Legal Practice Briefing No. 18

Number 18

24 April 1995

TREATIES IN AUSTRALIAN
LAW

The Teoh Case

The decision of the High Court in Minister of State
for Immigration and Ethnic Affairs v Teoh1 has
dramatically illustrated the impact that treaties can
have in domestic law. In that case, the Court by a 4:1
majority said there was a legitimate expectation that
a decision-maker would act in accordance with the Rights
of the Child Convention, in the absence of a statutory
or executive indication to the contrary. The case concerned
a decision to deport a person under the Migration Act.

The Facts

The facts in Teoh involved the question whether
to grant resident status or deport a person convicted of
a number of drug offences. The person in question was the
father and stepfather of a number of children who were
Australian citizens. It was said that they would suffer
great hardship if the father was deported. The mother would
find it difficult to provide the necessary care for the
children as she had a drug addiction problem.

The High Court said that the primary consideration
in making the decision had been the good character requirement,
set out in the applicable guidelines. The Rights of the
Child Convention required, however, that in all actions
concerning children the best interests of the child were
to be a primary consideration. The court said this
decision was such an action and a legitimate expectation
existed that the decision-maker would give effect to the
Convention in making her decision unless she gave a contrary
indication to those likely to be affected. This she had
not done. There was therefore a lack of procedural fairness.

The Traditional Rule

The High Court affirmed the traditional and well established
rule that treaties are not incorporated into Australian
law in the absence of legislation. Mason CJ and Deane J
said:

'It is well established that the provisions of
an international treaty to which Australia is a party do
not form part of Australian law unless those provisions
have been validly incorporated into our municipal law by
statute. This principle has its foundation in the proposition
that in our constitutional system the making and ratification
of treaties fall within the province of the Executive in
the exercise of its prerogative power whereas the making
and the alteration of the law fall within the province
of Parliament, not the Executive. So a treaty which has
not been incorporated into our municipal law cannot operate
as a direct source of individual rights and obligations
under that law.'

Interpretation of Statutes and Relevance
of Treaties

In the Teoh case, Mason CJ and Deane J also recognised
the relevance of treaties in interpreting statutes, confirming
a long established principle that a statute is to be interpreted
and applied as far as its language permits so it is in
conformity with established rules of international law.
They said:

'If the language of the legislation is susceptible
of a construction which is consistent with the terms of
the international instrument and the obligations which
it imposes on Australia, then that construction should
prevail. So expressed, the principle is no more than a
canon of construction and does not import the terms of
the treaty or convention into our municipal law as a source
of individual rights and obligations.'

Development of the Common Law

Recent cases like Mabo v Queensland (No.2)2 and Dietrich
v The Queen3have
also recognised the relevance of treaties, particularly
those declaring universal fundamental rights, in developing
the common law. Thus, in Mabo v Queensland (No. 2),
Brennan J said:

'Whatever the justification advanced in earlier
days for refusing to recognise the rights and interests
in land of the indigenous inhabitants of settled colonies,
an unjust and discriminatory doctrine of that kind can
no longer be accepted. The expectations of the international
community accord in this respect with the contemporary
values of the Australian people. The opening up of international
remedies to individuals pursuant to Australia's accession
to the Optional Protocol to the International Covenant
on Civil and Political Rights brings to bear on the common
law the powerful influence of the Covenant and the international
standards it imports. The common law does not necessarily
conform with international law, but international law is
a legitimate and important influence on the development
of the common law, especially when international law declares
the existence of universal human rights. A common law doctrine
founded on unjust discrimination in the enjoyment of civil
and political rights demands reconsideration.'

And in Dietrich v R, Brennan J said:

'A concrete indication of contemporary values
is given by Article 14(3)(d) of the International Covenant
on Civil and Political Rights to which Australia is a party
... Although this provision is not part of our municipal
law it is a legitimate influence on the development of
our municipal law. Indeed it is incongruous that Australia
should adhere to the Covenant containing that provision
unless Australian courts recognise the entitlement and
Australian governments provide the resources required to
carry that entitlement into effect.'

Mason CJ and Deane J in Teoh said, however, that the
use of international law in this context should be a cautious
one, when Parliament itself has not seen fit to incorporate
the provisions of a treaty into domestic law.

Legitimate Expectation

Administrative law in recent years has come to recognise
a principle of 'legitimate expectation' as an aspect of
the requirement to accord procedural fairness.

Cases have already established that an expectation can
arise on the basis of express or implied undertakings to
persons affected by a decision that the decision-maker
would act in a certain way in making the decision. The
expectation does not depend on actual knowledge provided
there are grounds to render the expectation objectively
justifiable.

