In the Wake of TEOH: Finding an Appropriate Government Response
| DOI | 10.22145/flr.29.2.4 |
| Date | 01 June 2001 |
| Author | Wendy Lacey |
| Published date | 01 June 2001 |
| Subject Matter | Article |
IN THE WAKE OF TEOH: FINDING AN APPROPRIATE
GOVERNMENT RESPONSE
Wendy Lacey*
INTRODUCTION
Few cases of recent times, beyond the decisions of Mabo1 and Wik,2 could rival Minister
for Immigration and Ethnic Affairs v Teoh,3 for the dramatic response it provoked in
political, legal and academic circles. In the aftermath of the High Court's decision in
Teoh came three Commonwealth Bills,4 one state Act,5 several 'executive statements' at
both the Federal and state level,6 and numerous academic commentaries.7 Yet, despite
the many attempts to override the decision by successive federal governments, the
Teoh principle continues to apply to the administrative decisions made at the federal
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* BA (Hons) LLB (Hons) (Tas), PhD Candidate, University of Tasmania. The author would
like to acknowledge the kind assistance of Professor Ryszard Piotrowicz, Mr Rick Snell and
Mr Michael Stokes in offering comments on an earlier draft of this article.
1 Mabo v Queensland [No.2] (1992) 175 CLR 1.
2 Wik Peoples v Queensland (1996) 187 CLR 1.
3 Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273 ('Teoh').
4 Administrative Decisions (Effect of International Instruments) Bill 1995, Administrative
Decisions (Effect of International Instruments) Bill 1997, Administrative Decisions (Effect of
International Instruments) Bill 1999.
5 Administrative Decisions (Effect of International Instruments) Act 1995 (SA).
6 Gareth Evans and Michael Lavarch, 'International Treaties and the High Court Decision in
Teoh', Joint Statement by th e Minister for Foreign Affairs and the Attorney General, May 10
1995, A Downer, 'Executive Statement on the Effect of Treaties in Administrative Decision-
Making' (1997) 8 Public Law Review 120. See also the 'Executive Statements' issued by the
South Australian and Western Australian Governments, (1996) 17 Australian Yearbook of
International Law 554.
7 Leslie Katz, 'A Teoh FAQ' (1998) 16 AIAL Forum 1; Anne Twomey, 'Minister for
Immigration and Ethnic Affairs v Teoh' (1995) 23 Federal Law Review 348; Margaret Allars,
'One Small Step for Legal Doctrine, One Giant Leap Towards Integrity in Government:
Teoh's Case and the Internationalisation of Administrative Law' (1995) 17 Sydney Law
Review 202; S Sheridan, 'Legitimate Expectations: Where Does the Law Now Lie?' (1998) 87
Canberra Bulletin of Public Administration 125-133; Kristen Walker, 'Who's The Boss? The
Judiciary, the Executive, the Parliament and the Protection of Human Rights' (1995) 25
Western Australian Law Review 238; Ryszard Piotrowicz, 'Unincorporated Treaties in
Australian Law: The Official Response to the Teoh Decision' (1997) 71 Australian Law
Journal 503; Ryszard Piotrowicz, 'Unincorporated Treaties in Australian law' (1996) Public
Law 190; PW Perry, 'At the Intersection: Australian Law and International Law' (1997) 71
Australian Law Journal 841.
220 Federal Law Review Volume 29
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level.8 The third of the Commonwealth Bills aimed at over-riding the Teoh principle of
legitimate expectation progressed only as far as its predecessors, with its debate in the
Senate having been adjourned on 5 April, 2001.
It is unlikely that enactment of the proposed Bill would have laid the Teoh principle
finally to rest, and developments since the last Senate Inquiry conducted in 1997 raise
further issues pertaining to the original High Court decision. In particular, subsequent
case law has provided clear judicial statements regarding the effectiveness (or
ineffectiveness) of earlier executive statements issued by successive federal
governments, as well as outlining what constitutes a legally enforceable 'executive
indication to the contrary'.9 In addition to recent developments on the domestic front,
the proposed Bill had also been criticised by one international body for being
inconsistent with Australia's international legal obligations, with the recommendation
that it be withdrawn.10 Given the very minor differences between the third Bill and its
two predecessors, this charge could also have been laid in respect of each of the earlier
Bills.11
These recent developments place commentators and politicians in a better position
to evaluate the impact of Teoh and the appropriateness of legislative and executive
responses to it. In doing so, consideration must be given to broader issues, both
domestic and international, associated with Australia's treaty involvement. While
successive governments have struggled to pass anti-Teoh legislation prior to the
prorogation of Parliament, further consideration of the Teoh decision by the Federal
Court has identified a more appropriate and effective response to the decision by using
detailed and specific executive measures. The use of these measures, as an alternative
to generic legislation, should be preferred as they would alleviate the problems
contained in the proposed legislation, would be more consistent with the reforms
improving executive accountability in treaty-making, and would be far less likely to
damage Australia's international standing than the proposed Act. With the new term
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8 It is doubtful whether the decision extends to administrative decisions made at the state
level, at least in the context of legitimate expectations arising out of the act of ratification
(an exclusive act of the federal executive). However, the relevance of international
instruments may arise on the basis of procedural fairness or other common law principles
applicable to administrative decisions made at the state level. South Australian legislation
is premised on the fact that Teoh may apply within the States, and precludes any means by
which international instruments may affect a decision, with the exception of instances
where a decision-maker has regard to the instrument as a matter relevant: Administrative
Decisions (Effect of International Instruments) Act 1995 (SA) s 3. On the question of whether
Teoh even applies to administrative decisions made at state level see also, Kristen Walker,
'Treaties and The Internationalisation of Australian Law', in Cheryl Saunders (ed), Courts of
Final Jurisdiction: The Mason Court in Australia (1996) 224.
9 Teoh (1995) 183 CLR 273, 291 (Mason CJ and Deane J).
10 Concluding Observations of the Human Rights Committee: Australia. 28/07/2000.
CCPR/CO/69/AUS.
11 The 1997 and 1999 Bills are exactly the same. The 1995 Bill (introduced during Labor's term
in office) was more detailed in its references to the exclusion of accepted uses of
international instruments in domestic law (clause 6), and of the availability of remedies or
redress for alleged breaches of Australia's international obligations (clause 7). The 1995 Bill
did not, however, include provision for excluding the operation of its operative clause
where state enactments applied to decisions at the state level (as was provided under
clause 6 of the 1997 and 1999 Bills).
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