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Few cases of recent times, beyond the decisions of Mabo[1] and Wik,[2] could rival Minister for Immigration and Ethnic Affairs v Teoh,[3] for the dramatic response it provoked in political, legal and academic circles. In the aftermath of the High Court's decision in Teoh came three Commonwealth Bills,[4] one state Act,[5] several 'executive statements' at both the Federal and state level,[6] and numerous academic commentaries.[7] Yet, despite the many attempts to override the decision by successive federal governments, the Teoh principle continues to apply to the administrative decisions made at the federal level.[8] The third of the Commonwealth Bills aimed at over-riding the Teoh principle of legitimate expectation progressed only as far as its predecessors, with its debate in the Senate having been adjourned on 5 April, 2001.
It is unlikely that enactment of the proposed Bill would have laid the Teoh principle finally to rest, and developments since the last Senate Inquiry conducted in 1997 raise further issues pertaining to the original High Court decision. In particular, subsequent case law has provided clear judicial statements regarding the effectiveness (or ineffectiveness) of earlier executive statements issued by successive federal governments, as well as outlining what constitutes a legally enforceable 'executive indication to the contrary'.[9] In addition to recent developments on the domestic front, the proposed Bill had also been criticised by one international body for being inconsistent with Australia's international legal obligations, with the recommendation that it be withdrawn.[10] Given the very minor differences between the third Bill and its two predecessors, this charge could also have been laid in respect of each of the earlier Bills.[11]
These recent developments place commentators and politicians in a better position to evaluate the impact of Teoh and the appropriateness of legislative and executive responses to it. In doing so, consideration must be given to broader issues, both domestic and international, associated with Australia's treaty involvement. While successive governments have struggled to pass anti-Teoh legislation prior to the prorogation of Parliament, further consideration of the Teoh decision by the Federal Court has identified a more appropriate and effective response to the decision by using detailed and specific executive measures. The use of these measures, as an alternative to generic legislation, should be preferred as they would alleviate the problems contained in the proposed legislation, would be more consistent with the reforms improving executive accountability in treaty-making, and would be far less likely to damage Australia's international standing than the proposed Act. With the new term of Parliament comes an opportunity for government to re-evaluate the response to Teoh, and to formulate an appropriate policy that takes into consideration these recent developments.
Notwithstanding the failure of the third anti-Teoh Bill to be passed prior to the calling of an election (though its ultimate passage was doubtful in any event), the perceived problem of Teoh itself remains. The decision continues to bind administrative decision-makers, and executive statements to the contrary have had no legal effect. While both major parties continue to support anti-Teoh legislation, despite disagreeing on its proposed form, further attempts at overriding the High Court decision through legislation remain a strong possibility. For as long as decision-makers continue to be bound by Teoh, federal governments will be forced to deal with its consequences. How well governments deal with the issue, and with avoiding the potential effects of their own measures taken in response to Teoh (both domestically and internationally), ultimately depends on the nature of their policy approach.
In this article I advocate a particular approach to the decision in Teoh that differs from policies adopted during the last three consecutive terms of Federal Parliament. I advocate an approach based on an understanding of the issues that incorporates developments since the decision was first handed down, rather than on the concerns that informed the initial executive and legislative responses to the decision. Accordingly, I propose that executive measures be adopted in specific domestic contexts and with detailed guidelines tailored to that context, rather than the adoption of a policy which rests on generic anti-Teoh legislation as its cornerstone.
These conclusions are drawn through an analysis of several complex aspects associated with the decision in Teoh, and of the role that government plays in controlling the domestic effect of international legal standards. Consequently, this article is divided into a number of sections, beginning with a consideration of the decision in Teoh, and of the responses of successive federal governments. Those sections are followed by an analysis of recent decisions of the Federal Court that have provided clarification on issues relating to the effectiveness of government action that seeks to negate the effects of Teoh.
In light of these legal developments, and of the reforms implemented in respect of the treaty-making process in 1996, the approach of successive governments is evaluated in the broader context of issues pertaining to executive accountability and the treaty process. In addition to highlighting the underlying inconsistency of the present approach adopted by government, consequences associated with the enactment of anti-Teoh legislation are considered. These include the potential failure of the proposed legislation to fully achieve its intended effect in domestic law and the almost certain adverse consequences for Australia on the international legal plane.
The High Court handed down its decision in Teoh at the same time that a Senate Committee Inquiry was receiving submissions in respect of the treaty process.[12] Part of the backdrop against which the initial reference was made to the Committee was the Toonen[13] decision, in which the United Nations Human Rights Committee found that Australia (through sections of Tasmania's Criminal Code) was in breach of its obligations under the International Covenant on Civil and Political Rights (ICCPR).[14] Consequently, the climate in which the decision was handed down was one where much controversy centred on the level of executive accountability surrounding Australia's treaty participation. This issue emerged in the 1990s to replace the controversy surrounding the Commonwealth's external affairs power and the implementation of treaties – an issue which had dominated political and legal commentary during the 1980s.[15]
Both the facts and proceedings of Teoh have been outlined extensively by commentators elsewhere,[16] and need not be reproduced here. What is necessary, however, is to reconsider the legal developments made in that case. The High Court in Teoh re-articulated the law in respect of unincorporated treaties in domestic law, yet employed the concept of 'legitimate expectation' used in administrative law contexts to extend the law. The Court restated the rule that the provisions of a ratified treaty do not form part of Australian law unless validly incorporated by domestic legislation.[17] The Court also affirmed the accepted rule that ratification will have significance for Australian law through the interpretation of legislation where provisions are ambiguous,[18] and through its legitimate influence on the development of the common law.[19] On this latter use, however, Mason CJ and Deane J advocated a cautious approach, stating that, '[j]udicial development of the common law must not be seen as a backdoor means of importing an unincorporated convention into Australian law'.[20] Their Honours listed a number of relevant factors which should be considered before such use of an unincorporated treaty is made, including, 'the nature of the relevant provision, the extent to which it has been accepted by the international community, the purpose which it is intended to serve and its relationship to the existing principles of our domestic law'.[21] The use of unincorporated treaties in these contexts, however, were not the controversial aspects of the High Court's decision.
The controversial feature of the Court's decision was the use of the doctrine of 'legitimate expectation' by the majority judges, Mason CJ and Deane and Toohey JJ. The invocation of the doctrine, which had been developed in a number of administrative law cases,[22] was effected by relying on the principle stated in Minister for Foreign Affairs and Trade v Magno,[23] and Tavita v Minister for Immigration,[24] that ratification of a treaty should not be dismissed as a 'merely platitudinous or ineffectual act'.[25] Using this principle, Mason CJ and Deane J employed the legitimate expectation doctrine as follows:
[r]atification of a convention 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. That positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the Convention...It is not necessary that the 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.[26]
The effect of the legitimate expectation was not to give the provisions of a treaty the domestic legal status of a rule of law, thereby compelling a decision-maker to act in accordance with the treaty. Rather, its effect was that, 'if a decision-maker proposes to make 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'.[27] In legal terms, as others have noted,[28] the decision of the High Court in Teoh did not involve a major doctrinal leap, but merely an extension of the legitimate expectation rule to a new factual context – the ratification of treaties. Though it has been argued otherwise,[29] the decision did not infringe the accepted rule that treaties do not form part of the domestic law until validly incorporated by legislation, as a legitimate expectation only creates a procedural right and does not confer substantive protection.[30] However, the response of successive governments has been that even procedural rights arising out of the ratification of a treaty should be effected by the Parliament and not through executive action.[31]
In their response to the Teoh decision, the then Labor Federal Government purported to make 'an executive indication to the contrary' pursuant to the judgment of Mason CJ and Deane J.[32] This statement attempted to prevent the creation of legitimate expectations arising out of the ratification of a treaty and was expressed in general terms. In addition, the Administrative Decisions (Effect of International Instruments) Bill 1995 was introduced into Parliament. The Bill was referred to the Senate Legal and Constitutional References Committee which, by majority, recommended its enactment without amendment.[33] However, the calling of a federal election meant that the Bill lapsed.
