Administrative decisions (effect of international instruments)
bill 1995
Referral of the Bill
The Administrative Decisions (Effect of International Instruments) Bill
1995 was referred to the Senate Legal and Constitutional Legislation Committee
by the Senate Selection of Bills Committee [1]
on 28 August 1995 for report by 28 September 1995.
The Committee's Inquiry
The Committee received 27 submissions in relation to its inquiry into
the above Bill. (See Appendix 1.)The Committee also
took evidence at a public hearing in Sydney on 14 September 1995. Further
information about those who gave evidence to the Committee at the hearing
is included in this Report as Appendix 2.
Background
The Administrative Decisions (Effect of International Instruments) Bill
was introduced into the House of Representatives on 28 June 1995. It is
the Government's response to the High Court's decision in Minister for
Immigration and Ethnic Affairs v Teoh, [2] which
was handed down on 7 April 1995. Accordingly, it must be considered in
the context of the High Court's judgment.
The Teoh case
The facts and history of the case
The case concerned the validity of a deportation order. Mr Teoh, a Malaysian
citizen, entered Australia on a temporary entry permit and married an
Australian citizen, who already had four children. Mr Teoh and his Australian
wife had three more children. Mr Teoh applied for a permanent entry permit.
During the period in which his application was being considered, Mr Teoh
was convicted of heroin importation offences and sentenced to six years'
imprisonment. His application for permanent residence was later denied
by the Minister's delegate on the ground that he was not of good character.
Mr Teoh applied for a review of the decision. The Immigration Review
Panel recommended that he not be granted residency, and the Minister's
delegate accepted that recommendation. Another delegate of the Minister
then decided that Mr Teoh be deported.
Mr Teoh then applied to the Federal Court under the Administrative Decisions
(Judicial Review) Act 1977 for a review of the decision. His application
was dismissed by Justice French.
Mr Teoh then appealed to the Full Court of the Federal Court. During
the course of the hearing the argument arose concerning the break up of
the family and the effect on the children. It was also noted that that
the Convention on the Rights of the Child, to which Australia is a party,
requires the interests of the child to be a primary consideration in any
action concerning children. A majority of the Full Court set aside the
decision, remitting it to the Minister for reconsideration. Justices Lee
and Carr considered that the Government's ratification of the Convention
created a `legitimate expectation' that a Commonwealth decision maker
would make the best interests of the children a primary consideration.
The Minister appealed to the High Court. The case was heard by five Justices.
A majority of the Court dismissed the appeal, with costs.
The High Court's judgment
A majority of the Court [3] found that the
ratification of the Convention on the Rights to the Child was a positive
statement by the Executive to the world and to the Australian community,
that the Government and its agencies would not act contrary to the Convention.
Accordingly, the majority held that this was an adequate foundation to
create a legitimate expectation that the Minister's delegate would act
in conformity with the Convention by treating the best interests of the
children as a primary consideration in deciding whether Mr Teoh should
be deported. This legitimate expectation did not oblige the Minister's
delegate to comply with the Convention. It only placed an obligation on
the Minister's delegate to notify Mr Teoh's children if she did not intend
to make their interests a primary consideration, and afford them, as a
matter of procedural fairness, an adequate opportunity to make a case
to the contrary. Hence the Convention was not given the status of law,
but was considered capable of giving rise to requirements of procedural
fairness in the same manner as a published Government policy [4] or Government representations to a section of the community
[5] can give rise to a legitimate expectation
that there will be compliance with the policy or representations.
The majority held that there had been an absence of procedural fairness,
and that the appeal should therefore be dismissed. The order of the Full
Court of the Federal Court therefore prevailed, which provided that the
decision to refuse Mr Teoh resident status be set aside and the matter
remitted to the Minister for reconsideration.
The doctrine of legitimate expectation
A 'legitimate expectation' is a doctrine of administrative law, intended
to provide procedural fairness in administrative decision making. A legitimate
expectation is not a substantive legal right; instead, it is a procedural
right to have a matter taken into account by a decision maker. The concept
of the 'legitimate expectation' was 'created' [6]
by Lord Denning MR in Schmidt v Secretary of State for Home Affairs. [7]
The doctrine will operate when the Government publishes a policy, or makes
a representation about how it will proceed in making certain types of
administrative decisions. If the decision maker decides to act in a manner
which is contrary to the policy or other representation, the affected
person must be given the opportunity of a hearing.
As observed by Henry Burmester, of the Attorney-General's Department,
in his evidence, the doctrine of 'legitimate expectation' is peculiar
to administrative law, and is of narrower scope than the term suggests.
[8] The courts have also been conscious of the
potential for misunderstanding of the term; in the first paragraph of
his judgment in Haoucher v Minister for Immigration and Ethnic Affairs,
[9] Justice Deane sought to clarify the concept:
For one thing, the word "legitimate" is prone to carry
with it a suggestion of entitlement to the substance of the expectation
whereas the true entitlement is to the observance of procedural fairness
before the substance of the expectation is denied. [10]
The word 'legitimate' has been held, in a long line of decisions, to
mean 'reasonable'. [11] An expectation will
be 'reasonable' if there is enough material in the statement of policy
or representation to give rise to such an expectation. In his judgment
in Teoh, Justice Toohey formulated the test for legitimate expectation
in the following way:
The matter is to be assessed objectively, in terms of what expectation
might reasonably be engendered by any undertaking that the authority
in question has given, whether itself or, as in the present case, by
the government of which it is a part. [12]
Contrary to Justice McHugh's implication in his judgment in Teoh, [13]
the majority in Teoh held that a legitimate expectation does not have
to be personally held by the person who is affected by the exercise of
power. Thus, it was not necessary for Mr Teoh to have known of the existence
of the Convention on the Rights of the Child, or of Australia's ratification
of it. Nor was it necessary for Mr Teoh to have personally formed an expectation
that the terms of the Convention would be taken into account.
The concept of the legitimate expectation was taken up by the High Court
in the case of Heatley v Tasmanian Racing and Gaming Commission, [14]
and refined in FAI Insurances Ltd v Winneke. [15]
In the English courts, the concept was applied in Attorney-General of
Hong Kong v Ng Yuen Shiu [16] and Council of
Civil Service Unions v Minister for the Civil Service (GCHQ). [17]
In Ng Yuen Shiu, the Privy Council held that a legitimate expectation
arose because there was a publicly announced policy that illegal immigrants
applying for residency would have their applications processed in a certain
manner. Thus, if the Government intended to depart from that policy, then
the applicant was entitled to a hearing on the issue before that departure.
In GCHQ, there had been a well-established practice of consultation between
management and unions concerning alterations to the terms and conditions
of employment of GCHQ staff. The then Prime Minister, Margaret Thatcher,
made an announcement in Parliament of her intention to exclude the unions
from GCHQ, on national security grounds. The Council of Civil Service
Unions sought a declaration that her instruction was invalid. On the question
of whether the Government had to consult the relevant unions, the House
of Lords held that a legitimate expectation had arisen on the basis of
past practice, and that therefore, there existed a duty to consult. [18]
The principles of Ng Yuen Shiu and GCHQ were subsequently adopted by the
High Court in Kioa v West. [19]
The concept was reconsidered by the High Court in Haoucher v Minister
for Immigration and Ethnic Affairs. [20] Mr Haoucher had almost finished serving a prison
sentence for drug offences when the Minister's delegate made an order
for deportation. At that time, there existed a policy that, in cases of
criminal deportation, the recommendation of the Administrative Appeals
Tribunal ('AAT') would be followed unless there were 'exceptional circumstances
and only when strong evidence can be produced to justify the decision'.
Mr Haoucher appealed to the Administrative Appeals Tribunal, which recommended
that the Minister should reconsider and revoke the order. The Minister
refused to do so, providing reasons. Mr Haoucher appealed, and the matter
reached the High Court.
