Parliament's potential legislative response to Minister v Teoh

¶ … PARLIAMENT LEGISLATE to LIMIT the EFFECT of the HIGH COURT'S DECISION in MINISTER vs. TEOH (1995) 183 CLR 273

The work of Griffith and Evans (2002) entitled: "Teoh and Visions of International Law" the case of Teoh (1995) 183 CLR 273 it is stated that the Minister for Immigration and Ethnic Affairs v Teoh was one of those High Court decisions taken to the streets. What was, on reflection, an unexceptional, even conservative, decision, ignited a fierce political debate." The work of Lacey (2004) entitled: "A Prelude to the Demise of Teoh: The High Court Decision in Re Minister for Immigration and Multicultural Affairs; Ex-parte Lam" states that the authority of the High Court in its' 1995 decision in Teoh must now be examined in light of the High Court's 2003 decision in Lam." (Lacey, 2004) the work of Selway (2004) entitled: "The Principle Behind Common Law Judicial Review of Administrative Action - the Search Continues" states that common law "has had considerable difficulty in identifying a principle or principles by which to explain the order of the court's in reviewing administrative action." (Selway, 2002) Selway states that specifically "the separation of judicial power justifies and requires the distinction between jurisdictional and non-jurisdictional errors and the distinction between invalidity and merit review in Australian administrative law." (Selway, 2002) Since about 1700, "the role of the courts in reviewing administrative and judicial decision was explained on the basis of the rule of law. The relevant act or decision was invalid because it was in breach of or unauthorized by the law, or was beyond the scope of the power given to the decision maker by the law and was consequently of no legal effect, or the relevant decision maker had failed to comply with the law and should be compelled to do so. Judicial review was thus an aspect of the rule of law and could be explained by the principle of ultra vires. This explanation for judicial review is usually described as the 'ultra view theory.'" (Selway, 2002)

MAJOR ISSUES of TEOH

The key elements in this case include the first issue, which relates to the development of administrative law in Australia. John McMillan, in the work entitled: "Parliament and Administrative Law" states that the origins of administrative law: "...are located strongly in the common law, supplemented by s. 75(v) of the Constitution which confers an original jurisdiction upon the High Court to grant three administrative law remedies against the Commonwealth. Nowadays, however, the common law and constitutional underpinnings have been overshadowed in importance by the rights and review mechanisms created by Parliament in the last three decades. The protection of the public against executive error or abuse now has a firm legislative foundation." (2000) the second issue has to do with the "tension and conflict that arises between Parliament and the courts in the development of administrative law." (McMillan, 2000)

HISTORICAL BACKGROUND of the DECISION in TEOH

The applicant in Teoh "had been subject to a deportation order following a criminal conviction for importing heroin into Australia." Teoh was the parent responsible for seven children who were born in Australia and including the biological and step-children of Mr. Teoh. Mr. Teoh was a Malaysian citizen who cam to Australia in 1988 on a temporary entry permit. Griffith and Evans relate that he married Jean Helen Lim, an Australian citizen soon after he arrived in Australia. Ms. Lim already had four children and Teoh and Lim further had three children together. Griffith and Evans report that "Teoh applied for permanent residency in Australia..." (2002) and in 1999, prior to the determination of his application "he was found guilty of being involved in the importation of heroin and possession of heroin. He was sentenced to six years' imprisonment. In January 1991, Mr. Teoh's application for permanent residency was refused by a delegate of the Minister on the grounds that Mr. Teoh was not of good character because, inter alia, of his conviction for drug offences." (Griffin and Evans, 2002) an application was made by Teoh to have the decision reviewed "by the Immigration Review Panel..." who "acknowledge that 'Ms. Teoh and her family [were] facing a very bleak and difficult future' if residency was refused, but held that this was not enough to justify a waiver of the policy of refusing resident status to people with serious criminal convictions." (Griffin and Evans, 2002) the decision was upheld by French justice in the Federal Court and Mr. Teoh claimed "...that the decision-maker had failed properly to take into account as a primary consideration the damage that would be caused to his children if he were to be deported. This test was derived from article 3 of the Convention on the Rights of the Child 1989 (CROC). The Full Court upheld this claim." (Griffin and Evans, 2002) the appeal of the Minister to the High Court was dismissed in April 1995 in a joint judgment which "held that international conventions were not incorporated into Australian law could nevertheless give rose to a legitimate expectation that, in making administrative decision, the government would either act in a manner consistent with its treaty obligations or give the person affected an opportunity to argue that the treaty provisions should be applied. Such legitimization expectations existed if there were no 'statutory or excessive indications to the contrary. Thus, the delegate of the Minister had erred in failing to make the interest of the child a 'primary consideration' as required under article 3 of the CROC, and in not giving Mr. Teoh a chance to argue that the Convention should have been applied." (Evans and Griffin, 2002) Griffin and Evans state:.." It followed, therefore, that Mr. Teoh had been denied procedural fairness and the decision of the delegate was set aside." (2002) Within a month of the judgment being handed down a formal response with delivered by the government "in the form of a Joint Statement by the Minister for Foreign Affairs and the Attorney General." (Griffin and Evans, 2002) the intention of the statement was clarification of the government's position in relation to the Teoh case and for the purposes of elimination of "international conventions as a basis for legitimate expectations in administrative decision-making." (Griffin and Evans, 2002) the statement is stated to have been an explicit referenced which relied "on the dicta in the judgment" of Justices Mason and Deane "that statutory or executive indications to the contrary may negative legitimate expectations that could otherwise arise from treaties." (Griffin and Evans, 2002) the specific statement of the Justices was as follows:

