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Australian Year Book of International Law |
Gavan Griffith[∗] and Carolyn Evans[∗∗]
The Minister for Immigration and Ethnic Affairs v Teoh[1]
(Teoh) was one of those High Court decisions taken to the streets. What was, on reflection, an unexceptional, even conservative, decision, ignited a fierce political debate. A significant judicial step towards domestic recognition of the effect of Australia’s international obligations was condemned by the government and the Opposition of the day as impractical and an unmandated interference in the democratic processes. The emerging debate has exposed competing visions of the role of international law in Australia.[2]
After a summary of Teoh and the executive and attempted legislative responses to it, four competing visions of international law are examined. A more positive and mature attitude to the reception of international law norms is proposed. The experience of India, Canada, New Zealand and the United Kingdom makes it plain that local anxieties about the reception of international law are misplaced. It is concluded that Teoh is merely a modest step towards assimilation of international standards and norms in the development of domestic common law.
Mr Teoh was a Malaysian citizen who came to Australia in 1988 on a temporary entry permit. Soon after his arrival he married Jean Helen Lim, an Australian citizen. At that time, Ms Lim had four children and she and the applicant had three further children together. Mr Teoh applied for permanent residency in Australia. In November 1999, before his application had been determined, he was found guilty of being involved in the importation of heroin and possession of heroin. He was sentenced to six years’ imprisonment. In January 1991 Mr Teoh’s application for permanent residency was refused by a delegate of the Minister on the grounds that Mr Teoh was not of good character because, inter alia, of his conviction for drug offences.[3]
Mr Teoh applied to have the decision reviewed by the Immigration Review Panel. The Panel acknowledged that ‘Ms Teoh and her family [were] facing a very bleak and difficult future’ if residency was refused, but held that this was not enough to justify a waiver of the policy of refusing resident status to people with serious criminal convictions.[4] This decision was upheld by French J in the Federal Court, but overturned by the Full Federal Court.[5] In the Full Federal Court, Mr Teoh claimed that the decision-maker had failed properly to take into account as a primary consideration the damage that would be caused to his children if he were to be deported.[6] This test was derived from article 3 of the Convention on the Rights of the Child 1989 (CROC).[7] The Full Court upheld this claim.
The Minister’s appeal to the High Court was dismissed on 7 April 1995. In a joint judgment, Mason CJ and Deane J, with whom Toohey[8] and Gaudron JJ[9] agreed (McHugh J dissenting), held that international conventions that were not incorporated into Australian law could nevertheless give rise to a legitimate expectation that, in making administrative decisions, the government would either act in a manner consistent with its treaty obligations or give the person affected an opportunity to argue that the treaty provisions should be applied.[10] Such legitimate expectations existed if there were no ‘statutory or executive indications to the contrary’.[11] Thus the delegate of the Minister had erred in failing to make the interests of the child a ‘primary consideration’ as required under article 3 of the CROC, and in not giving Mr Teoh a chance to argue that the Convention should have been applied. It followed, therefore, that Mr Teoh had been denied procedural fairness and the decision of the delegate was set aside.[12]
Within a month of the judgment, the government delivered a formal response in the form of a Joint Statement by the Minister for Foreign Affairs and the Attorney-General.[13] The statement was intended to ‘clarify’ the government’s position in relation to Teoh and to eliminate international conventions as a basis for legitimate expectations in administrative decision-making. The statement explicitly relied on the dicta in the judgment of Mason CJ and Deane J that statutory or executive indications to the contrary may negate legitimate expectations that could otherwise arise from treaties.
[E]ntering into an international treaty is not reason for raising any expectation that government decision-makers will act in accordance with the treaty if the relevant provisions of that treaty have not been enacted into domestic Australian law. It is not legitimate, for the purpose of applying Australian law, to expect that the provisions of a treaty not incorporated by legislation should be applied by decision-makers. Any expectation that may arise does not provide a ground for review of a decision. This is so, both for existing treaties and for future treaties that Australia may join.[14]
The executive’s opposition to Teoh was maintained by the incoming Coalition government. On 25 February 1997, a second joint statement was issued by the current Minister for Foreign Affairs and the Attorney-General in substitution for the first in regard to future decision-making.[15] There are a number of differences between the two statements,[16] but the second statement maintains the aim of ensuring ‘that the executive act of entering into a treaty does not give rise to legitimate expectations in administrative law’. On behalf of the government it is stated that ‘the act of entering into a treaty does not give rise to legitimate expectations in administrative law which could form the basis for challenging any administrative decision made from today’. Although the legal effectiveness of the statement has been doubted[17] the Coalition government maintains that the statements have been effective.[18]
Courts and tribunals have not considered the statements an impediment to applying the legitimate expectations test from Teoh. The Full Federal Court applied Teoh in both Morales v Minister for Immigration and Multicultural Affairs[19] and Vaitaiki v Minister for Immigration and Ethnic Affairs[20] without addressing the issue of the joint statements. Hill J in Department of Ethnic Affairs v Ram[21] found that the effect of the joint ministerial statements may not have been effective in negating legitimate expectations, as the reference in Teoh to executive statements may have only referred to statements made before, or at the time of, ratification.[22] This approach has been followed in a number of Federal Court cases. [23] The Administrative Appeals Tribunal appears to be routinely applying Teoh without any reference to the joint statements.[24]
Each executive statement was expressed to be in anticipation of legislation to confirm that the ratification of treaties does not give rise to legitimate expectations. The Administrative Decisions (Effect of International Instruments) Bill was introduced in 1995. That Bill enjoyed bi-partisan support but lapsed with the calling of the 1996 election. A Bill of the same name and of similar scope was then introduced by the new government in 1997. It too lapsed when the 1998 election was called. Each of these Bills was extensively discussed by the Senate Legal and Constitutional Committee, which recommended that they be passed despite the considerable opposition to the Bills revealed by the Committee hearings.[25] In 1999 a Bill in the same form as the 1997 Bill was introduced. It passed the House of Representatives on 13 October 1999. In the Senate the second reading debate was adjourned on 5 April 2001. The Labor Party and the Australian Democrats opposed the Bill and it lapsed when the House of Representatives was dissolved on 8 October 2001.[26]
Clause 5 was the primary provision in each of the Bills.[27] Clause 5 of the 1999 Bill reads:
The fact that:
(a) Australia is bound by, or party to, a particular international instrument; or (b) an enactment reproduces or refers to a particular international instrument; does not give rise to a legitimate expectation of a kind that might provide a basis at law for invalidating or in any way changing the effect of an administrative decision.
