Teoh Opinion
In 1995 the High Court decided that people have a ‘legitimate expectation’ that government administrators will, where relevant, take into account Australia’s international obligations in making their decisions. The case was Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1994-1995) 183 CLR 273 .
In response the then Labor Government introduced the Administrative Decisions (Effect of International Instruments) Bill, the ‘Teoh Bill’. The Bill lapsed in August 1998, but it has been reintroduced by the Howard Government. The second reading speeches are scheduled to resume this week
The problem the Government faces is that the Teoh Bill overstates the effect of the Teoh decision, and is fairly clearly a further attempt to absolve Australia from compliance with the international human rights standards it has previously agreed to in terms of its treatment of refugees.
Of course, the problem that the Labor Opposition faces is that this Bill was their idea in the first place. However they have had time since then to read and understand the High Court’s decision, and to see clearly the negative implications of the Teoh Bill for human rights in Australia.
And for the people of Australia, the problem is simply more of the same: the Government’s determination to minimise people’s access to international human rights guarantees, and the consequent reduced standing of Australia in the eyes of democratic world.
Who are the administrative decision-makers that, according to
the Teoh decision, have to consider our treaty obligations?
Among welfare, tax, customs, housing, education and others, they
are the bureaucrats who decide refugee and immigration
applications – the very area of activity where the
government is most out of step with international human rights
standards.
The rhetoric driving the Teoh Bill is that treaties should not
confer rights or impose obligations unless they have been
legislated for in Australian law. It is said that the Teoh
decision changed that, making treaties binding on government
decision-makers even though there is no Australia legislation to
that effect.
Like the debate over whether Australia should sign the treaty for the International Criminal Court, the issue is put in terms of national sovereignty: “laws for Australians should be made by Australians within Australia” said the Government’s Senator Ellison in debate last week.
Such jingoism obscures the real point. In fact, the Teoh decision is no threat to sovereignty, and introduces no law made outside Australia. What it does do (and what the Government does not like) is require refugee decisions to be made with regard to the terms of human rights treaties that Australia has signed.
To those who say that Teoh takes away Australia’s discretion to make its own decisions on, say, refugee status, the High Court has an answer. The Court made it clear in Teoh that an applicant’s right to have a decision made with regard to a treaty’s provisions “does not necessarily compel [the administrative decision-maker] to act in that way”.
The Court agreed that to require a decision to be made in accordance with a treaty would be legislating “by the back door”, and that, of course, is not permissible. The most an applicant can expect is that the obligations Australia has assumed in relevant treaties will be considered when their application is assessed.
In the six years since the Teoh decision, government decision-makers have lived comfortably with its one simple requirement which can be stated as: ‘make sure you take account of our treaty obligations when you consider your decision, but don’t feel bound by them’.
The Federal Court has seen some, but applications for review
of immigration decisions which argue that the Teoh requirement
has not complied with. But these applications are a minority, and
argument on the Teoh requirement is rarely successful. There is
no suggestion, in principle or practice, that immigration
applications are being decided by ‘laws not made by
Australians’.
After the Teoh Bill lapsed, the Human Rights Committee in Geneva
had occasion to examine Australia’s periodic reports of its
performance under the International Covenant on Civil and
Political Rights (the ICCPR).
Australia ratified that treaty, one of the three key
international human rights documents, in 1980.
The Human
Rights Committee examined the Teoh Bill in evaluating
Australia’s compliance with its human rights
obligations. It considered that the enactment of the Bill
would be “incompatible with the Australia’s obligations
under the Covenant”.
The Government responded in August 2000 by rejecting the
authority of the Human Rights Committee to pass comment on
Australia’s performance against international human rights
standards, effectively saying that what we do here is our
business not any one else’s.
Australia is one of the few democratic countries not to have
made the provisions of the ICCPR available to its citizens as an
enforceable right. We are out of step with New Zealand, Canada,
South Africa, the United Kingdom, and Western Europe. The Teoh
Bill takes Australia further away from even the idea of
guaranteeing human rights protection to Australians.
The real effect of the High Court’s decision in Teoh was to
assure people that government bureaucrats will take into account
all relevant considerations when deciding their rights and
entitlements. The real effect of the Teoh Bill is to remove
Australia’s international human rights obligations from the
list of ‘relevant considerations’.
As a gesture, the Teoh Bill is a telling one – it shows the Government’s determination to create a new Fortress Australia, built this time to defend not outdated industry, but outdated values. More than a gesture, however, the Bill actually diminishes procedural fairness, a concept that lies at the heart of people’s protection against arbitrary decisions of government.
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