Unenacted treaties

Meyrick v Home Affairs [2020] FCA 677

Statutes are generally read in line with Australia’s international obligations.  In this visa cancellation case8, however, the decision-maker failed to have regard to a convention to which Australia was party but parliament had not yet legislated for9.

Unenacted treaties may guide the common law10, but failing to consider one is only an error where the statute (expressly or impliedly) requires it to be taken into account11.  Jackson J (at [55-57]) said nothing in this statute had that effect when deciding whether or not to revoke a visa cancellation.  iTip – it is a matter for interpretation whether an unenacted treaty needs to be taken into account.

This principle is from Episode 62 of interpretation NOW!


8 s 501CA(4) of the Migration Act 1958 (Cth).

9 Convention on the Rights of the Child, s 60B(4) of the Family Law Act 1975.

10 Royal [2006] VSCA 85 (at [75-77]), cf Togias [2001] NSWCCA 522 (at [85]).

11 Peko-Wallsend (1986) 162 CLR 24 (at 39-40), Lam [2003] HCA 6 (at [101]).