Queensland University of Technology Law and Justice Journal
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Glen Cranwell[*]
It has been generally accepted that treaties are not directly
incorporated into Australian law by the act of ratification or accession. A
treaty per se does not form part of domestic law unless
implemented by
legislation and, in the absence of such legislation, it cannot create rights in
or impose obligations on Australian
citizens and residents. However, this does
not mean that treaties have no influence at all on Australian law prior to
incorporation.
In its decision in Minister for Immigration and Ethnic
Affairs v
Teoh,[1]
the High Court held that treaties may have some indirect influence on
Australian domestic law prior to their implementation through legislation. This
is a troublesome issue which is likely
to attract greater attention in the
future largely in response to the inevitable pressures of internationalisation.
Closely related
to that issue is the extent to which a court should, in the
event of a conflict, apply the statutory and common law rules which make
up
Australian domestic law.
In this article, I propose to examine three ways
in which treaties have influenced Australian law: as an influence on the
development
of the common law, as a trigger for administrative law remedies and
as an aid to statutory interpretation. The primary focus is
on decisions of the
High Court, as the highest court in the land, although that is not to suggest
that treaties are not also influential
in other courts. First, however, I will
briefly outline the historical common law position, the impact that the
Commonwealth Constitution has on this position, and the underlying rationale of
the law as it currently exists.
The English common law position relating to the use which courts may make
of international treaties has been established for over
100 years. Although the
Crown has the power to enter into treaties on behalf of the United Kingdom,
treaties are only part of English
law if an enabling Act of Parliament has been
passed.[2]
This gives effect to a basic principle of the separation of powers in British
constitutional law which was finally established by
the end of the eighteenth
century.[3]
The rationale behind the rule is that, if a transformation doctrine were not
applied, then the Crown would be effectively legislating
or changing the law
without parliamentary
authorisation.[4]
Probably a
less well known and narrower basis which is sometimes used to justify the need
for legislation relates to the fact that
treaties are normally seen as
engagements between states or governments and municipal courts do not usually
deal with disputes between
such parties. The provisions of an international
treaty, unless given effect in domestic law by legislation, are “res inter
alios acta from which [individuals] cannot derive rights and by which they
cannot be deprived of rights or subjected to
obligations”.[5]
The case
often cited as giving the clearest formulation of the common law rule regarding
the operation of treaties in national law
is Attorney-General for Canada v
Attorney-General for Ontario.[6]
In this case Lord Atkin, delivering the judgment of the Privy Council, stated
that:
Within the British Empire there is a well-established rule that the
making of a treaty is an executive act, while the performance
of its
obligations, if they entail alteration of the existing law, requires legislative
action. Unlike some other countries, the
stipulations of a treaty duly ratified
do not within the Empire, by virtue of the treaty alone, have the force of law.
If the national
executive, the government of the day, decide to incur the
obligations of a treaty which involve alteration of law they have to run
the
risk of obtaining the assent of Parliament to the necessary statute or
statutes.[7]
The accepted
approach to the relationship of treaties to the Australian domestic legal system
is the same as that in the United
Kingdom.[8]
While
the principle is settled, it has been stated in a number of ways. It has been
couched in very broad terms: that a treaty is
“not part of” or has
“no effect” in domestic
law.[9] It has also been stated in
more confined terms: that a treaty cannot affect “private rights” or
“individual rights
and duties” without
legislation.[10] The latter,
perhaps, leaves open the possibility that a treaty might, except where rights
and duties are involved, nonetheless have
effect in municipal law. Ultimately,
this distinction has been of little practical significance, and I will not
examine it in any
detail here. In addition, there are a number of suggested
exceptions to the general transformation principle. These exceptions
include
treaties of peace and treaties affecting belligerent
rights.[11]
However, these exceptions are only of marginal practical relevance
today.[12]
The transformation
principle can then be seen to be one based on the notion of separation of
executive and legislative powers which
is, at least to some extent, found in the
Australian constitutional
structure.[13] If the executive
were able to alter the law of the land merely by entering into a treaty with
another country, it would usurp the
authority of the legislature, which is
vested with the responsibility for making laws for the “peace, order and
good government
of the
Commonwealth”.[14] In
addition, there are certainly implications for democracy in permitting a treaty
ratified only by the executive to become directly
applicable in Australian law
without legislation.
Indeed, it should be noted that the framers of the
Constitution removed a reference in what was then covering clause 7 (now
covering clause 5) which would have introduced the United States model,
which
provides for the direct application of treaties. Early drafts of covering
clause 7 of the Constitution Bill provided:
The Constitution established
by this Act, and all laws made by the Parliament of the Commonwealth in
pursuance of the powers conferred by the Constitution, and all treaties made
by the Commonwealth, shall, according to their tenor, be binding on the
courts, judges, and people of every state, and of every part of the
Commonwealth,
anything in the laws of any state to the contrary
notwithstanding.[15]
It
has been said that the reason for the removal of the phrase was to make it clear
that there was no suggestion that the Act would
confer power on Australia to
enter into treaties in its own
right.[16] There was little
recognition in the debate that the change had another important effect, of
removing the direct application of treaties
in Australian law. La Nauze,
however, noted that the Colonial Office in England was prepared to insist that
references to “treaties
made by the Commonwealth” be
deleted[17] at least in part because
it was thought to be inappropriate for treaties to be part of the law of the
land in a system based on the
Westminster model. Mr Reid stated that the
provision
would be more in place in the United States Constitution, where
treaties are dealt with by the President and the Senate, than in the
constitution of a colony within the empire. The treaties
made by her Majesty
are not binding as laws on the people of the United Kingdom, and there is no
penalty for disobeying them. Legislation
is sometimes passed to give effect to
treaties, but the treaties themselves are not
laws.[18]
In fact, the
original of the covering clause had been adapted from the Constitution of the
United States[19] and it seems
unlikely that this departure from British practice was intended in the first
place.
Given the basic need for legislation explained above it has always
been difficult to explain the conferment of jurisdiction contained
in s 75(i) of
the Constitution, although perhaps the growing list of qualifications to the
rule may help give that grant of jurisdiction a content which it would
not
otherwise have enjoyed.
The qualifications which have been recognised so far include the
relatively recent acknowledgment that international conventions to
which
Australia is a party, especially those which declare universal fundamental
rights, may be used by domestic courts in Australia
as a guide in the
development of the common law.
Early recognition within the High Court
of Australia of the potential role of international instruments to influence
Australian law
may be found in the judgments of Murphy J. Examples of Murphy
J’s resort to international human rights law as an influence
on the common
law include Dugan v Mirror Newspapers
Ltd,[20] McInnis v
R[21]
and Controlled Consultants Pty Ltd v Commissioner for Corporate
Affairs.[22]
In these three examples, Murphy J used an international convention as an
influence on the common law in areas where his approach
involved a departure
from recognised common law doctrine and from the approach taken by the majority.
However, in recent years, the acceptance of international law and
international instruments in performing the judicial function has
steadily
grown. Brief mention may be made of a number of cases where judges referred to
international conventions in their discussions
of the common law, but the role
played by the conventions was
minimal.[23] Kirby J has been an
active campaigner for more domestic recognition of international human
rights.[24]
However, it is only since Mabo that the proposition that treaties are a
“legitimate and important influence” on the development of the
common law has
been truly accepted by the Australian High Court.
In
Mabo v Queensland (No 2),[25]
the High Court held that Australian common law recognised native title of the
Australian Aborigines. Where such title had not been
extinguished, the
indigenous inhabitants were entitled to their traditional lands, according to
their laws and customs. The decision
thus overturned the common law doctrine of
terra nullius, which treated Australian territory as being without legal
owners and capable of acquisition through occupation at the time of European
settlement.
Brennan J appealed to international standards of civil and
political rights as one reason for reconsidering the historical refusal
of the
common law to recognise the rights and interests in land of indigenous
inhabitants of settled colonies. Brennan J, with whom
Mason CJ and McHugh J
agreed, said:
The opening up of international remedies to individuals
pursuant to Australia’s accession to the Optional Protocol to the
International
Covenant on Civil and Political Rights brings to bear on the
common law the powerful influence of the Covenant and the international
standards it imports. The common law does not necessarily conform with
international law, but international law is a legitimate and important
influence on the development of the common law, especially when
international law declares the existence of universal human
rights.[26]
Brennan J said
that common law recognition of the rights in land of the indigenous inhabitants
of Australia would be precluded if
recognition would “fracture a skeletal
principle of our legal
system”.[27] However, he
considered this would not be the case. In contrast to Brennan J, Deane and
Gaudron JJ indicated that that they were
re-examining and rejecting
“fundamental propositions which have been endorsed by long-established
authority and which have
been accepted as a basis of the real property law of
the country for more than one hundred and fifty
years”.[28]
In one sense, Brennan J was not resolving
ambiguity in the common law in his judgment in Mabo - he was entering an
area where the common law was thought to be settled, albeit not by direct
decision of the High Court or Privy
Council. International treaties were used
in what Brennan J termed the “development” of the common law; that
is, as
a basis for taking the common law in a direction it had never taken
before.[29]
Brennan J’s judgment in Mabo, while only briefly referring to the
legitimacy of international law influencing domestic adjudication, has and
promises even more
so to become a touchstone for a globally aware common
law.