Following a change of government in 1997, the newly-elected Coalition Government issued their own executive statement, intended to replace the one issued in 1995.[34] They also introduced a 'statutory indication to the contrary' with a second anti-Teoh Bill in 1997, which once again failed to be passed during the Government's first term. The second Bill was also the subject of a Senate Committee Inquiry,[35] yet one which saw a shift in support by the Labor Party towards the form of the second Bill. While still supporting the necessity for such legislation, the Labor Party advocated amendments which would effectively include a statement outlining the recognised uses of unincorporated treaties in domestic law – those uncontentious aspects of the Teoh decision.[36] The rationale for this stance rested on the adverse response the legislation would be likely to invoke from the international community. This position of the Labor Party has effectively been retained in respect of the third Administrative Decisions (Effect of International Instruments) Bill, introduced in late 1999.
The third of the proposed anti-Teoh Bills passed through the House of Representatives in May of 2000, though its debate in the Senate was adjourned in April 2001.[37] With several months still remaining before the next federal election, the Bill still retained some chance of being passed, at that time. Obviously the fate of the Bill depended heavily on the priority given to it in the Senate list for 2001, during a time when it had been readily acknowledged that, 'there [we]re a lot of things ... before the Senate'.[38] However, even if time had permitted, given the Australian Democrats' opposition to the Bill, the Coalition may have been forced to accept the proposed amendments of the Labor Party to ensure its successful passage.
Beyond the problem of time, Labor's approach, therefore represented the only practical difficulty in respect of the legislation's passage. Yet, both the legislation and the official positions of each of the political parties were founded on earlier assessments. These assessments included, not only the anticipated impact of Teoh, but also a growing perception that executive statements to the contrary were potentially legally ineffective if issued well beyond the time of ratification and in regard to many treaties (but particularly human rights treaties). Since that time, members of the Federal Court have further elaborated on the Teoh principle, confirming the Government's concerns over the two Executive Statements, but also identifying clear guidelines for the making of valid executive directions or policies in specific contexts.[39]
Justifications for each of the proposed anti-Teoh Acts have centred on questions associated with the effectiveness of the two executive statements issued in 1995 and 1997 respectively, which are purported to apply pending the enactment of anti-Teoh legislation. Concern on this issue was largely generated by academic commentaries[40] and by the judgment, in 1996, of Hill J in Department of Immigration and Ethnic Affairs v Ram.[41] In that case a decision of the Administrative Appeals Tribunal (AAT), in which the 1995 executive statement was held to be ineffective,[42] was appealed to the Federal Court. Hill J made the following statements on that issue:
When, in Teoh, Mason CJ and Deane J refer to 'executive indications to the contrary', it may well be that their Honours intended to refer to statements made at the time the treaty was entered into, rather than to statements made years after the treaty came into force.
When initially referring to executive comments, their Honours do so in the context of the act of ratification, an act that speaks both to the other parties to the Convention and to the people of Australia as well as to the world. I doubt their Honours contemplated a case where at the time of ratification, Australia had expressed to the world and to its people its intention to be bound by a treaty protecting the rights of children, but subsequently, one or more Ministers made statements suggesting that they at least had decided otherwise. [43]
The correctness of Hill J's approach to the executive statement is certainly questionable. Essentially, it involves a construction of the words of Mason CJ and Deane J in Teoh that effectively leaves denunciation of a treaty as the only method of negating the legitimate expectation generated by ratification. The joint judgment in Teoh made no reference to the timing of an executive statement to the contrary, though an obvious implication is that the contrary statement be sufficiently clear to remove the legitimate expectation. As Professor Allars observed in 1995, negating the effects of Teoh would require a 'published, considered statement of policy ... contrary to the ratified convention'.[44] While an 'implied inconsistency' would be unlikely to remove the effects of Teoh, an 'express policy statement indicating departure from the relevant convention in a particular area of public administration' would.[45] Thus, in contrast to the approach of Hill J, which concentrated on the timing of the executive statement, the approach of Allars focused more on the level of generality of the statement in questioning its effectiveness.
The issue again arose two years later in the case of Tien v Minister for Immigration and Multicultural Affairs,[46] though in this case, it was the second executive statement, made on 25 February 1997, that was in issue. Justice Goldberg, in Tien's case, considered that there was 'considerable force in the observations of Hill J'[47] that the references to 'executive indications to the contrary' in the judgment of Mason CJ and Deane J in Teoh were 'intended to refer to statements made at the time the treaty was entered into, rather than to statements made years after the treaty came into force'.[48] However, with specific reference to the second 'executive indication to the contrary' issued in 1997, Goldberg J in Tien made the following comments:
I do not consider that the Ministerial Statement made on 25 February 1997 is such an 'executive indication to the contrary' as to displace the application of the Teoh principle to the circumstances before the Court. The executive indication to the contrary contemplated by the judgment of Mason CJ and Deane J is one that a decision-maker or decision-makers in particular circumstances will not act in accordance with a Convention. The Ministerial Statement says nothing about the manner in which decision-makers will go about their task in reaching a decision. Rather the Ministerial statement appears to be an attempt (in my view unsuccessful) to reverse or overrule the principle for which Teoh is authority. I do not consider that it is a "clear expression by the Executive of a contrary indication". Put shortly, the Statement appears to be saying that Teoh is not the law. However, Teoh is a principle to be observed by decision-makers unless and until the Parliament or the Executive tells decision-makers not to act in accordance with treaties; or until the Parliament legislatively overrules Teoh. In order for a Ministerial Statement to constitute an executive indication to the contrary (as referred to by Mason CJ and Deane J in Teoh) it would be necessary for the statement to say something to the effect that decision-makers will not act, or are directed not to act, in accordance with particular provisions or particular Conventions or treaties.[49]
What is interesting about this decision is that, although support is expressed in relation to the earlier judgment of Hill J in Department of Immigration and Ethnic Affairs v Ram, the decision more accurately reflects the approach to effectiveness adopted by Allars. This point is evidenced by Goldberg J's reference to a need for specific mention of particular treaty provisions in the executive statement. However, the degree of detail required was not entirely outlined by Goldberg J. Nor was any reference made to a requirement that the administrative context in which the legitimate expectation was to be modified or removed, be stated. The actual requirements necessary for an executive statement to effectively negate the decision in Teoh were still, therefore, unclear.
The most significant recent case pertaining to the principle enunciated in Teoh, however, is the case of Baldini v Minister for Immigration and Multicultural Affairs.[50] The applicant, Eduardo Baldini, sought to have the decision to affirm his deportation (ordered by a decision of the AAT) overturned by the Federal Court. Baldini had been convicted of armed robbery (upon which the decision to deport him was based) as well as numerous other offences. The principal ground of appeal was that the Tribunal had erred in holding that only one of Baldini's three children need be considered for the purposes of the decision.