On the legitimate expectation point, the majority of the Court (Justices
Deane, Toohey and McHugh) held that the publication of a policy gave rise
to a legitimate expectation on the part of Mr Haoucher that the Minister
would act in accordance with the decision of the AAT unless there was
'strong evidence' and 'exceptional circumstances' to the contrary. Therefore,
if the Minister were to depart from the recommendation of the AAT, Mr
Haoucher had to be notified of the 'strong evidence' and 'exceptional
circumstances' and given an opportunity to respond. Justice Toohey noted:
The appellant was entitled to an opportunity to be heard if the
Minister had in mind to act to the appellant's disadvantage. In particular,
the appellant was entitled to be heard as to whether the circumstances
were exceptional and the evidence strong. If he were not given that
opportunity, the reference to the Tribunal was little more than empty
ritual and the policy statement mere rhetoric. [21]
The Court remitted the decision to the Minister's delegate so that they
could take further evidence on these matters.
Thus, after Haoucher, the legitimate expectation applied to Government
policies or representations about how it would proceed in making certain
types of administrative decisions. If a decision maker proposed to act
other than in accordance with the relevant policy or representation, then
he or she had to inform the affected person and grant them a hearing on
the issue. This is irrespective of whether the affected person personally
holds the expectation.
It is the view of the Committee that the decision of the majority of
the High Court in Teoh, in holding that a legitimate expectation arose
from the act of ratification of a treaty without the necessary intervention
of a considered statement of policy, represents a significant extension
of the legitimate expectation doctrine.
The Government's Response to Teoh's Case
Press Release
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.In their press release, the Minsters 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. [22]
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. [23]
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. [24]
The Government's position has been reiterated on a number of occasions,
most recently in a speech given by the Minister for Foreign Affairs, titled
The Impact of Internationalisation on Australian Law: A Commentary. [25]
As the Minister explained:
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. [26]
Administrative Decisions (Effect of International Instruments) Bill
1995
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 Bill was read for a second time
by the Minister for Justice, The Hon. Duncan Kerr, on 21 September 1995.
Outline of the Bill
The Explanatory Memorandum to the Bill outlines its major provisions.
Clause 2 of the Bill provides for its retrospective operation, as it applies
in respect of 'administrative decisions' made by, or on behalf of, the
Commonwealth, a State, or a Territory on or after 10 May 1995, the date
of the Joint Statement. This includes decisions that are reviews of or
appeals from decisions made before 10 May 1995.
Clause 4 of the Bill sets out definitions for 'administrative decision',
'enactment', and 'international instrument'. The most contentious of these
definitions is the one for 'administrative decision', which is expressed
to encompass decisions by or behalf of the Commonwealth, a State or a
Territory, or decisions by, or on behalf of, an authority or office holder
of the Commonwealth, a State, or a Territory.
The primary provision in the Bill is clause 5. As it states:
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.
The scope of clause 5 is qualified by clauses 6(1), 7 and 8. Clause 6(1)
exempts from the operation of clause 5 the terms of treaties that have
been legislatively implemented. However, clause 6(2) expressly states
that international instruments that are scheduled or otherwise attached
to, or merely reproduced, in an enactment will not be taken to have been
incorporated into Australian law. Clause 6(2) has been the subject of
particular criticism, most notably from the Human Rights and Equal Opportunity
Commission. These criticisms will be canvassed below.
Clause 7 of the Bill preserves the operation of international complaints
mechanisms in respect of international instruments. The Explanatory Memorandum
to the Bill cites as an example the complaints procedures attaching to
the international instruments scheduled to the Human Rights and Equal
Opportunity Commission Act 1986.
Clause 8(1) of the Bill exempts from the operation of clause 5 those
enactments which expressly provide that the requirements of an international
instrument constitute a relevant consideration in the making of an administrative
decision.
Clause 8(2) of the Bill expressly provides that clause 5 will not render
the requirements of an international instrument as an irrelevant consideration
in the making of an administrative decision. In other words, if an administrative
decision maker wishes to take the terms of an international instrument
into account, then he or she will be able to do so without the decision
being subject to judicial review on the basis that he or she took into
account an irrelevant consideration.
Criticisms of provisions of the Bill
The Preamble
The Preamble to the Bill was the subject of particular criticism from
Ms Elizabeth Evatt. [27] In her evidence to
the Committee, she drew attention to what she considered to be a statement
of law misleading in its incompleteness in paragraph 3:
However, international instruments by which Australia is bound
or to which Australia is a party do not form part of Australian law
unless Australian legislation provides otherwise.
In her view, this sentence in the Preamble failed to take into account
the role of international instruments, even in the absence of legislative
implementation, in influencing the development of the common law. [28]
Mr Henry Burmester, from the Attorney-General's Department, submitted
that the Bill '...is not, and was never intended to be a full statement
of the position of international law in Australian domestic law', [29]
and that the sentence in the third paragraph of the Preamble was '...but
a restatement of the basic principle underlying the effect of international
law in Australian law', [30] and reflects the following statement made by Chief
Justice Mason and Justice Deane in their joint judgment in Teoh:
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. [31]
Clauses of the Bill
Clause 2- Retrospectivity
Clause 2 of the Bill states that the Bill is taken to have commenced
on 10 May 1995, the date of the Joint Statement. A number of submissions
have criticised the retrospective nature of the Bill. The Victorian Council
for Civil Liberties pointed to what it saw as an increasing trend in this
area:
The Council is disappointed that once again the Commonwealth
is proposing that legislation which will deny people rights, will once
again be applied retrospectively. The trend in this regard by the Commonwealth
as evidenced by a number of amendments to migration legislation, over
which the Council has expressed its concern to this Committee and the
Government in the past, remain of serious concern. [32]
The issue of the Bill's retrospective operation was examined by the Senate
Standing Committee for the Scrutiny of Bills. Its conclusions, published
in the Committee's Alert Digest, are as follows:
It seems to the Committee that if the joint statement of the
Attorney-General and the Minister for Foreign Affairs is an executive
act amounting to a contrary indication no legitimate expectation has
arisen since 10 May 1995. There would, therefore, be no need for the
bill to commence retrospectively. On the other hand, as no right to
a legitimate expectation has existed since that date, the legislation
cannot be said to take away the right retrospectively except in a most
formal sense. [33]
However, concerns have been raised about the effectiveness of the Joint
Statement in eliminating the legitimate expectation. Professor Margaret
Allars, from the University of Sydney, (whose arguments are supported
by committees of the Law Council in Submission No. 8) has expressed doubt
about the effectiveness of the Government's press release. [34]
She argued that the references by Mason CJ, Deane and Toohey JJ to statutory
or executive indications contrary to the existence of a legitimate expectation,
did not contemplate a general statement repudiating all legitimate expectations.
Professor Allars observed that the High Court's reference to 'executive
action' could be confined to action of the executive in denouncing a treaty.
However, she took a broader view which extended such 'executive action'
to the publication of a considered statement of policy which is contrary
to the obligations incurred in ratifying a particular treaty. She concluded:
Doubt arises as to whether a statement of policy at the level
of generality of the Joint Statement
can be equally effective as one which is directed at a particular convention.
The Joint Statement does not even attempt
to list the treaties and conventions to which it purports to apply.
And of course it does not identify the policy statements, made at the
time of ratification and later, which it is intended to override. [35]
The effectiveness of the Government's press release is important, given
that the Bill has retrospective effect back to the date that the press
release was issued.
However, the Committee considers that the Joint Statement, as a later,
inconsistent statement of policy made by the Executive, effectively eliminated
any legitimate expectations raised by virtue of the ratification by the
Executive of international instruments. As no legitimate expectation has
existed since 10 May 1995, in practical terms, the Bill could be said
to take away rights retrospectively.
