Lacey, Wendy --- "In the Wake of Teoh: Finding an Appropriate Government Response" [2001] FedLawRw 10; (2001) 29(2) Federal Law Review 219
* BA (Hons) LLB (Hons) (Tas), PhD Candidate, University of Tasmania. The author would like to acknowledge the kind assistance of Professor Ryszard Piotrowicz, Mr Rick Snell and Mr Michael Stokes in offering comments on an earlier draft of this article[.]
1 Mabo v Queensland [No.2] (1992) 175 CLR 1.
[2] Wik Peoples v Queensland (1996) 187 CLR 1.
[3] Minister for Immigration & Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 ('Teoh').
[4] Administrative Decisions (Effect of International Instruments) Bill 1995, Administrative Decisions (Effect of International Instruments) Bill 1997, Administrative Decisions (Effect of International Instruments) Bill 1999.
[5] Administrative Decisions (Effect of International Instruments) Act 1995 (SA).
[6] Gareth Evans and Michael Lavarch, 'International Treaties and the High Court Decision in Teoh', Joint Statement by the Minister for Foreign Affairs and the Attorney General, May 10 1995, A Downer, 'Executive Statement on the Effect of Treaties in Administrative Decision-Making' (1997) 8 Public Law Review 120. See also the 'Executive Statements' issued by the South Australian and Western Australian Governments, (1996) 17 Australian Yearbook of International Law 554.
[7] Leslie Katz, 'A Teoh FAQ' [1998] AIAdminLawF 1; (1998) 16 AIAL Forum 1; Anne Twomey, 'Minister for Immigration and Ethnic Affairs v Teoh' (1995) 23 Federal Law Review 348; Margaret Allars, 'One Small Step for Legal Doctrine, One Giant Leap Towards Integrity in Government: Teoh's Case and the Internationalisation of Administrative Law' (1995) 17 Sydney Law Review 202; S Sheridan, 'Legitimate Expectations: Where Does the Law Now Lie?' (1998) 87 Canberra Bulletin of Public Administration 125-133; Kristen Walker, 'Who's The Boss? The Judiciary, the Executive, the Parliament and the Protection of Human Rights' (1995) 25 Western Australian Law Review 238; Ryszard Piotrowicz, 'Unincorporated Treaties in Australian Law: The Official Response to the Teoh Decision' (1997) 71 Australian Law Journal 503; Ryszard Piotrowicz, 'Unincorporated Treaties in Australian law' (1996) Public Law 190; PW Perry, 'At the Intersection: Australian Law and International Law' (1997) 71 Australian Law Journal 841.
[8] It is doubtful whether the decision extends to administrative decisions made at the state level, at least in the context of legitimate expectations arising out of the act of ratification (an exclusive act of the federal executive). However, the relevance of international instruments may arise on the basis of procedural fairness or other common law principles applicable to administrative decisions made at the state level. South Australian legislation is premised on the fact that Teoh may apply within the States, and precludes any means by which international instruments may affect a decision, with the exception of instances where a decision-maker has regard to the instrument as a matter relevant: Administrative Decisions (Effect of International Instruments) Act 1995 (SA) s 3. On the question of whether Teoh even applies to administrative decisions made at state level see also, Kristen Walker, 'Treaties and The Internationalisation of Australian Law', in Cheryl Saunders (ed), Courts of Final Jurisdiction: The Mason Court in Australia (1996) 224.
[9] Teoh [1995] HCA 20; (1995) 183 CLR 273, 291 (Mason CJ and Deane J).
[10] Concluding Observations of the Human Rights Committee: Australia. 28/07/2000. CCPR/CO/69/AUS.
[11] The 1997 and 1999 Bills are exactly the same. The 1995 Bill (introduced during Labor's term in office) was more detailed in its references to the exclusion of accepted uses of international instruments in domestic law (clause 6), and of the availability of remedies or redress for alleged breaches of Australia's international obligations (clause 7). The 1995 Bill did not, however, include provision for excluding the operation of its operative clause where state enactments applied to decisions at the state level (as was provided under clause 6 of the 1997 and 1999 Bills).
