Treaties, Legislation, and Democracy in Australia: A Legal Analysis

This essay provides an analysis of the implementation of international treaties within the Australian legal framework. It begins with an exploration of the Australian Constitution and its impact on domestic law, including the Bill of Rights and the protection of individual freedoms. The essay then dis...Read More

Public International Law
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Abstract
This essay related to the event of treaties and how it is incorporated in national laws. There have
been prior experiences from the Australian part in this instance where the international treaties
and agreements have most definitely influenced the law making decisions. The involvement of
the common voters in these implications is a recurring factor that could be stressed in such
situations. The liability either falls on the Government in question or the citizens that are
responsible for making these legislative processes possible. The essay tries to provide a unique
look into these specifications. The assertions drawn are to be informative and not judgmental.

Introduction:
This essay mainly aims to understand about the constitution of the Australia.The Australia
Constitution created the domestic government and fundamental legislation of Australia, and
guaranteed its citizens certain fundamental rights. The Bill of Rights is the first ten constitutional
treaties. It spells out the Rights of Australians to their state. It ensures individual civil rights and
freedoms — like free expression, liberty of the press, and liberty of religion.
Discussion:
The statement that has been made in the context of implementation of international treaties in
Australian Legislations. For example there are various international treaties which has been
adopted by the Australian legislatorsoffers several protections for freedoms: expressing thoughts
through expression and the press, assembling or gathering with a protest group or for other
purposes, and asking the government to solve issues. It also protects the right to convictions and
procedures of religion. It makes it impossible for the state to create or favor a religion.The
treaties has also been implemented to protect the rights of any individual who bears and
possesses an arm. The right of the individuals to hold and bear arms shall not be infringed upon a
well-regulated militia, which is essential for the safety of a free state1.Itprohibits the government
from forcing homeowners to use their homes to enable treaties. Legislation gave administrators
the right to take over private homes. It also limits the quartering of treaties in private households
without the approval of the owner, prohibiting the practice in peacetime. There are various
treaties which has been implemented that “the home of each man is his castle,” secured by the
state from unfair searches and seizures of land. There are treaties which protects against
arbitrary arrests and is the foundation of the law on search warrants, stop-and-term, security
checks, wiretaps, and other types of surveillance, as well as being central to many other subjects
related to international private law.The internationaltreaties offers several protections for
individuals charged with offenses. It says that a grand jury must launch severe criminal charges2.
A person cannot be attempted twice for the same offense (double threat) or take away property
without compensation. People are entitled to self-incrimination and cannot be jailed without due
1(Www5.austlii.edu.au, 2019) <http://www5.austlii.edu.au/au/journals/AUYrBkIntLaw/1969/5.pdf> accessed 31
August 2019
2(Scholarlycommons.law.case.edu, 2019) <https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?
article=2203&context=jil> accessed 31 August 2019

process of legislation (fair trials and processes). There are various treatieswhich offers extra
protection for individuals accused of offenses, such as the right to a public and speedy trial, trial
in criminal instances by an impartial jury, and criminal charges being informed. Witnesses must
face the accused, and the accused is permitted to be represented by a lawyer by his or her own
witnesses.Some of the international treaties are based on the inclusion in the Constitution of
particular freedoms does not imply that individuals do not have other privileges that have not
been stated. It states that only those powers are delegated by the Federal Government that are
mentioned or ruled-out in the Constitution. It belongs to the countries or to the individuals if it is
not listed.
The Australian Constitution's framers are based the federal government of the country on the
ground of federalism. Federalism is a power division between the federal government and the
governments of the individual states. Even though Australia still use federalism today, when the
Constitution was first adopted, it's not precisely what it was. Throughout Australia history,
federalism has developed. Some significant occurrences have influenced the equilibrium
between domestic and state governments to ensure that at that moment federalism best suits the
country's requirements3. The first federalism regime was dual federalism, which implies
countries have their duties and the national government has their duties. This is based mainly on
the internationaltreaties. Using dual federalism, each public entity has accountability for the
issues best dealt with at that stage of government. For instance, most things are handled by
countries themselves, but the federal government handles products such as our domestic defense
and interstate trade. The Australia used a federalism scheme known as cooperative federalism.
Federal and state duties are intertwined in collaborative federalism4.To provide services, the
federal government and governments of the state cooperate or work together. State governments,
for instance, often administer federal programs, and countries often rely on federal grants to
promote public programs.
The Australia shifted into new federalism in the 1970s5. New federalism enables states to regain
some authority while acknowledging the greatest regulatory authority in the federal government.
3Ibid
4 Todd Allee and Manfred Elsig, 'Are The Contents Of International Treaties Copied And Pasted? Evidence From
Preferential Trade Agreements' (2019) 63 International Studies Quarterly
5 Samuel Fankhauser, Caterina Gennaioli and Murray Collins, 'Do International Factors Influence The Passage Of
Climate Change Legislation?' (2015) 16 Climate Policy.