The purpose of each of the Bills was stated to be to return the law to its pre-Teoh position.[28] There is no attempt to constrict the role of international law in the interpretation of statutes or the development of the common law.[29]
Teoh has given rise to examination of the scope and role of legitimate expectations in judicial review of administrative action.[30] Of wider import is the exposure of different visions of international law in the workings of municipal law. The internationalist sees international law as creating standards and obligations that are of domestic relevance. The traditionalist perceives international law as generally benign, but predominantly a matter for states and of minimal relevance to domestic law or individuals within Australia. A more limited vision has a rhetoric that approves of international law but also perceives it as a potential threat to other important values. The more conservative vision is overtly hostile to international law and seeks to minimise its domestic application.
This wide vision of international law sees adherence to international law as obligatory to the extent of mandating each arm of government to promote compliance with international law.[31] The first justification for this position is that international law is law and it produces binding, legal obligations on Australia. Hence international law should be obeyed out of a sense of legal obligation. The second justification is that the content of international laws often has some moral force and should be obeyed out of a sense of moral obligation. This is particularly so in the case of human rights law , where judges sometimes come close to the language of natural law when describing the importance of these rights.[32] While the two justifications are linked, they are distinct.
The joint judgment of the Chief Justice and Deane J in Teoh broadly reflects the view that compliance with international law is both legally and morally obligatory. The interpretative rule applied is that ambiguous statutes should be read so that they conform to rather than conflict with international obligations. This reflects respect for the legally obligatory nature of international treaties.[33] The judiciary assumes that parliament intends to take Australia’s international legal obligations seriously unless there is a clear indication to the contrary.[34]
The discussion of legitimate expectations in the joint judgment extends the same assumption to the executive:
[R]atification by Australia [of an international convention] is not to be dismissed as a merely platitudinous or ineffectual act, particularly when the instrument evidences internationally accepted standards to be applied by courts and administrative authorities in dealing with basic human rights affecting the family and children. Rather, ratification of a convention is a positive statement by the executive government of this country to the world and to the people of Australia that the executive government and its agencies will act in accordance with the Convention.[35]
At one level the obligation generated is legal as it is based on the ‘positive act’ of ratification of any convention, regardless of content. To determine otherwise would be to make ratification a ‘platitudinous or ineffectual act’. Yet this basic obligation is buttressed by reference to the moral nature of the particular obligation; in this case a widely accepted convention setting out the basic rights of children.[36]
Other decisions of the High Court dealing with the role of international law in domestic law also draw on both the legal and the moral obligation to comply with international law. In Mabo, Brennan J described international law as a ‘legitimate and important influence on the development of the common law’ and acknowledged that this is particularly the case when international law ‘declares the existence of universal human rights’.[37] In Newcrest Mining, Justice Kirby, a long-time supporter of the role of international law in Australia, found that ‘Australia’s Constitution, as the fundamental law of government in this country, accommodates itself to international law, including in so far as that law expresses basic rights.’[38]
This approach has its political analogues. The Australian Democrats have opposed each of the anti-Teoh Bills as undermining respect for international law,[39] and have proposed an amendment to the 1999 Bill to ensure that legitimate expectations can continue to arise from those conventions that are annexed to the Human Rights and Equal Opportunity Commission Act 1986 (Cth).[40]
Two potential conflicts arise from the emphasis that is given to human rights law within the obligation vision of international law. The first arises because international conventions deal with a wide range of issues other than human rights. Many of these conventions deal with facilitative and morally neutral matters that relate to issues such as the international regulation of air travel or the workings of the international postage system.[41] Other treaties may be based on values that believers in human rights often support, such as environmental protection[42] or nuclear non-proliferation.[43] There are also, however, a raft of conventions that cause unease among some proponents of human rights. International conventions and institutions that promote free-market economics (such as the International Monetary Fund (IMF) and the World Bank) have been the subject of criticism on human rights grounds.[44] Some human rights activists assert that international patent protections can restrict developing world access to pharmaceutical drugs.[45] This exposes the potential for conflict between the legal and the moral senses of obligation, of the sort acknowledged by Gaudron J in her judgment in Teoh when she gave the CROC a subsidiary role as merely ‘confirming the significance of the right [of the protection of children] within our society’.[46] She was willing to give the CROC some effect, but warned that it might be otherwise ‘in the case of a treaty or convention that is not in harmony with community values and expectations’.[47] In saying this, her Honour seemed to disclaim any sense of legal obligation and restricted her usage of international law to cases where it had a moral force.
