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Last Updated: 26 November 2011
The End For Teoh? Re Minister for Immigration and Multicultural Affairs; Ex parteLam
Wendy
Lacey.[∗]
Citation
This paper was presented at the Constitutional Law
Conference, Art Gallery of New South Wales, Sydney, Friday 20 February 2004.
This
paper may also be referenced as [2011] UNSWLRS 46.
Abstract
It would appear from the title of the present paper
that the 1995 decision of the High Court in Minister for Immigration and
Ethnic Affairs v Teoh[1] has had
its day as one of the seminal cases in human rights and Australian public law.
In one respect, following the decision of
the Court last year in Re Minister
for Immigration and Multicultural Affairs; Ex parte
Lam,[2] that is true. We now can
say with some degree of certainty that the notion that legitimate expectations
may arise upon the executive’s
act of ratifying a treaty in international
law is likely to be overturned in any future case where the Court is presented
with an
opportunity to re-open that aspect of
Teoh.[3] However, I will
attempt to highlight in this paper how Teoh may continue to play a
significant role in future cases dealing with the interface between
international and domestic law, both through
the use of legitimate expectations
and otherwise.
It would appear from the title of the present
paper that the 1995 decision of the High Court in Minister for Immigration
and Ethnic Affairs v Teoh[4] has
had its day as one of the seminal cases in human rights and Australian public
law. In one respect, following the decision of
the Court last year in Re
Minister for Immigration and Multicultural Affairs; Ex parte
Lam,[5] that is true. We now can
say with some degree of certainty that the notion that legitimate expectations
may arise upon the executive’s
act of ratifying a treaty in international
law is likely to be overturned in any future case where the Court is presented
with an
opportunity to re-open that aspect of
Teoh.[6] However, I will
attempt to highlight in this paper how Teoh may continue to play a
significant role in future cases dealing with the interface between
international and domestic law, both through
the use of legitimate expectations
and otherwise.
The statement of Gummow J made during arguments in Lam
that his Honour could no longer continue to write judgments on things he did
not understand[7] gave a clear
indication of the unease felt among some members of the bench towards the
majority judgments in Teoh. Indeed, the intention of the Court to
consider Teoh despite the fact that neither counsel sought to raise the
case was patently clear from the transcript of proceedings. While McHugh
J’s dissenting opinion in Teoh has always been available as an
illustration of his Honour’s views on the subject, we may now add Justices
Gummow, Hayne and
Callinan as proponents of this narrower approach. The result
in Lam is a decision comprising 4 separate judgments, of which three
raise serious questions in rather lengthy obiter passages surrounding
the
principle established in Teoh.
While the ascendancy of the
approach taken by McHugh J in Teoh is the obvious development evident in
Lam, it is not the only development that must be considered in evaluating
the effect of the case. Principal among other recent developments
is the
approach of Gleeson CJ in cases including Plaintiff S157 v
Commonwealth[8] that anchors the
accepted principles on the domestic relevance of international law upon the rule
of law. In that case, Gleeson CJ
affirmed these principles in relation to the
interpretation of statutes in the following
manner:[9]
First, where legislation has been enacted pursuant to, or in contemplation of, the assumption of international obligations under a treaty or international convention, in cases of ambiguity a court should favour a construction which accords with Australia’s obligations.
Secondly, courts do not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unmistakeable and unambiguous language. General words will rarely be sufficient for that purpose. What courts will look for is a clear indication that the legislature has directed its attention to the rights and freedoms in question, and has consciously decided upon abrogation or curtailment. As Lord Hoffman recently pointed out in the United Kingdom, for parliament squarely to confront such an issue may involve a political cost, but in the absence of express language or necessary implication, even the most general words are taken to be ‘subject to the basic rights of the individual’.
Thirdly, the Australian Constitution is framed upon the assumption of the rule of law. Brennan J said:
Judicial review is neither more nor less than the enforcement of the rule of law over executive action; it is the means by which executive action is prevented from exceeding the powers and functions assigned to the executive by law and the interests of the individual are protected accordingly.
Notwithstanding the shift in support among
the present members of the High Court for the legitimate expectation identified
in Teoh, it is important to recognize the broader principles established
in Teoh that remain unscathed following the decision in Lam.
Teoh remains good authority on the well accepted principles that regulate
the reception of international law into the common law, and
upon the
interpretation of domestic statutes. In addition, the fact that several
questions remain regarding the extent to which the
Court is likely to question
the continuing role of legitimate expectations in general, will mean that
Teoh continues to be discussed in broader administrative law contexts.
Lam itself must be viewed in context, and in light of the fact
that the Gleeson Court is unquestionably a more formal and legalistic
court than
its predecessors. However, this fact only serves to highlight the traditionally
cautious approach that has been adopted
by successive High Courts on human
rights issues - an approach that must be considered alongside the trend for
human rights matters
to be highly politicized within
Australia.[10] As the writings of
Professor Hilary Charlesworth have
illustrated,[11] the politicization
of human rights owes much to the politics of federalism - marked by the bitter
constitutional battles of the 1980’s,
beginning with Koowarta v
Bjelke-Petersen in 1982.[12]
However the political fallout in the wake of both the decision in
Teoh,[13] and the decision of
the Human Rights Committee in the Toonen
case,[14] also serve to
highlight this trend, and of the role that issues of independence and national
sovereignty have played within it.
This politicization of human rights in
Australia has tended to fuel a perspective that the content of international
human rights instruments
are distinct and legally separate from Australian legal
standards and principles.[15] While
this view is also attributable to the dualist theory that applies in Australia
– that international law is not a part
of domestic law until validly
incorporated – it has also been fuelled by the politics surrounding human
rights protection.
As a consequence, the jurisprudence of Australian courts
dealing with the use of international law in developing domestic legal
principles
has been cautious. It reflects a conscious attempt by courts, and the
High Court in particular, to be concerned with questions of
legitimacy in
carrying out its judicial role.[16]
Even Teoh itself was limited in the extent to which it afforded
protection of human rights. At the recent conference celebrating the centenary
of the Court two papers served to illustrate the significance of the caution
taken by the High Court and which stems from the desire
to preserve the
legitimacy of judicial review. While Sir Gerard Brennan offered a detailed
account of the achievements of the Court
in cases that involved largely
incremental developments in the protection of human
rights,[17] Professor Hilary
Charlesworth was strong in her criticism of the judicial caution displayed in
the interpretation of constitutional
guarantees in
particular.[18]
In the
present paper, I intend to focus on only a limited number of issues that arise
from the decision in Lam. My analysis stems from the position that not
all is lost of the majority position taken in Teoh, just as all is not
lost for arguments to be raised that draw upon the relevance of international
human rights standards. My discussion
develops in two ways: that aspects of the
decision in Teoh remain good law; and that Lam merely reflects
part of a broader change in High Court jurisprudence that has forced
practitioners and commentators to clarify the
basis and structure of their
arguments that rely upon international standards. The conclusion is reached that
the potential significance
of international standards in domestic law has not
been fundamentally altered by changes to the membership of the bench, though it
has changed it to a degree. Recent changes have heralded an era in which human
rights lawyers must evaluate with some degree of rigour,
both the premises and
the practical instances in which human rights arguments can be made.
Of
the issues that I believe will come to be of particular interest in future
cases, included is the issue of ambiguity that forms
a requisite element of
accepted principles for the domestic use of international law in relation to
statutory interpretation. In
addition, questions surrounding the relationship
between international law and the Australian common law, and specifically the
role
of the doctrines of incorporation, transformation, and so-called
harmonization, are likely to arise for further clarification. With
regard to the
latter issue, it may well prove that the separate opinion of Gaudron J in
Teoh will assume a particular significance in future cases. In
considering these two subjects, the view is advanced in this paper that
Lam represents an opportunity for lawyers to reconsider and clearly
articulate the legal basis upon which they seek to rely upon international
standards, preferably beyond the tool of legitimate expectation. While the
questioning of Teoh was not comprehensive in Lam, and there
remains some scope for Teoh-like arguments to be developed, there may
actually be better reasons for attempting to develop arguments that lead to more
substantive
recognition of human rights than can be the case with legitimate
expectations, which offer protection in only a limited, procedural
sense.
