Chapter 6
Treaties and Domestic Law
Traditional view
and the High Court
6.1 It has been generally accepted that treaties are not directly
incorporated into Australian domestic law by the international act of
ratification or accession by Australia. Treaties therefore do not 'run'
in domestic law unless implemented by legislation.[1] This view has been
shared by successive Governments of different political persuasions.
6.2 In Dietrich v The Queen Chief Justice Mason and Justice McHugh
considered the effect of the International Covenant on Civil and Political
Rights (ICCPR) in Australian law:
Ratification of the ICCPR as an executive act has no direct legal effect
upon domestic law; the rights and obligations contained in the ICCPR
are not incorporated into Australian law unless and until specific legislation
is passed implementing the provision.[2]
6.3 However, there have been important developments in recent years on
the relationship between domestic law and international treaties. The
submission of the Attorney-General's Department noted that treaties may
have some indirect influence on Australian domestic law prior to
their implementation through legislation.[3]
6.3 In Mabo v. Queensland (No. 2), Justice Brennan stated:
The opening up of international remedies to individuals pursuant to
Australia's accession to the Optional Protocol to the International
Covenant on Civil and Political Rights brings to bear on the common
law the powerful influence of the Covenant and the international standards
it imports. The common law does not necessarily conform with international
law, but international law is a legitimate and important influence on
the development of the common law, especially when international law
declares the existence of universal human rights.[4]
6.5 The Attorney-General's Department's submission to the Committee also
discerned the following role for treaties from statements made by High
Court Justices in the case of Dietrich v The Queen:
Dietrich's case illustrates that treaties, particularly those
dealing with human rights, can be used:
to assist in the determination of community values and standards relevant
to the development of the common law.[5]
6.6 The Hon. Elizabeth Evatt, former Chief Justice of the Family Court,
made the following comments in relation to treaties, customary international
law and the common law of Australia:
Quite apart from conventions that Australia ratifies, some parts of
that international law can, as a matter of common law, apply in Australia
without any further action on the part of anyone. I think the recent
High Court case of Teoh may have referred obliquely to this, but it
could have said more about the fact that under common law, customary
rules, and particularly principles of human rights, such as the principle
against genocide and so on, are part of customary international law.
Naturally as such, they can be overruled by legislation, as any part
of the common law can. But we should not think of international law
as being an entirely separate thing from the law of Australia. Some
parts of it we would recognise.[6]
Teoh's case
6.7 A further indirect effect of treaties on Australian law was
identified by the High Court in Minister for Immigration and Ethnic
Affairs v Teoh.[7] The High Court held (by majority of 4: 1) that
ratification of an international convention by the Executive can create
a legitimate expectation that the Executive will act in accordance with
the convention:
[R]atification of a convention 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. That positive statement is an adequate foundation
for 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'.[8]
6.8 The existence of a legitimate expectation attracts a duty to accord
procedural fairness in the exercise of discretionary powers as follows:
[I]f a decision-maker proposes to make 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. So, here, if the delegate
proposed to give a decision which did not accord with the principle
that the best interests of the children were to be a primary consideration,
procedural fairness called for the delegate to take the steps just indicated.[9]
6.9 Teoh's case does not alter the basic legal proposition that
treaties are not directly incorporated into domestic law until
they have been legislatively implemented:
It is well established that the provisions of an international treaty
to which Australia is a party do not form part of Australian law unless
those provisions have been validly incorporated into our municipal law
by statute.... This principle has its foundation in the proposition
that in our constitutional system the making and ratification of treaties
fall within the province of the Executive in the exercise of its prerogative
power whereas the making and the alteration of the law fall within the
province of parliament, not the Executive.... So, a treaty which has
not been incorporated into our municipal law cannot operate as a direct
source of individual rights and obligations under that law. In this
case, it is common ground that the provisions of the Convention have
not been incorporated in this way.[10]
6.10 It has been argued by some, however, that the indirect effect
of treaties upon Australian law, as recognised by the High Court in Teoh's
case, is so significant that it is undermining the role of the Parliament
as the only body which can directly implement treaties by way of
legislation.
