The Common Law Presumption of Consistency with International Law: Some Observations from Australia (and Comparisons with New Zealand)

This article will explore and seek to explain the divergence of approach between Australian and New Zealand courts regarding the common law presumption of legislative consistency with international law. The application of the presumption requires legislative ambiguity in Australia but not in New Zealand. It will be argued that the very different constitutional cultures in which the judiciaries operate explain that divergence. However, it will be demonstrated that what antipodean judges do have in common is a willingness to protect rights using the available and legitimate interpretive tools as provided for and informed by their respective constitutional frameworks.