Clause 4 - The application of the Bill to State and Territory 'administrative
decisions'
In the Second Reading Speech to the Bill, the Minister for Justice explained
that it was necessary to draft its clauses so that it applied to the States
and Territories, as the majority judges in Teoh had not specified whether
the Commonwealth's ratification of an international instrument gave rise
to a legitimate expectation that only Commonwealth administrative decision
makers would act in conformity with its terms, or whether the legitimate
expectation also arose in respect of State decision makers. [36]
In their submission to the present inquiry, Ms Kris Walker and Ms Penelope
Mathew argued that the doctrine of legitimate expectation, as it operates
in respect of international instruments, means that ratification by the
Executive is unlikely to give rise to a legitimate expectation that State
administrative decision makers will act in conformity with the terms of
the relevant international instrument. Referring to the reasoning of the
majority in Teoh, they noted:
Indeed, if the reasoning of the majority is followed through
in any logical way, it is clear that State decisions would not be affected:
the undertaking to the Australian people is given by the Commonwealth
executive and thus gives rise to a legitimate expectation that the Commonwealth
executive will comply with the terms of the treaty;
there is no undertaking given by the State executives
(indeed, there could not be in relation to treaties, as the States do
not have international personality and so cannot enter into treaties),
thus there is no legitimate expectation engendered that the State
executives will give effect to any conventions in their
administrative decision-making. [37]
Their conclusions are supported by the Nationality and Residency Subcommittee
of the International Law Section of the Law Council of Australia. [38]
Mr Anthony Morris QC has expressed concern about the extent to which
the Bill applies to decision makers of State Governments. He doubted whether
the High Court would ever decide that a Commonwealth action could give
rise to a legitimate expectation that a State decision maker would act
in a certain manner. He did not think that Teoh led to this result. Accordingly,
he objected to the application of the Bill to State decision makers on
the grounds that it might give rise to the conclusion that Commonwealth
acts could otherwise give rise to a legitimate expectation in relation
to State administrative decisions. [39]
This concern was also shared by Professor Enid Campbell, who, before
the making of the Joint Statement and the drafting of the Bill, pointed
out that it would be:
...unreasonable to expect that any federal agency could assess
the likely impacts on State and Territory Laws, as well as federal law.
[40]
From a State Government perspective, on 8 June 1995, The Hon. K. Trevor
Griffin, the South Australian Attorney-General, made a Ministerial Statement
on behalf of the South Australian Government. In it, he stated:
...the entering or ratification of a treaty by the Commonwealth
Government is not a reason for raising any expectation that any South
Australian decision-maker will act in accordance with the treaty. It
is not legitimate, for the purposes of applying the law, to expect that
the provisions of a treaty not incorporated by valid Commonwealth legislation
and, in some instances South Australian legislation, should be applied
or even adverted to by decision-makers....This is so both for existing
treaties and for future treaties that Australia may join. [41]
However, Mr Griffin was anxious to ensure that the administrative law
of South Australia remained governed by South Australian legislation.
In his submission to the Committee, stated that it was 'unacceptable to
the South Australian Government for the Commonwealth Administrative Decisions
(Effect of International Instruments) Bill, 1995 to purport to apply to
South Australian administrative decisions and enactments', [42] and requested that the Bill be amended so as to not
apply to South Australian administrative decisions and enactments. [43]
Mr Morris also objected to the application of the Bill to the States
on the basis that a State may want an international instrument to give
rise to a legitimate expectation in relation to a State administrative
decision, and this Bill would prevent that from occurring. [44]
Mr Morris also queried the 'constitutional propriety of Federal legislation
purporting to define "legitimate expectations" which a person
may or may not have in relation to the making of State administrative
decisions.' His concern is that in future the Commonwealth Parliament
may attempt to define matters which do give rise to legitimate expectations
concerning State administrative decisions, rather than those which do
not do so. [45]
In reply, Mr Burmester emphasised that the purpose of the Bill was the
elimination of legitimate expectations which have arisen as a result of
Australia's ratification of international instruments. [46]
In relation to the question of the Commonwealth's power to legislate with
respect to the States on this point, Mr Burmester pointed out:
...it is entirely appropriate for the Commonwealth to seek to reverse
an unintended effect of this particular kind of executive act both in
relation to the Commonwealth and the States and Territories. In our view
it is constitutionally valid to do so. This does not mean the Commonwealth
could legislate generally about legitimate expectations in relation to
State decisions. It is only legislating about the legal effects of its
own act in the field of foreign affairs. [47]
Mr Burmester's statement is a reflection of the Government's position
as set out in the Second Reading Speech to the Bill. As the Minister for
Justice stated:
Since ratification of a treaty is a Commonwealth executive action,
it is entirely appropriate for the Commonwealth to legislate to control
the effect of that action in Australian domestic law generally. The
bill does not prevent any state which wishes to do so from passing a
law or taking its own executive actions in relation to treaties accepted
by Australia which might themselves create a legitimate expectation.
In that case, the legitimate expectation would flow from the state law,
and not the Commonwealth executive act of ratification. [48]
Clause 5 - Elimination of the legitimate expectation
Mr Morris QC has criticised the breadth of clause 5 on the grounds that
it is not confined to repudiating legitimate expectations which arise
'solely' from the act of ratification of the treaty, or reference to it
in an enactment. He noted that there may be circumstances where the Government
has represented to a section of the community (such as the business community)
that its administrative decisions will comply with a treaty (such as GATT),
and that people will rely on such representations and form a legitimate
expectation that there will be compliance with them. He did not consider
that such 'ordinary' examples of the creation of a legitimate expectation
should be affected by the Bill. [49]
Mr Brent Davis, giving evidence on behalf of the Australian Chamber of
Commerce and Industry (ACCI), expressed concern about the potential effect
of the Bill in the area of trade and commerce. [50]
He pointed out that many aspects of trade and commerce were governed by
international instruments, and the Bill would have:
...quite profound implications across the track and certainly
for trade and commerce. If the Australian government has committed to
its treaty and said to the world, 'We'll adhere to this thing or comply
with it,' then in many respects some of the commercial treaties that
we are party to are quite important - rules of origin, customs, standards
and conformance, the environment. There are an infinite number of provisions
arising out of the Uruguay Round which are quite profound for trade
and commerce, of which intellectual property is not the least. [51]
The breadth of clause 5 has also attracted criticism from the Victorian
Council for Civil Liberties. The Council considered it to be a 'clearly
inappropriate' response to the High Court's decision in Teoh, particularly
given that the majority judges took care to emphasise the limited nature
of the legitimate expectation that arose by virtue of the Government's
ratification of the Convention on the Rights of the Child. [52] In both the Joint Statement and the Bill, the Federal
Government stated that a primary purpose of the proposed amendments was
to remove uncertainty in administrative decision making. The Government's
contention that Teoh, in the absence of legislative intervention, would
lead to such uncertainty has met with considerable criticism. Sir Ronald
Wilson, President of the Human Rights and Equal Opportunity Commission,
made the following observation:
In attempting to justify the proposed legislation, it has been
asserted by the Government that many treaty obligations are expressed
in relatively general terms, and that this contributes to uncertainty
in administrative decision making. However, it could equally be argued
that administrative decision making is by its very nature an uncertain
process, particularly where it is based on legislative provisions which
allow for administrative discretion, and which are open to differences
in interpretation. Given this state of affairs, I would submit to you
that the role of international treaties in providing guidance on the
interpretation of such provisions, is to increase rather than decrease
the level of certainty in the decision making process. [53]
Further, in relation to the issue of 'certainty', Ms Helen Bayes from
Defence of Children International (Australia) submitted that the High
Court's decision in Teoh lent greater certainty to administrative decision
making in relation to children, as the 'effects on decisions in relation
to children would therefore be more visible and more likely to be considered'.