The 1995 Decision in Minister for Immigration and Ethnic Affairs v Teoh[19]
The applicant in Teoh, had been subject to a
deportation order following a criminal conviction for importing heroin into
Australia. The facts and proceedings
of Teoh are outlined extensively by
commentators elsewhere,[20] and need
not be reproduced here. It may be stated, however, that Mr Teoh was essentially
the responsible parent for seven Australian-born
children (including Mr
Teoh’s biological and step-children). What is important in the present
context, however, is to revisit
the legal principles established in
Teoh’s case, and in particular, the dissenting view of McHugh J in
Teoh. Consequently, the separate judgment of Toohey J will not be
addressed in the present paper, and the decision of Gaudron J will
only be
addressed in the final section dedicated to the relationship between
international law and Australian common
law.[21]
At one level, the
majority of the High Court simply re-articulated the existing principles
regarding the legitimate use that may be
made of unincorporated international
treaties in Australian law. Thus, as Mason CJ and Deane J
stated:[22]
[T]he fact that the Convention has not been incorporated into Australian law does not mean that its ratification holds no significance for Australian law. Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia’s obligations under a treaty or international convention to which Australia is a party,[23] at least in those cases in which the legislation is enacted after, or in contemplation of, entry into, or ratification of, the relevant international instrument. That is because Parliament, prima facie, intends to give effect to Australia’s obligations under international law.
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.[24]
Their Honours also
referred to the accepted use that may be made of international instruments in
the development of the common
law:[25]
The provisions of an international convention to which Australia is a party, especially one which declares universal fundamental rights, may be used by the courts as a legitimate guide in developing the common law.[26] But the courts should act in this fashion with due circumspection when the Parliament itself has not seen fit to incorporate the provisions of a convention into our domestic law. Judicial development of the common law must not be seen as a backdoor means of importing an unincorporated convention into Australian law.
In these respects, the majority judgment was
uncontroversial. The principal legal controversy concerned the question of
whether ‘Australia’s
ratification of the Convention [on the Rights
of the Child] ... [could] give rise to a legitimate expectation that the
decision-maker
will exercise that discretion in conformity with the terms of the
Convention.’[27] The fact that
the majority of the Court, including Mason CJ and Deane J (together with Toohey
J, who delivered a separate judgment),
answered this question in the
affirmative, was what created the controversy surrounding the
decision.[28] In addressing the
question posed, the joint judgment offered the following reasoning:
[R]atification by Australia of an international convention is not to be dismissed as a merely platitudinous or ineffectual act,[29] 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[30] and treat the best interests of the children as “a primary consideration”. [emphasis added]
In relation to the expectation identified in
Teoh, the fact that an individual may not have been aware of the
Convention’s existence would not preclude the expectation from
arising.[31] For Mason CJ and Deane,
it was enough that the expectation was ‘reasonable in the sense that there
are adequate materials to
support
it’.[32] The effect of the
legitimate expectation was not to create a binding rule of law, whereby a
decision-maker was compelled to act in
conformity with the Convention. Such a
result would have involved the incorporation of the Convention ‘by the
backdoor’,
and would have linked the effect of the legitimate expectation
with substantive outcome, rather than with the procedures to be adopted.
This distinction is critical in administrative law, and stems from the
separation of powers in Australia. Judicial review of administrative
action by
the courts is limited to consideration of the legalities of decision-making,
rather than the actual merits of the case
– which is an administrative
function to be performed by the
executive.[33] Indeed, it is by
virtue of the existence of a constitutional separation of powers in Australia
that the decision in
Coughlan[34] stands at odds
with Australia’s constitutional framework, and is unlikely to be followed
here.
The actual effect of the legitimate expectation identified in
Teoh was not of this class of decision, however. It did not involve a
development of the law in conflict with the constitutional separation
of powers.
The effect of the legitimate expectation in Teoh’s case was limited
to a procedural guarantee, which was itself premised upon the right of the
decision-maker to act inconsistently
with a treaty obligation. Where a
decision-maker proposed to decide a matter inconsistent with a legitimate
expectation, procedural
fairness would require that any persons affected be
given notice and an adequate opportunity of presenting a case against such a
course of
action.[35]
However, in the
High Court’s decision in Teoh, Justice McHugh delivered a strong
dissenting judgment, that treated the legitimate expectation identified by the
majority as one
involving the substantive protection of the treaty, rather than
being concerned with procedural requirements. He began his discussion
of the
issue with the following
statements:[36]
In my opinion, no legitimate expectation arose in this case because: (1) the doctrine of legitimate expectations is concerned with procedural fairness and imposes no obligation on a decision-maker to give substantive protection to any right, benefit, privilege or matter that is the subject of a legitimate expectation; (2) the doctrine of legitimate expectations does not require a decision-maker to inform a person affected by a decision that he or she will not apply a rule when the decision-maker is not bound and has given no undertaking to apply that rule; (3) the ratification of the Convention did not give rise to any legitimate expectation that an application for resident status would be decided in accordance with Art 3.
Obviously the point from
which McHugh J departed was, therefore, entirely different from that of the
majority. From the very outset
then, they were approaching the question from
different perspectives. In his judgment, McHugh J also questioned several
aspects of
legitimate expectations. First, his Honour questioned the practical
role for the doctrine following the decision in Kioa v
West,[37] where the High Court
had adopted a broad approach to the types of interests sufficient to enliven
procedural fairness requirements.
While this is an accurate analysis of the
position since Kioa regarding what is referred to as the ‘threshold
test’, it is submitted that the doctrine of legitimate expectations must
still play a role in determining the content of procedural fairness requirements
in any given case.
The other criticism contained in McHugh J’s
judgment, concerned the objective nature of the expectation in Teoh. For
McHugh J, the subjective state of mind of an individual affected by a decision
should be treated as relevant to whether the
expectation is ‘objectively
reasonable’, as the following statement
indicates:[38]
It must be an expectation that is objectively reasonable for a person in the position of the claimant. But that does not mean that the state of mind of the person concerned is irrelevant. ... If a person does not have an expectation that he or she will enjoy a benefit or privilege or that a particular state of affairs will continue, no disappointment or injustice is suffered by that person if that benefit or privilege is discontinued. A person cannot lose an expectation that he or she does not hold.
Clearly, the
reasoning in HcHugh J’s dissenting judgment stands directly at odds with
that of the majority. However, following
changes in the membership of the High
Court since 1995, and with McHugh J being the only judge remaining from the
Teoh decision, Lam provided an opportunity to again test the
reasoning of the majority in that case. Though, as has been pointed out,
Teoh was not relied upon in argument (as no legitimate expectation was
premised upon the ratification of a treaty), in 2003 McHugh J found
himself on a
bench and among judges sympathetic to the views he had earlier expressed in
dissent. It is against this background,
that the decision in Lam must be
considered.
The Factual Background in Lam[39]
The case in Lam arose out of the fact that Mr Lam had had his
Transitional (Permanent) Visa cancelled in early 2001 and his deportation
ordered, following
a conviction for serious offences. Like many in this
situation, Mr Lam had established a family during his time in Australia, and
his
deportation would have either entailed relocating his Australian-born children
to another country, or Mr Lam being separated
from them. Consequently, the issue
of deportation upon the welfare of his two children was a central issue. Mr Lam,
the applicant,
was born in Vietnam but had arrived in Australia as a 13 year old
refugee in 1983. On arrival he was granted a Transitional (Permanent)
Visa,
which was cancelled on 23 January 2001 pursuant to a decision of the Minister
under s 501(2) of the Migration Act 1958 (Cth). The applicant had been
convicted of several criminal offences, the most serious of which had been
trafficking in heroin for
which Mr Lam had been sentenced to 8 years
imprisonment. As a consequence, the applicant had failed to meet the character
test contained
in s 501(6) of the Act, and became liable to
deportation.
