Mann, n 53, p 333-334. By referring to the commencement of war, Mr Dixons statement extended to treaties affectingbelligerent rights. It is no surprise, then, that they are in the same position as treaties of peace. Within the law of prize, in theUnited Kingdom, the relevant treaties and custom appear to be introduced into the local legal system by statutes. Matters would,therefore, not directly arise under the treaties. In any event, in Australia, it appears that no court may presently exercise

jurisdiction in matters immediately referable to the law of prize. Even if that law arose in another context, it would hardly bematerial to the current debate. As for Australia, it would almost inevitably exist through custom, not treaties. See Australian

Law Reform Commission, ALRC 48: Criminal Admiralty Jurisdiction and Prize (1990), Ch 6, esp [142]-[148] and [156]-[158],[161] (http://www.alrc.gov.au (viewed 2 May 2007)). Treaties affecting belligerent rights outside the law of prize are, from the

jurisdictional standpoin t, in the same b oat. It is submitted that those treaties only become part of domestic law to the extent thatan arm of government, in developing or implementing the law relating to war and peace, elects to follow them. The result is thats 38(a) does not apply. The foregoing finds support in the potential impact of one of the Hague Conventions at the hands of the

judiciary in Porter v Freudenberg [1915] 1 KB 857 at 874-880 (the court), when read with Mabo v Queensland (No 2) (1992)175 CLR 1 at 15 (Mason CJ and McHugh J) and 42 (Brennan J); 66 ALJR 408; 107 ALR 1. See also Crawford J and Edeson WR, International Law and Australian Law in Ryan K (ed), International Law in Australia (2nd ed, Law Book Co, 1984),pp 96-97. See, to the contrary, Mann, n 53, pp 334-335.


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exist under treaties.60 The judiciary has traditionally chosen to follow such treaties, yet again

exemplifying the one voice principle.61 Still, the jurisdictional analysis need not change. The

constitutional case, Horta v Commonwealth (1994) 181 CLR 183; 68 ALJR 620; 123 ALR 1, is notdecisive. The plaintiff argued that the Constitution defined the scope of the external affairs power by

reference to the validity of treaties determining international boundaries. However, this was rejectedby a joint judgment of the entire court.62

In the other case, Re: Director of Public Prosecutions (Cth); Ex parte Lawler (1994) 179 CLR

270; 68 ALJR 289; 119 ALR 655, a statute63 and a contract64 marked out their geographical reach by

reference to international boundaries. A subordinate legislative instrument,65 an executive decision66

or even a rule of the common law67 may do the same. A variety of criminal and civil proceedings

could emerge.68 Still, in all these situations, a domestic legal instrument or rule elects to adopt

international boundaries as a reference point for rights, duties or liabilities. It may or may not go so far

as to mention relevant treaties. However, given the one voice principle, the judiciary would elect to

follow the treaties so mentioned or would interpret any general reference to international boundaries in

accordance with such treaties. This may or may not be defensible. Yet, from the jurisdictional

perspective, it comes down to domestic legal instruments and rules. There is nothing referable to atreaty alone. Accordingly, s 38(a) is not satisfied.69

60 Leeming, n 1 at 175. See, in the same vein, New South Wales v Commonwealth (Sea and Submerged Lands Act Case) (1975)135 CLR 337; 50 ALJR 218; 8 ALR 1; Chen Yin Ten v Little (1976) 28 FLR 480; 11 ALR 353; A Raptis & Son v South

Australia (1977) 138 CLR 346; 51 ALJR 637; 15 ALR 223; Li Chia Hsing v Rankin (1978) 141 CLR 182; 53 ALJR 192; 23

ALR 151.

61 Post Offce v Estuary Radio Ltd [1968] 2 QB 740 at 753-754 (the court); Collins, n 47 at 487; Petrotimor Companhia dePetroleos SARL v Commonwealth (2003) 126 FCR 354 at 361-362 (Black CJ and Hill J); 197 ALR 461; [2003] FCAFC 3. Seealso Coe v Commonwealth (1979) 53 ALJR 403 at 408 (Gibbs J), 410 (Jacobs J), 412 (Aickin J) and 412 (Murphy J); 24 ALR118; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Ame (2005) 222 CLR 439 at 456-457(Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ); 79 ALJR 1309; 218 ALR 483; [2005] HCA 36 andauthorities cited there; Christian v R [2007] 2 WLR 120 at 124-125 (Lord Hoffmann, Lord Steyn, Lord Carswell) and 134-135(Lord Hope of Craighead). Compare the more questioning approach suggested in Christian v R [2007] 2 WLR 120 at 130-131(Lord Woolf).

62Horta v Commonwealth (1994) 181 CLR 183 at 195 (the court); 68 ALJR 620; 123 ALR 1.

63 Fisheries Management Act 1991 (Cth) ss 4(1), 100(1).

64 See the lease referred to at Re Director of Public Prosecutions (Cth); Ex parte Lawler (1994) 179 CLR 270 at 287 (Deaneand Gaudron JJ); 68 ALJR 289; 119 ALR 655.

65 See, for example, Seas and Submerged Lands (Limits of Contiguous Zone) Proclamation 1999 (Cth).

66 See, for example, Ruddock v Vadarlis (2001) 110 FCR 491 at 514 (Beaumont J) and 523-527, 545-546 (French J); 183 ALR1; 66 ALD 25; [2001] FCA 1329.

