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Wednesday, 25 June 1997
Page: 6232


Mr MELHAM(11.44 a.m.) —On 7 April 1995 the High Court handed down its decision in Teoh v. The Minister for Immigration and Ethnic Affairs. In short, in the Teoh decision the High Court held 4-1 that a procedural right exists based on the legitimate expectation that a decision maker would act in compliance with an international obligation, such as a convention or treaty, which had not otherwise been enacted into Australian domestic law.

The effect of a procedural right is that a decision maker is required to give a person affected by a decision the right to be heard if the decision maker does not intend to comply with that international obligation. Accordingly, the decision maker, having given the affected party the reasonable opportunity to be heard, need not comply with the international obligation.

It is important to note that the Teoh decision did not give a person whose decision is affected by an international obligation a substantive right to have that international obligation respected. In this sense, the Teoh decision did not import international law into the domestic sphere; rather, it treated the executive's action in entering into an international obligation no differently from every other statement of policy made domestically by the government of the day and applied the common law—the Australian law, doctrine of legitimate expectation—to that announcement of policy.

In this regard, the decision by the High Court was not a radical departure from previous High Court authority. However, at the time it was brought down, the Teoh decision did give rise to considerable concern. Initial advice provided to the then Labor government was that this decision would have significant ramifications for the administrative law system, throwing into jeopardy a large range of government decisions. It may be interesting for members opposite to note who provided this advice—one Mr Henry Burmester, Chief General Counsel of the Commonwealth of Australia.

On 10 May 1995, in response to those widely held fears, and acting in good faith on the advice which they had received, the then Minister for Foreign Affairs, Senator the Hon. Gareth Evans, and the then Attorney-General, the Hon. Michael Lavarch MP, responsibly issued a joint statement stating the government's view of the decision in the Teoh case. The statement purported to be an `executive indication to the contrary'. It did this by stating the then Labor government's view that such international obligations did not give rise to a legitimate expectation at administrative law and thus, in future, no procedural right would exist. The use of a contrary `executive indication to the contrary' as a means to defeat a legitimate expectation was specifically contemplated by a majority of the High Court in Teoh, per Mason CJ, Deane J and Toohey J.

Advice from the Attorney-General's Department at the time was of the view that the joint statement had the intended effect but also expressed the view that the conclusion was not beyond doubt. Academic writings have since cast further doubt on the correctness of this opinion. As a result, the Administrative Decisions (Effect of International Instruments) Bill—the bill—was introduced into the parliament. The bill was subject to scrutiny by a Senate committee. However, it lapsed at the conclusion of the last parliament.

It is fair to say that much has changed since the Teoh decision was handed down and the then Labor government's initial reaction. A growing body of academic writing has criticised both the previous government's and this government's stand on the Teoh decision. That criticism is based on the view that the then Labor government overreacted to the High Court's decision and that the present government has continued that overreaction.

In short, this critique argues, as I have stated before, that the application of the doctrine of legitimate expectation to international obligations is a natural extension of the longstanding application of that doctrine to domestic policy statements. In doing so, it draws upon the view expressed by Chief Justice Mason and Deane J in Teoh that the entry into an international obligation is not `a merely platitudinous or ineffectual act' but is `a positive statement by the executive government of this country to the world and to the Australian people that the executive govern ment and its agencies will act in accordance with the convention or treaty'.

We also wish to reconsider our response to this legislation in light of the more than two years practical experience with the Teoh decision. It is fair to say that, contrary to the advice received by the then Labor government, there has been no plethora of Teoh type litigation. Indeed, litigation of that nature has been rare. Indeed, it was precisely the lack of this Teoh type litigation which caused the former Labor Attorney-General, the Hon. Michael Lavarch, to state in a speech last year that he believed the decision to enact this legislation should be reconsidered.