The opportunity to reapply the approach adopted in Mabo
occurred in Dietrich v R.[30]
The applicant sought special leave to appeal against conviction on one count of
importation of heroin contrary to s 233B(1)(b) of
the Customs Act 1901
(Cth). His ground was that his trial in the County Court at Melbourne had
miscarried by virtue of the fact that he was unrepresented
by counsel. The
applicant’s primary argument was that an accused faced with a serious
criminal offence who desired but could
not afford legal representation had a
right to be provided with representation at public expense. If representation
were not made
available, the accused was entitled to a stay of the trial; if the
accused were convicted in the absence of representation, the conviction
should
be quashed on the ground that the trial was unfair. The argument was based, in
part, on article 14(3) of the International
Covenant on Civil and Political
Rights (ICCPR), which provided:
In the determination of any criminal
charge against him, everyone shall be entitled to the following minimum
guarantees, in full equality:
...
(d) ... to have legal assistance
assigned to him, in any case where the interests of justice so require, and
without payment by him
in any such case if he does not have sufficient means to
pay for it.
Counsel for the applicant acknowledged that the ICCPR was not
part of Australian law, but argued that the common law should be developed
in
such a way as to allow the enforceability of rights under conventions to which
Australia is a party.
A majority of the court held that the common law of
Australia does not recognise the right of an accused to be provided with counsel
at public expense, but that the courts possess undoubted power to stay criminal
proceedings which will result in an unfair trial.
The majority concluded that
as a general proposition and in the absence of special circumstances, a trial of
an indigent person
accused of a serious crime will be unfair if, by reason of a
lack of means and the unavailability of other assistance, he or she
is denied
legal representation.[31]
Accordingly, the appeal was allowed. In dissenting judgments, Brennan and
Dawson JJ considered that no entitlement to be provided
counsel at public
expense presently existed under common law, and the fact that an accused is
unrepresented in such circumstances
cannot of itself amount to a miscarriage of
justice.
Members of the court made use of the international standards in
different ways. Brennan J, in dissent, briefly considered article
14(3)(d) of
the ICCPR. He used it as “a concrete indication of contemporary
values”, and stated that:
Although [article 14(3)(d)] of the
Covenant is not part of our municipal law, it is a legitimate influence on the
development of the
common law. Indeed, it is incongruous that Australia should
adhere to the Covenant containing the provision unless Australian Courts
recognise the entitlement and Australian governments provide the resources
required to carry that entitlement into effect. But the
Courts cannot,
independently of the Legislature and the Executive, legitimately declare an
entitlement to legal
aid.[32]
Unlike his decision
in Mabo, Brennan J found it impossible to alter the common law in this
case, because the courts cannot compel the provision of legal representation
and
the “remedy” of adjournment is not open to the courts because it
would constitute a breach of the constitutional
duty to exercise jurisdiction
and an impediment to the administration of
justice.[33]
The other
dissentient, Dawson J, acknowledged authority for the use of treaties in the
interpretation of statutes,[34] but
found that the use of treaties in the resolution of uncertainty in the common
law was “not so clearly established”,
and that the clear state of
the common law on this issue precluded reliance on the ICCPR because it would
not merely resolve an ambiguity
but require “a fundamental
change”.[35]
Within the
majority, Mason CJ and McHugh J responded to counsel’s argument that our
common law should be consistent with our
international obligations by
saying:
Ratification of the ICCPR as an executive act has no direct legal
effect upon domestic law; the rights and obligations contained in
the ICCPR are
not incorporated into Australian law unless and until specific legislation is
passed implementing the
provisions.[36]
Mason CJ and
McHugh J clarified this statement by acknowledging that English courts may have
resort to international obligations in
order to help resolve uncertainty or
ambiguity in judge-made law. They said that “[a]ssuming, without
deciding, that Australian
courts should adopt a similar, common-sense
approach”, this nevertheless did not assist the applicant because in this
case
the court was “being asked not to resolve uncertainty or ambiguity in
domestic law but to declare that a right which has hitherto
never been
recognised should now be taken to
exist”.[37]
Mason CJ
and McHugh J observed that under article 14(3)(d) of the ICCPR there is no
absolute right of an indigent accused to be provided
with counsel at public
expense, but that a right to funded counsel will arise in cases where
representation of the accused is essential
to a fair trial. They considered
that this approach is similar to the approach now taken by the Australian common
law.[38] In coming to this
formulation or explication of the right to a fair trial, there is little doubt
that Mason CJ and McHugh J were
mindful, if not substantially influenced by, the
ICCPR (and the similarly worded European Convention on Human Rights
(ECHR)).[39]
Toohey J, in a
similar fashion to Mason CJ and McHugh J, suggested that where the common law
was unclear, “an international
instrument may be used by a court as a
guide to that law”. He also considered that it may be possible to use
international
instruments where there is a lacuna in domestic
law.[40] Even if treaties could be
used to fill gaps, Toohey J pointed to the fact that article 14(3)(d) of the
ICCPR did not support an
absolute right to counsel, only a right where
“the interests of justice so
require”.[41]
Deane J
appeared to adopt the view that the ICCPR was influential in determining that
the common law principle of a right to a fair
trial had been breached. He
referred to other domestic factors along with the ICCPR as support for his
conclusion that, as a general
proposition, the trial of an indigent accused
would be unfair if because of lack of means, he or she is unable to be legally
represented.[42] This conclusion
represents a development of the common law. It is impossible to say what
weighting Deane J would have given the
Covenant if it were the only
justification for claiming the accused’s right to a fair trial had been
denied.
Gaudron J’s approach to the use of international
conventions in domestic law was quite different from that of the rest of the
court. She appeared to use Australia’s obligations under the ICCPR as one
of a number of justifications (or sub-justifications)
for overruling the earlier
High Court decision of McInnis v
R[43] (which had denied the
existence of any right to counsel at public expense) and as an indicator of what
the new principle should be.
Thus Gaudron J used international instruments in
her development of the common law, but in a less direct
way.
Dietrich, then, consolidates the court’s acceptance of
the relevance of international conventions to the development of the common law,
albeit in a less than robust fashion. There have been other recent
pronouncements which also give an indication of how the High
Court perceives the
influence of treaties.
In 1993, in Environment Protection Authority v
Caltex Refining Co Pty
Ltd,[44]
a majority of the High Court found that the privilege against self-incrimination
did not extend to corporations. Members of the
court made reference to the
right not to be compelled to testify against oneself or to confess guilt
embodied in article 14(3)(g)
of the ICCPR in support of their conclusion. Mason
CJ and Toohey J in their joint judgment said that:
The language of that
Covenant makes it clear that the purpose of its provisions is to protect
individual human beings. As this court
has recognised, international law, while
having no force as such in Australian municipal law, nevertheless provides an
important
influence on the development of Australian common law, particularly in
relation to human rights ...
Neither the fact that the privilege had its
origin in the necessity of protecting human beings from compulsion to testify on
pain
of excommunication or physical punishment nor the modern justification of
discouraging ill-treatment of individuals and dubious confessions
requires that
the privilege be available to corporations ... Likewise, the modern and
international treatment of the privilege as
a human right which protects
personal freedom, privacy and human dignity is a less than convincing argument
for holding that corporations
should enjoy the
privilege.[45]
Brennan J
referred to the judgment of Murphy J in Controlled Consultants Pty Ltd v
Commissioner for Corporate Affairs, who had referred article 14(3)(g) of the
ICCPR and concluded that the privilege was “peculiarly a human
right” and thus
not available to be exercised by non-human
entities.[46]
It appears that
the privilege is available to corporations in England and New Zealand, and that
in Canada it was available to corporations
under the common law, but not under
the Canadian Charter of Rights and
Freedoms.[47] In EPA v
Caltex, Mason CJ and Toohey J commented at the end of their judgment
that:
[I]f it ever was the common law in Australia that corporations
could claim the privilege against self-incrimination in relation to
the
production of documents, it is no longer the common
law.[48]
This acknowledgment
of the possibility of explicit alteration of the common law, for which an
international convention was used as
a justification, albeit in a fairly minor
way, sits comfortably with what Brennan J, Mason CJ and McHugh J did in
Mabo.