Directly relevant to this issue was a Ministerial Direction issued on 21 December 1998, under s 499 of the Migration Act 1958 (Cth) (General Direction No 9, otherwise referred to as 'Australia's Criminal Deportation Policy'). The direction specified in a detailed manner how a decision-maker (in this case, the AAT) should handle a decision in which a child would be affected by a decision to deport. Unlike the Convention on the Rights of the Child (CROC), which requires that, in all matters affecting children, the best interests of the child must be a primary consideration, the Ministerial Direction was worded in more specific terms. Only cases 'involving a parental relationship between a child or children' of the deportee required 'the best interests of the child or children' to be considered.[51] Drummond J considered the term 'parental relationship' was wide enough to encompass adoptive parents and persons in loco parentis to children, but the relationship could not be established by tenuous links between the child and the potential deportee.[52] According to Drummond J, 'if the connection between a child and the potential deportee is so tenuous that it cannot be described as a parental (or similar) relationship, then the Direction casts no obligation on the Tribunal to consider the impact on the child of deportation of the adult'.[53]
It was on the basis of the specific and detailed guidelines contained in the Direction, that the Court held it constituted a successful attempt by the Legislature and the Executive to overcome the difficulties associated with Ministerial statements aimed at overriding Teoh – the same difficulties identified in the case of Tien v Minister for Immigration and Multicultural Affairs.[54] In the opinion of Drummond J, the Direction contained such an elaborate regime with which the AAT must comply in cases involving consideration of the interests of a potential deportee's child, that the Teoh legitimate expectation could not apply.[55] Justice Drummond provided the following reasoning:
In my opinion, paras 5 and 6 and 16 to 20 of the Direction contain such an elaborate regime with which the Tribunal must, by force of s 499 of the Act, comply in a case in which it is required to consider the interests of a potential deportee's child that there is no room for finding in Australia's ratification of the Convention a basis for any legitimate expectation on the part of a potential deportee that the interests of his child will be, in terms of the Convention, 'a primary consideration'.[56]
In other words, the Direction had effectively displaced the legitimate expectation through the use of a detailed and specific 'executive indication to the contrary',[57] and the point of reference for the AAT was the Ministerial Direction rather than the CROC. The Federal Court considered that the Direction had been complied with, and the appeal was accordingly dismissed.
While the decision in Tien was obviously concerned with the generality of the second Ministerial Statement and its ineffectiveness in displacing the Teoh principle, a clear judicial pronouncement of what would constitute an effective 'indication to the contrary' was not provided until the decision in Baldini. From that case it is now clear that unambiguous, detailed and specific ministerial guidelines may displace the Teoh principle, and General Direction No 9 provides a clear example for future reference to government departments and agencies.
In light of the legal developments stemming from the decisions of the Federal Court, the traditional opposition of federal governments to the Teoh principle should be reconsidered, and there are political as well as legal reasons for adopting an alternative solution to the perceived problems associated with Teoh. The justifications for and perceived necessity of the current anti-Teoh Bill are predicated on an evaluation of Teoh's impact conducted prior to cases such as Tien and Baldini. In many respects, the purported need for legislation to override Teoh rested on the legal uncertainty surrounding the executive statements, and doubts over the capacity of governments effectively to construct a statement that would displace the legal obligations associated with treaty ratification. These doubts were clearly heightened by the fact that legitimate expectations were more likely to arise in respect of human rights conventions – conventions that, in some cases, Australia had ratified up to decades prior to the decision in Teoh and, thus, any 'executive statement' issued following that case.
Notwithstanding the obvious problems associated with a Bill drafted prior to the recent legal developments, proposed anti-Teoh legislation has always contained a number of significant problems in itself. Inadequacies pertaining to its drafting, coupled with the anomalies associated with an inconsistent approach by governments to the treaty process itself, have always meant that anti-Teoh legislation is as likely to create as many problems as it would purportedly solve. At the heart of this problem rests the inconsistent approach of federal governments to executive accountability and the treaty process.
Throughout the past two decades, the power to make and implement treaties has been surrounded by political and legal controversy. Yet, while the principal issue throughout the 1980s was the impact of the power upon the 'federal balance' and so-called 'states' rights', in the 1990s the focus shifted markedly toward issues of executive accountability.[58] This shift reflected the High Court's consistently broad construction of the external affairs power,[59] the prevailing belief that constitutional amendment was unlikely,[60] the formalisation of a consultative framework between the Commonwealth and the States in the treaty-making process,[61] and a growing realisation of the relevance and impact of international law upon domestic law and practice as evidenced in Toonen[62] in 1994 and Teoh the year after.
In the wake of these decisions, a legal and political debate emerged in relation to the domestic accountability of the executive in respect of treaties. In response, the Federal Government took statutory measures in the form of its Administrative Decisions (Effect of International Instruments) Bills of 1997 and 1999, and implemented non-statutory reforms to the treaty-making process.[63] On these initiatives, two comments can be made. Firstly, they reflect a continued commitment of successive governments to avoiding the implementation of measures directed at making the Executive legally accountable to the Parliament and the people. Secondly, the particular initiatives of 1996, coupled with anti-Teoh measures, are logically inconsistent, and would only serve to create further controversy surrounding the treaty process.
The particular problems associated with executive accountability in regard to the treaty process, stem, fundamentally, from the separation of the power to enter into treaties from the power to implement treaties under the Australian Constitution.[64] The constitutional arrangement allows the Executive to enter into treaties (through the acts of signature and ratification, or accession), however, the domestic application of treaties is dependent on the Commonwealth Parliament implementing the provisions of a treaty through the enactment of legislation. This position corresponds with the accepted position in law that treaties are not directly incorporated into Australian law by the act of ratification or accession, but only by the enactment of incorporating legislation by the Parliament.[65]
This arrangement contains two inherent problems specifically associated with issues of executive accountability, one of which, however, has been largely addressed by the 1996 reforms to the treaty process. Their existence is a consequence of the fact that the constitutional framework for the making and implementation of treaties is governed by provisions drafted for a nation which lacked control over its own external affairs, and which 'took their present form through evolution and circumstance, rather than design'.[66] Firstly, the Executive, in exercising its prerogative power to enter a treaty, thereby committing Australia to obligations under international law, was completely unaccountable (prior to 1996) to either the Parliament or the public. Secondly, in the absence of incorporating legislation, the constitutional arrangement provides no mechanisms for ensuring the domestic accountability of the Executive in respect of the obligations it accepts, thereby committing Australia to observe, under international law.[67]
The Toonen case in 1994 was pivotal in the debate that emerged in the mid-1990s concerning the treaty process. The case itself was the most widely discussed issue among several which formed the backdrop against which a reference was made to the Senate Legal and Constitutional References Committee on 8 December, 1994.[68] Charged with inquiring into the Commonwealth's powers with respect to treaties, the Committee's report was tabled in Parliament on 29 November 1995.[69] Among its recommendations, the Committee proposed that legislation be enacted to replace the Commonwealth-State Standing Committee on Treaties with a Treaties Council (Recommendation 7), that treaties be tabled at least 15 sitting days prior to Australia entering a treaty (Recommendation 8), that a Joint Parliamentary Committee on Treaties with broad powers of inquiry be established (Recommendation 9), and that treaty impact statements be prepared on each treaty (Recommendation 10). While many of the Committee's recommendations were implemented under the reforms announced on May 1996, the procedural changes effected were not carried out under a legislative framework as suggested in the Report. Thus, while the 1996 reforms represent a very positive step in improving accountability in treaty-making, they evidence a continued commitment by successive governments to reject any regulatory framework established by legislation, under which the Executive would be legally accountable to the Parliament.
