Bills Digest No. 10 1997-98
Administrative Decisions (Effect of International Instruments) Bill 1997
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
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 sources should
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whether the subsequent Act reflects further amendments.
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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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Last updated: 18 August 1997
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