The proceedings before the High Court involved an
application for orders of certiorari and prohibition under s 75(v) of the
Constitution, to quash the Minister’s decision and to prevent the Minister
from taking steps to deport Mr Lam. The major argument presented
by counsel for
the applicant involved an allegation of want of procedural fairness, based on
the failure of a Departmental Officer
to follow an announced procedure. The
relevant facts were as follows.
Mr Lam, although unmarried, was the
father of two girls, both of whom had been born in Australia in 1989 and 1993
respectively, and
who were Australian citizens. Mr Lam had been estranged from
the girls’ mother for some time, and the girls had been living
with
relatives for much of Mr Lam’s period of imprisonment. Mr Lam had entered
into another relationship with an Australian
woman and was engaged to be
married.
In September 2000 an officer of the Department of Immigration
and Multicultural Affairs had written to Mr Lam indicating that his
visa may be
liable to cancellation under s 501 of the Migration Act 1958 (Cth). In
the letter, details of the legislation had been set out, an opportunity for Mr
Lam to comment prior to any decision of
the Minister was given, and a list of
relevant matters to be taken into account in making a decision under s 501 was
set out. Those matters included ‘the best interests of any children with
whom you have an involvement’.
Mr Lam exercised his right to
comment on the matters relevant to the decision to be made, in what Gleeson CJ
referred to as a lengthy
submission ‘obviously prepared with skilled
assistance’.[40] The
applicant’s letter was dated 30 October 2000. On the matter relating to
his children, the applicant provided information
regarding his daughters and
their current circumstances, and advanced arguments as to why their interests
required that he not be
deported. These arguments included the fact that the
girls had no contact with people from Vietnam, that they were happily settled
in
Australia, that he planned to marry upon his release from prison, and that the
children would have to be cared for by the State
were he to be
deported.[41] Annexed to Mr
Lam’s letter, were letters from both his fiancée and from the
children’s carers, represented in
this case by a letter from Ms Tran. The
letter from the carer supported the facts raised in Mr Lam’s letter
regarding the children’s
circumstances, and his arguments related to his
deportation. In particular, the letter indicated that the welfare of the
children
would be best served in the long term if the children were cared for by
Mr Lam and his fiancée.
On 7 November 2000, an officer of the
‘Character Assessment Unit’ within the Department wrote to Mr Lam,
stating the following:
The United Nations Convention on the Rights of the Child provides that in all actions concerning children, the best interests of the children shall be a primary consideration.
Would you therefore kindly provide the full name, address and telephone number of the children’s carers. The Department wishes to contact them in order to assess your relationship with the children, and the possible effects on them of a decision to cancel your visa.
Would you please provide the full contact details of the mother of the children as well.
Though Mr Lam replied with the appropriate
information, the Department chose not to take any steps to contact the
children’s
carers, opting to prepare a document for the Minister on the
information already in their possession. No problems arose in relation
to the
contents of this document, only in relation to the Department’s failure to
contact the carer of the children. Because
of this it was argued that procedural
fairness was not provided, as Mr Lam had not been informed of the decision not
to contact the
carer. This was argued despite the fact that no evidence was
directly led indicating that Mr Lam ‘was misled into taking or
failing to
take some step, or deprived of an opportunity to advance his case in some
way’.[42]
The
transcripts of the hearing before the High Court indicate that evidence
concerning the language background of the children and
of their capacity to
integrate into Vietnamese society could have been
introduced.[43] This evidence was
not directly used to argue a denial of procedural fairness. Rather, it was left
open for the Court to find that
the absence of an opportunity to present
further evidence was insufficient. The basic premise of the applicant’s
case was that Mr Lam was denied procedural
fairness, as he had a legitimate
expectation created by the letter of 7 November that was not fulfilled. While
the decision-maker
was not bound to comply in substance with that expectation,
the argument presented was that Mr Lam should have been notified of the
decision
not to follow through with the representation made to Mr Lam, affording him an
opportunity to respond.[44]
The Attack on Teoh in Lam
The principal issue for the four judges who
addressed Teoh directly in Lam (namely, McHugh & Gummow JJ,
Hayne J and Callinan J), was the issue of treaty ratification in the creation of
a legitimate expectation.
Justices McHugh and Gummow sought to distinguish the
expectation in Teoh from other ‘legitimate’ or
‘reasonable’ expectations, which included expectations involving
‘an actual
or conscious appreciation that a benefit or privilege is to be
conferred or a particular state of affairs will
continue’.[45] Their Honours
considered that:[46]
It is one thing for a court in an application for judicial review to form a view as to the expectations of Australians presenting themselves at the gates of football grounds and racecourses. It is quite another to take ratification of any convention as a “positive statement” made “to the Australian people” that the executive government will act in accordance with the convention and to treat the question of the extent to which such matters impinge upon the popular consciousness as beside the point.
Even more pointedly, their Honours made the following
claim:[47]
Haoucher does not stand beside Teoh. In the former case there was a statement made in the Parliament bearing immediately upon the exercise of the particular power in question. In Teoh there were in the Convention various general statements and there was no expression of intention by the executive government that they be given effect in the exercise of any powers conferred by the Act.
This point is directed to an issue of
controversy that arose in the aftermath of Teoh, namely, whether
Teoh involved the application of, or a significant extension of, the
decision in Haoucher.[48]
This issue draws on the categorisation of treaty ratification with a considered
statement of government policy.[49]
In Haoucher, a legitimate expectation was held to have existed on the
basis of the contents of a published policy
statement.[50] Commentators such as
Allars[51] and
Twomey[52] have argued that Teoh
is consistent with the earlier decision in Haoucher, on the basis
that the act of ratification is akin to a considered statement of policy. Other
commentators, such as Aronson and
Dyer,[53] have argued to the
contrary. It would appear that the present High Court have serious reservations
also in relation to that analogy.
Essentially the concern with
Teoh rested on the fact that a significant expectation could arise by
virtue of the act of ratification alone, and even in cases where
an individual
affected by a decision had no knowledge of the expectation itself. Their Honours
did, however, accept the more conventional
effects of an unincorporated treaty
in domestic law, including its role in assisting with statutory interpretation,
and where ratification
is coupled with an additional step in the conduct of
foreign affairs.[54] What ultimately
emerges as their major concern with the decision, is the fact that they
interpret it as introducing mandatory considerations
relevant to procedural
fairness, and consequently, as overstepping the legitimate bounds of judicial
review derived from the
Constitution.[55]
Justice
Hayne in his judgment also made several statements regarding the decision in
Teoh, although he stopped short of providing a detailed critique of the
case. He did, however, indicate that there were many issues relating
to
legitimate expectations generally that remained to be considered, and that the
application of the Teoh principle stood to be limited or confined in some
way. However, Hayne J was not as quick to reject the reasoning in Teoh
altogether, but left open the potential for its review and potential refinement
and limitation. On these points, his Honour made
the following
statements:[56]
[Used in its broader sense] legitimate expectation is a phrase which poses more questions than it answers. What is meant by “legitimate”? Is “expectation” a reference to some subjective state of mind or to a legally required standard of behaviour? If it is a reference to a state of mind, whose state of mind is relevant? How is it established? These are questions that invite close attention to what is meant by legitimate expectation and what exactly is its doctrinal purpose or basis. Not all are dealt with explicitly in Teoh. At the least they are questions which invite attention to the more fundamental question, posed by McHugh J in Teoh, of whether legitimate expectation still has a useful role to play in this field of discourse now that it has served its purpose in identifying those to whom procedural fairness must be given as including more than persons whose rights are affected.