In the Teoh case the majority extended this principle
to say that unincorporated treaties could give rise to
a legitimate expectation that decision-makers would act
in accordance with the Convention. The following extracts
indicate the approach that was adopted. Mason CJ and Deane
J said:

'ratification by Australia of an international
Convention is not to be dismissed as a merely platitudinous
or ineffectual act, particularly when the instrument
evidences internationally accepted standards to be applied
by courts
and administrative authorities in dealing with basic
human rights affecting the family and children. Rather,
ratification
of a Convention is a positive statement by the executive
government of this country to the world and to the Australian
people that the executive government and its agencies
will act in accordance with the Convention. That positive
statement
is an adequate foundation for a legitimate expectation,
absent statutory or executive indications to the contrary,
that administrative decision-makers will act in conformity
with the Convention and treat the best interests of the
children as "a primary consideration". It is not necessary
that a person seeking to set up such a legitimate expectation
should be aware of the Convention or should personally
entertain the expectation; it is enough that the expectation
is reasonable in the sense that there are adequate materials
to support it.'

Similarly, Toohey J said:

'It follows that while Australia's ratification
of the Convention does not go so far as to incorporate
it into domestic law, it does have consequences for agencies
of the executive government of the Commonwealth. It results
in an expectation that those making administrative decisions
in actions concerning children will take into account as
a primary consideration the best interests of the children
and that, if they intend not to do so, they will give the
persons affected an opportunity to argue against such a
course. It may be said that such a view of ratification
will have undue consequences for decision-makers. But it
is important to bear in mind that we are not concerned
with enforceable obligations, but with legitimate expectations,
and that there can be no legitimate expectation if the
actions of the legislature or the executive are inconsistent
with such an expectation.'

Gaudron J based her decision on the existence of a common
law right to have the best interests of a child taken into
account as a primary consideration in all discretionary decisions
that directly affect a child's welfare.

McHugh J dissented, saying there was no basis for finding
a legitimate expectation based on a treaty of which the
person affected was unaware.

The High Court emphasises that the Teoh decision
does not give treaties the force of law the legitimate
expectation can be displaced by statutory or executive
action. Even if not displaced generally, a decision-maker
is not compelled to decide in accordance with the Convention
so long as those affected have been given notice as to
the intention not to act in accordance with the treaty
and have an opportunity to make submissions as to why it
should be followed.

Implications of the Decision

The full ramifications of the decision will need to be
assessed by each Department, in the light of relevant statutory
regimes. Consideration will need to be given to whether
the particular regimes contain a contrary indication. Consideration
will also need to be given to what information on treaties
should be given to individual decision-makers. It seems
likely that the decision could give rise to challenges
to administrative decisions in a number of areas. The decision
seems unlikely, however, to require every decision-maker
to be familiar with the 900-plus treaties to which Australia
is a party. The principal treaties likely to be relied
upon to challenge decisions are the major human rights
treaties, such as the International Covenant on Civil and
Political Rights and the Rights of the Child Convention,
but there could be others. The Office of International
Law can provide advice on these issues.

One practical issue that needs consideration is how a
contrary indication could best be given if it were considered
appropriate (for example, by statute or Ministerial Statement).
There is a broader issue in relation to Commonwealth decisions
whether such a contrary indication is appropriate given
the treaty commitment in the first place.

Australia does not generally become a party to a treaty
unless it considers its law and practice accords with the
treaty. However, in the human rights area there is often
room for argument about what the treaty requires. For instance,
decisions directly affecting children under, for example,
the Family Law Act, are required to be made so as to ensure
the best interests of the child. However, the Teoh decision
shows that the broad language of a treaty such as the Rights
of the Child Convention can be given a wider interpretation
and application than might have been envisaged when the
decision to join the treaty was taken.

The decision is also likely to be used to strengthen the
arguments for greater parliamentary involvement in the
treaty process. In a recent public lecturethe
retiring Chief Justice has also highlighted the relationship
between Parliament and the Executive in relation to treaties
as an area for possible reform.4 This
area is at present subject to detailed examination by a
Senate Committee.

1 Unreported,
7 April 1995

2 (1992)
175 CLR 1

3 (1992)
177 CLR 292

4 Lucinda
lecture, 11 April 1995, reported in The Australian,
12 April 1995
.

ISSN 1448-4803 (Print)
ISSN 2204-6283 (Online)

The material in this briefing is provided
for general information only and should not be relied
upon for the purpose of a particular matter. Please contact
the Legal Practice before any action or decision is taken
on the basis of any of the material in this briefing.

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