In a joint dissenting judgment, Deane, Dawson and Gaudron JJ
said with reference to article 14(3)(g) of the ICCPR that although the
privilege
against self-incrimination may be classified as a “human right”, it
did not rest exclusively upon notions of
personal freedom and human dignity.
They could find no sufficient reason in principle for saying that the doctrine,
as it has developed
in Australian common law, has no application to
corporations.[49]
Mason CJ,
Brennan, Deane, Toohey, Gaudron and McHugh JJ in Western Australia v
Commonwealth[50] made a passing
comment in relation to the use of international law in the development of the
common law. In the context of a Commonwealth
argument that that s 12 of the
Native Title Act 1993 (Cth), which gave the common law of native title
“the force of a law of the Commonwealth” could be sustained under s
51(xxix), the majority stated that:
The common law may, it is true, find
in international law concepts or values which may advantageously be used in the
development of
the common law, but the common law of native title is not
developed in order to satisfy the obligations of a
treaty.[51]
In Minister
for Immigration and Ethnic Affairs v
Teoh,[52] Mason CJ, Deane,
Gaudron and McHugh JJ all accepted that there is a role for international
conventions in the common law area. Mason
CJ and Deane J (with whom Gaudron J
agreed on this issue[53])
acknowledged that international conventions to which Australia is a party are a
“legitimate guide” in judicial development
of the common
law.[54] However, they cautioned
that “the courts should act in this fashion with due circumspection”
where Parliament has not
taken the step of enacting treaty obligations into
domestic law, lest development of the common law be seen as a “backdoor
means” of incorporating conventions into Australian
law.[55] They offered some, albeit
rather vague, guidance as to when an international convention may be used in the
development of the common
law:
Much will depend upon 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.[56]
McHugh J also
accepted that treaties may be used to develop the common
law.[57]
While acknowledging
a role for international conventions in the development of the common law, the
court is not yet quite sure of
exactly what that role is. Mason CJ and Deane J
on the one hand embrace an approach which was not fully accepted as recently as
1992 (in Dietrich) and on the other hand draw back from the approach by
advocating caution in the courts’ use of international instruments.
Further, they seem to indicate that courts should confine themselves to treaties
which Australia has ratified, despite references
in earlier cases to the ECHR by
several judges, including Mason CJ in Dietrich.
Parallel to these
developments in the High Court, similar points have been argued before the
Federal
Court,[58]
the Family Court[59] and in the New
South Wales Court of
Appeal.[60]
The use of international conventions in the development of the common law
is now reasonably well-accepted by a majority of the court,
although the precise
circumstances in which a treaty will be used in this way are not clear. In
particular, it remains unclear whether
an international instrument can justify a
change in the common law, as opposed to justifying the resolution of ambiguity
and uncertainty.
At this stage, all that can be suggested with confidence is
that treaties are likely to be used by the High Court as a factor in
deciding
when and how to replace common
law.[61] The filling of gaps in the
common law[62] and the creating of
new (as opposed to replacement) common law are issues of the moment but ones on
which the court is yet to show
its hand. Much depends on whether the judges see
the notion of ‘development of the common law’ including the
importation
of international norms into the domestic system to create entirely
new obligations.
Given the settled principle that the executive, by
entering into a treaty with a foreign state, cannot alter the law of this
country,
the question arises on what basis the court can take any notice at all
of unincorporated human rights treaties. It is possible that
international
human rights instruments are referred to as merely persuasive authority, and
that they have the same status as, for
example, decisions of courts of other
countries, which are frequently taken into account by Australian courts in
deciding questions
in all areas of the law. Support for this explanation of the
status of human rights treaties in common law can be found in an extracurial
statement by Sir John Laws, a justice of the Queen’s Bench Division. He
asked:
Why may courts not have regard to the ECHR jurisprudence in
precisely the same way as they look to the decisions of foreign courts
in other
fields? No one suggests that when the House of Lords reforms the common law by
reference to a decision of the Supreme Court
in a Commonwealth jurisdiction, it
incorporates an alien text: nothing could be more jejune ... And indeed, where
the court cites
an academic work with approval, no one complains that some
illegitimate exercise is afoot: nor could they. Why is the ECHR
different?[63]
In this sense,
international human rights are seen as a ‘modernising agent’ of the
existing common law and not as the
creator of new domestic common law - that is,
international human rights are not capable of enlarging the floating mass that
is the
common law and are only capable of reforming the internal structure of
that mass.
A further and more recent exception appears to have been recognised in
the Teoh case where a majority of the High Court accepted that
ratification of an unincorporated treaty could, in the absence of legislative
or
executive indications to the contrary, generate a legitimate expectation that
decision-makers will not act inconsistently with
the obligations contained in a
treaty which has only been ratified by the Australian government without
affording those affected
an opportunity to make representations on their own
behalf.[64]
The first case to
raise the use of an international convention as a limit on executive power was
Simsek v Macphee.[65] In
issue was, inter alia, the question whether Australia’s
ratification of two international conventions, the Geneva Convention Relating to
the Statues
of Refugees and the Protocol thereto, gave rise to a legitimate
expectation on the applicant’s behalf that he would not be
denied refugee
status or deported before being given a hearing in conformity with the
requirements of natural justice. Stephen J
rejected this argument on the basis
that the Convention and Protocol were not part of municipal law. He concluded
that the applicant’s
legitimate expectation argument failed because it
involved “critical reliance upon the Convention and
Protocol”.[66] Stephen
J’s decision was affirmed by Gibbs CJ in Kioa v
West[67] without qualification.
This case and Simsek, however, need to be reconsidered in the light of
Teoh.
Mr Teoh, a Malaysian citizen and the respondent in the case, first
arrived in Australia in May 1988 on a temporary visa. In July
1988, he married
an Australian citizen who had four children, three of whom had been fathered by
his deceased brother in a de facto
relationship. In 1989, he applied for a
grant of permanent resident status. That application was pending when he was
convicted
in 1990 of six counts of importing heroin and three counts of being in
possession of heroin. In July 1991, the Department of Immigration
and Ethnic
Affairs turned down Mr Teoh’s application for permanent resident status on
the grounds that he did not meet the
good character requirements because of his
criminal record. Since Mr Teoh had overstayed his temporary visa, he was
further informed
that he was to be deported.
In pursuance of migration
procedures, Mr Teoh appealed the decision of the Department of Immigration to
the Migration Review Panel.
In the intervening years, two children had been
born to the Teohs and a third was born in 1992, shortly after the making of the
deportation order. Mr Teoh’s deportation to Malaysia would result in the
breaking up of the family, which included seven children
aged between 20 months
and 10 years. The wife was unable to care for the children without him and it
was clear they would be taken
into care if the deportation order was
implemented. The Panel stated:
It is realised that Ms Teoh and family
are facing a very bleak future and will be deprived of a possible breadwinner as
well as a
father and husband if resident status is not granted.
However
the applicant has committed a very serious crime and failed to meet the
character requirements for the granting of Permanent
Residency. The
compassionate claims are not considered to be compelling enough for the waiver
of policy in view of Mr Teoh’s
criminal
record.[68]
Mr Teoh applied
to the Federal Court to have the decision reviewed and was successful on appeal
to the Full Court.[69] In the
Federal Court, Lee and Carr JJ held that Australia’s ratification of the
Convention on the Rights of the Child created
a “legitimate
expectation” in parents and children that any action or decision by the
Commonwealth would be conducted
in accordance with the principles of the
Convention.[70] This principle was
upheld and explained by a majority of the High Court.
There were four
separate judgments in the High Court decision: Mason CJ and Deane J joined in
the leading judgment; Toohey J wrote
a judgment in substantial agreement with
Mason CJ and Deane J; Gaudron J, the final member of the majority, took a
different approach;
and McHugh J dissented.
Mason CJ and Deane J found
that ratification of the Convention by Australia was a significant
event:
[R]atification by Australia of an international convention is not
to be dismissed as a merely platitudinous or ineffectual act, particularly
when
the instrument evidences internationally accepted standards to be applied by
courts and administrative authorities in dealing
with basic human rights
affecting the family and children. Rather, ratification 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, and treat the best interests of the children
as
‘a primary
consideration’.[71]
Toohey
J made similar comment, observing that the submission that decision-makers need
pay no regard to a treaty which has only been
ratified by the Australian
government was
“unattractive”.[72]
Three
judges went on to observe that personal knowledge of the Convention and its
terms by the individual concerned was not necessary;
rather, the concept was
based on an “objective” standard - it was enough that the
expectation be a reasonable one, in
the sense that there be materials to support
it.[73] Thus, in this case, there
was a legitimate expectation, founded on the Convention, that the decision-maker
would treat the best
interests of the children as “a primary
consideration”.
