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Quasi-Incorporation of International Law in Australia: Broadcasting Standards, Cultural Sovereignty and International Trade

Published online by Cambridge University Press:  24 January 2025

Donald R. Rothwell
Donald R. Rothwell*
Affiliation:
Faculty of Law, University of Sydney
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Extract

Public awareness of the consequences of international law for Australians was highlighted during the battle in the 1980s to save the Franklin River in south-west Tasmania. That battle, which eventually resulted in the Commonwealth Parliament relying upon the provisions of the 1972 Convention for the Protection of the World Cultural and Natural Heritage to enact the World Heritage Properties Conservation Act 1983 (Cth), was finally resolved when the High Court of Australia in the Tasmanian Dain case upheld the validity of the legislation on the basis of the Constitution, s 51(xxix), the Commonwealth's external affairs power. This decision set off a sequence of events which resulted in subsequent High Court decisions that gave further scope to the external affairs power and which also gave the Hawke ALP government great confidence as to its ability to rely upon conventions and treaties, both bilateral and multilateral, as a source of legislative power.

Type
Research Article
Information
Federal Law Review , Volume 27 , Issue 3 , September 1999 , pp. 527 - 545
Copyright
Copyright © 1999 The Australian National University

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Footnotes

The assistance of Marion Jacka of the Australian Film Commission in the preparation of this article is acknowledged, as is the comment of an anonymous reviewer. However all errors or omissions remain the responsibility of the author.

References

1 1037 UNTS 151; Australian Treaty Series 1975 No 47.

2 Commonwealth v Tasmania (1983) 158 CLR 1.

3 For review see Rothwell, D R, “International Law and Legislative Power” in BR Opeskin and DR Rothwell (eds), International Law and Australian Federalism (1997) at 104-131Google Scholar.

4 See the discussion throughout Opeskin and Rothwell, ibid. See also P Alston and M Chiain (eds), Treah;-Making and Australia: Globalisation verses Sovereignty? (1995).

5 For a broader analysis of the relationship between international and municipal law in Australia see I A Shearer, “The Relationship Between International Law and Domestic Law” in B R Opeskin and D R Rothwell, above n 3 at 34-68; Crawford, J and Edeson, W R, “International Law and Australian Law” in KW Ryan (ed), International Law in Australia (2nd ed, 1984) at 71-135Google Scholar.

6 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490.

7 Australian Treaty Series 1988 No 20. For the principal Agreement, see Australia New Zealand Closer Economic Relations-Trade Agreement, Australian Treaty Series 1983 No 2.

8 Broadcasting Services Act 1992 (Cth), s 160(d).

9 Project Blue Sky comprised a group of like-minded individuals and associates who had the objective of encouraging the profitable growth of the New Zealand film and television industry.

10 Senate Legal and Constitutional References Committee, Trick or Treaty? Commonwealth Power to Make and Implement Treaties (1995).

11 For discussion of some of these reforms see A Twomey, “International Law and the Executive” in B R Opeskin and D R Rothwell, above n 3 at 69-103; B Campbell, “The Implementation of Treaties in Australia” in B R Opeskin and DR Rothwell, above n 3 at 132-159.

12 For example, Mabo v Queensland (No 2) (1992) 175 CLR l; Dietrich v R (1992) 177 CLR 292.

13 For example, Applicant A D Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331 and comment by Ward, C, “Applicant A v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331: Principles of Interpretation Applicable to Legislation Adopting Treaties” (1998) 26 F L Rev 207Google Scholar.

14 (1995) 183 CLR 272.

15 See in particular Allars, M, “One Small Step for Legal Doctrine, One Giant Step Towards Integrity in Government: Teoh's Case and the Internationalisation of Administrative Law” (l995) 17 Syd LR 204Google Scholar; M Allars, “International Law and Administrative Discretion” in B R Opeskin and D R Rothwell, above n 3 at 232-279; Twomey, A, “Minister for Immigration and Ethnic Affairs v Teoh” (1995) 23 FL Rev 348Google Scholar; Walker, K and Mathew, P, “Minister for Immigration v Ah Hin Teoh” (1995) 20 MULR 236Google Scholar.

16 (1989) 28 ILM 1448; Australian Treaty Series 1991 No 4.

