The way law works today is more complicated than ever.
As the world becomes ever more connected and technology changes how we live and do business, the legal systems that once applied mainly within individual countries now must work alongside international rules and agreements. Whether they pertain to human rights, trade, cybersecurity, or artificial intelligence, laws are no longer just local—they are shaped by global institutions, treaties, and cross-border influences.
This article takes a closer look at how the law both holds things together and serves as a battleground for different interests, using Australia’s legal system as an example. It lightly touches upon the push and pull between national independence and international commitments, the challenges of adapting old legal principles to new global issues, and how governments, businesses, and individuals navigate this increasingly interconnected legal landscape.
Domestic Framework
Australia follows a common law system influenced by British legal traditions. Laws are developed through legislation made by parliament and decisions made by courts. Another key point about Australia’s local legal framework is that it operates under a federal legal system, meaning laws are made and enforced at both national and state/territory levels.
The Australian Constitution establishes the structure of government and legal authority, generally dividing powers as follows:
- Legislative (Parliament) – Makes laws.
- Executive (Government) – Enforces laws.
- Judicial (Courts) – Interprets and applies laws.
Legislation and decisions are interpreted and applied both by federal and state courts, with the High Court of Australia being the highest court of appeal in the country.
Laws of the land developed through that ongoing process form the rules governing day-to-day life in Australia, from relationships between landlords and their tenants, through businesses and their customers, to regulations applying to banks and professional service providers. They also specify what kind of actions and conduct constitute criminal offences and set out corresponding penalties and punishments.
What does it look like in action?
Theoretically, federalism and the separation of powers sound like nuanced, complicated concepts. Their roots in political philosophy certainly would demand a far more detailed study.
However, for simpler purposes of understanding how the domestic legal system works in practice and getting a glimpse of the system in action, we may turn our attention to an excerpt from a recent High Court of Australia decision, per Edelman J:[1]
‘In The Commonwealth v AJL20, the majority joint judgment said that ss 189(1) and 196(1) of the Migration Act “are valid in all their potential applications”. In the context of the whole of their reasons, their Honours cannot be taken to have expressed that proposition without qualification. In NZYQ, six members of the Court qualified the proposition in The Commonwealth v AJL20 by holding that ss 189(1) and 196(1) did not apply where the legitimate purpose of removal of classes of aliens from Australia was “refute[d]” in particular cases in which removal had no real prospect of being achieved as a matter of practicality in the reasonably foreseeable future. Again, in the context of the whole of their reasons, their Honours cannot be taken to have expressed that proposition without qualification. The proposition should be heavily qualified. A Commonwealth law that authorises or requires executive detention will only have an illegitimate, punitive purpose (in the strict sense of punishment) if an inference can be drawn that the law concerns the purposes of punishment, such as retribution or deterrence. No such inference can be drawn concerning ss 189(1) and 196(1) in the context of the Migration Act as a whole.
The means of detention adopted in ss 189(1) and 196(1) are also not “punitive” (in the different, loose, sense of disproportionate) in their application to aliens in the position of ASF17. In the absence of any submission suggesting any significant gap in the scheme of protection provided for in the Migration Act, it must be accepted that the detention required by ss 189(1) and 196(1) is reasonably capable of being seen as necessary for the purpose of removal of classes of aliens whose removal can occur with their assistance to a country where they have been found under the Migration Act scheme not to be in need of protection.’
In that case, the High Court of Australia was tasked with deciding whether the indefinite detention of AS17, an Iranian national, violated constitutional limitations against punitive detention. It called for the court’s consideration of specific provisions of the Migration Act 1958 (Cth) as well as principles the court previously expressed in a similar case, namely NZYW v Minister for Immigration.[2]
The excerpt demonstrates the process Edelman J undertook, applying relevant legislation and case law principles to reach a conclusion in a topical migration matter. Upon application of the authorities to the matter before it, the High Court of Australia concluded that ASF17’s continued detention was lawful, as it was directly linked to a statutory objective of removal, and not otherwise punitive in nature. The excerpt also underscores the methodical approach of courts to statutory interpretation, carefully considering legislative intent and adhering to established precedents in resolution of legal issues.
Another example
Similarly, other federal and state courts apply relevant local laws in the form of legislation and case law precedents to legal issues that come before them. For example, the Court of Appeal of the Supreme Court of Queensland considered in R v Smith (aka Stella), per Davis J:
‘The evidence was not properly presented to the jury. The legal concept of “substantially impaired” as it appears in s 304A ought to have been properly explained to the doctors before they formed their opinions about the medical issues. The doctors should have been asked to describe the abnormality of mind which existed and then give their opinion as to whether that abnormality had or had not substantially impaired any of the three capacities. They should have been asked to identify the facts supporting the opinion and to explain the reasoning by which their conclusion flowed from the facts proved so as to reveal that their conclusion was based on their expertise.
