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Implementing Treaties in Domestic Law
Implementing Treaties in Domestic Law
In this paper, we analyse the ability of private individuals and organisations to enforce
Australia’s treaty commitments, as referenced in domestic statutes. More particularly, we
analyse the contribution of administrative law to the enforcement of international law within the
domestic legal system. We study the complexity of such enforcement through two case studies
centred on High Court decisions from the 1990s, Minister for Immigration and Ethnic Affairs v
Teoh and Project Blue Sky Inc v Australian Broadcasting Authority. Through the case studies we
analyse how and why international law commitments are altered when they are ‘drawn down’
into domestic law and litigants seek to enforce them there. We focus on a common
implementation technique in Australian law, whereby treaty obligations constitute qualified
limitations on executive discretion under statute. Through our case studies we illustrate how
statutory reference to a treaty needs to be analysed as an intermediate step in implementation,
with much of the work to make the treaty obligation enforceable in domestic law being
undertaken by the administrative decision-makers charged with applying the statute, potentially
supervised by the courts. Our themes are the role of domestic courts in enforcing treaty
obligations and the inter-institutional dynamics generated by statutory implementation. We show
how the legislative incorporation of international law may only constitute the starting point of a
complex series of institutional interactions, often refracted through administrative law doctrine.
CONTENTS
I Introduction............................................................................................................... 2
II Administrative Law in the Australian Implementation Scholarship ......................... 7
A The Prominence of Teoh............................................................................... 7
B Does Qualifying Administrative Discretion Involve Incorporation? ........... 8
III Qualifying Administrative Discretion by Reference to Treaty Obligations ........... 10
IV Case Studies ............................................................................................................ 11
A Structuring Discretion: Convention on the Rights of the Child .................. 11
1 What Does the Legitimate Expectations Doctrine in Teoh
Give to the Litigant?....................................................................... 13
2 From Legitimate Expectations to Statute-Based Mandatory
Considerations ................................................................................ 14
3 What is Teoh Authority for Now with Respect to Legitimate
Expectations? ................................................................................. 18
B Confining Discretion: Australia New Zealand Closer Economic
Relations — Trade Agreement.................................................................... 21
V Conclusion .............................................................................................................. 27
* Associate Professor, Sydney Law School, University of Sydney. Our thanks to Ellen Moore
for her superb research assistance; to participants at the Sydney Centre for International Law
seminar on 26 June 2017; and at the Australia New Zealand Society of International Law
2017 Annual Conference; to Karen Knop; and to the anonymous peer reviewers, for
insightful and helpful comments. Our thanks also to the Journal Editors.
† Senior Lecturer, Sydney Law School, University of Sydney.
1
2 Melbourne Journal of International Law [Vol 19
I INTRODUCTION
Minister for Immigration and Ethnic Affairs v Teoh (‘Teoh’) was a dramatic
development in Australian law.1 The High Court accepted that unincorporated
treaties can have legally enforceable relevance for administrative decision-
making. The case deserves, and has received, a great deal of scholarly analysis.
However, for reasons we develop in this article, the reasoning in Teoh and the
legal effect of unincorporated treaties are now a marginal phenomenon. The
attention that they receive in the international law literature distracts from other
aspects of administrative law that play a much greater role in the domestic
implementation of international law in Australia. Australian administrative law’s
central contribution to the implementation of international law lies in how it
enforces international law when it is referred to in statutes as a means of shaping,
confining and structuring executive discretions. This article is a first step in
analysing that contribution — the better to provide a complex, descriptively
adequate, understanding of the role of international law in Australia.
Our argument centres on a detailed reconsideration of two case studies that
have formed centrepieces of Australian scholarship on the implementation of
international law in domestic administrative law, Teoh and Project Blue Sky Inc
v Australian Broadcasting Authority (‘Project Blue Sky’).2 These case studies are
worth revisiting for two reasons. First, the elapse of time has changed their
appearance. Two or so decades later, a wider and different range of
consequences of these two decisions can be appreciated, informing and altering
the evaluation of earlier commentators. Secondly, we believe their significance
with regards to the relationship between international law and administrative law
has not been sufficiently understood.
The reason for Australian lawyers’ fascination with the effect of
unincorporated treaties in administrative law can be readily appreciated. It is a
departure from the traditional dualist picture, whereby international law is
admitted to domestic law by statutory incorporation. The problem, as we detail
below, is that the technique focused upon, namely legitimate expectations, now
has a very narrow scope of application in Australian law. It occupies a decidedly
‘niche’ position within the wider field of the interaction between international
law and domestic administrative law. When treaties and conventions are
incorporated in domestic law by statute, the options for enforcing international
law through domestic administrative law are more widespread, more varied, and
in many respects, of greater assistance to the litigant seeking to enforce
Australia’s international obligations.