The second source of conflict for the moral imperative vision of international law arises for judges. Judges who emphasise the importance of adherence to obligations (and to the rule of law more generally) in the international sphere, must act in accordance with the constitutional principles of the separation of powers and the democratic accountability of law-makers. Hence judges who are concerned not to usurp the parliamentary role are constrained by domestic, constitutional considerations in assimilating international law norms into Australian law. The joint judgment emphasised that the aim of Teoh was not to introduce international law by the ‘back-door’.[48]
The judicial role constrains even progressive judges to relatively modest steps towards incorporating international law into domestic law. The judicial deference to political responsibility results in a fairly weak role for international law in Australia. Indeed, this is illustrated by the outcome in Teoh: the controversy caused by the decision disguised the result that the substance of international law is not incorporated into municipal Australian law. All that was held was that there was a legitimate expectation that a certain procedure would be used, rather than that a particular outcome would be achieved.[49 ]Teoh did not create a substantive obligation to respect the internationally protected rights of the child.[50]
To this extent any judicial movement towards a vision of international law as obligatory is constrained by requirements of the separation of powers. In contrast, although the incorporation of international treaties into Australian law is perfectly compatible with the legislative role, governments have tended to reject the vision of international law as obligatory.
A more confined vision of international law is one based on traditional, positivist notions of states as the exclusive players in the development of international law. States create international law, and it is for them to determine whether international law should have any role in the domestic sphere. Penalties that may attach to acting in breach of a treaty are solely a matter for other states or international institutions. This approach was expressed by McHugh J in his dissenting judgment in Teoh:
The ratification of a treaty is not a statement to the national community. It is, by its very nature, a statement to the international community. The people of Australia may note the commitments of Australia in international law, but, by ratifying the Convention, the Executive Government does not give undertakings to its citizens or residents. The undertakings in the Convention are given to the other parties to the Convention.[51]
To an internationalist, this conservative view is based on outdated conceptions of international law as exclusively the domain of states and of treaties as simply contracts between the only legitimate players in the international realm.[52] Nonetheless, it is an approach that has resonated with successive governments. Attorney-General Evans asserted that ‘ratification is a statement to the international community to observe the treaty measures in place; it is not a statement to the national community’.[53] This limitation of the scope of international law was criticised by Sir Anthony Mason, after his retirement as Chief Justice, as ‘breathtaking’ in its scope and ‘quite unsupportable’[54] and his successor, Sir Gerard Brennan, has commented that international law has moved from its origins as primarily a vehicle for sovereign state interaction to one that sets ‘common standards to be implemented by nation States’.[55]
This vision of international law as purely a matter for governments rather than their people has influenced the Coalition government’s criticism of United Nations treaty bodies. The Prime Minister and the Foreign Minister have taken the United Nations treaty bodies to task for failing to take the submissions of democratically elected governments seriously.[56] At the level of the executive there is a clear view that non-governmental organisations should not intrude into a discussion about the obligations of democratic states such as Australia. [57] This attitude allows states to take the benefit of acting on the international stage without concerns of being exposed to international criticism or domestic constraint. When international law breaks these bounds then it often becomes perceived as threatening by politicians.
This third approach is ambivalent about the role of international law in Australian law and society. Its proponents see value in some international laws and are prepared to pay at least lip-service to the importance of human rights. International law is characterised, however, as potentially disruptive of the constitutional order and unmanageable in its consequences. While not denigrating the international order in its entirety, proponents of this view see international law as a force that needs to be kept under close control. They are suspicious of, or hostile towards, judges who relax those controls.[58]
This vision has characterised the response of the successive governments since Teoh. The current approach is to denigrate international law as unacceptable multilateralism. The obvious tensions between wishing to be seen to adhere to international law, whilst not wanting to be unduly constrained by it, is exposed in each of the joint statements and the successive Bills.[59] Although the first joint statement emphasised ‘that the Government remains fully committed to observing its treaty obligations’[60] and acknowledged that the ratification of a treaty is a message to the rest of the world that the obligations contained in the treaty either are, or will be, incorporated by legislation into domestic law, the second joint statement pointedly contained no such commitment or recognition of international obligations.[61] The 1997 and 1999 Bills, however, do briefly state in the preamble that, ‘Australia is fully committed to observing its obligations under international law’, but such apparently positive statements must be discounted as the purpose of both joint statements and the Bill is to overturn Teoh.
A key criticism of Teoh was that it was impractical and unworkable. The first joint statement alluded to the 920 treaties to which Australia is party and predicted administrative chaos if those treaties were allowed to remain the basis for legitimate expectations. Although it briefly acknowledges that only a small number of these treaties to which Australia was party may be the source of legitimate expectations, it argued:
[T]he High Court decision gives little if any guidance on how decision-makers are to determine which of those treaty provisions will be relevant and to what decisions the provisions might be relevant, and because of the wide range and large number of decisions potentially affected by the decision, a great deal of uncertainty has been introduced into government activity. It is not in anyone’s interests to allow such uncertainty to continue.[62]
The preamble to the 1999 Bill refers to the need for certainty in administrative decision-making: ‘Uncertainty is created by allowing decisions to be challenged on the ground that decision-makers did not properly give effect to such legitimate expectations.’ Of course, in this context certainty means that the original decision will stand, rather than any certainty in regard to the likelihood of a fair outcome.[63] At the judicial level, McHugh J expressed his concern for decision-makers in his dissenting judgment, when he described immediate compliance by decision-makers with conventions as ‘impracticable’ and requiring ‘many years of effort, education, and expenditure of resources’.[64]
The critical emphasis on the administrative unworkability of Teoh has subsided due to experience. Teoh has barely deflected the flow of executive action. Public servants required to pay some attention to international obligations have maintained sensible decision-making processes and coped with judicial review.[65] This experience is the reason given by Labor for changing its stance on the 1999 Bill and now, effectively, opposing it.[66]
The government also has moved away from arguments based on executive chaos and towards separation of powers arguments. These arguments characterise Teoh as a usurpation of the legislative function that allows the executive effectively to create law. This approach is untenable. Teoh does not create substantive rights in domestic law. It merely places some procedural constraints on federal government action that is inconsistent with Australia’s international obligations.[67] Even this is perceived as a potential threat to the separation of powers and to the federal balance of power. The preamble of the 1999 Bill states that it is the ‘role of Commonwealth, State and Territory legislatures to pass legislation in order to give effect to international instruments by which Australia is bound’.