Further, the present government has introduced its reforms to the treaty making process. In this regard, I note the view of the current Attorney-General (Mr Williams), who, on 21 September 1995, in debate on the 1995 bill, stated:

The coalition proposals for the reform of the treaty making processes would in fact do away with the need for this bill altogether.

The Attorney-General might like to explain why in 1995 he thought that this bill would be unnecessary if his proposals for treaty reform were accepted but now believes that this bill is still necessary. I will come to that later. Doesn't he believe that his reforms to the treaty making process provide sufficient scrutiny of Australia's international obligations? I would appreciate it if he would respond to these matters when he speaks at the conclusion of the speeches in the second reading debate.

The coalition government has also issued its own executive statement, seemingly unconcerned by the body of academic opinion which has now questioned the effectiveness of those statements. Given the body of this advice and the real concerns that have been raised about the acceptability of advice that has come from Mr Burmester, the Australian Labor Party wants an opportunity to visit the underpinnings of this legislation again.

Accordingly, the Labor Party will not be opposing this bill in the House today. Rather, when the bill moves to the Senate, we will be referring it to the Senate Legal and Constitutional Legislation Committee for reconsider ation and review. We will determine our approach to the bill at that time. We believe that it is important that we take a considered approach to this bill and that we not impinge on the common law rights of Australians unless it is necessary to do so.

These are matters that we will be considering in the light of the Senate committee's review, which I have foreshadowed. That is the position, and it is happening in the Senate because the shadow Attorney-General is in the Senate and because the Senate has previously considered the original Teoh bill. I have a copy of that report, and I want to quote from aspects of that report, some evidence that was given to that committee.

As you know, Madam Deputy Speaker, I am a great defender of the House of Representatives committees looking at legislation. I can indicate at this stage that the Labor Party will be taking a more robust approach to the referral of bills to House of Representatives committees. The only reason that we are deferring in this instance to the Senate reconsidering it is that the Senate considered the original bill that was introduced by the former Labor government. So there is a secretariat there and a wealth of corporate history that will allow them to give a proper consideration of that bill. It is also appropriate to see whether they differ from their earlier opinion.

I want to now preface my comments by saying that these are my private comments that I am about to make because, as the Attorney-General well knows, within the forums of the Labor Party under the former Labor government, I took a view, and that view was not the view that was adopted by the party at that time. I found that, in effect, the High Court decision in Teoh was a modest decision. It was my view that it was an overblown reaction that the then government took. I believe that the passage of time has confirmed that the view I held was the correct view; it strengthened my view. As a parliament, we basically should have respected the Teoh decision and we did not necessarily have to go the way the former Labor government wanted to go and the current government wants to go.

I repeat: they were my views at the time. They were well known. The current Attorney-General knows that. It is not as though I am expressing a personal view now that is different from a view that I expressed back then. That was always my view because I gave it a considered look. This is what Chris Sidoti, the Human Rights Commissioner, submitted to the Senate Legal and Constitutional Legislation Committee as evidence on 14 September 1995 at page 332:

The High Court simply said that decision makers should take treaty obligations into consideration in making a decision and, where they decide to act contrary to these obligations, then procedural fairness dictates that those affected should be given notice of this and allowed a chance to comment.

The report goes on to say:

The Government claims that the Teoh decision places an excessive burden on the decision makers of the Commonwealth, States and Territories to consider the impact of treaty obligations.

In that regard, Mr Sidoti, again in evidence before the committee on 14 September 1995 at page 333, had this to say:

Given the small number and importance of these treaties in the human rights area, it would seem in no way onerous to expect decision makers to be aware of them. We are talking about not 920 treaties that an individual decision maker must take account of nor, in most cases, even 20 treaties, but rather a handful of treaties, and those treaties are among the most significant that Australia has entered into.

In terms of the current Attorney-General, one can have some sympathy for him because, as Attorney-General, he is now bound by his cabinet's view. I raised the question earlier in what I was saying about the consistency of the current Attorney-General. He is in the role that I was in in the last parliament in terms of solidarity.