The lack of attention to the implementation of international law in domestic
statutes leaves the complexity of this implementation, the reasons for that
complexity and the contribution of domestic administrative law largely
unexplored. Legislative implementation of an international obligation is often the
starting point, not the conclusion, of an inquiry into the domestic operation of
international law. The effect of a statutory formulation on the implementation of
an international law norm is often determined by administrative law. Domestic
1 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 (‘Teoh’).
2 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 (‘Project
Blue Sky’).
2018] Implementing Treaties in Domestic Law 3
3 Janet McLean, ‘Problems of Translation: The State in Domestic and International Public
Law and Beyond’ in Hilary Charlesworth et al (eds), The Fluid State: International Law and
National Legal Systems (Federation Press, 2005) 210, 213. See also Janet McLean,
‘Divergent Legal Conceptions of the State: Implications for Global Administrative Law’
(2005) 68(3–4) Law and Contemporary Problems 167, 173.
4 Narcotic Drugs Act 1967 (Cth) s 6, as repealed by Narcotic Drugs Amendment Act 2016
(Cth) s 6. See also Single Convention on Narcotic Drugs, opened for signature 30 March
1961, 520 UNTS 151 (entered into force 13 December 1964).
5 See, eg, Civil Aviation Act 1988 (Cth) s 11; Air Services Act 1995 (Cth) s 9(3).
6 Customs Act 1901 (Cth) s 269SK.
7 See, eg, Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 137–40;
Environment Protection (Sea Dumping) Act 1981 (Cth) s 19(8A).
8 See, eg, Nuclear Non-Proliferation (Safeguards) Act 1987 (Cth) s 70.
9 See, eg, Telecommunications Act 1997 (Cth) s 580.
10 See, eg, Peter Cane, Administrative Law (Oxford University Press, 5th ed, 2011) 140–3;
Jerry L Mashaw, Bureaucratic Justice: Managing Social Security Disability Claims (Yale
University Press, 1983) 74–5.
4 Melbourne Journal of International Law [Vol 19
11 Karen Knop, ‘Here and There: International Law in Domestic Courts’ (2000) 32 New York
University Journal of International Law and Politics 501, 504. Other scholars have
independently used the metaphor of translation: see, eg, McLean, ‘Problems of Translation’,
above n 3, 210–28. Sally Engle Merry has famously used the translation metaphor, but her
emphasis is on how international law fits into local systems of cultural meaning, distinct
from domestic law: Sally Engle Merry, Human Rights and Gender Violence: Translating
International Law into Local Justice (University of Chicago Press, 2006) 134–78. Scholars
have commonly resorted to metaphors to explain and capture the complexities of
transforming international law to domestic law. For example, Knop criticises the idea that
domestic courts are ‘little more than downpipes for international law’: Knop, above n 11,
535. Anthea Roberts refers to litigating international law before national courts as being like
a ‘fairground mirror — the reflection is there, but it is stretched, contorted and sometimes
(almost) unrecognizable’: Anthea Roberts, ‘Comparative International Law? The Role of
National Courts in Creating and Enforcing International Law’ (2011) 60 International and
Comparative Law Quarterly 57, 79.
12 Knop, above n 11, 506.
13 Ibid (citations omitted).
14 Ibid 518.
15 Ibid 533.
16 Ibid 528.
17 Hilary Charlesworth et al, ‘Deep Anxieties: Australia and the International Legal Order’
(2003) 25 Sydney Law Review 423, 465; Roberts, above n 11, 74; Campbell McLachlan,
Foreign Relations Law (Cambridge University Press, 2014) 79–80; Pierre-Hugues Verdier
and Mila Versteeg, ‘International Law in National Legal Systems: An Empirical
Investigation’ (2015) 109 American Journal of International Law 514, 514, 532.
18 For an earlier study alive to the possibility that executive discretion plays a central role in
the domestic implementation of international law, see McLean, ‘Problems of Translation’,
above n 3, 212.
2018] Implementing Treaties in Domestic Law 5
whether there is a valid head of legislative power is not at issue, and nor is any
other constitutional question relating to the implementation of a treaty. In
focusing on issues of administrative law, we acknowledge that many of the
Australian constitutional cases have an administrative dimension; the initial
implementation of international law may be by legislation but the effective
provisions are included in regulations.23 In these cases, the applicants are
adversely affected by the implemented treaty commitments and challenge the
Commonwealth’s power to implement them. In the cases we examine in this
article, the applicant has a different relationship with international law. Rather
than questioning the Commonwealth’s power to implement a treaty, the
applicants seek to enforce treaty commitments that administrators are reluctant to
implement. The litigation that we examine involves enforcement of international
law rather than attempts to resist its implementation.
23 See, eg, Roche v Kronheimer (1921) 29 CLR 329; R v Burgess; Ex parte Henry (1936) 55
CLR 608; Commonwealth v Tasmania (1983) 158 CLR 1.
24 Annemarie Devereux and Sarah McCosker, ‘International Law and Australian Law’ in
Donald R Rothwell and Emily Crawford (eds), International Law in Australia (Thomson
Reuters, 3rd ed, 2017) 23–47.