At the same time that the Federal Government has rationalised reforms to the treaty-making process on the basis of the increasing importance and influence of treaties upon domestic law, through anti-Teoh measures it has also resisted legal developments that would provide a small degree of domestic accountability to the assumption of obligations under international law. It is submitted that the reforms to the treaty process, in providing a framework for parliamentary review of treaties prior to ratification, is logically consistent with the notion that ratification gives rise to a legitimate expectation that the Executive will act in accordance with the treaty. Further, it provides a stronger basis upon which it may be assumed that Parliament prima facie intends to give domestic effect to the treaty.[70]
Reliance upon the argument that treaties have no domestic legal effect unless incorporated through the enactment of domestic legislation by Parliament, cannot logically provide a comprehensive justification for denying the creation of a legitimate expectation in respect of a treaty ratified by the Executive upon the recommendation and approval of the Joint Standing Committee on Treaties (JSCOT). Though, under the new framework for parliamentary scrutiny of treaties, the Executive is not obliged to seek the consent of Parliament, and the Parliament does not vote on whether Australia should ratify a particular treaty, JSCOT makes recommendations on whether the Executive should proceed with ratification, and members of both Houses have the opportunity to initiate debate on a particular treaty (given the new procedure of tabling treaties at least 15 sitting days prior to the Executive taking binding action on the part of Australia). This new system for the regulation and scrutiny of the Executive's power to enter into treaties provides a framework in which the Executive is politically accountable to the Parliament, and where there exists greater transparency and openness in treaty-making.
In seeking to regulate the prerogative power of the Executive to enter into treaties by allowing the Parliament to scrutinise treaties prior to ratification, the Government's reforms involve practical changes to the strict separation of powers of the Executive and the Parliament in respect of treaties. They represent what Professor Shearer has described as the 'intermediate position', in which parliamentary scrutiny of treaties prior to ratification involves 'the superintendence of executive action in respect of treaties', which is to be contrasted with the position in the United States where executive action is subject to the 'requirement of advice and consent by the legislature'.[71] It is submitted that a corollary of the treaty reforms must inevitably be a greater level of legitimacy attached to the act of ratification itself, and subsequently, added support for the principle established in Teoh that legitimate expectations will arise as a consequence of ratification. This argument rests on the assumption that the act of ratification and the practical and legal consequences which flow from it are logically connected.[72]
While the Teoh decision is significant to the extent that it gives treaties a legal effect in domestic law not previously assumed, it does not confer upon the provisions of a treaty the status of legally enforceable rights and obligations in domestic law. Such an effect would be contrary to accepted legal principles arising from the separation of powers within Australia. The extension of the legitimate expectation doctrine to the ratification of treaties by the High Court in Teoh does not involve incorporating the provisions of a treaty indirectly, thereby conferring substantive protection of various human rights in domestic law.[73] It simply confers a procedural right which cannot compel a decision-maker to reach a particular substantive outcome.[74]
Notwithstanding this fact, considering the extent to which the Teoh decision gave unincorporated treaties a domestic legal effect previously not acknowledged, or even contemplated,[75] the decision is controversial. However, the controversial nature of the decision is obviated to the extent that Teoh is entirely compatible with an intermediate position on parliamentary involvement in the treaty process, encompassed within the 1996 reforms.[76] It is submitted that a logical consequence of an intermediate position on parliamentary involvement, is a greater level of legitimacy attached to the Executive's act of ratification, upon which it is easier to argue that legitimate expectations will arise.
While the reforms to the treaty process announced in May 1996 have acknowledged both the need and a desire of the Australian community for the Executive to be more accountable to the Parliament and the people in exercising its powers to enter into treaties, the attempted introduction of anti-Teoh legislation signals a commitment to avoiding the domestic accountability of the Executive in giving effect to the treaty obligations it assumes under international law.[77] As Ivan Shearer has noted, the Government's position is such that, 'when the Australian Government ratifies a treaty and undertakes important and binding obligations...it is speaking only to the world outside Australia and not to its own people also'.[78] At the same time that the Government has implemented reforms which are both compatible with, and give support to, the principles underlying the decision of the majority in Teoh,[79] attempts have been made to expressly overturn that judgment. That there exists an inconsistency in the official government position is likely to result in the need for further consideration of the question of domestic accountability of the Executive specifically arising out of the act of ratification.
It remains to be seen how long the Executive can avoid domestic legal consequences arising out of its ratification of treaties, relying upon the artificial concept that ratification is only a statement to the international community to observe the treaty measures in question.[80] The argument made by successive governments, that ratification only entails the making of a statement to the international community, is particularly artificial when considered in relation to the ratification of human rights treaties. Those treaties provide the best illustration of the fact that if ratification is not a statement to the people of Australia that the Government intends to observe the obligations contained therein, the act of ratification is substantially meaningless. To borrow from Mason CJ and Deane J, it becomes a 'platitudinous and ineffectual act'.[81]
It was noted in 1995 that, as well as highlighting the significance of international law within the domestic legal context, recent decisions of the High Court had also exposed 'both the fragility and inadequacy of the existing policy and legislative framework for dealing with international standards'.[82] The same observation could certainly be extended to the Administrative Decisions (Effect of International Instruments) Bill 1999. Whilst the Bill, if enacted, would have certainly constituted a valid Act of the Commonwealth, its adequacy and necessity were not beyond doubt when one considered the likelihood of the Bill achieving its intended effect, as the discussion below illustrates. In addition, by leaving Australia open to criticism at the international level — already a reality with the concluding observations of the United Nations Human Rights Committee that the proposed Act would constitute a breach of Australia's international obligations — the proposed legislation will only have served to create further political and legal controversy. It is likely that the proposed Act would also have been exposed at the domestic level for relying on an artificial concept of executive accountability in relation to treaties which can no longer be maintained.[83] Notwithstanding this fact, the Commonwealth Parliament clearly has the constitutional power to negate the procedural right developed by the majority in Teoh based on the legitimate expectation doctrine.[84]
The third of the anti-Teoh Bills would not have excluded several significant common law mechanisms which could have been used to achieve Teoh-like effects. Clause 7 of that Bill provided that, '[t]o 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'. That the Bill did not exclude these mechanisms was acknowledged in submissions to the Senate Legal and Constitutional Legislation Committee in 1997.[85] Mr Bill Campbell, submitting on behalf of the Commonwealth Attorney-General's Department to the Committee, stated that the Bill's purpose was, 'not to anticipate all future development of the common law by the courts in relation to the relevance of treaties in administrative decision making. The Bill is squarely directed towards setting aside the legitimate expectation in administrative law arising out of treaties referred to by the High Court in Teoh's case'.[86] However, the significance of these legal mechanisms not excluded, should not be underestimated. As Margaret Allars stated, '...although it may not happen immediately there is every potential for the effect of Teoh's case to be achieved by the courts without reliance on the legitimate expectation which the Bill seeks to destroy'.[87]
One particular use of treaties which is likely to assume a more prominent role in the future, is where individuals raise the provisions of an instrument as a relevant issue in administrative decision-making. Professor McMillan has argued that in such a case a decision-maker is obliged to give realistic and genuine consideration of the matter which goes to the merits of a person's case.[88] The significance of the unincorporated convention in this case is significant, as it pertains more to the substance of a decision, as distinct from the legitimate expectation which concentrates on the form of decision-making.[89]
There are certainly strong grounds for asserting that, where a person refers to an international instrument, there arises an independent obligation to take the instrument into account on the part of the decision-maker.[90] The human rights embodied in international instruments may also become relevant to the exercise of an administrative discretion, on the basis of Gaudron J's approach in Teoh.[91] For Gaudron J, such instruments were relevant to the extent that they may reflect or mirror rights already protected in Australian common law.[92] However, while a decision-maker may be bound to consider submissions made by a party who could be adversely affected by a decision, the weight to be attached to the issues raised would fall to be determined by the decision-maker.[93]
Additionally, the inclusion of Clause 7 in the Bill did not inhibit a court in any way from developing common law rights through the legitimate use of unincorporated conventions, or from construing statutes consistently with a convention where ambiguity arises. Nor did it prevent the indirect use of unincorporated conventions through reliance on two alternative doctrines of administrative law. Clause 5 of the proposed Act only prevented the creation of legitimate expectations arising out of the fact of ratification. It, therefore, did not prevent a legitimate expectation from arising out of a published, considered statement of government policy. Based on the decision in Haoucher v Minister for Immigration and Ethnic Affairs,[94] such policies generate legitimate expectations, thereby granting an individual a common law entitlement to a hearing on departure from the policy. As Margaret Allars stated in submissions to the Senate Committee in 1997:-
Thus, a policy of the government (even in the form of a media release regarding its compliance with international human rights norms), may generate a legitimate expectation. This legitimate expectation will not be destroyed by clause 5, which is concerned only with legitimate expectations generated by the fact of being bound by an international instrument or reproduction of the instrument in a statute.[95]
As the above discussion highlights, the effectiveness of the proposed Act in removing alternative common law remedies was certainly not beyond question.
