Minister for Immigration v Ah Hin Teoh
Outline of Submissions for Human Rights and Equal Opportunity Commission (Intervening by Leave)
1. On 20 November 1989 the Convention on the Rights of the Child ("the Convention") (ATS 1991 No 4) was adopted by the General Assembly of the United Nations and opened for signature, ratification and accession (see Cth Gaz No GN I, 13 January 1993, p 85). On 22 August 1990 the Convention was signed for Australia (see ATS 1991 No 4, P 35, n 1). On 2 September 1990, pursuant to Article 49, paragraph 1 thereof, the Convention entered into force generally (see ibid, p 37, n 1). On 17 December 1990 Australia deposited its instrument of ratification of the Convention with the Secretary-General of the United Nations (see ibid, p 36, n 1). On 16 January 1991, pursuant to Article 49, paragraph 2 thereof, the Convention entered into force for Australia (see ibid, p 37, n 2).
2. The Convention's entry into force for Australia occurred earlier in time than either of the two administrative decisions under challenge in the present matter, the first of those decisions having been made on 26 July 1991 and the second on 17 February 1992 (see AB60-62 and AB49 respectively).
3. On 22 December 1992, the Attorney General, being the Minister administering the Human Rights and Equal Opportunity commission Act 1986 (Cth) ("the Act") and acting pursuant to subsection 47(1) of the Act, declared the Convention to be an international instrument relating to human rights and freedoms for the purposes of the Act. On 13 January 1993, pursuant to paragraph 47(2)(a) of the Act, there were published in the Gazette copies of: (i) the Convention; (ii) Australia's instrument of ratification of the Convention; and (iii) the instrument of declaration under subsection 47(1) (see cth Gaz No GN 1, 13 January 1993, pp 85- 107). Pursuant to paragraph 47(2)(b) of the Act, the Minister's declaration therefore had effect on and from 13 January 1993. (Subsequently, attempts were made in each House of Parliament, pursuant to subsection 47(3) of the Act, to have disallowed the Minister's declaration of the Convention under the Act: see HR Hanard, 1 September 1993, pp 691-701; Sen Hansard, 30 September 1993, pp 1473-1498 and 1595-1598; 5 October 1993, pp 1682-1685. Each attempt was defeated.) The Minister's declaration of the Convention under the Act on 22 December 1992 was the first occasion of the use of the declaring power in the six years since the commencement of the Act on 10 December 1986. (Since the declaration of the Convention under the Act on 22 December 1992, the declaring power has been used on only one other occasion, when, on 8 February 1993, the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief was the subject of a declaration under the Act: see cth Gaz No GN 7, 24 February 1993, pp 525-527.)
4. The coming into effect of the Minister's declaration of the Convention under the Act occurred later in time than either of the two administrative decisions under challenge in the present matter.
5. The entry into force for Australia of the Convention had various consequences or potential consequences in Australian domestic law.
6. On the entry into force for Australia of the Convention, it became "a legitimate and important influence on the development of the common law" of Australia: Mabo v Queensland [No 2 ] (1992) 175 CLR 1, 42 (Brennan J; Mason CJ and McHugh J concurring); Dietrich v The Queen (1992) 177 CLR 292, 321 (Brennan J). For instance, to quote Toohey J in Dietrich (at 360),
Where the common law is unclear, an international instrument may be used by a court as a guide to that law...
[Further,] ...there is some English authority tending to support an argument that a court, may, perhaps must, consider the implications of an international instrument when there is a lacuna in the domestic law...
See also Dietrich at 306 (Mason CJ and McHugh J); 349 (Dawson J).
7. On the entry into force for Australia of the Convention, Australian courts came under a duty with respect to the Convention to act in accordance with the proposition that "the courts should, in a case of ambiguity, favour a construction of a Commonwealth statute which accords with the obligations of Australia under an international treaty": Chu Kheng Lilll v Minister for Immigration (1992) 176 CLR 1, 38 (Brennan Deane and Dawson JJ). (It is submitted that the only reason why the proposition just quoted referred only to Commonwealth statutes, rather than being expressed to apply to all Australian statutes, was that Chu involved a Commonwealth statute, coincidentally the same one as is under consideration in the present case.) See also Dietrich at 306 (Mason CJ and McHugh J).
8. In Yager v The Queen (1977) 139 CLR 28, a case not involving an international obligation of Australia with respect to human rights, Mason J (Barwick CJ, Gibbs and Stephen JJ concurring) said (at 43-44) in reliance on two decisions of the English Court of Appeal, one from 1967 and the other from 1971 and neither involving an international obligation of the united Kingdom with respect to human rights,
There is no basis on which the provisions of an international convention can control or influence the meaning of words or expressions used in a statute, unless it appears that the statute was intended to give effect to the convention, in which event it is legitimate to resort to the convention to resolve an ambiguity in the statute.