It is a reaction to the argument that the federal government has become too strong and has
overshadowed many of the duties that were initially reserved for the states.New federalism is
based on devolution's political philosophy6. Devolution is the federal government's transfer of
certain powers to the states.Established by the Constitution of the Australia, with the enactment
of the 1789 Judiciary Act, the Supreme Court started to take shape and has enjoyed a wealthy
history since its first meeting in 1790. The Supreme Court is profoundly linked to its traditions:
The Court bears the nearest similarity to its initial form of the three branches of the federal
government–a heritage of 225 years.The Court was to be composed of six members— although
the number of judges for most of its history was nine, that amount was set by Federal
Government, not by the Constitution.
The involvement of commonwealth parliament should also be mentioned as the drafts and the
final verdict on these treaties are done by them. Australia as part of the commonwealth group has
liabilities inferred on to it, much like Britain in European Union. Australia has signed seven core
treaties with the Commonwealth, as “International Covenant on Civil and Political Rights”,
“Convention on the Elimination of All Forms of Discrimination against Women” and
“the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment”. These treaties in the interest of the people of each single country have been
altered to Australian laws in “The Racial Discrimination Act 1975” and in the “Domestic Law
[1966]”.
Common wealth has affirmed that the treaties could be incorporated in the legislative body of
each nation involved for the showing of support and involvement. In addition, it would make the
transformation of related information’s among the countries more manageable. The decision is
somewhat flawed as the countries operate on separate economic and social hierarchy and thus
rule applied in one country could not be applied in another. There could be mention of Canada
who had done the same in past. But the final decision is truly up to the common people and their
outlook towards their common interest for these treaties.
The Australia history relates to the AustraliaFederal Government chronological record including
legislative meetings. In various phases of Australia history, Federal Government's role changed
along with altering relationships with other branches of government, and was sometimes marked
6(Mpil.de, 2019) <https://www.mpil.de/files/pdf3/mpunyb_10_neudorfer_14.pdf> accessed 31 August 2019

by intense partialism and other times by aisle-wide collaboration. Its relationships with other
public branches have altered over time. In the nineteenth century, Federal Government was
generally stronger than in the twentieth century, when the presidency became a more dominant
branch. The explanation that has been made with regards to usage of universal settlements in
Australian Legislations7. For instance there are different global settlements which has been
embraced by the Australian officials offers a few securities for opportunities: communicating
contemplations through articulation and the press, amassing or assembling with a challenge
gathering or for different purposes, and requesting that the administration tackle issues. It
additionally secures the privilege to feelings and methods of religion. It makes it unimaginable
for the state to make or support a religion. The settlements has likewise been actualized to ensure
the privileges of any person who bears and has an arm8. The privilege of the people to hold and
carry weapons will not be encroached upon a well-controlled local army, which is basic for the
security of a free state9. It forbids the administration from compelling property holders to utilize
their homes to empower arrangements10. Enactment gave chairmen the privilege to assume
control over private homes. It likewise constrains the quartering of bargains in private family
units without the endorsement of the proprietor, denying the training in peacetime. There are
different bargains which has been actualized that “the home of each man is his palace,” verified
by the state from unreasonable ventures and seizures of land. There are bargains which ensures
against self-assertive captures and is the establishment of the law on court orders, stop-and-term,
security checks, wiretaps, and different kinds of observation, just as being integral to numerous
different subjects identified with global private law. The worldwide settlements offers a few
assurances for people accused of offenses. It says that a fantastic jury must dispatch extreme
criminal allegations. An individual can't be endeavored twice for a similar offense (twofold risk)
or remove property without pay. Individuals are qualified for self-implication and can't be
imprisoned without fair treatment of enactment (reasonable preliminaries and procedures)11.
There are different arrangements which offers additional insurance for people blamed for
7Ibid
8 Caitlin Elizabeth Hughes, Nicholas Cowdery and Alison Ritter, 'Deemed Supply In Australian Drug Trafficking
Laws: A Justifiable Legal Provision?' (2015) 27 Current Issues in Criminal Justice
9 Clint Peinhardt and Rachel L. Wellhausen, 'Withdrawing From Investment Treaties But Protecting Investment'
(2016) 7 Global Policy.
10Edgar AR Thwaites, 'Implementing Treaties In Domestic Law: Translation, Enforcement And Administrative Law'
(Papers.ssrn.com, 2019) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3243173> accessed 31 August 2019
11Ibid