[12] A reference was made to the Senate Legal and Constitutional References Committee on December 8, 1994, to inquire into the Commonwealth's treaty-making and external affairs powers. For the Final Report see, Trick or Treaty? Commonwealth Power to make and Implement Treaties, Report by the Senate Legal and Constitutional References Committee, November 1995.
[13] Nicholas Toonen v Australia, Communication No. 488/1992: Australia. 04/04/94. CCPR/C/50/D/488/1992 ('Toonen').
[14] For a detailed analysis of the issues raised in Toonen, see Sarah Joseph, 'Gay Rights Under the ICCPR: Commentary on Toonen v Australia' [1994] UTasLawRw 18; (1994) 13 University of Tasmania Law Review 392-411; Wayne Morgan, 'Identifying Evil for What It Is: Tasmania, Sexual Perversity and the United Nations' [1994] MelbULawRw 10; (1994) 19 Melbourne University Law Review 740.
[15] See for example, Cheryl Saunders, 'The External Affairs Power in the Australian Constitution' (1994) 24 International Law News 36-40; DR Rothwell, 'The High Court and the External Affairs Power: A Consideration of its Outer and Inner Limits' [1993] AdelLawRw 9; (1993) 15 Adelaide Law Review 209-240; RD Lumb, 'The External Affairs Power and Constitutional Reform' (1988) 62 Australian Law Journal 679-689.
[16] See for example, Katz, above n 7, 1-14; Twomey, above n 7, 348-361; Allars, above n 7, 202-241; Sheridan, above n 7, 125-133; Walker, above n 7, 238-254; Piotrowicz (1997), above n 7, 503-506; Piotrowicz (1996), above n 7, 190-195; Perry, above n 7, 841-859.
[17] Teoh [1995] HCA 20; (1995) 183 CLR 273, 286-287 (Mason CJ and Deane J).
[18] Ibid, 287 (relying on the decisions in Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1, 38, and Polites v Commonwealth [1945] HCA 3; (1945) 70 CLR 60, 68-69, 77, 80-81.
[19] Teoh [1995] HCA 20; (1995) 183 CLR 273, 288 (Mason CJ and Deane J) (relying on the decisions in Mabo v Queensland [No.2] (1992) 175 CLR 1, 42, and Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, 321, 360).
[20] Ibid, 288.
[21] Ibid.
[22] Schmidt v Secretary of State for Home Affairs [1969] 2 Ch 149, (Lord Denning); Heatley v Tasmanian Racing and Gaming Commission [1977] HCA 39; (1977) 137 CLR 487; FAI Insurances Ltd v Winnecke (1982) 151 CLR 342; Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629; Council of Civil Service Unions v Minister for the Civil Service (GCHQ) [1985] AC 374; Haoucher v Minister for Immigration and Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648.
[23] [1992] FCA 566; (1992) 37 FCR 298.
[25] Minister for Foreign Affairs and Trade v Magno [1992] FCA 566; (1992) 37 FCR 298, 343; Tavita v Minister for Immigration [1994] 2 NZLR 257, 266.
[26] Teoh [1995] HCA 20; (1995) 183 CLR 273, 291 (Mason CJ and Deane J).
[27] Ibid, 291-292.
[28] Allars, above n 7, 224-225.
[29] Senate Legal and Constitutional References Committee, Submissions to the Inquiry into the Administrative Decisions (Effect of International Instruments) Bill 1997 (1997) (hereinafter referred to as Submissions), Volume 2, Submissions No.41, 216. See also, Darryl Williams, 'International Law and Responsible Engagement', ANSZIL-ASIL Conference, Keynote Address, Australian National University, 29 June 2000 (copy on file with author).
[30] Allars, above n 7, 231.
[31] Submissions, Vol.2, No.41 216. See also Administrative Decisions (Effect of International Instruments) Bill 1997, Explanatory Memorandum.
