Administrative Decisions (Effect of International Instruments) Bill 1999 (Bills Digest 100 1999-2000)

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Bills Digest No. 100 1999-2000
Administrative Decisions (Effect of International Instruments) Bill 1999

WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

CONTENTS

Passage History
Purpose
Background
Main Provisions
Endnotes
Appendix A
Contact Officer and Copyright Details

Passage History

Administrative Decisions (Effect of International Instruments) Bill 1999

Date Introduced: 13 October 1999

House: House of Representatives

Portfolio: Attorney-General

Commencement: On Royal Assent

Purpose

The Bill seeks to overrule the principle established by the High Court in Minister for Immigration and Ethnic Affairs v Teoh (the Teoh case) [(1995) 183 CLR 273] - the principle that when the Executive enters into an international agreement a legitimate expectation arises that the Executive will act in accordance with the provisions of that agreement.

Background

The debate regarding this Bill has been conducted over an extensive period. This is the third Bill in very similar form which has been introduced into the Federal Parliament over the last 5 years. The previous two Bills were not passed by the Parliament and lapsed upon the calling of elections.

The Teoh case was decided by the High Court on 7 April 1995. In essence Teoh established the principle that when the Executive ratifies an international agreement, providing there are no statutory or executive indications to the contrary, a legitimate expectation is created that administrative decisions will be made in accordance with the provisions of the agreement. Should decision-makers not act in accordance with the international agreement, procedural fairness requires that the person affected should be given an opportunity to persuade them otherwise. A closer analysis of the High Court decision can be found at Appendix A.⁽¹⁾

There was a rapid governmental response to the decision. The then Minister for Foreign Affairs, Senator Evans, and the then Attorney-General, Mr Lavarch, issued a Joint Statement on 10 May 1995. The Joint Statement declared on behalf of the Government that 'entering into an international agreement is not reason for raising a legitimate expectation that government decision-makers will act in accordance with the treaty if the relevant provisions of that treaty have not been enacted into domestic Australian law.' The Keating Government also introduced a Bill in 1995 (Administrative Decisions (Effect of International Instruments) Bill 1995) as a response to the Teoh decision. This Bill lapsed with the calling of the 1996 election.

On 25 February 1997, the Minister for Foreign Affairs, Mr Downer, and the Attorney-General, Mr Williams, issued a Joint Statement similar to that issued by Senator Evans and Mr Lavarch in May 1995. In the press release accompanying the Statement, the Minister for Foreign Affairs and the Attorney-General said that the Teoh decision:

gave treaties an effect in Australian law which they did not previously have. The Government is of the view that this development was not consistent with the proper role of Parliament in implementing treaties in Australian law.

The Joint Statement also signalled the introduction of legislation to overrule the Teoh decision - the Administrative Decisions (Effect of International Instruments) Bill 1997. The 1997 Bill was the subject of an inquiry by the Senate Legal and Constitutional Legislation Committee,⁽²⁾ and in its report the Government majority recommended that the Bill should be passed without amendment,⁽³⁾ however the Opposition and the Democrats were opposed to the passage of the Bill in the form it had then (which is the same form as the current Bill)⁽⁴⁾ and it lapsed on the calling of the 1998 election.

The Facts in Teoh

Mr Teoh, a Malaysian citizen, arrived in Australia in May 1988 and was granted a temporary entry permit. In July he married Jean Lim, an Australian citizen. Mrs Teoh had four children at that time, and there are three children of the marriage.

On 3 February 1989, Mr Teoh applied for a permanent entry permit. In November 1990 he was convicted of importing and possessing heroin. He was sentenced to six years' imprisonment. The sentencing judge accepted that Mrs Teoh's addiction to heroin was a relevant factor in explaining Mr Teoh's actions. In January 1991, Mr Teoh was refused a permanent entry permit: his criminal record meant that he could not meet the good character requirement. On 25 July 1991, the Immigration Review Panel recommended that Mr Teoh's application for reconsideration be rejected. It noted, among other things, Mr Teoh's submission that his wife, young children and stepchildren would suffer financial and emotional hardship were he to be deported. On 26 July 1991, and again in February 1992, a delegate of the Minister ordered Mr Teoh's deportation.

