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Published: Fri, 02 Feb 2018
Australia is a dualist country
Australia is a dualist country – its domestic law does not automatically incorporate public international law. However, international law is influential in many ways on Australian domestic law. Discuss these influences and explain why you think Australia’s dualist model is/is not more advantageous than a monist model.
Australian legal system is dualist, which means the municipal law does not incorporate international law automatically. The law adopts a dualist ‘have no direct effect in national law in the absence of legislation to transform them into rules of the municipal legal order’. However, the influences of international law for Australian legal system are apparent and noticeable. The debate of the adaption of dualist or monist in Australia as well as other countries has never discontinued. A broad range of arguments had linked to this issue. This essay will mainly focus on the influences of international law for Australia legal system at first. Then, it concentrates on the analysis of the advantages and disadvantages of dualist and monist. At the end of the essay, it shows that the monist is suitable for Australia legal system at least in the current stage.
The (public) international law is influential in Australian law mainly through legislation、common law、statutory interpretation and the exercise of administrative discretion.
The federal government can enact legislation to incorporate the international obligation such as treaty into Australian municipal law. In section 51(xxix) of the Australian Constitution, the parliament has the power to make laws for the external affairs. A number of legislations which related to the treaty obligations have been passed by the federal government especially in the international human right area. For instance, the Racial Discrimination Act 1975(Cth) is one of the legislations enacted by the Australian parliament according to the power which has been granted by the Constitution. Australia signed the forms of racial discrimination in the International Convention on the Elimination (IRERD). When Australia signed that form, it did not mean the content of those forms have been legally binding by Australian compared with the effect of Australian municipal law because of the dualist legal system. However, when the parliament enacted this act, as it shows in the Racial Discrimination Act 1975(Cth):
Whereas a Convention entitled the “International Convention on the Elimination of all Forms of Racial Discrimination” … was opened for signature on 21 December 1965:
And whereas it is desirable, in pursuance of all relevant powers of the Parliament, including, but not limited to, its power to make laws with respect to external affairs, with respect to the people of any race for whom it is deemed necessary to make special laws and with respect to immigration, to make the provisions contained in this Act for the prohibition of racial discrimination and certain other forms of discrimination and, in particular, to make provision for giving effect to the Convention.
The contents in those forms from IRERD which signed by Australian governments in IRERD has been transformed into the municipal law by Australian parliament. This is the most significant influential of Australian municipal law by international law due to the authorization of the constitution.
The common law plays an indispensable role in Australia legal system. It has been expanding by the international law. The case of Mabo v Queensland [No 2] is the leading case in this issue. As indicated by Andrew, in Australia this case ensured the influence of international law in common law. In this case, the rule of international law is different with the doctrine of the common law for the constitution of the terra nullius. The Justice Brennan refused to apply that doctrine because he believed that
The doctrines of the common law which depend on the notion that native peoples may be “so low in the scale of social organization” that it is “idle to impute to such people some shadow of the rights known to our law” can hardly be retained. If it were permissible in past centuries to keep the common law in step with international law, it is imperative in today’s world that the common law should neither be nor be seen to be frozen in an age of racial discrimination.
Although the Justice Brennan claimed that the common law will not automatically follow the international law, he pointed out that the international is important role to influence and develop the common law. Because some doctrines of common law are behind the time, it is useful and beneficial for justices to adapt some principles of the international law to develop it if they believe it is necessary.
International law also has influence in Australian legal system through statutory interpretation. If there are doubt about the statutory, interpretation should be interpreted in consistent with international law (customary international law). However, because international law is only one of the sources instead of the part of the domestic law in Australia, this indicate that the ‘legislature is taken not to have intended to legislate in violation of the rules of international law must give way where the words of the statute are inconsistent with the implication.’ So the international law is just the ‘guide’ of statutory interpretation.
Administrative decisions should consider the public international law (treaty) which signed by Australia even though it has not been transformed into domestic law. However, the principle of the legitimate expectation is not very effective at this stage. Appleby indicated that although Government would act in consistent with the treaty, this did not mean that the Executive was bound to act according to the treaty. It needed to present an indication to individuals if it were not going to act that way when making its decisions.
The analyses above mainly focus on the influence of the international law for Australian legal system. The distinct between those two systems point to the relationship between the domestic law and international law. The dualist model requires the transform of international law to avoid conflict between domestic law and international law in Australia. However, the monist model does not need it. The monist school maintained that both the international law and municipal law are belonged to the identical legal order. It means that if there are conflicts between those two systems, the domestic law will void automatically. Australia is a dualist country.
For the beginning of this argument, it is important to point out that there are possibilities that international law may be used by domestic politicians to remove political dissidents. Slaughter and White argue that:
The most significant danger … of international law, however, lies in the potential of national governments to co-opt the force of international law to serve their own objectives domestic politicians can influence or even control the international legal organizations to serve for their own purposes.
They indicate if the international law can override the municipal law without any conditions, the countries or states have been required to accept the interference for the domestic politics. In that case, the politicians can make use of the international to manipulate the local politics. Although this situation seldom has the opportunity happens in Australia, it can not disregard it when discuss this issue.
Although there are some flaws of monism, monism is more suitable in Australia today compared with the dualism.
International cooperation is essential today especially in some area such as human right、anti-terrorism etc. Monism at least provides a platform in legal aspect for cooperation. For instance, Australia has signed the forms in IRERD as well as other countries. Due to the dualism system in Australia, the documents which sighed by Australia can not legally binding for the public. Although there are some acts such as Racial Discrimination Act 1975(Cth) or Human Right Act 2005(Act) which has been enacted by the government, there is still no Bill of Right in Australia. If the documents which signed in IRERD as well as other treaties which have been signed by Australian Government can be direct used in Australia, which means if Australia adapt the monism, there might be no necessary as least can decrease the debates of whether the Bill of Rights in Australia is essential or not.
In addition, due to the reason above, monism is beneficial for Australia to update it outdated clause. A great number of Australian legal principles are come from British and some of which are hundred years ago. During the legal practise, the justices can override the old precedent and update it by make use of the international law.
And what is more. Monist system can provide the last chance for the justice when domestic legal institutions such as court failed to act it if the justices can directly use the international law such as treaty and customary international law in domestic court. As indicate by Slaughter and White, the International Criminal Court (ICC) provides a ‘backstopping’ when the state ensures the prosecution of an accused criminal even though the state failed or refused to do so. Admition of the court decision in international court is the basic step for Australia to enact it. The dualism is ineffective to enact the result by international court. However, if make use of monism, Australia local court can use the doctrine which developed by international court directly.
In conclusion, international law plays in essential role in the current Australian legal system. It has influential the Australia law not only in the Justice System, but also in the area of legislation as well as the exercise of administrative discretion. Although Australia adapts the dualist system, it is not take the advantages compared with monist. The monist will update and develop the Australian legal system which makes Australia in the better station in the era of globalization.
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