That the proposed Act may not have applied to treaties ratified after the implementation of the 1996 reforms was not an issue addressed to any significant extent in submissions to the Senate Committee in 1997. However, it is a very real probability given the specific wording of Clause 5 of the Bill (the operative clause of the proposed legislation). If that clause had been narrowly interpreted to prevent legitimate expectations from arising out of the act of ratification alone, treaties adopted under the new parliamentary procedures could potentially have been excluded from its ambit. This claim rests on the fact that the level of scrutiny and consideration now carried out prior to ratification offers a stronger basis for the generation of a legitimate expectation. Clause 5 provided as follows:-
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.
Concern was expressed in submissions to the Senate Committee about the use of the words 'the fact that...Australia is bound by, or a party to, a particular international instrument'.[96] As Allars pointed out, it is the conduct of the Executive in ratifying a treaty which generates a legitimate expectation, not the fact of the existence of binding international obligations.[97] Although it was suggested that the word 'mere' be placed before the word 'fact',[98] this was rejected by the Attorney-General's Department. The reasoning behind this rejection was based on the assumption that, '...it would be an invitation to courts and tribunals to find other factors, in combination with the entry into a treaty, which would give rise to legitimate expectations'.[99] However, it is submitted that the wording of Clause 5 would still have permitted such an interpretation by a court or tribunal.
Clause 5, in seeking to prevent the arising of a procedural right recognised by the common law, was subject to the rule as stated by the High Court in Wentworth v NSW Bar Association[100] and Bropho v Western Australia.[101] Justices Deane, Dawson, Toohey and Gaudron stated the rule in Wentworth v NSW Bar Association as follows:
There are certain matters in relation to which legislative provisions will be construed as effecting no more than is strictly required by clear words or as a matter of necessary implication. They include important common law rights, procedural and other safeguards of individual rights and freedoms and the jurisdiction of superior courts.[102]
It certainly remained open to a court to interpret the phrase, '[t]he fact that...Australia is bound by, or a party to, an international instrument', contained in Clause 5, as meaning that fact alone. On such an interpretation other factors (including conduct of the Executive or Parliament) combined with the final act of ratification, may have provided instances where ratification of the treaty would still have given rise to a legitimate expectation in the Teoh sense. Such instances could certainly have included the ratification of treaties under the new parliamentary procedures.
Thus, treaties which have been ratified by the Executive following the detailed scrutiny involved under the new parliamentary procedures (and which includes consideration and analysis of domestic implementation issues), could have been excluded from the operation of Clause 5. The decision to ratify following that process, as well as the conduct of the Executive throughout that process, must surely contribute something towards strengthening the basis upon which an expectation of a future right may arise.
In the event that the clause had been interpreted in such a manner, following the decision in Baldini, the executive statements would also have not applied. Therefore, unless an executive indication to the contrary was issued consistent with the decision in Baldini, any treaty entered into by Australia since the implementation of the 1996 reforms may still have created legitimate expectations pursuant to the decision in Teoh.
An additional problem relating to the proposed Act's effectiveness concerned its applicability to international conventions scheduled to, or made the subject of, a Declaration under the Human Rights and Equal Opportunity Act 1986 (Cth) (HREOC Act). Indeed one of the key political and legal motivations for the 1997 Bill's introduction related to the effect of those instruments in domestic law based on the legitimate expectation doctrine articulated in Teoh.[103] The High Court considered, in Dietrich v The Queen,[104] that the conventions scheduled to the HREOC Act could not be construed as having been incorporated into domestic law. Though, pursuant to s 11 of the HREOC Act, the Commission may investigate alleged breaches of any human right contained in instruments scheduled to the Act. A number of cases decided since the decision in Dietrich have, however, raised questions regarding the High Court's approach to the legal status of instruments scheduled to the HREOC Act.
In the case of Minister for Foreign Affairs v Magno, Einfield J made the following comments:
[T]he statutory approval or scheduling of treaties is not to be ignored as merely platitudinous or ineffectual, but must be given a meaning in terms of the parliamentary will. Thus when the Australian Parliament endorses and acknowledges a treaty by legislation, there being no contrary statutory or clearly applicable common law provision in relation to the matters contained in the treaty, it approves or validates the treaty as part of the law which ought as far as possible to be applicable to and enforceable on or by Australians and others in the country to which it is available.[105]
In Marriage of Murray and Tam,[106] Nicholson CJ and Fogarty J considered that the status of the conventions and declarations scheduled to, or declared under, the HREOC Act, was still an open issue. In Teoh, Toohey J noted the comments by Nicholson CJ, but stated the matter did not arise in that case.[107] While Mason CJ and Deane and Gaudron JJ did not refer to the matter, McHugh J expressly rejected the view of Nicholson CJ.[108] Therefore, until the issue is authoritatively decided by the High Court, the issue remains somewhat unclear, despite the clear position taken in Dietrich on the matter.
Nevertheless, two comments can be made on the issue. Firstly, it is highly unlikely that the High Court will reject its earlier position in Dietrich and decide that instruments scheduled to or reproduced in the HREOC Act are now to be considered as having been incorporated into domestic law. However, it is certainly not as clear whether the Court would not consider those conventions to have been accorded a higher status in domestic law over other unincorporated conventions. The likelihood of this has already been foreshadowed in the Family Court in the case of B v B.[109] There, Nicholson CJ and Fogarty and Lindenmayer JJ considered the scheduling of a convention to the HREOC Act 'may give it a special significance in Australian law'.[110]
The proposed legislation, in particular through Clause 5(b), actually acknowledged this likelihood. It prevented the creation of a legitimate expectation arising from an unincorporated convention even where 'an enactment reproduces or refers to an international instrument'. Indeed, this clause went beyond merely negating the effect of the decision in Teoh, and was directed specifically at what must have been perceived as the potential for a court to distinguish the conventions scheduled to or declared under the HREOC Act, had they not been expressly included within the ambit of the Bill. While Clause 5(b) would certainly have prevented those conventions from generating a legitimate expectation, there still remained the potential for a court to achieve Teoh-like effects in relation to those conventions. If it were accepted that these instruments had been accorded a higher status in domestic law than other unincorporated conventions, a court may be more inclined to invoke the use of procedural fairness, without having to employ the terminology of legitimate expectation, in respect of administrative decisions. The proposed legislation would have been completely ineffectual in such a case, though the Parliament would have undoubtedly been free to negate such a decision.
