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Common(wealth) Knowledge #46: Australian law and the best interests of children

International treaties signed by the Australian government can influence Australian law.

As a general rule, Australian courts are reluctant to apply international treaties that the Commonwealth government has ratified in Australia, unless the government has turned the treaty into law through legislation. But the problem with general rules is that there are exceptions to those rules. And that is exactly what the High Court of Australia did on April 7th, 1995.

In May 1988, Ah Hin Teoh moved to Australia on a temporary visa. Two months later, he married his later brother’s partner, and the two had three children. Now that he had a family in Australia, he applied for permanent residence status. However, in January 1991 his application was denied, as two months prior he had been convicted of possessing and importing heroin.

Normally, this is a straightforward process. Criminal charges allow the Minister for Immigration to revoke or deny a visa, and then deported the convicted criminal. The Immigration Review Panel said as much when Teoh tried to challenge his visa’s denial. In 1992, Gerry Hand, the Minister for Immigration and Ethnic Affairs, introduced a system of mandatory detention for individuals whose visa was revoked or denied, and he order Teoh’s deportation in February of that year.

Teoh challenged that deportation order in the Federal Court of Australia, and lost. Justice French ruled that there was not a violation of ‘natural justice,’ a concept explored in Common(wealth) Knowledge #20. According to Justice French, the Minister had acted in accordance with the principles of natural justice toward Teoh.

But this wasn’t a straightfoward case. Teoh appealed that ruling, and the Full Court of the Federal Court took his side. The three judges agreed that when the decision was made to deny the visa application, the Department of Immigration hadn’t properly investigated the consequences that this would have on his family. Not only did Teoh have a wife and three kids, but his wife had another four kids from her previous relationships.

Not before long, Teoh found himself standing before five judges from the High Court. Minister Gerry Hand had appealed this Full Court’s decision, and the High Court agreed to hear the appeal. In a revolutionary ruling, Chief Justice Mason, and Justices Deane and Toohey said that not only did the Minister violate natural justice by denying the visa application, but the Minister went against international law to do so.

In 1989, the Commonwealth government signed and ratified the United Nations Convention on the Rights of the Child. The following year, the treaty came into force, but the Commonwealth government did not adopt it into Australian law through legislation, meaning it wasn’t binding in Australia. Nonetheless, the High Court was of the opinion that even treaties that aren’t accepted into Australian law by legislation are still influential on Australian law.

One of the key parts of natural justice is the notion of ‘procedural fairness.’ This includes an expectation that decision-makers in the executive government, including the Minister of Immigration and their departmental officers, will be fair towards individuals who are being adversely affected by the decisions that they make. That decision must affect a person’s right, interest, or legitimate expectation. In an earlier case, Kioa v West (1985), Justice Mason had defined this as including “personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rights and interests.”

Now, promoted to Chief Justice, Mason again reaffirmed the importance of natural justice. While agreeing that treaties not adopted into Australian law are not binding, at paragraph [27] of their judgment in Minister of State for Immigration v Teoh (1995), Chief Justice Mason and Justice Deane said that legislation, including the Migration Act 1958 (Cth), “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.” This includes any treaties that Australia has agreed to. After all, the executive government is responsible for signing and ratifying those treaties, and making immigration decisions.

As Chief Justice Mason and Justice McHugh had said three years prior, at paragraphs [19]-[20] of their judgment in Dietrich v The Queen (1992), there was a presumption in the United Kingdom that Parliament intended for ambiguous legislation to be interpreted in accordance with international law, and such an argument could also be made in Australia.

In this case, Mason CJ, Deane and Toohey JJ agreed that because Australia was party to the Convention on the Rights of the Child, the Commonwealth government had said that it would take into account considerations mentioned in the treaties. This created a ‘legitimate expectation’ that the Commonwealth government would comply with that treaty when the Minister used his discretionary power to accept or reject visa applications.

Article 3 of the Convention says that governments must consider the best interests of the children when making decisions. In fact, it said that this was of the utmost importance; it was a ‘primary consideration.’ In addition, Article 9 made it clear that decision-makers must be careful in deciding to separate children from their parents.

Of course, the courts must be careful in determining whether there was a legitimate expectation that something would happen. Justice Mason made that clear in R v Mackellar (1977), at paragraph [11], that there is no general legitimate expectation that immigrants will have their visa applications approved, or be allowed to stay in Australia after they are rejected or denied.

But, in Teoh, the High Court found an exception. Teoh was the stepfather or biological father of 7 children, some of them only toddlers. That was sufficiently unusual enough for there to be a legitimate expectation that the best interests of those children would be considered. Thus, a majority of the court agreed with the Full Court of the Federal Court’s decision to dismiss the Minister’s appeal, although they disagreed with the reasons why.

Parliament has tried several times to remove this concept of legitimate expectations arising from international law in Australia, as the courts relying on international treaties circumvents Parliament. In addition, the phrase ‘legitimate expectations’ has been phased out in favour of ‘rights and interests.’ While courts are less reluctant to make decisions like this one today, Teoh has nonetheless had a massive impact on Australian law. It was evidence that international treaties that are signed and ratified by the government can finally have some effect in Australia.

The issue of legitimate expectations may arise once again if the Indigenous Voice to Parliament passes the referendum vote. As the proposed Voice will now be able to make representations to the executive, it may be possible to see questions involving whether there was a ‘legitimate expectation’ that something is considered by executive decision-makers, or at least a related concept. This will undoubtedly be a topic that will be revisited by GovCheck.

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Convention on the Rights of the Child, 20 November 1989, 1577 UNTS 3, entered into force 2 September 1990.

Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57.

Kioa v West (1985) 159 CLR 550; [1985] HCA 81.


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