67 See, for example, Commonwealth v Yarmirr(2001) 208 CLR 1 at 45-47 (Gleeson CJ, Gaudron, Gummow and Hayne JJ) and111 (Kirby J); 75 ALJR 1582; 184 ALR 113; [2001] HCA 56.

68 See, eg Post Offce v Estuary Radio Ltd [1968] 2 QB 740; Re Director of Public Prosecutions (Cth); Ex parte Lawler (1994)179 CLR 270; 68 ALJR 289; 119 ALR 655.

69 Note that, by reference to this category, Crawford and Edeson, n 59, pp 92-93, make the broader suggestion that any treatiesthat have subjects within prerogative powers should be accorded independent domestic effect. See also Mann, n 53, p 330. Theprincipal authority, Post Offce v Estuary Radio Ltd [1968] 2 QB 740 at 755 (the court), speaks in obiter and concerns treatieson international boundaries, which even Crawford and Edeson doubt their suggestion should cover. Further, as alreadydemonstrated, no notion of independent domestic effect emerges from the current treatment of treaties on recognition,

immunities, peace or belligerent rights. In any event, the suggestion has a deeper difficulty. It asks treaties to function asdomestic exercises of prerogative powers. This will almost inevitably require the judiciary to resolve complex questions as towhether the treaties were intended to have domestic effect, either in whole or part, and the manner in which breaches are to beenforceable on the domestic plane. While such an exercise is not unheard of in the worlds legal systems, it is hardly an idealapproach to domestic law-making. There is no compelling reason for its adoption in Australia, as an exception to the treatmentof all other treaties. Instead, the courts can simply require any rights, duties or liabilities in the relevant treaties to be the subjectof domestic provision by the Executive under the prerogative. In these circumstances, the treaties would not automatically bepart of domestic law and would require a further executive decision in order have such an impact. Accordingly, s 38(a) wouldnot apply.

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Treaties on migration

This leaves us with the final category of treaties relied on by Mr Leeming as applying without

implementing legislation and attracting s 38(a): treaties on migration. In this instance, Mr Leemingwas inspired by the remarks of Senator OConnor in Parliamentary debates on s 38(a) of the Judiciary

Bill 1903. Before federation, there was, in effect, a treaty between Queensland and Japan which

entitled Japanese subjects to enter and travel or reside in the colony. Not long after federation, the

treaty became inconsistent with the now infamous Immigration Restriction Act 1901 (Cth). This

occurred despite the fact that foreign citizens had a common law right to enter all parts of the British

Empire and Australian vice-regals historically had been (or, in some cases, wrongly believed they

were) obliged by British statutory instructions to refuse assent to Bills inconsistent with treaties.

This did not prevent the Immigration Restriction Act from entering into force. However,

presumably, there was a risk that the Queensland Executive might seek to give effect to the treaty over

the statute. Senator OConnor, possibly for centralist ends, wanted the relationship between the two

instruments, and any future such questions, to be resolved by the High Court alone under s 38(a).70

This aim cannot be realised. Senator OConnors position fails to appreciate the domestic operation of

treaties regarding migration, which have not traditionally been counted among those that apply

without implementing legislation, much less where doing so would be inconsistent with another

statute. In any event, the controversy he envisages would only emerge if there were a state executive

decision to apply the treaty in preference to federal legislation. Under the appropriate test, this

instrument would prevent s 38(a) from applying.

High Court support

In short, Mr Leeming was correct to exclude treaties which are the subject of implementing

legislation, or legislation that once clearly permitted Teoh claims from s 38(a). However, despite his

views, each of the four categories of treaties applying without implementing legislation that were put

forward by Mr Leeming also fail to satisfy s 38(a). In this respect, the authors position is consistent

with the High Court case mentioned in the introduction to this article as having cited Mr Leemings

article: Lam. In that case, McHugh and Gummow JJ,71

with support from Hayne J72

and Callinan J,73

seriously questioned the decision in Teoh. In doing so, their Honours referred to other, more

innocuous, instances of treaties affecting domestic law. One such instance was where the taking of a

step by the executive government in the conduct of external affairs, whilst of itself neither creating

rights nor imposing liabilities, may supply a step in a broader process of resolution of justiciable

disputes.74 A general reference to Mr Leemings treaties then appeared.75

This strengthens the authors resolve. When treaties apply without implementing legislation, they

enter a broader framework of domestic law and operate at its behest. Such treaties cannot engage

s 38(a). They depend on a domestic legal instrument or rule and, as such, lack the directness that the

provision requires. In other words, at no point can one identify a claimed right, duty or liability that is

created by a provision of the treaty alone.

70 Leeming, n 1 at 176-177.

71Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 32-34; 77 ALJR699; 195 ALR 502; [2003] HCA 6.

72Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 38; 77 ALJR 699;195 ALR 502; [2003] HCA 6.

73Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 45-48; 77 ALJR699; 195 ALR 502; [2003] HCA 6.

74Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 33; 77 ALJR 699;195 ALR 502; [2003] HCA 6.

75Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 33, n 100; 77ALJR 699; 195 ALR 502; [2003] HCA 6.