Mr Teoh appealed the decision, ultimately to the Full Federal Court. The Federal Court found that Australia's ratification of the United Nations Convention on the Rights of the Child (although not part of Australian law) created a legitimate expectation in parents or children that an action by the Commonwealth would be conducted in accordance with the principles of the Convention, a decision that was, in essence, confirmed by the High Court.

The United Nations Convention on the Rights of the Child and the Impact of International Law on Australian Domestic Law

Australia ratified the United Nations Convention on the Rights of the Child ('the Convention') in December 1990 and it entered into force for Australia in January 1991. Amongst other things, the Convention provides that 'in all actions concerning children ... the best interests of the child shall be a primary consideration.'⁽⁵⁾ This principle has had some echoes in the Immigration Department's Procedural Advice Manual, which has stipulated that the interests of the child should be considered in immigration decisions, however these interests have not been given the absolute priority that the Convention would provide for.

While the Commonwealth may, without Parliamentary approval, enter into treaties on Australia's behalf, it is Parliament that makes or alters domestic law in order to implement treaties entered into by the Executive.

The provisions of a treaty do not become part of Australian law unless incorporated by legislation. However, even though not expressly incorporated by legislation, treaties may still impact on Australian law. The Courts may use treaties to interpret ambiguous statutes as it is assumed that Parliament intends to legislate in conformity with international law. And, as Brennan J noted in Mabo v Queensland [(1992) 175 CLR 1], 'international law is a legitimate and important influence.'⁽⁶⁾ The Courts, therefore, may use international law to assist in the development of the common law.

The Teoh decision does not violate the principle that treaties are not incorporated into domestic law because it simply suggests that they would have a procedural effect. In the same way that the Executive Government might tie itself to behave in certain ways by issuing a press release or entering a contract, so ratification of a treaty can found a legitimate expectation that the Executive Government will act in accordance with a treaty it has ratified.

It is also interesting to note that in a New Zealand decision, Tavita v Minister for Immigration [(1994) 2 NZLR 257], the New Zealand Court of Appeal observed that the argument that the New Zealand Minister for Immigration and his Department were entitled to ignore international instruments is 'unattractive', 'implying that New Zealand's adherence to international instruments has been at least partly window dressing.'⁽⁷⁾

Responses to the Governments' actions

There was considerable criticism of the Keating Government's Joint Statement in response to the Teoh decision and subsequent government action. So, for example, Sir Ronald Wilson, then President of the Human Rights and Equal Opportunity Commission, said in a submission to the Senate Legal and Constitutional References Committee inquiry into the Commonwealth's capacity to enter into and implement treaties:

I submit that the legitimate expectation created by these provisions can only be reversed by legislation. More importantly, I submit that it is unthinkable that the Parliament should even be asked to consider such a reversal.⁽⁸⁾

Amnesty International has also been vocal in its criticism of both the Joint Statements and the Bills, and its attitude has been mirrored by a number of international lawyers, academic and non-governmental organisations. Amnesty has said:

This is the latest in a series of steps by the Australian Government which effectively undermine their commitment to human rights. On the one hand, it is telling the world that it is bound by the treaties it has ratified -- and in some cases helped to develop. But on the other hand, with this draft law, the government is giving its people and the world a very different message.

Rather than drafting technical laws to avoid legal obligations, the government should immediately draft laws to fully implement international treaties such as the Convention on the Rights of the Child which it ratified in 1990...⁽⁹⁾

The Senate Inquiry into the Bill also observed that there were a large number of submissions to the effect that the Bill was either unnecessary or ill-advised.⁽¹⁰⁾ While the Attorney-General's Department, the Department of Foreign Affairs and Trade and the Department of Immigration and Ethnic Affairs supported the Bill, a number of witnesses and submissions, including views from the Law Council of Australia, the Federation of Community Legal Centres, the Human Rights Commissioner and eminent international lawyers and academics, were opposed to the passage of the Bill. The Committee concluded that the Bill should be passed unamended, while the Minority Report from the ALP members of the Committee supported amendments to the Bill, noting that since the introduction of the original Bill by the ALP Government circumstances had changed. In particular they put the view that:

community concerns about reliance on Teoh undermining administrative law had not come to pass

changes to the treaty-making process meant that the Parliament was now involved to such an extent that the Bill in its current form was unnecessary, and

Australia was now in greater danger of losing its good reputation at an international level than it had been when the Bill was first introduced.

