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Thursday, 11 May 2000
Page: 16284


Mr WILLIAMS (Attorney-General) (12:32 PM) —in reply—I thank the members who have contributed to the debate on the Administrative Decisions (Effect of International Instruments) Bill 1999, specifically the members for Barton, Curtin, Lowe, Wentworth, Fowler and Northern Territory. Before summing up on the bill, I would like to briefly address the remarks made by the member for Northern Territory. He has made reference to Australia's obligations under the Convention on the Elimination of All Forms of Racial Discrimination and the actions of the CERD committee in relation to a number of issues of indigenous policy in Australia. On three occasions, I think it is now, the CERD committee has effectively brought down a judgment about Australia, and its indigenous policies in particular respects, which the government regards as unbalanced and in fact an intrusion, unreasonably, into Australia's domestic affairs. The Commonwealth does take the deliberations of the committee and its obligations under the convention very seriously. This has been demonstrated on more than one occasion by the fact that the government has sent high-level delegations to attend hearings by the committee of Australia's periodic reports and to provide assistance to the committee in understanding those reports, but the government is seriously disappointed at the apparent failure of the committee to grapple with the unique and complex history of race relations in Australia. The committee has paid scant regard to the extensive material provided to it and has relied almost exclusively on material provided by non-government organisations.

The review of the United Nations treaty committee system which the Minister for Foreign Affairs announced and to which the member for Northern Territory referred is an appropriate response to the actions of the CERD committee, but it is not only a response to that. For a considerable time, the government has expressed concern about the efficiency and effectiveness of the operation of the so-called United Nations treaty bodies, the committees established under treaties to which Australia adheres. Australia is not alone in expressing those concerns. Together with the Minister for Foreign Affairs, I have been working since 1996 to foster constructive reforms to the operations of the treaty bodies and I have made representations in that regard to the United Nations High Commission for Human Rights and to the president of that organisation, Ms Mary Robinson. Other like-minded countries have similarly been working, including Canada, New Zealand and Norway.

The United Nations itself recognises that the treaty body system is in need of reform. It commissioned Professor Philip Alston to undertake a study. He has made at least three reports on the subject. Our review is a completely appropriate way of addressing our concerns, including the concerns of the way the government was treated by the CERD committee. The Australian people expect nothing less than a fair say in the international arena and the efficient functioning of the system. I reject the assertion by the member for Northern Territory, quoting Michelle Grattan, that Australia's international credibility is at risk in this respect.

As to the bill, it represents an appropriate and measured response to the decision of the High Court in Teoh's case. The High Court's decision gave treaties an effect in Australian law which they did not previously have. The government remains firmly of the view that this development is not consistent with the proper role of parliament in implementing treaties in Australian law.

Under the Australian Constitution, the executive government has the power to make Australia a party to a treaty, but it is for Australian parliaments to change Australian law to implement treaty obligations. The bill will restore the situation which existed before the Teoh case—that is, if there are to be changes to procedural or substantive rights in Australian law resulting from adherence to a treaty, they will result from parliamentary and not executive action. The bill is a clear application of the statement of the majority of the High Court in Teoh's case that a legitimate expectation, which it found to arise out of entry into a treaty by Australia, can be displaced by legislative action. Clause 5 provides that no legitimate expectation providing a basis at law for challenging an administrative decision can arise out of the fact that Australia is bound by an international instrument or the fact that an enactment reproduces or refers to the instrument.

As I noted in the second reading speech, it is unclear from the decision of the High Court whether state and territory administrative decisions may be the subject of legitimate expectations arising out of treaties. Clause 6 of the bill is intended to address that uncertainty. The bill will apply to state and territory decisions in those states and territories which have not taken their own legislative action to set aside legitimate expectations arising from treaties. Clause 6 of the bill does contain a roll-back provision which excludes the operation of the bill in relation to a state or territory administrative decision where the relevant state or territory legislature passes or has passed legislation having the same or similar effect as this bill. There should be no concern that the bill will affect the way in which treaties may otherwise have relevance in Australian law. It will not have such an effect. It will not, for example, impinge upon the operation of treaty provisions which have been incorporated into Australian law. This position is put beyond doubt by clause 7 of the bill. The government has acted appropriately and responsibly in bringing forward this bill. It is confined to addressing the decision in Teoh's case. It also complements the treaty reforms this government initiated on coming into office in response to criticisms that the Australian public did not have enough input into binding international treaties which touched upon an increasing array of national issues. One of the principal aims of those reforms was to enhance the role of parliament in scrutinising treaty action by the executive government.

