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Govornment response to the Teoh case

The Minister for Foreign Affairs, Alexander Downer, and the Attorney-General, Daryl Williams AM QC, today issued a joint Executive Statement dealing with the High Court's decision in the Teoh case. It is to be followed by the introduction of legislation into the Commonwealth Parliament.

"This statement, which replaces the statement issued by the previous Government, will continue to ensure that treaties do not create legitimate expectations in administrative law, as well as emphasising the proper role of the Parliament in the implementation of treaties. The statement also clarifies the position of the States and Territories," Mr Williams said.

In the Teoh case, the Court found that by entering into a treaty the Australian Government creates a `legitimate expectation' in administrative law that the Executive Government and its agencies will act in accordance with the terms of the treaty, even where those terms have not been incorporated into Australian law. The Court also said that where a decision-maker intends to act inconsistently with a treaty, the person affected must be given a chance to argue against it. If not, the decision could be set aside on the ground of unfairness.

The Court's 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.

Under the Australian Constitution, the Executive Government has the power to make Australia a party to a treaty. It is for Australian parliaments, however, to change Australian law to implement treaty obligations. The Joint Statement and the subsequent legislation will confirm the role of Parliament in the changing of Australian law to implement treaties, the Ministers said.

Mr Downer noted that the Government had also established comprehensive procedures to enhance the participation of Parliament, the States and Territories and the wider community in the treaty making process. These new procedures include the establishment of a Joint Parliamentary Committee on Treaties and the creation of a Treaties Council.

"The Executive Government should not manage the treaty making process in isolation," Mr Williams said. "That process has clearly been enhanced by the participation of the Parliament, the States and Territories and the wider community."

The new Statement replaces the earlier Statement of 10 May 1995 in respect of administrative decisions made from today. A copy of the new Statement is attached.

Media contacts:

Greg Hunt, Mr Downer's Office, 06 277 7500

Megan Bonny, Mr Williams' Office 06 277 7300