[54]
Ms Elizabeth Evatt, addressing the issue in her submission, stated:
The argument in paragraph 4 of the Preamble, based on uncertainty,
is rather thin. The law is always full of surprises. Under Australian
administrative law, decisions are subject to review on the merits and
to judicial review. This is a source of uncertainty in administrative
decision making, but it is the price to be paid for ensuring that considerations
of fairness and legality are respected in decision making. Surely respect
for human rights principles should rank equally. [55]
Mr Alan Rose, President of the Australian Law Reform Commission, gave
evidence that, far from eliminating uncertainty in administrative decision
making, the enactment of the Bill will lead to greater uncertainty, in
a number of respects:
The response to date, as well as being hasty, is both legally
and logically confused. We believe the likely outcome, far from being
a certainty, is greater uncertainty. We also expect that it would fuel
further judicial review applications to deal with the contradictions
that are in the statement jointly made by the Attorney and the Foreign
Minister and in his legislation. We believe it is an open invitation
to continue argument in the courts because, if the Government's view
of this legislation is correct - we doubt that it is - it will open
the debate about whether or not it is simply a charter for greater administrative
official arbitrariness. [56]
As to the scope of the Bill's operation, Mr Robert Ludbrook, Director
of the National Children's and Youth Law Centre, submitted that the Bill
would, if enacted, have a greater effect than merely the restoration of
the state of the law as it was before Teoh. The Bill would, he claimed,
go beyond Teoh in two respects; its application across administrative
decision making, generally, and its application to State and Territory
administrative decisions. [57]
Mr Clarence Stevens, on behalf of the Law Council of Australia, argued
that the Bill was unnecessary, given the Council's view that the decision
in Teoh was, at best, a modest extension of the doctrine. [58]
This view was also expressed by the Australian Law Reform Commission,
[59] and the Human Rights and Equal Opportunity Commission.
[60]
The Attorney-General's Department expressed a different view of the majority
decision in Teoh:
The view that the Teoh case
was only a modest step depends on equating ratification of a treaty
with a representation or published considered statement of policy by
government like those that have previously been held to give rise to
a legitimate expectation. It is because the government did not agree
that joining a treaty could be equated with the issue of a domestic
policy statement made in relation to a particular area of administration
that the Joint Statement was issued on 10 May.
Teoh treats treaty obligations as not just
commitments to the rest of the world but commitments to individuals
that, in the making of administrative decisions concerning them, regard
shall be had to any relevant treaty provision as if it were a particular
policy statement in relation to the area of administration. This is
considered a major qualitative change from the earlier cases. [61]
He stated that the purpose of the Bill was to restore the status quo:
...the purpose of the legislation is very simple: it is to restore
the law to the position that it was prior to the Teoh decision. It is
not to affect any uses of international law that might otherwise be
available, nor is it designed to take away any remedies or rights that
existed apart from the Teoh right that was discovered by the High Court.
....In other words, the legislation is solely directed to taking
away a particular administrative law remedy that the High Court found
to exist in Teoh which had not previously been thought to exist, and
is in no way directed to affecting our commitment to our treaty obligations
or the way in which we give effect to those international obligations.
[62]
In the Second Reading Speech to the Bill, the Minister for Justice affirmed
that the Bill would have 'a confined field of operation', [63]
and that:
...the bill will not affect other uses of international law in
Australia. For instance, the bill will not affect the use of international
law by the courts in the interpretation of ambiguous statutory provisions;
nor will it affect their use of international law as a legitimate and
important influence on the development of the common law. [64]
In contrast, Ms Evatt submitted that the sweeping nature of clause 5
of the Bill was evidenced by the need to include clauses 6, 7 and 8, to
provide exemptions to its operation. [65]
Clause 6(2) - Its effect on human rights treaties
One criticism that has been made in many of the submissions [66] is that the Bill, and clause 6(2) in particular,
undermines the effect of human rights treaties which are scheduled [67]
to the Human Rights and Equal Opportunity Commission Act 1986, or have
been declared to be human rights instruments under that Act. [68] The argument is that these treaties have been the
subject of debate by the Parliament (either at the time the Act was enacted,
or by way of disallowance motion in the case of the Convention on the
Rights of the Child at the time it was declared to be a human rights instrument
under the Act) and that they therefore should have a higher status than
ordinary unincorporated treaties. [69]
Furthermore, it was argued, human rights conventions are intended to
have a different effect in domestic law than other international instruments.
In her submission, Ms Elizabeth Evatt outlined what she viewed as the
fundamental difference between human rights conventions and other international
instruments. Unlike other international instruments, which are expressed
to create mutual obligations between States parties, [70] human rights conventions are expressed to impose
obligations upon each State with respect to its relationship with individuals
resident within its territory:
Human rights treaties are intended to have effect within the
national legal system. States parties are obliged to give effect to
the rights and freedoms set out in the treaty by appropriate legislative
or other means. The persons most concerned with the implementation of
human rights treaties are those individuals whose rights are at stake....If
governments do not ensure and respect the rights in accordance with
their legally binding commitments, those who are prejudiced are not
so much other States but the individuals concerned. [71]
As a consequence, human rights conventions contain accountability mechanisms
(eg complaints procedures, reporting requirements) designed to encourage
States parties to comply with the obligations set out therein.
In his evidence to this Committee, Mr Chris Sidoti, Human Rights Commissioner
with the Human Rights and Equal Opportunity Commission ('HREOC'), stated
that the enactment of the Bill would give rise to a number of 'logical
inconsistencies', because of the changed relationship between the functions
of the Commission, and the requirements placed upon administrative decision
makers:
Through the Human Rights and Equal Opportunity Commission Act
and other legislation administered by our Commission, the Federal Parliament
has established a process by which Australians and others within the
jurisdiction are entitled to lodge a complaint and have the complaint
investigated if there is an act or practice of the Commonwealth inconsistent
with Australia's international human rights treaty obligations, at least
in relation to those treaties annexed or declared under our legislation.
....The Teoh legislation, as proposed, states that although Australians
can have these complaint mechanisms, and although there is a clear expectation
under the HREOC legislation that the international treaties are next
to the legislation and will be complied with, nonetheless they can have
no legitimate expectation for administrative law purposes that there
will be compliance. Going further, through the proposed legislation,
decision makers are being told that they need not take treaty obligations
into account or unduly concern themselves with them. This at least is
the message of the legislation regardless of the preamble that is attached
to it. [72]
The second 'logical inconsistency' that Mr Sidoti pointed to is the fact
that, although Australia has taken a high profile internationally in the
area of human rights, and has acceded to, or declared its adherence to,
the international complaints mechanisms attaching to various human rights
instruments, the Bill exempts domestic decision makers from acting in
conformity with the terms of these instruments. Mr Sidoti noted that:
It is logically inconsistent to provide these individuals with
a right to complain to international [committees] about non-compliance
with these international obligations and yet domestically say that they
can have no legitimate expectation that decision makers will take these
treaties into account in making administrative decisions. [73]
In his evidence to this Committee, Mr Mick Dodson, the Aboriginal and
Torres Strait Islander Social Justice Commissioner, stated that if the
Bill were to pass into law, he stated, the likely outcome would be:
...that the Commissioner who is vested with the responsibility
of looking after indigenous rights in this country - if this bill is
enacted - will be the only official in the country who has to take these
conventions into account. [74]
In response to these points, Mr Burmester observed that, had the Government
wanted the terms of those international instruments to be directly enforceable,
and subject to domestic judicial interpretation, then it would have legislatively
implemented them, rather than merely scheduled them to the Human Rights
and Equal Opportunity Commission Act. Mr Burmester expressed the Government's
position in relation to this point as follows:
It chose to set up a mechanism whereby HREOC could investigate
and identify shortcomings in our law and assist government to then correct
any identified deficiencies. But that was a deliberate choice; that,
rather than moving to directly enable citizens to invoke particular
human rights treaty provisions, it considered it should set up these
complaint mechanisms to facilitate changes in government practices and
administration if problems were identified. [75]
Others have also submitted to the Committee that the recognition of certain
treaties under the Human Rights and Equal Opportunity Commission Act does,
and should continue to, give rise to a legitimate expectation that the
Government and its administrators will comply with these treaties. Ms
Helen Bayes, National Convenor of Defence for Children International (Australia)
agreed that the fact that the Convention on the Rights of the Child has
been subject to a declaration under the Human Rights and Equal Opportunity
Commission Act 1986, and that it was debated in the Parliament, means
that the Parliament itself has created a 'legitimate expectation' in the
community that governments will not breach those rights of the child set
out in the Convention. [76]
The Australian Law Reform Commission, Amnesty International Australia,
and the Public Interest Advocacy Centre have joined in the criticism of
the Bill and in particular the effect on the treaties declared under the
HREOC Act. [77] The Public Interest Advocacy
Centre recommended that:
The ability of the courts to have regard to international customary
law, and utilise treaties as an aid to the development of our common
law and in interpreting statutes, should not be undermined by the proposed
Teoh legislation. ...
