FEDERAL-STATE RELATIONS COMMITTEE
Report on
A2.0 The Teoh case is a decision in which the High Court considered the effects of Australian treaty making on Australian bureaucrats.
A2.1 The impetus for the High Court judgement in the Teoh case was the Convention on the Rights of the Child. Australia ratified the Convention in 1991, but has not implemented the Convention by way of specific legislation.
A2.2 Article 3(1) of the Convention on the Rights of the Child provides that:
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
A2.3 The Court re-affirmed that treaties will not create rights and duties in domestic law unless they have been implemented by legislation.2 But the Court held that it is possible for treaties which have not been incorporated into Australian law by legislation to nevertheless have an effect upon Australian bureaucratic decision makers.
A2.4 The Teoh case involved an appeal by Mr Teoh, a Malaysian citizen, against a deportation order. Mr Teoh had children in Australia who were Australian citizens, but the impact on them of Mr Teoh's deportation had not been made a primary consideration when the deportation was ordered. The High Court found that a failure by the Commonwealth bureaucracy to take into consideration the terms of Article 3 (1) of the Convention on the Rights of the Child - a treaty ratified but not implemented by legislation - constituted a failure of natural justice. The Court ordered the decision to be re-considered, with Mr Teoh being allowed to argue that the decision-makers reach their decision on the basis of the best interests of his children.
A2.5 The basis for this finding was a principle of administrative law which the Court has followed since the late 1970s. The principle is the following. If a bureaucracy has made a representation as to how it will act in reaching a certain type of administrative decision (for example, by issuing a policy statement or policy guidelines), then those affected by such decisions have a legitimate expectation that the bureaucracy, in exercising its discretion in making a determination, will not depart from its representations. If the decision maker does depart from the representations, their decision will be void unless those who will be affected by the decision are given an opportunity to argue against the departure from the representation.
A2.6 The majority of the Court in Teoh - Chief Justice Mason and Justices Deane and Toohey - held that ratification of a treaty by the Government is a representation to Australians, as well as to the international community, that the terms of the treaty will be adhered to. Therefore, ratifying a treaty creates legitimate expectations that its obligations will be met by the government - and this includes decision making by bureaucrats. Legitimate expectations need not be fulfilled - the treaty requirements do not necessarily have to be met - but if they are not to be, those affected by the decision must be given an opportunity to argue against this course of action.3
A2.7 Justice Gaudron agreed with the majority that there had been a failure of natural justice. However, she expressed a slightly different view of the law:
The significance of the Convention, in my view, is that it gives expression to a fundamental human right which is taken for granted by Australian society, in the sense that it is valued and respected here as in other civilized countries. And if there were any doubt whether that were so, ratification would tend to confirm the significance of the right within our society. Given that the Convention gives expression to an important right valued by the Australian community, it is reasonable to speak of an expectation that the Convention would be given effect. However, that may not be so in the case of a treaty or convention that is not in harmony with community values and expectations.4
A2.8 Justice McHugh, in his dissenting judgement, expressed the view that, while ratification of a treaty by Australia is a signal to the international community, it is not an indication to the Australian community that the Government will act in a certain way. He therefore took the view that no legitimate expectation is created by the act of ratification.5
A2.9 It is natural to think that ratification of a treaty, which is an act undertaken by the Commonwealth Government, is a representation made only by the Commonwealth Government, and therefore will legitimate an expectation with respect only to the Commonwealth bureaucracy.
A2.10 The majority of the Court expressed no view on State decision makers. However, in his dissenting opinion, Justice McHugh said:
If the result of ratifying an international convention was to give rise to a legitimate expectation that that convention would be applied in Australia, the Executive government of the Commonwealth would have effectively amended the law of this country. It would follow that the convention would apply to every decision made by a federal official unless the official stated that he or she would not comply with the convention. If the expectation were held to apply to decisions made by State officials, it would mean that the Executive government's action in ratifying a convention had also altered the duties of State government officials. . . There can be no reasonable expectation that State government officials will comply with the terms of a convention merely because the Executive government of the Commonwealth has ratified it. In many cases, State governments will be strongly opposed to the federal government's ratification of an international convention. . . Unless a Minister or his or her officials have given an indication that the provisions of a convention will henceforth be applied to decisions affecting that ministry, it is not reasonable to expect that the provisions of that convention apply to those decisions.6
A2.11 This view was also put to the Committee by Ms Kris Walker:
It is my view that Teoh has no significant impact on State Government decision makers. My reasoning in reaching that conclusion is as follows. Essentially, Teoh provides that ratification of a treaty by a Commonwealth executive is a statement to both the international and Australian communities about Australia's intention to abide by the treaty in question and creates a legitimate expectation in the minds of the Australian people about the way the government will behave.