And on the issue of Haoucher, Hayne J made
the following statement:
It may be that, for the reasons given by McHugh and Gummow JJ in this matter, Teoh cannot stand with the Court’s earlier decision in Haoucher v Minister for Immigration and Ethnic Affairs. It may also be that further consideration may have to be given to what was said in Teoh about the consequences which follow for domestic administrative decision-making from the ratification (but not enactment) of an international instrument [footnotes excluded].
Though Hayne J raised the presence of several
matters that still warrant further consideration, or perhaps more accurately,
matters
that the Court is eager to reconsider, he accepted that Lam was
not the case to do so. Accordingly, he refrained from offering lengthy obiter
comments and accepted that such matters ‘need
not be answered in this
case’.[57]
Justice
Callinan’s judgment bore many similarities to the joint judgment of McHugh
and Gummow JJ, particularly in the strength
of his attack on the decision in
Teoh, but also in the fact that only four paragraphs were actually
directed at determining the issues in question. Justice Callinan, however,
premised his attack on Teoh on the fact that he was not convinced by
counsel for the applicant that they did not need to rely on the decision as
authority. Callinan
J began this attack with the following
statements:[58]
In my opinion, the expression “legitimate expectation” is an unfortunate one, and apt to mislead. In the case of Teoh, it was, with respect, a complete misnomer. ... Moreover, the necessity for the invention of the doctrine is questionable. The law of natural justice has evolved without the need for recourse to any fiction of “legitimate expectation”.
While Callinan J clearly had concerns
with the underlying reasoning of the majority in Teoh, his major
criticism was against the ‘objective assessment’ of an expectation
espoused most strongly in the judgment
of Toohey J in that case. His rejection
of that approach was argued as
follows:[59]
I would observe with respect, that an “undertaking” presupposes a recipient of it, just as an “engendering” will be meaningless unless it has an effect upon the mind of someone.
It seems to me, with respect, that if a doctrine of “legitimate expectation” is to remain part of Australian law, it would be better if it were applied only in cases in which there is an actual expectation, or that at the very least a reasonable inference is available that had a party turned his or her mind consciously to the matter in circumstances only in which that person was likely to have done so, he or she would reasonably have believed and expected that certain procedures would be followed.
To give
further indication of the level of concern with issues surrounding the decision
in Teoh, Callinan J made the extraordinary statement that he could not
help but make further reservations regarding the decision, ‘before
moving
to the facts of this case’. Those further reservations related to the
relevance of unincorporated treaties in Teoh, and on this point Callinan
J’s view was stated as
follows:[60]
The fact remains that the Convention is not part of Australian law. ... In consequence, the view is open that for the Court to give the effect to the Convention that it did, was to elevate the Executive above the parliament. This in my opinion is the important question rather than whether the Executive act of ratification is, or is not to be described as platitudinous or ineffectual [footnotes excluded].
Before actually moving to the facts of
the case, Callinan J also confirmed his support for the views expressed by
McHugh and Gummow
JJ regarding the absence of substantive rights in relation to
legitimate expectations.
Evaluating the Implications Of Lam: What Remains of Teoh?
I have written a detailed critique of the
judgments in Lam that is not limited to the three judgments outlined
here, but includes references to the judgment of Gleeson
CJ.[61] That critique centred upon
issues of administrative law, and questioned the reasoning processes adopted in
each of the judgments.
Though I have not outlined the judgments comprehensively
here, there is discernible a trend towards using notions of detriment and
reliance when determining whether a denial of procedural fairness has occurred.
My view is that notions which are better suited to
a private law context, in
particular the law of estoppel, have only a limited role to play in public law.
In focussing upon whether
an individual has relied upon a representation to
their detriment, the Court developed an approach to the issue that creates
difficulties
for both decision-makers and judges. The decision-maker who intends
not to follow through with a representation made to an individual
must
themselves consider whether that will result in unfairness, and whether the
individual would be denied an opportunity to present
evidence that the
decision-maker has no awareness of. Similarly, the courts are seemingly drawn
into an assessment of the substantive
unfairness in the outcome, rather than an
assessment of the fairness of the procedures adopted.
Lam was not
exactly an ideal case. There was only limited additional evidence that could
have been presented had Mr Lam been notified
of the change in procedure. This
evidence was briefly alluded to during the hearing and related to the language
background of the
children, and how that would affect them upon their return to
Vietnam. In addition, counsel did not stress this evidence as he relied
upon the
absence of an opportunity to respond to the change in procedure, rather
than the opportunity to present specific new evidence. In my view the Court
should
have acknowledged the technical breach of procedural fairness, whilst
accepting that the facts did not support the granting of the
remedy.[62] By doing so, the Court
would have adopted a principle that decision-makers could have easily
implemented, and which would have avoided
instances where a decision-maker
wrongly assumes that proceeding inconsistently with a previous representation
would result in no
unfairness to an individual. Instead the Court found that no
breach of procedural fairness had occurred, as the applicant had not
relied upon
the representation made to his detriment.
The actual decision in
Lam has not been applied consistently in lower courts. The most common
application of the decision relates to the ‘practical injustice’
test adopted by Gleeson CJ in Lam, used for assessing whether procedural
fairness has been denied.[63] In
many cases the decision has been referred to but not applied, in some cases it
has been distinguished,[64] and in
one case the decision was ignored
altogether.[65] Thus, there remain
questions surrounding the application and utility of Lam from a general
administrative law perspective. Until the High Court clarifies the broader role
of legitimate expectations in administrative
law, as well as the relevance of
practical injustice to the questions of breach of procedural fairness and the
discretion to either
grant or deny a remedy, lower courts are likely to apply
the case in different ways.
Notwithstanding these concerns, it is clear
that ratification of a treaty will no longer found a legitimate expectation that
a decision-maker
will provide an opportunity to respond where they choose not to
act in accordance with its terms. The issue of objectively held expectations
was
not directly questioned in the decision of McHugh and Gummow JJ, was only
briefly referred to by Hayne, yet was directly questioned
by Callinan J. Thus,
on this latter point, the attack on Teoh was not consistent.
Consequently, the effect of the judgments in Lam must be seen to be
confined to essentially one primary issue – the act of ratification upon
the creation of legitimate expectations.
In addition to the accepted
interpretive principles articulated in Teoh, which have not been
undermined or questioned in Lam, there may be scope for arguing that
legitimate expectations arise where ratification is supplemented by additional
action.
The judgments in Lam clearly indicate that the High Court no longer accepts that ratification alone is sufficient to found a legitimate expectation. But will that also be the position in relation to any instruments that are ratified following consideration by the Joint Standing Committee on Treaties (JSCOT), where ratification is recommended by a joint committee of the federal parliament? What also of the instruments scheduled to the Human Rights and Equal Opportunity Commision Act 1986 (Cth)? In these instances, the argument that ratification of a treaty which, according to the present High Court, is a statement only to the international community, is modified by some form of action on the part of federal parliament. Thus, the criticism that Teoh cannot stand beside Haoucher in such instances is less persuasive. Such a view has already been taken by Federal Magistrate Driver in the case of Huynh v Minister for Immigration & Multicultural & Indigenous Affairs.[66]
Perhaps what ultimately remains as the most important question within
this context, and from a human rights perspective, is whether
the tool of
legitimate expectation should be defended as an appropriate vehicle for giving
at least procedural protection to human
rights. Perhaps Lam should be
seen as an opportunity for revisiting and strengthening the recognized
principles for resort to international standards
in Australian law. In doing so,
it may be that more substantive protection of rights is the outcome. In support
of such a view, Justice
Perry of the South Australian Supreme Court recently
made the following
statement:[67]
In any event, at its best, Teoh is relevant only to the process of administrative decision-making. Even in that area it is of limited value in terms of internationalizing the law in this country. Teoh has nothing to do with substantive as opposed to procedural rights, and it does not assist the courts as opposed to administrators in their decision-making. It does not provide a satisfactory platform from which to develop and expand the relationship between international human rights norms and the domestic law of Australia.
