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PM misunderstands international obligations.

PM Misunderstands International Obligations


Robert McClelland - Shadow Attorney-General


Media Statement - 16 March 2000


The Prime Minister today wrongly informed Parliament that the Private Members Bill moved by the Leader of the Opposition was in breach of a 1990 agreement between the Western Australian and Commonwealth Governments.


The existence of any such agreement or understanding has been denied by both Mr Joe Berinson, the then WA Attorney General, and the Hon Michael Duffy, the Federal Attorney General at the time.


Even if there had been an agreement, as falsely alleged by the Prime Minister, the agreement or understanding would have been invalid.


In Ansett Transport Industries (Operations Pty Limited) v The Commonwealth (1977), the High Court of Australia held that a contract or undertaking which constituted an anticipatory fetter upon the future exercise of a statutory power or discretion was invalid.


And in Attorney-General (NSW) v Quinn, Chief Justice Mason said:


• "I am unable to perceive how a representation made or an impression created by the Executive can preclude the Crown or the Executive from adopting a new policy".


The Prime Minister's ignorance of these matters is a national embarrassment.


If any State or Territory had wanted to insulate their legal system from the operation of the Convention they could have requested that a specific federation clause be inserted into the Convention itself which would have had the effect of exempting State Law from the operation of the Convention.


As the Attorney General's Department has confirmed in its letter of 2 March 2000, that clearly was not done.


As a result, Article 27 of the Vienna Convention, which governs the interpretation of international treaties and conventions, applies. That article provides that "a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty".


The Prime Minister should now clarify whether he intends to inform other signatories to the Convention that Australia is not prepared to face up to our international obligations.


Authorised by Gary Gray, 19 National Circuit, Barton ACT 2600.