The remaining problem associated with proposed anti-Teoh legislation is its inconsistency with Australia's international legal obligations. Apart from its reporting obligations under several human rights instruments, Australia is also a party to three human rights conventions (and the International Labour Organisation conventions), which permit individuals to take complaints of alleged breaches to international committees. The procedural provisions providing international avenues for individuals include the First Optional Protocol of the International Covenant on Civil and Political Rights (ICCPR), Article 14 of the Convention on the Elimination of All Forms of Racial Discrimination, and Article 22 of the Convention Against Torture. The principal instrument in respect of the proposed legislation is the First Optional Protocol to the ICCPR which, apart from its scheduling to the HREOC Act, has not been incorporated into domestic law. Article 2(2) of the ICCPR provides as follows:-
[E]ach State party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes...to adopt such legislative or other measures as may be necessary to give effect to the rights recognised in the present Covenant.
The United Nations Human Rights Committee has expressly recognised that the implementation of the legal obligations under the Covenant does not depend solely on constitutional or legislative amendments.[111] However, it is important that individuals know what their rights are under the Covenant and 'that all administrative and judicial authorities should be aware of the obligations which the state party has assumed under the Covenant'.[112]
Given that Australia's compliance with its international legal obligations requires the application of relevant treaties to administrative matters and administrative decision-making, it is not surprising that the 1999 Bill has already been considered to constitute a likely breach of these obligations, if enacted.[113] On this matter, the Human Rights Committee made the following statement:
The Committee is concerned by the government bill in which it would be stated, contrary to a judicial decision, that ratification of human rights treaties does not create legitimate expectations that government officials will use their discretion in a manner that is consistent with those treaties.
The Committee considers that enactment of such a bill would be incompatible with the State party's obligations under article 2 of the Covenant and urges the government to withdraw the bill.[114]
It is also probable that any anti-Teoh Bill's enactment would be followed with individual complaints to the United Nations Human Rights Committee or other international tribunals, and the general criticism of the international community.[115] Such international effects are certain adversely to affect Australia's international reputation in human rights matters. However, given the continued reluctance on Australia's part to implement the provisions of human rights conventions effectively and fully through domestic legislation, it had been observed that, if enacted, the Bill would have damaged our international reputation, 'to the extent that it [would have become] finally more consistent with our national performance'.[116]
The Administrative Decisions (Effect of International Instruments) Bill 1999 represents the latest attempt formally to override the High Court decision in Teoh. However, both its basis and provisions reflect earlier drafts constructed in the aftermath of the 1995 decision. In addition to containing several inherent flaws which were likely to impact on the proposed Act's effectiveness, the Bill failed to take into account recent developments at both the domestic and international levels which needed to be addressed. In essence, the proposed anti-Teoh legislation had become outdated and unnecessary before its debate in Parliament was even completed.
In the new term of the Federal Parliament, the official government position in respect of Teoh must be reconsidered, particularly given that government has been provided with an alternative and more appropriate policy basis in recent decisions of the Federal Court. By developing specific and detailed guidelines in respect of particular treaties which relate to the work of various departments, the government would be adopting an approach to Teoh which is preferable to its previous hasty attempts at executive and legislative repudiation. The benefits of such an approach would include the fact that Australia's international standing would be less likely to be affected, and domestically, the benefit of a consistent approach to the treaty process.
The challenge, however, lies in convincing federal governments of any persuasion that there are both legal and political advantages in taking a responsible approach to the domestic implications of ratification, rather than simply avoiding them at all cost. However, time may well prove that, should the government persist with its current approach, the Executive can no longer avoid the fact that the practical consequences of ratification are far wider than merely providing access to a broadly defined external affairs power that can be invoked at their discretion, and whenever there exists a strong political motivation for doing so.
* BA (Hons) LLB (Hons) (Tas), PhD Candidate, University of Tasmania. The author would like to acknowledge the kind assistance of Professor Ryszard Piotrowicz, Mr Rick Snell and Mr Michael Stokes in offering comments on an earlier draft of this article[.]
1 Mabo v Queensland [No.2] (1992) 175 CLR 1.
[2] Wik Peoples v Queensland (1996) 187 CLR 1.
[3] Minister for Immigration & Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 ('Teoh').
[4] Administrative Decisions (Effect of International Instruments) Bill 1995, Administrative Decisions (Effect of International Instruments) Bill 1997, Administrative Decisions (Effect of International Instruments) Bill 1999.
[5] Administrative Decisions (Effect of International Instruments) Act 1995 (SA).
[6] Gareth Evans and Michael Lavarch, 'International Treaties and the High Court Decision in Teoh', Joint Statement by the Minister for Foreign Affairs and the Attorney General, May 10 1995, A Downer, 'Executive Statement on the Effect of Treaties in Administrative Decision-Making' (1997) 8 Public Law Review 120. See also the 'Executive Statements' issued by the South Australian and Western Australian Governments, (1996) 17 Australian Yearbook of International Law 554.
[7] Leslie Katz, 'A Teoh FAQ' [1998] AIAdminLawF 1; (1998) 16 AIAL Forum 1; Anne Twomey, 'Minister for Immigration and Ethnic Affairs v Teoh' (1995) 23 Federal Law Review 348; Margaret Allars, 'One Small Step for Legal Doctrine, One Giant Leap Towards Integrity in Government: Teoh's Case and the Internationalisation of Administrative Law' (1995) 17 Sydney Law Review 202; S Sheridan, 'Legitimate Expectations: Where Does the Law Now Lie?' (1998) 87 Canberra Bulletin of Public Administration 125-133; Kristen Walker, 'Who's The Boss? The Judiciary, the Executive, the Parliament and the Protection of Human Rights' (1995) 25 Western Australian Law Review 238; Ryszard Piotrowicz, 'Unincorporated Treaties in Australian Law: The Official Response to the Teoh Decision' (1997) 71 Australian Law Journal 503; Ryszard Piotrowicz, 'Unincorporated Treaties in Australian law' (1996) Public Law 190; PW Perry, 'At the Intersection: Australian Law and International Law' (1997) 71 Australian Law Journal 841.
[8] It is doubtful whether the decision extends to administrative decisions made at the state level, at least in the context of legitimate expectations arising out of the act of ratification (an exclusive act of the federal executive). However, the relevance of international instruments may arise on the basis of procedural fairness or other common law principles applicable to administrative decisions made at the state level. South Australian legislation is premised on the fact that Teoh may apply within the States, and precludes any means by which international instruments may affect a decision, with the exception of instances where a decision-maker has regard to the instrument as a matter relevant: Administrative Decisions (Effect of International Instruments) Act 1995 (SA) s 3. On the question of whether Teoh even applies to administrative decisions made at state level see also, Kristen Walker, 'Treaties and The Internationalisation of Australian Law', in Cheryl Saunders (ed), Courts of Final Jurisdiction: The Mason Court in Australia (1996) 224.
[9] Teoh [1995] HCA 20; (1995) 183 CLR 273, 291 (Mason CJ and Deane J).
[10] Concluding Observations of the Human Rights Committee: Australia. 28/07/2000. CCPR/CO/69/AUS.
[11] The 1997 and 1999 Bills are exactly the same. The 1995 Bill (introduced during Labor's term in office) was more detailed in its references to the exclusion of accepted uses of international instruments in domestic law (clause 6), and of the availability of remedies or redress for alleged breaches of Australia's international obligations (clause 7). The 1995 Bill did not, however, include provision for excluding the operation of its operative clause where state enactments applied to decisions at the state level (as was provided under clause 6 of the 1997 and 1999 Bills).
[12] A reference was made to the Senate Legal and Constitutional References Committee on December 8, 1994, to inquire into the Commonwealth's treaty-making and external affairs powers. For the Final Report see, Trick or Treaty? Commonwealth Power to make and Implement Treaties, Report by the Senate Legal and Constitutional References Committee, November 1995.
[13] Nicholas Toonen v Australia, Communication No. 488/1992: Australia. 04/04/94. CCPR/C/50/D/488/1992 ('Toonen').
