In this episode of Called to the Bar: International Law Over Drinks, Imogen Saunders is joined by the Honourable Michael Kirby AC and Christopher Ward SC to discuss the role of international law in Australian domestic courts.

Prompted by several recent Australian legal developments involving alleged international crimes and climate litigation, the conversation steps back from the specific cases to ask a broader question: how, and how much, does international law matter in domestic legal systems such as Australia’s?

Michael Kirby explains Australia’s dualist tradition, under which international law generally requires domestic incorporation before it becomes directly enforceable in Australian courts. He reflects on the Bangalore Principles, his judicial use of international human rights law, and the continuing debate over whether courts may use international law as a contextual guide when interpreting domestic law. The discussion ranges across cases including Mabo, Al-Kateb, Jago, and Muir, and considers the role of courts in developing the common law in light of international legal principles.

Christopher Ward SC brings the perspective of both scholar and practitioner. Drawing on his forthcoming book, International Law and the High Court of Australia, he traces the growing normalisation of international law references in Australian superior courts. He explains how international law informs statutory interpretation, particularly where legislation gives effect to treaty obligations, and discusses the practical implications for lawyers working on matters involving international crimes, foreign state immunity, refugee law, pandemic regulation, and human rights.

The episode also considers the interaction between international law and Australian law during the COVID-19 pandemic, including border closures, maritime obligations, aviation rules, and the right of Australian citizens to return to Australia. The guests reflect on the importance of international consistency, the limits of dualism, and the areas where international law may yet play a greater role in Australian domestic law, including human rights, climate change, and juvenile justice.

Recommendations and materials discussed include:

Christopher Ward, ‘International Law and the High Court of Australia’ (forthcoming June 2026, Melrose Publishing) https://melroselegalpublishers.com/wp-content/uploads/2026/05/ward-978-90-834075-6-2.pdf

Al-Kateb v Godwin [2004] HCA 37 with particular reference to the judgments of Kirby J and McHugh J https://www.hcourt.gov.au/sites/default/files/eresources/2004/HCA/37.pdf

Muir v The Queen [2004] HCA 21 https://www.hcourt.gov.au/cases-and-judgments/judgments/judgments-1998-current/muir-v-queen

Michael Kirby, 'The Road from Bangalore: The First Ten Years of the Bangalore Principles on the Domestic Application of International Human Rights Norms’ https://www.hcourt.gov.au/sites/default/files/assets/publications/speeches/former-justices/kirbyj/kirbyj_bang11.htm

Michael Kirby, 'The Australian Use of International Human Rights Norms' (1993) 16(2) UNSW Law Journal 363: https://www.michaelkirby.com.au/images/stories/speeches/1990s/vol28/994-UNSWLJ_-_The_Aus_Use_of_Int_Human_Rights_Norms_-_From_Bangalore_to_Balliol_-_A_View_from_the_Antipodes.pdf

Gradidge v Grace Bros (1988) 93 FLR 414 per Kirby P

Mabo v Qld [No 2] (1972) 175 CLR 1

Michael Kirby, ’Transnational Judicial Dialogue, Internationalisation of Law and Australian Judges’ (2008) 9 Melbourne Journal of International Law https://law.unimelb.edu.au/__data/assets/pdf_file/0006/1683186/Kirby.pdf

Music: Sam Barsh, Oils of au Lait