The principle of legitimate expectations, not
being a binding rule of law, does not require a decision-maker to act in a
particular
way. Instead, it falls within the ambit of the rules of procedural
fairness in the sense that a decision contrary to a legitimate
expectation
should not be made without first giving those affected adequate opportunity of
putting their case.[74] On the
facts of Teoh the immigration department had denied such procedural
fairness as there was no evidence that, in making their decisions, the relevant
provisions of the Convention had either been considered or applied. The
interests of the applicant’s children had not been
treated as a primary
consideration as required by the Convention without giving the applicant
adequate opportunity to argue against
the course.
Bayne considered that
the practical effect of Teoh is to oblige the decision-maker to consider
the treaty and give reasons for departing from its requirements, thereby
effectively
imposing an obligation on the decision-maker to comply with the
treaty unless an adequate reason can be found not to do so. He
stated:
[I]n practical effect, the court was coming very close to saying
that decision-makers must have regard to the terms of a convention
when they
exercise an administrative power. If there is no act of the legislature or the
executive or if there is no action of the
executive which displaces the
convention, then as a matter of practical effect decision-makers will have to
have regard to the terms
of the convention in order to determine whether they
should give a hearing to a person in respect of whom they propose not to apply
the convention ...
That comes very close to a rejection of the basic
legal principle that conventions do not have the force of law in Australia
unless
adopted by relevant local
legislation.[75]
Gaudron J
took a different approach, according significance to the ratification of a
treaty to the extent that it gives expression
to a fundamental human right which
is accepted in Australian society. She considered that ratification of the
Convention confirmed
the significance of the right within Australian society,
and concluded:
Given that the Convention gives expression to an important
right valued by the Australian community, it is reasonable to speak of
an
expectation that the Convention would be given effect. However, that may not be
so in the case of a treaty or convention that
is not in harmony with community
values and
expectations.[76]
It is
submitted that the questions begged by any such approach would make it less than
satisfactory. Who would be the arbiter of
harmonious compliance with community
values? Presumably the judges. And how difficult might be the task of a
decision-maker having
to second guess the likely judicial view on the
matter? [77]
McHugh
J’s initial criticism of the majority arose out of a historical
examination of the concept of “legitimate expectations”.
Having
stated that his preferred approach was to look not at whether there is an
obligation of procedural fairness but at the content
of that obligation, he
accepted that the argument was based on the former question and undertook to
deal with it.[78] He then cited the
following passage:
Our analysis of the cases suggests that there are four
principal sources which the courts recognise as capable of rendering
expectations
legitimate or reasonable: (1) a regular course of conduct which has
not been altered by the adoption of a new policy; (2) express
or implied
assurances made clearly on behalf of the decision-making authority within the
limits of the power exercised; (3) the possible
consequences or effects of the
expectation being defeated especially where these consequences include economic
loss and damage to
reputation, providing that the severity of the consequences
are a function of justified reliance generated from substantial continuity
in
the possession of a benefit or a failure to be told that renewal cannot be
expected; and (4) the satisfaction of statutory
criteria.[79]
In McHugh
J’s view, none of the previously recognised sources of a legitimate
expectation were present in this case. Thus,
for Mr Teoh to succeed, the
doctrine of legitimate expectation would have to be extended. In any event, he
noted, a legitimate expectation
would not oblige the decision-maker to apply the
Convention.[80] In McHugh J’s
view, the rules of procedural fairness would not have required the
decision-maker to inform Mr Teoh that she
was not going to apply article 3 of
the Convention because she had done nothing to lead Mr Teoh to believe that it
would be applied.[81]
In
order to determine whether Teoh is such a radical departure from
precedent, it is necessary to consider some earlier cases on “legitimate
expectation”.
A “legitimate expectation” is a doctrine of
administrative law, intended to provide procedural fairness in administrative
decision-making. The concept of “legitimate expectation” was
“created”[82] by Lord
Denning MR in Schmidt v Secretary of State for Home
Affairs.[83] The doctrine will
operate when the government publishes a policy, or makes a representation about
how it will proceed in making
certain types of administrative decisions. If the
decision-maker decides to act in a manner which is contrary to the policy or
other
representation, the affected person must be given the opportunity of a
hearing. In 1985 the Privy Council applied the concept of
“legitimate
expectation” in Attorney-General of Hong Kong v Ng Yuen
Shiu.[84] The Privy Council
held that a legitimate expectation arose because there was a publicly announced
policy that illegal immigrants
applying for residency would have their
applications processed in a certain manner. Thus, if the government intended to
depart from
that policy, then the applicant was entitled to a hearing on the
issue before that departure. The concept was reconsidered by the
High Court in
Haoucher v Minister for Immigration and Ethnic
Affairs,[85] where it held that
a “published, considered statement of government policy” that a
decision of the Administrative Appeals
Tribunal will only be overturned on a
deportation issue in “exceptional circumstances”, gave rise to a
legitimate expectation
that the person subject to deportation be given a hearing
on the point before the Minister makes his or her decision. It is my view
that
the decision of the majority of the High Court in Teoh, in holding that a
legitimate expectation arose from the act of ratification of a treaty without
the necessary intervention of a
considered statement of policy, represents a
significant extension of the legitimate expectation
doctrine.[86]
McHugh J also disagreed with the conclusion of the majority that an
individual can get the benefit of this legitimate expectation
even if they did
not in fact have it, or indeed, even if they were totally unaware of the
existence of the treaty. He considered
that for there to be a ‘legitimate
expectation’, the person affected must have that expectation, or otherwise
no disappointment
or injustice is suffered by that person if that expectation is
not fulfilled. His Honour concluded:
A person cannot lose an expectation
that he or she does not hold. Fairness does not require that a person be
informed about something
to which the person has no right or about which that
person has no
expectation.[87]
Thus,
McHugh J concluded that Mr Teoh could not succeed in this case. However, he
also went on to consider the effect of the Convention
in the event that an
extension of the doctrine of legitimate expectation was accepted. McHugh J
considered that the ratification
of treaties is an act directed at the
international community, and should not have internal consequences:
The
ratification of a treaty is not a statement to the national community. It is,
by its very nature, a statement to the international
community. The people of
Australia may note the commitments of Australia in international law, but, by
ratifying the Convention,
the Executive Government does not give undertakings to
its citizens or residents. The undertakings in the Convention are given to
the
other parties to the Convention. How, when or where those undertakings will be
given force in Australia is a matter for the
federal
Parliament.[88]
Towards
the end of his judgment, McHugh J made an argument that, were the majority
approach to be correct, the consequences for administrative
decision-making
would be enormous, given that Australia is party to about 900
treaties.[89] The difficulty of
deciding whether a particular convention is relevant to a decision will
frequently be compounded by the ambiguous
language in which some conventions are
expressed.[90] In Teoh, for
example, the issue arising was whether deportation of Mr Teoh fitted the
description of article 3 of the Convention on the Rights
of the Child, that
“[i]n all actions concerning children, whether undertaken by public
or private social welfare institutions, courts of law, administrative
authorities or legislative bodies,
the best interests of the child shall be a
primary consideration” (emphasis added). A skilled lawyer could be
excused for
having decided that deportation of Mr Teoh was not an action
concerning his
children.[91]
McHugh J found
that, even if a treaty could be regarded as raising a legitimate expectation of
compliance with its terms, the express
terms of the policy of the Department of
Immigration and Ethnic Affairs displaced any such expectation, notwithstanding
that the
terms of the policy were not in fact applicable to Mr Teoh’s
case;[92] that article 3 of the
Convention did not apply in this situation where the decision was directed at
the parent of a child rather
than the
child;[93] and that, in any event,
on the facts of the case, the decision-maker had made the children’s
interests a primary
consideration.[94]
Teoh’s biggest impact has been on decisions to deport a
parent with children who will remain behind in Australia. In a number of
subsequent
cases, the Federal Court has declared that deportation decisions
affirmed by the Administrative Appeals Tribunal were invalid because
the
interests of a child had not been considered in the manner envisaged by
Teoh and the Convention on the Rights of the
Child.[95]
In Teoh, the majority stated that the legitimate expectations
created by treaty ratification would only come about in the absence of
“statutory
or executive indications to the
contrary”.[96] “[T]here
can be no legitimate expectation if the actions of the legislature or the
executive are inconsistent with such an
expectation.”[97]
In
May 1995, soon after the High Court handed down its decision, the then Minister
for Foreign Affairs, Senator Evans, and the Attorney-General,
Mr Lavarch, issued
a ‘Joint Executive Statement’ which was intended to
“clarify” the position of the government
with respect to the
Teoh
decision.[98]
The statement reviewed the decision in Teoh and what the High Court said
regarding the impact of treaties upon Australian law. It was noted
that:
It may be only a small number of the approximately 920 treaties to
which Australia is currently a party could provide a source for
an expectation
of the kind found by the High Court to arise in Teoh. But that can only
be established as individual cases are litigated. In the meantime, the High
Court decision gives little if any
guidance on how decision-makers are to
determine which of those treaty provisions will be relevant and to what
decisions the provisions
might be relevant, and because of the wide range and
large number of decisions potentially affected by the decision, a great deal
of
uncertainty has been introduced into government
activity.[99]
The statement
then purported to nullify the effect of unincorporated treaties in the manner
envisaged by the High Court by providing
as follows:
We state on behalf
of the Government, that entering into an international treaty is not reason for
raising any expectation that government
decision-makers will act in accordance
with the treaty if the relevant provisions of the treaty have not been enacted
into domestic
Australian law. It is not legitimate, for the purpose of applying
Australian law, to expect that the provisions of a treaty not
incorporated by
legislation should be applied by decision-makers. Any expectation that may
arise does not provide a ground for review
of a decision. This is so both for
existing treaties and for future treaties that Australia may
join.[100]
This
1995 statement has since been replaced by a statement of 25 February 1997 by the
present Minister for Foreign Affairs, Mr Downer,
and the Attorney-General, Mr
Williams.[101] The 1997 statement
again restated the consequences of the decision in Teoh’s case and
made express reference to the role of the Australian Parliament in changing
Australian law to implement treaty obligations.