It is submitted that that approach was not intended to apply to the use of Australia's international obligations to construe Australian domestic legislation when those international obligations were ones with respect to human rights. Since 1974, the English courts' had been prepared to construe United Kingdom domestic legislation by reference to the United Kingdom's inter- national obligations with respect to human rights, even though the domestic legislation involved had not been intended to give I effect to those obligations: see the decision of the House of Lords in R v Miah [1974] 1 WLR 692, 694. Subsequent English authorities taking the same approach were relied on in the passages from the two decisions of this Court (both more recent in time than Yager) either quoted or referred to in paragraph 7 above.
9. On the entry into force for Australia of the Convention, Australian courts became entitled to use the Convention when considering the principles upon which they should act in exercising a judicial discretion, for instance, the discretion to grant an interlocutory injunction: compare Derbyshire CC v Times Newspapers [1992] QB 770, 812 (Balcombe LJ); affirmed (without reference to the point), [1993] AC 534.
10. By its acts of ratifying the Convention and depositing its instrument of ratification with the Secretary-General of the United Nations, the Commonwealth Executive engendered in persons potentially adversely affected by Commonwealth administrative decisions concerning children an expectation that such decisions of that type as were made would not bring Australia into breach of its international obligations under the Convention. In particular, the acts of ratification and deposit engendered an expectation that, in accordance with Article 3, paragraph 1 of the Convention, in all actions concerning children undertaken by Commonwealth administrative authorities, the best interests of the child would be "a primary consideration". Such an expectation was reasonably based and therefore "legitimate", as that concept is used in the law relating to procedural fairness. The expectation engendered by the solemn acts by which Australia bound itself to the international community was no less legitimate than that engendered by a statement made to the House of Representatives by the Minister for Immigration as to the policy that would be applied in future in exercising a statutory discretionary power regarding deportation: see Haoucher v Minister (1990) 169 CLR 648, 655 (Deane J) and 682 (McHugh J); or that engendered by a series of "news releases" issued by the same Minister concerning an "amnesty for prohibited immigrants": see Salemi v MacKellar [No 2] (1977) 137 CLR 396, 440 (Stephen J). (See also Simsek v McPhee (1982) 148 CLR 636, in which Stephen J (at 644) appears to have proceeded on the basis that one could have a legitimate expectation that one would be treated by a Commonwealth administrative decision-maker in a manner consistent with an international obligation of Australia.)
11. If thereafter a Commonwealth decision-maker proposed to make an administrative decision concerning children in which the best interests of the child were not to be a primary consideration, procedural fairness required that that decision-maker give to those persons potentially adversely affected by that decision:
(i) notice of the proposal that the best interests of the child not be a primary consideration in the making of the decision;
(ii) notice of the reasons for that proposal; and
(iii) an opportunity to be heard on the question whether the decision should be made without making the best interests of the child a primary consideration.
12. A more far-reaching submission than that in paragraph 11 above is made in the alternative, namely, that on the entry into force for Australia of the Convention, in the exercise of a statutory discretionary power in respect of which the statute conferring the power did not expressly make exhaustive provision, whether as to the considerations which the decision-maker was bound to take into account or as to the relative weight to be given to them, the decision-maker became bound to take into account any considerations the taking into account of which was required by the terms of the Convention and furthermore became bound to give them the relative weight which was required to be given to them by the terms of the Convention; such obligation could not be defeated merely by giving to persons potentially adversely affected by the decision:
(i) notice of the proposal to act in a manner inconsistent with Australia's international obligations under the Convention;
(ii) notice of the reasons for that proposal; and
(iii) an opportunity to be heard on the question whether the Convention should be applied in their case.
On this alternative submission, in the present context, on the entry into force for Australia of the Convention, the decision- maker became indefeasibly bound, in accordance with Article 3, paragraph 1 thereof, in all actions concerning children, to treat the best interests of the child as "a primary consideration". This obligation arose as a result of the operation of the rule of construction of statutes set out in paragraph 7 above.
13. In R v Home Secretary, ex p Brind [1991] 1 AC 696 a submission similar to that in the preceding paragraph, although not in a case involving migration, was rejected in the House of Lords. Paragraphs 14-19 below contain submissions as to the correctness of that rejection.
14. The reasoning of the House of Lords on this aspect of the matter was not unanimous. Lord Templeman proceeded, at 751C, on 4t the basis that the United Kingdom's international obligation relevant in that case, namely, the European Convention for the Protection of Human Rights and Fundamental Freedoms, had been required to be taken into account by the decision-maker.
15. Lord Bridge (Lord Roskill concurring) began (relevantly) by "confess[ing]" (at 748A) to having "found considerable persuasive force" in Brind's submission, but in the end was "convinced that the logic of it is flawed" (748B). His Lordship appears to have accepted the initial step in Brind's argument, namely, that the relevant legislation was ambiguous (748C), but to have concluded that engaging in the process in which Brind contended the Court should engage, that of resolving that ambiguity in Brind's favour by reference to the European Convention and then giving him a remedy against an administrator based on that construction of the legislation, would be different in kind than engaging in the usual process of resolving an ambiguity in legislation by reference to the united Kingdom's international obligations. The distinction appears to have been one between construing by reference to international obligations self-executing legislation, which was permissible, and construing by reference to international obligations legislation which depends for its effect on administrative action, which was not. It is submitted that such a distinction exalts form over substance. International law is imported into the domestic field no more and no less by the courts' engaging in the latter process than it is by their engaging in the former.