The second joint statement makes clear that the government believes that the decision in Teoh ‘is not consistent with the proper role of Parliament in implementing treaties in Australia’.[68] This point was developed by Attorney-General Williams in his second reading speech for the 1999 Bill.[69] Yet the argument seems somewhat disingenuous. The second joint statement seeks to distinguish between legitimate expectations that are generated by government policy and those that are generated by entry into a treaty:[70] ‘The act of entering into a treaty is unlike the considered statements of public policy which previously had been held by the courts to give rise to a legitimate expectation in administrative law.’[71]
This statement suggests that in the area of ‘considered public policy’ it is appropriate for the executive to be able unilaterally to take actions that give rise to legitimate expectations.[72] Yet separation of powers arguments do not depend on the degree of thought that the executive has given to taking action or making a statement. Such an approach also creates the rather odd impression that, while policy making is an important matter, international obligations are entered into lightly.[73] Indeed, sometimes concerns about the separation of powers may be a façade to disguise other policy considerations. Outside of debates about international law, the executive is often not too concerned about the separation of powers between the legislature and the executive. [74]
In summary, the government’s expressions of concern about Teoh because of its effects on the separation of power, may be motivated by suspicion of international law itself and its role in Australian law.[75] International treaties are regularly described in parliamentary deliberations as vague and general.[76] Much the same complaint could surely be laid at the door of some policy declarations, and the Constitution, and even legislation as mundane as taxation laws. The suggestion is made in the debates that this vagueness allows High Court judges to collude with international law to disrupt, or even corrupt, the constitutional order. This vision of international law begins to merge with the vision of international law as subversion.
This most conservative approach repudiates the role and influence of international law on Australia. The importance of international law is denied and it is characterised as an interloper.[77] The proponents of this viewpoint are suspicious of multilateralism, embodied in its worst form in the United Nations organisation and its agencies, which are seen as subverting Australian democracy and sovereignty. The local agents of such internationalism in Australia are those, such as Mr Teoh, who ‘abuse’ the Australian legal system by claiming the protection of international rights, and the Australian judges who abandon their proper role in order to ‘legislate’ by reference to these rights. These views also have an unfortunate resonance in the wider Australian community.
This antipathy is illustrated by the fact that those politicians who have a commitment to international law feel the need to respond to community concerns about the role of international law in Australia. For example, shortly after Teoh, the Minister for Foreign Affairs Evans said:
Despite assertions from the radical right, a treaty is not an edict issuing forth from some unelected and unrepresentative world body and imposed on unwilling states. Nor is a treaty a secret agreement between Australia and the rest of the world designed to undermine federalism and the Australian Constitution.[78]
Other politicians played on these fears in the continuing parliamentary debates on Teoh by suggesting that international law is an alien system directed at subverting proper Australian values. In 1995 Mr Slipper MHR, for example, asserted that ‘we are in effect signing away our sovereignty when we are entering into treaties from which we are not able to escape’.[79] The present Attorney-General (then in Opposition), more moderately, accused the Labor government of entering into treaties ‘merely to ingratiate itself with other nations’.[80] Senator Abetz attacked both the CROC and the High Court’s application of it by arguing that Mr Teoh was
undoubtedly engaged as a merchant of death, trying to get heroin on the streets which has the potential to kill, and does kill, hundreds of Australian children and adults every year. And we have this perverse result from a High Court decision that says somebody that has put all these hundreds of children and adults at risk will be allowed to stay in Australia for the sake of his one child [sic].[81]
This approach of attacking international law by denigrating
those who benefit from it is commonplace. Hence, although a refugee is
entitled
under Australian law to remain in Australia, belittling descriptions of being
‘illegal’ are applied to all applicants
exercising their rights
under Australian law, regardless of their bona fides. Further, when
Labor
The influence of those who see international law in such negative terms is exposed in the justifications for legislation to quash Teoh. Mr McClelland said that it was needed to ‘take away apprehension, nervousness, anxiety — or even at the most extreme and paranoid example — a perception that there is some international plot going on’.[84] Mrs Irwin in the House of Representatives said that if treaties were to become laws then ‘those people fearful of world government or concerned that treaties were part of an international conspiracy would be justified. The Teoh decision has great potential to help in fuelling the notion, if not the reality, that we are no longer a sovereign state.’[85] Of course, such an insular approach to international law fails to recognise that many democratic and sovereign states, such as Switzerland [86] and the United States,[87] do allow international law to be directly incorporated into their legal systems.[88]
Yet even in the rhetoric of the radical right, there is an unintended conflict about international law. Those who attack international law in general, and the United Nations in particular,[89] often do so in the name of sovereignty and Australian independence.[90] What is ignored is the fact that Australian sovereignty and independence is itself underwritten by international law. The sovereign independence and equality of states is one of the fundamental principles on which international law is based. It plays a prominent role in the United Nations Charter.[91] The ability to enter into treaties and to play a part in the development of international law is an exercise of sovereignty.[92] The territorial integrity that is normally of great significance to those who see international law as a threat to Australian sovereignty is, in part, protected by the international prohibitions on the use of force,[93] the right to territorial integrity,[94] and by the international treaties that Australia has entered into with its allies.[95] As Attorney-General Lavarch pointed out in 1994, there were ‘no complaints about treaties eroding our sovereignty’ in regards to maritime agreements with other states or the claim of Australia’s 200 mile exclusive economic zone.[96] Critics of international law ignore these ‘useful’ manifestations of international law as protective of sovereignty. The assumption that Australia would somehow be freer and more sovereign in a world without international law fails to recognise the importance of that law in protecting Australian sovereignty.