25 The structure adopted by Devereux and McCosker is a longstanding feature of Australian
implementation scholarship. Kristen Walker developed the distinction between the direct
and indirect operation of international law from her analysis of Dietrich v The Queen (1992)
177 CLR 292 and Teoh (1995) 183 CLR 273 two decades ago. Walker considered the way
in which treaties may indirectly operate in Australian law with respect to statutory
interpretation, development of the common law and as a trigger for administrative law
remedies: Kristen Walker, ‘Treaties and the Internationalisation of Australian Law’ in
Cheryl Saunders (ed), Courts of Final Jurisdiction: The Mason Court in Australia
(Federation Press, 1996) 204, 209–27.
26 Devereux and McCosker, above n 24, 44.
8 Melbourne Journal of International Law [Vol 19
27 Donald R Rothwell et al, International Law: Cases and Materials with Australian
Perspectives (Cambridge University Press, 2nd ed, 2014) 245–61.
28 Ibid 245–61. There is some discussion of the form and content of legislation giving effect to
a treaty, but again there is no discussion of administrative law, executive discretion or
enforcement of treaty commitments subsequent to legislative incorporation: at 233–45,
quoting Bill Campbell, ‘The Implementation of Treaties in Australia’ in Brian R Opeskin
and Donald R Rothwell (eds), International Law and Australian Federalism (Melbourne
University Press, 1997) [135], [144]–[147].
29 George Williams, Sean Brennan and Andrew Lynch, Australian Constitutional Law &
Theory: Commentary and Materials (Federation Press, 6th ed, 2014) 885–91.
30 Donald R Rothwell, ‘Quasi-Incorporation of International Law in Australia: Broadcasting
Standards, Cultural Sovereignty and International Trade’ (1999) 27 Federal Law Review
527.
2018] Implementing Treaties in Domestic Law 9
31 International Covenant on Civil and Political Rights, opened for signature 16 December
1966, 999 UNTS 171 (entered into force 23 March 1976) (‘ICCPR’).
32 I A Shearer, ‘The Relationship between International Law and Domestic Law’ in Brian R
Opeskin and Donald R Rothwell (eds), International Law and Australian Federalism
(Melbourne University Press, 1997) 34, 55. Note that this Act has been retitled: Australian
Human Rights Commission Act 1986 (Cth) sch 2.
33 Crawford, above n 20, 638.
34 Rothwell, ‘Quasi-Incorporation of International Law in Australia’, above n 30, 537.
35 Ibid 544. Project Blue Sky involves such a provision and is examined in Part IV(B) below:
Project Blue Sky (1998) 194 CLR 355.
10 Melbourne Journal of International Law [Vol 19
regard’ to the relevant treaty would entitle a court, in exercising its powers of
review, to find a particular exercise of the statutory power invalid.36
This suggests that to focus on whether or not a measure can be regarded as
‘incorporating’ international law is to ask the wrong question. The significant
factor for Crawford and Edeson is that such statutory references to international
law provide a legal hook for litigants to challenge administrative decisions in the
courts. In other words, the significant point is not whether such provisions can be
regarded as incorporation, but that they enable enforcement of international law
through forms of judicial review of administrative action. We agree with
Crawford and Edeson that the enforceability of the measure implementing the
treaty is the important point. Through the case studies we analyse the complexity
of such enforcement, with particular attention to the role played by
administrative law principles.
36 James Crawford and W R Edeson, ‘International Law and Australian Law’ in K W Ryan
(ed) International Law in Australia (Law Book Company, 2nd ed, 1984) 71, 118.
37 Kenneth Culp Davis, Discretionary Justice: A Preliminary Inquiry (University of Illinois
Press, 1971) 55.
38 See, eg, Air Services Act 1995 (Cth) s 9(3); Australian Postal Corporation Act 1989 (Cth)
s 28(c); Australian Radiation Protection and Nuclear Safety Act 1998 (Cth) s 84(1);
Chemical Weapons (Prohibition) Act 1994 (Cth) s 95(1); Civil Aviation Act 1988 (Cth) s 11;
Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 137–40; Narcotic
Drugs Act 1967 (Cth) ss 8G(1)(c), 9F(1)(c), 10M(3)(a), 10P(2)(d), 11J(1)(c), 13(3)(a),
13B(2)(d); Nuclear Non-Proliferation (Safeguards) Act 1987 (Cth) s 70(1).
39 Convention on Wetlands of International Importance Especially as Waterfowl Habitat,
opened for signature 2 February 1971, 996 UNTS 245 (entered into force 21 December
1975), cited in Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 138.
40 See Air Navigation Regulation 2016 (Cth) s 26(2)(b); Australian Radiation Protection and
Nuclear Safety Act 1998 (Cth) s 84(2); Narcotic Drugs Act 1967 (Cth) ss 9B(2)(b),
10A(2)(b).