16. Further, it would appear that Lord Bridge's rejection of Brind's submission was influenced (748E) by the long-standing existence under the European Convention of individual remedies for its breach by the United Kingdom available in the European Court of Human Rights. It does not follow that Lord Bridge would have reached the same conclusion in respect of an international obligation of the United Kingdom other than the European Convention, which obligation contained no alternative means for individuals to obtain a judicial remedy. (It is to be noted that no such alternative means exist in respect of the Convention under consideration in the present case.)
17. Lord Ackner (Lord Lowry concurring), who also rejected Brind's submission, gave (at 761E) too narrow a meaning to the notion of ambiguity in legislation for the purpose of the operation of the rule set out in paragraph 7 above. An ambiguity in legislation which permits recourse to international obligations for constructional purposes may be latent as well as patent: compare the decision of the Supreme Court of Canada in National Corn Growers Association v Canada (Canadian Import Tribunal) (1990) 74 DLR (4th) 449, 482-483 (Gonthier J; La Forest, L'Heureux-Dube and McLachlin JJ concurring).
18. Brind has recently been the subject of (implicit) criticism by the New Zealand Court of Appeal (Cooke P Richardson and Hardie Boys JJ) in Tavita v Minister of Immigration [1994] 2 NZLR 257 in a context similar to that of the present case. Tavita concerned an application for interlocutory relief made by a Western Samoan national who was the father of a child who was a New Zealand national, the father being the subject of a deportation order. The order had been made before the child's birth and in those circumstances the Court of Appeal unanimously continued a stay of execution of the order, with the intent that the father's position would be reconsidered by the authorities in light of the child's birth. The father had submitted that in making a fresh decision on his position the authorities would be obliged to take into account both the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights. (New Zealand had ratified both international instruments, but had enacted no legislation expressly implementing either of them.) The Minister had submitted that the authorities would not be obliged to take those international instruments into account.
19. The Court found it unnecessary in the circumstances to reach a final decision on the Minister's argument. However, at 266, it said of it,
That is an unattractive argument, apparently implying that New Zealand's adherence to the international instruments has been at least partly window-dressing [T]here must at least be hesitation about accepting it
...In Ashby v Minister of Immigration [1981J 1 NZLR 222 there were recognitions in this Court that some international obligations are so manifestly important that no reasonable Minister could fail to take them into account. It is not now appropriate to discuss how far Brind, in some respects a controversial decision, might be followed in New Zealand on the question whether, when an Act is silent as to relevant considerations, international obligations are required to be taken into account as such.
20. Any suggestion that to impose upon Commonwealth administrative decision-makers an obligation so to act that their actions do not bring Australia into breach of its international obligations would be to impose upon them a burden impossible to fulfill as a practical matter, given the multiplicity of Australia's international obligations, is belied by the fact that in recent times a number of Commonwealth statutes creating various instrumentalities have simultaneously expressly placed them under just such a duty: see, for example, Australian Postal Corporation Act 1989, paragraph 28(c) (Australia Post to perform its functions in a way consistent with Australia's obligations under any convention to which Australia is a party or any agreement or .arrangement between Australia and a foreign country); Australian Maritime Safety Authority Act 1990, section 7 (Australian Maritime Safety Authority to perform its functions in a manner consistent with Australia's obligations under any agreement between Australia and another country); Broadcasting Services Act 1992, paragraph 160(d) (Australian Broadcasting Authority to perform its functions in a manner consistent with Australia's obligations under any convention to which Australia is a party or any agreement between Australia and a foreign country).
Richard Kenzie
QC
Leslie Katz
Counsel for the Human Rights and Equal Opportunity Commission
24 October 1994
Minister v Teoh
For hearing 24 October .1994 (in Perth)
List
of Authorities for Human Rights and Equal Opportunity Commission
(Intending
Applicant for Leave to Intervene)
Counsel: Richard Kenzie QC; Leslie Katz
Cases (NB: copies of relevant: extracts from all but CLR's to be supplied by counsel)
Salemi v MacKellar [No 2] (1977) 137 CLR 396
Yager v The Queen (1977) 139 CLR 28
Simsek v McPhee (1982) 148 CLR 636
Haoucher v Minister (1990) 169 CLR 648
A-G (NSW) v Quin (1990) 170 CLR 1
Mabo v Queensland [No 2] (1992) 175 CLR 1
Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1
Dietrich v The Queen (1992) 177 CLR 292
R v Miah [1974] 1 WLR 692
R v Home Secretary, ex p Brind [1991] 1 AC 696
Derbyshire CC v Times Newspapers [1992] QB 770
National Corn Growers Association v Canada (Canadian Import Tribunal) (1990) 74 DLR (4th) 449
Tavita v Minister of Immigration [1994] 2 NZLR 257
Statutes (NB: Copies of relevant provisions of all to be supplied by counsel)
Last updated 19 May 2003.Human Rights and Equal Opportunity Commission Act 1986 (Cth)
Australian Postal Corporation Act 1989
Australian Maritime Safety Authority Act 1990
Broadcasting Services Act 1992