The debate over the role of international law in Australia has been insular. International law plays a far weaker role in Australian law than it does in the law of most states. The reluctance of Australian courts to incorporate international norms into Australian law directly is part of the common law heritage. While most civil law states allow for the direct incorporation of treaty provisions into domestic law,[97] common law states (with the notable exception of the United States) have been unwilling to do so. An examination of the role of international law in India, Canada, New Zealand and the United Kingdom illustrates that Australia is in line with the international consensus on the appropriate role of treaties in domestic law.
The Supreme Court of India has taken a positive and far-reaching approach to the role of international law in the interpretation of constitutional and legislative provisions. The common law rule that legislation should be read in line with international obligations is well-accepted and applies in India. However, Indian case-law has fleshed out constitutional and legislative provisions in light of international norms almost to the point of direct incorporation. In a case that directly considered Teoh, the Court acknowledged that the concerns about executive usurpation of the legislative function had some force, but needed more detailed consideration in a later case:
For the present, it would suffice to state that the provisions of the covenant [on civil and political rights], which elucidate and go to effectuate the fundamental rights guaranteed by our Constitution, can certainly be relied upon by courts as facets of those fundamental rights.[98]
This developed into an even more radical position in a later case involving the sanctioning of an employee for sexual harassment. The Indian Supreme Court warned that the courts must ‘for ever remain alive to the international instruments and conventions and apply the same to a given case where there is no inconsistency between the international law norms and the domestic law occupying the field’.[99]
Also, the Supreme Court of India has been prepared to utilise a greater variety of international norms in a far wider range of cases than have the Australian courts. It considered international human rights law in cases dealing with rape by state employees.[100] It has drawn on international environmental standards derived from treaties and also from the Rio Conference, the New York Earth Summit, and General Assembly resolutions to develop the notion of a right to a healthy environment as an element of the constitutional right to life.[101 ]The International Labour Organization standards, the Universal Declaration of Human Rights, and the Convention on the Rights of the Child were applied in a case dealing with child labour.[102] The regular, robust use made of both hard and soft international norms by the Indian Supreme Court stands in stark contrast to the circumspect approach to international treaties adopted by the Australian High Court.
The Canadian Supreme Court has been more conservative than the Indian courts in using international law. However, it also has moved to assimilate international standards into administrative decision-making. In a case involving deportation from Canada and the CROC, the Canadian Supreme Court rejected the argument that the ratification of international treaties could give rise to a legitimate expectation[103] but nonetheless concluded that international law had an important role to play in administrative decision-making. The existence of obligations under human rights treaties, particularly with regard to the protection of children, was held to influence the scope of the statutory discretion granted to the Minister in immigration matters. Hence values reflected in both conventional and customary international law in regards to the primacy of the interests of the child were used to ‘show the values that are central in determining whether this was a reasonable exercise’ of the immigration power.[104] It found that a decision-maker who ignored relevant treaty provisions might be deemed to have acted unreasonably.
The New Zealand position appears to be moving in a similar direction to Australia and Canada. In Tavita v Minister for Immigration,[105] the Immigration Department argued that the CROC and the International Covenant on Civil and Political Rights (ICCPR) could be ignored in making decisions regarding immigration. While the case was decided on other grounds, Cooke P (now Lord Cooke) described this argument as ‘unattractive’, as it suggested that New Zealand’s adherence to international treaties ‘has been at least partly window-dressing’.[106]
As might be expected, the English judiciary has been more reluctant to see a role for international law in administrative law than have other common law judges.[107] However, it has come increasingly to recognise a role for general international law in developing the common law.[108] European Union treaties are now given direct effect.[109] The Human Rights Act 1998 (UK), which partially incorporates the European Convention of Human Rights into domestic law, will give the judges further platform for applying international human rights standards in domestic law. The Act requires judges, so far as possible, to interpret legislation so that it gives effect to the European Convention on Human Rights.[110] While judges do not have the power to hold incompatible legislation invalid, they can make a declaration of incompatibility which might lead to political pressure to change the legislation.[111] More importantly, in the administrative law context, section 6 prohibits public authorities from acting in a manner that is incompatible with Convention rights.
Perhaps it is significant that India, Canada, New Zealand, and the United Kingdom, each now have a Bill of Rights in some form.[112] In addition, the Indian parliament passed the Protection of Human Rights Act 1993 (India), which defines human rights in part by reference to international covenants.[113] The New Zealand government set up Compliance 2000 to review all New Zealand ‘acts and regulations, policies or practices’ to see whether any of these was in conflict with the ‘spirit or intent’ of the Human Rights Act.[114] It also responded to Tavita by developing a code of practice that set out guidelines to try to ensure that immigration officers take adequate notice of international law, particularly New Zealand’s obligations under the ICCPR and the CROC.[115] To this extent, the Teoh decision appears broadly in line with developments in other common law countries. The arguments of successive Australian governments that Teoh produces unworkable results or fundamentally undermines democracy seem difficult to sustain by reference to analogous common law jurisdictions.
As Sir Anthony Mason has put it:
Just as the Australian economy cannot be insulated from the impact of the international economy and the economies of other countries, so Australian national law cannot be insulated from the influence of international and transnational law … Australia plays a significant role in the international community and should be seen to carry the intentions and obligations it pledges before the international community through to the people of Australia.[116]
Many Australian judges are aware now that it is inevitable and appropriate for international norms to play an increasing role in Australian law. The numerous ways in which international law can be given some application in domestic law should be comfortably embraced by the Australian judiciary. The legitimate expectations approach taken in Teoh may not be the best way to assimilate international law into domestic law. The approach of the Canadian Supreme Court in developing the notion of reasonableness to require consideration of international obligations may have proved more adaptable and comprehensive than the Teoh approach.
The Indian approach should also be considered in Australia. Most of the Indian cases discussed above were brought by non-governmental organisations. Advocates were prepared to argue vigorously the importance of international norms in a wide variety of cases. As Justice Kirby has noted, international standards provide a better basis for decision-making than antiquated English decisions, and they may usefully be invoked to inform the construction of Australian laws and reviews of the administrative process.[117 ] To this end, more courage and creativity on the part of those presenting, as well as those determining, cases could advance the role of international law in domestic cases.