[32] Gareth Evans and Michael Lavarch, 'International Treaties and the High Court Decision in Teoh' Joint Statement by the Minister for Foreign Affairs and the Attorney-General, 10 May 1995.
[33] Report of the Senate Legal and Constitutional Legislation Committee, Administrative Decisions (Effect of International Instruments) 1995, tabled on 28 September 1995.
[34] Downer, above n 6.
[35] Report of the Senate Legal and Constitutional Legislation Committee, Administrative Decisions (Effect of International Instruments) Bill 1997, tabled on 20 October 1997.
[36] See Robert McClelland MHR, 'Labor calls for greater certainty in implementation of international conventions', Press Release, 9 December 1999.
[37] Senate Daily Bills Update, as at COB 9 August 2001, available at <http://www.aph.gov.au/legis.htm> (21 August 2001).
[38] Williams, above n 23.
[39] Tien v Minister for Immigration and Multicultural Affairs [1998] FCA 1552; (1998) 53 ALD 32; Baldini v Minister for Immigration and Multicultural Affairs [2000] FCA 173 (25 February 2000).
[40] Allars, above n 7, 239-241; Katz, above n 7, 6-9; Piotrowicz (1997), above n 7, 503-506; Walker, above n 7 242; Sheridan, above n 7, 130-131.
[42] Re Yad Ram and Department of Immigration and Ethnic Affairs (1995) 22 AAR 372.
[43] (1996) 69 FCR 431, 437-438.
[44] Allars, above n 7, 233.
[45] Ibid.
[46] [1998] FCA 1552; (1998) 53 ALD 32.
[47] [1998] FCA 1552; (1998) 53 ALD 32, 54.
[48] (1996) 69 FCR 431, 437-438.
[49] [1998] FCA 1552; (1998) 53 ALD 32, 56.
[50] [2000] FCA 173 (25 February 2000).
[51] Ibid [13].
[52] Ibid.
[53] Ibid.
[54] [1998] FCA 1552; (1998) 53 ALD 32, 56.
[55] [2000] FCA 173 (25 February 2000) [30].
[56] Ibid.
[57] To employ the words of Mason CJ and Deane J in Teoh. See also, Hui v Minister for Immigration and Multicultural Affairs [1999] FCA 985, (21 July 1999) [9], (Carr J).
[58] Cheryl Saunders, 'Articles of Faith or Lucky Breaks? The Constitutional Law of International Agreements in Australia' [1995] SydLawRw 14; (1995) 17 Sydney Law Review 150, 152.
[59] Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168; Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1; Richardson v Forestry Commission of Tasmania [1988] HCA 10; (1988) 164 CLR 261; Queensland v Commonwealth [1989] HCA 36; (1989) 167 CLR 232; Polyukhovich v Commonwealth [1991] HCA 32; (1991) 172 CLR 501; Horta v Commonwealth [1994] HCA 32; (1994) 181 CLR 183.
[60] Australian Constitutional Convention, Proceedings, Adelaide (1983) and Brisbane (1985); Constitutional Commission (1984) Final Report Vol II (1985); Trick or Treaty? Commonwealth Power to Make and Implement Treaties, Report by the Senate Legal and Constitutional References Committee, November 1985, 85.
[61] This framework was established under the principles and procedures for Commonwealth-State Consultation on Treaties, January 1, 1992. This framework was amended as part of the Federal Government's reforms to the treaty process in 1996, which included the establishment of a Treaties Council as an adjunct to the Council of Australian Governments (COAG): see Commonwealth, Parliamentary Debates, House of Representatives, 2 May 1996, 233. The former Principles and Procedures have been replaced by a revised framework under the Principles and Procedures for Commonwealth-State Consultation on Treaties (1997) 8 Public Law Review 116-120.
[62] Nicholas Toonen v Australia, Communication No. 488/1992: Australia. 04/04/94. CCPR/C/50/D/488/1992.
[63] Announced in a Ministerial Statement by the Minister for Foreign Affairs, the Hon. Alexander Downer MHR, Commonwealth, Parliamentary Debates, House of Representatives, , May 2 1996, 231-235.