[14] For a detailed analysis of the issues raised in Toonen, see Sarah Joseph, 'Gay Rights Under the ICCPR: Commentary on Toonen v Australia' [1994] UTasLawRw 18; (1994) 13 University of Tasmania Law Review 392-411; Wayne Morgan, 'Identifying Evil for What It Is: Tasmania, Sexual Perversity and the United Nations' [1994] MelbULawRw 10; (1994) 19 Melbourne University Law Review 740.
[15] See for example, Cheryl Saunders, 'The External Affairs Power in the Australian Constitution' (1994) 24 International Law News 36-40; DR Rothwell, 'The High Court and the External Affairs Power: A Consideration of its Outer and Inner Limits' [1993] AdelLawRw 9; (1993) 15 Adelaide Law Review 209-240; RD Lumb, 'The External Affairs Power and Constitutional Reform' (1988) 62 Australian Law Journal 679-689.
[16] See for example, Katz, above n 7, 1-14; Twomey, above n 7, 348-361; Allars, above n 7, 202-241; Sheridan, above n 7, 125-133; Walker, above n 7, 238-254; Piotrowicz (1997), above n 7, 503-506; Piotrowicz (1996), above n 7, 190-195; Perry, above n 7, 841-859.
[17] Teoh [1995] HCA 20; (1995) 183 CLR 273, 286-287 (Mason CJ and Deane J).
[18] Ibid, 287 (relying on the decisions in Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1, 38, and Polites v Commonwealth [1945] HCA 3; (1945) 70 CLR 60, 68-69, 77, 80-81.
[19] Teoh [1995] HCA 20; (1995) 183 CLR 273, 288 (Mason CJ and Deane J) (relying on the decisions in Mabo v Queensland [No.2] (1992) 175 CLR 1, 42, and Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, 321, 360).
[20] Ibid, 288.
[21] Ibid.
[22] Schmidt v Secretary of State for Home Affairs [1969] 2 Ch 149, (Lord Denning); Heatley v Tasmanian Racing and Gaming Commission [1977] HCA 39; (1977) 137 CLR 487; FAI Insurances Ltd v Winnecke (1982) 151 CLR 342; Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629; Council of Civil Service Unions v Minister for the Civil Service (GCHQ) [1985] AC 374; Haoucher v Minister for Immigration and Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648.
[23] [1992] FCA 566; (1992) 37 FCR 298.
[25] Minister for Foreign Affairs and Trade v Magno [1992] FCA 566; (1992) 37 FCR 298, 343; Tavita v Minister for Immigration [1994] 2 NZLR 257, 266.
[26] Teoh [1995] HCA 20; (1995) 183 CLR 273, 291 (Mason CJ and Deane J).
[27] Ibid, 291-292.
[28] Allars, above n 7, 224-225.
[29] Senate Legal and Constitutional References Committee, Submissions to the Inquiry into the Administrative Decisions (Effect of International Instruments) Bill 1997 (1997) (hereinafter referred to as Submissions), Volume 2, Submissions No.41, 216. See also, Darryl Williams, 'International Law and Responsible Engagement', ANSZIL-ASIL Conference, Keynote Address, Australian National University, 29 June 2000 (copy on file with author).
[30] Allars, above n 7, 231.
[31] Submissions, Vol.2, No.41 216. See also Administrative Decisions (Effect of International Instruments) Bill 1997, Explanatory Memorandum.
[32] Gareth Evans and Michael Lavarch, 'International Treaties and the High Court Decision in Teoh' Joint Statement by the Minister for Foreign Affairs and the Attorney-General, 10 May 1995.
[33] Report of the Senate Legal and Constitutional Legislation Committee, Administrative Decisions (Effect of International Instruments) 1995, tabled on 28 September 1995.
[34] Downer, above n 6.
[35] Report of the Senate Legal and Constitutional Legislation Committee, Administrative Decisions (Effect of International Instruments) Bill 1997, tabled on 20 October 1997.
[36] See Robert McClelland MHR, 'Labor calls for greater certainty in implementation of international conventions', Press Release, 9 December 1999.
[37] Senate Daily Bills Update, as at COB 9 August 2001, available at <http://www.aph.gov.au/legis.htm> (21 August 2001).
[38] Williams, above n 23.
[39] Tien v Minister for Immigration and Multicultural Affairs [1998] FCA 1552; (1998) 53 ALD 32; Baldini v Minister for Immigration and Multicultural Affairs [2000] FCA 173 (25 February 2000).
[40] Allars, above n 7, 239-241; Katz, above n 7, 6-9; Piotrowicz (1997), above n 7, 503-506; Walker, above n 7 242; Sheridan, above n 7, 130-131.
[42] Re Yad Ram and Department of Immigration and Ethnic Affairs (1995) 22 AAR 372.
[43] (1996) 69 FCR 431, 437-438.
[44] Allars, above n 7, 233.
[45] Ibid.
[46] [1998] FCA 1552; (1998) 53 ALD 32.
[47] [1998] FCA 1552; (1998) 53 ALD 32, 54.
[48] (1996) 69 FCR 431, 437-438.
[49] [1998] FCA 1552; (1998) 53 ALD 32, 56.
[50] [2000] FCA 173 (25 February 2000).
[51] Ibid [13].
[52] Ibid.
[53] Ibid.
[54] [1998] FCA 1552; (1998) 53 ALD 32, 56.
[55] [2000] FCA 173 (25 February 2000) [30].
[56] Ibid.
[57] To employ the words of Mason CJ and Deane J in Teoh. See also, Hui v Minister for Immigration and Multicultural Affairs [1999] FCA 985, (21 July 1999) [9], (Carr J).
[58] Cheryl Saunders, 'Articles of Faith or Lucky Breaks? The Constitutional Law of International Agreements in Australia' [1995] SydLawRw 14; (1995) 17 Sydney Law Review 150, 152.
[59] Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168; Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1; Richardson v Forestry Commission of Tasmania [1988] HCA 10; (1988) 164 CLR 261; Queensland v Commonwealth [1989] HCA 36; (1989) 167 CLR 232; Polyukhovich v Commonwealth [1991] HCA 32; (1991) 172 CLR 501; Horta v Commonwealth [1994] HCA 32; (1994) 181 CLR 183.
[60] Australian Constitutional Convention, Proceedings, Adelaide (1983) and Brisbane (1985); Constitutional Commission (1984) Final Report Vol II (1985); Trick or Treaty? Commonwealth Power to Make and Implement Treaties, Report by the Senate Legal and Constitutional References Committee, November 1985, 85.
[61] This framework was established under the principles and procedures for Commonwealth-State Consultation on Treaties, January 1, 1992. This framework was amended as part of the Federal Government's reforms to the treaty process in 1996, which included the establishment of a Treaties Council as an adjunct to the Council of Australian Governments (COAG): see Commonwealth, Parliamentary Debates, House of Representatives, 2 May 1996, 233. The former Principles and Procedures have been replaced by a revised framework under the Principles and Procedures for Commonwealth-State Consultation on Treaties (1997) 8 Public Law Review 116-120.
[62] Nicholas Toonen v Australia, Communication No. 488/1992: Australia. 04/04/94. CCPR/C/50/D/488/1992.
[63] Announced in a Ministerial Statement by the Minister for Foreign Affairs, the Hon. Alexander Downer MHR, Commonwealth, Parliamentary Debates, House of Representatives, , May 2 1996, 231-235.
[64] The power to enter into treaties is a prerogative power of the Executive Council pursuant to section 61 of the Constitution: Barton v Commonwealth [1974] HCA 20; (1974-5) 131 CLR 477. The power to implement treaties is exercisable by the Commonwealth Parliament, falling within the more widely defined power of the Parliament to legislate with respect to 'external affairs' under section 51(xxxix) of the Constitution.