What does a press report in the Sydney Morning Herald on Wednesday, 11 September 1996 state? It is worth quoting because it shows that the current Attorney-General has recognised that there is no need to implement anti-Teoh legislation and that, unfortunately, again, this Attorney-General was rolled by his cabinet and his party. This is what the press report says at page 8:

The Federal Government has shelved plans to overrule legislatively a High Court decision last year which required officials to take account of Australia's international human rights obligations when making decisions affecting individual rights.

The move comes despite strong Coalition support for a Labor bill introduced into Parliament last year to override the Teoh case, where the court held for the first time that treaty obligations could have legal effect, even without their enactment into domestic law.

Under the ruling, a deportation order against a Malaysian drug trafficker was overturned because immigration officials had not considered the interests of his children. This had defied Australia's promise under the Convention on the Rights of the Child that children's interests would be paramount in decision-making.

The case was hailed as the first to require the Government to put its international promises into practice in making decisions.

It had previously been thought that treaty obligations meant nothing without a domestic law backing them up.

This is the relevant part:

Despite rabid opposition among elements of the Coalition to human rights treaties, the Attorney-General, Mr Williams, a proponent of due process, told yesterday's joint party room meeting that he would not reintroduce Labor's bill, which lapsed when the election was called.

Mr Williams told the party room there was evidence that the problem with Teoh was not as large as it had appeared at the time and that he would monitor legal developments.

What has basically happened is that the Prime Minister (Mr Howard) has come in and the Attorney-General has been rolled. What is happening here is that this is running to the coalition's agenda to create a perceived threat.

The Teoh decision is not a threat to domestic law. I think it is worth while to quote from the High Court decision. I think that puts it into legitimate perspective. It is about time members opposite started going to the actual judgments of the High Court and read them for themselves. What is happening is that we are getting a lot of claptrap, particularly in relation to the Wik decision, from a lot of people who have not even bothered to read the High Court's judgments. I am a great defender and admirer of the High Court. In recent times I think the High Court has exceeded itself and, in effect, has shown leadership within its proper role as part of the constitutional separation of powers and has not been browbeaten by the executive or the parliament in exercising its proper constitutional authority.

I note that Justice Toohey has announced his retirement. I take the opportunity now to place on the record that, in my view, he has been an outstanding judge on the High Court. His period in judicial office stands him well. His judgment in the High Court case on Wik was exemplary; it was powerful; it was principled; and it was based on correct legal principles. He served the court and the nation well in his period of office. That is the sort of leadership which is sadly lacking and that should be shown by the politicians. But he acted within the proper constitutional role of a High Court judge. I wish him well in his future retirement. There are other judges of the court who are currently serving with distinction. But what has happened is that they have been the subject of a political attack, an ignorant attack, an attack that is undermining the very fabric of our society for political purposes in a range of cases by people who have not even had the decency of reading the judgments.

I place more faith in the High Court and the institutions of this country than I do in the cabinet and the executive of this country. That is where I look to for protection. We should be defending them and talking them up, not undermining them. That is not to say that I agree with every decision or every judgment of the High Court, but they are well-reasoned, well-argued judgments. Its judges are people who are doing a genuine public service and who are there as the real protectors of the community. They have no base political motive. We should be applauding them. Instead, there are efforts to undermine them.

I believe this government is going to be in for a rude shock because, irrespective of who they appoint to replace Chief Justice Brennan, or the other justices of the High Court who are retiring, I believe that any future appointments will grow in that office and will perform their proper constitutional role, which is not to be the toadies of the executive or the parliament but to consider cases on their merit—as the Teoh case was decided. This is what Chief Justice Mason and Justice Deane said in their joint judgment in relation to the status of the convention in Australian law:

It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute. This principle has its foundation in the proposition that in our constitutional system the making and ratification of treaties fall within the province of the Executive in the exercise of its prerogative power whereas the making and the alteration of the law fall within the province of Parliament, not the Executive. So, a treaty which has not been incorporated into our municipal law cannot operate as a direct source of individual rights and obligations under that law. In this case, it is common ground that the provisions of the Convention have not been incorporated in this way.

