Implementing Treaties in Domestic Law

IMPLEMENTING TREATIES IN DOMESTIC LAW:
TRANSLATION, ENFORCEMENT AND ADMINISTRATIVE

LAW
Implementing Treaties in Domestic Law
ANDREW EDGAR* AND RAYNER THWAITES†
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
administrative law plays, as Janet McLean notes, a ‘crucial gate-keeping role’

with respect to the implementation of international law.3 Implementing
legislation, read in the light of administrative law principles, is often best
understood as determining which official, administrator or agency will decide on
the implementation of international law and how international law will condition,
constrain or structure the decision-maker’s discretion in doing so, as well as the
extent to which that implementation will be subject to review by the courts,
including judicial review. The statute sets up the terms of the interaction between
the domestic participants involved in the implementation of international law.
One component of this is that administrative action is potentially supervised by
courts, as courts may be called on to review regulations and decisions made by
administrators.
We analyse the role of administrative law with regard to statutory
implementation of treaty commitments. We focus on a common implementation
technique in Australian law, where powers granted to administrators by
legislation are qualified by reference to Australia’s treaty commitments. This
form of implementation has been included in Australian legislation at least since
s 6 of the Narcotic Drugs Act 1967 (Cth), which provided: ‘The Minister or the
Comptroller shall, in exercising any power or performing any function conferred
on him by this Act, have regard to the obligations of the Commonwealth under
the Convention and to no other matter’.4 Such provisions are now included in a
broad range of Commonwealth legislation, such as legislation relating to
aviation,5 customs duties,6 the environment,7 nuclear material and facilities8 and
telecommunications.9 Provisions of this form make international law a
qualification on the exercise of executive discretion. While providing an
administrator with freedom to choose an outcome that responds to the facts and
circumstances relevant to the decision,10 the legislation also seeks to control this
discretionary judgment by reference to a treaty or treaties.
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.
This article contributes to the literature on the ‘translation’ of international

law into domestic law, to use Karen Knop’s well-known metaphor.11 The central
proposition of Knop’s article was that domestic interpretation of international
law was ‘not merely the transmittal of the international, but a process of
translation from international to national’.12 The metaphor of translation was
intended to convey the art and craft associated with literary translation. This
includes the competing issues of ‘faithfulness’ that attend that practice, both to
the content of the international law being translated, as well as to the coherence,
grammar and idiom of the ‘receiving’ domestic legal system. In this way,
‘translation … directs our attention to the heterogenization involved in the
drawing down of international law’.13 Knop’s article was a call to rethink the
domestic interpretation and application of international law to better capture its
complexity.14 She suggested that instead of regarding ‘domestic decisions as the
middle-brow replication of international law, akin to the provincial production of
a famous play’,15 international lawyers should be alive to the possibility that the
complexity of the domestic interpretation and application of international law
created ‘space to mediate the relationship between [the] global and [the] local’.16
Knop’s call to rethink the domestic interpretation and application of international
law struck a chord, as evidenced by its extensive citation in the literature on
implementation.17
We apply Knop’s insights to an examination of key case studies from
Australian administrative law, and in doing so, develop those insights. Within
the Australian legal system, administrative law is critical for much of the
enforcement of international law. In the case studies, we analyse the ways in
which international law qualifies the exercise of executive discretion. 18 Our
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.
focus on executive discretion leads us to reflect on the application of the

translation metaphor. The metaphor is most straightforwardly applicable where
there is original text (at international law) and a translation in domestic law — in
statute, regulation, judicial formulation or otherwise. A clear example of this
phenomenon is the way in which Australia’s obligations under the Convention
Relating to the Status of Refugees are currently reformulated in statutory
language by ss 5H–5M of the Migration Act 1958 (Cth) (‘Migration Act’).19 The
metaphor is not exhausted by this text-to-text scenario, and we develop its
application to statutory discretions.
Where powers granted to administrators are qualified by reference to
Australia’s treaty commitments, the translation of international law into domestic
law involves a complex series of interactions between domestic institutions.
Critically, the statutory reference to the treaty needs to be understood as an
intermediate step in the process, with much of the real work to make the
international obligation enforceable in domestic law being undertaken by the
administrative decision-makers charged with applying the statute. These
translations by administrators are supervised by the courts. An interesting feature
of the case studies, which is developed in Part IV(B), is that courts evidence a
reluctance to translate treaty obligations into domestic law where the language of
the relevant treaty is perceived as unduly indeterminate. In effect, the courts
refuse to translate where they perceive that considerable policy discretion is
involved in determining how a treaty obligation will be rendered an enforceable
domestic standard. The courts understand the exercise of such policy discretion
as a role for governments and Parliament, and are consequently reluctant to step
into the gap.
Our examination of administrative law’s role in statutory implementation is
influenced by two themes of implementation scholarship: the role of domestic
courts in enforcing treaty commitments and the inter-institutional dynamics
generated by statutory implementation. The two themes can be explained
separately, but they overlap.
With regard to enforcement, in the cases examined in this article the courts
have to determine how, if at all, to enforce a treaty against the government where
that treaty has been incorporated by statute to some extent but the government
does not want to act in accordance with it. The courts’ role in enforcing treaty
obligations is particularly important given the prospect of Australian
governments being ‘Janus-faced’ with regard to treaty obligations: they sign up
to treaties on the international plane but may be reluctant to implement them
domestically.20 The case studies in this article focus on this reluctance in the
19 Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment

(Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) 10–11. The Explanatory
Memorandum does not expressly address ss 5I and 5M of the Migration Act 1958 (Cth)
(‘Migration Act’). Convention relating to the Status of Refugees, opened for signature 28
July 1951, 189 UNTS 137 (entered into force 22 April 1954) art 1A(2); Protocol relating to
the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into
force 4 October 1967) art 1(2). The metaphor of translation leaves open an evaluation of the
quality of that translation.
20 Charlesworth et al, above n 17, 436. See generally Paul Craig, UK, EU and Global
Administrative Law: Foundations and Challenges (Cambridge University Press, 2015) 271–
2; James Crawford, ‘The International Law Standard in the Statutes of Australia and the
United Kingdom’ (1979) 73 American Journal of International Law 628, 646.
context of treaties implemented as qualifications on administrators’ discretionary

powers. There may be good reason for administrators’ reluctance. The treaty
commitment may be at cross-purposes with long-standing objectives of the
particular regulatory scheme.
We refer to the second theme as ‘institutional dynamics’, drawing on
McLean’s insight that the implementation of international law into domestic law
commonly requires action by different, often competing, institutions.21 Our focus
on administrative law enables us to highlight the relationships between the three
traditional branches of government — Parliament empowering administrators to
implement international obligations through regulations and particular decisions,
with courts playing a supervisory role with respect to the administrator’s action.
Administrative law not only recognises the different institutional contributions,
its doctrinal principles are designed to mediate between them when conflicts
arise. When treaties are implemented as a qualification on an administrative
discretion, the resolution of the problems is nearly always by an executive
decision, but that decision is subject to supervision by courts and, as will be
shown below, potentially by parliamentary committees and at times by executive
institutions.
In this article we focus on the relationship between statutory implementation
techniques and the administrative law doctrine that can be employed to enforce
the implemented treaty. The article is structured in the following manner: Part II
briefly examines Australian international law scholarship for its understanding of
the role of administrative law in implementing international law. Part III defines
in more detail the implementation techniques to be examined and the applicable
administrative law doctrine. In Part IV we examine, as mentioned above, two
case studies in which legislation qualifies discretionary powers by reference to
treaty obligations. These case studies involve High Court decisions in the 1990s,
Teoh and Project Blue Sky.22 As noted above, we contend that the legacy of these
cases is ripe for reconsideration, and that such reconsideration usefully advances
study of the relationship between international and administrative law.
Disciplinary divides explain why international lawyers have not examined the
implementation techniques and the legal consequences of those techniques in
terms of administrative law, a highly technical and slippery form of domestic
law. Our starting point is that if international lawyers are interested in domestic
implementation, and in particular the enforcement of treaty obligations against
reluctant or even recalcitrant governments, then domestic administrative law is
commonly the body of law that governs this process. Our article is descriptive in
nature because it meets the gap we have identified in the literature. With an
acknowledgement of the importance of administrative law to implementation
comes a need for closer attention to the way in which international law in fact
operates in domestic administrative law. Our case studies are a first step to this
end.
This article is on the interaction between international law and domestic
administrative law. We exclude discussion of the constitutional principles
regarding implementation of treaties. In the cases we examine, the question of
21 McLean, ‘Divergent Legal Conceptions of the State’, above n 3, 167.

22 Teoh (1995) 183 CLR 273; Project Blue Sky (1998) 194 CLR 355.
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.
II ADMINISTRATIVE LAW IN THE AUSTRALIAN IMPLEMENTATION

SCHOLARSHIP
A The Prominence of Teoh

The authors of contemporary Australian textbooks addressing the relationship
between international and domestic law share a common focus in their treatment
of administrative power and executive discretion. The use of legitimate
expectations in Teoh’s case in 1995, grounded in Australia’s unincorporated
treaty commitments, is treated as the central topic of discussion. Any other
aspect of administrative law relevant to the domestic implementation of treaties
receives little or no consideration.
Annemarie Devereux and Sarah McCosker’s chapter in International Law in
Australia exemplifies this approach.24 The chapter is structured by a division
between the direct and indirect effect of international law.25 In relation to
treaties, direct implementation is treated as synonymous with legislative
incorporation and there is no attendant discussion of administrative law. The title
‘Affecting Exercise of Administrative Power and Executive Discretion’ is
reserved for their fourth identified way in which ‘international law may affect
domestic Australian law indirectly’,26 with the discussion under this head
devoted to the legitimate expectations doctrine as developed in Teoh and its
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.
subsequent fate. Nothing more is said about administrative law or executive

discretion.
The same focus is evident in the discussion of the recognition of international
law at the municipal level in Donald R Rothwell et al’s International Law: Cases
and Materials with Australian Perspectives from 2014.27 The existence of legal
challenges grounded in treaty commitments given effect by statute is simply
noted, with 10 pages then devoted to Teoh and its aftermath: encompassing
judicial, executive and (at state level) legislative responses to the legitimate
expectations doctrine introduced in Teoh, and judicial responses to those
executive, and state legislative, responses.28 The 2014 edition of Australian
Constitutional Law & Theory: Commentary and Materials devotes more than
half of its section on the reception of international law to legitimate
expectations.29
Teoh marked an important development in the history of implementing
international law within the Australian legal system. We argue that it is
nonetheless timely to reassess the place of Teoh and legitimate expectations as
the focus of treatments of the relationship between international law and
domestic administrative law. As we argue in Part IV(A), the legitimate
expectations doctrine is a dead letter outside of a very narrow field of application
corresponding to the facts of Teoh’s case. The account of legitimate expectations
provided in the implementation literature needs revising. The attention devoted
to Teoh and legitimate expectations now serves to obscure other, more active and
equally complex, sites of interaction between international law and domestic
administrative law.
B Does Qualifying Administrative Discretion Involve Incorporation?