E]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 haven to been enacted into domestic Australian law. It is not legitimate, for the purpose of applying Australian law, to expect that the provisions of a treat 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." (Griffin and Evans, 2002)

The legislative response is reported in the work of Griffin and Evans who state: "Each executive statement was expressed to be an anticipation of legislation to confirm that the ratification of treaties does not give rise to legitimate expectations. The Administrative Decisions (Effect of International Instruments) Bill was introduced in 1995. The Bill enjoyed bi-partisan support but lapsed with the calling of the 1996 election. A Bill of the same name and of similar scope was then introduced by the new government in 1997." (Griffin and Evans, 2002) Clause 5 of the primary provision of each of the Bills states:

The fact that:

Australia is bound by, or party to, a particular international instrument; or 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." (Griffin and Evans, 2002)

The case of Teoh has brought a large examination to the range and role of legitimate expectations in judicial review of administrative action. And according to Griffin and Evans, "...of wider import is the exposure of different visions of international law in the working of municipal law." (Griffin and Evans, 2002) the view of the internationalist is that international law creates "standards and obligations that are of domestic relevance." (Griffin and Evans, 2002) Whereas, it is perceived by the traditionalist that international law is for the most part 'benign, but "predominantly a matter for states and of minimal relevance to domestic law of individuals within Australia." (Griffin and Evans, 2002) a view, which is more limited vision "has a rhetoric that approves of international law but also perceives it as a potential threat to other important values. The more conservative vision is overtly hostile to international law and seeks to minimize its domestic application." (Griffin and Evans, 2002) a wider vision of international law, according to Griffin and Evans is one that views adhering to laws that are international as an obligation "to the extent of mandating each arm of government to promote compliance with international law." (2002) This position is justified firstly, through holding that international law "is law, and it produces binding, legal obligations on Australia. Hence international law should be obeyed out of a sense of legal obligation." (Griffin and Evans, 2002) the second justification used is one that holds that "the content of international laws often has some moral force and should be obeyed out of a sense of moral obligation." (Griffin and Evans, 2002) in the area of human rights law this is particularly held true and in cases where "judges sometimes come close to the language of natural law when describing the importance of these rights." (Griffin and Evans, 2002) Both Chief Justice and Deane in Teoh reflect in their joint judgment the view that complying with international law is "both legally and morally obligatory" the application of the interpretive rule is that "ambiguous statutes should be read so that they conform to rather than conflict with international obligations." (Griffin and Evans, 2002) This is reflective of respect held for international treaties and makes a judicial assumption that the parliament has the intentions to hold the legal obligations of Australia on an international basis as serious "unless there is a clear indication to the contrary." (Griffin and Evans, 2002) the facts in this case are revisited in the work of Lacey who states "at one level, the majority of the High Court simply rearticulated the existing principles regarding the legitimate use that may be made of unincorporated international treaties in Australian law." (2004) High Court Justices Mason and Deane are noted to have stated:

T]he fact that the Convention has not been incorporated into Australian law does not mean that its ratification holds no significance for Australian law. Where a statute or subordinate legislation is ambiguous, the courts should favor that construction which accords with Australia's obligations under a treaty or international convention to which Australia is a party, at least in those cases in which the legislation is enacted after, or in contemplation of, entry into, or ratification of, the relevant international instrument. That is because Parliament, prima facie, intends to give effect to Australia's obligations under international law. It is accepted that a statute is to be interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with the established rules of international law." (Lacey, 2004)