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THE PROPOSAL

The question, then, is what does attract s 38(a)? If the provision excludes treaties that take effect

through implementing legislation, legislation that once clearly permitted Teoh claims, or any otherinstrument or rule with the force of law, when does it apply? It is submitted that, as a result of s 75(i),the High Court has jurisdiction to make declarations on whether, in the particular circumstances of anindividual or entity, the Commonwealth has breached obligations under an unincorporated treatyregarding the rights of persons within Australian territory (the proposal). This is where s 38(a)operates.

The road to acceptance

For the proposal to be good in law, it must negotiate s 75(i). This provision carries a raft ofrequirements, many of which flow from the general jurisprudence on Ch III of the Constitution. Theyare as follows.

1. The proposal must give rise to a matter, which, as indicated, exists where there is a controversyregarding an immediate right, duty or liability to be established by the determination of theCourt.76

2. The proposal must be reconciled with the rule in Walker v Baird, namely that treaties have noeffect on domestic law without implementing legislation or, exceptionally, adoption by anotherlegal instrument or rule.

3. The proposal must not require the High Court to give an advisory opinion, in the sense ofdetermining abstract questions or making declaration[s] of the law divorced from any attemptto administer that law.77

4. The proposal must comprise an exercise of judicial power, as that term is used in s 71 of theConstitution.

5. The granting of declaratory relief under the proposal must have some foreseeable impact.78

6. At least as a practical matter, an applicant for a declaration under the proposal must havestanding.79

7. The subject matter of a proceeding pursuant to the proposal must observe the rules regardingjusticiability.80

If these requirements are satisfied, it can then be seen whether the proposal satisfies s 38(a), bysupplying a right, duty or liability that is created by a provision of the treaty alone. It should be notedthat the proposal is not entirely unprecedented. In a recent paper,81 Dr Wendy Lacey and Mr DavidWright argue that the common law of Australia should be developed to allow a person to obtain adeclaration as to whether their rights under certain human rights treaties have been violated.

Nevertheless, the submission of Lacey and Wright differs from the proposal in several respects. Inthe first place, the authors rely on the common law to authorise the granting of declaratory relief, incontrast to the proposals reliance on s 75(i). Further, Lacey and Wright argue that a declaration couldonly be granted in respect of the human rights treaties they nominate: the International Covenant on

76Re Judiciary and Navigation Acts (1921) 29 CLR 257 at 266 (Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ); 27 ALR193. See also, eg Agtrack (NT) Pty Ltd v Hatfield (2005) 223 CLR 251 at 260-262 (Gleeson CJ, McHugh, Gummow, Heydonand Hayne JJ); 79 ALJR 1389; 218 ALR 677; [2005] HCA 38.

77

Re Judiciary and Navigation Acts (1921) 29 CLR 257 at 266 (Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ); 27 ALR193.

78 Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591 at 613(Gaudron J); 74 ALJR 604; 169 ALR 616; [2000] HCA 11.

79Batemans Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 at 262(Gaudron, Gummow and Kirby JJ); 72 ALJR 1270; 98 LGERA 410; 155 ALR 684; [1998] HCA 49.

80Re East; Ex parte Nguyen (1998) 196 CLR 354 at 362 (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ);73 ALJR 140; 159 ALR 108; [1998] HCA 73.

81 Lacey W and Wright D, Highlighting Inconsistency: The Declaration as a Remedy in Administrative Law and InternationalHuman Rights Standards in Finn C (ed), Shaping Administrative Law for the Next Generation: Fresh Perspectives (AustralianInstitute of Administrative Law, 2005), p 32.

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Civil and Political Rights (ICCPR),82 the International Convention on the Elimination of All Forms ofRacial Discrimination (the Racial Discrimination Convention)83 and the Convention Against Torture

and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Torture Convention).

84

Theauthors invoke those treaties principally because they have become part of Australian law, albeit to alimited degree, by being scheduled to federal legislation.85

In contrast, the proposal does not embrace these treaties. This is because, in its current form, theproposal is confined to unincorporated treaties and excludes all other treaties, even where they haveonly been introduced into Australian law to a very limited extent. On the other hand, the proposal isnot confined to specific unincorporated treaties it is attracted by any such treaty so far as it concernsthe rights of persons within Australian territory. Despite these differences, much of the analysis ofLacey and Wright will be instructive in examining whether the proposal meets the requirements ofs 75(i).

A constitutional matter?

The opening requirement is that the proposal give rise to a matter. The description provided above

can be broken down into several elements.

Immediate right, duty or liability

The first element asks that the proposal produce an immediate right, duty or liability. Lacey andWright take an innovative approach to this question. They argue that, under the existing law regardingdeclarations, relief is not limited to justiciable or enforceable rights. Rather, it extends to rights havinga lesser degree of recognition in Australian law. One instance of that recognition is the scheduling oftreaties to federal legislation. As such, declarations may be available in respect of some of thosetreaties,86 namely: the ICCPR, the Racial Discrimination Convention and the Torture Convention.87

However, this argument cannot help the proposal. Its focus is unincorporated treaties, without anyplace in Australian law, which impose obligations regarding the rights of persons in Australianterritory. The question is: can those obligations constitute an immediate duty?