Even beyond the tool of legitimate expectation,
Teoh still represents a valuable authority on the relationship that
exists between international law and domestic law. In my view, two
aspects of
the decision in Teoh will continue to occupy a significant role in the
future development of the law in this area. First, the question surrounding the
level of ambiguity required before international law may be resorted to in the
interpretation of statutory provisions. In this sense,
the joint judgment of
Mason CJ and Deane J will be particularly relevant. Secondly, the alternative
approach adopted by Gaudron J
in Teoh, premised on the identification of
a particular obligation within the common law, rather than upon an expectation
arising through
treaty ratification, may also assume a particular significance
in future legal developments. I will address each of these in turn.
Ambiguity and the Interpretation of Statutes
It appears beyond doubt that an international
instrument will only be relevant to the interpretation of statutory provisions
where
ambiguity arises in the statute’s
terms.[68] On the issue of ambiguity
and statutory interpretation, the judgment of Mason CJ and Deane J in Teoh
displays a broad approach to identifying ambiguity within a statute, while
accepting that ambiguity was required. Their Honours offered
the following
comments on this issue:
Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia’s obligations under a treaty or international convention to which Australia is a party,[69] at least in those cases in which the legislation is enacted after, or in contemplation of, entry into, or ratification of, the relevant international instrument. That is because Parliament, prima facie, intends to give effect to Australia’s obligations under international law.
It is accepted that a statute is to be interpreted and applied, as far as its
language permits, so that it is conformity and not in
conflict with the
established rules of international
law.[70] 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 should be stated so as to
require the 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 indeed is 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.
This view
is not entirely inconsistent with that endorsed by Gleeson CJ in S157
(quoted above), although Gleeson CJ appears to adopt a somewhat narrower
approach to the issue of ambiguity. Justice Gummow, however,
when he was a
member of the Federal Court, addressed the issue of ambiguity in his decision in
Minister for Foreign Affairs & Trade v
Magno.[71] There, Gummow J
appears to have accepted that some ambiguity must be present, excepting cases
where the statute specifically refers
to a convention in its terms, or adopts
the nomenclature of the convention in anticipation of subsequent
ratification.[72]
The other
principle strongly endorsed by Gleeson CJ in S157, is that which derives
from the presumption adopted in cases such Wentworth v New South Wales Bar
Association,[73] and Coco v
R.[74] That fundamental rights
and freedoms will not be treated as having been removed or limited unless a
statute makes that intention
expressly clear, is well articulated in the case
law. It is strengthened, however, by Gleeson CJ’s strong commitment to the
rule of law, and that decision-makers will be confined to the proper scope of
their statutory powers. In a sense, human rights arguments,
at least for Gleeson
CJ, are embedded in principles which derive from the rule of
law.
Applying these principles to the case of administrative discretion,
the relevance of international law, and in particular, international
human
rights law, is evident. If discretion is seen as the absence of fixed
rules[75] and as the ability to
choose between different courses of
action,[76] discretionary powers are
prima facie ambiguous. Indeed, the very benefit of a discretionary power,
unconfined (or only narrowly or
partially confined) by fixed rules, is to assist
the decision-maker in providing ‘individualized
justice’[77] in different
cases. Discretionary powers, therefore, are particularly suited to a
construction that favours consideration of Australia’s
international
obligations. While some discretions are limited or guided by the identification
of relevant and/or irrelevant factors,
for parliament to remove fundamental
human rights considerations as relevant, it would appear that parliament is
required to provide
clear statutory language to that effect.
On this
analysis, the need for a legitimate expectation in the Teoh sense, is
reduced, if not eliminated altogether. Yet, the presence of a broad statutory
discretion may indicate a completely unconfined
power to be exercised within the
specific limits of the Act in question, and may go against the argument
presented. However, it is
submitted that the presence of ambiguity that arises
as a result of the grant of discretionary power, must be considered together
with the principle that fundamental rights and freedoms must be limited or
removed only by express and unambiguous statutory language.
Considered together,
a discretionary power granted by a statute to an administrative decision-maker
should be exercised in a manner
that involves consideration of any relevant
international legal obligation. In other words, the international instrument
becomes
a relevant consideration to the exercise of the discretion. This
approach differs slightly to that expressed by Gummow J in Magno, who
left it open for a decision-maker to take account of an international obligation
or agreement of their own initiative. He stated
at [para 18] as follows:
... difficult questions of administrative law and of judicial review arise where, whilst the international obligation or agreement in question 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 international agreement or obligation.
Gummow J does not address the
relationship between a discretionary power and the presence of ambiguity.
However, the statutory conferral
of a discretionary power can be carried out in
very clear terms. The conferral of such a power may, therefore, be completely
unambiguous.
However, the actual power granted and its exercise is, by its very
nature as a discretionary power, ambiguous. The level of ambiguity
may be wide
or narrow depending on the scope of the discretion and the extent to which its
exercise is regulated by the statute.
In this sense, the statement by Gummow J
can be distinguished in that it appears to only consider ambiguity in the narrow
sense of
conferral of discretionary power, and where a decision-maker considers
the international obligation as a relevant matter of their
own
initiative.
Gummow J did, however, consider the legal consequence of
misconstruing the international obligation, and whether it would amount to
an
error of law. His following comments identify the question as being
unresolved:
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 for judicial review will be narrowed. The question is unresolved ...
It is submitted
that if international human rights instruments are to be treated as relevant
considerations, the existing principles
regulating this area of administrative
law should be applied. Thus, the decision-maker is free to place as much weight
on the convention
as he or she determines, and the failure to take account of
the convention where relevant may amount to an error of law for which
a remedy
is available.[78]
In
proposing that there is scope for international human rights instruments to be
treated as containing obligations that are relevant
to the exercise of
administrative discretion, the list of instruments scheduled to the Human
Rights and Equal Opportunity Commission Act 1985 (Cth) must be considered.
While several international human rights instruments are either scheduled to or
have been declared
as relevant instruments under the Act, these instruments do
not form a direct part of Australian law in the sense of creating enforceable
rights. However, their actual legal status in domestic law is still to be
properly resolved by the
courts.[79]
On the importance
in Australian domestic law, of the scheduling of certain international
instruments to the Human Rights and Equal Opportunity Act 1986 (Cth),
Professor Ivan Shearer has made the comment that they may be taken as having
been ‘quasi-incorporated’. Shearer
bases this statement on the
following two factors:[80]
In the first place, the provisions of the instruments are schedules to a statute, and thus have an immediate visibility denied to other non-incorporated instruments. It is hard to resist the impression that, in this sense, Parliament intended them to have a privileged or special status so far as executive and judicial organs are concerned. Moreover, scheduling treaties to an Act is a frequently used way in which they are made part of Australian law in other cases. In the second place, international procedures for scrutiny of their application exist; under most conventions there are national reporting requirements and forums are established for the discussion of those reports.
In a similar vein, Sir Anthony Mason has made the
following statement:
[I]t might be suggested that a convention recognized in this way has a higher status than other non-implemented conventions, but in the absence of a definition of the expression ‘higher status’, it is not easy to attribute specific legal consequences to that higher status.
