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International Law in Australia

International Law in Australia. By: Adam Molly and Shaneel. Australia and Treaties . The Commonwealth has the power to sign treaties on behalf of the Australian people External Affairs power (Section 51[29]) Aus. Constitution

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International Law in Australia

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  1. International Law in Australia By: Adam Molly and Shaneel

  2. Australia and Treaties • The Commonwealth has the power to sign treaties on behalf of the Australian people • External Affairs power (Section 51[29]) Aus. Constitution • Treaty making is the responsibility of the executive arm of federal government

  3. International law and Government Authorities • Minister for immigration and Ethnic affairs v Teoh 1995 • Convention on Rights of the Child

  4. International Reporting • Human Rights committees • Internal and external pressures • ATSIC and racial discrimination act 1975

  5. Individual Complaints • The power of Individual complaints • Toonen v Australia, International Human Rights Committee 1994 • Facts • Articles 17 and 26 ICCPR

  6. Treaties and Australian legislation • In Australia usually legislation is required to make a treaty binding. • E.g Australia’s federal parliament passed the Sex Discrimination Act [1984] (Cth) to comply with treaty obligations under the EDAW (1979). • The Commonwealth parliament has the power to pass legislation to comply with treaty obligations as set out in Section 109

  7. Who decides? • Formally exercised by the Governor General under the advice of the Federal Executive Council. • Made up of the Prime Minister other ministers and Parliamentary secretaries • In practice the decision is taken by the cabinet or by relevant ministers. • Parliament has no formal role in the decision to enter a treaty • Parliament approval is required for the application of funds or to pass the legislation which will input the treaty into domestic law • Ratification is performed by the Governor General

  8. Nulyarimma v Thompson (1999) Appeal by four individuals against a decision to refuse issue warrants for the arrest of certain politicians Alleged that genocide had been committed with the support of the ‘Ten Point Plan’ and the Native Title Amendment Bill 1997 Because the Genocide Convention Act 1949 had not been ratified into Australian Law, the decision of the court meant that genocide was not a crime under Australian law, hence the appeal failed After the decision the Anti-Genocide Bill 1999 was introduced into parliament to amend the GCA 1949, to create a specific offence for genocide. It was not passed, however genocide has become a crime if universal jurisdiction under Australian Law.

  9. Wooley & Anor (2004) • This case brought to seek the release of children in immigration detention. • The argument in favour was international human rights standards to which Australia was signatories, including Article 37(b) of CROC. • The High Court acknowledged the inconsistently between international law and the Migration Act. However a national court such as the High Court must give effect according to national laws, because it has no authority to do otherwise.

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