2018] Implementing Treaties in Domestic Law 11
IV CASE STUDIES
41 The exception, as we will show in Part IV(A), is Teoh (1995) 183 CLR 273.
42 Chemical Weapons (Prohibition) Act 1994 (Cth) s 95(2), citing Convention on the
Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and
on Their Destruction, opened for signature 3 September 1992, 1974 UNTS 45 (entered into
force 29 April 1997).
43 Davis, above n 37, 97–8.
44 See, eg, Biosecurity Act 2015 (Cth) ss 5, 173(4), 174(3), 179(3), 182(4).
12 Melbourne Journal of International Law [Vol 19
raised by Teoh’s case and the legislative and judicial responses to it all constitute
instances in which a treaty operates to structure the exercise of the decision-
maker’s discretion, setting her or his agenda. The features of the post-Teoh
developments that we focus on in this Part are the minimisation of a form of
structuring administrative discretion introduced by the judiciary, namely
legitimate expectations grounded in unincorporated treaties, and the adoption of
a statutory basis for structuring the relevant administrative discretion to deport in
cases affecting children. By way of this statutory basis, the United Nations
Convention on the Rights of the Child (‘CROC’)45 has become a mandatory
consideration enforceable by the courts.
Teoh constitutes an important case study in both the Australian and
international contexts. As indicated above in Part II(A), in Australian scholarship
it has constituted the centrepiece of discussions of the effect of international law
on administrative law. Internationally, it has constituted one of an international
trinity of cases focused on the legal consequences of ratification of the CROC,
alongside Tavita v Minister of Immigration (New Zealand)46 and Baker v
Minister of Citizenship and Immigration (Canada).47 These cases have occupied
a central place in discussions of the influence of international norms on
administrative discretion, and the contribution of judicial review to that
interaction.48 The cases raised the prospect of domestic law being permeable to
international law in a way that it had not been previously. The requirement, that
the provisions of an international treaty to which Australia is a party do not form
part of Australian law unless those provisions have been validly incorporated
into Australian municipal law by statute, appeared to have been circumvented.49
Mr Teoh successfully challenged decisions to refuse him a permanent resident
visa and to deport him, on the basis that he had a legitimate expectation,
grounded in Australia’s ratification of the CROC, that the decision-maker would
take the best interests of his children into account. This legitimate expectation
was held to have been disappointed, constituting a breach of procedural fairness
that invalidated the relevant decisions. The legal effect the majority gave to
executive ratification of a treaty, absent legislative incorporation, appeared to
qualify common understandings of our system as dualist. It appeared to
challenge the idea that international law could only become part of the domestic
legal order by legislative incorporation. In Teoh, the leading judgment sought to
soften the perceived challenge, stating that:
The fact that the provisions of the Convention do not form part of our law is a less
than compelling reason [for saying an unincorporated treaty cannot give rise to a
45 Convention on the Rights of the Child, opened for signature 20 November 1989, 1577
UNTS 3 (entered into force 2 September 1990) (‘CROC’).
46 Tavita v Minister of Immigration [1994] 2 NZLR 257.
47 Baker v Minister of Citizenship and Immigration [1999] 2 SCR 817.
48 McLean, ‘Problems of Translation’, above n 3, 211–16; David Dyzenhaus (ed), The Unity of
Public Law (Hart Publishing, 2004); Claudia Geiringer, ‘Tavita and All That: Confronting
the Confusion Surrounding Unincorporated Treaties and Administrative Law’ (2004) 21
New Zealand Universities Law Review 66; David Dyzenhaus, Murray Hunt and Michael
Taggart, ‘The Principle of Legality in Administrative Law: Internationalisation as
Constitutionalisation’ (2001) 1 Oxford University Commonwealth Law Journal 5, 7–16.
49 On the requirement, see Teoh (1995) 183 CLR 273, 286–7 and authorities referred to
therein.
2018] Implementing Treaties in Domestic Law 13
50 Teoh (1995) 183 CLR 273, 291 (Mason CJ and Deane J).
51 The Teoh majority argued that, because the doctrine did not give rise to legal rights or
interests, legitimate expectations based on an unincorporated treaty could be reconciled with
the traditional ‘transformation’ theory of legislative incorporation of international law.
Walker found this argument unpersuasive, seeing an inconsistency between legitimate
expectations doctrine and traditional transformation theory. In Walker’s view, so much the
worse for the traditional transformation theory: see Walker, above n 25, 227.
52 Sir Gerard Brennan, ‘The Role and Rule of Domestic Law in International Relations’ (1999)
10 Public Law Review 185, 191.
53 Ibid. Cf the contemporaneous judgment of Leslie Katz SC, then New South Wales Solicitor
General, that Teoh was a ‘one-off’: Leslie Katz, ‘A Teoh FAQ’ (1998) 16 Australian
Institute of Administrative Law Forum 1, 5–6.