[65] Teoh [1995] HCA 20; (1995) 183 CLR 273; Dietrich v The Queen ([1992] HCA 57; 1992) 177 CLR 292, 305; Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168, 192-193, 211-212, 225, 253; New South Wales v Commonwealth [1975] HCA 58; (1975) 135 CLR 337.
[66] Saunders, above n 58, 174.
[67] Ibid, 174-175.
[68] See Anne Twomey, 'Treaty Making and Implementation in Australia' (1996) 7 Public Law Review 4.
[69] Trick or Treaty? Commonwealth Power to Make and Implement Treaties, Report by the Senate Legal and Constitutional References Committee, November 1995.
[70] Teoh [1995] HCA 20; (1995) 183 CLR 273, 287 (Mason CJ and Deane J).
[71] Ivan Shearer, 'The Growing Impact of International Law on Australian Domestic Law: Implications for the Procedures of Ratification and Parliamentary Scrutiny' (1995) 69 Australian Law Journal 404-407, 406-407.
[72] Saunders, writing in 1995 (and, thus, prior to the 1996 reforms), stated, '[m]ost notably, none of the proposals for a greater degree of parliamentary involvement in treaty-making refer to the direct incorporation of the treaties thus approved, which is a logical although not inevitable concomitant': Saunders, above n 58, 175.
[73] Teoh [1995] HCA 20; (1995) 183 CLR 273, 290-291 (Mason CJ and Deane J); Attorney-General (NSW) v Quin (1990) 176 CLR 1; see also Allars, above n 7, 231.
[74] Allars, ibid.
[75] See Sir Anthony Mason, 'The Influence of International and Transnational Law on Australian Municipal Law' (1996) 7 Public Law Review 20, 21-22.
[76] See the statements of Senator Helen Coonan, Joint Standing Committee on Treaties Report (JSCOT), Commonwealth, Parliamentary Debates, Senate, 30 August 1999, 7932-7933.
[77] As Twomey has observed, '[t]he question, ultimately, is whether the Executive commits itself when ratifying a treaty, or whether it commits Australia but excludes itself from any obligation to comply with the treaty?', in Twomey, above n 7, 353-354.
[78] Ivan Shearer, 'The Relationship Between International Law and Domestic Law', in Brian Opeskin and Don Rothwell (eds), International Law and Australian Federalism (1997) 34, 59.
[79] This compatibility was in fact acknowledged by the current Attorney-General, Daryl Williams in 'Australia's Treaty-Making Processes: The Coalition's Reform Proposals', in Phillip Alston and M Chiam (eds), Treaty-Making and Australia: Globalisation Versus Sovereignty? (1995) 194.
[80] Gareth Evans, 'The Impact of Internationalisation on Australian Law: A Commentary', The Mason Court and Beyond, Seminar, University of Melbourne, September 10, 1995 (copy on file with the author).
[81] Teoh [1995] HCA 20; (1995) 183 CLR 273, 291.
[82] Phillip Alston, 'Reform of Treaty-Making Processes: Form Over Substance', in Alston and Chiam (eds), n 66, 1.
[83] On this point see the preceding discussion, regarding an 'intermediate position', following the 1996 reforms, at 20-22.
[84] Parliament has the power to prescribe the rules of Commonwealth administrative law: section 51 (xxxix) and implied incidental powers; George Winterton 'Limits to the Use of the “Treaty Power”' in Alston and Chiam (eds), above n 79, 35. It may also be that Parliament has the power to negate the effect of Teoh based on the corollary of the power to implement treaties (ie the power to provide that a treaty will have no domestic legal effect): ibid.
[85] See Submissions to the Senate legal and Constitutional Legislation Committee: Administrative Decisions (Effect of International Instruments) Bill 1997 ('Submissions'), in particular Margaret Allars, Submission No.40, Vol.2, and John McMillan, Submission No.36, Vol.2.
[86] Submissions, Bill Campbell, Submission No.41, Vol.2, 216.
[87] Submissions, Margaret Allars, Submission No.40, Vol.2, 206.
[88] Submissions, John McMillan, Submission No.36, Vol.2, 177. That realistic and genuine consideration must be given to the merits of a case is supported by a long list of authority: Kahn v Minister for Immigration and Ethnic Affairs [1987] FCA 457; (1987) 14 ALD 291, 292 (Gummow J); Hindi v Minister for Immigration and Ethnic Affairs (1988) 91 ALR 586, 597; Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472, 483 (Gummow J); Surinakova v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 596; (1991) 33 FCR 87, 96 (Hill J); Mocan v Refugee Review Tribunal (1996) 42 ALD 24, 245 (Merkel J); Anthonypillai v Minister for Immigration and Multicultural Affairs [2000] FCA 1368, (27 September 2000) [17] (Merkel J); Tedella v Minister for Immigration and Multicultural Affairs [2000] FCA 1643 (11 October 2000); Ly v Minister for Immigration and Multicultural Affairs [2000] FCA 15 (12 January 2000).
[89] Submissions, John McMillan, Submission No.36, Vol.2, 177.
[90] Ibid.
[91] Teoh [1995] HCA 20; (1995) 183 CLR 273, 304-305.
[92] Ibid.
[93] Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40; (1986) 162 CLR 24, 41 (Mason J).
[94] [1990] HCA 22; (1990) 169 CLR 648.
[95] Submissions, Allars, Submission No.40, Vol.2, 207.
[96] Ibid, 205.
[97] Ibid.
[98] See Submissions, New South Wales Bar Association, Submission No.24, Vol.1, 103.
[99] Submissions, Bill Campbell, Submission No.41, Vol.2, 214.
[100] [1992] HCA 24; (1992) 176 CLR 239, 252; see also Katz, above n 7, 10.
[101] [1990] HCA 24; (1990) 171 CLR 1 at 17-18; see also Katz, above n 7, 10.
[102] [1992] HCA 24; (1992) 176 CLR 239, 252.
[103] See for example, the Attorney-General's comments made during the Bill's second reading speech: House of Representatives, Parliamentary Debates, June 25 1997, 6308.
[104] [1992] HCA 57; (1992) 177 CLR 292, 305-306.
[105] [1992] FCA 566; (1992) 37 FCR 298, 343.
[106] [1993] FamCA 103; (1993) 16 Fam LR 982, 998.
[107] [1995] HCA 20; (1995) 183 CLR 273, 301.
[108] Ibid, 317 (McHugh J).
[109] (1997) FLC 92 – 755, [10.20].
[110] Ibid. This view finds additional support in the judgment of Millhouse J in Collins v South Australia [1999] SASC 257 (25 June 1999) [31-36].
[111] General Comment 3, United Nations Human Rights Committee: 'Implementation at the National Level (Art.2)':31/07/81.CCPR General Comment 3 (Thirteenth Session 1981). See also, Submissions, Robert McCorquodale, Hilary Charlesworth and Peter Bailey, Submission No.26, Vol.1, 109.
[112] Ibid.
[113] Concluding Observations of the Human Rights Committee: Australia. 28/07/2000. CCPR/CO/69/AUS. See also, Submissions, Robert McCorquodale, Hilary Charlesworth and Peter Bailey, Submission No.26, Vol.1, 109.
[114] Ibid.
[115] Submissions, Robert McCorquodale, Hilary Charlesworth and Peter Bailey, Submission No.26, Vol.1, 109.
[116] Hilary Charlesworth, 'Australia's Split Personality: Implementation of Human Rights Obligations in Australia', in Alston and Chiam (eds), above n 79, 140.
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