UNTANGLING THE HIGH COURT'S APPROACH TO INTERPRETING DOMESTIC STATUTES THAT INCORPORATE TREATIES.

• Author: Saunders, Samuel

I INTRODUCTION

In 1997, the eminent international jurist Ivan Shearer suggested that an 'important question' that was 'likely to grow in importance' was how to interpret a domestic statute that incorporates the text of a treaty. (1) The late Professor Shearer was correct. Australian courts face a growing docket of disputes that involve the interpretation of statutes that incorporate treaties (hereafter referred to as 'incorporated treaties'). (2) Despite Professor Shearer's suggestion that this topic would grow in importance, there has been little discussion in the literature on how to interpret incorporated treaties.' Whilst the past decade has seen a steady development of scholarship that examines the relationship between international and Australian law and recourse to principles of treaty interpretation by Australian courts, (4) commentators are yet to comprehensively explore the divergent judicial approaches that have emerged in the High Court's jurisprudence with respect to the interpretation of incorporated treaties. This contribution aims to fill this gap.

This article begins with a discussion of High Court decisions that interpret statutes incorporating all or part of a treaty (Part II). (5) A review of those decisions demonstrates that, prior to 2012, the High Court had consistently applied the Vienna Convention on the Law of Treaties to interpret incorporated treaties instead of the 'more familiar common law canons of interpretation'. (6) This approach is referred to as the 'orthodox' approach. (7) Commencing with the decision of Minister for Home Affairs of the Commonwealth v Zentai in 2012, (8) the High Court adopted a new approach whereby incorporated treaties must be interpreted according to rules of statutory construction. (9) One such rule is that a statute is interpreted and applied, so far as its language permits, so that it is in conformity and not in conflict with established rules of international law. (10) This approach is referred to as the 'insular' approach. (11) Recent decisions indicate that the High Court have returned to the 'orthodox' approach, (12) albeit with a caveat that subsequent agreement and practice cannot be used to interpret an incorporated treaty." This is referred to as the static 'orthodox' approach.

This article then attempts to untangle the confusion that has resulted from the High Courts adoption of the 'orthodox' and 'insular' approaches (Part III). It explores the differences between the two approaches and asks whether the High Court's adoption of both approaches may be explained by either the form of a treaty's incorporation or its substance. The author concludes that neither form nor substance reconcile the High Court's adoption of both approaches. In light of this conclusion, this article suggests that Australian courts should adopt the 'orthodox' approach. This is the approach that best achieves an interpretation that conforms with international law.

II THE 'ORTHODOX' AND 'INSULAR' APPROACHES

It is useful to frame this article with three preliminary points on the incorporation of treaties into statute. The first is that there is a 'long accepted dualism of international law and Australian domestic law'. (14) This means that treaties are not self-executing and, subject to any 'indirect' effects they may have, (15) will only give rights or impose duties on members of the Australian community where its provisions are given effect by statute. (16)

The second point is to clarify what this article means by 'incorporation'. This article uses the term 'incorporation' to refer to the 'formalised reconception of international law into domestic law'. (17) Courts and academics have used various terms to describe this phenomenon, including 'transformation', 'translation', 'implementation and 'incorporation' (among others). (18)

The third point is that a treaty may be incorporated into statute in different ways. (19) This article adopts the distinction between 'directly operative' and 'indirectly operative' treaties developed by K Walker QC. (20) The first category, and the subject of this article, is directly operative treaties (referred to as 'direct incorporation). This occurs where a statute gives effect to a treaty such that it is applied directly as the governing law. (21) Direct incorporation may be separated into two sub-categories. The first is 'complete' incorporation which occurs where the full text of the treaty is incorporated into statute. For example, a treaty may be scheduled to a regulation and given the force of law. (22) Alternatively, a treaty may be given force of law without being scheduled to the statute. (23) The second sub-category of direct incorporation is 'partial' incorporation. This occurs where only part of a treaty is incorporated into statute. (24) For example, a statute might reproduce a definition in a treaty in exact words, (25) or it may adopt a technical term that has a precise meaning under a treaty. (26)