The statement went on to
provide:
Therefore, we indicate on behalf of the Government that the act
of entering into a treaty does not give rise to legitimate expectations
in
administrative law which could form the basis for challenging any administrative
decision made from today. This is a clear expression
by the Executive
Government of the Commonwealth of a contrary indication referred to by the
majority of the High Court in the Teoh Case ...
[T]he executive
indication in this Joint Statement applies to both Commonwealth and State and
Territory administrative decisions and
to the entry into any treaty by Australia
in the future as well as to treaties to which Australia already is a party. In
relation
to administrative decisions made in the period between 10 May 1995 and
today reliance will continue to be placed on the Joint Statement
made by the
then Minister for Foreign Affairs and the then Attorney-General on 10 May
1995.[102]
Allars
has questioned whether the Joint Executive Statements are sufficient to overturn
other considered statements of government
policy.[103]
These policy statements include the Guidelines on Official Conduct of
Commonwealth Public Servants, which states that a key human
rights treaty, the
ICCPR, is “in line with community expectations of fair treatment from the
public service”.[104] They
also include international human rights instruments declared under s 47 of the
Human Rights and Equal Opportunities Commission Act 1986
(Cth).[105] The declaration of an
instrument under that Act makes it a statement of human rights which must be
taken into account by HREOC.
Declared instruments are scheduled to the Act
itself.
Allars has also expressed the view that the Joint Executive
Statements may well not have the effect of negating future inconsistent
statements of policy.[106] Such
statements could include future ratifications of treaties. Support for a
restrictive interpretation of the executive’s
power to negate the domestic
effect of treaties is to be found in Department of Immigration and Ethnic
Affairs v Ram,[107] in which
Hill J, discussing the reference by Mason CJ and Deane J to executive
indications to the contrary, suggested “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”.[108]
While
the majority certainly gives a clear indication that executive statements may
displace the legitimate expectation, it is unlikely
that they envisaged a
blanket suffocation of all such expectations in relation to all treaties, past
and future. What may have been
envisaged was a statement as to particular
treaties and particular kinds of decisions. So, for example, the Minister for
Immigration
and Ethnic Affairs could make a statement to the effect that
migration decisions would not be made in accordance with Australia’s
obligations under the Convention on the Rights of the Child and this would
preclude any legitimate expectation arising in any person
affected by a
migration
decision.[109]
There have
also been legislative attempts to overcome the decision at the federal level.
In 1995, the Keating Labor government introduced
a Bill to this effect, which
lapsed with the March 1998 federal
election.[110] The Howard
Coalition government introduced its own Bill in
1997.[111] It encountered
difficulties in the Senate[112]
and eventually lapsed with the 1998 election. In October 1999, the government
made a second attempt, introducing the Administrative Decisions (Effect of
International Instruments) Bill 1999 (Cth). Parliament has yet to pass the
Bill. The Explanatory Memorandum which accompanied the Bill noted as
follows:
Prior to the Teoh decision, the terms of treaties to
which Australia was a party had not been considered to create rights or
obligations in Australian
law in the absence of legislation. The High Court
confirmed this principle in the Teoh case. The court distinguished
between a substantive rule of law and the doctrine of legitimate expectation on
the basis that the
doctrine only gave rise to a procedural right to have the
treaty considered, not a legal right to enforce the terms of the treaty.
Despite this distinction, however, the court’s decision gave treaties an
impact in Australian law which they did not previously
have.
The
government is of the view that this development is not consistent with the
proper role of Parliament in implementing treaties
in Australian law. Under the
Australian Constitution, the Executive Government has the power to make
Australia a party to a treaty. It is for Australian parliaments, however, to
change
Australian law to implement treaty obligations.
The Bill is a
statutory indication to the contrary as discussed by the High Court in the
Teoh case. The purpose of the Bill is to ensure that the Executive act
of entering into a treaty does not give rise to legitimate expectations
in
administrative
law.[113]
Allars has
similar doubts as to whether the Commonwealth legislation will overturn the
effects of the Teoh decision. Section 5 of the Bill states
that:
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 action.
But Allars
points out that it is not the existence of an international obligation or the
scheduling of an instrument, but the historical
fact of the conduct of
government in ratifying which generates a legitimate
expectation.[114]
In
addition, the South Australian Parliament has passed the Administrative
Decisions (Effect of International Instruments) Act 1996 (SA), which came
into effect on 30 November 1996. The substantive provision of the South
Australian legislation provides that:
(1) An international instrument (even though binding in international law on
Australia) affects administrative decisions and procedures
under the law of the
State only to the extent the instrument has the force of domestic law under an
Act of the Parliament of the
Commonwealth or the State.
(2) It follows that
an international instrument that does not have the force of domestic law under
an Act of the Parliament of the
Commonwealth or the State cannot give rise to
any legitimate expectation that -
(a) administrative decisions will conform
with the terms of the instrument; or
(b) an opportunity to present a case
against a proposed administrative decision that is contrary to the terms of the
instrument.[115]
It has been held that the Act removes any legitimate expectation arising
under international
instruments.[116]
Teoh's
case, and the governmental response, demonstrated very clearly the impact
that treaties had begun to have on Australian law throughout
the 1990s.
The doctrinal and practical difficulties of using procedural fairness via
legitimate expectation to achieve a greater status for unincorporated
treaties
in domestic law should be evident. The Teoh decision could be construed
as a transfer by the judiciary of Parliament’s legislative sovereignty to
the executive. Some of
the statements of the High Court, while expressly
denying that an unincorporated treaty may have direct legal effect in Australia,
go so far in acknowledging the impact of treaties, in the context of legitimate
expectations, that they may be seen as being tantamount
to a back door entry for
unincorporated treaties into Australian
law.[117]
It remains to be
seen whether the use of unincorporated treaties will be confined to the
generation of legitimate expectations for
the purposes of procedural fairness
and the interpretation of ambiguous legislation. In Minister for Foreign
Affairs and Trade v Magno, Gummow J pointed to difficult questions of
administrative law which arise where:
whilst the international obligation
is not in terms imported into municipal law and the municipal law is not
ambiguous, nevertheless,
upon the proper construction of the municipal law,
regard may be had by a decision maker exercising a discretion under that law to
the international agreement or obligation. If that agreement or obligation is
misconstrued by the decision maker, is there reviewable
error of law? Or is the
‘error’ to be classified as factual in nature? If the latter is
correct the scope of judicial
review will be narrowed. The question is
unresolved.[118]
The
extension of the significance of unincorporated treaties in other areas of
administrative law could become a back door means of
importing an unincorporated
treaty into Australian law so as to undermine the basic inability of the
executive to make or alter domestic
law. I believe that such an extension would
not represent an acceptable balance that needs to be struck between the ever
growing
and inevitable demands of internationalisation, on the one hand, and the
demands of localised democratic government, on the other.
Whatever the
fate of the Administrative Decisions (Effect of International Instruments) Bill
1999, one consequence of the Teoh decision was readily foreseeable. That
is that the Commonwealth government would be wise to adopt a more cautious, more
consultative
approach than it had hitherto when deciding whether to ratify
treaties.[119]
An interesting example of a modern qualification to the rule which
establishes the need for legislation, relates to the use of treaties
and
agreements to interpret ambiguous legislation especially in the light of the
presumption that Parliament normally intends to
legislate consistently with
Australia’s international
obligations.[120]
In the
earlier days of Mason CJ’s period on the High Court, his Honour took a
very narrow approach to the use of international
conventions as an aid to
statutory interpretation. In two cases, D & R Henderson v Collector of
Customs for NSW[121] and
Yager v R,[122] he required
both ambiguity in the language of the statute in question and that the statute
be intended to give effect to the convention
which is to be called in aid of
interpretation.
