International Law as a Tool of Constitutional Interpretation

Abstract

Justice Kirby of the High Court of Australia has recently begun to use international law in his interpretation of the Australian Constitution. This article analyses this development in light of prior case law and the views of other current members of the High Court. First, it briefly outlines the cases in which members of the High Court have, over the years, drawn on international law in interpreting the Constitution. Second, it explores in greater detail Kirby J's approach to the use of international law in constitutional interpretation and considers the reaction to that approach by other members of the High Court. Finally, it provides a normative argument concerning the interaction of international law and constitutional law. The article argues that, although the use of international law in constitutional interpretation is not novel, Kirby J's articulation of a principle to guide that use is novel. It concludes that, while international law has had and should have a role to play in constitutional interpretation, a robust role for international law is unlikely to be accepted by a majority of the Court as presently constituted.