Commonwealth Power to Make and Implement Treaties.

Traditional view and the High Court

It has been generally accepted that treaties are not directly incorporated into Australian domestic law by the international act of ratification or accession by Australia. Treaties therefore do not 'run' in domestic law unless implemented by legislation.[1] This view has been shared by successive Governments of different political persuasions.

In Dietrich v The Queen Chief Justice Mason and Justice McHugh considered the effect of the International Covenant on Civil and Political Rights (ICCPR) in Australian law:

Ratification of the ICCPR as an executive act has no direct legal effect upon domestic law; the rights and obligations contained in the ICCPR are not incorporated into Australian law unless and until specific legislation is passed implementing the provision.[2]

However, there have been important developments in recent years on the relationship between domestic law and international treaties. The submission of the Attorney-General's Department noted that treaties may have some indirect influence on Australian domestic law prior to their implementation through legislation.[3]

In Mabo v. Queensland (No. 2), Justice Brennan stated:

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.[4]

The Attorney-General's Department's submission to the Committee also discerned the following role for treaties from statements made by High Court Justices in the case of Dietrich v The Queen:

Dietrich's case illustrates that treaties, particularly those dealing with human rights, can be used:

to resolve uncertainty or ambiguity in the common law;

to support review of earlier decisions and then possibly their overruling; and

to assist in the determination of community values and standards relevant to the development of the common law.[5]

The Hon. Elizabeth Evatt, former Chief Justice of the Family Court, made the following comments in relation to treaties, customary international law and the common law of Australia:

Quite apart from conventions that Australia ratifies, some parts of that international law can, as a matter of common law, apply in Australia without any further action on the part of anyone. I think the recent High Court case of Teoh may have referred obliquely to this, but it could have said more about the fact that under common law, customary rules, and particularly principles of human rights, such as the principle against genocide and so on, are part of customary international law. Naturally as such, they can be overruled by legislation, as any part of the common law can. But we should not think of international law as being an entirely separate thing from the law of Australia. Some parts of it we would recognise.[6]

Teoh's case

A further indirect effect of treaties on Australian law was identified by the High Court in Minister for Immigration and Ethnic Affairs v Teoh.[7] The High Court held (by majority of 4: 1) that ratification of an international convention by the Executive can create a legitimate expectation that the Executive will act in accordance with the convention:

[R]atification 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'.[8]

The existence of a legitimate expectation attracts a duty to accord procedural fairness in the exercise of discretionary powers as follows:

[I]f a decision-maker proposes to make a decision inconsistent with a legitimate expectation, procedural fairness requires that the persons affected should be given notice and an adequate opportunity of presenting a case against the taking of such a course. So, here, if the delegate proposed to give a decision which did not accord with the principle that the best interests of the children were to be a primary consideration, procedural fairness called for the delegate to take the steps just indicated.[9]

Teoh's case does not alter the basic legal proposition that treaties are not directly incorporated into domestic law until they have been legislatively implemented:

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. In this case, it is common ground that the provisions of the Convention have not been incorporated in this way.[10]

It has been argued by some, however, that the indirect effect of treaties upon Australian law, as recognised by the High Court in Teoh's case, is so significant that it is undermining the role of the Parliament as the only body which can directly implement treaties by way of legislation.

Professor Campbell has commented that the decision has 'constitutional significance'. In her submission, she stated:

The decision in Teoh has far reaching implications. Australia is now a party to many international conventions which relate to the domestic law of parties to the conventions and the way in which that law is administered. Few of these conventions have been enacted into Australian law and a number of those which have not been so enacted may have a bearing on the exercise of discretionary powers invested in governmental officials, courts and tribunals, State, Territory as well as federal. There is bound to be a good deal of uncertainty about which conventions may be relevant to the exercise of particular discretions and also about precisely what undertakings in relevant conventions require.[11]

Mr Peter Bayne, from the Australian National University, considered that the practical effect of the legitimate expectation in the Teoh case was almost the same as if decision makers had been required by legislation to take account of treaties. He stated:

[I]n practical effect, the Court was coming very close to saying that decision makers must have regard to the terms of a convention when they exercise an administrative power. If there is no act of the legislature or the executive or if there is no action of the executive which displaces the convention, then as a matter of practical effect decision makers will have to have regard to the terms of the convention in order to determine whether they should give a hearing to a person in respect of whom they propose not to apply the convention.

