system or judicial system unless it is incorporated by the legislative arm of the government. As a
result, the courts are not obligated to implement the advice of the tribunals that “protect” these
declarations, simply because these tribunals do not form part of their judicial hierarchy.38
However exceptions of this were seen in Privy Council cases such as Pratt and Morgan v AG.39
In addition to these exceptional cases, it is argued that The Vienna Convention on the Law of
Treaties, Article 18 (a) indicated that an expectation is created with the onus being on the
domestic law to be compatible with international obligations unless they have clearly
communicated their desire not to do so.
This ‘expectation’ has created somewhat of a blurred understanding between the domestic courts
and individuals that are subject to the petition. It is assumed that the courts must constantly take
into consideration the ‘expectation’ of these individual when making judgements. Failure to do
this sometimes leads to the accusations that their judgements are infringing upon the
constitutional rights of the petitioners. However in cases where they do apply these
unincorporated international instruments, they are also accused of acting ultra vires.
Case law
In cases of Minister for Immigration and Ethnic Affairs v Teoh
40
, and A.G v Joyce and
Boyce41 the courts were accused of acting ultra vires by applying the unincorporated
international treaty into their judgments. In comparison the courts in the judgments of A.G v
Nallaratnam42 and A.G v Matthew43, upheld the dualist notion that they subscribed and
reiterated they were only bound to their constitution and judicial decisions within their judicial
hierarchy.
Ah Hin Teoh was a Malaysian citizen living in Australia under a temporary entry permit. He
married Jean Helen Lim, an Australian citizen and they had 7 children together. Mr Teoh was
38
Christine Reed, ‘Public Law and Public Administration Theory’ (ASPA) National Conference Founders' Forum
panel:"Transformations in Public Law, New York 2008)
39
[1993] 4 All ER 769, [1994] 2 AC 1
40
(1995) 183 CLR 273, [2008] IEHC 30.
41
[2006] CCJ 1 (AJ)
42
S.C. SpL (LA) No. 182/99
43
[2005] 1 AC 433,[2004
28