According to OKeefe J, they cannot. In Matchett v Deputy Commissioner of Taxation (2000) 158

FLR 171; [2000] NSWSC 975 (Matchett), his Honour said: a matter must involve a right or protection (defence) given by the law the law that is theexpression of the supreme legislative authority recognised in our legal system and applied in the Courtsof Australia. Neither the Treaty of Versailles nor the Charter of the United Nations answers to thisdescription. Neither has been made part of the law of Australia. Neither directly confers any rights tomake claims or provides any protections or defences in the Courts. As a consequence those defencesagainst claims made by the DCT, which on the arguments advanced on behalf of the defendants invokethe Treaty of Versailles and the Charter of the United Nations are without foundation and must fail

82International Covenant on Civil and Political Rights [1980] ATS 23; Second Optional Protocol to the International Covenanton Civil and Political Rights, Aiming at the Abolition of the Death Penalty [1991] ATS 19; First Optional Protocol to the

International Covenant on Civil and Political Rights [1991] ATS 39.

83International Convention on the Elimination of All Forms of Racial Discrimination [1975] ATS 40.

84 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [1989] ATS 21.

85 Lacey and Wright, n 81, pp 42-46 and 48-51. ICCPR: Human Rights and Equal Opportunity Commission Act 1986 (Cth)(HREOC Act), Sch 2, Div 3. Racial Discrimination Convention: Racial Discrimination Act 1975 (Cth), Sch. TortureConvention: Crimes (Torture) Act 1988 (Cth), Sch. Note that Lacey and Wright appear mistakenly to assume that these treatieshave all been scheduled to the HREOC Act (Lacey and Wright, n 81, pp 34-35). The reason why the authors do not rely on anyother treaties scheduled to federal legislation is because, to attract their submission, a treaty must also have been made subjectto a formal procedure enabling persons to complain of specific violations before an international body. Nonetheless, theirsubmission would, in time, embrace the Convention on the Elimination of All Forms of Discrimination Against Women [1983]ATS 9, which is scheduled to the Sex Discrimination Act 1984 (Cth): see Optional Protocol to the Elimination of All Forms Of

Discrimination Against Women [1999] ATNIF 32.

86 See n 85.

87 Lacey and Wright, n 81, pp 48-51.


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[N]either of the treaties is part of the law of Australia, and the defences which seek to rely uponthem are not matters within the meaning of that term as used in s 75(i) of the Constitution 88

Thus, OKeefe J concludes that an immediate right, duty or liability under s 75(i) must bedomestic in nature. It follows that a treaty can only attract s 75(i) if it has been introduced intoAustralian law in some way, whether by implementing legislation or some other domestic legalinstrument or rule. There is no place in the provision for unincorporated treaties.

For the proposal to survive, Matchett must be outflanked. The circumstances of the case arereadily distinguishable. OKeefe J faced unrepresented plaintiffs, who were resisting liability assessedby the Deputy Commissioner of Taxation (DCT). To this end, they invoked two treaties. Only one ofthese, the Charter of the United Nations (the UN Charter),89 was wholly unincorporated. AsOKeefe J indicated,90 the other, the Treaty of Versailles,91 had received some introduction intoAustralian law.92 Further, the plaintiffs did not rely on those treaties to seek purely declaratory relief,as they would under the proposal. They sought to use them coercively, so as to challenge the validityof the DCTs assessment and, indeed, that of the Constitution itself.

However, it is better to confront OKeefe Js thesis head on. It produces unattractive results,

which make it untenable. It requires the text of s 75(i), which refers to treaties without qualification, tobe read down so as to exclude unincorporated treaties. Further, it leaves s 75(i) with a concurrent,rather than an independent operation. This is because, without unincorporated treaties, any matter thatmight attract s 75(i) could also fall within another conferral of jurisdiction. Treaties implemented orotherwise utilised by federal legislation could attract s 76(ii), which has been conferred on the FederalCourt as well as State and some Territory courts. Treaties the subject of federal executive action couldengage the original jurisdiction of the High Court under s 75(v). Lastly, where treaties formed part oflegislative or executive action at the state level, or the common law, the High Courts principalfunction, appellate jurisdiction under s 73(ii), could operate. Leaving s 75(i) with such a marginal roleto play goes against the principle of statutory construction that provisions conferring jurisdictionshould be interpreted generously. Indeed, Kirby J argued in East that this principle applies with evengreater force in a constitutional setting.

There is a final difficulty with the view of OKeefe J. It has already been demonstrated that where

treaties are the subject of implementing legislation, or adoption by another domestic legal instrumentor rule, any consequential matters do not arise under the treaties directly. Section 38(a) cannot apply.Thus, by excluding unincorporated treaties from s 75(i), OKeefe J denies s 38(a) any potential forapplication. Indeed, his Honour denies that s 75(i) extends to direct matters, with the result thats 38(a), which has been in force for over a century, would be invalid. One should hesitate beforestriking down a statutory provision present since the earliest days of federation.

On the other hand, the result reached by OKeefe J in the circumstances of the case before himappears right. There must be a limit on the extent to which s 75(i) engages treaties. Although thecontrary has been suggested,93 it is unacceptable to argue that s 75(i) converts the provisions oftreaties into comprehensively enforceable domestic norms, such as the defences relied on by the

88Matchett v Deputy Commissioner of Taxation (2000) 158 FLR 171 at 184-185; [2000] NSWSC 975. See also (2000) 158 FLR171 at 180. A similar conclusion was reached by Weinberg J of the Federal Court in relation to the ICCPR, which is notpresently covered by the proposal, in Minogue v Williams [1999] FCA 1585 at [35]. His Honours conclusion was unanimously

affirmed on an appeal to the Full Federal Court: Minogue v Williams (2000) 60 ALD 366 at 374; [2000] FCA 125. See furthern 132 below.

