Treaty Implementation: The Canadian Game Needs Australian Rules

"The power to implement treaties to meet international obligations has remained a controversial issue in Canadian constitutional law for over half a century. Despite vigorous debate among distinguished academics and jurists over the merits of the Privy Council's reasoning in the Labour Conventions Case, the Supreme Court of Canada has, for all intents and purposes, remained silent on the matter. In contrast to Canada, Australia's High Court, in a series of judgments spanning fifty years, has clarified the law in a manner that, the authors submit, is both principled and realistic. … The authors conclude that the time is ripe for the Supreme Court of Canada to take the first available opportunity to revisit the Labour Conventions Case. In reassessing the doctrine established by that case, the Supreme Court of Canada should rely on the approach of the Australian High Court to overturn a precedent that is theoretically questionable and, in practical terms, anachronistic." [See also W. Struthers, "Treaty Implementation…Australian Rules": A Rejoinder, 26(2) OTTAWA LAW REVIEW 305, challenging the claim that the Australian High Court has clarified the law in relation to treaty implementation in a principled and realistic manner.]