Successive governments have failed to appreciate that Teoh is an example of a global trend towards utilisation of international norms in the domestic law of states. Even if the anti-Teoh Bill were to be enacted, it is likely that the courts would develop another path to similar ends as they have in other common law countries, for example, by adapting the Canadian approach which is not based on legitimate expectations. Teoh is far from the only way that international standards can be introduced into Australian law. The vision of international law as obligatory should encourage judges to play their part in ensuring a role for international law in Australia. The Australian High Court should continue to encourage a non-insular approach by the Australian courts as a whole.
The perception that international law is a hostile or even threatening force to Australia’s interests has been allayed by some steps since Teoh, such as procedures to involve federal parliament and the states in treaty-making processes to lessen concerns about the separation of powers and the federal balance of powers.[118] These may be adapted to meet the reasonable concerns of those who want to ensure that Australian treaty commitments are compatible with Australian values. Nonetheless the increased suspicion and hostility shown by governments towards international law, particularly human rights law, reflects an immaturity in the Australian approach to its international obligations. A broader vision for international law is needed in the Australian community. International law should be seen as a useful partner in developing dynamic, forward-looking laws and policies in areas such as human rights or environmental standards. Sometimes international law may challenge Australian complacency in regard to human rights or free trade. Sometimes Australia will reject specific treaties or standards as being inappropriate to local conditions or needs. But inertia based on hostility towards international norms should be rejected. The judiciary and the government should accept international law as a valuable source of ideas and obligations. With sensitive use, international standards and norms will inspire the development of domestic law that is responsive to individual rights and freedoms. This is a development to be embraced by a mature Commonwealth established by its Constitution as a free, open and democratic society.
[∗] Queen’s Counsel.
[∗∗] Senior Fellow, Faculty of Law, University of Melbourne.
[1] Minister for Immigration and Ethnic Affairs v Teoh
[1995] HCA 20; (1995) 183 CLR 273.
[2] For the purposes of this article, international law refers to Australia’s obligations under multilateral treaties and conventions.
[4] Ibid 280-81.
[5] Teoh v Minister for Immigration and Ethnic Affairs [1994] FCA 1017; (1995) 121 ALR 436. For an analysis of the Federal Court proceedings see M Allars, ‘One Small Step for Legal Doctrine, One Giant Leap Toward Integrity in Government’ [1995] SydLawRw 16; (1995) 17 Sydney Law Review 204, 207-208.
[6] Teoh v Minister for Immigration and Ethnic Affairs, above n 5, 440.
[7] [1991] ATS No 4.
[9] Ibid 304.
[10] Ibid 291-92.
[11] Ibid 291.
[12] Ibid 292-93.
[13] Joint Statement by the Minister for Foreign Affairs, Senator Gareth Evans, and the Attorney-General, Michael Lavarch, International Treaties and the High Court Decision in Teoh (10 May 1995).
[14] Ibid.
[15] Joint Statement of the Minister for Foreign Affairs, Alexander Downer and the Attorney-General and Minister for Justice, Daryl Williams, The Effect of Treaties in Administrative Decision-Making, (25 February 1997).
[16] For a comparison of the two statements see A Duxbury, ‘The Anti-Teoh Bill Revisited’ (1997) International Law News 28, 29-31. See also Browne v Minister for Immigration and Multicultural Affairs (1998) 52 ALD 550, 560 in which Wilcox J suggests that the second joint statement may have been less effective than the first.
[17] Allars, above n 5, 239-241; S Donaghue, ‘Balancing Sovereignty and International Law: the Domestic Impact of International Law in Australia’ [1995] AdelLawRw 6; (1995) 17 Adelaide Law Review 213, 258; S Bouwhuis, ‘International Law by the Backdoor?’ (1998) 72 Australian Law Journal 794; Sir Ronald Wilson, President of the Human Rights and Equal Opportunity Commission, submitted that ‘the legitimate expectation created by these provisions can only be reversed by legislation’: Submission to Senate Legal and Constitutional Legislation Committee, Administrative Decisions (Effect of International Instruments) Bill 1995, vol 8, 1778. Cf K Walker and P Mathew, ‘Minister for Immigration v Ah Hin Teoh: Case Note’ (1995) Melbourne University Law Review 236, 250.
[18] Commonwealth, Parliamentary Debates, House of Representatives, 13 October 1999, 11436 (D Williams, Attorney-General).
[19] [1998] FCA 334; (1998) 154 ALR 51, 61.
[20] [1998] FCA 5; (1998) 150 ALR 608, 612, 630.
[21] (1996) 69 FCR 431, 437-8.
[22] He did not have to make a final determination as to the status of the statements as the case was decided on other grounds.
[23] Tien v Minister for Immigration and Multicultural Affairs [1998] FCA 1552; (1998) 159 ALR 405, 427 (Goldberg J); Browne v Minister for Immigration and Multicultural Affairs (1998) 52 ALD 550, 564-565 (Wilcox J). At other times the statement has been ignored, eg, Kwong Leung Lam v Minister for Immigration and Multicultural Affairs (1998) 50 ALD 808, 816-818.
[24] For a small sample see Re Secretary, Department of Social Security v Begum (1998) 51 ALD 187, 189; Re Zulman v Collector of Customs (1995) 38 ALD 427, 430; Re Secretary, Department of Social Security v Chin (1998) 52 ALD 337, 346; Holani v Department of Immigration and Multicultural Affairs (1996) 44 ALD 370, 375.
[25] Senate Legal and Constitutional Legislation Committee, Administrative Decisions (Effect of International Instruments) Bill 1995, September 1995; Senate Legal and Constitutional Legislation Committee, Administrative Decisions (Effect of International Instruments) Bill 1997, October 1997.