Recently, Justice Perry made the strong statement
that the time had arrived when Australian courts should begin to give effect to
the principles expressed in the ICCPR and other instruments scheduled to the
Human Rights and Equal Opportunity Commission Act 1986
(Cth).[81] However, he also
acknowledged that before the courts could do so the culture of the legal
profession would need to change –
by freeing itself of the ‘virulent
form of legal positivism’ that infects Australian
jurisprudence.[82]
In
addition, the availability of individual complaint mechanisms to Australians has
also been accepted as having significance in Australian
domestic law. One such
mechanism includes the right of individual communication permitted under the
First Optional Protocol to the
International Covenant on Civil and Political
Rights (ICCPR). In relation to this instrument, Brennan J made the following
comments
in Mabo v Queensland [No
2]:[83]
[T]he opening up of international remedies to individuals pursuant to Australia’s accession to the Optional Protocol to the ICCPR 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.
The question still
to be addressed by the High Court in this context, concerns the significance of
those treaties which are both scheduled
to, or have been declared as relevant
instruments under the HREOC Act, in addition to which Australians have been
provided with the
ability to make individual communications to international
bodies regarding cases of alleged breach or non-compliance. This list
narrows
the relevant human rights instruments to 2: the International Covenant on Civil
and Political Rights (ICCPR); and the Convention
on the Elimination of All Forms
of Racial Discrimination (CERD).[84]
Based on the statements in Mabo, Teoh and other cases, these human
rights instruments must be treated as having particular prominence among
international instruments that
may be legitimately used in Australian law. In
the context of relevant considerations and administrative and judicial
decision-making,
there appears to exist a strong argument for asserting that the
failure to consider these instruments where relevant could potentially
amount to
an error of law warranting the quashing of a decision upon
review.[85]
The above
discussion has concentrated on administrative discretion, and of the potential
use that may be made of international human
rights law in the exercise of
discretionary powers held by administrative decision-makers. Much of the same
approach can be taken
in respect of discretionary powers exercised by the
judiciary. There are particular distinctions between judicial and administrative
discretion that must be considered, however. Specifically, most administrative
discretion is conferred by way of statute, whereas
many important judicial
discretions arise at common law. In addition, judges regulate the exercise of
discretion through the development
of guidelines where parliament has not
already sought to regulate the exercise of the discretion itself. Administrative
decision-makers,
on the other hand, are under no obligation to develop
guidelines. Yet, as Brennan J pointed out in
Drake,[86] the development of
government policy plays a crucial role in the regulation of discretionary powers
by administrative officials.
There is an emerging jurisprudence in
Australia that has developed the notion that a judge’s discretion should
be exercised
in a manner consistent with international human rights law. Of the
Australian judges most prominent in this area, included are Justice
Kirby
(formerly Kirby P of the NSW Court of Appeal), Justice Perry and the former
Chief Justice of the ACT Supreme Court, Miles CJ
(formerly Miles J of the NSW
Court of Appeal).[87] That
discretions are either granted under statute or the common law means that the
accepted methods of resort to international law
can be used to accommodate use
of international standards in the exercise of discretion. As Kirby J stated in
AMS v AIF, with respect to discretionary powers granted under the
Family Law Act 1975
(Cth):[88]
I would certainly hold that a judge, exercising jurisdiction of the kind invoked here, may properly inform himself or herself of the general principles of relevant international law. This is especially so where those principles are stated in international human rights instruments to which Australia is a party.
The only question arises concerns the presence and
level of ambiguity required – an issue which has been discussed above.
International standards are potentially valuable sources for lawyers to
refer to when dealing with the exercise of a discretion by
a judge. They are
also potentially relevant to the exercise of administrative discretion in a
manner distinct from that articulated
by the High Court’s decision in
Teoh. Discretionary power is by its very nature unfixed by strict legal
rules, though it may be regulated by statute, or, in the case
of judicial
discretion, by judicially developed guidelines. Its presence brings with it
ambiguity, and thus a basis upon which international
legal standards may be
relevant to the interpretation and application of a statute, or of the
discretions developed at common law.
While parliament may interfere with the
exercise of discretion by removing the relevance of international instruments in
the exercise
of a discretion, their attempts to do so should be subject to the
principles re-articulated by Gleeson CJ earlier this year in
S157.
International Law and the Australian Common Law: The Decision of Justice Gaudron in Teoh
The decision in Lam leaves unscathed the
judgment of Gaudron J in Teoh. Following the decision in Lam,
therefore, the decision of Gaudron J may assume a significance that rests on the
alternative reasoning employed by her Honour in
comparison to the majority
judges. It raises the question of the relationship between the common law and
international legal standards
– an issue that has tended to be resolved
according to the doctrine of transformation, but which remains to be
authoritatively
examined by the present High Court. The most recent opportunity
presented to the Court to address this issue arose in the case of
Nulyarimma
v Thompson,[89] however, that
case was denied special leave to appeal to the High Court.
In
Teoh, Gaudron J adopted different reasoning to the judgments of Mason CJ
and Deane J, and Toohey J in that case, though her decision formed
part of the
majority. What is significant about Gaudron J’s reasoning, particularly in
light of Lam, is the limited importance that her Honour attached to the
act of treaty ratification and the doctrine of legitimate expectation.
In
addition, obiter comments concerning the existence of an obligation at common
law to have the best interests of vulnerable individuals,
specifically children,
made a primary consideration in the exercise of discretionary decisions, is also
significant. This latter
issue was addressed by Gaudron J through the notion
that obligations arise through
citizenship:[90]
I agree with Mason CJ and Deane J as to the status of the Convention in Australian law. However, I consider that the Convention is only of subsidiary significance in this case. What is significant is the status of the children as Australian citizens. Citizenship involves more than obligations on the part of the body politic of which he or she is a member. It involves obligations on the part of the body politic of which he or she is a member. It involves obligations on the part of the body politic to the individual, especially if the individual is in a position of vulnerability. And there are particular obligations to the child citizen in need of protection. So much was recognized as the duty of kings,[91] which gave rise to the parens patriae jurisdiction of the courts. No less is required of the government and the courts of a civilized democratic society.
In my view, it is arguable that citizenship carries with it a common law right on the part of children and their parents to have a child’s best interests taken into account, at least as a primary consideration, in all discretionary decisions by governments and government agencies which directly affect that child’s individual welfare, particularly decisions which affect children as dramatically and as fundamentally as those involved in this case. And it may be that, if there is a right of that kind, a decision-maker is required, at least in some circumstances, to initiate appropriate inquiries, as Carr and Lee JJ held [in the decision of the Full Court of the Federal Court] should have happened in this case. However, it was not argued that there is any such right and, thus, the case falls to be decided by reference to the requirements of natural justice.
The judgment of Gaudron J proceeded on the
basis that ratification of the Convention simply confirmed the significance of a
fundamental
human right already taken for granted within Australian
society.[92] Thus, the expectation
arose by virtue of the existence of a fundamental right at common law, rather
than as a consequence of ratification.
However, ratification would be
significant to confirm the existence of the right at common law, in cases where
there existed any
doubt as to its place in the common
law.[93] The content of the
particular right in issue was described by Gaudron J as
follows:[94]
Quite apart from the Convention or its ratification, any reasonable person who considered the matter would, in my view, assume that the best interests of the child would be a primary consideration in all administrative decisions which directly affect children as individuals and which have consequences for their future welfare. Further, they would assume or expect that the interests of the child would be taken into account in that way as a matter of course and without any need for the issue to be raised with the decision-maker. They would make that assumption or have that expectation because of the special vulnerability of children, particularly where the break-up of the family unit is, or may be, involved, and because of their expectation that a civilized society would be alert to its responsibilities to children who are, or may be, in need of protection.
What is interesting about the approach of Gaudron
J, is the subsidiary role that she attaches to international law. While her
Honour
identified the similarities between fundamental common law notions with
international human rights standards, the latter merely served
to reinforce the
former. In my view, this approach reflects one that has much to contribute to
the debate surrounding the reception
of international law into Australian law.