offenses, for example, the privilege to an open and rapid preliminary, preliminary in criminal
cases by an unprejudiced jury, and criminal accusations being educated12.
The Australian Constitution's framers are based the federal government of the country on the
ground of federalism. Federalism is a power division between the federal government and the
governments of the individual states. Even though Australia still use federalism today, when the
Constitution was first adopted, it's not precisely what it was. Throughout Australia history,
federalism has developed. Some significant occurrences have influenced the equilibrium
between domestic and state governments to ensure that at that moment federalism best suits the
country's requirements. The first federalism regime was dual federalism, which implies countries
have their duties and the national government has their duties. This is based mainly on the tenth
treaties. Using dual federalism, each public entity has accountability for the issues best dealt with
at that stage of government13. For instance, most things are handled by countries themselves, but
the federal government handles products such as our domestic defense and interstate trade. The
Australian Constitution's designers are based the government of the nation on the ground of
federalism. Federalism is a power division between the government and the administrations of
the individual states. Despite the fact that Australia still use federalism today, when the
Constitution was first received, it's not decisively what it was. All through Australia history,
federalism has created14. Some noteworthy events have affected the balance among residential
and state governments to guarantee that right then and there federalism best suits the nation's
necessities. The principal federalism system was double federalism, which suggests nations have
their obligations and the national government has their obligations15. This depends for the most
part on the universal settlements. Utilizing double federalism, every open substance has
responsibility for the issues best managed at that phase of government. For example, most things
are dealt with by nations themselves, however the central government handles items, for
example, our household guard and interstate exchange. The Australia utilized a federalism plan
12 K Hardy and G Williams, 'Australian Legal Responses To Foreign Fighters' (2019) 40 Criminal Law Journal.
13(D3n8a8pro7vhmx.cloudfront.net, 2019)
<https://d3n8a8pro7vhmx.cloudfront.net/edonsw/pages/1908/attachments/original/
1425252009/150227_ANEDO_Submission_on_Inquiry_into_the_Commonwealth%27s_treaty-
making_process_.pdf?1425252009> accessed 31 August 2019
14Ibid
15 Katharine Gelber and Luke McNamara, 'The Effects Of Civil Hate Speech Laws: Lessons From Australia' (2015)
49 Law & Society Review.

known as helpful federalism16. Government and state obligations are entwined in communitarian
federalism. To give benefits, the national government and legislatures of the state collaborate or
cooperate. State governments, for example, regularly oversee administrative projects, and nations
frequently depend on bureaucratic awards to advance open projects17.
Conclusion:
Therefore, it could really be felt that the Australia have a great history of international treaties. It
could be learned that the treaties were crucial for the Australia to enable and maintain the right of
every citizen of the country. It was also learned that Australia is best suited for democracy rather
than dictatorship type of governance. Spreading of powers between the country and its state
made it easier to become a dominating and most powerful governmental body in the world.
Importance of the institutions could also be formulated through this project. It was learned that
Federal Government played an important role in making the government of the country. Federal
Government was the reason behind reflecting the importance of presidential votes and
governance in the country.
16 J.C Tham and J Fudge, 'Unsavoury Employer Practices: Understanding Temporary Migrant Work In The
Australian Food Services Sector' (2019) 35 International Journal of Comparative Labour Law and Industrial
Relations.
17 K Wilkinson, 'Parchment As Power: The Effects Of Pre-Revolutionary Treaties On Native Americans From The
Colonial Period To Present' (2019) 8 The Purdue Historian.

Bibliography
Allee TM Elsig, 'Are The Contents Of International Treaties Copied And Pasted? Evidence From
Preferential Trade Agreements' (2019) 63 International Studies Quarterly
Fankhauser S, C GennaioliM Collins, 'Do International Factors Influence The Passage Of
Climate Change Legislation?' (2015) 16 Climate Policy
Gelber KL McNamara, 'The Effects Of Civil Hate Speech Laws: Lessons From Australia'
(2015) 49 Law & Society Review
Hardy KG Williams, 'Australian Legal Responses To Foreign Fighters' (2019) 40 Criminal Law
Journal
Hughes C, N CowderyA Ritter, 'Deemed Supply In Australian Drug Trafficking Laws: A
Justifiable Legal Provision?' (2015) 27 Current Issues in Criminal Justice
Peinhardt CR Wellhausen, 'Withdrawing From Investment Treaties But Protecting Investment'
(2016) 7 Global Policy
Tham J Fudge, 'Unsavoury Employer Practices: Understanding Temporary Migrant Work In The
Australian Food Services Sector' (2019) 35 International Journal of Comparative Labour Law
and Industrial Relations
Wilkinson K, 'Parchment As Power: The Effects Of Pre-Revolutionary Treaties On Native
Americans From The Colonial Period To Present' (2019) 8 The Purdue Historian
(Www5.austlii.edu.au, 2019)
<http://www5.austlii.edu.au/au/journals/AUYrBkIntLaw/1969/5.pdf> accessed 31 August 2019
(Scholarlycommons.law.case.edu, 2019)
<https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=2203&context=jil>
accessed 31 August 2019
(Mpil.de, 2019) <https://www.mpil.de/files/pdf3/mpunyb_10_neudorfer_14.pdf> accessed 31
August 2019

Edgar AR Thwaites, 'Implementing Treaties In Domestic Law: Translation, Enforcement And
Administrative Law' (Papers.ssrn.com, 2019) <https://papers.ssrn.com/sol3/papers.cfm?
abstract_id=3243173> accessed 31 August 2019
(D3n8a8pro7vhmx.cloudfront.net, 2019)
<https://d3n8a8pro7vhmx.cloudfront.net/edonsw/pages/1908/attachments/original/
1425252009/150227_ANEDO_Submission_on_Inquiry_into_the_Commonwealth%27s_treaty-
making_process_.pdf?1425252009> accessed 31 August 2019