Once the inadmissible expert evidence had been given a miscarriage was inevitable. In R v Tonkin Dunn J said:
“Difficulties will sometimes arise if an expert, in expressing an opinion, uses the ipsissima verba of a statute, which the expert may do in all good faith. For instance, a doctor giving evidence in a ‘diminished responsibility’ case may — as Dr Parker did in this case — speak of a ‘substantially impaired capacity’. If that happens, it seems to me, the jury should be cautioned that, whilst the words chosen by the doctor are words which he finds apt to express his personal point of view, it is the sole province of the jury to determine — having regard to the directions as to the law to be given by the judge — whether the accused has a ‘substantially impaired capacity’ within the meaning of s.304A; and that the medical evidence may be used in appraising all the evidence, but is not to be treated as definitive of capacity.”’ [3]
In that case, the Court of Appeal was tasked with deciding whether a miscarriage of justice had occurred in a murder trial. It called for the court’s consideration of specific provisions of the Criminal Code 1899 (Qld) as well as a discussion of the effects of expert evidence on juries explored in R v Tonkin.[4]
The excerpt from Davis J’s judgment demonstrates the process of interpreting and applying laws in a slightly different light—a state court applying the Criminal Code and case law principles to a criminal law appeal.
The legal framework represented by both the above excerpts governs every aspect of daily life, from individual rights and business regulations to criminal justice and family law.
International Law
International law, on the other hand, serves as a rulebook for how countries interact with each other. Since there is no single global government that exists to enforce laws around the world, countries follow rules based on agreements, customs, and mutual respect.
Present sources of international law include:
- Treaties – Comparable to contracts between countries who mutually agree to follow certain rules, such as trade deals or human rights protections.
- Customary international law – Unwritten rules that countries follow because they have been doing so for a long time, for example the principles of diplomatic immunity and non-refoulement (a principle that people cannot be forced to return to a country where they face persecution).
- Decisions of international courts and legal experts – While not always binding, courts like the International Court of Justice exist to help interpret international law.
When a country agrees to follow an international law such as by its signing of a treaty, it generally does not automatically become part of that country’s local laws. Instead, the country must go through a process to ratify or adopt that international law into its legal system. Though specifics of the process vary depending on the respective legal frameworks of countries (monist systems as against dualist systems being a key variable), integration usually differs from the act of signing a treaty.
Step by step, a new international law being adopted into a country’s legal system might take place as follows:
- Signing the Agreement – A representative of the country signs a treaty, showing that the country agrees with it in principle.
- Ratification – The government takes the treaty home and decides whether to make it legally binding, often through a decision made by parliament. Once approved, the country formally ratifies the treaty.
- Adoption into Local Law – Some countries, such as Australia, must pass new laws to make the newly ratified international law work locally. Others, such as the United States of America, may automatically apply treaties to their existing legal systems so long as they do not conflict with existing local laws.
- Enforcing the New Law – Once the international law becomes part of a country’s local laws, courts in that country may use it in the making of decisions on legal issues that come before them.
Essentially, signing a treaty is like a country agreeing to a new rule, while ratification and domestic lawmaking are what make it enforceable in that country.
As one significant example, the International Criminal Court which sits in the Netherlands was established through the Rome Statute of the International Criminal Court, a treaty adopted in 1998, signed by 139 countries, and ratified by 110 countries.
By the international laws introduced by that treaty, the International Criminal Court was created in 2002 and can prosecute individuals for genocide, crimes against humanity, war crimes, and crimes of aggression in circumstances where:
- The crime happened in a country that is a member of the International Criminal Court;
- The accused person is a citizen of a member country;
- The United Nations Security Council refers a case; or
- A non-member country voluntarily accepts the International Criminal Court’s jurisdiction for a specific case.
Effectively, the International Criminal Court was created by a treaty agreed between countries.
What does it look like in action?