54 CROC art 3. For the purposes of this paper, we do not critically engage with the High
Court’s identification of the relevant obligations under the CROC in Teoh. For criticism of
the majority’s use of the CROC and its exclusive reliance on art 3, see Michael Taggart,
‘Case Comment: Legitimate Expectation and Treaties in the High Court of Australia’ (1996)
112 Law Quarterly Review 50, 53–4. Cf Teoh v Minister for Immigration and Ethnic Affairs
(1994) 49 FCR 409, 433–4 (Carr J).
14 Melbourne Journal of International Law [Vol 19
decisions on the grounds that Australia’s ratification of the CROC gave rise to a
legitimate expectation that the decision-maker, in the exercise of his or her
discretion, would take the best interests of the child into account as a primary
consideration, and the decision-maker had not done so.55
The legitimate expectations doctrine in Teoh only secures procedural
requirements. The existence of a legitimate expectation that the best interests of
the child will be a primary consideration requires only that if the decision-maker
does not propose to take the best interests of the child into account, then the
decision-maker must inform a person likely to be affected by the decision of this,
and give him or her an opportunity to be heard as to why the best interests of the
child or children should be taken into account.56 To put this in negative terms,
the legitimate expectations doctrine does not require that the best interests of the
child are taken into account, only that certain procedural steps be taken if those
interests are not taken into account.57
Turning from the nature and function of the expectation to its content, the
judgments in Teoh, echoing the language of the CROC, were careful to specify
that art 3 of the CROC does not require that the best interests of the child are the
primary consideration, only that they are a primary consideration. Mason CJ and
Deane J stated that art 3 ‘does no more than give those interests first importance
along with such other considerations as may, in the circumstances of a given
case, require equal, but not paramount, weight’.58
55 As to the subsequent fate of Mr Teoh, his application for permanent residency was
eventually granted: Katz, above n 53, 4.
56 Lam v Minister for Immigration and Multicultural Affairs (2006) 157 FCR 215, 227 [33].
57 Teoh (1995) 183 CLR 273, 291–2 (Mason CJ and Deane J), 301–2 (Toohey J). See Rocca v
Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 71, 540
[40] (Gray J).
58 Teoh (1995) 183 CLR 273, 289 (Mason CJ and Deane J), 301–2 (Toohey J), 320 (McHugh
J): McHugh J was in dissent but not on this point.
59 Rothwell et al, above n 27, 252–6; Alison Duxbury, ‘The Impact and Significance of Teoh
and Lam’ in Matthew Groves and H P Lee (eds), Australian Administrative Law:
Fundamentals, Principles and Doctrines (Cambridge University Press, 2007) 299, 304–5;
Gavan Griffith and Carolyn Evans, ‘Teoh and Visions of International Law’ (2000) 21
Australian Yearbook of International Law 75, 76–9.
60 Teoh (1995) 183 CLR 273, 291.
61 Alexander Downer and Daryl Williams, ‘The Effect of Treaties in Administrative Decision-
Making’ (Joint Statement, 25 February 1997), quoted in Edward Cole and Marina Tsirbas,
‘Australian Practice in International Law 1997’ (1998) 19 Australian Year Book of
International Law 183, 224.
62 Teoh (1995) 183 CLR 273, 291.
2018] Implementing Treaties in Domestic Law 15
63 Ibid. Cf Administrative Decisions (Effect of International Instruments) Act 1995 (SA) s 3(1).
64 Tien v Minister for Immigration and Multicultural Affairs (1998) 89 FCR 80, 103;
Department of Immigration and Ethnic Affairs v Ram (1996) 69 FCR 431, 437–8. See also
Lam v Minister for Immigration and Multicultural Affairs (2006) 157 FCR 215, 226 [30].
65 Rothwell et al, above n 27, 252–6; Duxbury, above n 59, 305.
66 For discussion of this line of response, see Matthew Groves, ‘Treaties and Legitimate
Expectations — The Rise and Fall of Teoh in Australia’ (2010) 15 Judicial Review 323,
328–9.
67 See Migration Legislation Amendment (Strengthening of Provisions relating to Character
and Conduct) Act 1998 (Cth) sch 1 s 16. For the rationale for the 1998 Amendments to
s 499, see Explanatory Memorandum, Migration Legislation Amendment (Strengthening of
Provisions relating to Character and Conduct) Bill 1998 (Cth) 8 [30]: ‘This amendment is
intended to ensure that the Minister can specify more precisely how a discretion should be
exercised’.
68 Each new Direction repealed its predecessor: Minister for Immigration and Multicultural
Affairs (Cth), Direction No 17 — Visa Refusal and Cancellation under Section 501, 16 June
1999; Minister for Immigration and Multicultural Affairs (Cth), Direction No 21 — Visa
Refusal and Cancellation under Section 501, 23 August 2001; Minister for Immigration and
Citizenship (Cth), Direction No 41 — Visa Refusal and Cancellation under Section 501, 3
June 2009; Minister for Immigration and Citizenship (Cth), Direction No 55 — Visa Refusal
and Cancellation under Section 501, 1 September 2012.
69 Migration Act s 499(2A); Rokobatini v Minister for Immigration and Multicultural Affairs
(1999) 90 FCR 583, 586 [12].