6.11 Professor Campbell has commented that the decision has 'constitutional
significance'. In her submission, she stated:
The decision in Teoh has far reaching implications. Australia
is now a party to many international conventions which relate to the
domestic law of parties to the conventions and the way in which that
law is administered. Few of these conventions have been enacted into
Australian law and a number of those which have not been so enacted
may have a bearing on the exercise of discretionary powers invested
in governmental officials, courts and tribunals, State, Territory as
well as federal. There is bound to be a good deal of uncertainty about
which conventions may be relevant to the exercise of particular discretions
and also about precisely what undertakings in relevant conventions require.[11]
6.12 Mr Peter Bayne, from the Australian National University, considered
that the practical effect of the legitimate expectation in the Teoh
case was almost the same as if decision makers had been required by legislation
to take account of treaties. He stated:
[I]n practical effect, the Court was coming very close to saying that
decision makers must have regard to the terms of a convention when they
exercise an administrative power. If there is no act of the legislature
or the executive or if there is no action of the executive which displaces
the convention, then as a matter of practical effect decision makers
will have to have regard to the terms of the convention in order to
determine whether they should give a hearing to a person in respect
of whom they propose not to apply the convention.
That comes very close to a rejection of the basic legal principle that
conventions do not have the force of law in Australia unless adopted
by relevant local legislation.[12]
Government's response
to Teoh's case
Press Release
6.13 On 10 May 1995, the Minister for Foreign Affairs, Senator Gareth
Evans, and the Attorney-General, Michael Lavarch, published a joint press
release on the Teoh case.
6.14 In their press release, the Ministers were critical of the potential
consequences of the Teoh decision. They stated:
It may be only a small number of the approximately 920 treaties to
which Australia is currently a party could provide a source for an expectation
of the kind found by the High Court to arise in Teoh. But that
can only be established as individual cases come to be litigated. In
the meantime, the High Court decision gives little if any guidance on
how decision-makers are to determine which of those treaty provisions
will be relevant and to what decisions the provisions might be relevant,
and because of the wide range and large number of decisions potentially
affected by the decision, a great deal of uncertainty has been introduced
into government activity. It is not in anybody's interests to allow
such uncertainty to continue.[13]
6.15 The Ministers then stated that the fact that the Government enters
into a treaty should not create an expectation that the Government and
its officials will comply with Australia's treaty obligations. They announced:
We state on behalf of the Government, that entering into an international
treaty is not reason for raising any 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. It is
not legitimate, for the purpose of applying Australian law, to expect
that the provisions of a treaty not incorporated by legislation should
be applied by decision-makers. Any expectation that may arise does not
provide a ground for review of a decision. This is so, both for existing
treaties and for future treaties that Australia may join.[14]
6.16 The Ministers concluded, however, that this statement should not
be taken as derogating from Australia's international obligations:
We should emphasise that the Government remains fully committed to
observing its treaty obligations. However, we believe it is appropriate
to retain the long-standing, widely accepted and well-understood distinction
between treaty action undertaken by the Executive which creates international
rights and obligations and the implementation of treaty obligations
in Australian law. The implementation of treaties by legislation is
the way that the rights, benefits and obligations set out in treaties
to which Australia is a party are conferred or imposed on individuals
in Australian law.[15]
Administrative Decisions (Effect of International Instruments) Bill
1995
6.17 The Government reinforced its press release by introducing the Administrative
Decisions (Effect of International Instruments) Bill 1995 into the
House of Representatives on 28 June 1995. The primary provision in the
Bill is clause 5. It provides:
The fact that Australia is bound by, or a party to, a particular international
instrument, or that an enactment reproduces or refers to a particular
international instrument, does not give rise to a legitimate expectation,
on the part of any person, that:
(a) an administrative decision will be made in conformity with the
requirements of that instrument; or
(b) if the decision were to be made contrary to any of those requirements,
any person affected by the decision would be given notice and an adequate
opportunity to present a case against the taking of such a course.
