[2] See Susan Downing, Treaty-Making Options For Australia, Parliamentary Research Service, Current Issues Brief No 17 (1996) 4-10.
[3] Senate Legal and Constitutional References Committee, Trick or Treaty? Commonwealth Power to Make and Implement Treaties (1995).
[4] Ibid 300-4. See generally Anne Twomey, 'Treaty Making and Implementation in Australia' (1996) 7 Public Law Review 4.
[5] Commonwealth, Hansard, House of Representatives, 2 May 1996, 231. See generally Glen Cranwell, 'The Treaty Making Process in Australia: A Report Card on Recent Reforms' [2001] Australian International Law Journal (forthcoming).
[6] Senate Legal and Constitutional References Committee, above n 3, Recommendation 11.
[7] Government Response to the Senate Legal and Constitutional References Report 'Trick or Treaty? Commonwealth Power to Make and Implement Treaties', tabled in the Senate on 2 May 1996, 'Comment' on Recommendation 11.
[8] Department of Foreign Affairs and Trade, Review of the Treaty-making Process (1999).
[9] For further detail, see Glen Cranwell, "Treaties and Australian Law - Administrative Discretions, Statutes and the Common Law" (2001) 1 Queensland University of Technology Law and Justice Journal 49.
[10] Despite the 'official' policy of ensuring that all necessary legislation is in place before a treaty is ratified, there have been a number of recent examples where treaties were entered into while Australia's laws remained in conflict with the requirements of the treaty. Examples include the Convention on the Rights of the Child and ILO Convention No 158 on the termination of employment.
[11] Commonwealth, Hansard, Senate Estimates Committee A, 24 May 1994, 12.
[12] Ivan Shearer, 'The growing impact of international law on Australian domestic law - implications for the procedures of ratification and parliamentary scrutiny' (1995) 69 Australian Law Journal 404.
[13] (1879) 4 PD 129, 150.
[14] Toonen v Australia, UN Doc CCPR/C/50/D/488/1992 (4 April 1994). The facts and history of the case are set out in Opeskin and Rothwell, 'The Impact of Treaties on Australian Federalism' (1995) 27 Case Western Journal of International Law 1, 47-54.
[15] ICCPR art 2(3)(a).
[16] See now Criminal Code Amendment Act 1997 (Tas).
[17] Commonwealth, Hansard, House of Representatives, 3 June 1974, 3248 (Mr Enderby).
[18] See, eg, Commonwealth, Hansard, Senate, 23 August 1995, 223 (Senator C Evans).
[19] James Hendry, Treaties and Federal Constitutions (1955) 89.
[20] See Anne Twomey, Procedure and Practice of Entering and Implementing International Treaties, Parliamentary Research Service, Background Paper No 27 (1995) 10.
[21] Advisory Committee on the Distribution of Powers, Report (1987) 88.
[22] See part 2 of this article, above.
[23] Senate Legal and Constitutional References Committee, above n 3, 284.
[24] Department of Premier and Cabinet, Victoria, 'Background Paper prepared for Inquiry into the Exernal Affairs Power of the Commonwealth' in Submissions to the Senate Legal and Constitutional References Committee: External Affairs Power, Section 51(xxix) of the Constitution (1995) vol 7, 1417, 1443.
[25] Advisory Committee on the Distribution of Powers, above n 21, 234 (Mr G Lindell). See also Constitutional Commission, Final Report (1988) vol 2, 746 (Professor Zines).
[26] Commonwealth, Hansard, Senate Legal and Constitutional References Committee, 14 June 1995, 622 (Mr J Daley).
[27] Luzius Wildhaber, Treaty-Making Power and Constitution: An International and Comparative Study (1971) 81.
[28] See generally Stefan Riesenfeld and Frederick Abbott (eds), Parliamentary Participation in the Making and Operation of Treaties: A Comparative Study (1994).
[29] Department of Premier and Cabinet, Victoria, above n 24, 1444.
[30] See generally John Trone, Federal Constitutions and International Relations (2001) ch 7.
[31] See Cranwell, 'The Treaty Making Process in Australia', above n 5.
[32] Louis Henkin, Foreign Affairs and the Constitution (1972) 130, 374.
[33] See Alona Evans, 'Self-Executing Treaties in the United States of America' (1953) 30 British Year Book of International Law 178, 190.
[34] Henkin, above n 32, 131.
[35] 299 US 304 (1936), 319.
[36] Senate Legal and Constitutional References Committee, above n 3, 167.