70 Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562, 585
[80] (Perry J).
71 Note that this was most often achieved simply by use of the phrase ‘best interests of the
child’. Direction No 41, in place between 15 June 2009 and 31 August 2012, made explicit
reference in para 10(1)(d)(i) to the fact that the phrase ‘best interests of the child’ was ‘as
described in’ the CROC: Minister for Immigration and Citizenship (Cth), Direction No 41
— Visa Refusal and Cancellation under Section 501, 3 June 2009. This reverted to being
implicit in Direction No 55. The children within the Direction’s scope of application are, in
shorthand, those who are under 18 and with whom the potential deportee is in a parental
relationship: Minister for Immigration and Citizenship (Cth), Direction No 55 — Visa
Refusal and Cancellation Under Section 501, 1 September 2012, para 9.3.
16 Melbourne Journal of International Law [Vol 19
72 Baker v Minister for Immigration and Citizenship [2012] FCAFC 145 (15 October 2012)
[55]; SZRTN v Minister for Immigration and Border Protection [2014] FCAFC 129 (3
October 2014) [39].
73 See Downer and Williams, above n 61 and accompanying text.
74 Lam v Minister for Immigration and Multicultural Affairs (2006) 157 FCR 215, 226 [30].
Not to be confused with: Re Minister for Immigration and Multicultural and Indigenous
Affairs; Ex parte Lam (2003) 214 CLR 1.
75 The Directions do more than this. In addition to prescribing relevant considerations for the
purpose of judicial review, they also provide guidance as to how those considerations are to
be balanced, see Minister for Immigration and Border Protection v Lesianawai (2014) 227
FCR 562, 586 [83] (Perry J).
76 This leaves untouched the question of the quality of that consideration, a central issue in the
jurisprudence on mandatory relevant considerations.
2018] Implementing Treaties in Domestic Law 17
this gap in the applicability of the mandatory relevant considerations doctrine has
been filled by the legitimate expectation doctrine from Teoh.
82 See Devereux and McCosker, above n 24, 44–5; Williams, Brennan and Lynch, above n 29,
889–91; Duxbury, above n 59, 307–15. While Duxbury’s chapter of legitimate expectations
begins with a discussion of the impact on international treaties on administrative law, it is
expressly concerned with the doctrine more generally.
83 Teoh (1995) 183 CLR 273, 291 (Mason CJ and Deane J), 301 (Toohey J), 304 (Gaudron J).
84 We do not address the persuasiveness of the High Court’s criticism of the legitimate
expectations doctrine. That is another debate and another paper. For the purposes of this
paper we are concerned only with the outcome, not the reasoning.
85 Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326, 334–5
[28]–[30] (Kiefel, Bell and Keane JJ) (‘WZARH’), quoting Re Minister for Immigration and
Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, 36 [111], 38 [121]
(Hayne J); Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR
636, 658 [65] (Gummow, Hayne, Crennan and Bell JJ).
86 WZARH (2015) 256 CLR 326, 335 [30] (Kiefel, Bell and Keane JJ).
2018] Implementing Treaties in Domestic Law 19
limited points does the debate over legitimate expectations overlap with the issue
of implementation of international law.
There are two ways in which Australian legitimate expectations principles
remain of interest to international lawyers. The first is the intrinsic interest of the
judicial discussions of implementation of international law that have on occasion
arisen in the legitimate expectations context. In the jurisprudence of the High
Court, the most notable instance of this is the obiter dictum discussion on this
point in Lam.87 The relevant passages in Lam have been well-analysed in the
academic literature and we do not propose to discuss them further.88 The second
way in which the doctrine of legitimate expectations remains of interest is as a
practical vehicle for the influence of international law on executive discretion.
Here the relative importance — or conversely, marginality — of the legitimate
expectations doctrine matters. To what extent does the legitimate expectations
doctrine still warrant attention as a means by which international law can
influence executive discretion? Recent textbook treatments of the effect of
international law on executive discretion rehearse the High Court’s criticisms of
legitimate expectations, without directly addressing the question of whether
legitimate expectations grounded in unincorporated treaties continue to have any
purchase in Australian domestic law.89 On investigation, the Teoh doctrine does
continue to have a foothold in Australian administrative law. But it is the
narrowest of footholds, its scope tightly circumscribed.
The High Court’s sustained critical commentary on the legitimate expectation
doctrine has had an effect. It has stunted the growth of the doctrine. A review of
the case law suggests that, following the Lam decision in 2003, Teoh has ceased
to stand for the broad proposition of interest to international lawyers, namely that
Australia being a signatory to any international convention raises a legitimate
expectation that a decision-maker will act consistently with that convention.