Treaties declared under the HREOC Act should give rise to an
obligation by executive government to act in accordance with those treaties.
[78]
Mr Matthew Zagor from Amnesty International Australia submitted that
the status of the treaties scheduled to or declared under the Human Rights
and Equal Opportunity Act should be clarified, preferably through their
implementation into domestic law. [79]
Mr Burmester, whilst affirming the importance of Australia complying
with its human rights obligations, observed that, as with the Human Rights
and Equal Opportunity Commission Act, many other Commonwealth Acts refer
to, or have international instruments scheduled to them. For instance:
The Law of the Sea Convention is in part annexed to the Seas
and Submerged Lands Act 1973 and a number of migratory
birds agreements, the RAMSAR Wetlands Convention, and the World Heritage
Convention are mentioned in section 69 of the Wildlife
Parks and Conservation Act....If the position put forward
that conventions which have been in some way brought to the attention
of Parliament should give rise to legitimate expectations is correct,
then the same rationale would apply to all conventions which are mentioned
in Commonwealth legislation, but which do not form part of Australian
law. I should mention that clause 6(2) is not simply confined to instruments
attached to the Human Rights and Equal Opportunity Act.
[80]
Clause 8 - relevant considerations
According to Mr Burmester, clauses 6, 7 and 8 have been placed in the
Bill 'for the avoidance of doubt', and for the purpose of reassuring the
broader community about the continuing relevance of international law.
[81]
However, others have submitted the clauses will have greater effect,
particularly clause 8. Critics of the Bill argue that clause 8, if enacted,
will lead to increased uncertainty in administrative decision making,
as it will provide decision makers with a choice as to whether or not
they will take the terms of international instruments into account. In
this regard, Mr Anthony Morris QC noted the 'lack of clear guidance' in
either the Bill or the Explanatory Memorandum as to the circumstances
in which it may be appropriate for a decision maker to take the terms
of an international convention into account. [82] He also adverted to the possibility of 'the exercise
of administrative decision-making powers in a way which is arbitrary and,
at least potentially, capricious'. [83]
Mr Rose, on behalf of the Australian Law Reform Commission, submitted
that the likely administrative law outcomes of the operation of clauses
8(1) and 8(2) would be:
...that decision-makers are still entitled to take the provisions
of an international instrument into account and, if the decision-maker
does so, the parties to the decision are able to seek review of the
decision on grounds relating to the terms of the instrument. For example,
the relative weight given to a convention in making an administrative
decision may be reviewed by a merits tribunal. The interpretation given
to convention provisions might also be subject to judicial review. However,
another decision-maker, facing a similar situation, is entitled to entirely
ignore the same convention. The Bill means the course of action may
result in the provisions of the relevant but not binding international
instrument only being raised for the first time on merits review, on
the ground that the primary decision is not the "correct and preferable"
one. [84]
In response to these concerns, Mr Burmester noted:
The legal position before the Teoh case,
after the Teoh case, and after this
Bill is that while a decision-maker may take the obligations under international
conventions into account if they are relevant to a particular decision,
he or she is not bound to take those obligations into account in the
absence of a statutory direction to do so. In short, the criticism of
clause 8(2) seems to be based on the assumption that even in the absence
of the decision in the Teoh case, international
obligations under treaties may be compulsory relevant considerations
even though there is no statutory requirement that they must be taken
into account. This is not the position in Australian law even after
Teoh's case. Furthermore the removal
of clause 8(2) would not achieve that result. [85]
Arguments that failure to implement the Bill would result in the imposition
of unreasonable burdens upon administrative decision makers
Implicit in the Government's position is the notion that, in the absence
of legislative intervention, the High Court's decision in Teoh will impose
great burdens upon those responsible for making administrative decisions.
It was observed that '...the reaction at the highest levels of many departments
was of some consternation at the decision'. [86]
On the other hand, Greenpeace submitted that the Government had overstated
the position:
While it is true that Australia is a signatory to some 920 treaties,
it is an absurd notion to suggest that every decision maker would have
to be aware of each and every one of...all these treaties. Obviously
most conventions are fairly specific and relate to a narrow field of
interest. Many have very narrow implications, eg Agreement with Germany
Concerning the Landing and Recovery of a Space Capsule in Australia
(EXPRESS Agreement) or the Air Services Agreement with Mauritius. [87]
With respect to the potential effect of the Teoh decision, several of
the submissions pointed to Tavita v Minister for Immigration, [88]
a decision of the New Zealand Court Of Appeal. Although this decision
did not specifically deal with the concept of legitimate expectation,
the implications of the principles laid down by the Court with respect
to the role of unincorporated international instruments in administrative
decision making are similar to those laid down by the High Court in Teoh.
This case concerned the deportation of Mr Tavita, a citizen of Western
Samoa who had overstayed his temporary entry permit. He was married to
a New Zealand citizen, and was also the parent and primary carer of a
two year-old child, a citizen of New Zealand by birth. The initial order
for deportation had been made before Mr Tavita's marriage and the birth
of the child; he presented evidence of his changed circumstances to the
Minister's delegate, but the delegate declined to revoke the order.
Mr Tavita, in seeking review of the deportation order, argued that the
Minister's delegate had failed to take the following international instruments
into account; the International Covenant on Civil and Political Rights,
the First Optional Protocol to the ICCPR, and the Convention on the Rights
of the Child. In his evidence, the Minister for Immigration indicated
that Mr Tavita's changed circumstances were not sufficiently exceptional
so as to persuade him to overturn the decision. In addition, the Minister
submitted, neither he nor his Department were obliged to have regard to
the international instruments. In response to the latter submission, the
Court held that, in balancing the relevant considerations in the making
of the decision, the best interests of the child should be the starting
point. Furthermore, Justice Cooke, President of the New Zealand Court
of Appeal, made the following observation:
That is an unattractive argument, apparently implying that New
Zealand's adherence to the international instruments has been at least
partly windowdressing. [89]
The Court adjourned the case to a date to be set, and remitted the decision
to the Department, so that the Minister's delegate could take the relevant
international instruments into account in the making of his decision.
Both Mr Robert Ludbrook, of the National Children's and Youth Law Centre,
and Mr Joseph O'Reilly, from the Victorian Council of Civil Liberties
submitted that the New Zealand government had not legislated to counteract
the potential impact of this decision. There was no evidence to suggest
that administrative decision making in New Zealand had become any more
burdensome than previously. [90]
In this regard, Mr Burmester has noted that at least one piece of New
Zealand legislation has been amended to counter the effect of the decision
in Tavita. The Residential Tenancies Amendment Bill provides:
In exercising its jurisdiction in any case, the Tribunal shall
not take into account any matters relating to the meaning, extent, applicability
or effect of government policy or of any international convention that
does not have the force of law in New Zealand, nor shall it have any
jurisdiction to deal with such matters where they are raised by parties
to a dispute. [91]
Training of administrative decision makers
Indeed, the decision in Teoh presupposes a requirement upon decision
makers to be aware of the terms of international instruments relevant
to their area. There is much evidence to suggest, however, that decision
makers could be given training in the terms of international instruments
relevant to their area, and in fact, there is such a scheme in existence.
