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Minister for Immigration and Ethnic Affairs V Teoh

Published online by Cambridge University Press:  24 January 2025

Anne Twomey
Anne Twomey*
Affiliation:
Senate Legal and Constitutional References and Legislation Committees
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Extract

The High Court's judgment in Minister for Immigration and Ethnic Affairs v Teoh is perhaps the most controversial judgment handed down by the Court this year, for both legal and political reasons. On the political side it has added further fuel to the fire about the significance of the ratification of treaties and the roles of the Executive and the Parliament in the process of ratification and implementation of treaties. On the legal side, it has developed the law on “legitimate expectations” and provided interesting obiter dicta on sleeping issues such as the use of treaties and international law in the interpretation of statutes and the development of the common law. It has also left open questions about the status of treaties which form schedules to legislation but which are not directly implemented by that legislation. This note will address the legal, rather than the political, aspects of the Teoh case, starting with the development of the law on “legitimate expectations”, and then considering issues concerning the use of unincorporated treaties to develop and affect the law in other ways.

Type
Research Article
Information
Federal Law Review , Volume 23 , Issue 2 , June 1995 , pp. 348 - 361
Copyright
Copyright © 1995 The Australian National University

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Footnotes

The views expressed in this article are those of the author and do not reflect views of the Committees or the Senate.

References

1 (1995) 128 ALR 353.

2 See submissions made to the Senate Legal and Constitutional References Committee in relation to its inquiry into the treaty-making and external affairs powers of the Commonwealth.

3 Mason CJ, Deane, Toohey and Gaudron JJ; McHugh J dissenting.

4 (1995) 128 ALR 353 at 380.

5 [1969] 2 Ch 149 at 170-171.

6 Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648; Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629.

7 (1995) 128 ALR 353 at 365. Justice Toohey made the same point at 371.

8 Ibid at 365. Australian courts are not alone in placing such weight on the consequences of ratification of treaties. The New Zealand Court of Appeal in Tavita v Minister for Immigration (1994) 2 NZLR 257 at 266 described the Government's argument that it is entitled to ignore treaties to which New Zealand is a party, as “an unattractive argument” which implies that New Zealand's adherence to international instruments “has been partly window-dressing”

9 (1995) 128 ALR 353 at 373.

10 Ibid at 376.

11 Ibid at 382.

12 Ibid at 385. See also: Minister for Foreign Affairs and Trade, Senator Evans, “The Impact of Internationalisation on Australian Law: A Commentary” in “The Mason Court and Beyond”, Conference, Melbourne, 10 September 1995, where he stated: “ratification is a statement to the international community to observe the treaty measures in question; it is not a statement to the national community - that is the job of the Legislature, not the Executive” (emphasis added).

13 Allars, M, “One Small Step for Legal Doctrine, One Giant Leap Towards Integrity in Government”, (1995) 17 Sydney L Rev 204 at 235Google Scholar.

14 (1995) 128 ALR 353 at 373.

15 See also Mason CJ and Deane J at 365.

16 Ibid at 383. The Minister for Foreign Affairs and Trade, Senator Evans, in his address(above n 12), agreed, noting that the expectation has to have a “whiff of objective reality about it”. However, Professor Allars, above n 13 at 241, has queried how the Government could then assert that it has repudiated such legitimate expectations by way of a Press Release issued by the Minister for Foreign Affairs and Trade and the Attorney-General on 10 May 1995, when it is even less likely that an affected person would know of the Press Release than of the ratification of the treaty. Would a person who holds a legitimate expectation have to have personal knowledge of the repudiation of this expectation by way of Press Release for the repudiation to have any effect?

17 (1990) 169 CLR 648.

18 (1990) 169 CLR 648 at 670. See also P Tate, “The Coherence of 'legitimate expectations' and the foundations of natural justice” (1988) 14 Monash L Rev 49 at 50.

19 Attorney-General (NSW) v Quin (1990) 170 CLR 1.

20 Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629.

21 N Williams, “Teoh -A Perspective from the Bar”, June 1995, AIAL Forum No 5, 1 at 5.

22 (1995) 128 ALR 353 at 365. The Minister for Foreign Affairs and Trade, Senator Evans,stated in his address (above n 12), that if Teoh did not incorporate treaties through the back door, it had certainly brought them “through a back gate as far as the back garden”.

23 (1995) 128 ALR 353 at 365.

24 (1995) 128 ALR 353 at 374.

25 Hansard, , Senate Legal and Constitutional References Committee (SLCRC) 1 May 1995, at 110.Google Scholar

26 Walker, K, “Treaties and the Internationalisation of Australian Law”, paper delivered at “The Mason Court and Beyond” (above n 12).Google Scholar

27 [1983] 2 AC 629.

28 (1990) 169 CLR 648.

29 See M Allars, above n 13 at 222-225. See also the submissions to the Senate Legal and Constitutional Legislation Committee's inquiry into the Administrative Decisions (Effect of International Instruments) Bill 1995 by the New South Wales Bar Association (Submission No 5), the Law Council of Australia (Submission No 8) and the Australian Law Reform Commission (Submission No 17) stating that the Teoh judgment was well founded in law and does not constitute a radical departure from precedent.

