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Administrative Decisions (Effect of International Instruments) Bill 1997



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Administrative Decisions (Effect of International Instruments) Bill 1997

Bills Digest

No. 10 1997-98

ISSN 1328-8091

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Administrative Decisions (Effect of International Instruments) Bill 1997

Dr Max Spry Law and Bills Digest Group 18 August 1997

Bills Digest No. 10 1997-98

Contents

Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

The Facts in Teoh . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

The United Nations Convention on the Rights of the Child . . . . . . . . . . . . . . . . . . . . . . . . 2

The High Court's Decision in Teoh . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Mason CJ and Deane J . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Toohey J . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Gaudron J . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

McHugh J . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

The Impact of International Law on Australian Domestic Law . . . . . . . . . . . . . . . . . . . . . . 5

The Government's Response to Teoh . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Main Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Administrative Decisions (Effect of International Instruments) Bill 1997

Date Introduced: 18 June 1997

House: Representatives

Portfolio: Attorney-General

Commencement: Royal Assent

Purpose

The Bill overrules the High Court's decision in Minister for Immigration and Ethnic Affairs v Teoh (the Teoh case) [(1995) 183 CLR 273]. In Teoh, the High Court held that when the Executive enters into an international agreement a legitimate expectation arises that the Executive will act in accordance with the provisions of that agreement.

Background

In Teoh, decided on 7 April 1995, the High Court held that when the Executive ratifies an international agreement, and providing there are no statutory or executive indications to the contrary, a legitimate expectation is created that administrative decisions will be made in accordance with the provisions of the agreement. Should decision makers not act in accordance with the international agreement, procedural fairness requires that the person affected should be given an opportunity to persuade them otherwise.

2 Administrative Decisions (Effect of International Instruments) Bill 1997

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

The Facts in Teoh

Mr Teoh, a Malaysian citizen, arrived in Australia in May 1988 and was granted a temporary entry permit. In July he married Jean Lim, an Australian citizen. Mrs Teoh had four children at that time, and there are three children of the marriage.

On 3 February 1989, Mr Teoh applied for a permanent entry permit. In November 1990 he was convicted of importing and possessing heroin. He was sentenced to six years' imprisonment. The sentencing judge accepted that Mrs Teoh's addiction to heroin was a relevant factor in explaining Mr Teoh's actions. In January 1991, Mr Teoh was refused a permanent entry permit: his criminal record meant that he could not meet the good character requirement. In July 1991, and again in February 1992, a delegate of the Minister ordered Mr Teoh's deportation.

Mr Teoh appealed the decision, ultimately to the Full Federal Court. The Federal Court found that Australia's ratification of the United Nations Convention on the Rights of the Child (although not part of Australian law) created a legitimate expectation in parents or children that an action by the Commonwealth would be conducted in accordance with the principles of the Convention.

The United Nations Convention on the Rights of the Child

Australia ratified the Convention in December 1990 and it entered into force for Australia in January 1991. Amongst other things, the Convention (Article 3) provides that 'in all actions concerning children ... the best interests of the child shall be a primary consideration.'

The High Court's Decision in Teoh

Mason CJ and Deane J

Although the provisions of an international treaty do not become part of Australian law unless incorporated by statute, they may, nevertheless, have implications for domestic law. For example, an international convention, ratified by Australia, may influence the Court's interpretation of an ambiguous statute. The courts should favour that interpretation which accords with Australia's treaty obligations. International conventions also assist the development of the common law. However, their Honours noted that 'judicial development of the common law must not be seen as a backdoor means of importing an unincorporated convention into Australian law.'

Administrative Decisions (Effect of International Instruments) Bill 1997 3

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Neither of these issues are raised in this case. Rather, Mason CJ and Deane J state that the questions to be answered here are:

whether the provisions of the Convention are relevant to the exercise of the statutory discretion and, if so, whether Australia's ratification of the Convention can give rise to a legitimate expectation that the decision-maker will exercise that discretion in conformity with the terms of the Convention.

Their Honours said that the Convention was relevant; the decision refusing Mr Teoh a permanent entry permit was an action concerning children.

Further, their Honours stated that the ratification of an international convention is 'not to be dismissed as a merely platitudinous or ineffectual act.' Rather, it 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.' This statement gives rise to:

a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the Convention and treat the best interests of the children as a primary consideration.