Criticism of
the Government's response
6.18 The Committee received both evidence and submissions from a number
of people, who were critical of the Government's response to the Teoh
case,[16] including two submissions from the President of the Human Rights
and Equal Opportunity Commission.[17] The Committee also received submissions
supporting the Government's response.[18]
Senate Legal and
Constitutional Legislation Committee Report
6.19 The Administrative Decisions (Effect of International Instruments)
Bill 1995 was referred to the Senate Legal and Constitutional Legislation
Committee for a separate inquiry on 28 August 1995. The Legislation Committee
reported on the Bill on 28 September 1995.
6.20 The Committee recommended by majority that the Bill be enacted,
stating:
The Committee notes that there is currently political and community
debate as to the respective roles that Parliament and the Executive
should play regarding the entry into, and ratification of, international
instruments. An element of this debate relates to the effect of those
international instruments on Australian law before their enactment.
In recommending the enactment of the Bill, the Committee wishes to preserve
for now what was understood to be the status quo before the majority
decision of the High Court in Teoh. However, the Committee recommends
that once the review into the impact of treaties on administrative decision
making is complete, and political and community discussion and debate
have taken place, the legislation should be revisited and assessed.[19]
6.21 Senators Spindler, Chamarette and Margetts recommended that the
Bill be withdrawn, dissenting from the majority recommendations made in
the Senate Legal and Constitutional Legislation Committee Report on the
Bill. Senator Spindler criticised the Government's response to Teoh's
case as follows:
The High Court decision provided an opportunity for a major improvement
in the integrity of decision making in Australia by allowing administrative
decision makers to take into account the provisions of treaties Australia
has signed and ratified.
However, unlike the Mabo decision, where the Government used
a High Court decision to positively respond with a comprehensive legislative
regime, the government has decided that it must reverse that very small
step towards better human rights standards.
In doing so, it will condemn Australia to presenting a two-faced image
to the world by allowing the government to wax lyrical about its human
rights treaty commitments, but quashing any suggestions that the same
human rights will be protected at home.[20]
Teoh and the call
for greater parliamentary involvement in treaty making
6.22 A number of witnesses who gave evidence before the Committee considered
that the High Court's judgment in the Teoh case gave greater weight
to the call for increased parliamentary involvement in the treaty making
process.[21]
6.23 Senator Bourne made the following point to the Committee:
In the recent Teoh judgment, the High Court found that government
ratification of a treaty gave rise to a legitimate expectation that
public servants would act in accordance with a treaty. The court made
it clear that ratification, while not changing the law, had a definite
impact on its interpretation and its administration. This gives further
weight to the call for parliamentary approval, because the present situation
allows the executive government to influence the law without the consent
of the parliament.[22]
6.24 Mr Geoffrey Ewing, of the Australian Mining Industry Council, described
the Teoh case as a 'very good reason why there should be the ultimate
in consultation, and really in the form of parliamentary approval, before
treaties are signed by the government'.[23]
6.25 Mr Robert Hadler, of the National Farmers' Federation, identified
the Teoh case as one of the reasons for the National Farmers' Federation
adopting the view that parliamentary approval of treaties is necessary.
He stated:
NFF has been reluctant to go so far as to support parliamentary approval,
because of the difficulties in gaining bipartisan support for that approach
and difficulties in designing an effective and workable system. However,
as AMIC alluded to, the recent High Court decision in the Teoh
case has been very influential in giving rise to further concerns about
the role of international treaties and parliament. The NFF has recently
agreed to a resolution on this issue which says:
"Proposed treaty ratification should be subject to Parliamentary
approval and any implementing legislation should not be put to Parliamentary
vote until Parliament has had sufficient opportunity to consult with
the wider community and consider whether becoming party to the Convention
would be in the national interest".[24]
Conclusion
6.26 Treaties are not directly incorporated into Australian law by the
act of ratification or accession. Nevertheless, they can play an important
role in a number of areas even when not incorporated into domestic law,
particularly:
in the development of the common law; and
in influencing decision-makers at all levels of Government (particularly
in relation to human rights treaties).
6.27 The Teoh decision and the reaction to it demonstrates the
increasing impact that treaties have in Australia. This increasing impact
of treaties is, in itself, reason for greater parliamentary involvement
prior to the ratification of treaties. The Committee makes recommendations
on this subject in subsequent Chapters.
