WARNING:
This Digest was prepared for debate. It reflects the legislation as
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CONTENTS
Passage History
Purpose
Background
Main Provisions
Endnotes
Appendix A
Contact Officer and Copyright Details
Administrative Decisions (Effect of International
Instruments) Bill 1999
Date Introduced: 13 October 1999
House: House of Representatives
Portfolio: Attorney-General
Commencement: On Royal Assent
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.
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.
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.
-
- 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.
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.
Kirsty Magarey
24 January 2000
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