[64] The power to enter into treaties is a prerogative power of the Executive Council pursuant to section 61 of the Constitution: Barton v Commonwealth [1974] HCA 20; (1974-5) 131 CLR 477. The power to implement treaties is exercisable by the Commonwealth Parliament, falling within the more widely defined power of the Parliament to legislate with respect to 'external affairs' under section 51(xxxix) of the Constitution.
[65] Teoh [1995] HCA 20; (1995) 183 CLR 273; Dietrich v The Queen ([1992] HCA 57; 1992) 177 CLR 292, 305; Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168, 192-193, 211-212, 225, 253; New South Wales v Commonwealth [1975] HCA 58; (1975) 135 CLR 337.
[66] Saunders, above n 58, 174.
[67] Ibid, 174-175.
[68] See Anne Twomey, 'Treaty Making and Implementation in Australia' (1996) 7 Public Law Review 4.
[69] Trick or Treaty? Commonwealth Power to Make and Implement Treaties, Report by the Senate Legal and Constitutional References Committee, November 1995.
[70] Teoh [1995] HCA 20; (1995) 183 CLR 273, 287 (Mason CJ and Deane J).
[71] Ivan Shearer, 'The Growing Impact of International Law on Australian Domestic Law: Implications for the Procedures of Ratification and Parliamentary Scrutiny' (1995) 69 Australian Law Journal 404-407, 406-407.
[72] Saunders, writing in 1995 (and, thus, prior to the 1996 reforms), stated, '[m]ost notably, none of the proposals for a greater degree of parliamentary involvement in treaty-making refer to the direct incorporation of the treaties thus approved, which is a logical although not inevitable concomitant': Saunders, above n 58, 175.
[73] Teoh [1995] HCA 20; (1995) 183 CLR 273, 290-291 (Mason CJ and Deane J); Attorney-General (NSW) v Quin (1990) 176 CLR 1; see also Allars, above n 7, 231.
[74] Allars, ibid.
[75] See Sir Anthony Mason, 'The Influence of International and Transnational Law on Australian Municipal Law' (1996) 7 Public Law Review 20, 21-22.
[76] See the statements of Senator Helen Coonan, Joint Standing Committee on Treaties Report (JSCOT), Commonwealth, Parliamentary Debates, Senate, 30 August 1999, 7932-7933.
[77] As Twomey has observed, '[t]he question, ultimately, is whether the Executive commits itself when ratifying a treaty, or whether it commits Australia but excludes itself from any obligation to comply with the treaty?', in Twomey, above n 7, 353-354.
[78] Ivan Shearer, 'The Relationship Between International Law and Domestic Law', in Brian Opeskin and Don Rothwell (eds), International Law and Australian Federalism (1997) 34, 59.
[79] This compatibility was in fact acknowledged by the current Attorney-General, Daryl Williams in 'Australia's Treaty-Making Processes: The Coalition's Reform Proposals', in Phillip Alston and M Chiam (eds), Treaty-Making and Australia: Globalisation Versus Sovereignty? (1995) 194.
[80] Gareth Evans, 'The Impact of Internationalisation on Australian Law: A Commentary', The Mason Court and Beyond, Seminar, University of Melbourne, September 10, 1995 (copy on file with the author).
[81] Teoh [1995] HCA 20; (1995) 183 CLR 273, 291.
[82] Phillip Alston, 'Reform of Treaty-Making Processes: Form Over Substance', in Alston and Chiam (eds), n 66, 1.
[83] On this point see the preceding discussion, regarding an 'intermediate position', following the 1996 reforms, at 20-22.
[84] Parliament has the power to prescribe the rules of Commonwealth administrative law: section 51 (xxxix) and implied incidental powers; George Winterton 'Limits to the Use of the “Treaty Power”' in Alston and Chiam (eds), above n 79, 35. It may also be that Parliament has the power to negate the effect of Teoh based on the corollary of the power to implement treaties (ie the power to provide that a treaty will have no domestic legal effect): ibid.