17 This action has taken the form of two Executive Statements by the former and current governments, plus attempts to enact legislation designed specifically to counteract the decision in Teoh. See discussion in M Allars, “International Law and Administrative Discretion”, above n 15 at 262-269; Browhuis, S, “International law by the back door?” (1998) 72 ALJ 794Google Scholar; Katz, L, “A Teoh FAQ” (1998) 16 AJAL Forum 1Google Scholar; Duxbury, A, “The anti-Teoh Bill revisited” (1997) 35 International Law News 28Google Scholar; Piotrowicz, R, “Unincorporated treaties in Australian law: the official response to the Teoh decision” (1997) 7l ALJ 503Google Scholar.

18 See the decisions in Department of Immigration and Ethnic Affairs v Ram (1996) 69 FCR 431; Tien v Minister for Immigration and Multicultural Affairs (1998) 159 ALR 405.

19 999 UNTS 171; Australian Treaty Series '1990 No 23. For discussion see H Charlesworth, “International Human Rights Law and Australian Federalism” in B R Opeskin and DR Rothwell, above n 3 at 295-297. See also the War Crimes Amendment Act 1988 (Cth) and the decision in Polyukhovich v Commonwealth (1991) 172 CLR 501; and discussion in Thompson, J A, “Is It a Mess? The High Court and the War Crimes Case: External Affairs, Defence, Judicial Power and the Australian Constitution” (1992) 22 UWALJ 197Google Scholar.

20 Australian Broadcasting Authority v Project Blue Sky Inc (1996) 141 ALR 397.

21 Other indicators under which the ABA were to operate included:

the objects of the Act and regulatory policy;

general policies of the government as notified by the Minister;

directions given by the Minister in accordance with the Act.

22 Broadcasting Services Act 1992 (Cth), s 122 which outlines the obligation upon the ABA to determine standards for commercial and community television, including the commercial television standards for children and Australian content.

23 The Australian Content Standard, cl 7 provided a definition of an Auslralian program, of which factors taken into account included whether:

the program was produced under the creative control of Australians;

the Minister has issued a certificate;

the program was made under an agreement between Australia and another counby;

the producers were Australian and a percentage of the cast were Australian.

24 For comment see Henderson, A and Kelly, M, “Australia's Identitv Crisis: The Cost of Closer International Relations” (1996) 15(4) Communications Law Bulletin 26-27Google Scholar.

25 (1996) 141 ALR 397 at414 per Wilcox and Finn JJ.

26 Ibid. Wilcox and Film JJ relied upon the principle of generalia specialibus non derogant Northrop J dissented and was of the view that the provisions of s 160(d) of the Broadcasting Services Act were mandatory with the result that, if they were not complied with, a program statement which was inconsistent with that provision was invalid: ibid at 406. However, it was noted: “This conclusion is reached without considering whether a domestic law which is inconsistent with an obligation of Australia under a convention or agreement with a foreign country is invalid by reason of that inconsistency.”

27 (1998) 153 ALR 490 at 508 per McHugh, Gummow, Kirby and Hayne JJ.

28 Ibid at 512.

29 In this regard the Court, ibid, made reference to the Explanatory Memorandum accompanying the Bill which stated that cl 160 “Requires the ABA to perform its functions in a manner consistent with various matters, including Australia's international obligations or agreements such as Closer Economic Relations with New Zealand”.

30 (1998) 153 ALR 490 at 517 per McHugh, Gummow, Kirby and Hayne JJ.

31 Ibid at 517-518.

32 Ibid at 518-519. However, it was noted (at 518) that “In a case like the present, however, the difference between holding an act done in breach of s 160 is invalid and holding it is valid is likely to be of significance only in respect of actions already carried out by, or done in reliance on the conduct of, the ABA. Although an act done in contravention of s 160 is not invalid, it is a breach of the Act and therefore unlawful.” The Court made important comments (at 515-517) as to whether the provisions were directory rather than mandatory. See comments in Campbell, E, “Waiver by Agencies of Government of Statutory Procedural Requirements” (1998) 21 UNSWLJ 711 at 716-717Google Scholar.

33 Ibid at 504 per Brennan CJ.

34 The High Court also addressed the issue of mutually inconsistent provisions in the Broadcasting Services Acl, dismissing Lhe view thal the ABA was required to give preferential treatment to Australian programs and instead taking the approach that the ABA was required to determine standards that relate to the Australian content of programs with the result that there was no inconsistency with the legislation: ibid at 513-514 per McHugh, Gummow, Kirby and Hayne J).