The way this works is not so much dependent on the legal obligation generated by the treaty, which of course binds the States in the sense that if the States act in a way that violates a treaty Australia will be responsible in international law, but the legitimate expectation is generated by the executive statement. It is a bit like a representation made to the Australian community about how Australia will behave.
In a way, it is analogous to the principle of estoppel applying to individuals. If I promise to do something and you rely on that promise to your detriment, you can enforce the promise. It is not about a contract, but a representation I made as an individual. The legitimate expectation is analogous to although not the same as estoppel. The statement generates an expectation to individuals about how the government will behave. The statement, essentially made by ratification, is made by the Commonwealth executive and can generate an expectation about how the Commonwealth executive will behave. However, in my view it will not generate, and cannot legitimately generate, an expectation about how the State Government will behave. This is not really to do with international law, but administrative law.
The principle of legitimate expectation applies to a whole variety of areas of government activity. The Commonwealth Government makes a policy statement that creates a legitimate expectation, but only about how the Commonwealth Government will behave and not about how the State Government will behave. So when ratification occurs it gives rise to legitimate expectations about only Commonwealth behaviour and not State Government behaviour. That is so even though the legal obligations entered into with the international community will bind the States, as I mentioned, in the sense of generating international responsibility.
The only way that Teoh might impact on the States is if they themselves, or one or two States only, made a statement that could generate a legitimate expectation. It is possible for a State to generate a legitimate expectation about its behaviour about treaties, but only by the State making a statement itself and not by the Commonwealth making a statement that could represent the State's view.
I do not think the majority judgment in Teoh suggests anything to the contrary. I do not think it suggests at all that legitimate expectations in treaties have an impact on States. It has to be acknowledged that it does not address the issue or rule it out, but it does not suggest it. The High Court did not need to decide that issue, but my analysis flows logically from the way the majority approached the whole question in Teoh about the legitimate expectations generated by ratification.7
A2.12 As Ms Walker's testimony suggests, the logic of the High Court's decision is such that, were States to take a more active role in the process of treaty negotiation, it is possible that State bureaucrats might come within the scope of the representations manifested through ratification of a treaty.
A2.13 It is apparent that some State judges consider the principle of the Teoh case applicable in their own decision making. Section 4 (1) (c) of the South Australian Child Protection Act 1993 requires that
the powers [granted by the Act] must always be exercised in the best interests of the child
who is the subject of proceedings. Judge Crowe, of the South Australian Youth Court, in deciding a question of access to a child, felt that the Teoh decision obliged him to take account of the Convention on the Rights of the Child, and treat as a primary consideration the best interests of children who would be affected by his decision, even though they were not themselves subjects of any proceedings.8
A2.14 In Teoh, the majority stated that the legitimate expectations created by treaty ratification would only come about in the absence of
statutory or executive indications to the contrary. . .9
there can be no legitimate expectation if the actions of the legislature or the executive are inconsistent with such an expectation.10
A2.15 On May 10th 1995 the former Minister for Foreign Affairs and Commonwealth Attorney-General released a Joint Statement on the Teoh decision, intended to be an executive indication that the ratification of a treaty by Australia does not create any legitimate expectations as to the conduct of the Government and its bureaucracy.11 A similar statement was made by the current Minister for Foreign Affairs and Commonwealth Attorney-General, on February 25th 1997.12
A2.16 The former Commonwealth Government introduced legislation intended to have a similar effect, but the Bill lapsed with the dissolution of the House of Representatives.13 The current Commonwealth Government introduced similar legislation into the House of Representatives on June 18th of this year. The legislation was passed by the House of Representatives on the 25th of June.
