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This article was originally published as Rose, G, The United Nations as a source of legal authority, Upholding the Australian Constitution, Proceedings of the 17th conference of the Samuel Griffiths Society, Coolangatta, 8-10 April 2005, 163-174. Copyright Samuel Griffiths Society. Proceedings available here.


What are the connections between the United Nations and The Samuel Griffith Society? One is that Australian constitutional lawyers are now examining the relationship between international law and constitutional law. Justice Kirby of the High Court of Australia first argued for the relevance of international law in construing the federal constitutional requirement of "just terms" in compensation for compulsorily acquired property (s. 51(xxxi)). In Newcrest Mining v. Commonwealth in 1997, he stated that in cases of ambiguity in the federal Constitution, "international law is a legitimate and important influence on the development of the common law and constitutional law, especially when international law declares the existence of universal and fundamental rights". The argument for the relevance of international law to constitutional interpretation was pressed in judgments by his Honour again in Kartinyeri v. Commonwealth in 1998, concerning interpretation of the power to legislate in relation to race (s. 51(xv)), and again almost each year subsequently. The argument has generated controversy and has been viewed critically by other High Court Justices. Justices Gummow and Hayne in Kartinyeri, Justices Gleeson, McHugh and Gummow in AMS v. AIF in 1999, and Justice Callinan in Western Australia v. Ward in 2002, each stated that it is inappropriate to apply the principles of international law to constitutional interpretation. In Al-Kateb v. Godwin in 2004, Justice McHugh described the argument as "heretical". Controversy concerning the relevance of international law to constitutional law is erupting also in other constitutionally and democratically governed States. In the USA, Justice Ruth Bader Ginsburg of the federal Supreme Court aroused public criticism for her 2003 address to the American Constitutional Law Society, which advocated a similar deference to international law in constitutional interpretation. However, her argument has since been supported by at least two other Supreme Court justices in the USA. Back in Australia, in legal fields beyond constitutional law, such as human rights law, environmental law and commercial law, questions concerning the role of international law are evident. They range from questions concerning the predominance of the Executive in treaty-making, to the wide legislative powers that treaties vest in Parliament, to the latitude available to judges when employing international law in the application of legislation and common law.

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