Ratified treaty¹

Request of resident status by an immigrant/ Consideration of a ratified Convention not yet incorporated into national legislation/ Use of international law as a guide for intepreting domestic law

A Malaysian citizen, with a temporary entry permit, married an Australian citizen with whom he had many children. His application for resident status was refused by the Minister for Immigration on the basis of his convictions of serious drug offences. The defendant appealed that administrative decision.

The High Court of Australia had to determine whether the administration should have, when deciding on the residence status of the defendant, taken into consideration the principles of the Convention on the Rights of the Child might have had a positive impact on the decision.² That Convention was ratified by Australia but was not part of Australian law already. The Court declared that the administration had to reexamine the demand in light of the Convention principles.

To come to this conclusion, some judges of the Court elaborated on the legal value, in national law, of ratified treaties that are not yet incorporated into national legislation. The judges stated that in the case of non incorporation of international treaties into Australian law, those instruments could influence Australian law in two different ways: as interpretative tools of legislative acts and as legitimate guide in developing the common law.

 “It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute. (…) But the fact that the Convention has not been incorporated into Australian law does not mean that its ratification holds no signification for Australian law. Where a statute or a subordinate legislation is ambiguous; the Court should favor that construction which accords with Australia’s obligations under a treaty or international convention to which Australia is a party, at least in those cases in which the legislation is enacted after or in contemplation of, entry into, or ratification of, the relevant international instrument. That is because parliament, prima facie, intends to give effect to Australia’s obligations under international law. (…) If the language of the legislation is susceptible of a construction which is consistent with the terms of the international instrument and the obligations which it imposes on Australia, than that construction should prevail.”

As for the role of international conventions ratified by Australia but not incorporated in its internal judicial order as legitimate guide in developing the common law, the judges added:

 “The provisions of an international convention to which Australia is a party, especially one which declares universal fundamental rights, may be used by the courts as a legitimate guide in developing the common law. But the courts should act in this fashion with due circumspection when the parliament itself has not seen fit to incorporate the provisions of a convention into our domestic law. Judicial development of the common law must not be seen as a backdoor means of importing an incorporated convention into Australian law.”

The Australian High Court concluded that the administration had to re-examine the request of resident status made by the defendant, taking into account the principles of the Convention on the Rights of the Child.