In February 1994, the Attorney-General and the Minister for Foreign Affairs
put out a Joint Press Release, announcing the tabling in Geneva, at the
50th Session of the United Nations Commission on Human Rights (UNHCR),
of Australia's National Action Plan. This publication is a statement of
the Government's commitment to the protection and promotion of human rights
in Australia and abroad, and outlines a series of recommendations for
achieving this aim. Of particular relevance in this context is Recommendation
(j):
Set out a program of education and training for Australian personnel
directly responsible for the protection of human rights. [92]
Among other things, this program entailed making available the Department
of Foreign Affairs and Trade human rights training course to other Departments
and Agencies with a particular interest in human rights issues. [93]
In addition, the Department of Immigration and Ethnic Affairs undertook
to provide, and consider expanding, training in human rights to its departmental
officers. [94] Conceivably, this education
program could be extended to other government Departments and Agencies.
The training of administrative decision makers has been recommended by
the Administrative Law Committee of the Federal Litigation Section of
the Law Council of Australia, [95] Amnesty International Australia, [96] and the Defence for Children International - Australia.
[97]
In relation to this point, Mr Bill Campbell, speaking on behalf of the
Attorney-General's Department, adverted to the possibility that even if
an administrative decision maker were well-versed in the terms of the
relevant international instruments, there could be unforseen consequences,
regardless: [98]
...the first thing a decision maker will have to do is to identify
the relevant international obligations. Those international obligations
will not necessarily be confined to one or two conventions; they might
arise out of a number of conventions in different areas.
The second thing that decision makers then have to do is that
they have to interpret those international obligations. Some international
obligations are vague and subject to differing interpretations. Obviously,
the person who is challenging the decision may give a different interpretation
from the person who is making the decision. Next in the process, the
person appeals the decision on the basis that the relevant international
obligation is not taken into account. It then goes to the court, which
decides that the decision maker has not taken the relevant international
convention into account, or has given an incorrect interpretation. Then
it goes back to the decision maker to make the decision. That is the
sort of process you are faced with here. To say that it is unlikely
that the decision in the Teoh case will lead to a great deal of disruption
in decision making, I think, is an assumption. I do not think there
is anything to bear that out in the actual decision of the court itself.
[99]
Arguments that the Government is acting inconsistently with its international
undertakings
There was a general perception amongst many of the witnesses who appeared
before the Committee or made submissions to it, that the Government was
attempting to gain international kudos on the one hand by entering into
treaties, but on the other hand failing to take them seriously at a domestic
level.
Dr Steven Churches expressed concern about the way in which Australia
would be viewed internationally, in particular by developing nations.
Speaking on behalf of the International Commission of Jurists, he noted:
If we are seen by developing nations to be...'squirming out'
of what are public and international obligations, the example set to
developing nations is a particularly poor one. Justice Dowd thinks that
that then in turn really matters, because those nations often depend
on external encouragement to set their own decent standards internally.
It is very hard for them to catch up with what for us has been many
hundreds of years of development. This is not intending to be patronising
on our part, but it is just the way things are in terms of the rate
of development. They are encouraged all the more to develop acceptable
international standards if there are standards set and adhered to by
nations like us. [100]
Mr Richard Newby, in his submission to the Committee, described the Bill
as 'hypocritically honest' because it exposes the inconsistency between
Australia's commitment to the international community in entering into
treaties and its actual practice in failing to implement them domestically.
[101]
Mr N Cowdery QC, on behalf of the Human Rights Committee of the Law Council
of Australia considered that the Bill is 'indefensible' and merely an
attempt 'to excuse government from the proper need to observe and comply
with the obligations it incurs to the international community and inferentially
to all Australians'. [102] He further considered
that it is 'normal, proper and rational that persons will have a legitimate
expectation' that administrative decisions will be made in accordance
with treaty obligations, and that '[a]ny other view legitimises government
hypocrisy'. [103] This view was reiterated by the Law Council's representative
at the hearing, Mr Clarence Stevens. [104]
Speaking more generally about the utility of legislation in this context,
he stated:
Three different subcommittees - the International Law Section,
the Human Rights Committee and the Administrative Law Committee - all
say that legislation as a concept is fundamentally flawed in approach.
Probably by the way Mr Rose expressed it, it represents an hypocrisy
by the executive. [105]
Professor Hilary Charlesworth has submitted that the Bill 'raises serious
doubts about the Commonwealth Government's commitment to the protection
of human rights in this country' and illustrates that Australia's record
of acceptance of human rights instruments is not matched by its domestic
performance. Professor Charlesworth described the Bill as 'a very low
point in the undistinguished history of Australia's domestic implementation
of its international human rights obligations'. [106]
In relation to the Convention on the Rights of the Child itself, Helen
Bayes from Defence for Children International argued that Australia's
position on the Convention had become 'untenable in the eyes of the domestic
community and in the eyes of the international community'. [107]
Both Joseph O'Reilly, of the Victorian Council of Civil Liberties and
Mr Robert Ludbrook, Director of the National Children's and Youth Law
Centre, noted that Australia was already in default with respect to its
reporting obligations under the Convention. Mr Ludbrook observed:
...Australia is seriously in default already with its obligations
under this convention. Of all industrialised countries, Australia is
the furthest in default with its reporting obligations. In terms of
the international community, that it not really good enough. Australia
could do better; Australia should do better. [108]
Mr Alan Rose, of the Australian Law Reform Commission, argued that, once
Australia ratifies a treaty or other international instrument, then it
is bound to legislatively implement those obligations:
...using the full constitutional powers available. That is the
full executive judicial and legislative powers of Australia and it is
not on some basis of limitation in the use of those powers. Once the
Executive makes those international obligations, it is totally legally
open to every other element of the Australian constitution to implement
them. [109]
Mr Henry Burmester disagreed with this contention, both in evidence before
the Committee, and in the submission of the Attorney-General's Department.
He submitted:
It has never been the case that when Australia becomes a party
to an international convention that it thereby undertakes to use the
'full constitutional powers available' to implement the convention.
Let me give a simple example. Australia became a party to the Bonn Convention
on Highly Migratory Species of Wild Animals. In doing so it largely
relied on State and Territory legislation. It did not use the external
affairs power, the corporations power, the Territories power or the
other Commonwealth constitutional powers that might have been available
to implement the Convention. However it broke no commitment to any other
country in not using those powers. Certainly when Australia becomes
a party to a convention it undertakes to implement the obligations under
that convention. However the means of implementing those obligations
and the constitutional powers which are used are a matter for Australia's
own discretion. Futhermore, the statement by Mr Rose seems to imply
that it would be open to the executive or the judiciary to affect the
rights and obligations of individuals on the basis of Australia becoming
a party to an international convention. This is at odds with the view
of the High Court that '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 (the Teoh case,
Mason CJ and Deane J at p 362). [110]
The review of treaties in administrative decision making
On 5 July 1995, the Attorney-General, Michael Lavarch, announced a joint
review by the Attorney-General's Department and the Human Rights and Equal
Opportunity Commission into the effect of international instruments on
administrative decision making. The primary aim of the review, as stated
in the Press Release, is to:
...identify key areas of Commonwealth administrative decision-making
where Australia's obligations under international agreements may be
relevant...[and to] ensure that full and proper consideration is given
to those obligations in the decision-making process. [111]
Mr Chris Sidoti, of the Human Rights and Equal Opportunity Commission,
outlined the nature and scope of the review in his evidence to the Committee.