[37] Stefan Riesenfeld and Frederick Abbott, 'The Scope of US Senate Control Over the Conclusion and Operation of Treaties' in Riesenfeld and Abbott, Parliamentary Participation in the Making and Operation of Treaties, above n 28, 261, 266.
[38] Jean Smith, The Constitution and American Foreign Policy (1989) 108.
[39] Congressional Research Service, Treaties and Other International Agreements: The Role of the United States Senate (1984) 109.
[40] Riesenfeld and Abbott, 'The Scope of US Senate Control Over the Conclusion and Operation of Treaties', above n 37, 267.
[41] See Cranwell, 'Treaties and Australian Law', above n 9, 50-2.
[42] Strictly, if a treaty is not self-executing it is not the treaty but the implementing legislation that is effectively 'law of the land'.
[43] 2 Pet 253 (1829).
[44] Ibid 314.
[45] Edye v Robertson 112 US 580 (1884), 598.
[46] Commissioner of United States Citizens Living in Nicaragua v Reagan 859 F 2d 929 (1988), 937.
[47] John Jackson, 'United States' in Francis Jacobs and Shelley Roberts (eds), The Effect of Treaties in Domestic Law (1987) 150.
[48] Lori Damrosch, 'The Role of the United States Senate Concerning "Self-Executing" and "Non-Self-Executing" Treaties' in Riesenfeld and Abbott, Parliamentary Participation in the Making and Operation of Treaties, above n 28, 205, 205.
[49] Quoted in Virginia Leary, International Labour Conventions and National Law (1982) 35.
[50] Of recent articles, see Stefan Riesenfeld, 'The Doctrine of Self-Executing Treaties and US v Postal: Win at Any Price?' (1980) 74 American Journal of International Law 892; Yuji Iwasawa, 'The Doctrine of Self-Executing Treaties in the United States' (1986) 26 Virginia Journal of International Law 627; John Jackson, 'Status of Treaties in Domestic Legal Systems: A Policy Analysis' (1992) 86 American Journal of International Law 760.
[51] 589 F 2d 862 (1979), 876.
[52] Myres McDougal (1951) 45 Proceedings of the American Society of International Law 102.
[53] 242 P 2d 617 (1952).
[54] Ibid 620.
[55] Ibid 621-2.
[56] Cf the Crown prerogative in Australia.
[57] John Novak and Ronald Rotunda, Constitutional Law (4th edn, 1991) 215-6; Jackson, 'United States', above n 47, 143-3.
[58] Edward Corwin, The Constitution of the United States of America: Analysis and Interpretation (1953) 437.
[59] Lock Johnson, The Making of International Agreements: Congress Confronts the Executive (1984) 13.
[60] Henkin, Foreign Affairs and the Constitution, above n 32, 175-6.
[61] See Trade Expansion Act 1962 (USA).
[62] Riesenfeld and Abbott, 'The Scope of US Senate Control Over the Conclusion and Operation of Treaties', above n 37, 266.
[63] See 'Treaties and Other International Agreements' (1973) 67 American Journal of International Law 125, 126 (emphasis added).
[64] Louis Henkin, Constitutionalism, Democracy, and Foreign Affairs (1990) 58.
[65] (1985) 159 CLR 70, 157.
[66] Stephen Donaghue, 'Balancing Sovereignty and International Law: The Domestic Impact of International Law in Australia' (1995) 17 Adelaide Law Review 213, 241.
[67] Commonwealth, Hansard, Senate, 31 May 1995, 661.
[68] Clause 3.
[69] Clause 5(2).
[70] Clause 6.
[71] Clause 9.
[72] See Senate Legal and Constitutional References Committee, above n 3, 279.
[73] See Australian Security Intelligence Organisation Act 1979 (Cth) Part VA which creates and makes secret most proceedings of the Joint Committee on the Australian Security Intelligence Organisation. Cf Case Act.
[74] See Twomey, above n 20, 15.
[75] Some of these issues were canvassed by Burmester: Commonwealth, Hansard, Senate Legal and Constitutional References Committee, 1 May 1995, 29-30 (Mr H Burmester).
[76] Senate Legal and Constitutional References Committee, above n 3, 296-7.
[77] Henry Burmester, 'The Power of the Parliament to Enact Legislation Regulating the Treaty Process', Opinion, in Submissions to the Senate Legal and Constitutional References Committee, above n 24, vol 9, 2149, 2155.
[78] Governments of the States and Territories of Australia, 'Submission to Inquiry into the External Affairs Power of the Commonwealth' in Submissions to the Senate Legal and Constitutional References Committee, above n 24, vol 6, 1327, 1331.