[85] See Submissions to the Senate legal and Constitutional Legislation Committee: Administrative Decisions (Effect of International Instruments) Bill 1997 ('Submissions'), in particular Margaret Allars, Submission No.40, Vol.2, and John McMillan, Submission No.36, Vol.2.
[86] Submissions, Bill Campbell, Submission No.41, Vol.2, 216.
[87] Submissions, Margaret Allars, Submission No.40, Vol.2, 206.
[88] Submissions, John McMillan, Submission No.36, Vol.2, 177. That realistic and genuine consideration must be given to the merits of a case is supported by a long list of authority: Kahn v Minister for Immigration and Ethnic Affairs [1987] FCA 457; (1987) 14 ALD 291, 292 (Gummow J); Hindi v Minister for Immigration and Ethnic Affairs (1988) 91 ALR 586, 597; Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472, 483 (Gummow J); Surinakova v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 596; (1991) 33 FCR 87, 96 (Hill J); Mocan v Refugee Review Tribunal (1996) 42 ALD 24, 245 (Merkel J); Anthonypillai v Minister for Immigration and Multicultural Affairs [2000] FCA 1368, (27 September 2000) [17] (Merkel J); Tedella v Minister for Immigration and Multicultural Affairs [2000] FCA 1643 (11 October 2000); Ly v Minister for Immigration and Multicultural Affairs [2000] FCA 15 (12 January 2000).
[89] Submissions, John McMillan, Submission No.36, Vol.2, 177.
[90] Ibid.
[91] Teoh [1995] HCA 20; (1995) 183 CLR 273, 304-305.
[92] Ibid.
[93] Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40; (1986) 162 CLR 24, 41 (Mason J).
[94] [1990] HCA 22; (1990) 169 CLR 648.
[95] Submissions, Allars, Submission No.40, Vol.2, 207.
[96] Ibid, 205.
[97] Ibid.
[98] See Submissions, New South Wales Bar Association, Submission No.24, Vol.1, 103.
[99] Submissions, Bill Campbell, Submission No.41, Vol.2, 214.
[100] [1992] HCA 24; (1992) 176 CLR 239, 252; see also Katz, above n 7, 10.
[101] [1990] HCA 24; (1990) 171 CLR 1 at 17-18; see also Katz, above n 7, 10.
[102] [1992] HCA 24; (1992) 176 CLR 239, 252.
[103] See for example, the Attorney-General's comments made during the Bill's second reading speech: House of Representatives, Parliamentary Debates, June 25 1997, 6308.
[104] [1992] HCA 57; (1992) 177 CLR 292, 305-306.
[105] [1992] FCA 566; (1992) 37 FCR 298, 343.
[106] [1993] FamCA 103; (1993) 16 Fam LR 982, 998.
[107] [1995] HCA 20; (1995) 183 CLR 273, 301.
[108] Ibid, 317 (McHugh J).
[109] (1997) FLC 92 – 755, [10.20].
[110] Ibid. This view finds additional support in the judgment of Millhouse J in Collins v South Australia [1999] SASC 257 (25 June 1999) [31-36].
[111] General Comment 3, United Nations Human Rights Committee: 'Implementation at the National Level (Art.2)':31/07/81.CCPR General Comment 3 (Thirteenth Session 1981). See also, Submissions, Robert McCorquodale, Hilary Charlesworth and Peter Bailey, Submission No.26, Vol.1, 109.
[112] Ibid.
[113] Concluding Observations of the Human Rights Committee: Australia. 28/07/2000. CCPR/CO/69/AUS. See also, Submissions, Robert McCorquodale, Hilary Charlesworth and Peter Bailey, Submission No.26, Vol.1, 109.
[114] Ibid.
[115] Submissions, Robert McCorquodale, Hilary Charlesworth and Peter Bailey, Submission No.26, Vol.1, 109.
[116] Hilary Charlesworth, 'Australia's Split Personality: Implementation of Human Rights Obligations in Australia', in Alston and Chiam (eds), above n 79, 140.