Due to resource constraints, the review would concentrate on areas of
decision making where difficulties have become apparent, as evidenced
by the extent of complaints made to the Human Rights and Equal Opportunity
Commission. [112] Mr Sidoti then went on to
say:
The significant and very welcome part of the initiative announced
by the Attorney-General is that for the first time the Attorney-General's
Department and our commission, that is, those agencies of the Commonwealth
with particular expertise in human rights law, will be involved in the
review process and will be able to go to departments and agencies and
assist them in the task of ensuring that their decision making processes
comply. [113]
The proposed review has received much support, both in submissions, and
in evidence before the Committee. Those who have expressed support for
the review, and consider that it should have been the Government's initial
response, include: Mr Alan Rose; [114] Ms
Elizabeth Evatt; [115] and Mr Joseph O'Reilly. [116] In evidence at the public hearing, Alan Rose, of
the Australian Law Reform Commission, stated that if the review were carried
out before the Bill were enacted, it would become clear that it would
be unnecessary to enact it at all. [117]
The Public Interest Advocacy Centre, although in support of the review,
appeared to regard it with some scepticism:
The Bill and the proposed review sends a message that the executive
government in Australia acknowledge their decision making procedures
may not conform with treaty obligations. They plan to do something about
it, but do not wish to be bound by law to do so. Treaties, in other
words, may only be "wallpaper impressions of government obligations
after all". [118]
Because of its reliance upon existing resources, no timetable has been
set for completion of the review. [119]
Conclusions
The Committee considers that the Bill maintains the requisite balance
between the power to enter into treaties, the power of the Parliament
to legislatively implement them, and their use as an interpretative tool
by the judiciary.
The Committee notes that the Attorney-General has announced a review,
to be carried out by the Attorney-General's Department in conjunction
with the Human Rights and Equal Opportunity Commission, into the impact
of treaties on administrative decision making.
Recommendations:
Recommendation 1:
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.
Recommendation 2:
The Committee recommends, by majority, that the Bill be enacted as introduced.
Senator Barney Cooney
Chair
Footnotes
[1] Journals of the Senate, No. 180,
28 August 1995, p 3703.
[2] (1995) 128 ALR 353
[3] Mason CJ, Deane and Toohey JJ. Gaudron J.
also agreed that the appeal should be dismissed, but based her judgment
on a common law right. McHugh J. dissented.
[4] Haoucher v Minister for Immigration and
Ethnic Affairs (1990) 169 CLR 648.
[5] Attorney-General of Hong Kong v Ng Yuen
Shiu [1983] 2 AC 629.
[6] Margaret Allars, Introduction to Australian
Administrative Law, Butterworths, 1990: p 238.
[7] [1969] 2 Ch 149
[8] Hansard, Senate Legal and Constitutional
Legislation Committee ('SLCLC'), 14 September 1995, p 342, per Mr Henry
Burmester.
[9] (1990) 169 CLR 648.
[10] (1990) 169 CLR 648, at (the ALR ref is
358).
[11] Salemi v MacKellar (No.2) (1977)
137 CLR 396; FAI Insurances v Winneke (1981) 151 CLR 342; Attorney-General
of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629; Kioa v West (1985)
159 CLR 550; Haoucher v Minister for Immigration and Ethnic Affairs
(1990) 169 CLR 648. Minister for Immigration and Ethnic Affairs
v Ah Hin Teoh [1995] 128 ALR 353, at 365; 374.
[12] [1995] 128 ALR 353, at 373. In their joint
judgment in the same case, at 365, Chief Justice Mason and Justice Deane
stated that an expectation is 'legitimate' or 'reasonable' '...in the
sense that there are enough materials to support it.'
[13] (1995) 128 ALR 353, at 383.
[14] (1977) 137 CLR 487.
[15] (1981) 151 CLR 342.
[16] [1983] 2 AC 629.
[17] [1984] 3 All ER 935
[18] [1984] 3 All ER 935, at 944-945; 948-949;
952; 957; 960. Although the Court held that the long standing practice
of consultation had given rise to a legitimate expectation, the CCSU didn't
get their declaration of invalidity, because of considerations of national
security.
[19] (1985) 159 CLR 550. See also Margaret
Allars, Introduction to Australian Administrative Law, Butterworths,
1991: p 240.
[20] (1990) 169 CLR 648.
[21] (1990) 169 CLR 648, at 651-652, per Deane
J.
[22] 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. Professor Enid Campbell also considered that the decision in
Teoh would lead to, 'a good deal of uncertainty about which conventions
may be relevant to the exercise of a particular discretion and also precisely
what undertakings in relevant conventions require', Submission No. 12,
para. 9.
[23] 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.
[24] 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.
[25] Gareth Evans, 'The Impact of Internationalisation
on Australian Law: A Commentary', Address to The Mason Court and Beyond
Conference, 10 September 1995.
[26] Gareth Evans, 'The Impact of Internationalisation
on Australian Law: A Commentary', Address to The Mason Court and Beyond
Conference, 10 September 1995.
[27] Hansard, SLCLC, 14 September 1995,
p 338, per Ms Elizabeth Evatt.
[28] Hansard, SLCLC, 14 September 1995,
p 338, per Ms Elizabeth Evatt.
[29] Mr Henry Burmester, Submission No. 27,
p 5.
[30] Mr Henry Burmester, Submission No. 27,
pp 5-6.
[31] Cited in: Submission No. 27, p 6.
[32] Mr Joseph O'Reilly, Victorian Council
for Civil Liberties, Submission No. 9, p 4.
[33] Senate Standing Committee for the Scrutiny
of Bills, Alert Digest, No. 11 of 1995, 23 August 1995: pp 7-8.
[34] Margaret Allars, 'One Small Step for Legal
Doctrine, One Giant Leap Towards Integrity in Government' (1995) 17 Sydney
Law Review 204, 239-41.
[35] Margaret Allars, 'One Small Step for Legal
Doctrine, One Giant Leap Towards Integrity in Government' (1995) 17 Sydney
Law Review 204, 240.
[36] Hansard, House of Representatives,
21 September 1995, p 1438, per The Hon Duncan Kerr.
[37] Ms Kristen Walker and Ms Penelope Mathew,
Submission No. 16. See also: 'Case Notes: Minister for Immigration
v Ah Hin Teoh', (1995) 20 MULR 236, at pp 248-249.
[38] Mr Barrie Virtue, Deputy Secretary-General,
Law Council of Australia, Submission No. 8, para 15.
[39] Mr Anthony Morris QC, Submission No. 3,
para. 6.
[40] Professor Enid Campbell, Submission No.
12, para. 10.
[41] The Hon K Trevor Griffin, Submission No.
19, p 2.
[42] The Hon K Trevor Griffin, Submission No.
19, p 2.
[43] The Hon K Trevor Griffin, Submission No.
19, p 2.
[44] Mr Anthony Morris QC, Submission No. 3,
para. 7.
[45] Mr Anthony Morris QC, Submission No. 3,
para. 8.
[46] Mr Henry Burmester, Submission No. 27,
p 2.
[47] Mr Henry Burmester, Submission No. 27,
pp 2-3.
[48] Hansard, House of Representatives,
21 September 1995, p 1438, per The Hon. Duncan Kerr.
[49] Mr Anthony Morris QC, Submission No. 3,
paras 11-12.
[50] Hansard, SLCLC, 14 September 1995,
p 375, per Mr Brent Davis.
[51] Hansard, SLCLC, 14 September 1995,
pp 375-376, per Mr Brent Davis.
[52] Mr Joseph O'Reilly, Victorian Council
for Civil Liberties, Submission No. 9, p 3.
[53] Sir Ronald Wilson, Submission No. 14,
pp 3-4.
[54] Ms Helen Bayes, Submission No. 15, p 2.
[55] Ms Elizabeth Evatt, Submission No. 20,
p 3.
[56] Hansard, SLCLC, 14 September 1995,
p 330, per Mr Alan Rose.
[57] Mr Robert Ludbrook, National Children's
and Youth Law Centre, Submission No. 11, p 4.