While the contemporary literature on domestic implementation of
international law largely neglects implementation of international law in the form
of a statutory qualification on an administrative discretion, this topic has been
examined, particularly in earlier scholarship. It is worth examining this
scholarship, albeit briefly, as it raises some initial issues with this form of
implementation.
We first address a terminological issue. Rothwell, in his 1999 article
examining the High Court’s decision in Project Blue Sky, referred to statutory
provisions that make international law a qualification on administrative
discretionary powers as ‘quasi-incorporation’.30 Rothwell attributed this
terminology to Ivan Shearer, who had employed the term to refer to
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.
implementation of the International Covenant on Civil and Political Rights31 as

sch 2 to the Human Rights and Equal Opportunity Commission Act 1986 (Cth).32
For our purposes the term is over-inclusive, covering every form of statutory
reference other than direct statutory incorporation. James Crawford’s work on
implementation of international law into Australian domestic law in the late
1970s and early 1980s offers the following more precise terminology for this
form of implementation — ‘qualified limitations on executive discretion’.33 The
statutory provisions that we examine operate as such qualifications. In some
circumstances, international law obligations may operate as a strict limitation on
the administrator’s authority. In others, it may be a weak limitation on authority,
and in still others, it is a factor to be balanced against other considerations.
Another and more substantive difficulty is whether statutory reference to
treaties as a qualification on administrative discretionary powers can be regarded
as a form of incorporation. There is uncertainty on this point in the scholarship.
Rothwell starts by stating that it ‘is not an instance where international law, by
way of a treaty or agreement, has been directly incorporated into municipal law
by expressly making its terms part of the statute’ but neither is it a form of
indirect implementation — as occurred in Teoh, it ‘squarely falls between these
two examples’.34 Yet this placement does not capture the complexities, for as he
states in his conclusion:
The quasi-incorporation approach may not be one which gives an international
treaty as prominent a role in municipal law as does direct incorporation. However,
Project Blue Sky demonstrates that the effect may ultimately be much the same as
direct incorporation, especially in instances where statutory authorities are
required to take into account the international obligation.35
Rothwell’s uncertainty demonstrates that it can be difficult for international
lawyers to classify and situate this form of implementation in terms of
incorporation.
In contrast, James Crawford and W R Edeson in their work on international
law in Australia in the mid-1980s were untroubled by the classificatory question,
treating incorporation as a matter of degree. In their analysis of this form of
implementation, they state that:
In such situations it does not matter whether the treaty is incorporated to any
greater extent, for the Act provides a clear direction to the decision-maker as to
how he is to exercise his statutory powers, and failure to have ‘regard’ or ‘due
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.
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.
III QUALIFYING ADMINISTRATIVE DISCRETION BY REFERENCE TO TREATY

OBLIGATIONS
There are numerous ways in which treaty commitments can be implemented
by statute. The general technique that we focus on can be referred to as
qualifying discretion by reference to treaty obligations. Parliament’s options
when deciding to qualify administrative discretions by reference to treaty
commitments can be separated into two broad categories.
We refer to provisions in the first category as ‘confining discretion’.37 The
principal feature of such provisions is that they require decision-makers
exercising discretionary powers to act consistently with treaty obligations. 38 For
example, s 138 of the Environment Protection and Biodiversity Conservation Act
1999 (Cth) provides: ‘In deciding whether or not to approve … the taking of an
action, and what conditions to attach to such an approval, the Minister must not
act inconsistently with Australia’s obligations under the Ramsar Convention’.39
In such provisions, the scope of the administrator’s discretion is limited by
reference to treaty obligations, where those limits may be enforceable by courts
in administrative law proceedings. We will examine this form of implementation
in Part IV(B).
The second category requires administrators to ‘have regard to’ or consider
Australia’s international law obligations.40 This is usually, but not always,41 a
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).
statutory requirement. Section 95(2) of the Chemical Weapons (Prohibition) Act