THE PRIMARY QUESTION and the CONTROVERSY in TEOH

The High Court Justices furthermore "referred to the accepted use that may be made of 'international instruments in the development of the common law.'" (Lacey, 2004) Lacey states that the primary legal principle was the question of "whether 'Australia's ramification of the Convention [on the Rights of the Child] [could] give rose to a legitimate expectation that the decision-maker will exercise that discretion in conformity with the terms of the Convention. The fact that the majority of the court, including Mason and Deane (together with Hoohey who delivered a separate judgment) answered this question in the affirmative..." And it was precisely this that fermented into a controversy in regards to the decision of the court. The judgment, which was joint in nature provided reasoning as follows in addressing the question in this case:

R]atification by Australia of an international convention is not to be dismissed as a merely platitudinous or ineffectual act, particularly when the instrument evidences internationally accepted standards to be applied by courts and administrative authorities in dealing with basic human rights affecting the family and children. Rather, ratification 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." [Emphasis added.]" (Lacey, 2004)

The expectation that had been identified in Teoh held that whether or not the individual was in possession of the knowledge of the existence of the Convention "would not preclude the expectation from arising." (Lacey, 2004) it was held by both Mason and Deane in this case that "it was enough that the expectation was reasonable in the sense that there are adequate materials to support it. The effect of the legitimate expectation was not to create a binding rule of law, whereby a decision-maker was compelled to act in conformity with the Convention. Such a result would have involved the incorporation of the Convention 'by the backdoor' and would have linked the effect of the legitimate expectation with substantive outcome, rather than with the procedures to be adopted." (Lacey, 2004)

DISTINCTION BETWEEN ADMINISTRATIVE LAW and PROCEDURAL LAW

Lacey holds that in administrative law "this distinction is critical...and stems from the separation of powers in Australia." (2004) Only the legalities of the decision-making in judicial review of administrative action is allowable and the merits of the case are not considered "which is an administrative function to be performed by the executive." (Lacey, 2004)Lacey relates that the ultimate outcome of the expectation being held to be legitimate in Teoh was not of this class or decision, however. It did not involve a development of the law in conflict with the constitutional separations of powers. The effect of the legitimate expectation in Teoh's case was limited to a procedural guarantee, which was itself premised upon the right of the decision-maker to act inconsistently with a treaty obligation. Where a decision-maker proposed to decide a matter inconsistent with a legitimate expectation, procedural fairness would require that any persons affected be given notice and an adequate opportunity of presenting a case against such a course of action." (2004)

The High Court's decision in Teoh included that delivered by Justice McHugh described as a "strong dissenting judgment" treating the identified legitimate expectation to be one that involved the substantive protection of the treaty instead of applying the focus on the requirements of procedural law. McHugh stated:

In my opinion, no legitimate expectation arose in this case because:

1) the doctrine of legitimate expectations is concerned with procedural fairness and imposes no obligation on a decision-maker to give substantive protection to any right, benefit, privilege or matter that is the subject of a legitimate expectation;

2) the doctrine of legitimate expectations does not require a decision-maker to inform a person affected by a decision that he or she will not apply a rule when the decision-maker is not bound and has given no undertaking to apply that rule; (3) the ratification of the Convention did not give rise to any legitimate expectation that an application for resident status would be decided in accordance with Art 3." (Justice McHugh as cited in Lacey, 2004)

The point departed from by McHugh was: "therefore entirely different from that of the majority and at the start the question was being approached from a different viewpoint and McHugh went on to question various views of legitimate expectations in terms of the practicality of the role of the doctrine in Kioa v West in which the High Court "had adopted a broad approach to the types of interests sufficient to enliven procedural fairness requirements. While this is an accurate analysis of the position since Kioa regarding what is referred to as the 'threshold test', it is submitted that the doctrine of legitimate expectations must still play a role in determining the content of procedural fairness requirements in any given case." (2004)

McHugh also criticized the "objective nature of the expectation in Teoh..." As it was the belief of McHugh that "the subjective state of mind of an individual is affected by a decision should be treated as relevant to whether the expectation is 'objectively reasonable'." (Lacey, 2004) in other words the individual perspective of the claimant must within their view be required to have been shown to find the expectation to be reasonable therefore prior to that expectation holding validity. However, it was held by McHugh that the individual, being unaware of an objectively reasonable benefit and does not become aware in order to take advantage of that opportunity has not, if holding no expectation for such, suffered any type of disappointment or injustice "if the privilege or benefit is discontinued." (Lacey, 2004)

In other words, one cannot "lose" what one does not "hold" and in this case the 'expectation'. It is the opinion of Lacey that McHugh is directly "at odds with that of the majority" the capacity to test the reasoning of the majority in that case is said to be provisioned in Lam and even though Teoh did not rely upon the argument holding that no legitimate expectation. In 2003 McHugh was among other Judge who sympathized with his view in Teoh and according to Lacey: "it is against this background that the decision in Lam must be considered." (2004)

