Minister for Immigration v Ah Hin Teoh
Legal
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 396Yager
v The Queen (1977) 139 CLR 28Simsek
v McPhee (1982) 148 CLR 636Haoucher
v Minister (1990) 169 CLR 648A-G
(NSW) v Quin (1990) 170 CLR 1Mabo
v Queensland [No 2] (1992) 175 CLR 1Chu
Kheng Lim v Minister for Immigration (1992) 176 CLR 1Dietrich
v The Queen (1992) 177 CLR 292R
v Miah [1974] 1 WLR 692R
v Home Secretary, ex p Brind [1991] 1 AC 696Derbyshire
CC v Times Newspapers [1992] QB 770National
Corn Growers Association v Canada (Canadian Import Tribunal) (1990) 74 DLR (4th)
449Tavita v
Minister of Immigration [1994] 2 NZLR 257
Statutes
(NB: Copies of relevant provisions of all to be supplied by counsel)
Human
Rights and Equal Opportunity Commission Act 1986 (Cth)Australian
Postal Corporation Act 1989Australian
Maritime Safety Authority Act 1990Broadcasting
Services Act 1992
Last
updated 19 May 2003.