Instead, it stands for the much narrower proposition that Australia’s ratification
of one particular international Convention, the CROC, gives rise to a legitimate
expectation that a decision-maker will act consistently with that Convention.90
Notwithstanding the High Court’s strident criticism of the legitimate
expectations doctrine, it does have some ongoing application. Teoh has never
been formally overruled. As formulated in a 2016 Federal Court decision, ‘if a
decision-maker is making a migration decision affecting children, there is a
legitimate expectation that their interests will be a primary consideration, and
will not be treated otherwise without an opportunity to be heard: Teoh’.91 This
87 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003)
214 CLR 1, 31–4 [95]–[102] (McHugh and Gummow JJ).
88 Duxbury, above n 59, 307–9.
89 See the texts discussed in Part II(A) above.
90 In Amohanga v Minister for Immigration and Citizenship (2013) 209 FCR 487, the
applicant’s argument that Teoh was authority for a legitimate expectation based on the
CROC was accepted, though it was not successful in its application to the case: at 492 [24]–
[27]. By way of contrast, the applicant’s argument that Teoh provided a basis for a
legitimate expectation arising from Australia’s ratification of the ICCPR was rejected, on
the grounds that Teoh’s ratio did not extend beyond the CROC, and the legitimate
expectations doctrine from Teoh did not bind the court with respect to the ICCPR: at 494–5
[34]–[37].
91 Murad v Assistant Minister for Immigration and Border Protection (2016) 154 ALD 425,
434 [41].
20 Melbourne Journal of International Law [Vol 19
92 Amohanga v Minister for Immigration and Citizenship (2013) 209 FCR 487, 494–5 [34],
[36].
93 Nweke v Minister for Immigration and Citizenship (2012) 126 ALD 501, 507–8 [16]–[21]
(Jagot J); Lesianawai v Minister for Immigration and Citizenship (2012) 131 ALD 27, 33
[33], 35 [43].
94 See above n 72 and accompanying text.
95 Nweke v Minister for Immigration and Citizenship (2012) 126 ALD 501, 506 [10], 507–8
[16]–[21]; Lesianawai v Minister for Immigration and Citizenship [2012] 131 ALD 27, 33
[32]–[33], 35 [43] (Katzmann J). The Nweke litigation is also an example of a successful
judicial review application delivering a pyrrhic victory. Following the 2012 decision it was
open to the Minister to exercise his visa cancellation powers for a second time, which the
Minister did. The second decision was also challenged on judicial review, this time
unsuccessfully: Nweke v Minister for Immigration and Citizenship (2013) 140 ALD 320.
96 WZARH (2015) 256 CLR 326. In the wake of WZARH, Teoh has been relied on for the
narrow proposition that: ‘If a decision maker is making a migration decision affecting
children, there is a legitimate expectation that their interests will be a primary consideration,
and will not be treated otherwise without an opportunity to be heard’: Wozniak v Minister
for Immigration and Border Protection [2017] FCA 44 (3 February 2017) [53], [65]–[66]
(Burley J), citing Teoh (1995) 183 CLR 273, 291–2. See also BCR16 v Minister for
Immigration and Border Protection [2016] FCA 965 (17 August 2016) [53], [57]–[58];
Murad v Assistant Minister for Immigration and Border Protection (2016) 154 ALD 425,
434 [41], [51]–[52]. In none of these cases, post-WZARH, has the applicant’s legitimate
expectation argument been successful.
2018] Implementing Treaties in Domestic Law 21
110 Editorial, ‘ABA Proposes Changes to Levels of Australian Content on TV’, ABA Update:
Newsletter of the Australian Broadcasting Authority (North Sydney), December 1994, 3–4
<http://www.austlii.edu.au/au/journals/AUBAUpdateNlr/1994/183.html>. See also
Editorial, ‘Australian Content Standard Still in Place’, ABA Update: Newsletter of the
Australian Broadcasting Authority (North Sydney), September 1996, 8
<http://www.austlii.edu.au/au/journals/AUBAUpdateNlr/1996/147.html>.
111 Project Blue Sky (1998) 194 CLR 355, 385 [82], 386 [84].
112 Ibid 375 [44].
113 Ibid 359, 386 [86].
114 Ibid 388–93 [91]–[101] (McHugh, Gummow, Kirby and Hayne JJ).
115 Ibid 389 [92].
116 Ibid 393 [100].
117 Ibid. See also Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of
Administrative Action and Government Liability (Lawbook, 6th ed, 2017) 758–9; Enid
Campbell, ‘The Retrospectivity of Judicial Decisions and the Legality of Governmental
Acts’ (2003) 29 Monash University Law Review 49, 79.