Moreover, their Honours made it plain that this was an objective test, stating that:

It is not necessary that a person seeking to set up such a legitimate expectation should be aware of the Convention or should personally entertain the expectation; it is enough that the expectation is reasonable in the sense that there are adequate materials to support it.

Where a decision-maker intends making a decision inconsistent with a legitimate expectation, 'procedural fairness requires that the persons affected should be given notice and an adequate opportunity of presenting a case against the taking of such a course.'

In this case, the good character requirement, in conformity with departmental instructions, was treated as the primary consideration; the decision-maker did not treat the interests of the children as a primary consideration. Their Honours said:

A decision-maker with an eye to the principal enshrined in the Convention would be looking to the best interests of the children as a primary consideration, asking whether the force of any other consideration outweighed it.

Mr Teoh, was therefore, denied procedural fairness.

4 Administrative Decisions (Effect of International Instruments) Bill 1997

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Toohey J

Toohey J stated that by ratifying the Convention, Australia gave an undertaking that it will, in all actions concerning children, make the best interests of the child a primary consideration. If a decision-maker intends not to treat the best interests of a child as a primary consideration, he or she must give the person affected an opportunity to argue that the decision-maker should do so.

Gaudron J

Although agreeing with Mason CJ and Deane J as to the status of the Convention in Australia law, Gaudron J partly based her judgement on the existence of common law rights in Australian domestic law. Her Honour said the status of the children as Australian citizens was significant in deciding the case:

It is arguable that citizenship carries with it a common law right on the part of children and their parents to have a child's best interests taken into account, at least as a primary consideration, in all discretionary decisions by governments and government agencies which directly affect that child's individual welfare, particularly decisions which affect children as dramatically and as fundamentally as those involved in this case.

The Convention, according to Gaudron J, 'gives expression to a fundamental human right which is taken for granted by Australian society.'. Therefore, 'it is reasonable to speak of an expectation that the Convention will be given effect.' Procedural fairness required that if the delegate was not going to take into account the interests of the children as a primary consideration, Mr Teoh should have been informed so that he had an opportunity to persuade her otherwise.

McHugh J

McHugh J delivered a dissenting judgement. His Honour took the view that the 'legitimate expectation' must be one actually held by the applicant.

In allowing the Minister's appeal, McHugh J, said, amongst other things, that ratification of the Convention did not give rise to a legitimate expectation that Mr Teoh's application would be treated in accordance with the Convention.

Administrative Decisions (Effect of International Instruments) Bill 1997 5

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

The Impact of International Law on Australian Domestic Law

While the Commonwealth may, without Parliamentary approval, enter into treaties on Australia's behalf, it is Parliament that makes or alters domestic law in order to implement treaties entered into by the Executive.

The provisions of a treaty do not become part of Australian law unless incorporated by legislation. However, even though not expressly incorporated by legislation, treaties may still impact on Australian law. The Courts may use treaties to interpret ambiguous statutes as it is assumed that Parliament intends to legislate in conformity with international law. And, as Brennan J noted in Mabo v Queensland [(1992) 175 CLR], 'international law is a legitimate and important influence.' The Courts, therefore, may use international law to assist in the development of the common law.

It is also interesting to note that in a recent New Zealand decision, Tavita v Minister for Immigration [(1994) 2 NZLR 257], the New Zealand Court of Appeal observed that the argument that the New Zealand Minister for Immigration and his Department were entitled to ignore international instruments is 'unattractive', 'implying that New Zealand's adherence to international instruments has been at least partly window dressing.'

The Government's Response to Teoh

McHugh J noted in his dissenting judgement in Teoh that, if the ratification of a treaty gives rise to a legitimate expectation, 'administrative 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.'

The Government moved quickly to overcome the affects of the Teoh decision. The then Minister for Foreign Affairs, Senator Evans, and the then Attorney-General, the Hon Mr Lavarch, issued a Joint Statement on 10 May 1995. The Statement declared on behalf of the Government that 'entering into an international agreement is not reason for raising a 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.'

On 28 June 1995 the Administrative Decisions (Effect of International Instruments) Bill 1995 was introduced into the House of Representatives. The Bill made it clear that international agreements entered into by the Executive do not give rise to legitimate expectations.

