Legal Practice Briefing
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 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 Queen3 have 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.
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 lecture the 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.
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.