It avoids the perception that human rights are identified through a top-down
approach,
whereby international law appears to be superimposed upon the
Australian legal landscape. In reverses the conceptualization of the
issue, by
making the Australian common law the primary focus, and by using comparable
international standards to reinforce our understanding
of the principles and
guarantees contained within the common law. Consequently, Gaudron J adopts an
approach that avoids being directly
drawn into a reasoning process that is only
likely to enliven the political controversy that ordinarily pervades such
matters.
Conclusion
Although the decision
in Lam marks a shift in the perspective of the High Court majority, the
decision of Gleeson CJ in S157 marks a return to more conventional uses
of international law in Australian law, and to human rights arguments that are
solidly grounded
in the rule of law. While human rights lawyers may be required
to deal with technical and legalistic matters with this approach,
it may prove
to be a welcome opportunity to reconsider the premises which underlie the use of
international legal standards, and
to more fully explore their
potential.
Lam should not be seen as undermining the authority of
Teoh in its entirety. It is essentially limited to the issue of whether
the ratification of an unincorporated treaty can found a legitimate
expectation.
Other issues, including the notion of objective expectations, and the broader
question of the role that the doctrine
of legitimate expectations should
generally play in administrative law, are still open for narrowing in future
cases. However, the
decision in Lam leaves open the potential for
legitimate expectations to arise where ratification is accompanied by other
factors involving the parliament.
Perhaps more importantly though, it leaves
untouched the well accepted principles of the domestic use of international
legal standards,
and places a renewed emphasis upon the traditional means of
resorting to international law. In respect of both the question of ambiguity
in
the interpretation of statutes, as well as the approach of Gaudron J towards the
relationship between international law and the
common law, Teoh will
continue to play an important role in future cases.
...............
As a postscript to this discussion, I was recently informed by a
colleague involved in the Teoh litigation that Mr Teoh continues to
reside in Perth, Western Australia. Of Mr Teoh’s children, the so called
‘seven
little Australians’ within his care, only one continues to
reside at home, and two of the children are involved with their
father in a
successful sushi-making business in Perth. While the Court’s decision in
Lam may indeed mark the end of a central principle established in
Teoh, the 2003 decision remains of no consequence to the eight people
directly affected by the Court’s earlier judgment.
[∗] BA (Hons) LLB (Hons) (Tas); Lecturer in Law, University of Adelaide; PhD Candidate, University of Tasmania.
[1] [1995] HCA 20; (1995) 183 CLR 273.
[3] See also, Glen Cranwell, ‘Re Minister for Immigration and Multicultural Affairs; Ex parte Lam’ (2003) 10 Australian Journal of Administrative Law 208-213; Robert Orr & Susan Reye, ‘Treaties and Administrative Decision-Making: Teoh in Question’ (2003) 9 Litigation Notes 2-3.
[4] [1995] HCA 20; (1995) 183 CLR 273.
[6] See also, Glen Cranwell, ‘Re Minister for Immigration and Multicultural Affairs; Ex parte Lam’ (2003) 10 Australian Journal of Administrative Law 208-213; Robert Orr & Susan Reye, ‘Treaties and Administrative Decision-Making: Teoh in Question’ (2003) 9 Litigation Notes 2-3.
[7] Re MIMA; Ex parte Lam B33/2001 (24 June 2002) High Court of Australia Transcripts.
[9] Ibid at 34.
[10] On this issue, see the
detailed discussion provided in Hilary Charlesworth, Madelaine Chiam, Devika
Hovell and George Williams,
‘Deep Anxieties: Australia and the
International Legal Order’ 
[2003] SydLawRw 21 
; (2003) 25 Sydney Law Review 423-465.
[11] See, Hilary Charlesworth, ‘The Australian Reluctance About Rights’ (1993) 31 Osgoode Hall Law Journal 195-232; Hilary Charlesworth, ‘External Affairs Power’ (1995) 29 International Law News 43-46.
[12] [1982] HCA 27; (1982) 153 CLR 168. Other cases from that era include: Commonwealth v Tasmania (1983) 158 CLR 1; Richardson v Forestry Commission [1988] HCA 10; (1988) 164 CLR 261.
[13] See Wendy Lacey, ‘In The Wake Of Teoh: Finding An Appropriate Government Response’ (2001) 29 Federal Law Review 219-240.
[14] Nicholas Toonen v Australia, Communication No. 488/1992: Australia. 04/04/94. CCPR/C/50/D/488/1992. For a detailed analysis of the issues 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 Charlesworth et al, above n 7 at 424-425.
[16] Sir Anthony Mason, ‘International Law as a Source of Domestic Law’ in Brian R Opeskin & Donald R Rothwell, International Law and Australian Federalism, Melbourne University Press, Melbourne, 1997, at 220. See also the decision of Mason CJ and Deane J in Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 288: ‘A cautious approach to the development of the common law by reference to international conventions would be consistent with the approach which the courts have hitherto adopted to the development of the common law by reference to statutory policy and statutory materials.’
[17] Sir Gerard Brennan, ‘Human Rights, International Standards and the Protection of Minorities’, Paper presented at the High Court of Australia Centenary Conference, Hyatt Hotel Canberra, 11 October 2003.
[18] Hilary Charlesworth, ‘Human Rights, International Standards and the Protection of Minorities’, Paper presented at the High Court of Australia Centenary Conference, Hyatt Hotel Canberra, 11 October 2003.
[19] The following section closely follows an extract from an article entitled, ‘A Prelude To The Demise of Teoh: The High Court Decision in Re Minister for Immigration and Ethnic Affairs; Ex parte Lam’, to be published by the author in the March edition of the (2004) 26 Sydney Law Review.
[20] See for example, A Twomey, ‘Minister for Immigration and Ethnic Affairs v Teoh’ (1995) 23 Federal Law Review 348 at 348-361; M 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 at 202-241; L Katz, ‘A Teoh FAQ’ [1998] AIAdminLawF 1; (1998) 16 AIAL Forum 1 at 1-14; S Sheridan, ‘Legitimate Expectations: Where Does the Law Now Lie?’ (1998) 87 Canberra Bulletin of Public Administration 125 at 125-133; K Walker, ‘Who’s The Boss? The Judiciary, the Executive, the Parliament and the Protection of Human Rights’ (1995) 25 Western Australian Law Review 238 at 238-254; R Piotrowicz, ‘Unincorporated Treaties in Australian Law’ (1996) Public Law 160 at 503-506; PW Perry, ‘At the Intersection: Australian Law and International Law’ (1997) 71 Australian Law Journal 841 at 841-859.
[21] Toohey J was largely in agreement with Mason CJ and Deane J. Gaudron J took a different perspective, based on the fact that a legitimate expectation was not even needed. For Gaudron J, the common law contained a requirement that in all matters affecting children their welfare would be a primary consideration. For a discussion of these judgments see the article by M Allars, above n 17.
[22] [1995] HCA 20; (1995) 183 CLR 273 at 287.
[23] Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 38.
[24] Polites v The Commonwealth [1945] HCA 3; (1945) 70 CLR 60 at 68-69. 77, 80-81.
[25] [1995] HCA 20; (1995) 183 CLR 273 at 288.
[26] Mabo v Queensland [No 2] (1992) 175 CLR 1 at 42, per Brennan J (with whom Mason CJ and McHugh J agreed); Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 at 321, per Brennan J; at 360 per Toohey J; Jago v District Court (NSW) (1988) 12 NSWLR 558 at 569, per Kirby P; Derbyshire County Council v Times Newspapers Ltd [1992] UKHL 6; [1992] QB 770.
[27] [1995] HCA 20; (1995) 183 CLR 273 at 288.
[28] For an overview of the political and legal response to the Court’s decision, including 2 executive statements, 3 federal bills, 1 state Act, and various cases at the Federal Court level, see W Lacey, ‘In the Wake of Teoh: Finding an Appropriate Government Response’ (2001) 29 Federal Law Review 219-240.