A2.17 The Commonwealth legislation expressly extends its overturning of legitimate expectations to decisions made by State and Territory Governments and bureaucracies.14 However, both the legislation, and the more recent Joint Statement, contain "roll-back" clauses stating that their effects do not extend to States and Territories whose Parliaments have taken steps to set aside legitimate expectations arising out of treaties.15 Currently, South Australia and Western Australia are taking such steps.16
A2.18 Some doubt has been expressed about whether the "anti-Teoh" actions will have the desired effect. Professor Margaret Allars, an Australian expert on administrative law, has questioned whether the Joint Statements are sufficient to overturn other considered statements of Government policy.17 These policy statements include the Guidelines on Official Conduct of Commonwealth Public Servants, which states that a key human rights treaty, the International Covenant on Civil and Political Rights, is "in line with community expectations of fair treatment from the public service."18 They also include international human rights instruments declared under s 47 of the Human Rights and Equal Opportunity Commission Act 1986.19 The declaration of an instrument under that act makes it a statement of human rights which must be taken into account by the Human Rights and Equal Opportunity Commission. Declared instruments are scheduled to the Act itself.
A2.19 Professor Allars has also expressed the view that the Joint Statements may well not have the effect of negating future inconsistent statements of policy.20 Such statements could include future ratifications of treaties.
A2.20 Professor Allars has similar doubts as to whether the Commonwealth legislation will overturn the effects of the Teoh decision. Section 5 of the Bill states that:
The fact that:
(a) Australia is bound by, or a 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.
But Professor Allars points out that
It is not these matters [the existence of an international obligation, or the scheduling of an instrument] but the historical fact of the conduct of government in ratifying which generates a legitimate expectation.21
A2.21 Until the High Court develops the Teoh doctrine further, and the legal effect of the Joint Statements and the legislation (if it is passed by the Senate) are decided, the scope and effects of the Teoh decision will remain uncertain.
A2.22 Depending upon the High Court's development of the Teoh doctrine, the effectiveness of attempts to overrule the decision, and the extent to which the States involve themselves in Australia's treaty processes, it is possible that ratification of a treaty may place obligations on State bureaucrats to take note of (but not necessarily to act in accordance with) relevant treaty obligations when making decisions. This would mean that the Commonwealth Government, in ratifying a treaty, would be having a direct impact on the activities of State Governments. Discharge of any obligations created by treaty ratification would require State bureaucrats to have a sound knowledge of Australia's treaty obligations affecting their field of operations.
1Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 (hereafter referred to as Teoh).
2Ibid at 286-7 (per Mason CJ and Deane J), 298 (per Toohey J), 304 (per Gaudron J), 315 (per McHugh J).
3Margaret Allars, "International Law and Administrative Discretion" in Brian Opeskin and Donald Rothwell, International Law and Australian Federalism, Melbourne University Press, forthcoming, pp 234-5; Michael Lavarch, M, "The Role of International Law-Making in the Globalisation Process" in Philip Alston and Madelaine Chiam, Treaty-Making and Australia: Globalisation versus Sovereignty?, Federation Press, Sydney, 1995, pp 180-1; Teoh, above n 1 at 291-2 (per Mason CJ and Deane J), 298-300, 302 per Toohey J.
4Teoh, above n 1 at 304-5.
5Ibid at 316.
6Ibid at 316-7.
7Minutes of Evidence, FSRC, June 30th 1997, pp 583-4 (per Ms K Walker).
8In the Matter of Amanda Knight, cited in Minister for Family and Community Services v Maelyn Batchelor (Chaffey); Robyn Forrest v Minister for Community Services. In the particular case, these children were the siblings of the child who was the subject of proceedings.
9Teoh, above n 1 at 291 (per Mason CJ and Deane J).
10Ibid at 302 (per Toohey J).
11Joint 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, May 10th 1995.
12Joint Statement by the Minister for Foreign Affairs, Alexander Downer, and the Attorney-General, Daryl Williams, The Effects of Treaties in Administrative Decision-Making, February 25th 1997.
13Administrative Decisions (Effect of International Instruments) Bill 1997.
14Section 4.
15Administrative Decisions (Effect of International Instruments) Bill 1997, s 6; Joint Statement, above n 12.
16Minutes of Evidence, FSRC, June 30th 1997, p 608 (per Mr W Campbell).
17Allars, above n 3, pp 265-7.
18Ibid, p 266.
19Ibid, pp 266-7.
20Margaret Allars, "One Small Step for Legal Doctrine, One Giant Leap Towards Integrity in Government", Sydney Law Review, 17 (1995), pp 237-41, cited in I A Shearer, "The Relationship Between International Law and Domestic Law" in Brian Opeskin and Donald Rothwell, International Law and Australian Federalism, Melbourne University Press, forthcoming, p 68, n 117.
21Ibid, p 267.
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