The Democrats Minority Report reiterated their view that the Bill is 'one of the most repugnant Bills' to have come to light and highlighting the view of witnesses who had described it as 'fundamentally flawed', an 'over reaction', 'anomalous', 'a betrayal' and 'a disgrace'.

In introducing the Bill the Attorney-General, Mr Williams, said that the Government was of the view that the Bill was necessary to protect the role of the Australian Parliament in changing Australian law to implement our treaty obligations. He also noted that the Bill will not affect the use by courts of international law in the interpretation of statutes and the development of the common law.⁽¹¹⁾ Mr Williams also quoted the former Minister for Foreign Affairs and Trade, Mr Evans, who said at a conference in 1995:

My lack of enthusiasm for Teoh is not especially a function of my lack of appreciation of how it has narrowed the gap between international and domestic law: rather it is a function of my belief that Teoh creates a decision-making environment that is unworkable in practice, and that it goes further than the court was compelled to go by any legal principle, or should have gone, in upsetting the present balance between Executive, Legislature and Judiciary. The pre-Teoh balance was a delicate one, to be sure, but nonetheless one perfectly attractive in theory and workable in practice.⁽¹²⁾

Post 1995 Legal Developments

In Yad Ram v Department of Immigration and Ethnic Affairs [Administrative Appeals Tribunal, unreported, Q 95/96, 19 December 1995], Gerber DP said that the Joint Statement:

sought to turn Teoh into a jurisprudential curio, an artefact like Piltdown Man, of historic interest only, establishing nothing. Unlike the Piltdown skull, where someone (generally believed to have been a mischievous solicitor) merely filed down two of "Mr" Piltdown's molars, Messrs Evans and Lavarch were determined to extract all of Mr Teoh's teeth.⁽¹³⁾

Gerber DP continued:

Whilst it is no doubt competent for Parliament to render the signing of an international convention into 'merely a platitudinous ineffectual act' (per Mason CJ and Deane J), I am not convinced that this same competence can be found in the interstices of some kind of ministerial prerogative.⁽¹⁴⁾

Furthermore:

The Ministers' ukase, regarded as a political statement, is unexceptional, although possibly giving rise to a cynical view that Australia's attitude to signing international conventions is governed more by expediency - to be applied when it is convenient and to be ignored whenever it is not - than by any genuine desire to be bound.⁽¹⁵⁾

Gerber DP is not the only person to have had difficulty with the idea that the Ministerial Statements can effectively over-rule the decision in Teoh.⁽¹⁶⁾

The main application of Teoh has been to migration cases where the applicant for residency has Australian children. The issue has been whether, in considering an application for a visa, the decision-maker should give particular weight to the best interests of the child. In cases since Teoh the courts have used the principle to overturn decisions refusing visas to applicants with Australian children because it would not be in the children's best interests to have their parent removed from the country.

The application of the Teoh decision was considered by the Federal Court in Tevita Musie Vaitaiki v Minister for Immigration and Ethnic Affairs in 1997 and 1998. In this case the applicant's deportation was ordered following his conviction for, 'a considerable number of convictions', most of which could 'be related to his alcohol abuse'. The applicant was the father of six children, three of whom would accompany him on his return to Tonga if the deportation order was valid.