That comes very close to a rejection of the basic legal principle that conventions do not have the force of law in Australia unless adopted by relevant local legislation.[12]

Government's response to Teoh's case

Press Release

On 10 May 1995, the Minister for Foreign Affairs, Senator Gareth Evans, and the Attorney-General, Michael Lavarch, published a joint press release on the Teoh case.

In their press release, the Ministers were critical of the potential consequences of the Teoh decision. They stated:

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.[13]

The Ministers then stated that the fact that the Government enters into a treaty should not create an expectation that the Government and its officials will comply with Australia's treaty obligations. They announced:

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.[14]

The Ministers concluded, however, that this statement should not be taken as derogating from Australia's international obligations:

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.[15]

Administrative Decisions (Effect of International Instruments) Bill 1995

The Government reinforced its press release by introducing the Administrative Decisions (Effect of International Instruments) Bill 1995 into the House of Representatives on 28 June 1995. The primary provision in the Bill is clause 5. It provides:

The fact that Australia is bound by, or a party to, a particular international instrument, or that an enactment reproduces or refers to a particular international instrument, does not give rise to a legitimate expectation, on the part of any person, that:

(a) an administrative decision will be made in conformity with the requirements of that instrument; or

(b) if the decision were to be made contrary to any of those requirements, any person affected by the decision would be given notice and an adequate opportunity to present a case against the taking of such a course.

Criticism of the Government's response

The Committee received both evidence and submissions from a number of people, who were critical of the Government's response to the Teoh case,[16] including two submissions from the President of the Human Rights and Equal Opportunity Commission.[17] The Committee also received submissions supporting the Government's response.[18]

Senate Legal and Constitutional Legislation Committee Report

The Administrative Decisions (Effect of International Instruments) Bill 1995 was referred to the Senate Legal and Constitutional Legislation Committee for a separate inquiry on 28 August 1995. The Legislation Committee reported on the Bill on 28 September 1995.

The Committee recommended by majority that the Bill be enacted, stating:

The Committee notes that there is currently political and community debate as to the respective roles that Parliament and the Executive should play regarding the entry into, and ratification of, international instruments. An element of this debate relates to the effect of those international instruments on Australian law before their enactment. In recommending the enactment of the Bill, the Committee wishes to preserve for now what was understood to be the status quo before the majority decision of the High Court in Teoh. However, the Committee recommends that once the review into the impact of treaties on administrative decision making is complete, and political and community discussion and debate have taken place, the legislation should be revisited and assessed.[19]

Senators Spindler, Chamarette and Margetts recommended that the Bill be withdrawn, dissenting from the majority recommendations made in the Senate Legal and Constitutional Legislation Committee Report on the Bill. Senator Spindler criticised the Government's response to Teoh's case as follows:

The High Court decision provided an opportunity for a major improvement in the integrity of decision making in Australia by allowing administrative decision makers to take into account the provisions of treaties Australia has signed and ratified.

However, unlike the Mabo decision, where the Government used a High Court decision to positively respond with a comprehensive legislative regime, the government has decided that it must reverse that very small step towards better human rights standards.

In doing so, it will condemn Australia to presenting a two-faced image to the world by allowing the government to wax lyrical about its human rights treaty commitments, but quashing any suggestions that the same human rights will be protected at home.[20]

Teoh and the call for greater parliamentary involvement in treaty making

A number of witnesses who gave evidence before the Committee considered that the High Court's judgment in the Teohcase gave greater weight to the call for increased parliamentary involvement in the treaty making process.[21]

Senator Bourne made the following point to the Committee:

In the recent Teoh judgment, the High Court found that government ratification of a treaty gave rise to a legitimate expectation that public servants would act in accordance with a treaty. The court made it clear that ratification, while not changing the law, had a definite impact on its interpretation and its administration. This gives further weight to the call for parliamentary approval, because the present situation allows the executive government to influence the law without the consent of the parliament.[22]

Mr Geoffrey Ewing, of the Australian Mining Industry Council, described the Teoh case as a 'very good reason why there should be the ultimate in consultation, and really in the form of parliamentary approval, before treaties are signed by the government'.[23]

Mr Robert Hadler, of the National Farmers' Federation, identified the Teoh case as one of the reasons for the National Farmers' Federation adopting the view that parliamentary approval of treaties is necessary. He stated:

NFF has been reluctant to go so far as to support parliamentary approval, because of the difficulties in gaining bipartisan support for that approach and difficulties in designing an effective and workable system. However, as AMIC alluded to, the recent High Court decision in the Teoh case has been very influential in giving rise to further concerns about the role of international treaties and parliament. The NFF has recently agreed to a resolution on this issue which says:

"Proposed treaty ratification should be subject to Parliamentary approval and any implementing legislation should not be put to Parliamentary vote until Parliament has had sufficient opportunity to consult with the wider community and consider whether becoming party to the Convention would be in the national interest".[24]

Conclusion

Treaties are not directly incorporated into Australian law by the act of ratification or accession. Nevertheless, they can play an important role in a number of areas even when not incorporated into domestic law, particularly:

in the development of the common law; and

in influencing decision-makers at all levels of Government (particularly in relation to human rights treaties).