1994 (Cth) is an example of this kind of provision. It provides: ‘A person must,
in exercising a power or discretion conferred by this Act, have regard to
Australia’s obligations under the Convention’.42 We refer to these provisions as
‘structuring discretion’.43 They engage different administrative law principles
from the first option. Their principal feature is that they require the administrator
to consider, or apply,44 treaty obligations when exercising discretionary powers.
This option provides administrators with authority to determine how to balance
the treaty obligation with other, possibly competing, considerations. That means
that the treaty may have little or great effect on the administrator’s decision. We
will examine this form of implementation in Part IV(A).
When applicants challenge regulations or decisions on the basis that the treaty
obligation has had no effect or too little effect on the decision, the court’s scope
of review will be dependent on its interpretation of the implementation technique
employed in the statute. The issues that arise at this point go to the heart of
judicial review of administrative action. Where, and how, should courts draw the
line between ensuring legal accountability and respecting Parliament’s intention
to provide the administrator with space in which to exercise his or her
discretionary judgment? Administrative law does not come close to having a
general answer to such issues. It mediates a constant tension between the
legislative implementation provisions, the administrator’s responsibilities, and
the court’s limited, supervisory, role in judicial review proceedings. These
tensions are resolved on a case by case basis by reference to the applicable
statutory provisions and administrative law doctrines, as influenced by general
public law principles and norms.
We first discuss the Teoh case study, an instance of ‘structuring discretion’.
Our contention is that Teoh has retained undue prominence, overshadowing other
sites and modes of interaction between international and administrative law, and
accordingly we begin by putting it in its place. We then turn to Project Blue Sky,
an instance of ‘confining discretion’, to study the complexity of institutional
interactions and doctrinal responses generated by statutory incorporation of
international law into the domestic legal system.
IV CASE STUDIES
A Structuring Discretion: Convention on the Rights of the Child

Does the Australian government’s ratification of a treaty give rise to a
legitimate expectation that, in exercising a discretion, an executive decision-
maker will act consistently with that treaty? Teoh raised this broad proposition
for consideration, and in doing so attracted the attention of those interested in the
enforcement of international law in the domestic legal system. The legal issues
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).
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.
legitimate expectation] — legitimate expectations are not equated to rules or

principles of law.50
The question of whether, and if so, how and to what extent the legitimate
expectations doctrine in Teoh qualified dualism was a matter of debate.51 This
debate did not dampen the interest generated by the decision, arising from the
prospect that legitimate expectations might have ‘far-reaching’ implications for
the implementation of international law in the domestic legal system. 52 Writing
four years after the decision, Sir Gerard Brennan wrote that ‘Teoh might prove to
be a growth point of principle governing the effect of international law on
executive power’.53
Writing now, more than 18 years after Sir Brennan’s comments, it is clear that
this potential has not been realised. Our purpose in returning to Teoh and its
legacy is, in part, to argue that the current focus on Teoh in Australian
international law is now misplaced. The argument proceeds in three stages: first
we clarify exactly what the legitimate expectations doctrine, where it applies,
provides to the litigant. Secondly, we uncover aspects of Teoh’s legacy that have
largely been overlooked in the contemporary implementation literature. Thirdly,
we assess the nature and breadth of the proposition for which Teoh now stands as
authority.
1 What Does the Legitimate Expectations Doctrine in Teoh Give to the

Litigant?
Mr Teoh came to Australia and married an Australian citizen, having three
children by that relationship. His wife had four children by earlier relationships.
Mr Teoh was convicted of a drug offence, referenced in the judgment as linked
to his wife’s addiction to heroin, and was sentenced to imprisonment for six
years. At the time of his conviction, he had a pending application for permanent
residence. This application was refused on the basis that he was not of ‘good
character’ and a consequent deportation decision was issued. Article 3 of the
CROC, ratified by Australia at the time of the relevant decisions, directed that
the best interests of the child shall be a primary consideration in all actions
concerning children.54 Mr Teoh successfully challenged the visa and deportation
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).
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
2 From Legitimate Expectations to Statute-Based Mandatory Considerations

In discussing Teoh’s legacy, a theme of international law texts has been the
ministerial and state level legislative responses to the decision.59 In Teoh, the
majority judges stated that ratification of a Convention ‘is an adequate
foundation for a legitimate expectation, absent statutory or executive indications
to the contrary’.60 Federal and state governments took exception to this
proposition, holding it to be inconsistent ‘with the proper role of Parliament in
implementing treaties in Australian law’.61 They treated the Court’s
qualification, namely that legitimate expectations would arise absent ‘statutory or
executive indication[s] to the contrary’,62 as an opening and moved to supply the
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.
necessary indications with the intent of forestalling the use of legitimate

expectations as introduced in Teoh in any context.63 We do not propose to revisit
these executive and legislative responses, or their reception by the courts. They
appear to have had little legal effect in judicial review litigation64 and have been
well covered in the Australian international law literature.65
A second line of legislative and executive response to Teoh, largely ignored
outside of specialist administrative law publications,66 has proven more legally
consequential, albeit with a narrower scope of application. As illustrated in
Teoh’s case, the decision to cancel a visa on the grounds that a person is not of
good character is made in the exercise of a discretion by the relevant decision-
maker. In part in response to Teoh, s 499 of the Migration Act was amended to
enable the Minister to issue more detailed and prescriptive Directions to those
exercising that discretion,67 and relevant Directions were issued.68 The
Directions are binding on the relevant decision-makers.69 The Federal Court has
said that these Directions create ‘a framework within which the discretion vested
in the decision-maker is lawfully to be exercised’.70 They provide that the best
interests of the child, where relevant, are a primary consideration.71 By this
means, art 3 of the CROC was, post-Teoh, introduced by the government into the
very administrative process under review in Teoh. Article 3 was referenced in
Directions issued by the Minister and made binding on the relevant decision-
makers by statute, which determined which factors must, and may, be considered
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.
in exercising the statutory discretion. In this way, Teoh led to incorporation of