[29] See Minister for Foreign Affairs and Trade v Magno [1992] FCA 566; (1992) 37 FCR 298 at 343; Tavita v Minister of Immigration [1994] 2 NZLR 257 at 266.
[30] cf Simsek v Macphee (1982) 148 CLR 636 at 644.
[31] [1995] HCA 20; (1995) 183 CLR 273 at 291.
[32] Ibid.
[33] As Brennan J stated in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36: ‘The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.’ His Honour continued at 38: ‘If judicial review were to trespass on the merits of the exercise of administrative power, it would put its own legitimacy at risk.’
[34] R v North and East Devon Health Authority; Ex parte Coughlan [1999] EWCA (Civ) 1871; [2001] QB 213; [2000] 3 All ER 850.
[35] [1995] HCA 20; (1995) 183 CLR 273 at 291-292.
[36] [1995] HCA 20; (1995) 183 CLR 273 at 305-306.
[37] [1985] HCA 81; (1985) 159 CLR 550.
[38] [1995] HCA 20; (1995) 183 CLR 273 at 314.
[39] The following section closely follows an extract from an article entitled, ‘A Prelude To The Demise of Teoh: The High Court Decision in Re Minister for Immigration and Ethnic Affairs; Ex parte Lam’, to be published by the author in the March edition of the (2004) 26 Sydney Law Review.
[40] (2003) 195 ALR 502, per Gleeson CJ at [7].
[41] Ibid.
[42] Ibid at [20].
[43] See, Re MIMA; Ex parte Lam B33/2001 (24 June 2002) High Court of Australia Transcripts.
[44] Ibid at [23].
[45] Ibid at [91].
[46] Ibid at [95].
[47] Ibid at [96].
[48] Haoucher v Minister for Immigration and Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648. For an analysis of that controversy see: M Allars, ‘One Small Step for Legal Doctrine, One Giant Leap Towards Integrity in Government: Teoh’s Case and the Internationalisation of Administrative Law’ [1995] SydLawRw 16; (1995) 17 Sydney Law Review 204; K Walker & P Mathew, ‘Minister for Immigration v Ah Hin Teoh’ [1995] MelbULawRw 16; (1995) 20 Melbourne University Law Review 236; M Aronson & B Dyer, Judicial Review of Administrative Action, LBC Information Services, Sydney, 2000 at 327-328.
[49] See M Allars, above n 17 at 224-225; M Aronson & B Dyer, Judicial Review of Administrative Action, LBC Information Services, Sydney, 2000 at 327-328.
[50] [1990] HCA 22; (1990) 169 CLR 648.
[51] M Allars, above n 17 at 224-225.
[52] A Twomey, ‘Minister for Immigration and Ethnic Affairs v Teoh’ (1995) 23 Federal Law Review 348 at 353-354.
[53] M Aronson & B Dyer, above n 46, at 328.
[54] Ibid at [100].
[55] Ibid at [101-102].
[56] Ibid at [121-122].
[57] Ibid at [122].
[58] Ibid at [140].
[59] Ibid at [144-145].
[60] Ibid at [147].
[61] This article entitled, ‘A Prelude To The Demise of Teoh: The High Court Decision in Re Minister for Immigration and Ethnic Affairs; Ex parte Lam’, is to be published in the March edition of the (2004) 26 Sydney Law Review.
[62] A similar approach has actually been adopted following the decision in Lam in the Full Court of the Federal Court, in the case of Dagli v Minister for Immigration & Multicultural and Indigenous Affairs [2003] FCAFC 298 (19 December 2003), per Lee, Goldberg and Weinberg JJ.
[63] See for example, Ongel v Minister for Immigration & Multicultural and Indigenous Affairs [2003] FCA 525 (30 May 2003); Untan v Minister for Immigration & Multicultural and Indigenous Affairs [2003] FCAFC 69 (11 April 2003); NAFF of 2002 v Minister for Immigration & Multicultural and Indigenous Affairs [2003] FCAFC 52 (31 March 2003).
[64] Dagli v Minister for Immigration & Multicultural and Indigenous Affairs [2003] FCAFC 298 (19 December 2003); Huynh v Minister for Immigration & Multicultural and Indigenous Affairs [2003] FMCA 207 (25 July 2003).
[65] Long v Minister for Immigration & Multicultural and Indigenous Affairs [2003] FCAFC 218 (18 September 2003).
[66] [2003] FMCA 207 (25 July 2003).
[67] Hon Justice John Perry, ‘The Use and Application of International Law in Australia and in Decision-Making’, Paper presented to the Law Society of South Australia, Adelaide, 29 October 2003, at 15.
[68] See, for example the decision of Gummow & Hayne JJ in Kartinyeri v Commonwealth [1998] HCA 22; (1998) 195 CLR 337 at 386.
[69] Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 38.
[70] Polites v The Commonwealth [1945] HCA 3; (1945) 70 CLR 60, 68-69, 77, 80-81.
[71] [1992] FCA 566; (1992) 37 FCR 298 at 303-305; [1992] FCA 566; (1992) 112 ALR 529 at 533-535.
[72] Ibid.
[73] [1992] HCA 24; (1992) 176 CLR 239 at 252.
[74] [1994] HCA 15; (1994) 179 CLR 427 at 437.
[75] See for example, Keith Hawkins, ‘The Use of Legal Discretion: Perspectives From Law and Social Science’ in Keith Hawkins, The Uses of Discretion, Clarendon Press, Oxford, 1992, at 11.
[76] de Smith in JE Evans (ed), Judicial Review of Administrative Action, 4th edn, London, 1980 at 278; Rosemary Pattenden, Judicial Discretion and Criminal Litigation, 2nd edn, Clarendon Press, Oxford, 1990, at 1-2; Greenawalt, ‘Discretion and Judicial Decision: The Elusive Quest for the Fetters That Bind Judges’ (1975) 75 Columbia Law Review 359 at 365.
[77] John Bell, Policy Arguments in Judicial Decisions, Clarendon Press, Oxford, 1983 at 3.
[78] See, for example, the judgment of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39.
[79] See the discussion of relevant cases in W Lacey, ‘In the Wake of Teoh: Finding an Appropriate Government Response’ (2001) 29 Federal Law Review 219-240.
[80] I A Shearer, ‘The Relationship Between International Law and Domestic Law’ in B R Opeskin & D R Rothwell (eds), International Law and Australian Federalism, Melbourne University Press 1997, at 56.
[81] Hon Justice John Perry, ‘The Use and Application of International Law in Australia and in Decision-Making’, Paper presented to the Law Society of South Australia, Adelaide, 29 October 2003, at 18.
[82] Ibid at 19.
[83] (1992) 175 CLR 1 at 42.
[84] Australia has not signed the Optional protocols under the Convention on the Elimination of All Forms of Discrimination (CEDAW), nor the Convention Against Torture (CAT).
[85] Thus, these instruments would be seen to reflect relevant considerations that a decision-maker was bound to take into account in the sense identified by Mason J in Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39.
[86] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 per Brennan J.
[88] AMS v AIF (1999) 199 CLR 160 per Kirby J at 218.
[89] [1999] FCA 1192; (1999) 96 FCR 153.
[90] [1995] HCA 20; (1995) 183 CLR 273, per Gaudron J at 304.
[91] See, in relation to the “direct responsibility of the Crown” which founds the “parens patriae” jurisdiction originally conferred on the English Court of Chancery, Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) [1992] HCA 15; (1992) 175 CLR 218 at 258-259 and the cases there cited; cf at 279-280. See, in relation to the paramountcy of the child’s welfare in the exercise of that jurisdiction, Marion’s Case, at 292-293 and the cases there cited.
[92] [1995] HCA 20; (1995) 183 CLR 273 at 304-305.
[93] [1995] HCA 20; (1995) 183 CLR 273 at 305.
[94] [1995] HCA 20; (1995) 183 CLR 273 at 304.
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