24 Melbourne Journal of International Law [Vol 19
118 Project Blue Sky (1998) 194 CLR 355, 391 [94].
119 Ibid 391 [94].
120 Ibid 391–2 [96].
121 Ibid 391 [95].
2018] Implementing Treaties in Domestic Law 25
to it in his reasons for the approval.130 The concern that the relevant articles of
the World Heritage Convention were stated in indeterminate terms greatly
influenced Griffiths J’s reasoning in this part of the judgment.131 In particular, he
understood the World Heritage Convention as giving ‘considerable latitude’ to
the state parties when they implement their obligations.132
It is not our intent in this paper to evaluate the persuasiveness of Griffith J’s
reasoning. The primary significance of the Australian Conservation Foundation
case for our purposes is that it confirms that indeterminacy in the relevant treaty
obligations can play a major role in determining the enforceability of statutory
provisions that qualify administrative discretions by reference to international
law. In contrast to Project Blue Sky, the indeterminacy of the relevant
international law obligations in Australian Conservation Foundation led the
Court to adopt a relatively restrained standard of review (rather than a weak
remedy as occurred in Project Blue Sky); a standard of review that enabled
Griffiths J to avoid directly assessing the administrative decision against the
World Heritage Convention obligations. The case is a clear example of a court
declining to take up the translation task required by a literal reading of the
statutory incorporation provision, where the court perceives that doing so would
be an inappropriate exercise of policy determination given the indeterminacy of
the treaty.
We can now return to the primary case, Project Blue Sky, and its significance
for the institutional dynamics between domestic institutions ensuring compliance
with international law. Project Blue Sky is particularly interesting for
highlighting the potential for intra-executive conflict. As referred to earlier, the
Minister was concerned about the previous content standard’s compliance with
the Closer Economic Relations Agreement and was of the view that this
compliance issue should be reconsidered when devising any new standard. By
way of contrast, the Australian Broadcasting Authority prioritised the objects of
the Broadcasting Services Act relating to the promotion of Australian identity,
character and cultural diversity in broadcasting services.133 Commonwealth
broadcasting officials had made such content standards under the previous Act,
the Broadcasting Act 1942 (Cth), since the early 1960s.134 The Chairman of the
Australian Broadcasting Authority stated, at the time it was preparing the content
standards challenged in Project Blue Sky, that:
‘The Australian content regulations have helped create one of the best television
systems in the world … Their importance is recognised by all in the industry,
including the television networks. The changes we are proposing will lift the
amount of Australian programs over the next three years, with programs funded
by the Government’s Creative Nation initiative being a further add-on … Looking
down the track, I am confident that Australian viewers will be among the big
winners’.135
Accordingly, different administrative institutions within the executive took
opposing policy positions regarding the content standard. The agency
empowered to administer the legislation focused on domestic, cultural concerns.
Ministers were concerned about consistency with international trade obligations.
The particular circumstances of Project Blue Sky demonstrate how
international law can disrupt longstanding Commonwealth policy, in this case
regarding Australian television programming. Although the remedy granted by
the Court was far from clear, it prompted the Australian Broadcasting Authority
to provide a lasting solution. The Authority prepared a new content standard that
treated New Zealand-made programs the same as Australian programs.136 In a
response to a parliamentary committee inquiry, the Australian government stated
that both it and the New Zealand government recognised that the new content
standard was consistent with the Closer Economic Relations Agreement.137 From
this perspective, the indirect manner in which the Court translated the relevant
international law into domestic law was effective in enforcing the obligation
insisted on by the plaintiffs, while being less disruptive of domestic legal
arrangements than the remedy sought by the plaintiffs would have been.
More generally, Project Blue Sky demonstrates how courts can use
administrative law doctrine to ‘redirect’, and so soften, the enforcement of
international law obligations in discretionary deliberations, in ways that might
not be expected on a first read of the implementation provision. It emphasises the
concerns that courts can have when put into the role of enforcers of
indeterminate international obligations. It is important to recognise these judicial
concerns, given common use of this implementation technique.138 Members of
the public seeking to enforce such provisions against administrators may face
difficulties where the court understands the relevant international law obligation
to be indeterminate.
V CONCLUSION
In all their aspects, the case studies seek to show how and why international
law commitments are altered when they are ‘drawn down’ into domestic law and
litigants seek to enforce them there. In particular, they constitute an exploration
of how international law is ‘translated’ into domestic law, where that translation
exercise is instigated by statutory reference to treaty obligations that qualify the
135 Editorial, ‘ABA Proposes Changes to Levels of Australian Content on TV’, above n 110, 3–
4, quoting Mr Brian Johns, Australian Broadcasting Authority Chairman.
136 Editorial, ‘New ABA Australian Content Standard from 1 March’ ABA Update: Newsletter
of the Australian Broadcasting Authority (North Sydney), March 1999, 6
<http://www.austlii.edu.au/au/journals/AUBAUpdateNlr/1999/24.html>. See also
Broadcasting Services (Australian Content) Standard 2005 (Cth) ss 18–20; Broadcasting
Services (Australian Content) Standard 2016 (Cth) ss 18–20.
137 Senate Environment, Communications, Information Technology and the Arts Legislation
Committee, Parliament of Australia, Government Response to the Report, Australian
Content Standard for Television and Paragraph 160(d) of the Broadcasting Services Act
1992 by the Senate Environment, Communications, Information Technology and the Arts
Legislation Committee (1999) 3, 6.
138 See above n 38 for examples of such provisions.
28 Melbourne Journal of International Law [Vol 19