art 3 of the CROC by reference.
The use of the Directions has curtailed the contribution of the legitimate
expectations doctrine from Teoh in the context in which that decision arose: visa
cancellation and refusal decisions. To the extent that there is any inconsistency
between the applicable Direction and the reasoning in Teoh, then ‘the Direction
necessarily prevails’.72 With their greater specificity, the Directions have, within
their field of operation, been more legally effective in limiting the legitimate
expectations doctrine than the general ministerial statements discussed above,73
which were directed at denying such expectations in all contexts.74
At the same time as the Directions curtailed the contribution of the legitimate
expectations doctrine to visa cancellation and refusal decisions, they enabled the
application of another judicial review doctrine to such cases, namely mandatory
relevant considerations. The doctrine requires that, in the exercise of a given
discretion, certain matters must be considered, namely those matters that are
designated mandatory relevant considerations, and specifies how that designation
is arrived at. Where they apply (and where a child is affected by the decision),
the Directions convert the best interests of the child into a mandatory relevant
consideration.75 With the Directions in place, the doctrine of mandatory relevant
considerations will be breached where there is a failure to treat the best interests
of the child as a primary consideration.
This substitution of mandatory relevant considerations for legitimate
expectations is a gain for the litigant seeking to invoke the CROC in the visa
cancellation and refusal context. As explained above, the procedural nature of
the legitimate expectations doctrine means that a decision-maker can choose not
to consider the best interests of the child, so long as he or she notifies the person
affected of this intention and gives them an opportunity to address it. By way of
contrast, when the best interests of the child are a mandatory relevant
consideration, the decision-maker has to consider those interests. The decision-
maker cannot, through notification and allowance for response, dispense with
their consideration.76
The mandatory relevant considerations doctrine, where it applies, provides the
litigant with a more robust means of ensuring that the best interests of the child
are considered, not capable of being dislodged by procedural means. The phrase
‘where it applies’ indicates a critical contingency, distinguishing the
circumscribed operation of mandatory relevant considerations from the general
applicability of the Teoh legitimate expectations doctrine. The mandatory
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.
relevant considerations doctrine is dependent on government action in the

municipal sphere, in the form of references to the CROC in Directions, in a way
that the legitimate expectations doctrine introduced in Teoh was not (though of
course the legitimate expectations doctrine was dependent on the executive
ratification of the relevant treaty).
In providing a new capacity to issue Directions, and in issuing them, the
legislature and executive intended to push back against the result in Teoh. In the
second reading speech accompanying the amendments to the Migration Act
s 499,77 the Minister alluded to how the Directions would adjust the weight given
to various factors in Teoh, such that the best interests of the child would weigh
less and competing considerations supportive of visa refusal or cancellation and
consequent deportation would weigh more:
I do have a concern that sometimes the rights of a child in Australia of someone
who has been selling drugs, for instance, are given greater weight than the rights
of the many children of other Australians who are abused by those who are
trading in those sorts of products … I think we have gone overboard on the
Convention on the Rights of the Child to be concerned only about the rights of
children of those people who want to enter Australia, and not the impact that their
presence might have on other children, for instance, or the Australian community
as a whole.78
Notwithstanding this intent, the Directions provide a surer basis for judicial
review of the cancellation/refusal decisions for failing to take the best interests of
the child into account than the legitimate expectations doctrine from Teoh. The
Directions have generally strengthened the position of the litigant wishing to use
art 3 of the CROC to challenge a decision to refuse or cancel a visa on character
grounds. In the legal context in which Teoh was decided, relating to the
cancellation and refusal of visas on character grounds, the need for a decision-
maker to consider the best interests of the child under art 3 of the CROC is
presently unavoidable in a way it was not on the basis of the majority reasoning
in Teoh.79
Even within its area of operation, namely visa cancellation and refusal
decisions on character grounds, the substitution of mandatory relevant
considerations for the legitimate expectations doctrine is not complete. The
Directions do not apply in every case. They are not binding on the Minister in
respect of the personal exercise of her or his powers.80 Under the Migration Act,
the Minister has powers to make visa refusal or cancellation decisions on
character grounds personally, as opposed to through a delegate.81 When the
Minister makes a decision personally, the Directions do not apply and so do not
provide a foothold for the relevant considerations doctrine. As elaborated below,
77 These amendments were understood to enable prescriptive Directions of the form

subsequently issued under the authority of the provision: see above n 67.
78 Commonwealth, Parliamentary Debates, House of Representatives, 2 December 1998, 1244
(Philip Ruddock).
79 This is to confine the discussion to CROC art 3. There is a further question as to whether the
Teoh majority were correct in their exclusive reliance on art 3, or whether additional articles
of the CROC were relevant. See also the discussion in above n 54.
80 See, eg, NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1, 4 [6]
(Allsop CJ and Katzmann J).
81 Migration Act ss 501(3), (4).
this gap in the applicability of the mandatory relevant considerations doctrine has
been filled by the legitimate expectation doctrine from Teoh.
3 What is Teoh Authority for Now with Respect to Legitimate Expectations?

