As Kirby write, "In most countries whose legal systems are based upon the common law, international conventions are not directly enforceable in national courts unless their provisions have been incorporated by legislation into domestic law. However, there is a growing tendency for national courts to have regard to these international norms for the purpose of deciding cases where the domestic law - whether constitutional, statute or common law - is uncertain or incomplete. While it is desirable for the norms contained in the international human rights instruments to be still more widely recognised and applied by national courts, this process must take fully into account local laws, traditions, circumstances and needs."
There are many impediments for direct application of international human rights law, factors like state sovereignty, the dualist view on the relation between international law and municipal law and implementing legislation. However there has been an interesting development where jurist and human right activists are identifying themselves with a unified international community (Barak-Erez, 2004).
This trans-judicial communication is seen not only in the application of international norms, but also in the recourse to comparative la...
Except in the case of a treaty of peace, which obviously can affect the rights of enemy aliens, a treaty not incorporated by statute does not affect the rights or liabilities of Australian citizens.
Although the principle has been consistently stated by courts of the highest authority, it is subject to some important qualifications. One of them was introduced by the decision of the High Court in Minister for Immigration and Ethnic Affairs v. Teoh. Ah Hin Teoh was a Malaysian citizen living in Australia under a temporary entry permit. He was convicted of drug offences and sentenced to six years imprisonment. His permanent entry permit was refused and it was ordered that he be deported. However the fact that his children lived in Australia gave the case an interesting twist.
The Court (McHugh J dissenting), considering the ratification of the UN Convention on the Rights of the Child, declared it the best interests of the children would be a primary consideration.
Teoh's Case has been an example for many Federal Court deportation cases. Incidentally, it is the sole example of the pervasive effects of international law on national law. The Australian Constitution neither mentions international law nor the role such norms should play in the interpretive process (Williams and Hovell, 2005). While earlier drafts of the Constitution incorporated greater reference to the relationship between international treaties and the domestic legal system, these were removed from the version that was enacted. It has been interpreted by the High Court to enable the Parliament to pass laws that implement any obligation that the federal executive