The second category is indirectly operative treaties (referred to as 'indirect incorporation'). (27) This occurs where a treaty is 'not applied directly, but nonetheless has a role in the determination of a dispute'. (28) Indirect incorporation may take many forms, although two are commonly discussed in the literature. (29) The first is where a statute gives effect to a treaty but does not use the treaty's language. This form of indirect incorporation is common in Australia as it allows the legislature to avoid 'the uncertainty inherent in the drafting of many treaty provisions'. (30) For example, the World Heritage Properties Conservation Act 1983 (Cth) incorporates obligations under arts 5 and 6 of the World Heritage Convention into statute but utilises different language to the Convention. (31) In these cases, a court may have indirect recourse to the underlying tteaty through the statutory presumption that legislation is interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with Australia's international obligations (hereafter referred to as the Jutnbunna principle), (32) or through s 15AB(2)(d) of the Acts Interpretation Act 1901 (Cth). (33) The second form of indirect incorporation is where treaties act as 'qualified limitations on executive discretion'. (34) This occurs where 'statutory authorities, government departments and administrative decision-makers are given directions to take into account the provisions' of international instruments. (35) For example, legislation may provide that a government agency must perform its functions consistently with a specific treaty, (36) or Australia's international obligations generally. (37)

This article is concerned with direct incorporation. (38) This is because direct incorporation raises the fundamental question of whether a treaty should be interpreted as a statute or a treaty. The answer to this question effects the interpretative rules that a court applies. This question does not arise in cases of indirect incorporation because the treaty does not itself form part of domestic law. It is worth noting that recent literature has queried the utility of focusing on whether a statute 'incorporates' international law. (39) Edgar and Thwaites suggest that the significant point is not whether a statute 'incorporates' international law, but whether it enables 'enforcement' of international law. (40) The author's adoption of Walker's 'operativeness' framework remedies this criticism. This is because direct and indirect incorporation distinguish between treaties on the basis of how they operate and may be enforced. (41)

1. The 'Orthodox'Approach

   Prior to 2012, High Court decisions demonstrated a consistent approach to interpreting incorporated statutes. The first High Court decision directly to consider the topic was Shipping Corporation of India Ltd v Gamlen Chemical Co (A/asia) Pty Ltd. (42) This case turned on the interpretation of the International Convention for the Unification of Certain Rules of Law relating to Bills of Landing, (43) scheduled to the Sea-Carriage of Goods Act 1924 (Cth) and given force by s 4(1) of that Act." The appellant asserted that it was not liable for loss and damage to the respondent's goods on its ship because the weather conditions constituted a 'peril of the sea' under the Hague Rules. (45)

   In interpreting the Hague Rules, the NSW Court of Appeal relied heavily on the common law and applied traditional canons of statutory construction, such that 'a statute will be held not to change the existing law unless it clearly evinces an intention so to do'. (46) On appeal in the High Court, Mason and Wilson JJ disagreed with this approach. Their Honours explained that national courts, in the 'interests of uniformity', should construe treaties 'in a normal manner, appropriate for the interpretation of an international convention, unconstrained by technical rules of English law, or by English legal precedent, but on broad principles of general acceptation'. (47)

   Whilst Mason and Wilson JJ recognised that they should interpret the incorporated treaty unconstrained by English law and precedent, (48) their Honours considered decisions of foreign courts that considered 'words and expressions commonly used in the documentation by which international trade is transacted', where those words were also used in the Hague Rules. (49) In doing so, their Honours were cognisant that principles of treaty interpretation allowed 'recourse to the antecedent municipal law of nations for the purpose of elucidating the meaning and effect of the convention'. (50)

   The issue was raised over a decade later in Applicant A v Minister for Immigration and Ethnic Affairs. (51) In this case, the appellants travelled from China with their child and sought asylum in Australia, arguing that they feared sterilisation under China's 'one child policy' if they returned. (52) The central question was whether the appellants were 'refugees'...