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Wednesday, 25 June 1997
Page: 6248


Mr LAURIE FERGUSON(1.14 p.m.) —I hope not to detain the House too long on this matter. The source of this matter is of course the 1990 case, Minister for Immigration and Ethnic Affairs v. Teoh. The case dealt with the conviction for six heroin offences of Mr Ah Hin Teoh and the argument that a bureaucrat should have taken into consideration the possible plight of his children due to their mother, who would remain in Australia, having a drug addiction problem.

The argument by the court was that, by signing the treaty, the government had made a positive action; thereby, it was an understandable expectation by Mr Teoh—and I guess anyone else in his situation—that, in the absence of statutory or executory indications, the decision makers would give him some right to argue the impact of that convention or treaty upon himself.

I want to speak more about this case than the specifics of the legislation. The case drove home very strongly a concern in the electorate that this country—along with only, from recollection, the United Kingdom out of the 17 industrialised countries that were surveyed at that time—did not have any kind of reasonable mechanism for the parliament, the legislators or the people elected in the country to essentially review the treaties that were being entered into by the executive.

Indisputably, our side of politics believes there is a need for strong Australian involvement—whether it is in regards to global warming, arms reductions, landmines, nuclear weapons, et cetera. Obviously, very pertinent at the moment is the question of environmental damage.

There is no dispute that Australia should be in the forefront of involvement to try to take remedial action on these matters. But this case, and CROC of course, drove into the electorate's mind a concern that the people they were electing really did not have much say in the process. There had been a massive expansion of these treaties over a period of time and, if cases like Teoh were to be very persuasive, they would essentially lead to a situation where there could theoretically be legislation by proxy through these international agreements.

In the aftermath of that, there were a few worthwhile editorials about the problem. The Age of 12 May 1995 stated:

. . . in the Teoh judgment, the High Court has effectively instructed the Commonwealth to be aware of the contents of the 920 international treaties to which Australia is a signatory, and to make decisions in accordance with them. While only a few of the conventions to which Australia is signatory have the potential for such an impact on Australian administrative practice, this case makes it clear that far more parliamentary and public scrutiny is necessary before Australia is committed to any international obligations.

Furthermore, on 25 September 1995 the Australian noted:

But consider what bureaucrats would first have to do—decide which treaties might apply, what their provisions might mean, and whether they should be taken into account. This new and unpredictable administrative burden would have to be carried in many areas of government, and under increased risk of court challenge.

The wisdom of the Teoh judgment is open to doubt; Parliament should overturn it. But the Government cannot emerge from the Teoh controversy unscathed.

It went on to cover the previous lack of parliamentary oversight in regards to treaties. As was noted by other speakers, on 10 May 1995 the foreign minister and the Attorney-General of the day issued a statement on behalf of the government that said:

. . . entering into an international treaty is not reason for raising any legitimate expectation that government decision-makers will act in accordance with the treaty if the relevant provisions of that treaty have not been enacted into domestic Australian law. 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 of review of a decision. This is so, both for existing treaties and for future treaties that Australia may join.

They noted: . . . the Government intends to legislate to reinforce this statement and put beyond any doubt the status of these unlegislated international obligations. We will be seeking approval for the necessary legislation to be introduced into Parliament later in these sittings.

As was just noted, there was an indication from the then government that measures had to be taken to tackle the problem that had emerged. The Australian of 22 September—speaking of the member for Denison, the then justice minister, Mr Kerr, said:

Mr Kerr said the Teoh judgment "provides a means of usurping this legitimate role of Parliament". This was an "untenable situation", he told the House of Representatives.

Similarly, an article on 11 September in the Australian said that the then foreign minister, the current member for Holt, Mr Gareth Evans, noted that the Teoh judgment was `just a plain bad decision.' He was quoted as saying:

The decision pays absolutely no regard to the business of government, to the realities of administrative decision-making.

From the beginning, it was clear from a number of government spokesmen that this decision had certainly undermined the understanding held by naive non-lawyers like ourselves, so what we thought was the case until that point was not the case.

Since then, there have been announcements by the current government in regards to an extension of parliamentary review of these treaties. I am pleased to have been a part of that process with some of the earlier speakers. Whilst there have been a few problems at the fringes in regards to the tardiness of the government in its responses to some commit tee statements, in general I would have to say that this has been a very worthwhile process.

To a large degree, the government and its departments are on notice of the parliament's interest in what Australia enters into. However, one point that should be made is that many of those who have essentially been the major advocates of this change have argued from a point of view of concern about the legitimate rights of the states and territories.

One of the more disturbing parts of the process to my mind up to now has been a lack of interest by these very institutions in regards to the operations of the committee. One instance is desertification. From recollection, the New South Wales government alone—and there are probably other states with an even deeper interest in the matter—was the one state that made an application. I am not just saying that because it is a Labor state. Quite frankly, there have been other instances where non-Labor states have been the only ones to respond.

I think we have to be realistic about this. If the states, the premiers and the ministers of the various states start carrying on about how this process is basically undermining their rights to legislate and undermining the constitution, they have to play a very studied role in regards to the processes of this committee and the need to be a part of it.

I have to say in supporting this legislation that, as a lay person, I think it does interrelate with a growing concern by many people in this country and by the legislators elected here that, on occasion, an activist judiciary—people who might know little about life for practical purposes, quite frankly, and might have minimal contact with the broader Australian electorate and its views—might seek to impose their attitudes in a variety of measures under the guise of basically enforcing international conventions. This is a concern, and I guess it is an underlying aspect of this legislation as well—there has to be a protection for the democratic processes of the country. It cannot just be left to people who feel that is the outcome of treaties.

So we have a situation where, on the one hand, a small group of people in the government and a small group of people in the bureaucracy are essentially deciding that this country should be part of this process internationally. Then we have another group of people—people who are unelected; unreviewed by parliament; not queried in regards to their bona fides to be in the judiciary, as is the case in the United States; and secure for life essentially—deciding that their particular slant on a matter could possibly determine the laws of this country. There is a legitimate concern out there.

The other thing we have to be very careful of—and I am sorry to detect that I think this is where the current government is at—is that, if there is a political party that fears this kind of process and feels that the judiciary is taking a number of positions hostile to their ideology, hostile to their political stance and hostile towards their attitudes towards life, then they would have an increased reluctance to involve themselves in these international treaties. I think this is another part of the process. Unless the public and the parliamentary representatives feel that, when they enter a treaty, it is what the parliament of this country thinks is being negotiated—rather than what some elite, separate, unelected group of people thinks is going to happen—there is going to be an increased questioning of whether we should enter these treaties.

That is the other thing that concerns me. Unless there is strong parliamentary review and unless there is a requirement that parliament essentially has, and is understood to have, a role in the way in which these laws are interpreted and the way in which they operate, then the downside which we will have is increased concern, increased suspicion and increased reluctance to enter treaties. As a person who feels strongly about many of these issues we have talked about—trade, disarmament, human rights and environmental matters—this is a thing that has to be guarded against. I wanted to make those points generally, rather than to go into the specifics of the legislation which, obviously, we are supporting.