35 See the discussion in M Jacka, “Further Blue Sky fall out” (November 1998) 149 Communications Update 4; PD Mattina, “When blue skies aren't true blue” (September 1998) 38 International Law News 36; Leiboff, M, “Football, meat pies, kangaroos and Holden cars? The arts and cultural implications of Project Blue Sky v Australian Broadcasting Authority” (1998) 3 Media and Arts LR 135Google Scholar; Brosnan, J, “True Blue v Blue Sky: Australian Content Standards in Doubt” (1998) 17 Communications Law Bulletin 1-2Google Scholar.

36 Flint, D, “The Blue Skies Decision and International Law” (1998) 17 Communications Law Bulletin 3 at 4Google Scholar. (Professor Flint is the Chairman of the ABA.)

37 See “Review of Australian Content Standard-Discussion Paper Released” Australian Broadcasting Authority Press Release (NR 68/1998: 15 July 1998).

38 See “ABA Releases Amendments to Australian Content Standard” Australian Broadcasting authority Press Release (NR 109/1998: 13 November 1998).

39 See “ABA Determines New Australian Content Standard” Australian Broadcasting Authority Press Release (NR 15/1999: 1 March 1999).

40 Senate Environment, Communications, Information Technology and Arts Legislation Committee ,Australian Content Standard for Television cf Paragraph 160(d) of the Broadcasting Services Act 1992 (February 1999).

41 Ibid, Recommendation 3, para 2.77.

42 Ibid, Recommendation 4, para 2.87. See also Appendix 10-Copy of Advice on Side Letter from the Attorney-General's Department.

43 Ibid, Recommendation 7, para 3.19.

44 Senator Richard Alston, “Australian Content of Australian television” Media Release 29/99, 19 March 1999.

45 Illustrations in Australia are the Civil Aviation (Civil Liability) Act 1959 (Cth); World Heritage Properties Conservation Act 1983 (Cth); Diplomatic Privileges and Immunities Act 1963 (Cth); Charter of the United Nations Act 1945 (Cth).

46 B Campbell, above n 11 at 145. This was an issue that particularly arose in R u Poole; Ex partc Henry (1939) 61 CLR 634 when the High Court was required to consider whether adjustment of metric measurements to imperial was acceptable.

47 See the discussion of these issues in Richardson v Forestry Commission (Tasmania) (1988) 164 CLR 261; Victoria v Commonwealth (1996) 138 ALR 129. Such a law may not necessarily fail for a want of constitutional power as it may be valid under another head of s 51 ors 52 power. See the discussion in D R Rothwell, above n 3 at 122-123.

48 Australian Postal Corporation Act 1989 (Cth), s 28.

49 Civil Aviation Act 1988 (Cth), s 1:1. Very similar provisions are found in the Air Services Act 1995 (Cth), s 9.

50 Customs Act190l (Cth)t s 269SK.

51 Endangered Species Protection Act 1992 (Cth), s 171.

52 Nuclear Non-Proliferation (Safeguards) Act 1987 (Cth), s 70. Section 70(4) and (5) make express reference to the 1967 Treaty on the Non-Proliferation of Nuclear Weapons, (1967) 7 ILM 809; Australian Treaty Series 1973 No 3, and the 1980 Convention on the Physical Protection of Nuclear Material (1980) 18 ILM 1419; Australian Treaty Series 1987 No 16.

53 Ozone Protection Act 1989 (Cth), s 45.

54 Sea Installations Act 1987 (Cth), s 13.

55 Telecommunications Act 1997 (Cth), s 366. Note that s 366(6) provides that “convention” extends not only to conventions to which Australia is a party but also includes agreements, arrangements, or understandings between a Minister and an official or authority of a foreign country.

56 See Air Services Act 1995 (Cth), s 9(3) which provides that Airservices Australia must perform its functions in a manner that is consistent with Australia's obligations under: the Chicago Convention any other agreement between Australia and any other countty or countries relating to the safety of air navigation.

See also Civil Aviation Act 1988 (Cth), s 11.

57 See Australian Postal Corporation Act 1989 (Cth), s 28 which provides that Australia Post shall perform its functions in a way consistent with Australia's obligations under any convention.