30 Pacta sunt servanda: Vienna Convention on the Law of Treaties: art 26.

31 Administrative Decisions (Effect of International Instruments) Bill 1995: preamble.

32 H Burmester, “The Teoh Decision - A Perspective From the Government Service” June 1995 AIAL Forum No 5, 6 at 7.

33 M Allars, above n 13 at 231.

34 With whom Gaudron J agreed on this point.

35 (1995) 128 ALR 353 at 362, and McHugh J at 384. See also Dietrich v The Queen (1992) 177 CLR 292 at 306 per Mason CJ and McHugh J; Lim v Minister for Immigration (1992) 176 CLR 1 at 38 per Brennan, Deane and Dawson JJ; and Attorney-General v Guardian Newspapers Ltd [No 21 [1990] 1 AC 109 at 283 per Lord Goff of Chievely.

36 Polites v Commonwealth (1945) 70 CLR 60 at 68-69, 77 and 80-81.

37 (1995) 128 ALR 353 at 362. For a similar English view, see the dissenting judgment of Scarman LJ in Ahmad v Inner London Education Authority [1978] QB 36 at 48, where he refers to the interpretation of statutory language “so as to reach a conclusion consistent with our international obligations”.

38 [1991] 1 AC 696.

39 [1991] 1 AC 696, summarised by Ralph Gibson LJ at 725.

40 Lester relied on the authority of Garland v British Rail Engineering Ltd [1983] 2 AC 751 at 771 per Lord Diplock: “[I]t is a principle of construction of United Kingdom statutes ... that the words of a statute passed after the Treaty has been signed and dealing with the subject matter of the international obligation of the United Kingdom, are to be construed, if they are reasonably capable of bearing such a meaning, as intended to carry out the obligation, and not to be inconsistent with it.”

41 [1991] 1 AC 696 at 718.

42 Ibid at 726.

43 Ibid at 728.

44 With whom Lord Roskill agreed.

45 [1991] 1 AC 696 at 748.

46 Ibid at 761.

47 See also Ashby v Minister for Immigration [1981] 1 NZLR 222, where the New Zealand Court of Appeal refused to read down a broad delegation of power to a Minister in a manner which would limit the Minister's power to the making of decisions which comply with the Convention on the Elimination of All Forms of Racial Discrimination.

48 (1995) 128 ALR 353 at 362.

49 Ibid at 362. See also Mabo v Queensland [No 2] 175 CLR 1 at 42 per Brennan J; Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 68 ALJR 127 at 135 per Mason CJ and Toohey J; and Western Australia v The Commonwealth (1995) 128 ALR 1 at 64.

50 (1995) 128 ALR 353 at 362.

51 Ibid at 384.

52 Ibid at 375.

53 Ibid at 376.

54 Hansard, SLCRC, 16 May 1995 at 379.

55 Ibid at 394-5. See also evidence given by Mr Brian Fitzgerald from Griffith University,Hansard, SLCRC, 13 June 1995 at 547-548.

56 Commentaries on the Laws of England,Vol IV (1769) at 67.

57 See for example: Triquet v Bath (1764), 3 Burr 1478 97 ER 936; Lockwood v Coysgarne (1765) 3 Burr 1 676 97 ER 1041; Heathfield v Chilton (1767) 4 Burr 2015 98 ER 50; Viveash v Becker (1814) 3M & S 284 105 ER 619; Emperor of Austria v Day and Kossuth (1861) 2 Giff 628 66 ER 263; and see generally discussion in D W Greig, International Law, (2nd ed 1976) at 55-60.

58 [1975] 1 WLR 1485.

59 [1977] QB 529.

60 [1977] QB 529 at 554.

61 Polites (1945) 70 CLR 60 at 80-81. See also Jordan CJ in Wright v Cantrell (1943) 44 SR (NSW) 45 at 47, where he stated: “By the law of England and of this State, international law is rec nised as part of the local law save to the extent to which it is inconsistent with that law.

62 Chow Hung Ching v The King (1949) 77 CLR 449 at 480-1. See also Latham CJ at 462, where he stated: “International law is not as such part of the law of Australia ... but a universally recognized principle of international law would be applied by our courts”.

63 (1992) 175 CLR 1 at 42. See also Dietrich (1992) 177 CLR 292 at 404 per Brennan J.

64 See the Administrative Decisions (Effect of International Instruments) Bill 1995.

65 The schedules to the Act contain the Convention Concerning Discrimination in Respect of Employment and Occupation, the International Covenant on Civil and Political Rights, the Declaration on the Rights of the Child and the Declaration on the Rights of Mentally Retarded Persons. Further international instruments have been given the same status by way of Ministerial Declaration, under s 47 of the Act, including the Convention on the Rights of the Child.

66 Sen Deb 1993, Vol 159 at 1473; H Reps Deb 1993, Vol 189 at 695.

67 Re Marion, (1990) 14 Fam L R 427 at 449.

68 Re Marion, (1990) 14 Fam LR 427 at 451. See also comments by Nicholson CJ and Fogarty J in Marriage of Murray and Tam (1993) 16 Fam LR 982 at 998, that this is still an open issue.

69 (1992) 37 FCR 298.

70 Ibid at 343.

71 (1995) 128 ALR 353 at 373.

72 Ibid at 386.

73 This issue may be resolved, to some extent, by Administrative Decisions (Effect of International Instruments) Bill 1995: subclause 6(2).

74 Sir Gerard Brennan, paper delivered at “The Mason Court and Beyond” (above n 12).