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Thursday, 11 May 2000
Page: 16271


Mr MURPHY (11:21 AM) —On this glorious autumn day in the national capital, I would like to start by noting the observations of the member for Curtin. I am not to know what was in the minds of Michael Lavarch or Gareth Evans when they were sitting in this chamber in 1995, and I was not here in 1997. I note the comments of the member for Curtin that this bill has been, shall I say, the victim of `election interruptus'. Anyhow, we are here today in the year 2000 in the spirit of goodwill, and I am rising to support the bill.

Today marks the high-water mark of maturity of Australian law making in this parliament, because the Administrative Decisions (Effect of International Instruments) Bill 1999 implements the will of the broader mandate of the people. It is a day when we as Australians can finally say that we have accommodated our international obligations as signatories to international conventions and protocols while also accommodating and preserving our sovereignty as a nation. I join with my parliamentary colleagues, particularly the member for Curtin with whom I believe I enjoy a very good relationship as a fellow member of the Standing Committee on Legal and Constitutional Affairs. We have been debating another issue this morning, but I am not here to talk about that. I am here to talk about this bill.

The purpose of this bill, as the member for Curtin also pointed out, is to overrule the High Court's common law position in the case of Minister for Immigration and Ethnic Affairs v. Teoh, a 1995 decision which has caused considerable problems with the application of laws ever since it was made. Teoh's case is the authority for the proposition that a legitimate expectation arises whenever Australia signs an international agreement, protocol or convention such that the government of Australia will act in accordance with the provisions of that agreement. Legitimate expectations are an administrative right which attaches to an administrative process. During an administrative process in Australia, a person's rights are preserved so that they may with confidence deal with the Australian government in the knowledge that the process will be applied probatively, uniformly and with disinterest in the outcome. The doctrine of procedural fairness incorporates the concept of legitimate expectations. This doctrine is fundamental to the good operation of the rule of law. This doctrine is founded on the positive law of natural justice and constitutes one of the very cornerstones of our Westminster democratic process. To deny procedural fairness, including the rule of law and legitimate expectations, is tantamount to the capricious, arbitrary and tyrannical approach to decision making that is witnessed in other countries that have no cultural understanding of the rule of law. Legitimate expectations, therefore, are a right that flows from some process.

In Australia's endeavours to adhere even more closely to the rule of law, legitimate expectations have crept into the application of agreements signed by Australia. That is what Teoh's case was about: the application of legitimate expectations arising from Australia's signature to an agreement which, by virtue of the signing, became a relevant international instrument. It is worth quoting the dissenting judgment of Justice McHugh in Teoh's case, as His Honour's comments are directly on the point of this bill before the House today. Justice McHugh said:

If the result of ratifying an international convention was to give rise to a legitimate expectation that the convention would be applied in Australia, the Executive government of the Commonwealth would have effectively amended the law of this country. It would follow that the convention would apply to every decision made by a federal official unless the official stated that he or she would not comply with the convention. If the expectation were held to apply to decisions made by State officials, it would mean that the Executive government's action in ratifying a convention had altered the duties of State government officials. The consequences for administrative decision-making in this country would be enormous. Junior counsel for the Minister informed the Court that Australia is party to about 900 treaties. Only a small percentage of them has been enacted into law. Administration decision-makers would have to ensure that their decision-making complied with every relevant convention, or inform a person affected that they would not be complying with those conventions.

I remind the House that it was the Labor government which on 10 May 1995 issued the statement through the then Minister for Foreign Affairs, the Hon. Gareth Evans, and the then Attorney-General, Michael Lavarch, with the intention of restoring the position to what it was understood to be prior to Teoh's case. Adverting to the reference by Chief Justice Mason and Justice Deane to `statutory executive indications to the contrary', the ministers said:

We now make such a clear and express statement. 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.

The present government has taken the same road. Today we are considering this bill, which removes that expectation from Australia's signing of an international instrument.

Serious impediments have caused Australia much harm as a result of this legitimate expectation. Examples include impediments to the deportation of people convicted of serious crime, and use of treaties as a means of `backdoor legislation' for incorporating international instruments into Australian law. The incorporation of international instruments into Australian law has always been problematical. As Chief Justice Mason noted in Teoh's case, international instruments are not the same as statutes. They are not drafted with the same intent and cannot be placed side by side with statutes of this House and given a status equivalent to that of a statute. International instruments are couched in broad policy directives that leave it to the relevant signatory country to draft appropriate domestic legislation. This drafting may require a new act of parliament or amendment to more than one pre-existing act, or a combination thereof. Whatever the circumstances, the basic recognition of this bill is that the law in this country finally recognises that there must necessarily be a legal and administrative distinction between statute and international instrument.

Examples of abuse of this blur in distinction are very obvious to many Australians. One example is that of Teoh's case itself—the use of an international instrument to extract benefits from administrative law which otherwise the substantive law would not provide. Another example is that of the Convention on the Rights of the Child, which resulted in amendment to child protection legislation in New South Wales and the issue of corporal discipline codes. I recall the abundant use of the relevant international instruments by the New South Wales government, with impunity, as they argued that the interests of the child should be a paramount consideration. This was with apparent disregard for the existing statutory and common law position of that jurisdiction.

It should not be assumed that the Teoh principle only operates in the human rights area. If the principle were to stand, it would apply equally to the Australian Industrial Relations Commission as to the Immigration Review Panel. The AIRC is equally an administrative body, and the same argument is available—that the commission, in understanding its functions, should have regard to international treaties relating to, for instance, trade and investment. This includes the infamous Multilateral Agreement on Investment, the MAI.

