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This Digest was prepared for debate. It reflects the legislation as
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CONTENTS
Administrative Decisions (Effect of International
Instruments) Bill 1997
Date Introduced: 18 June 1997
House: Representatives
Portfolio: Attorney-General
Commencement: Royal Assent
The Bill overrules the High Court's decision in Minister for
Immigration and Ethnic Affairs v Teoh (the Teoh case)
[(1995) 183 CLR 273].In Teoh, the High Court held 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.
In Teoh, decided on 7 April 1995, the High Court held
that when the Executive ratifies an international agreement, and
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.
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.In 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.
The United Nations Convention on the Rights of the Child
Australia ratified the Convention in December 1990 and it
entered into force for Australia in January 1991.Amongst other
things, the Convention (Article 3) provides that 'in all actions
concerning children ... the best interests of the child shall be a
primary consideration.'
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 of these issues are raised in this case.Rather, Mason CJ
and Deane J state that the questions to be answered here are:
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.
Their Honours said that the Convention 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.
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.
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.
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.
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.
In allowing the Minister's appeal, McHugh J, 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.
The Impact of International Law on Australian Domestic Law
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], 'international law is
a legitimate and important influence.'The Courts, therefore, may
use international law to assist in the development of the common
law.
It is also interesting to note that in a recent 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.'
The Government's Response to Teoh
McHugh J noted in his dissenting judgement in Teoh
that, if the ratification of a treaty gives rise to a legitimate
expectation, 'administrative decision-makers would have to ensure
that their decision-making complied with every relevant convention
or inform a person affected that they would not be complying with
those conventions.'
The Government moved quickly to overcome the affects of the
Teoh decision.The then Minister for Foreign Affairs,
Senator Evans, and the then Attorney-General, the Hon Mr Lavarch,
issued a Joint Statement on 10 May 1995.The 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.'
On 28 June 1995 the Administrative Decisions (Effect of
International Instruments) Bill 1995 was introduced into the House
of Representatives.The Bill made it clear that international
agreements entered into by the Executive do not give rise to
legitimate expectations.
There was considerable criticism of the Government's response to
the Teoh decision.For example, Sir Ronald Wilson, then
President of the Human Rights and Equal Opportunity Commission,
said in Submission 131 (Vol 8 p 1778) 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.
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 teeth.
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.
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.
In the event the Administrative Decisions (Effect of
International Instruments) Bill 1995 had not passed at the time of
the 1996 Federal election and it subsequently lapsed.
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 current Bill is the
legislation foreshadowed by that Statement.
The application of the Teoh decision was recently
considered by the Federal Court in Tevita Musie Vaitaiki v
Minister for Immigration and Ethnic Affairs decided on 20 June
1997.In this case the applicant's deportation was ordered following
his conviction for, amongst other things, sexual intercourse
without consent.The applicant is the father of six children, three
of whom would accompany his on his return to Tonga if the
deportation order was valid.Would the applicant's deportation be in
the best interests of his children?
Beaumont J stated that 'the principle laid down in Teoh
is a rule of procedural fairness.'His Honour continued:
But, in my opinion, procedural fairness was provided in the
present case.The history of the whole matter ... makes it clear
that the applicant was fully aware, at the time of the second
hearing before the Tribunal, that he had to persuade the Tribunal
that the position of his children was of such overriding concern
that it balanced the scales against the making of the deportation
order.The applicant fully availed himself of the opportunity to
persuade the Tribunal to his point of view.
Beaumont J did not refer to either the Joint Statement issued on
10 May 1995 or that issued on 25 February 1997 in his decision.
The Bill is similar to the Administrative Decisions (Effect of
International Instruments) Bill 1995.
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.
Dr Max Spry
18 August 1997
Bills Digest Service
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This Digest does not have any official legal status. Other
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ISSN 1328-8091
Commonwealth of Australia 1997
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Published by the Department of the Parliamentary Library,
1997.
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Commonwealth of Australia
Last updated: 18 August 1997
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