[26] Bills Digest No 100 1999-2000, 2.
[27] Clause 5 of the 1997 Bill is the same as that in the 1999 Bill. Clause 5 in the 1995 Bill read: ‘The fact that Australia is bound by, or party to, a particular international instrument, or that an enactment reproduces or refers to a particular international instrument, does not give rise to a legitimate expectation, on the part of any person that: a) an administrative decision will be made in conformity with the requirements of that instrument; or b) if the decision were to be made contrary to any of those requirements, any person affected by the decision would be given notice and an adequate opportunity to present a case against the taking of such a course.’
[28] Commonwealth, Parliamentary Debates, House of Representatives, 21 September 1995, 1437 (D Kerr, Minister for Justice); Commonwealth, Parliamentary Debates, above n 18.
[29] Some commentators have cast doubt on whether the expansive preamble to the Act may have this effect. See eg, the comments of Elizabeth Evatt AC, Submission to Senate Legal and Constitutional Legislation Committee, Administrative Decisions (Effect of International Instruments) Bill 1995, Hansard (16 May 1995) 338.
[30] Eg, Allars, above n 5; J McMillan, ‘Recent Themes in Judicial Review of Federal Executive Action’ (1996) Federal Law Review 347, 358-359.
[31] H Charlesworth, ‘Dangerous Liaisons: Globalisation and Australian Public Law’ [1998] AdelLawRw 6; (1998) 20 Adelaide Law Review 57, 59-60.
[32] Eg, Newcrest Mining (WA) Ltd v Commonwealth [1997] HCA 38; (1997) 190 CLR 513, 658 ‘universal and fundamental rights’ (Kirby J); Kartinyeri v Commonwealth (1998) 195 CLR 335, 418 ‘fundamental human rights’ (Kirby J).
[33] Above n 1, 287-288. The strength of this obligation is underlined by Mason CJ’s and Deane J’s support for a broad notion of ambiguity.
[34] Ibid 287; Dietrich v R [1992] HCA 57; (1992) 177 CLR 292, 306; Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1, 38.
[35] Above n 1, 291 (footnotes omitted).
[36] ‘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.’: ibid 288 (emphasis added.)
[37] Mabo v Queensland (No 2) (1992) 175 CLR 1, 42 (Mason CJ and McHugh J concurring).
[38] Above n 32, 658; see also Kartinyeri v Commonwealth, above n 32, 335, 418 (Kirby J) cf 384-385 (Gummow and Hayne JJ).
[39] Commonwealth, Parliamentary Debates, Senate, 5 April 2001, 23789 (A Ridgeway).
[40] Bills Digest No 100 1999-2000, Administrative Decisions (Effects of International Instruments) Bill 1999, 4.
[41] Eg, Chicago International Air Services Transit Agreement (7 December 1944), 171 UNTS 387; Constitution of the Universal Postal Union (1 January 1966), 611 UNTS 3.
[42] Eg, Vienna Convention for the Protection of the Ozone Layer
(22 March 1985), 26 ILM 1529; United Nations Framework Convention on Climate Change (9 May 1992), 1771 UNTS 107.
[43] Eg, Treaty on the Non-Proliferation of Nuclear Weapons
(1 July 1968), 729 UNTS 161.
[44] A Orford, ‘Locating the International: Military and Monetary Interventions after the Cold War’ (1997) 38 Harvard International Law Journal 443, 464-76.
[45] Oxfam, (2001) 1 Horizons 7.
[47] Ibid.
[48] Ibid 288.
[49] Above n 20, 618, 628, 630.
[50] Allars, above n 5, 231-232; A Twomey, ‘Minister for Immigration and Ethnic Affairs and Teoh’ (1995) Federal Law Review 348, 352; 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, 241; cf evidence of P Bayne, Senate Legal and Constitutional References Committee Hansard (1 May 1995) 110.
[51] Above n 1, 316. See Donaghue, above n 17, 254-56.
[52] K Walker, ‘Treaties and the Internationalisation of Australian Law’ in C Saunders (ed), Courts of Final Jurisdiction: The Mason Court in Australia (1996) 204, 223.
[53] G Evans, ‘The Impact of Internationalisation on Australian Law: A Commentary’ in C Saunders (ed), ibid 236, 238.
[54] A Mason, ‘The Influence of International and Transnational Law on Australian Municipal Law’ (1996) 7 Public Law Review 20, 23.
[55] G Brennan, ‘The Role and Rule of Domestic Law in International Relations’ (1999) 10 Public Law Review 185, 185-186.
[56] Speech, Prime Minister John Howard, Millennium Summit Address, United Nations Headquarters, New York (6 September 2000), below page 272; Statement, Minister for Foreign Affairs Alexander Downer, Keeping the United Nations Relevant: International Peace and Security, and Reform, 55th Session of the General Assembly of the United Nations, New York (18 September 2000), below pages 272, 273, 276, 293, 318.
[57] Commonwealth, Parliamentary Debates, House of Representatives, 11 May 2000, 16284 (D Williams, Attorney-General). This argument against the United Nations was used to justify the 1999 anti-Teoh Bill.
[58] The 1995 Bill ‘seeks to tell the unelected and unaccountable politicians on the High Court to butt out of law making’: Commonwealth, Parliamentary Debates, House of Representatives, 21 September 1995, 1477-8 (P Slipper).
[66] Commonwealth, Parliamentary Debates, Senate, 2 April 2001, 2350 (N Bolkus).
[68] Above n 15. See also above n 1, 316 (McHugh J, dissenting).
[69] ‘This government is firmly of the view that this development [Teoh] is not consistent with the proper role of parliament in implementing treaties in Australian law.’: Commonwealth, Parliamentary Debates, House of Representatives, 13 October 1999, 11436 (D Williams, Attorney-General).