The Teoh decision and the reaction to it demonstrates the increasing impact that treaties have in Australia. This increasing impact of treaties is, in itself, reason for greater parliamentary involvement prior to the ratification of treaties. The Committee makes recommendations on this subject in subsequent Chapters.

In particular, the reaction to the Teoh case has demonstrated a concern about the effect of treaties on Australia's sovereignty. This issue is further addressed in Chapter 14.

Endnotes:

  1. New South Wales v Commonwealth (1975) 135 CLR 337, at 450-51; Simsek v MacPhee (1982) 148 CLR 636, at 641; Koowarta v Bjelke-Petersen (1982) 153 CLR 168, at 192-193; 211-212; 225-5; and 253; Kioa v West (1985) 159 CLR 550 at 570-571; Dietrich v The Queen (1992) 177 CLR 292, at 305; and Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298, at 303. See also: Mr H. Burmester, Attorney-General's Department, Submission No. 75, Vol 4, pp 702-4.
  2. (1992) 177 CLR 292, at 305.
  3. Mr H. Burmester, Submission No. 75, Vol 4, p 702.
  4. (1992) 175 CLR 1, at 42. This statement has been supported by Mason CJ and Toohey J in Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at p 499:
    As this Court has recognised, international law while having no force as such in Australian municipal law, nevertheless provides an important influence on the development of Australian common law, particularly in relation to human rights.
  5. Mr H. Burmester, Submission No. 75, Vol 4, p 703.
  6. Hansard, SLCRC, 16 May 1995 p 379, per the Hon. E. Evatt.
  7. (1995) 128 ALR 353.
  8. (1995) 128 ALR 353, per Mason CJ and Deane J at 365; and per Toohey J at 374.
  9. (1995) 128 ALR 353, per Mason CJ and Deane J at 365; and per Toohey J at 371-2. See also Gaudron J at 375-6.
  10. (1995) 128 ALR 353 per Mason CJ and Deane J at 361-2; per Toohey J at 370 and per Gaudron J at 375.
  11. Professor E. Campbell, Submission No. 88, Vol 5, pp 1057-8.
  12. Hansard, SLCRC, 1 May 1995, p 110, per Mr P. Bayne.
  13. Joint 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, 10 May 1995.
  14. Joint 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, 10 May 1995.
  15. Joint 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, 10 May 1995.
  16. See, for example: Ms H. Bayes, Submission No. 155, Vol 10, p 2245; Professor M. Detmold, Submission No. 150, Vol 10, p 2207; Mr S. Mark, Submission of the International Commission of Jurists, Submission No. 153, Vol 10, p 2224; and Hansard, SLCRC, 25 July 1995, p 834, per Mr A. Rose.
  17. Sir Ronald Wilson, Submission No. 131, Vol 8, p 1778 and Submission No. 151, Vol 10, p 2209-2212.
  18. See for example: Hansard, SLCRC, 14 June 1995, pp 720-1, per Mr T. Pallas of the Australian Council of Trade Unions.
  19. Senate Legal and Constitutional Legislation Committee, Administrative Decisions (Effect of International Instruments) Bill 1995, Canberra, 1995, p 33.
  20. Senate Legal and Constitutional Legislation Committee, Administrative Decisions (Effect of International Instruments) Bill 1995, (1995), Dissenting Report - Senator Spindler.
  21. See for example: Hansard, SLCRC, 2 May 1995, p 174, per Mr J. Daley; Hansard, SLCRC, 15 May 1995, p 232, per Mr W. Marmion; and on a more theoretical level, Hansard, SLCRC, 16 May 1995, pp 392-393, per Mr D. Bennett QC.
  22. Hansard, SLCRC, 1 May 1995, p 99. See also Senator V. Bourne, Submission No. 114, Vol 7, pp 1518-1519.
  23. Hansard, SLCRC, 1 May 1995, p 70.
  24. Hansard, SLCRC, 1 May 1995, p 72.

 

 

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