It was only in 1992, in Dietrich, that the court
first acknowledged a role for treaties in the interpretation of legislation not
intended to implement the treaty
in question. This was the beginning of a
broader approach to the use of treaties by the court, although the High
Court’s adoption
of this approach in Dietrich was less than
wholehearted. Mason CJ and McHugh J, in discussing the position in the United
Kingdom, stated that:
[I]t is ‘well settled’ that, in
construing domestic legislation which is ambiguous, English courts will presume
that Parliament
intended to legislate in accordance with its international
obligations.[123]
However,
it is unclear from the judgment whether Mason CJ and McHugh J consider this
principle to be “well-settled” in
Australian law. Clearly, though,
the principle referred to is not confined to statutes which are directed at the
implementation
of an international convention, but is directed at all statutes,
as a general cannon of statutory interpretation. Ambiguity, however,
is still
required. This is somewhat broader than the earlier, restricted view taken by
Mason CJ.
Dawson J’s judgment is not of much greater assistance.
He stated that:
There is authority for the proposition that, in the
construction of domestic legislation which is ambiguous in that it is capable
of
being given a meaning which either is consistent with or is in conflict with a
treaty obligation, there is a presumption that
Parliament intended to legislate
in conformity with that
obligation.[124]
Again,
there is no real indication whether Dawson J considers that approach to be
correct. And, again, ambiguity in the legislation
is required before the
presumption comes into play, although his Honour’s view of ambiguity seems
to be a reasonably wide one.
In Chu Kheng Lim v Minister for
Immigration, Local Government and Ethnic
Affairs,[125] the plaintiffs
were Cambodian nationals who had arrived by boat in Australia in 1989 and 1990
and who had been detained in custody
since their arrival, pending determination
of their applications for refugee status. In April 1992 the applications were
rejected.
In the Federal Court, the plaintiffs obtained an order setting aside
this decision; they also sought an order that they be released
from custody
pending re-determination of their applications, but this aspect of the
proceeding was adjourned. Prior to the return
of their application for release,
the Federal government passed the Migration Amendment Act 1992 (Cth)
which, inter alia, purported to prohibit any court from ordering the
release from custody of anyone of a defined class of persons which included the
plaintiffs. The plaintiffs challenged the validity of the legislation. One of
the bases of the challenge was the inconsistency
of the amendments with
international legal commitments undertaken by Australia, in particular the
Convention relating to the Status
of Refugees 1951 and its 1967 Protocol, and
the ICCPR. Section 54T of the Migration Act 1958 (Cth) provided that the
amendments were to apply despite inconsistency with any other Australian law
other than the Constitution. Members of the High Court regarded s 54T as
adequate to preclude recourse to international law:
[Section] 54T ...
unmistakably evinces a legislative intent that, to the extent of any
inconsistency, those provisions prevail over
those earlier statutes and (to the
extent - if at all - that they are operative within the Commonwealth) those
international
treaties.[126]
One of the
important obiter dicta which arose in the Teoh case concerned the
extent to which treaties can affect the interpretation of statutes. Mason CJ
and Deane J[127] took a broad
approach to this issue, in contrast to the House of Lords, which has taken a
narrower view of the extent to which treaties
can effect the interpretation of
legislation.[128] Their Honours
noted that it is a principle of statutory interpretation that if a statute or
legislative instrument is ambiguous,
the courts should interpret it in a manner
that is consistent with Australia’s international
obligations.[129] This rule, they
noted, is based on the principle that “Parliament, prima facie, intends to
give effect to Australia’s
obligations under international law”.
They went on to explain how this principle must lead to a broad reading of the
concept
of ambiguity, stating:
It is accepted that a statute is to be
interpreted and applied, as far as its language permits, so that it is in
conformity and not
in conflict with the established rules of international law.
The form in which this principle has been expressed might be thought
to lend
support to the view that the proposition enunciated in the preceding paragraph
[that ambiguous statutes should be interpreted
in accordance with
Australia’s international obligations] should be stated so as to require
courts to favour a construction,
as far as the language of the legislation
permits, that is in conformity and not in conflict with Australia’s
international
obligations. That is indeed how we would regard the proposition
as stated in the preceding paragraph. In this context, there are
strong reasons
for rejecting a narrow conception of ambiguity. If the language of the
legislation is susceptible of a construction
which is consistent with the terms
of the international instrument and the obligations which it imposes on
Australia, then that construction
should prevail. So expressed, the principle
is no more than a canon of construction and does not import the terms of the
treaty
or convention into our municipal law as a source of individual rights and
obligations.[130]
In the
case of Kartinyeri v
Commonwealth,[131] Gummow and
Hayne JJ stated that it was an accepted principle
that a statute of the
Commonwealth or of a State is to be interpreted and applied, as far as its
language permits, so that it is not
in conflict with the established rules of
international law.[132]
One
final point to be made in relation to the use of treaties in statutory
interpretation is the High Court’s complete lack
of reference to s
15AB(2)(d) of the Acts Interpretation Act 1901 (Cth), which permits
recourse to “any treaty or other international instrument that is referred
to in the Act” as extrinsic
material which may be used to confirm the
ordinary meaning of the text (s 15AB(1)(a)) or where there is ambiguity or the
ordinary
meaning would lead to an absurd result (s 15AB(1)(b)). Clearly, this
statutory discretion overrides the common law principles, at
least in relation
to statutes which make explicit reference to a treaty, yet it is never mentioned
in decisions concerning such statutes.
Thus, in relation to such statutes,
ambiguity is not essential under s 15AB.
Where domestic legislation is passed to give effect to an international
convention, there is a presumption that Parliament intended
to fulfil its
international obligations. It may also be that in the case of an ambiguity in
any legislation, even if not enacted
for the purpose of implementing a treaty,
the courts will favour a construction that is consistent with Australia’s
obligations
under international human rights treaties. This may be an aspect of
a more general principle of statutory interpretation that a
court will interpret
statutes in the light of a presumption that the Parliament does not intend to
abrogate human rights and fundamental
freedoms.[133] However, as
Lauterpacht has commented:
[T]his has been a theoretical affirmation
having the probably not unintended effect of stressing the duty of Judges to do
their utmost
to interpret statutes so as not to impute to the Legislature the
intention of disregarding International Law. It is easier to interpret
away a
provision of an Act of Parliament on the face of it inconsistent with
International Law if previously due obeisance has been
made to the supremacy of
the Legislature.[134]
Although little use has been made of unincorporated treaties outside the
field of human rights, within that field judicial interpretation
is increasingly
likely to narrow the gulf between international norms and Australia’s
domestic law. This is to be seen both
in the interpretative rules and, more
dramatically, in administrative law. The law regulating the relationship
between treaties
and domestic law is far from settled. Questions still abound
as to the extent to which unincorporated treaties can affect the domestic
law of
Australia, whether by interpretation of statutes, development of the common law,
or the creation of procedural rights of fairness.
As Kirby J emphasised in
Newcrest Mining (WA) Ltd v
Commonwealth,[135] “the
inter-relationship of national and international law, including in relation to
fundamental rights, is ‘undergoing
evolution’”.[136] In
my view, the pressures of internationalisation or globalisation, as it is
sometimes called, are bound to increase the qualifications
which will be
recognised to the rule which establishes the need for legislation.
The
decision in Teoh does, I believe, strengthen the case for introduction of
measures to give the Houses of the Commonwealth Parliament a capacity to
control
exercise by the executive branch of its power to enter into international
agreements. If, by ratification of an international
agreement, the Commonwealth
executive can affect legal rights and obligations under Australian law, the
principle of parliamentary
supremacy in relation to law-making surely requires
that the federal Parliament be accorded a facility to determine whether domestic
law will or may be affected by exercise of the treaty-making power invested in
the executive.[137]
[*] BSc, LLB(Hons) (Qld), LLM
(Melb), GDipBA (QUT); Solicitor of the Supreme Court of Queensland and the High
Court of Australia, Legal
Practitioner of the Supreme Court of New South Wales
and of the Australian Capital Territory; Solicitor, Clayton Utz.
[1] [1995] HCA 20; (1995) 183 CLR
273.
