International human rights instruments 

Australia is a party to a number of international human rights treaties, covering subject matter such as civil and political rights, economic and social rights, and the rights of particular groups. Joining a treaty is a significant act of international commitment. It does not, however, automatically change what a court in Australia will enforce as domestic law. Understanding why requires understanding Australia's dualist approach to international law, a point treated in treaty incorporation in relation to international law generally and applied here specifically to human rights treaties.

Dualism: ratification is not incorporation

Australia treats international law and domestic law as two separate systems. Under this dualist approach, the Commonwealth executive can enter into and ratify a treaty as a matter of international law, binding Australia internationally, without that treaty automatically becoming part of Australian domestic law. For a treaty obligation to be directly enforceable by a person in an Australian court, it generally must be incorporated by domestic legislation that gives the treaty's terms, or some of them, legal effect within Australia.

This has an important consequence: a treaty Australia has ratified, and is bound by as a matter of international law, may nonetheless create no directly enforceable right or obligation in Australian domestic law if Parliament has not legislated to incorporate it. A litigant cannot simply point to the text of an unincorporated treaty and ask a domestic court to enforce it as though it were a statute.

Where incorporation has happened

Incorporation is not all-or-nothing across Australian law as a whole; it happens treaty by treaty, and sometimes only in part. Some Commonwealth legislation, including parts of the Commonwealth anti-discrimination Acts, was enacted specifically to give domestic effect to obligations Australia assumed under particular international human rights treaties. Where that has occurred, the relevant treaty obligation is enforceable in the ordinary way, through the domestic statute that incorporates it — the source of the enforceable right is the domestic Act, not the treaty text itself.

Indirect influence where a treaty is not incorporated

An unincorporated treaty is not simply irrelevant. Because Australia has voluntarily assumed the international obligation, an unincorporated treaty can still influence Australian law and decision-making indirectly, in at least two recognised ways.

• Statutory interpretation. Where legislation is ambiguous, courts will generally prefer a construction that is consistent with Australia's international obligations over one that is not, on the reasoning that Parliament is taken not to intend to legislate inconsistently with treaties Australia has joined, absent clear words to the contrary.
• Administrative decision-making. A treaty Australia has ratified can be a relevant consideration that a decision-maker exercising a statutory discretion should take into account, particularly where the decision affects a person's fundamental interests, even though the treaty does not itself confer a directly enforceable right on that person — Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273¹ held that ratification alone can found a legitimate expectation engaging procedural fairness.

That last route is no longer available. Minister for Immigration and Border Protection v WZARH [2015] HCA 40² held at [30], Kiefel, Bell and Keane JJ, that a person's legitimate expectation "does not provide a basis for determining whether procedural fairness should be accorded to that person or for determining the content of such procedural fairness", tracing the concept to "its rejection as a touchstone" of the duty. So Teoh's reasoning about what ratification generates is history. What survives is the narrower and still useful point above: an unincorporated treaty is not excluded from a decision-maker's consideration merely because it has not been incorporated. Argue practical unfairness, not disappointed expectation.

In both cases, the treaty is operating in the background, shaping how existing domestic law is read or applied, rather than functioning as a free-standing source of rights that a person can invoke directly.

Why this matters for the rest of the module

This indirect-influence pattern explains why international human rights instruments sit alongside, rather than substitute for, the Commonwealth anti-discrimination Acts and any jurisdiction-specific human rights charter or Act. The treaties often supply the underlying rationale and international benchmark for those domestic instruments, but a student answering a problem question about an individual's rights in Australia should always look for the domestic legal source — statute, charter, or general law — rather than citing the international treaty as though it were directly enforceable on its own.

The reframing came in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1³. Gleeson CJ held at [34] that an expectation "does not supplant the obligation" and that "[t]he ultimate question remains whether there has been unfairness; not whether an expectation has been disappointed", and at [37] that "the concern of the law is to avoid practical injustice". Argue practical unfairness.

Applying this in a problem question

1. Identify the international human rights treaty said to be relevant to the facts.
2. Ask whether that treaty, or the relevant part of it, has been incorporated into Australian law by legislation — if so, locate and apply that legislation directly.
3. If the treaty has not been incorporated, do not treat it as directly enforceable.
4. Consider whether the treaty can instead inform the interpretation of an ambiguous statute that is otherwise in play on the facts.
5. Consider whether the treaty could be a relevant consideration bearing on a discretionary administrative decision on the facts.
6. State clearly which domestic legal source — statute, charter, or general law — is actually doing the enforceable work, distinguishing it from the treaty's background influence.