An effective example of international law being adopted into domestic law is the case of the International Convention on the Elimination of All Forms of Racial Discrimination implemented in Australia through the Racial Discrimination Act 1975 (Cth). The Convention’s adoption into domestic law broadly adhered to the framework referred to above:
- Signing the Agreement – the Convention was adopted by the United Nations in 1965 and entered into force in 1969;
- Ratification & Adoption – To give effect to its international obligations as a signatory to the Convention, Australia enacted the Racial Discrimination Act 1975 (Cth), which prohibited racial discrimination in various areas including employment, education, and public life;
- Enforcement – As a famous example of the new law’s enforcement at the domestic level, Brennan, Toohey, and Gaudron JJ in Mabo v Queensland (No 1)[5] expressed:
“20. By extinguishing the traditional legal rights characteristically vested in the Miriam people, the 1985 Act abrogated the immunity of the Miriam people from arbitrary deprivation of their legal rights in and over the Murray Islands. The Act thus impaired their human rights while leaving unimpaired the corresponding human rights of those whose rights in and over the Murray Islands did not take their origin from the laws and customs of the Miriam people. If we accord to the traditional rights of the Miriam people the status of recognized legal rights under Queensland law (as we must in conformity with the assumption earlier made), the 1985 Act has the effect of precluding the Miriam people from enjoying some, if not all, of their legal rights in and over the Murray Islands while leaving all other persons unaffected in the enjoyment of their legal rights in and over the Murray Islands. Accordingly, the Miriam people enjoy their human right of the ownership and inheritance of property to a “more limited” extent than others who enjoy the same human right.
21. In practical terms, this means that if traditional native title was not extinguished before the Racial Discrimination Act came into force, a State law which seeks to extinguish it now will fail. It will fail because s.10(1) of the Racial Discrimination Act clothes the holders of traditional native title who are of the native ethnic group with the same immunity from legislative interference with their enjoyment of their human right to own and inherit property as it clothes other persons in the community. A State law which, by purporting to extinguish native title, would limit that immunity in the case of the native group cannot prevail over s.10(1) of the Racial Discrimination Act which restores the immunity to the extent enjoyed by the general community. The attempt by the 1985 Act to extinguish the traditional legal rights of the Miriam people therefore fails.”
Essentially, the trio declared legislation passed by the State of Queensland invalid for inconsistency with the international laws against racial discrimination ratified and adopted by Australia through the Racial Discrimination Act 1975 (Cth), enforcing international law at the domestic level.
Another example
The proceedings brought by Timor-Leste against Australia in 2013 regarding Australia’s alleged interference with Timor-Leste’s sovereignty by its agents’ seizure of legal documents related to a maritime dispute represent another aspect of international law.
Legal disputes that emerge between countries are generally dealt with by the International Court of Justice, also known as the World Court. The World Court was established in 1945 by the United Nations Charter and sits in the Netherlands. It exists for two main purposes:
- Resolving legal disputes between countries who consent to the court’s jurisdiction through treaty, special agreement, or acceptance of compulsory jurisdiction; and
- Providing non-binding legal advice at the request of the United Nations General Assembly, Security Council, or other authorised body.
In Timor-Leste v Australia (2013-2015), the court expressed in establishment of provisional measures:
‘Given the likelihood that much of the seized material contains sensitive and confidential information relevant to the pending arbitration and that it may also include elements that are pertinent to any future maritime negotiations which may take place between the Parties, the Court finds that it is essential to ensure that the content of the seized material is not in any way or at any time divulged to any person or persons who could use it, or cause it to be used, to the disadvantage of Timor‑Leste in its relations with Australia over the Timor Sea. It is therefore necessary to keep the seized documents and electronic data and any copies thereof under seal until further decision of the Court.’[6]
Essentially, the World Court sought to facilitate a process by which Timor-Leste and Australia could resolve their dispute. Following the provisional measures, Timor-Leste and Australia reached a mutual agreement which led to Australia returning the documents in controversy to Timor-Leste.
Consequently, Timor-Leste withdrew the case and it was removed from the World Court’s list.
Conclusion
In our interconnected age, legal systems continue to evolve beyond national boundaries, intertwining domestic laws with international laws and agreements to address complex global challenges. Australia exemplifies this dynamic, operating domestically under an independent federal common law system while continuing to engage with and integrate evolving international laws and agreements.
If existing trends continue as we venture deeper into this third millennium, the synergies between national and international legal frameworks will only become more crucial in pursuance of cohesive governance, human dignity, and justice across borders.
Whether through international agreements, judicial cooperation, or the rise of soft law mechanisms, the rules of the game are constantly shifting—demanding both foresight and adaptability from legal practitioners and policymakers alike.
[1] ASF17 v Commonwealth of Australia [2024] HCA 12 at paras 124-125.
[2] [2023] HCA 27.
[3] [2021] QCA 139 at paras 47-48.
[4] [1975] Qd R 1.
[5] [1988] HCA 69.
[6] Questions relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v Australia), Provisional Measures, Order of 3 March 2014, [2014] ICJ Rep 147.