58 See the Customs Act 1901 (Cth), s 269SK (referring to obligations between Australia and another country which attach a rate of duty to the importation of goods); Nuclear Non-Proliferation (Safeguards) Act 1987 (Cth), s 70 which refers to named treaties and conventions; Chemical Weapons (Prohibition) Act 1994 (Cth), s 22 which refers to lhe 1993 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (1993) 32 ILM 800.

59 See Ozone Protection Act 1989 (Cth), s 45; Telecommunications Act 1997 (Cth), s 366.

60 Endangered Species Protection Act 1992 (Cth), s 171; see also Sea Installations 1987 (Cth), s 13.

61 I A Shearer, above n 5 at 55-57. See the Human Rights and Equal Opportunity Commission Act 1986 (Cth).

62 See Australian Postal Corporation Act 1989 (Cth), s 28. The predecessor Commonwealth statutory authority responsible for postal services in Australia was involved in an incident concerning international law in Bradley v Commonwealth (1973) 128 CLR 557 when postal services were denied to a representative of the government of Rhodesia pursuant to a United Nations Security Council Resolution.

63 See A Boyle and M Anderson (eds), Human Rights Approaches to Environmental Protection (1996).

64 See the provisions of Lhe Basel Convention on Lhe Transboundary Movement of Hazardous Wastes and Their Disposal (1989) 28 ILM 657.

65 See the 1989 Treaty between Australia and the Republic of Indonesia on the Zone of Cooperation in an Area between the Indonesian Province of East Timor and Northern Australia, Australian Treaty Series 1991 No 9.

66 See the 1993 Convention for the Conservation of Southern Bluefin Tuna Between Australia, New Zealand and Japan, Australian Treaty Series 1995 No 24; 1980 Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR); (1980) 19 ILM 841.

67 Trick or Treaty?, above n 10, paras 2.3-2.4.

68 (1998) 153 ALR 490 at 518 per McHugh, Gumrnow, Kirby and Hayne JJ.

69 Ibid at 517-518.

70 An example of these types of obligations is often found in human rights and environmental treaties, for example, Convention on Biological Diversity, Art Tl Cl992) 31 ILM 818.

71 (1998) 153 ALR 490 at 501.

72 For this author's discussion on the resolution of treaty-conflict, see B Boer, R Ramsay and DR Rothwell, International Environmental Law in the Asia Pacific (1997) ch 15. Cf 1969 Vienna Convention on the Law of Treaties, 1155 UNTS 331, Arts 30 and 50. For an example of a convention which seeks to internally resolve this issue of conflict between treaty provisions, see Convention on Biological Diversity, Art 22 (1992) 31 ILM 818.

73 This would include conventions dealing with topics such as maritime boundaries, fisheries, diplomatic and consular immunities, climate change, air transport, etc.

74 The relevance of these conventions for the ABA was noted in the submission to the Senate Environment, Recreation, Communications and the Arts Legislation Commiltee by Mr Campbell, Attorney-General's Deparbnent (27 November 1998).

75 Australian Treahf Series 1977 No 19.

76 Australian Treaty Series 1971 No 11.

77 Australian TreahJ Series 1995 No 8.

78 NARA Treaty, Agreed Minutes para 3.

79 Australian Treaty Series 1971 No 11.

80 OECD Convention, Art 5.

81 OECD Code, Art 1.

82 See the discussion in Pryles, M, Waincymer, J and Davies, M, International Trade LauJ: Commentary and Materials (1996) at 897-898Google Scholar.

83 For a discussion of the evolution of Australia's international personality and its ability to enter into international instruments, see DP O'Connell and J Crawford, “The Evolution of Australia's International Personality” in KW Ryan, above n 5 at l.

84 United Kingdom Treaty Series 1925 No 21. The Australian Treaty List indicates that following World War II the status of this treaty “was never determined”.

85 United Kingdom Treaty Series 1924 No 34.

86 United Kingdom Treaty Series 1923 No 30.

87 660 UNTS 195; Australian Treaty Series 1975 No 40.

88 999 UNTS 171; Australian Treaty Series 1980 No 23.

89 993 UNTS 3; Australian Treaty Series 1976 No 5.

90 1249 UNTS 13; Australian Treaty Series 1983 No 9.

91 28 ILM 1448; Australian Treaty Series 1991 No 4.

92 D Flint, above n 36 at 3.