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International treaties do not as such form part of Australian domestic law

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Samootin v Shea [2012] NSWCA 378. Campbell JA.

[33] The law that this Court applies in deciding whether a proceeding that has been initiated in it is an abuse of process is Australian domestic law.

International treaties that have been ratified by the Australian government do not as such form part of our domestic law (Chow Hung Ching v R [1948] HCA 37(1948) 77 CLR 449 at 462, 471 and 477) or operate as a direct source of individual rights and obligations under that law (Chow Hung Ching v R at 286-287).

If a government enacts legislation to implement a treaty, it is the Australian legislation that is part of the domestic law, not the treaty itself.

In accordance with Australian domestic law, an order of a judge of a superior court is, subject to presently irrelevant exceptions, valid unless and until it is set aside on appeal: Brennan v Brennan [1953] HCA 28(1953) 89 CLR 129 at 134 per Williams ACJ, Webb and Kitto JJ.

For the reasons given in the 2010 Appeal Judgment, Ms Samootin does not have standing to challenge on appeal the orders that she seeks to challenge in the 2012 Appeal Proceedings. Thus, the 2012 Appeal Proceedings are an abuse of process.

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