I am relieved that this legislation will soon be passed. Over the horizon and in the not too distant future we will see further attempts at international instruments such as the MAI. I can only shudder in horror at the application of Teoh's case precedent to the ratification of the MAI in Australia. If the MAI had been subject to legitimate expectations rights through this government's signature without ratification by domestic law there would have been devastating consequences to Australia's sovereignty. After all, that is what all the fighting was about in Seattle recently in respect of the World Trade Organisation and the violent protests which took place there. Further, the more recent unrest in London was directly related to this issue as well. It is sobering indeed that this government once before attempted to ratify the MAI under the Teoh case law. I cannot believe how close we came and how devastating it would have been for all Australians had that occurred. Anyone with a vested interest in nil impediment flow of capital assets across our borders would have used Teoh's case with impunity and destroyed what sovereignty we had left.

I note that Teoh's case has been referred to in some 250 cases. There are 37 known cases involving serious crime, and the use of this case to deny deportations is now common practice. In the field of signing international instruments, the ongoing future signing of treaties, conventions and protocols requires the flexibility to accommodate Australia's obligations without comprising our sovereignty or becoming a slave to international community expectations. I am particularly perturbed by the recent trends of the infringements in our international borders. Abuse of our international obligations in FOR protection of refugees comes immediately to mind. Our ratified treaties in the relevant refugee convention and protocol have made Australia an open door for syndicated criminal activity in people-trafficking by boat or plane into Australia.

Australia has a strong and proud history of honouring our international obligations when we sign treaties. To put it bluntly, we keep our word when we sign up on the dotted line. We do not, as a number of other countries do, sign treaties to gain some world trade or other financial advantage and then systematically ignore our obligations to ratify those treaties in our domestic law or otherwise simply ignore them. This practice is particularly the case in countries which have poor human rights records. If you peruse the list of signatures from those countries that sign such instruments, you would be shocked to see which countries are signatories to the relevant human rights international instruments. They sign and they simply ignore, violate or otherwise detach themselves from any responsibility. They do as they like when they like. They are immune to repeated international outcry. They hold international law in contempt either because they hold culturally relativist perspectives—that is, rules for some but not for others—or for religious or ideological reasons they refuse to recognise public international law at all.

Australia is not one of those countries. We have seen in recent times the abuse of syndicated criminal activities designed to prostitute and abuse with utter contempt our bona fide obligations under public international law. Further, the world at large knows that Australia will live up to its reputation as a reliable and honourable country through ratification of those international instruments which it agrees to sign. We do not sign something and then deny our responsibilities. However, it is essential that a clear message be sent to both the Australian and international communities as to what expectations may arise from our act of signing a treaty.

We have seen our honour abused beyond endurance in recent times, with our obligations under the refugee protocol and convention being violated with utter contempt. So now we are compelled to be probative, clear and unambiguous in this bill which, when proclaimed as an act of parliament, will clearly spell out the standing of the instrument until ratified in domestic law. In this way Australia maintains a delicate balance between administrative or procedural fairness and, in particular, legitimate expectations without compromising our sovereignty.

We have been treated with contempt for too long. There are others outside our democracy who see our side playing fairly and they continue to resort to underhand gutter tactics in the deliberate abuse of our democratic processes, laughing as they may at our maintenance of democratic institutions such as the natural law and the rule of law until we are goaded into a direct conflict. Australia is not one to be goaded in such a way. Therefore, the proper remedy is the bill we have before the House this morning. In this bill we are able to maintain that delicate balance between faithfully honouring our international obligations without trammelling our sovereignty and allowing anyone who would seek to abuse our democratic processes to derive some unfair advantage over another person or against Australia itself.

When one considers the amount of drug trafficking that is undertaken across Australia's borders, it is clear that every possible effort must be made to minimise, and if possible eliminate, at least the legal impediments to fighting this war. It may be said that the elimination of drugs is not fully achievable, but every government in this world has a duty—indeed an obligation—to eradicate drugs and to never cease the fight against drugs. Powers to deport are sadly compromised at the present time because of our existing administrative law. This must stop, and it will stop with this bill.

Finally, I raise a number of smaller administrative matters. In regard to a number of amendments which have been tabled by the shadow Attorney-General, the Hon. Robert McClelland, and referred to a moment ago by the member for Curtin, I would hope that these amendments are supported by both sides of the House. I call upon the government to reinstate the education campaign, established by the previous Labor government, designed to ensure compliance with Australia's international legal obligations by decision makers. This bill ensures that Australia does not become a lackey to one-world government aspirations or accommodate backdoor legislation through the international instrument process.

When one considers the procedure and protocol for ratification of international instruments, it is little wonder that this bill is necessary. There are practically no rights of review or challenge to the official process of ratification of international instruments. International instruments may be signed almost at the whim of the executive government of the day without public mandate and without community consultation. The first point at which the community holds any real sway is when the government of the day attempts to ratify a bill which is consistent with the government's obligations under the treaty to pass domestic legislation.

It is for this reason that the bill has been drafted and is before us today. It is an open question whether a treaty so signed raises a legitimate expectation that the spirit of the treaty will be ratified in domestic legislation. To date, the bill focuses on the negative impact of a treaty which the public does not wish to see ratified by backdoor means to hold a status equivalent to a statute, as I referred to earlier. However, there may be circumstances in which the public may want a conventional protocol ratified, yet the government fails to do so. Some good examples of that are biodiversity, environmental and ecological conventions. Notwithstanding Australia's multiple signing of major international instruments of this kind, Australia has not had a good history of ratifying such instruments in domestic law. This has caused considerable frustration amongst those seeking to rely on such instruments to further their cause of environmental protection. Finally, I look forward to the operation of this new legislation, together with a responsible approach by all parties of this House to ratify treaties when our will has been exercised in agreeing to be a party to such treaties.