Alongside Teoh itself, and the ministerial statements in response, another
mainstay of Australian discussion on the effect of international law on
administrative power is the fate of the legitimate expectations doctrine
subsequent to Teoh’s case.82 In addressing Teoh’s place in discussions of the
effects of international law on administrative action, we need to distinguish
between the judicial review doctrine of legitimate expectations and the particular
subset of that doctrine of interest to international lawyers. The proposition the
Teoh majority introduced into Australian law was that a legitimate expectation
could be grounded in Australia’s ratification of a treaty.83 There are other ways a
legitimate expectation can arise, quite removed from any consideration of
international law. A legitimate expectation can also arise from the statements or
conduct of an official.
Following Teoh, the High Court has been consistently critical of the doctrine
of legitimate expectations.84 In its most recent salvo against the doctrine,
Minister for Immigration and Border Protection v WZARH (2015) (‘WZARH’),
the High Court gathered up its earlier criticisms in Re Minister for Immigration
and Multicultural and Indigenous Affairs; Ex parte Lam (2003) (‘Lam’) and
Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) as
evidence of the doctrine’s ‘rejection’85 and then proceeded to reiterate its
position:
The ‘legitimate expectation’ of a person affected by an administrative decision
does not provide a basis for determining whether procedural fairness should be
accorded to that person or for determining the content of such procedural fairness
… Recourse to the notion of legitimate expectation is both unnecessary and
unhelpful. Indeed, reference to the concept of legitimate expectation may well
distract from the real question; namely, what is required in order to ensure that the
decision is made fairly in the circumstances having regard to the legal framework
within which the decision is to be made.86
The object of this criticism is, at its simplest, any recourse to the doctrine,
whether grounded in Australia’s international law commitments or solely in
domestic matters. This means that much of the criticism, and the debate it has
engendered, is not about the implementation of international law at all. Only at
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).
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].
narrower proposition, confining the legitimate expectations doctrine from Teoh

to the CROC, has been accepted by government lawyers as constituting the
binding ratio from Teoh.92 To put this in the negative, Teoh is no longer authority
for the proposition that Australia’s ratification of a convention, other than the
CROC, grounds a legitimate expectation that a decision-maker will act
consistently with that convention. Teoh was a case on migration decisions that
affected children. Within that narrow compass the legitimate expectations
doctrine from Teoh continues to be successfully invoked.93
Even this narrow formulation suggests a broader application for Teoh’s
legitimate expectations than currently obtains. Recall that in character decisions
on visa refusal and cancellation that affect children (Teoh’s current field of
operation), where the Directions apply they displace legitimate expectations to
the extent of any inconsistency between the Directions and legitimate
expectations.94 This further narrows the field of application for legitimate
expectations to decisions that are made by the Minister personally. We have
located two cases since Lam in which an applicant has successfully quashed a
visa cancellation or refusal decision made by the Minister personally on the basis
of a disappointed legitimate expectation that the Minister would act consistently
with the CROC in making the best interests of the children a primary
consideration.95 While still something, this is very much a ‘niche’ contribution to
the implementation of international law. Further, we know of no case in which
an applicant successfully invoked legitimate expectations since WZARH.96
The government’s motivation for introducing the Directions was, in part, to
influence decision-makers’ exercise of discretion, rebalancing the weight given
to the interests of the deportee’s children under art 3 of the CROC so as to give
greater relative weight to competing factors. These motivations should not lead
to dismissal of the Directions as wholly contrary to the applicant’s interests in
having the best interests of the child considered. This is not a case where there is
a straight line leading from executive or legislative motivation to legal
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.
consequence. The relevant considerations ground of review enabled by the

Directions is, as introduced above, more robust than the legitimate expectations
ground from Teoh that it substantially replaces. It is a better vehicle for ensuring
that art 3 of the CROC is treated as a primary consideration in such decisions.
In the decade or more since Lam, the Teoh legitimate expectations doctrine
has delivered minimal, narrowly circumscribed, returns as a vehicle for the
implementation of international law in domestic administrative law. While it
once appeared that ‘Teoh might prove to be a growth point of principle’,97 this
has not eventuated. The attention of those interested in the effect of international
law on executive discretion needs to shift accordingly.
A return to Teoh’s original, and still primary, field of operation, namely visa
decisions on character grounds affecting children, suggests more fruitful areas of
investigation. The case law highlights the translation of international law into
domestic law by administrators, grounded in a reference in a sub-statutory
instrument. This form of translation enables a supervisory role for the courts,
who review decision-makers’ consideration of the international law obligation
according to administrative law doctrine. Our next case study, of Project Blue
Sky, is of another such translation process, instigated by statutory reference to
Australia’s international obligations.
B Confining Discretion: Australia New Zealand Closer Economic Relations

— Trade Agreement
Where statute confines an administrator’s discretion, the legal effects of the
constraint can vary. In some statutes, such confining provisions can be treated as
strict limits on the administrator’s powers so that when breached, the
administrator has no authority to exercise the statutory power.98 However,
confining provisions can also be interpreted by courts as less than strict limits.
Breach of such ‘soft’ confining provisions is likely to result in the court taking a
restrained enforcement role: the court may grant a weak remedy (one that the
plaintiff is not seeking and will not necessarily resolve their concern)99 or may
review the administrator’s decision in a restrained manner that treats judgments
on the effect of the treaty as primarily for the administrator and not the courts.100
Such complexities are apparent in the High Court’s decision in Project Blue
Sky.101 The provision requiring compliance with treaty obligations in this case
was s 160(d) of the Broadcasting Services Act 1992 (Cth) (‘Broadcasting
Services Act’). It required the 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’. This is a very broad form of implementation, one that
exposed the Australian Broadcasting Authority to an obligation to comply with
97 Brennan, above n 52, 191.