89 Charter of the United Nations [1945] ATS 1. Note that Charter of the United Nations Act 1945 (Cth) merely representsParliaments approval of the ratification of the UN Charter, with the result that it remains wholly unincorporated: see Bradley vCommonwealth (1973) 128 CLR 557 at 582 (Barwick CJ and Gibbs J); 47 ALJR 504; 1 ALR 241.

90Matchett v Deputy Commissioner of Taxation (2000) 158 FLR 171 at 176; [2000] NSWSC 975.

91 Treaty of Peace Between the Allied and Associated Powers and Germany [1920] ATS 1.

92 See Treaty of Peace (Germany) Act 1919 (Cth); Treaty of Peace Regulations 1920 (Cth). See further n 132 below.

93 See McGinley G, The Status of Treaties in Australian Municipal Law: The Principle of Walker v Baird Reconsidered (1990)12 Adelaide LR 367 at 374-375.

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plaintiffs in Matchett or norms amenable to injunctive relief or damages. This hardly flows from theterms of s 75(i). It is also extremely difficult to reconcile with the specific removal of a clause to like

effect during the drafting of the Constitution.

94

Above all, it would give the Executive Government acomprehensive law-making function at odds with the separation of powers stipulated by ss 1, 61 and71 of the Constitution, and the democratic system of government at the heart of that document.

The proposal provides a middle ground, which is uniquely able to balance these imperatives. Ithas s 75(i) embrace unincorporated treaties, with the result that their obligations regarding the rights ofpersons in Australian territory are an immediate duty within s 75(i), for the purpose of purelydeclaratory relief. Thus, the proposal remains faithful to the text of the provision, by reading treatieswith all of the generality that term permits. It gives federal treaty jurisdiction a meaningful,free-standing role, under which it is not a mere second fiddle to other conferrals. As will bedemonstrated, the proposal also allows s 38(a) to operate, thus reserving its delicate task of assessingtreaty compliance to the High Court alone. The proposal even respects the structure of Australiangovernment. It does not allow treaties to be self-executing. Nor does it allow them to affect thevalidity of legislative or executive action, at any level. It merely allows the High Court to declarewhether obligations, which the federal government is entitled to assume for the nation, have beenperformed.

Above all, the proposal sits comfortably with prominent movements in constitutionalinterpretation. On the one hand, it is consistent with originalism. The proposal is plainly rooted in thetext of s 75(i). Further, the intent behind that provision is permissive. The evidence suggests that thefounding fathers were either too misguided to have any intent at all for s 75(i)95 or, possibly, insertedthe provision for the sake of its future potential, without forecasting what that would be.96 Thus,whether by default or desire, the High Court has sufficient latitude to adopt the proposal. The proposalis also faithful to less orthodox approaches to the Constitution, which would require the High Court toread s 75(i) in light of current needs.97 They are met by the proposal. The focus of treaties haschanged radically since federation. They have gone beyond the conduct of states on the internationalstage to prescriptive provision for private rights in the domestic sphere. Treaty law has, therefore,become an important regulator of conduct with respect to persons within Australian territory. Theproposal caters for this development by allowing persons to obtain an authoritative pronouncement on

whether Australia has met its treaty obligations.In short, the proposal provides the best available construction of s 75(i). The provision should be

read so as to embrace unincorporated treaties. Accordingly, obligations in such treaties regarding therights of persons in Australian territory can supply immediate duties, for the purposes of matters inwhich purely declaratory relief is sought.

The rule in Walker v Baird

There is one snag here: the rule in Walker v Baird. As explained, it only allows treaties domestic effectif they have been the subject either of implementing legislation or, in the exceptional situationsaddressed by Mr Leeming, some other domestic legal instrument or rule. The rule in Walker v Baird isnot mentioned by Lacey and Wright. Presumably, though, they would consider their submissionrespects the rule because the treaties they specify have been engaged by legislation, namely theschedules to federal legislation, in combination with the domestic rules of declaratory relief.

However, the proposal has no refuge of this kind. It concerns unincorporated treaties, which areunavoidably caught by the rule in Walker v Baird. It must be recognised, though, that the proposal islimited. It does not permit the provisions of unincorporated treaties to become fully enforceable rulesof domestic law. No credible construction of s 75(i) could allow this to occur. Rather, all s 75(i)

94 See, eg Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 212 (Stephen J); 56 ALJR 625; 39 ALR 417.

95 Zines L, Cowen and Ziness Federal Jurisdiction in Australia (3rd ed, Federation Press, 2002), p 26.

96Ruhani v Director of Police [2004] HCA Trans 440. See also Zines, n 95, p 26.

97 See, eg Kirby Justice M, Constitutional Interpretation and Original Intent: A Form of Ancestor Worship? (2000) 24 MULR1; Goldsworthy J, Interpreting the Constitution in its Second Century (2000) 24 MULR 677.


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permits is purely declaratory relief in respect of compliance with unincorporated treaties. Moreover,

those treaties must concern the rights of persons within Australian territory.