[2] The Parlement
Belge (1879) 4 PD 179; Walker v Baird [1892] AC 491 at 497;
Attorney-General for Canada v Attorney-General for Ontario [1937] AC 326;
Blackburn v Attorney-General [1971] 1 WLR 1037; Maclaine Watson &
Co Ltd v Department of Trade and Industry [1989] 3 All ER 523. See also I
Brownlie, Principles of Public International Law, 4th edn
Clarendon Press Oxford 1990 at 48; I Shearer, Starke’s International
Law, 11th edn Butterworths London 1994 at
71-2.
[3] For the historical
background to the development of this rule, see W Holdsworth, ‘The
Treaty-Making Power of the Crown’
(1942) 58 LQR
175.
[4] See Brownlie supra
n 2 at
47-8.
[5] Maclaine Watson &
Co Ltd v Department of Trade and Industry supra n
2 at 545 per Lord
Oliver.
[6] [1937] AC
326.
[7] Ibid at
347.
[8] Brown v Lizars
[1905] HCA 24; (1905) 2 CLR 837 at 851 per Griffith CJ; Roche v Kronheimer [1921] HCA 25; (1921) 29 CLR
329; Chow Hung Ching [1948] HCA 37; (1948) 77 CLR 449 at 478 per Dixon J; Bradley v
Commonwealth [1973] HCA 34; (1973) 128 CLR 557 at 582 per Barwick CJ and Gibbs J, 593 per
Stephen J; Simsek v Macphee (1982) 148 CLR 636 per Stephen J;
Tasmanian Wilderness Society v Fraser (1982) 152 CLR 270; Koowarta v
Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168 at 193 per Gibbs CJ, 212 per Stephen J,
224 per Mason J; Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 570 per Gibbs CJ;
Mabo v Queensland (No 2) (1992) 175 CLR 1 at 55 per Brennan J (Mason CJ
and McHugh J concurring), 79 per Deane and Gaudron JJ; Chu Kheng Lim v
Commonwealth (1992) 176 CLR 1 at 74 per McHugh J; Dietrich v R [1992] HCA 57; (1992)
177 CLR 292 at 305 per Mason CJ and McHugh J, 359-60 per Toohey J; Coe v
Commonwealth [1993] HCA 42; (1993) 118 ALR 193 at 200-1 per Mason CJ; Minister for
Immigration and Ethnic Affairs v Teoh supra n
1 at 287 per Mason CJ and Deane J (Gaudron J
concurring), 370 per Toohey J, 384 per McHugh J; Kruger v Commonwealth
[1997] HCA 27; (1997) 146 ALR 126 at 161 per Dawson
J.
[9] See, eg, Bradley v
Commonwealth supra n 8 at 582 per Barwick
CJ and Gibbs J; Simsek v Macphee supra n
8 at 642 per Stephen J; Kioa v West
supra n 8 at 570 per Gibbs
CJ.
[10] See, eg, Chow Hung
Ching supra n 8 at 478 per Dixon
J; Simsek v Macphee supra n 8 at 641
per Stephen J; Koowarta v Bjelke-Petersen supra n
8 at 193 per Gibbs CJ, 224 per Mason J;
Mabo v Queensland (No 2) supra n 8 at
55 per Brennan J (Mason CJ and McHugh J concurring), 79 per Deane and Gaudron
JJ; Coe v Commonwealth supra n 8 at
200-1 per Mason CJ.
[11] The
exceptions stated in the text are sufficiently explained with sufficient
supporting judicial authority in J Crawford and W Edeson,
‘International
Law and Australian Law’ in K Ryan (ed), International Law in
Australia, 2nd edn Law Book Company Sydney 1984 at 94-7; J
Starke, ‘The High Court of Australia and the rule in Walker v Baird [1892]
AC 491’
(1974) 48 ALJ
368.
[12] F Mann, Foreign
Affairs in English Courts, Clarendon Press Oxford 1986 at
87.
[13] Victorian
Stevedoring and Construction Co Ltd and Meakes v Dignan [1931] HCA 34; (1931) 46 CLR
73.
[14] Australian
Constitution, ss 51-2.
[15]
Official Record of the Debates of the Australasian Federal Convention,
Sydney 1891 Appendix (emphasis
added).
[16] See G McGinley,
‘The Status of Treaties in Australian Municipal Law: The Principle of
Walker v Baird Reconsidered’ [1990] AdelLawRw 6; (1990) 12 Adelaide LR 367 at
368-9.
[17] J La Nauze, The
Making of the Australian Constitution, Melbourne University Press Melbourne
1972 at 184.
[18] Official
Records of the Debates of the Australasian Federal Convention, Sydney 1897
at 240. For an explanation of why Mr Reid used this argument see B de Garis,
‘The Colonial Office and the Commonwealth
Bill’ in Martin (ed),
Essays in Australian Federation, Melbourne University Press Melbourne
1969 at 110.
[19] J Quick
& R Garran, The Annotated Constitution of the Australian
Commonwealth, Angus & Robertson Sydney 1901 at
353.
[20] [1978] HCA 54; (1979) 142 CLR
583.
[21] [1979] HCA 65; (1979) 143 CLR
575.
[22] [1985] HCA 6; (1985) 156 CLR
385.
[23] See, eg, Hazlett v
Presnell [1982] HCA 58; (1982) 149 CLR 107; J v Lieschke [1987] HCA 4; (1987) 162 CLR 447 at 463
per Deane J; Street v Queensland Bar Association [1989] HCA 53; (1989) 168 CLR 461 at
510 per Brennan J; Secretary, Department of Health and Community Services v
JWB and SMB [1992] HCA 15; (1992) 175 CLR 218 at 266 per Brennan
J.
[24] M Kirby, ‘The
Australian Use of International Human Rights Norms: From Bangalore to Balliol -
A View From the Antipodes’
(1993) 16 UNSWLR
363.
[25] Supra n
8.
[26]
Ibid at 42 (emphasis
added).
[27] Ibid at
43.
[28] Ibid at
109.
[29] K Walker,
‘Treaties and the Internationalisation of Australian Law’ in C
Saunders (ed), Courts of Final Jurisdiction, Federation Press Sydney 1996
at 213.
[30] Supra n
8.
[31]
See especially ibid at 311-2 per Mason CJ and McHugh J, 337 per Deane J,
361-2 per Toohey J.
[32]
Ibid at 321.
[33]
Ibid at 323-4.
[34]
Ibid at 348-9. This is discussed in greater detail in Part 5 of this
article, below.
[35] Ibid
at 349.
[36] Ibid at
305.
[37] Ibid at
306.
[38] Ibid at
307.
[39] Ibid at 300,
307.
[40] Ibid at
360.
[41] Ibid at
360-1.
[42] Ibid at
337.
[43] Supra n
21.
[44] [1993] HCA 74; (1993) 178 CLR
477.
[45] Ibid at
499-500.
[46] Supra n
22 at
395.
[47] See supra n
44 at 489-97 per Mason CJ and Toohey J,
539-42 per McHugh J.
[48]
Ibid at 508.
[49]
Ibid at 532, 534.
[50]
[1995] HCA 47; (1995) 183 CLR 373.
[51]
Ibid at 486.
[52]
Supra n 1. The case is discussed in
greater detail in Part 4 of this article,
below.
[53] Ibid at
304.
[54] Ibid at
288.
[55]
Ibid.
[56] Ibid
at 288.
[57] Ibid at
315.
[58] See, eg, Minister
for Foreign Affairs and Trade v Magno [1992] FCA 566; (1992) 37 FCR 298; Teoh v Minister
for Immigration, Local Government and Ethnic Affairs [1994] FCA 1017; (1994) 121 ALR 436 at
443 per Black CJ.
[59] See, eg,
Re Marion (1990) 14 Fam LR 427; cf Re Jane (1988) 12 Fam LR
662.
[60] See, eg, Daemar v
Industrial Commission of New South Wales (1998) 12 NSWLR 45; S & M
Motors Pty Ltd v Caltex Oil (Australia) Pty Ltd (1998) 12 NSWLR 358; Jago
v District Court of New South Wales (1988) 12 NSWLR
558.
[61] This seems to be the
way in which international law was used in Mabo and EPA v Caltex
and also to accord with the rejection of the ICCPR as justification for a
fundamental change in the common law in Dietrich, while permitting its
use in the less radical development of the common law notion of ‘fair
trial’.
[62] On this
notion, see Dietrich supra n 8 at
360-1 per Toohey J.
[63] Sir
John Laws, ‘Is the High Court the Guardian of Fundamental Constitutional
Rights?’ [1993] Public Law 59 at
63.
[64] Minister for
Immigration and Ethnic Affairs v Teoh supra n
1 per Mason CJ, Deane, Toohey, and Gaudron
JJ; McHugh J dissenting.
[65]
Supra n
8.
[66]
Ibid at 643.
[67]
Supra n
8.
[68]
Supra n 1 at
281.
[69] Teoh v Minister for
Immigration, Local Government and Ethnic Affairs supra n
58.