Let me take the opportunity to remind you, Madam Deputy Speaker, that in July 1998 the government commenced its review of the landmark 1996 reforms of Australia's treaty making process in line with the commitment it made in 1996 to review the procedures after they had been in operation for two years. The report on the government's review of the treaty making process states that submissions to the review were overwhelmingly positive. The review marked the final stage of the reforms. These were a requirement to table treaties in parliament prior to binding action; the preparation of national interest analyses open to scrutiny by the public; the establishment of the parliamentary Joint Standing Committee on Treaties; the establishment of the Treaties Council comprising the Prime Minister, state premiers and chief ministers; and the establishment of the Australian treaties library on the Internet. The reforms have placed the Australian government in an excellent position to ensure that our national interests are met. The reforms also ensure that Australian interest groups can examine treaties and their likely effects and that interest groups are able to voice any concerns. The result is a more transparent process which gives Australians unparalleled input and an opportunity to understand the work of governments in making new international laws.

In contrast to the government's treaty reforms and its considered attempts to resolve the problem created by the decision in Teoh, the opposition has shifted and changed its position by supporting, then opposing and then proposing to amend the bill. The opposition has failed to support the bill despite the fact that it is largely the same as the bill it introduced when it was in government. Indeed, the member for Barton supported the bill in this place in 1997, noting that it was:

... appropriate to clarify the issue which arose in Teoh's case because having that issue floating around is itself something which is relied upon by those who oppose the legitimacy of the treaty making process.

The then Deputy Leader of the Opposition, the former member for Holt, stated soon after the Teoh decision was handed down by the court in 1995:

I cannot help but regard this as anything other than a plainly bad decision. Teoh creates a decision making environment that is unworkable in practice.

In fact, I think the former member for Holt was in the Senate at that time. The government agrees and is doing something to rectify that issue in the interests of the decision making.

The opposition has proposed an amendment to the bill. However, it appears to be the same as or similar to the statement that Senators Bolkus and McKiernan proposed in the amendment to the bill in their minority report in 1997. I reiterate the comments I made at that time, which are still relevant. The proposed amendment will create only more uncertainty and not remove it, as is claimed. To the extent that it actively encourages the courts to develop the common law on the basis of treaties, it will serve only to undermine the role of this parliament in legislating to give effect to treaties even further. In this respect, it should be noted that the amendment contemplates that the whole of the substance of a treaty could have effect by operation of the common law. This would have obvious consequences for the balance between the proper roles of the parliament, the executive and the judiciary. The amendment also fails to recognise that there are degrees of incorporation of international law in Australian law by statute. Giving international instruments the force of domestic law is but one of them. In addition, the wording of the principle as proposed by the opposition is totally unsuited for inclusion as an operative clause in the statute. Finally, it may have the effect of entrenching the operation of the Teoh doctrine—that is, it could give the exact opposite effect to the bill as introduced by the government.

In summary, the amendment proposed by the opposition would create uncertainty rather than resolve it. It would entrench the Teoh doctrine rather than set it aside. It would serve to further undermine the proper role of the parliament rather than reinforce it. This bill is of great importance in stemming the tide of illegal immigration to Australia, a subject addressed by the member for Fowler. Many cases involving the application of the decision in Teoh—indeed the Teoh decision itself—involve attempts by persons whose presence in Australia is unlawful to delay their removal from Australia. The opposition's inconsistency on this bill smacks of hypocrisy of the highest order. The opposition supports the government's efforts to control the latest wave of unlawful entrants into Australia, yet by opposing the swift passage of this bill as introduced, as the opposition has done, the opposition ensures that those who do arrive and remain in Australia illegally will continue to be able to frustrate the government's efforts to remove them. I take some heart from the fact that the opposition has clearly understood the need for this bill in the past. I hope that it will abandon its latest hypocritical and politically opportunistic position on the bill and support its passage in its current form. I look forward to the passage of the bill.

Question resolved in the affirmative.

Bill read a second time.