Legislating, Decision-Making, Practice and Education
Edited by Mary Hiscock and William van Caenegem
Chapter 14: Oil and Water? International Law and Domestic Law in Australia
Chief Justice Robert French* INTRODUCTION It is a privilege to be invited to deliver this seventh lecture in the series of annual lectures in honour of Sir Gerard Brennan. His great contribution to the law in Australia is too well known to repeat. I am also honoured to be presenting the lecture under the auspices of the Bond University Law School on the occasion of its twentieth anniversary. My topic concerns the interface of international and domestic law, a subject to which Sir Gerard made a substantial contribution. In his historic judgment in Mabo, he referred to the decline of the concept of terra nullius at international law and its implications for the common law of Australia.1 His frequently quoted observation about the effect of international law on the development of the common law was no mere rhetorical flourish. He said:2 The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights. A common law doctrine founded on unjust discrimination in the enjoyment of civil and political rights demands reconsideration. He revisited the topic in Dietrich v The Queen,3 which recognised the right of an accused person to a fair trial and the power of a court to stay proceedings where the accused person is unrepresented and where such representation is essential to a fair trial. He referred to Article 14 of...
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