Neither the Primary Judge nor the Full Federal Court referred to either the Joint Statement issued on 10 May 1995 or that issued on 25 February 1997 in their decisions. Ultimately the Full Court decided that the Deputy President of the AAT has failed to give proper consideration to the children's best interests.⁽¹⁷⁾

Similarly in the subsequent case of Kwong Leung Lam v Minister for Immigration and Multicultural Affairs [1998] FCA 154, Sackville J made no reference to the Ministerial Statements when relying on Teoh to overturn an immigration decision which had failed to give sufficient weight to the best interests of the child involved. In evidence to the Senate Committee which investigated the Bill the Attorney-General's Department said: 'while one would not say that there has been a flood of litigation based on the Teoh doctrine, nor has there been a trickle'.⁽¹⁸⁾ In some of the cases where Teoh has been relied upon, the decision of the administrative decision-maker has been left unaffected.

Main Provisions

The Bill is identical to the Administrative Decisions (Effect of International Instruments) Bill 1997, which in turn was similar to the Administrative Decisions (Effect of International Instruments) Bill 1995.

There is a lengthy preamble which gives the context to the Bill, mentions the Teoh decision and the need for certainty in administrative decisions discusses the paramountcy of Parliament in law-making and, while asserting that the principle that 'Australia is fully committed to observing its obligations under international instruments', affirms the Ministerial Statements to the effect that no legitimate expectations can arise from the act of entering a treaty.

Clause 4 includes a definition of an administrative decision as a decision of an administrative character made at either a Commonwealth, State or Territory level.

Clause 5 is the key provision. It provides that the mere fact that Australia is party to an international agreement or Australian legislation refers to such an agreement does not give rise to a legitimate expectation that might at law invalidate an administrative decision.

Clause 6 provides that Clause 5 does not apply to a State or Territory if the State or Territory has enacted a provision similar to Clause 5. In South Australia, for example, the Administrative Decisions (Effect of International Instruments) Act 1995 (SA) makes it clear that international agreements not incorporated into Australian law by statute do not give rise to legitimate expectations. The Administrative Decisions (Effect of International Instruments) Bill 1995 did not contain a clause similar to Clause 6.

Clause 7 provides that Clause 5 does not affect in any way other uses that may be made of international agreements in Australian law. This means that international agreements will still be able to be used by the Courts to clarify ambiguous legislation and to develop the common law.

Endnotes

Appendix A was contributed by Dr Max Spry, who was responsible for Bills Digest No. 10 of 1997-98 (the Bills Digest for the Administrative Decisions (Effect of International Instruments) Bill 1997).

Senate Legal and Constitutional Legislation Committee, Administrative Decisions (Effect of International Instruments) Bill 1997, October 1997.

p. 25.

See Minority Report of the ALP by Senators Bolkus and McKiernan (p. 27), with Senator Cooney making additional comments (p. 39), and the dissenting report of Democrat's Senator Murray, (p. 35).

Article 3.

(1992) 175 CLR 1 at 42.

(1994) 2 NZLR 257 at 266.

Vol 8, p. 1778.

Amnesty International Press Release, ASA 12/6/97, 20 June 1997.

Senate Legal and Constitutional Legislation Committee, Administrative Decisions (Effect of International Instruments) Bill 1997, October 1997, p. 14.

House of Representatives, Parliamentary Debates (Hansard), 30 September 1999, p. 11436.

Ibid at p. 11439, quoting from a speech by the Hon Gareth Evans to the 1995 Conference, 'Mason and Beyond'.

Yad Ram v Department of Immigration and Ethnic Affairs, Administrative Appeals Tribunal, Q 95/96, 19 December 1995, at para 19.

Yad Ram v Department of Immigration and Ethnic Affairs, Administrative Appeals Tribunal, Q 95/96, 19 December 1995, at para 22.

Yad Ram v Department of Immigration and Ethnic Affairs, Administrative Appeals Tribunal, Q 95/96, 19 December 1995, at para 24.

See for instance S Bouwhuis, 'International Law by the back door?' (1998) 72 Australian Law Journal, p. 794 and S Sheridan, 'Legitimate Expectations: where does the law now lie?'(1998) 87 Canberra Bulletin of Public Administration p. 125.