[58] Hansard, SLCLC, 14 September 1995,
p 365, per Mr Clarence Stevens.
[59] Hansard, SLCLC, 14 September 1995,
p 329, per Mr Alan Rose.
[60] Hansard, SLCLC, 14 September 1995,
p 332, per Mr Chris Sidoti.
[61] Mr Henry Burmester, Submission No. 27,
p 4.
[62] Hansard, SLCLC, 14 September 1995,
p 340, per Mr Henry Burmester.
[63] Hansard, House of Representatives,
21 September 1995, p 1437.
[64] Hansard, House of Representatives,
21 September 1995, p 1437.
[65] Ms Elizabeth Evatt, Submission No. 20,
p 4.
[66] Sir Ronald Wilson, Submission No. 14,
p 3; Professor Hilary Charlesworth, Submission No. 7, pp 1-2; Mr Robert
Ludbrook, Submission No. 11, p 3; Mr Joseph O'Reilly, Victorian Council
for Civil Liberties, Submission No. 9, p 3; Mr Matthew Zagor, Submission
No. 21, pp 3-4.
[67] ILO 111, Convention Concerning Discrimination
in Employment and Occupation; and the International Covenant on
Civil and Political Rights. The Convention on the Elimination of
All Forms of Racial Discrimination is a schedule to the Racial
Discrimination Act 1975, and the Convention on the Elimination
of All Forms of Discrimination Against Women is a schedule to the
Sex Discrimination Act 1984. The Declaration on the Rights of
the Child; the Declaration on the Rights of Mentally Retarded Persons;
and the Declaration on the Rights of Disabled Persons are also
scheduled to the Human Rights and Equal Opportunity Commission Act,
but being Declarations only, they do not have the same status as treaties
under international law. The Teoh case did not address the question
of whether a declaration to which Australia is a party would give rise
to the same legitimate expectations as a treaty ratified by Australia.
[68] The Convention on the Rights of the
Child (declared 1993); the Declaration on the Elimination of All
Forms of Intolerance and of Discrimination Based on Religion or Belief.
[69] This question did not arise for decision
in the Teoh case because the Convention on the Rights of the
Child was only declared to be an instrument under the Act after the
impugned decision about Mr Teoh was made.
[70] Ms Elizabeth Evatt, Submission No. 20,
p 2.
[71] Ms Elizabeth Evatt, Submission No. 20,
p 2.
[72] Hansard, SLCLC, 14 September 1995,
p 334, per Mr Chris Sidoti. See also: Mr Alan Rose, Australian Law Reform
Commission, Submission No. 17, p 4.
[73] Hansard, SLCLC, 14 September 1995,
p 335, per Mr Chris Sidoti. Again, see: Mr Alan Rose, Australian Law Reform
Commission, Submission No. 17, p 4.
[74] Hansard, SLCLC, 14 September 1995,
p 337, per Mr Mick Dodson. Hansard, SLCLC, 14 September 1995, p
337, per Mr Mick Dodson. Section 46(C)(4) of the Human Rights and Equal
Opportunity Commission Act 1986 provides:
In the performance of functions under this section, the Commissioner,
must, as appropriate, have regard to:
(a) the Universal Declaration of Human Rights, the International Covenant
on Civil and Political Rights, the International Covenant on Economic,
Cultural and Social Rights, the Covenant on the Elimination of All Forms
of Racial Discrimination and the Convention on the Rights of the Child:
and
(b) such other instruments relating to human rights as the Commissioner
considers relevant....
[75] Hansard, SLCLC, 14 September 1995,
p 342, per Mr Henry Burmester.
[76] Ms Helen Bayes, Submission No. 15.
[77] Mr Alan Rose, Australian Law Reform Commission,
Submission No. 17, p 4; Mr Matthew Zagor, Amnesty International Australia,
Submission No. 21, recommendation 3; Ms Amanda Cornwall, Public Interest
Advocacy Centre, Submission No. 22, p 2.
[78] Mr Michael Hogan, Director, Public Interest
Advocacy Centre, Sydney NSW, Submission No 141, Submissions Vol 9,
2110
[79] Mr Matthew Zagor, Amnesty International
Australia, Submission No. 20, p 4.
[80] Mr Henry Burmester, Submission No. 27,
pp 4-5.
[81] Hansard, SLCLC, 14 September 1995,
p 342, per Mr Henry Burmester.
[82] Mr Anthony J.H. Morris QC, Submission
No. 3, para 15.
[83] Mr Anthony J.H. Morris QC, Submission
No. 3, para 17.
[84] Mr Alan Rose, Australian Law Reform Commission,
Submission No. 17, p 4.
[85] Mr Henry Burmester, Submission No. 27,
p 5.
[86] Henry Burmester, 'The Teoh Decision-
A Perspective From the Government Service', Australian Institute of
Administrative Law Forum No. 5, June 1995: p 8.
[87] Mr Ian Fry, Submission No. 26, p2.
[88] (1994) 2 NZLR 257
[89] Cited in, J.B Elkind, 'Ashby v Minister
of Immigration: Overruled?', New Zealand Law Journal, March 1994:
p 120
[90] Mr Robert Ludbrook, National Children's
and Youth Law Centre, Submission No. 11, p 2; Hansard, SLCLC, 14
September 1995, p 385; Mr Joseph O'Reilly, Victorian Council for Civil
Liberties, Submission No. 9, p 4.
[91] Mr Henry Burmester, Submission No. 27,
p 7.
[92] National Action Plan, AGPS, Canberra,
1994: p 87.
[93] National Action Plan, AGPS, Canberra,
1994: p 89.
[94] National Action Plan, AGPS, Canberra,
1994: p 89.
[95] Mr Barrie Virtue, Submission No. 8, pp
2-3.
[96] Mr Matthew Zagor, Submission No. 21, p
4.
[97] Ms Helen Bayes, Submission No. 15, p 4.
[98] Hansard, SLCLC, 14 September 1995,
p 350, per Mr Bill Campbell.
[99] Hansard, SLCLC, 14 September 1995,
p 351, per Mr Bill Campbell.
[100] Hansard, SLCLC, 14 September
1995, p 371, per Dr Steven Churches.
[101] Mr Richard Newby, Submission No. 2.
[102] Mr N Cowdery QC, Human Rights Committee,
Law Council of Australia, Submission No. 4.
[103] Mr N Cowdery QC, Human Rights Committee,
Law Council of Australia, Submission No. 4.
[104] Hansard, SLCLC, 14 September
1995, p 365, per Mr Clarence Stevens.
[105] Hansard, SLCLC, 14 September
1995, p 365, per Mr Clarence Stevens.
[106] Professor Hilary Charlesworth, Submission
No. 7.
[107] Hansard, SLCLC, 14 September
1995, p 382, per Ms Helen Bayes.
[108] Hansard, SLCLC, 14 September
1995, p 382, per Mr Robert Ludbrook.
[109] Hansard, SLCLC, 14 September
1995, p 358, per Mr Alan Rose.
[110] Mr Henry Burmester, Submission No. 27,
pp 6-7.
[111] Michael Lavarch, MP, Review of treaties
in administrative decision-making, 5 July 1995: p 2.
[112] Hansard, SLCLC, 14 September
1995, p 335, per Mr Chris Sidoti.
[113] Hansard, SLCLC, 14 September
1995, p 335, per Mr Chris Sidoti.
[114] Mr Alan Rose, Submission No. 17, Vol
1 p 5.
[115] Ms Elizabeth Evatt, Submission No. 20,
p 3.
[116] Mr Joseph O'Reilly, Submission No. 9,
p 5.
[117] Hansard, SLCLC, 14 September
1995, p 330, per Mr Alan Rose.
[118] Ms Amanda Cornwall, Submission No. 22.
[119] Hansard, House of Representatives,
21 September 1995, p 1439, per The Hon. Duncan Kerr.
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