Thus, the proposal hardly attempts to obliterate the rule in Walker v Baird. It merely qualifies thatrule, to a limited extent, for a particular class of unincorporated treaties. The issue is: can the proposal

have this effect? May it supplant the rule in Walker v Baird to this degree? There are two possible

approaches to this question. Under both, the proposal can prevail. One view is that the rule in Walker

v Baird exists at common law.98 If this is so, s 75(i) wins hands down. For in any contest between the

requirements of the common law and the Constitution, properly understood, the latter must prevail.99

On its best construction, s 75(i) attaches a limitation to the rule in Walker v Baird. Accordingly, to that

extent, the rule falls away.

However, this first approach ignores a deeper question. Does the rule in Walker v Baird truly have

the common law as its source? The clue lies in its rationale. It generally prevents unincorporated

treaties from taking effect in domestic law without implementing legislation because of the separation

of powers.100 Law-making is assigned to Parliament, not the Executive. If treaties automatically

became fully enforceable on the domestic plane, the Executive would be usurping Parliaments role.

This means that the rule cannot exist at common law. It must instead flow, by implication, from thedivision between legislative and executive power in ss 1 and 61 of the Constitution.101

This conclusion might invite a re-examination of the exceptional situations where Walker v Baird

gives treaties effect without implementing legislation. However, placing the rule on a constitutional

footing does the proposal no harm. Sections 1 and 61 are not absolute: exceptions are permissible. An

obvious, and explicit, exception is membership of Parliament and the Executive.102 A well-known

implied exception is subordinate legislation.103 Section 75(i) can be another exception. As indicated,

the provision does not fatally wound the separation of powers by giving the Executive unbridled

legislative power through self-executing treaties. However, on its best construction, s 75(i) means that,

where the Executive performs its established role under s 61 by assuming treaty obligations regarding

the rights of persons within Australian territory, there is a modest domestic legal result. With respect to

the performance of those obligations, a person may be entitled to purely declaratory relief.

Controversy/advisory opinions

With an immediate duty flowing from an unincorporated treaty in hand, we can return to theremaining element in the description of a constitutional matter: the presence of a controversy. It maybe assumed that a controversy requires, at the very least, a factual situation involving persons and/orgovernments that has raised issues of law between them. As such, this element may be consideredtogether with the prohibition on giving advisory opinions or, in other words, deciding abstractquestions or making declarations of the law that do not involve its administration. This is because sucha question or want of administration will necessarily be avoided where the court makes adetermination with respect to a controversy of the order described.

It seems clear that the proposal is satisfactory on this score. As indicated, an applicant mustestablish that, in their particular circumstances, the Commonwealth has breached its obligations undera relevant treaty. This necessarily supplies a controversy, as it entails a factual situation and the

98 Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 225 (Mason J); 54 ALJR 625; 39 ALR 417.

99Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 566 (the court); 71 ALJR 818; 145 ALR 96.

100 See, eg Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287 (Mason CJ and Deane J) and 304(Gaudron J); 69 ALJR 423; 128 ALR 353.

101 Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 212 (Stephen J); 56 ALJR 625; 39 ALR 417. See also Minister forImmigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287 (Mason CJ and Deane J) and 304 (Gaudron J); 69 ALJR423; 128 ALR 353.

102 Constitution, s 64.

103 Victorian Stevedoring & General Contracting Co Pty Ltd & Meakes v Dignan (1931) 46 CLR 73; 38 ALR 22.

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presence of legal issues within that situation. Moreover, by determining the application of the treaty inthis context, the High Court would avoid deciding abstract questions. It would also be administering

the treaty to the case before it.Yet Lacey and Wright are more cautious at this point. They spend some time explaining why

declaratory relief under their submission would not amount to an advisory opinion. In the first place,Lacey and Wright state that, while declaratory relief in public law generally might sometimesresemble an advisory opinion, the High Court has been content to give such relief a generous reach.104

In any event, they argue that their submission does not constitute an advisory opinion, since it requiresa court to determine the legal position of the parties to the controversy in relation to one another.105

These arguments are just as easily applied to the proposal.

Lacey and Wright then devote significant attention to the requirement of administration. They arenot content with the suggestion that the treaty itself is being administered. They take an alternativeroute based on Croome v Tasmania (1997) 191 CLR 119; 71 ALJR 430; 91 A Crim R 238; 142 ALR397. In that case, two male homosexual plaintiffs applied to the High Court for a declaration thatTasmanian legislation criminalising conduct in which they engaged was invalid under s 109 of theConstitution for inconsistency with federal legislation. It was common ground that the Tasmanianlegislation would not be enforced against the plaintiffs. As a result, Tasmania took a preliminaryobjection that the case did not involve a constitutional matter. It argued that, as the Tasmanianlegislation was not being enforced, there was no law being administered in the necessary sense.

In rejecting this argument, the High Court held that, if the case were to proceed, the Constitution,rather than the Tasmanian legislation, was the law being administered. The status of the Tasmanianlegislation in this respect was not material. It was enough that the Constitution would be applied todetermine its validity. Lacey and Wright extend Croome to their submission. They argue it involvesthe administration of the common law authorising declaratory relief, rather than the nominatedtreaties.106

This may or may not be defensible. However, Croome cannot be likewise applied to the proposal.It does not involve the administration of the Constitution. Such administration arose in Croomebecause s 109 of the Constitution was central to the substantive question to be determined in that case.

However, under the proposal, the only relevant constitutional provision, s 75(i), is purely procedural.It merely gives the court authority to resolve the controversy before it. That resolution itself dependson the application of treaties. Accordingly, only they are administered under the proposal.

