French, Robert --- "Oil and Water? International Law and Domestic Law in Australia" [2010] ELECD 430; in Hiscock, Mary; van Caenegem, William (eds), "The Internationalisation of Law" (Edward Elgar Publishing, 2010)

Book Title: The Internationalisation of Law

Editor(s): Hiscock, Mary; van Caenegem, William

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781849801027

Section: Chapter 14

Section Title: Oil and Water? International Law and Domestic Law in Australia

Author(s): French, Robert

Number of pages: 22

Extract:

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 his-
toric 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 inter-
national law on the development of the common law was no mere rhetori-
cal 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 discrimina-
tion 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 ...