REVIEW of the CASE of LAM

The case of Lam involved an applicant, Vietnam-born and arriving in Australia at the age of 13 years old as a refugee in 1983. Lam was granted a Transnational (Permanent) Visa, cancelled on 23 January 2001 under the decision of the Minister s501(2) of the Migration Act 1958 (Cth). Lam had several criminal convictions with the most serious trafficking in heroin and Lam had received a sentence to serve eight years in prison however, failing to stand up under the scrutiny of he character test stated in s501(6) of the Act resulted in deportation of Lam. An application was filed on behalf of Lam for "orders of certiorari and prohibition under s75(v) of the Constitution, to quash the Minister's decision and to prevent the Minister from taking steps to deport Mr. Lam." (Lacey, 2004) the primary argument that the counsel of Lam relied on was "an allegation of want in procedural fairness based on the failure of the departmental officer to follow an announced procedure." (Lacey,

Lam was not married but he was the biological fathers of two girls born in 1989 and 1993 in Australia respectively. Various factors are stated to have been taken under advisement including "the best interest of any children with whom you have involvement." (2004) Lacey states:

Mr Lam exercised his right to comment on the matters relevant to the decision to be made, in what Gleeson CJ referred to as a lengthy submission 'obviously prepared with skilled assistance'. The applicant's letter was dated 30 October 2000. On the matter relating to his children, the applicant provided information regarding his daughters and their current circumstances, and advanced arguments as to why their interests required that he not be deported. These arguments included the fact that the girls had no contact with people from Vietnam, that they were happily settled in Australia, that he planned to marry upon his release from prison, and that the children would have to be cared for by the state were he to be deported. Annexed to Mr. Lam's letter, were letters from both his fiancee and from the children's carers, represented in this case by a letter from Ms Tran. The letter from the carer supported the facts raised in Mr. Lam's letter regarding the children's circumstances, and his arguments related to his deportation. In particular, the letter indicated that the welfare of the children would be best served in the long-term if the children were cared for by Mr. Lam and his fiancee." (2004)

Lam received a correspondence November 7, 2000 from an officer of the 'Character Assessment Unit' stating as follows:

The United Nations Convention on the Rights of the Child provides that in all actions concerning children, the best interests of the children shall be a primary consideration. Would you therefore kindly provide the full name, address and telephone number of the children's carers. The Department wishes to contact them in order to assess your relationship with the children, and the possible effects on them of a decision to cancel your visa. Would you please provide the full contact details of the mother of the children as well." (2004)

Lam did comply however the Department made a decision to forgo contacting the carers of the children and how the children could have been integrated into the society of the Vietnamese and never produced any evidence whatsoever of the same. The claim of Lam is that he was denied procedural fairness "as he had a legitimate expectation crated by the letter of 7 November that was not fulfilled. While the decision-maker was not bound to comply in substance with that decision not to follow through with the representation made to Mr. Lam, affording him an opportunity to respond." (Lacey, 2004)

The High Court rejected this argument. Chief Justice Gleeson held that in some cases procedural unfairness may occur when a decision-maker of administrative capacity relates an intention to "take a procedural step and fails to do without warning the person affected of the change of intention." (Lacey, 2004) it was rejected in this case by Chief Justice Gleeson that "procedural unfairness would result in all cases where such a change was made from the stated intention. His reasoning was largely premised on the discretionary nature of the remedies sought, including certiorari and prohibition, as well as the actual requirement of fairness." (Lacey,

Gleeson is noted as having stated:

There are undoubtedly circumstances in which the failure of an administrative decision-maker to adhere to a statement of intention as to the procedure to be followed will result in unfairness and will justify judicial intervention to quash the decision; but for the present applicant to succeed it would be necessary to conclude that such a result will follow in all circumstances. That cannot be correct. To begin with, it overlooks the discretionary nature of the remedies of certiorari and prohibition..and, in any event, it requires the concept of legitimate expectation to carry more weight than it will bear. If such a proposition were accepted, it would elevate judicial review of administrative action to a level of high and arid technicality." (Lacey, 2004)

Gleeson does not "the concept of 'detriment' upon which his requirement of 'unfairness' rests" and additionally Gleeson states:

It is the existence of a subjective expectation, and reliance, that result in unfairness. Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concept of the law is to avoid practical injustice. No practical injustice has been shown. The applicant lost no opportunity to advance his case. He did not rely to his disadvantage on the statement of intention. It has not been shown that there was procedural unfairness" (Lacey, 2004)