Should Australia have to follow international human rights law?
Explain how international law and human rights obligations affect Australian law, and evaluate the extent to which Australia should comply with them.
How treaties become part of Australian law, the role of the external affairs power, the influence of international human rights obligations, and whether Australia should be bound by them.
Reviewed by: AI editorial process; not yet individually human-reviewed
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What this dot point is asking
You must explain how international law affects Australian law, the role of the external affairs power, and evaluate the extent to which Australia should comply with its human rights obligations.
How international law works in Australia
Australia signs and ratifies international treaties, such as human rights conventions. Signing a treaty creates an obligation in international law, but Australia follows a dualist approach: international law and domestic law are separate systems.
- A treaty does not become enforceable in Australian courts simply by being signed.
- Parliament must pass legislation to implement the treaty domestically.
- Until then, a treaty can influence how courts interpret statutes and develop the common law, but it does not directly create rights.
The external affairs power
The Commonwealth's power to implement treaties comes from section 51(xxix), the external affairs power. The High Court has interpreted this power broadly, holding that the Commonwealth can legislate to give effect to treaty obligations even on matters that would otherwise be state responsibilities.
Human rights obligations
Australia is a party to major human rights instruments, including the International Covenant on Civil and Political Rights. These obligations influence domestic law in several ways.
- They guide the interpretation of statutes, which courts read consistently with international obligations where possible.
- They shape government policy and law reform proposals.
- They expose Australia to international scrutiny and complaints to United Nations bodies, though such findings are not binding in Australian courts.
Because Australia has no national bill of rights, the gap between its international commitments and enforceable domestic rights is a recurring criticism.
Should Australia comply?
This is the evaluative big question, and a good answer argues both sides.
Arguments for strong compliance include the protection of fundamental rights, Australia's international reputation, consistency with the values the country promotes abroad, and the gap left by the absence of a bill of rights. Arguments for limiting compliance include the importance of parliamentary sovereignty and democratic choice, concerns that unelected international bodies should not dictate domestic law, and the broadening of Commonwealth power at the expense of the states.
Connection to the rest of the course
This dot point connects to rights protection in the Constitution, the division of powers, the role of parliament and the debate over a bill of rights. It is a strong basis for an independent inquiry into whether Australia adequately meets its international human rights commitments.
Exam-style practice questions
Practice questions written in the style of SACE Board exam questions on this dot point, with worked answer explainers. The year tag is the paper they imitate, not the source.
2018 SACE Stage 24 marksOutline four stages in the incorporation of treaties in Australian law.Show worked answer →
Award one mark for each correctly outlined stage (four needed).
Negotiation and signing. The executive (the relevant minister, through the Department of Foreign Affairs and Trade) negotiates the treaty and signs it, indicating Australia's intention to be bound. Signing alone does not make it part of domestic law.
Tabling and review. The treaty is tabled in Parliament and examined by the Joint Standing Committee on Treaties (JSCOT), which consults and reports on whether Australia should ratify.
Ratification. The executive formally ratifies the treaty, binding Australia under international law. At this point Australia has international obligations but the treaty still has no direct domestic effect.
Domestic legislation. Because Australia is a dualist system, Parliament must pass legislation (relying on the external affairs power in section 51(xxix)) to give the treaty force as part of Australian law.
2019 SACE Stage 210 marksCritically analyse the treaty-making process.Show worked answer →
A 10-mark "critically analyse" needs the process explained, strengths and weaknesses weighed, and a reasoned judgement.
- Outline the process
- Treaties are negotiated and signed by the executive, tabled and reviewed by JSCOT, ratified by the executive, and then given domestic effect by legislation under the external affairs power (Australia is dualist, so ratification alone does not change domestic law).
- Strengths
- The executive can negotiate efficiently and speak for the nation; JSCOT review and tabling add parliamentary scrutiny and transparency; requiring legislation preserves parliamentary sovereignty and the separation of powers, since the elected Parliament decides whether the treaty becomes binding law.
- Weaknesses
- The executive dominates - it negotiates, signs and ratifies, so the process is criticised as undemocratic; JSCOT's role is advisory only; and because treaties need separate legislation, Australia can ratify a treaty internationally yet fail to implement it domestically, creating a gap between its obligations and its law (relevant to human rights treaties).
- Judgement
- A strong answer concludes the process balances efficient diplomacy with democratic accountability, but the executive's dominance and the implementation gap are genuine shortcomings.
2018 SACE Stage 210 marksCritically analyse the relationship between the Australian legal system and international law.Show worked answer →
For 10 marks, explain the relationship, evaluate its strengths and tensions, and reach a judgement.
- The relationship
- Australia is a dualist system: international law (treaties and customary law) does not automatically become domestic law. Treaties bind Australia internationally once ratified, but only take domestic effect when Parliament legislates, usually under the external affairs power (confirmed in cases such as the Tasmanian Dam case). International law can also influence the development of the common law and the interpretation of statutes.
- Strengths
- Dualism protects parliamentary sovereignty and democratic accountability, since elected representatives decide whether international obligations become binding law. Engagement with international law lets Australia pursue trade, security and human rights goals and aligns its law with global standards.
- Tensions
- Australia can ratify treaties (for example human rights conventions) without fully implementing them, so individuals cannot always enforce those rights domestically. The expansive use of the external affairs power also shifts power from the states to the Commonwealth, raising federalism concerns.
- Judgement
- A balanced response concludes the relationship sensibly preserves sovereignty while allowing international engagement, but the gap between ratification and implementation weakens rights protection.