98 See, eg, Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR
144, 193–4 [106], 195–7 [116]–[119] (Gummow, Hayne, Crennan and Bell JJ) (‘Malaysian
Declaration Case’).
99 As discussed below, see, eg, Project Blue Sky (1998) 194 CLR 355, 375 [44], 391–3 [94]–
[101] (McHugh, Gummow, Kirby and Hayne JJ).
100 As discussed below, see, eg, Australian Conservation Foundation Inc v Minister for the
Environment (2016) 251 FCR 308, 357 [201].
101 (1998) 194 CLR 355.
the requirements of numerous, potentially conflicting, treaties.102 This is a fairly

common provision in Commonwealth statutes, with many examples of such
provisions currently operative.103 Section 160(d) was amended104 after Project
Blue Sky in order to limit the requirement for consistency with international
conventions and agreements to consistency with the treaty that was relevant in
Project Blue Sky: the Protocol on Trade in Services to the Australia New
Zealand Closer Economic Relations — Trade Agreement (‘Closer Economic
Relations Agreement’).105
The issue in Project Blue Sky was that broadcasting standards made by the
Australian Broadcasting Authority were in breach of the Closer Economic
Relations Agreement. Section 122 of the Broadcasting Services Act granted the
Authority power to make standards to be observed by television broadcasting
licensees for the Australian content of television programs. The Australian
Broadcasting Authority exercised that power to make a content standard that
required half of all television programming to be Australian programs. 106 The
exercise of this power appeared to be inconsistent with s 160(d), the provision
requiring consistency with Australia’s international law obligations. More
particularly, the content standard’s favouring of Australian programs was
inconsistent with articles of the Closer Economic Relations Agreement requiring
each country to provide persons of the other member state ‘access rights in its
market no less favourable than those allowed to its own persons and services
provided by them’ and accord such persons ‘treatment no less favourable than
that accorded in like circumstances to its persons and services provided by
them’.107
The Australian Broadcasting Authority was aware that the previous content
standard was inconsistent with the Closer Economic Relations Agreement as the
Minister had pointed it out in correspondence.108 The requirement for the
Australian Broadcasting Authority to perform its functions consistently with the
Closer Economic Relations Agreement had also been made clear in the
explanatory memorandum for the Broadcasting Services Act.109 Against this, the
Australian Broadcasting Authority had received legal advice that the content
standard could not include television programs from New Zealand because such
102 Rothwell, above n 30, 539–41.

103 See, eg, Air Services Act 1995 (Cth) s 9(3); Australian Maritime Safety Authority Act 1990
(Cth) s 7; Australian Postal Corporation Act 1989 (Cth) s 28(c); Customs Act 1901 (Cth)
s 269SK; Great Barrier Reef Marine Park Act 1975 (Cth) s 65; Sea Installations Act 1987
(Cth) s 13; Telecommunications Act 1997 (Cth) s 580(1).
104 Broadcasting Services Amendment Act (No 3) 1999 (Cth) sch 2. The equivalent provision
for the current agency, the Australian Communications and Media Authority, is included in
the Australian Communications and Media Authority Act 2005 (Cth) s 16.
105 Protocol on Trade in Services to the Australia New Zealand Closer Economic Relations —
Trade Agreement, signed 18 August 1988, [1988] ATS 20 (entered into force 1 January
1989) (‘Closer Economic Relations Agreement’).
106 Rising to 55 per cent in 1998: Australian Content Standard 1995 (Cth) cl 9, quoted in
Project Blue Sky (1998) 194 CLR 355, 379 [58].
107 Closer Economic Relations Agreement arts 4, 5(1); Project Blue Sky (1998) 194 CLR 355,
380 [64]–[65].
108 Project Blue Sky (1998) 194 CLR 355, 385–6 [83]; Letter from Bob Collins to Brian Johns,
2 December 1992 <http://www.austlii.edu.au/au/journals/AUBAUpdateNlr/1993/2.html>.
109 Explanatory Memorandum, Broadcasting Services Bill 1992 (Cth) 78.
programs could not be regarded as Australian content, as required by s 122 of the