Tevita Musie Vaitaiki v Minister for Immigration and Ethnic Affairs [1998] 5 FCA (15 January 1998).

Senate Legal and Constitutional Legislation Committee, Administrative Decisions (Effect of International Instruments) Bill 1997, October 1997, p. 17.

Appendix A

The High Court's Decision in Teoh

Mason CJ and Deane J

Although the provisions of an international treaty do not become part of Australian law unless incorporated by statute, they may, nevertheless, have implications for domestic law. For example, an international convention, ratified by Australia, may influence the Court's interpretation of an ambiguous statute. The courts should favour that interpretation which accords with Australia's treaty obligations. International conventions also assist the development of the common law. However, their Honours noted that 'judicial development of the common law must not be seen as a backdoor means of importing an unincorporated convention into Australian law.'

Neither an ambiguous legislative provision nor the common law were at issue in this case. Rather, Mason CJ and Deane J state that the questions to be answered were:

whether the provisions of the Convention are relevant to the exercise of the statutory discretion and, if so, whether Australia's ratification of the Convention can give rise to a legitimate expectation that the decision-maker will exercise that discretion in conformity with the terms of the Convention. [Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 para 29]

Their Honours said that the Convention on the Rights of the Child was relevant; the decision refusing Mr Teoh a permanent entry permit was an action concerning children. Further, their Honours stated that the ratification of an international convention is 'not to be dismissed as a merely platitudinous or ineffectual act.' Rather, it is a 'positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention.' This statement gives rise to:

a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the Convention and treat the best interests of the children as a primary consideration. [para 34]

Moreover, their Honours made it plain that this was an objective test, stating that:

It is not necessary that a person seeking to set up such a legitimate expectation should be aware of the Convention or should personally entertain the expectation; it is enough that the expectation is reasonable in the sense that there are adequate materials to support it. [para 34]

Where a decision-maker intends making a decision inconsistent with a legitimate expectation, 'procedural fairness requires that the persons affected should be given notice and an adequate opportunity of presenting a case against the taking of such a course.'

In this case, the good character requirement, in conformity with departmental instructions, was treated as the primary consideration; the decision-maker did not treat the interests of the children as a primary consideration. Their Honours said:

A decision-maker with an eye to the principal enshrined in the Convention would be looking to the best interests of the children as a primary consideration, asking whether the force of any other consideration outweighed it. [para 39]

Mr Teoh, was therefore, denied procedural fairness.

Toohey J

Toohey J stated that by ratifying the Convention, Australia gave an undertaking that it will, in all actions concerning children, make the best interests of the child a primary consideration. If a decision-maker intends not to treat the best interests of a child as a primary consideration, he or she must give the person affected an opportunity to argue that the decision-maker should do so.

Gaudron J

Although agreeing with Mason CJ and Deane J as to the status of the Convention in Australia law, Gaudron J partly based her judgement on the existence of common law rights in Australian domestic law. Her Honour said the status of the children as Australian citizens was significant in deciding the case:

It is arguable that citizenship carries with it a common law right on the part of children and their parents to have a child's best interests taken into account, at least as a primary consideration, in all discretionary decisions by governments and government agencies which directly affect that child's individual welfare, particularly decisions which affect children as dramatically and as fundamentally as those involved in this case. [para 4]

The Convention, according to Gaudron J, 'gives expression to a fundamental human right which is taken for granted by Australian society.' Therefore, 'it is reasonable to speak of an expectation that the Convention will be given effect.' Procedural fairness required that if the delegate was not going to take into account the interests of the children as a primary consideration, Mr Teoh should have been informed so that he had an opportunity to persuade her otherwise.

McHugh J

McHugh J delivered a dissenting judgement. His Honour took the view that the 'legitimate expectation' must be one actually held by the applicant. He would have allowed the Minister's appeal and said, amongst other things, that ratification of the Convention did not give rise to a legitimate expectation that Mr Teoh's application would be treated in accordance with the Convention.

Contact Officer and Copyright Details

Kirsty Magarey
24 January 2000
Bills Digest Service
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