Further on it states:

But the fact that the Convention has not been incorporated into Australian law does not mean that its ratification holds no significance for Australian law. Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia's obligations under a treaty or international convention to which Australia is a party, at least in those cases in which the legislation is enacted after, or in contemplation of, entry into, or ratification of, the relevant international instrument. That is because Parliament, prima facie, intends to give effect to Australia's obligations under international law.

Further down it says:

Apart from influencing the construction of a statute or subordinate legislation, an international convention may play a part in the development by the courts of the common law.

. . . . . . . . .

But the courts should act in this fashion with due circumspection when the Parliament itself has not seen fit to incorporate the provisions of a convention into our domestic law. Judicial development of the common law must not be seen as a backdoor means of importing an unincorporated convention into Australian law. A cautious approach to the development of the common law by reference to international conventions would be consistent with the approach which the courts have hitherto adopted to the development of the common law by reference to statutory policy and statutory materials.

Further on in that judgment, when referring to the Full Court, it says:

The Full Court's use of the Convention as a foundation for a legitimate expectation and the creation of an obligation to initiate inquiries and reports in conjunction with procedural fairness.

Further on—this is the clincher—quoting from the court:

Junior counsel for the appellant contended that a convention ratified by Australia but not incorporated into our law could never give rise to a legitimate expectation. No persuasive reason was offered to support this far-reaching proposition. The fact that the provisions of the Convention do not form part of our law are a less than compelling reason—legitimate expectations are not equated to rules or principles of law. Moreover, ratification by Australia of an international convention is not to be dismissed as a merely platitudinous or ineffectual act, particularly when the instrument evidences internationally accepted standards to be applied by courts and administrative authorities in dealing with basic human rights affecting the family and children. Rather, ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention. That positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the Convention.

A proper reading of Teoh shows that we have nothing to fear in relation to Teoh. I repeat that these are my personal views. They are views that I have always held. I held them when we were in government and I hold them now. The situation is that there are differing views. I think the passage of time has confirmed my views.

The passage of time has confirmed the submission that the Human Rights Commissioner, Chris Sidoti, made to the parliament. Basically, that is that the following principles are there. In the absence of implementing legislation, the provisions of international conventions do not form part of Australian municipal law. This statement is based on the constitutional principle of the separation of legislative and executive action. However, international conventions are a legitimate guide in the judicial development of common law. In relation to statutory construction where a statute is ambiguous, the court should favour a construction that accords with Australia's international treaty obligations, at least where the statute was enacted after the treaty had been ratified.

These three propositions are not really the subject of disagreement by the government. However, they do indicate that the High Court was carefully reflecting the accepted legal position of international domestic law in their judgment and suggest that criticisms of the judgment can be tempered by a recognition of such circumspection.

I repeat: it has been my view that the former Labor government and the current government do not need to enact this sort of legislation. It is a gross overreaction to what the High Court said. In summary, the High Court said that if the international treaty is there—the decision maker who is a professional person in a senior position should be aware of those treaties—Teoh basically says that if you are going to give a decision that is in contravention of the treaty, procedural fairness requires that you give the person the opportunity to make a submission to you before you come down with an adverse decision. It does not bind you to conforming. It just says that procedural fairness requires you to give them an opportunity to make a submission to you before you give your decision. That is it in a nutshell. There has been nothing in the intervening years to the contrary. There has not been the mass loads of litigation to substantiate the need for this sort of legislation.

We will have this bill reviewed by the Senate committee because it is appropriate that the Senate committee revisits it, having considered it in the first instance. In relation to that, it is something I do not think we can be criticised for. What we are arguing here is the basic principles. It is the government that appears to want to play politics. (Time expired)