GARETH EVANS, AND THE ATTORNEY-GENERAL, MICHAEL LAVARCH
M44
10 May 1995
INTERNATIONAL TREATIES AND THE HIGH COURT DECISION IN TEOH
This statement is to clarify the Government's position following the High Court's recent decision in the Teoh Case. That decision concerned the way in which administrative decisions are made under the Migration Act but could have implications for the way the provisions of a treaty may operate in Australian law generally.
Prior to the High Court decision, it was established that ratification of a treaty did have some, albeit limited, significance in Australian domestic law - the treaty provisions could be used to resolve an ambiguity in legislation; could provide guidance on the development of the common law, particularly where the treaty declared universal fundamental rights, and could quite properly be taken into account in the exercise of a discretion by a decision-maker under legislation without the decision being invalidated as a result.
However, it was also clearly established in a succession of High Court cases that treaties entered into by the Australian government, while creating rights and duties as a matter of international law, did not form part of Australia's domestic law unless and until they had been so incorporated by legislation, and could not give rise to rights and obligations unless they were so enacted into law.
The High Court reaffirmed in Teoh that provisions of treaties do not form part of Australian law unless they have been incorporated by legislation. At the same time, however, the Court developed a new way in which treaties could affect some administrative decisions. The High Court held that merely entering into a treaty could give rise to a legitimate expectation that government decision-makers would make decisions consistently with Australia's obligations under the treaty. It was not necessary for any legislation governing the decision to refer to the treaty. Indeed the provisions of the treaty could apply even where the person affected by the decision did not raise - or even know about - the treaty in question. This was the case in Teoh itself, where the Court decided that there was a legitimate expectation that the decision maker under the Migration Act would take the relevant Article of the Convention on the Rights of the Child into account in coming to a decision not to give resident status, notwithstanding that the applicant did not know about the Convention and the decision-maker did not raise it.
It may be only a small number of the approximately 920 treaties to which Australia is currently a party could provide a source for an expectation of the kind found by the High Court to arise in Teoh. But that can only be established as individual cases come to be litigated. In the meantime, the 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 anybody's interests to allow such uncertainty to continue.
For that reason, the Government is taking action to restore the position to what it was understood to be prior to the Teoh Case.
This action is of the kind foreshadowed by the High Court itself. In its judgment, the Court acknowledged that the expectation in question can be displaced by 'statutory or executive indications to the contrary': there can be no legitimate expectation if the actions of the Parliament or the Executive are not consistent with that expectation. So far as the Executive is concerned, the Court made it clear that it was open for Government to make a statement about the effect that the obligations undertaken in international law by reason of treaty ratification are intended to have in the domestic law of Australia.
We now make such a clear and express statement. We state on behalf of the Government, that entering 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.
The Government intends to legislate to reinforce this statement and put beyond any doubt the status of these unlegislated international obligations. We will be seeking approval for the necessary legislation to be introduced into Parliament later in these sittings. In the meantime, this statement has been issued to avoid, to the fullest extent possible in the circumstances, the inevitable uncertainty flowing from the High Court decision.
We should emphasise that the Government remains fully committed to observing its treaty obligations. However, we believe it is appropriate to retain the long-standing, widely accepted and well-understood distinction between treaty action undertaken by the Executive which creates international rights and obligations and the implementation of treaty obligations in Australian law. The implementation of treaties by legislation is the way that the rights, benefits and obligations set out in treaties to which Australia is a party are conferred or imposed on individuals in Australian law.
Ratification is a message sent by the Government to the international community that it intends to observe the provisions of a treaty. It is also a message to the international community that to the extent those obligations need to be part of Australian law and do not already have that status, the Government takes steps to incorporate them accordingly. However, the making of such a treaty obligation effectively part of Australian law is something for the legislature and not something which should be achievable by executive action alone.
CANBERRA