Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Administrative Decisions (Effect of International Instruments) Bill 1997

1996-97

 

The Parliament of the

Commonwealth of Australia

 

HOUSE OF REPRESENTATIVES

 

 

Presented and read a first time

 

 

 

 

 

 

 

Administrative Decisions (Effect of International Instruments) Bill 1997

 

No.      , 1997

 

(Attorney-General)

 

 

A Bill for an Act relating to the effect of international instruments on the making of administrative decisions

   

   

   



Contents

1............ Short title............................................................................................

2............ Commencement..................................................................................

3............ Application to external Territories.....................................................

4............ Definitions..........................................................................................

5............ International instruments do not give rise to legitimate expectations at law            

6............ Exclusion where State or Territory coverage......................................

7............ Other operation etc. of international instruments not affected..........

 



A Bill for an Act relating to the effect of international instruments on the making of administrative decisions

 

Preamble

                   This Preamble sets out considerations taken into account by the Parliament of Australia in enacting the law that follows.

                   In Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 a majority of the High Court held that the act of entering into an international instrument gives rise to a legitimate expectation at law that could form the basis for challenging an administrative decision. It also held that such a legitimate expectation could be set aside by an executive or legislative indication to the contrary.

                   There is a need for certainty in making administrative decisions. Uncertainty is created by allowing decisions to be challenged on the ground that decision makers did not properly give effect to such legitimate expectations.

                   Australia is fully committed to observing its obligations under international instruments.

                   However, international instruments by which Australia is bound or to which Australia is a party do not form a part of Australian law unless those instruments have been validly incorporated into Australian law by legislation. It is the role of Commonwealth, State and Territory legislatures to pass legislation in order to give effect to international instruments by which Australia is bound or to which Australia is a party.

                   On 10 May 1995, the then Minister for Foreign Affairs and the then Attorney-General issued a joint statement concerning legitimate expectations and international instruments. On 25 February 1997, the present Minister for Foreign Affairs and present Attorney-General issued a further joint statement. Both statements said, on behalf of the Commonwealth, that the act of entering into an international instrument should not give rise to such legitimate expectations, and that legislation would be introduced to set aside any such legitimate expectations.

                   The Parliament of Australia therefore enacts:

1   Short title

                   This Act may be cited as the Administrative Decisions (Effect of International Instruments) Act 1997 .

2   Commencement

                   This Act commences on the day on which it receives the Royal Assent.

3   Application to external Territories

                   This Act extends to all the external Territories.

4   Definitions

                   In this Act, unless the contrary intention appears:

administrative decision means:

                     (a)  a decision by or on behalf of the Commonwealth, a State or a Territory; or

                     (b)  a decision by or on behalf of an authority of, or office holder of, the Commonwealth, a State or a Territory;

that is a decision of an administrative character (whether or not the decision is made under an enactment), and includes such a decision reviewing, or determining an appeal in respect of, a decision made before the commencement of this Act.

enactment means:

                     (a)  an Act passed by the Parliament, by the Parliament of a State or by a Legislative Assembly of a Territory; or

                     (b)  an instrument of a legislative character made under such an Act.

international instrument means:

                     (a)  any treaty, convention, protocol, agreement or other instrument that is binding in international law; and

                     (b)  a part of such a treaty, convention, protocol, agreement or other instrument.

5   International instruments do not give rise to legitimate expectations at law

                   The fact that:

                     (a)  Australia is bound by, or a party to, a particular international instrument; or

                     (b)  an enactment reproduces or refers to a particular international instrument;

does not give rise to a legitimate expectation of a kind that might provide a basis at law for invalidating or in any way changing the effect of an administrative decision.

6   Exclusion where State or Territory coverage

                   Section 5 does not apply to an administrative decision by or on behalf of:

                     (a)  a State or Territory; or

                     (b)  an authority of, or office holder of, a State or Territory;

if provision having the same effect as, or similar effect to that which, section 5 would otherwise have in relation to the decision is made by an Act passed by the Parliament of the State or Legislative Assembly of the Territory.

7   Other operation etc. of international instruments not affected

                   To avoid doubt, section 5 does not affect any other operation or effect, or use that may be made, of an international instrument in Australian law.