This is hardly worrying. The requirement that the High Court administer the law is not limited todomestic law. It extends to any law relevantly engaged by the Australian legal system. Thus, in Regie

Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491; 76 ALJR 551; 187 ALR 1; [2002]HCA 10, common law rules regarding the conflict of laws were held to require that, where tortsoccurring overseas were litigated in Australia, the governing law was that of the place of occurrence,ie the lex loci delicti. On the facts, this required the law of New Caledonia to be applied. There was noconstitutional objection to this course. Similarly, in Ruhani, the High Court upheld its jurisdictionunder federal legislation to entertain appeals from the Supreme Court of Nauru, which required it toapply the law of that country. Once again, there was no objection that this did not involve the relevantadministration. So it is with the proposal. On its best construction, s 75(i) fastens upon unincorporatedtreaties regarding the rights of persons within Australian territory. Those treaties can, therefore, be the

law administered in the proceedings.

Judicial power

As well as satisfying the various elements of a constitutional matter, the proposal must also comprisean exercise of judicial power. This term does not, of course, appear in s 75(i). However, the immediaterecipient of jurisdiction under s 75(i), and the only court intended to be engaged by the proposal, is the

104 Lacey and Wright, n 81, p 52.




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High Court. It is created by Ch III of the Constitution and, by s 71 of that chapter, may only exercise

judicial power.107 The authorities yield various indicators of judicial power. In justifying their

submission, Lacey and Wright focus on one: enforceability.

108

It is also the critical indicator ofjudicial power for the proposal.

In essence, the proposal is not coercive. The High Court may only declare that the

Commonwealth has breached its obligations under an unincorporated treaty. It may not grant an

injunction ensuring compliance with the treaty. Nor may it strike down legislative or executive action

placing the Commonwealth in breach thereof. Does this mean that the proposal fails the test of

enforceability? If it did, other instances of declaratory relief would be in jeopardy. For it is settled that

declarations may be made where no other relief, particularly of a coercive nature, is permitted.109

It follows that enforceability is unlikely to be an indispensable touchstone of judicial power.110

Indeed, so much was acknowledged in Brandy v Human Rights and Equal Opportunity Commission

(1995) 183 CLR 245; 69 ALJR 191; 127 ALR 1, when Deane, Dawson, Gaudron and McHugh JJ said

it is not essential to the exercise of judicial power that the tribunal should be called upon to execute

its own decision.

111

Rather, Lacey and Wright suggest that relief should merely be conclusive of thecontroversy before the court, apparently in the sense that the relief determines the relevant facts and

their legal consequences.112 This is a threshold that the submission of Lacey and Wright was able to

meet. So, too, could the proposal.

Declaratory relief

The next item on the list is the requirement that declaratory relief in accordance with the proposal

have some foreseeable impact. This actually forms part of the requirement of a constitutional matter.

For a declaration that produces no foreseeable consequences113 is, despite the presence of a factual

situation, so divorced from the administration of the law as not to involve a matter.114 This is

particularly likely where it concerns superseded rights and liabilities.115 On the other hand, it seems

the exclusion may be avoided where a declaration has practical significance for a party. 116

107R v Kirby; Ex parte Boilermakers Society of Australia (1956) 94 CLR 254; [1956] ALR 163, affirmed sub nomAttorney-General (Cth) v R; Ex parte Boilermakers Society of Australia (1957) 95 CLR 529; [1957] ALR 489; [1957] AC 288.


109 See, eg Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; 66 ALJR 271; 59 A Crim R 255; 106 ALR 11; HighCourt Rules, O 26 r 19.

110Lacey and Wright, n 81, p 55 add that the judgment barring the High Court from giving advisory opinions, on the ground thatthey did not give rise to a constitutional matter, Re Judiciary and Navigation Acts (1921) 29 CLR 257; 27 ALR 193, stillaccepted that such opinions involved the exercise of judicial power. This would further demonstrate how enforceability is not

essential to judicial power. Note, however, that this characterisation of advisory opinions was undermined in R v Kirby; Exparte Boilermakers Society of Australia (1956) 94 CLR 254 at 274 (Dixon CJ, McTiernan, Fullagar and Kitto JJ); [1956] ALR163.

111Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 269; 69 ALJR 191; 127 ALR 1. Seealso Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 256-257 (Mason CJ, Brennan andToohey JJ); 69 ALJR 191; 127 ALR 1.

112Lacey and Wright, n 81, p 55.

113Gardner v Dairy Industry Authority (New South Wales) (1978) 52 ALJR 180 at 188 (Mason J), 188 (Jacobs J), 188(Murphy J) and 188-189 (Aickin J); 18 ALR 55.

114Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591 at 613(Gaudron J); 74 ALJR 604; 169 ALR 616; [2000] HCA 11. See also Ainsworth v Criminal Justice Commission (1992) 175 CLR564 at 582 (Mason CJ, Dawson, Toohey and Gaudron JJ); 66 ALJR 271; 59 A Crim R 255; 106 ALR 11.

115Gardner v Dairy Industry Authority (New South Wales) (1978) 52 ALJR 180 at 188 (Mason J), 188 (Jacobs J), 188(Murphy J) and 188-189 (Aickin J); 18 ALR 55.

116Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 582 (Mason CJ, Dawson, Toohey and Gaudron JJ); 66ALJR 271; 59 A Crim R 255; 106 ALR 11.