There was considerable criticism of the Government's response to the Teoh decision. For example, Sir Ronald Wilson, then President of the Human Rights and Equal Opportunity Commission, said in Submission 131 (Vol 8 p 1778) to the Senate Legal and

6 Administrative Decisions (Effect of International Instruments) Bill 1997

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Constitutional References Committee inquiry into the Commonwealth's capacity to enter into and implement treaties:

I submit that the legitimate expectation created by these provisions can only be reversed by legislation. More importantly, I submit that it is unthinkable that the Parliament should even be asked to consider such a reversal.

In Yad Ram v Department of Immigration and Ethnic Affairs [Administrative Appeals Tribunal, unreported, Q 95/96, 19 December 1995], Gerber DP said that the Joint Statement:

sought to turn Teoh into a jurisprudential curio, an artefact like Piltdown Man, of historic interest only, establishing nothing. Unlike the Piltdown skull, where someone (generally believed to have been a mischievous solicitor) merely filed down two of "Mr" Piltdown's molars, Messrs Evans and Lavarch were determined to extract all of Mr Teoh teeth.

Gerber DP continued:

Whilst it is no doubt competent for Parliament to render the signing of an international convention into 'merely a platitudinous ineffectual act' (per Mason CJ and Deane J), I am not convinced that this same competence can be found in the interstices of some kind of ministerial prerogative.

Furthermore:

The Ministers' ukase, regarded as a political statement, is unexceptional, although possibly giving rise to a cynical view that Australia's attitude to signing international conventions is governed more by expediency - to be applied when it is convenient and to be ignored whenever it is not - than by any genuine desire to be bound.

In the event the Administrative Decisions (Effect of International Instruments) Bill 1995 had not passed at the time of the 1996 Federal election and it subsequently lapsed.

On 25 February 1997, the Minister for Foreign Affairs, Mr Downer, and the Attorney-General, Mr Williams, issued a Joint Statement similar to that issued by Senator Evans and Mr Lavarch in May 1995. In the press release accompanying the Statement, the Minister for Foreign Affairs and the Attorney-General said that the Teoh decision:

gave treaties an effect in Australian law which they did not previously have. The Government is of the view that this development was not consistent with the proper role of Parliament in implementing treaties in Australian law.

The Joint Statement also signalled the introduction of legislation to overrule the Teoh decision. The current Bill is the legislation foreshadowed by that Statement.

Administrative Decisions (Effect of International Instruments) Bill 1997 7

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

The application of the Teoh decision was recently considered by the Federal Court in Tevita Musie Vaitaiki v Minister for Immigration and Ethnic Affairs decided on 20 June 1997. In this case the applicant's deportation was ordered following his conviction for, amongst other things, sexual intercourse without consent. The applicant is the father of six children, three of whom would accompany his on his return to Tonga if the deportation order was valid. Would the applicant's deportation be in the best interests of his children?

Beaumont J stated that 'the principle laid down in Teoh is a rule of procedural fairness.' His Honour continued:

But, in my opinion, procedural fairness was provided in the present case. The history of the whole matter ... makes it clear that the applicant was fully aware, at the time of the second hearing before the Tribunal, that he had to persuade the Tribunal that the position of his children was of such overriding concern that it balanced the scales against the making of the deportation order. The applicant fully availed himself of the opportunity to persuade the Tribunal to his point of view.

Beaumont J did not refer to either the Joint Statement issued on 10 May 1995 or that issued on 25 February 1997 in his decision.

Main Provisions

The Bill is similar to the Administrative Decisions (Effect of International Instruments) Bill 1995.

Clause 5 is the key provision. It provides that the mere fact that Australia is party to an international agreement or Australian legislation refers to such an agreement does not give rise to a legitimate expectation that might at law invalidate an administrative decision.

Clause 6 provides that Clause 5 does not apply to a State or Territory if the State or Territory has enacted a provision similar to Clause 5. In South Australia, for example, the Administrative Decisions (Effect of International Instruments) Act 1995 (SA) makes it clear that international agreements not incorporated into Australian law by statute do not give rise to legitimate expectations. The Administrative Decisions (Effect of International Instruments) Bill 1995 did not contain a clause similar to Clause 6.

Clause 7 provides that Clause 5 does not affect in any way other uses that may be made of international agreements in Australian law. This means that international agreements will still be able to be used by the Courts to clarify ambiguous legislation and to develop the common law.