6.28 In particular, the reaction to the Teoh case has demonstrated
a concern about the effect of treaties on Australia's sovereignty. This
issue is further addressed in Chapter 14.
Endnotes:
- New South Wales v Commonwealth
(1975) 135 CLR 337, at 450-51; Simsek v MacPhee (1982) 148 CLR
636, at 641; Koowarta v Bjelke-Petersen (1982) 153 CLR 168, at
192-193; 211-212; 225-5; and 253; Kioa v West (1985) 159 CLR
550 at 570-571; Dietrich v The Queen (1992) 177 CLR 292, at 305;
and Minister for Foreign Affairs and Trade v Magno (1992) 37
FCR 298, at 303. See also: Mr H. Burmester, Attorney-General's Department,
Submission No. 75, Vol 4, pp 702-4.
- (1992) 177 CLR 292, at 305.
- Mr H. Burmester, Submission No.
75, Vol 4, p 702.
- (1992) 175 CLR 1, at 42. This statement
has been supported by Mason CJ and Toohey J in Environment Protection
Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at p 499:
As this Court has recognised, international law while having no force
as such in Australian municipal law, nevertheless provides an important
influence on the development of Australian common law, particularly
in relation to human rights.
- Mr H. Burmester, Submission No.
75, Vol 4, p 703.
- Hansard, SLCRC, 16 May 1995
p 379, per the Hon. E. Evatt.
- (1995) 128 ALR 353.
- (1995) 128 ALR 353, per Mason CJ
and Deane J at 365; and per Toohey J at 374.
- (1995) 128 ALR 353, per Mason CJ
and Deane J at 365; and per Toohey J at 371-2. See also Gaudron J at
375-6.
- (1995) 128 ALR 353 per Mason CJ
and Deane J at 361-2; per Toohey J at 370 and per Gaudron J at 375.
- Professor E. Campbell, Submission
No. 88, Vol 5, pp 1057-8.
- Hansard, SLCRC, 1 May 1995,
p 110, per Mr P. Bayne.
- Joint Statement by the Minister
for Foreign Affairs, Senator Gareth Evans, and the Attorney-General,
Michael Lavarch, International Treaties and the High Court Decision
in Teoh, 10 May 1995.
- Joint Statement by the Minister
for Foreign Affairs, Senator Gareth Evans, and the Attorney-General,
Michael Lavarch, International Treaties and the High Court Decision
in Teoh, 10 May 1995.
- Joint Statement by the Minister
for Foreign Affairs, Senator Gareth Evans, and the Attorney-General,
Michael Lavarch, International Treaties and the High Court Decision
in Teoh, 10 May 1995.
- See, for example: Ms H. Bayes,
Submission No. 155, Vol 10, p 2245; Professor M. Detmold, Submission
No. 150, Vol 10, p 2207; Mr S. Mark, Submission of the International
Commission of Jurists, Submission No. 153, Vol 10, p 2224; and Hansard,
SLCRC, 25 July 1995, p 834, per Mr A. Rose.
- Sir Ronald Wilson, Submission No.
131, Vol 8, p 1778 and Submission No. 151, Vol 10, p 2209-2212.
- See for example: Hansard,
SLCRC, 14 June 1995, pp 720-1, per Mr T. Pallas of the Australian Council
of Trade Unions.
- Senate Legal and Constitutional
Legislation Committee, Administrative Decisions (Effect of International
Instruments) Bill 1995, Canberra, 1995, p 33.
- Senate Legal and Constitutional
Legislation Committee, Administrative Decisions (Effect of International
Instruments) Bill 1995, (1995), Dissenting Report - Senator Spindler.
- See for example: Hansard,
SLCRC, 2 May 1995, p 174, per Mr J. Daley; Hansard, SLCRC, 15
May 1995, p 232, per Mr W. Marmion; and on a more theoretical level,
Hansard, SLCRC, 16 May 1995, pp 392-393, per Mr D. Bennett QC.
- Hansard, SLCRC, 1 May 1995,
p 99. See also Senator V. Bourne, Submission No. 114, Vol 7, pp 1518-1519.
- Hansard, SLCRC, 1 May 1995,
p 70.
- Hansard, SLCRC, 1 May 1995,
p 72.