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Lacey and Wright ultimately argue that granting declaratory relief in accordance with theirsubmission would have foreseeable consequences.117 The proposal is in the same position. In the first

place, the treaty obligations concerned would hardly be superseded. Rather, they would presently be inforce on the international plane. Further, much as Lacey and Wright indicate,118 a declaration as towhether the Commonwealth had discharged treaty obligations in the applicants particularcircumstances could have substantial practical importance. It would satisfy any interest that anapplicant might have regarding the status of their treatment on the domestic plane under internationallaw. It would also have persuasive value in any negotiations between the parties regarding revision ofthat treatment. It could even attract public interest and discussion. It is no coincidence thatdeclarations are regularly considered an appropriate remedy in bills of rights based on treaties.119

Standing

An applicant for declaratory relief in accordance with the proposal must have standing. Someauthorities once appeared to consider this to be part of the requirement for a constitutional matter.120

More recent authority has decided otherwise.121 The clarification is of little consequence in this article.One way or another, it will always be necessary for an applicant under the proposal to establish

standing. On this point, Lacey and Wright did not see any difficulty for their submission. Naturally, anapplicant would need a sufficient interest in the subject matter of the relevant case, in accordance withthe principles established in Australian Conservation Foundation Inc v Commonwealth (1980) 146CLR 493; 54 ALJR 176; 45 LGRA 245; 28 ALR 257. However, this could not be a greater problemfor their submission than any other administrative law case.122

Standing is equally unproblematic for the proposal. As indicated, the proposal is limited toobligations under unincorporated treaties regarding the rights of persons within Australian territory.Further, an applicant must demonstrate that any failure to comply with those obligations has occurredin their particular circumstances. These requirements have the potential to give an applicant standing.In this context, standing requires a special interest in the subject matter of a proceeding beyond that of

117Lacey and Wright, n 81, pp 53-54.

118Lacey and Wright, n 81, p 54.

119See, eg Human Rights Act 2004 (ACT) (2004 Act), s 32, as explained in ACT Bill of Rights Consultative Committee,Towards an ACT Human Rights Act (2003) at [4.30], [4.34] and [4.38] (http://www.jcs.act.gov.au (viewed 2 May 2007));Charter of Rights and Responsibilities 2006 (Vic), s 36, as analysed in Human Rights Consultation Committee, Rights,

Responsibilities and Respect (2005) at [4.5.3] (http://www.justice.vic.gov.au (viewed 2 May 2007)). Note that Stellios J,Federal Dimensions to the ACT Human Rights Act (2005) 47 AIAL Forum 33 at 35 tentatively suggests that the provision fordeclaratory relief in the 2004 Act impermissibly fails to spawn a matter or the exercise of judicial power. If correct, thisconclusion would be just as perilous for the proposal. However, it seems to be based on the assertion that the 2004 Act does notactually create rights. This is difficult to accept. Read appropriately, the 2004 Act confers rights on individuals and enables themto litigate those rights. The latter process is subject to the limits deemed appropriate by the ACT Legislative Assembly. Anindividual is confined to declaratory relief. Further, the individual may only seek it wheRe (a) the alleged violation is by ACTlegislation or statutory instruments; and (b) that law is already at issue in a matter before the ACT Supreme Court to which theindividual is a party (see ss 6 and 32(1) (2)). Lastly, if a declaration is made, the 2004 Act denies the individual any otherremedy or impact on his or her legal status (see ss 7 and 32(3)). In particular, he or she remains wholly bound by the offendinglegislation or statutory instrument. However, none of these limits prevent the 2004 Act from supplying rights that ground amatter: compare Abebe v Commonwealth (1999) 197 CLR 510; 73 ALJR 584; 162 ALR 1; [1999] HCA 14. Further, in the

context of judicial power, it is unobjectionable that the 2004 Act provides for purely declaratory relief, in a concrete factual

situation, where that relief can have practical significance: compare Ainsworth v Criminal Justice Commission (1992) 175 CLR564 at 581-582 (Mason CJ, Dawson, Toohey and Gaudron JJ); 66 ALJR 271; 59 A Crim R 255; 106 ALR 11. The proposal, inits limited engagement of treaty obligations, is similarly defensible. See further Lindell G, The Statutory Protection of Rightsand Parliamentary Sovereignty: Guidance from the United Kingdom? (2006) 17 PLR 188 at 204-207, esp 206 and Evans S andEvans C, Legal Redress under the Victorian Charter of Rights and Responsibilities (2006) 17 PLR 264 at 270-271.

120Batemans Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 at 262(Gaudron, Gummow and Kirby JJ); 72 ALJR 1270; 98 LGERA 410; 155 ALR 684; [1998] HCA 49. See also Croome vTasmania (1997) 191 CLR 119 at 132 (Gaudron, McHugh and Gummow JJ); 71 ALJR 430; 91 A Crim R 238; 142 ALR 397.

121 Truth About Motorways v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591; 74 ALJR 604; 169ALR 616; [2000] HCA 11.



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the public at large.123 Applicants under the proposal could have that interest if, in their own situation,

they were specifically affected by the extent of the Commonwealths performance of obligations

regarding the rights of persons in Australian territory and could practically benefit from a declarationin the manner discussed.

Justiciability

There is one last requirement imposed by s 75(i). In East, a maj

Federal Treaty Jurisdiction

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