[70]
Ibid at 450 per Lee J, 446 per Carr
J.
[71] Supra n
1 at 291 (emphasis added). Australian courts
are not alone in placing such weight on the consequences of ratification of
treaties.
The New Zealand Court of Appeal in Tavita v Minister for
Immigration (1994) 2 NZLR 257 at 266 described the government’s
argument that it is entitled to ignore treaties to which New Zealand is a party,
as “an
unattractive argument” which implies that New Zealand’s
adherence to international instruments “has been partly
window
dressing”.
[72]
Ibid at 301.
[73]
Ibid at 291 per Mason CJ and Deane J, 301 per Toohey
J.
[74] Ibid at 291-2 per
Mason CJ and Deane J.
[75]
Commonwealth, Hansard, Senate Legal and Constitutional References
Committee 1 May 1995, 110 (Mr P
Bayne).
[76] Supra n
1 at
305.
[77] J Kidd, ‘Can
International Law Protect Our Civil Rights? The Australian and British
Experience Compared’ (1995) 18 UQLJ 305 at
309.
[78] Supra n
1 at
311-2.
[79] Ibid at 312,
citing P Tate, ‘The Coherence of “Legitimate Expectations” and
the Foundations of Natural Justice’
[1988] MonashULawRw 2; (1988) 14 Monash LR 15 at
48-9.
[80] Ibid at
313.
[81] Ibid.
[82] M Allars, Introduction
to Australian Administrative Law, Butterworths Sydney 1990 at
238.
[83] [1969] 2 Ch
149.
[84] [1983] UKPC 2; [1983] 2 AC
629.
[85] [1990] HCA 22; (1990) 169 CLR
648.
[86] See also Senate Legal
and Constitutional Legislation Committee, Administrative Decisions (Effect of
International Instruments) Bill 1995, Senate Canberra 1995 at
3-6.
[87] Supra n
1 at 314. See also G Evans, ‘The
Impact of Internationalisation on Australian Law: A Commentary’ in
Saunders supra n 29 at 239, noting
that the expectation has to have a “whiff of objective reality about
it”.
[88] Ibid at
316. See also Evans supra n 87 at
238: “[R]atification is a statement to the international community
to observe the treaty measures in question; it is not a statement to the
national community - that is the job of the Legislature, not the
Executive.”
[89]
Ibid.
[90] See R v
Chief Immigration Officer; ex parte Bibi [1976] 1 WLR 979 at 984-5 per Lord
Denning MR.
[91] J McMillan,
‘Teoh, and Invalidity in Administrative Law’ (1995) 5 AIAL
Forum 10 at 14.
[92]
Supra n 1 at
318-9.
[93] Ibid at
319.
[94] Ibid at 320.
See also J McMillan, ‘Recent Themes in Judicial Review of Federal
Executive Action’ (1996) 24 FL Rev 347 at
371.
[95] See, eg, Vaitaiki v
Minister for Immigration and Ethnic Affairs [1998] FCA 5; (1998) 150 ALR 608 (FFC); Lam
v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of
Australia, Sackville J, 4 March 1998); Hui v Minister for Immigration and
Ethnic Affairs (unreported, Federal Court of Australia, Carr J, 21 July
1999).
[96] Supra n
1 at 291 per Mason CJ and Deane
J.
[97] Ibid at 302 per
Toohey J.
[98] Joint Statement
by the Minister for Foreign Affairs, Senator Gareth Evans, and the
Attorney-General, Michael Lavarch, International Treaties and the High Court
Decision in Teoh, 10 May 1995. An executive statement in almost identical
terms was issued by the South Australian Attorney-General on 8 June 1995.
The
Western Australian Attorney-General made a statement in Parliament on 24 August
1995 in similar terms.
[99]
Ibid at 2.
[100]
Ibid. It should be noted that the statement will not operate
retrospectively to defeat claims arising on the basis of a legitimate
expectation
generated before the statement was made: see Fang v Minister for
Immigration and Ethnic Affairs (1996) 135 ALR 583 at 604 per Carr
J.
[101] Joint Statement by
the Minister for Foreign Affairs, Alexander Downer, and the Attorney-General,
Daryl Williams, The Effect of Treaties in Administrative Decision Making,
25 February 1997.
[102]
Ibid.
[103] M Allars,
‘International Law and Administrative Discretion’ in B Opeskin &
D Rothwell (eds), International Law and Australian Federalism, Melbourne
University Press Melbourne 1997 at
266-8.
[104] Ibid at
267.
[105] Ibid at
267-8.
[106] M Allars,
‘One Small Step for Legal Doctrine, One Giant Step Towards Integrity in
Government: Teoh’s Case and the Internationalisation of
Administrative Law’ [1995] SydLawRw 16; (1995) 17 Syd LR 204 at
221-6.
[107] (1996) 23 AAR
134.
[108] Ibid at 140.
See also Re Yad Ram and Department of Immigration and Ethnic Affairs
(1995) 22 AAR 372 (AAT); Fang v Minister for Immigration and Ethnic
Affairs supra n 100; Davey Browne v
Minister for Immigration and Multicultural Affairs (1998) 27 AAR 353;
Tien v Minister for Immigration and Multicultural Affairs [1998] FCA 1552; (1999) 159 ALR
405; Baldini v Minister for Immigration and Multicultural Affairs
(unreported, Federal Court of Australia, Drummond J, 25 February
2000).
[109] Baldini v
Minister for Immigration and Multicultural Affairs supra n
108 at para 30 illustrates that the
obligation imposed by Teoh can be overridden by a ministerial policy or
direction that establishes a detailed code to provide guidance to
decision-makers.
[110]
Administrative Decisions (Effect of International Instruments) Bill 1995
(Cth).
[111] Administrative
Decisions (Effect of International Instruments) Bill 1997
(Cth).
[112] See Senate Legal
and Constitutional Legislation Committee, Administrative Decisions (Effect of
International Instruments) Bill 1997, Senate Canberra
1997.
[113] House of
Representatives, Administrative Decisions (Effect of International Instruments)
Bill 1999, Explanatory Memorandum 1999 at
1.
[114] M Allars,
‘International Law and Administrative Discretion’ supra n
103 at 268.
[115] Section
3.
[116] Collins v State of
South Australia (unreported, Supreme Court of South Australia, Millhouse J,
25 June 1999).
[117] G Evans
supra n 87 at 239, stated that if
Teoh did not incorporate treaties through the back door, it had certainly
brought them “through the back gate as far as the back
garden”. See
also M Taggart, ‘Legitimate Expectations and Treaties in the High Court of
Australia’ (1996) 112 LQR 50 at 53; R Piotrowicz,
‘Unincorporated treaties in Australian law’ [1996] Public Law
190 at 192-3.
[118] Supra
n 58 at
304.
[119] See now Government
Response to the Senate Legal and Constitutional References Report ‘Trick
or Treaty? Commonwealth Power
to Make and Implement Treaties’, tabled in
the Senate on 2 May 1996.
[120]
See, eg, Polites v Commonwealth [1945] HCA 3; (1945) 70 CLR 60 at 68-9, 77,
80-1.
[121] (1974) 48 ALJR 132
at 135.
[122] [1977] HCA 10; (1977) 139 CLR
28 at 43-4.
[123] Supra
n 8 at
306.
[124] Ibid at
348-9.
[125] (1992) 176 CLR
1.
[126] Ibid at 38 per
Brennan, Deane and Dawson
JJ.
[127] With whom Gaudron J
agreed on this point.
[128]
See R v Secretary of State for the Home Department; ex parte Brind
[1991] UKHL 4; [1991] 1 AC 696 at 747-8 per Lord
Bridge.
[129] Supra n
1 at 287, and see 315 per McHugh
J.
[130] Ibid at
287-8.
[131] [1998] HCA 22; (1998) 152 ALR
540.
[132] Ibid at
599.
[133] Potter v
Minahan [1908] HCA 63; (1908) 7 CLR 277 at 304; Re Bolton; ex parte Beane [1987] HCA 12; (1987) 162
CLR 514 at 523 per Brennan J; Australian Capital Television Pty Ltd v
Commonwealth [1992] HCA 45; (1992) 177 CLR 106 at 183 per Dawson J; Nationwide News v
Wills [1992] HCA 46; (1992) 177 CLR 1 at 43 per Brennan
J.
[134] H Lauterpacht,
‘Is International Law a Part of the Law of England’ (1939) 25
Transcripts of the Grotius Society 51 at
58.
[135] [1997] HCA 38; (1997) 147 ALR
42.
[136] Ibid at
147.
[137] See also Senate
Legal and Constitutional References Committee, Trick or Treaty? Commonwealth
Power to Make and Implement Treaties, Senate Canberra 1995 at
93-4.
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