[72] Walker, above n 52, 221; Twomey, above n 50, 353.
[73] Charlesworth, above n 31, 67.
[74] Donaghue, above n 17, 224-26.
[75] Commonwealth, Parliamentary Debates, Senate, 2 April 2001, 23508 (B Greig); Walker, above n 52, 225-226.
[76] D Williams, ‘International Law and Responsible Engagement’ (2000) Proceedings of a Joint Meeting Australian and New Zealand Society of International Law and American Society of International Law 275 <http://law.anu.edu.au/anzsil/
ANZSILASILProceedings2.pdf>.
[77] Charlesworth, above n 31, 67-68.
[78] G Evans, ‘International Treaties: Their Impact on Australia’, Keynote Address to the International Treaties Conference, Canberra, 4 September 1995.
[79] Commonwealth, Parliamentary Debates, House of Representatives, above n 58, 147 (P Slipper).
[80] Commonwealth, Parliamentary Debates, House of Representatives, 21 September 1995, 1455 (D Williams, Shadow Attorney-General).
[81] Joint Standing Committee on Treaties, Convention on the Rights of the Child (1 May 1997) 237 (E Abetz).
[82] Attorney-General, Commonwealth, Labor puts the Australian Community at Risk, Press Release (6 March 1998). The case being referred to appears to be Kwong Leung Lam v Minister for Immigration and Multicultural Affairs above n 23.
[83] Attorney-General, Commonwealth, More Labour Gymnastics on Teoh Bill, Press Release (28 March 2001).
[84] Commonwealth, Parliamentary Debates, House of Representatives, 9 December 1999, 13267 (R McClelland).
[85] Commonwealth, Parliamentary Debates, House of Representatives, 11 May 2000, 16280 (J Irwin).
[86] Constitution of Switzerland, art 113; see also L Wildhaber, ‘Parliamentary Participation in Treaty-Making: Report on Swiss Law’ (1991) 67 Chicago-Kent Law Review 442.
[87] ‘This Constitution and the Laws of the United States which shall be made in Pursuance thereof, and all Treaties made or which shall be made under the Authority of the United States, shall be the supreme Law of the Land.’: US Constitution, art VI.
[88] For further examples see Donaghue, above n 17, 234-239.
[89] Eg, ‘The United Nations rabble sitting on the other side of the world’: Commonwealth, Parliamentary Debates, Senate, 8 December 1994, 4293 (E Abetz).
[90] For a critique of these views see P Mathew, ‘International Law and the Protection of Human Rights in Australia: Recent Trends’ [1995] SydLawRw 15; (1995) 17 Sydney Law Review 177.
[91] Eg, ‘The Organization is based on the principle of sovereign equality of all its Members’: Charter of the United Nations, art 2(1).
[92] C R Durham, ‘International Human Rights Law: A Legitimate Influence or Constraint on Sovereign Interaction?’ (1997) Australian International Law Journal 56.
[93] Charter of the United Nations, art 2(4); Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, GA Res 2625 (XXV) (1979).
[94] Ibid.
[95] Eg, Agreement Concerning Defense Communications Service (Aust-USA) (November 1989) 1989 ATS 29; Agreement Concerning Minimal Defence Commitments (December 1 1995) 1995 ATS 35.
[96] Commonwealth, Parliamentary Debates, House of Representatives, 12 October 1994, 1777 (M Lavarch, Attorney-General).
[97] I Brownlie, Principles of Public International Law (5th ed, 1998) 49-50.
[98] People’s Union for Civil Liberties v Union of India (1997) AIR (SC) 1203, 1207-8.
[99] Apparel Export Promotion Council v A K Chopra (1999) AIR (SC) 625, 634 (emphasis added).
[100] Chairman, Railway Board v Chandrima Das (2000) SOL 39 <http://www.supremecourtonline.com/cases> .
[101 ] AP Pollution Control Board II v Nayudu (2000) SOL 673 <http://www.supremecourtonline.com/cases> .
[102] Bandhua Mukti Morcha v Union of India (1997) AIR (SC) 2218, 2221.
[103] Baker v Minister of Citizenship and Immigration [1999] 2 SCR 817, 841.
[104] Ibid 862.
[105] Tavita v Minister for Immigration [1994] 2 NZLR 257.
[106] Ibid 266.
[107] R v Secretary of State for the Home Department; Ex parte Brind [1991] UKHL 4; [1991] 1 AC 696.
[108] Eg, Derbyshire County Council v Times Newspapers Ltd. [1992] UKHL 6; [1992] QB 770, 812, 830.
[109] Factortame Ltd v Secretary for Transport [1990] UKHL 13; [1991] 1 AC 603, 658.
[110] Human Rights Act 1998 (UK)s 3(1).
[111] Ibid ss 3(2) and 4.
[112] Constitution of India (1949) Part III; Charter of Rights and Freedoms (Canada); Bill of Rights Act 1990 (New Zealand); Human Rights Act 1998 (UK).
[113] Protection of Human Rights Act 1993 (India) s 2.
[114] Human Rights Act 1993 (New Zealand) s 5(i)-(k); P Rishworth, ‘Human Rights’ (1999) New Zealand Law Review 457.
[115] M A Poole, ‘International Instruments in Administrative Decisions: Mainstreaming International Law’ (1990) 30 Victoria University Wellington Law Review 91, 94-95.
[117 ] Jago v District Court of New South Wales (1988) 12 NSWLR 558, 569.
[118] Through the use of the Joint Standing Committee on Treaties. Senate Legal and Constitutional References Committee, Trick or Treaty? Commonwealth Power to Make and Implement Treaties (November 1995). See also A Downer, ‘Treaty Making: the People’s Process’, Recent International Treaties Seminar, Brisbane 20 July 2000; <http://www.aph.gov.au/hou se/committee/jsct/seminars/index.htm> .
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