Broadcasting Services Act.110
The proceedings were brought against the Australian Broadcasting
Authority’s updated content standard by applicants seeking to promote the New
Zealand film and television industry. They sought to enforce the Closer
Economic Relations Agreement via the implementing provision, s 160(d) of the
Broadcasting Services Act, against the Australian Broadcasting Authority’s new
content standard. The High Court agreed that the content standard was
inconsistent with s 160(d),111 but that finding raised a difficult administrative law
issue: did breach of s 160(d) mean that the content standard was invalid? The
question raised the issue of the enforceability of the Closer Economic Relations
Agreement as a matter of Australian domestic law. The applicants claimed that
the breach of s 160(d) resulted in the content standard being invalid.112 However,
representatives of the Australian film and television industry appearing as amicus
curiae argued that it did not, and that the effect of any breach of s 160(d) was a
matter for Parliament rather than the courts.113
A majority of the High Court resolved the case by taking a middle line
between the two argued positions and did so by granting a relatively weak
remedy.114 They determined that the fact that the Australian content standard
breached s 160(d) and the Closer Economic Relations Agreement did not mean
that the content standard was invalid. A finding that it was invalid would have
meant that the content standard had no effect,115 which is the usual remedy in
successful administrative law proceedings. The majority instead determined that
the content standard was unlawful,116 meaning that it remained legally effective
but that a person could apply for an injunction to stop the content standard being
enforced against them.117 Accordingly, a remedy was granted but it was not the
remedy sought by the applicants.
The majority’s conclusion and the remedy it granted followed from the
Court’s understanding of the relationship between the technique employed in the
Broadcasting Services Act for implementing treaties and administrative law
doctrines. The High Court treated the content standard as unlawful but not
invalid primarily because it regarded the requirement in s 160(d) (that the
Australian Broadcasting Authority perform its functions consistently with
Australia’s international obligations) as not constituting an ‘essential
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.
preliminary’ to the Australian Broadcasting Authority’s power to make content

standards.118 That is to say, s 160(d) was not regarded as a strict limit on the
Australian Broadcasting Authority’s power to make content standards. The
provision that established the power to make content standards was a different
provision: s 122 of the Broadcasting Services Act. Section 160(d) was regarded
as regulating the way the s 122 power was to be exercised rather than a provision
empowering the Australian Broadcasting Authority to make content standards.119
Interpreting s 160(d) as a regulating, rather than empowering, provision enabled
the majority to enforce s 160(d) as a soft, rather than strict, limit on the
Australian Broadcasting Authority’s power to make content standards. The
statutory incorporation of international law in s 160(d) marked the starting point
of a translation process shaped by the exercise of reconciling the different
statutory provisions, and articulated through administrative law doctrine.
The conclusion that s 160(d) was not a strict limit on the Australian
Broadcasting Authority’s power was reinforced by two considerations, each
relating to concerns about different forms of indeterminacy of international law.
The first form of indeterminacy related to potential indeterminacy of the treaty
obligation. The majority expressed a general concern that international
conventions and agreements are often expressed in what the majority stated was
‘indeterminate language’ and ‘are more aptly described as goals to be achieved
rather than rules to be obeyed’.120 This concern followed on from the majority’s
discussion of the difficulty for courts in determining the Australian Broadcasting
Authority’s compliance with the other subsections of s 160 that required the
Authority to perform its functions consistently with the objects of the Act,
government policy, and ministerial directions. The majority stated that ‘it is
almost certain that there will be room for widely differing opinions’ as to
whether the Authority had acted consistently with such requirements.121 This
clearly suggests that the majority had a general concern that direct enforcement
of the statutory provision, requiring the Australian Broadcasting Authority to
carry out its functions consistently with all of Australia’s international law
obligations, would see the courts in an inappropriate role, namely determining
policy. Identifying statutory requirements as soft limits enables the courts to
adopt a more limited supervisory role.
The majority’s second concern related to indeterminacy with respect to the
range and number of treaty obligations to which Australia was party. More
particularly, the majority was concerned with the consequences of this
indeterminacy of international law for particular non-parties: the television
stations holding broadcasting licences. The majority’s concern was that if the
requirement for consistency with international conventions was directly
enforceable, it could expose television stations to potential challenges on the
grounds that their licences were granted by the Australian Broadcasting
Authority inconsistently with some as yet unknown and unappreciated obligation
under international law and therefore in breach of s 160(d). The majority stated
that the licensees would find it difficult to ascertain whether the Australian
118 Project Blue Sky (1998) 194 CLR 355, 391 [94].
119 Ibid 391 [94].
120 Ibid 391–2 [96].
121 Ibid 391 [95].
Broadcasting Authority had acted consistently with international law when

granting their licences and stated that, ‘even those with experience in public
international law sometimes find it difficult to ascertain the extent of Australia’s
obligations under agreements with other countries’.122
The majority’s concerns about the indeterminacy of international law
obligations played an important role in their reasoning on the legal significance
of s 160(d). The majority had no difficulty interpreting and applying the relevant
articles of the Closer Economic Relations Agreement to the Australian
Broadcasting Authority’s content standard; the content standard was said to be
‘plainly in breach’ of the Agreement.123 Nevertheless, the judges’ reasoning as to
the remedy in Project Blue Sky offered a solution to anticipated litigation in
which the Australian Broadcasting Authority could be challenged for breach of
s 160(d) for conducting its functions inconsistently with indeterminate and as yet
unknown obligations in other treaties. Future plaintiffs seeking to enforce
s 160(d) in the form that it stood at that time, with respect to international law
obligations other than the Closer Economic Relations Agreement, might not
receive any remedy at all, despite being able to establish a breach of s 160(d).
The concerns regarding indeterminacy in the relevant treaty provisions, the
first type of indeterminacy discussed in relation to Project Blue Sky, were
relevant in a recent decision of the Federal Court, Australian Conservation
Foundation Inc v Minister for the Environment (‘Australian Conservation
Foundation’).124 This case involved a challenge to the approval of the
controversial Adani coal mine on the ground that the approval was inconsistent
with articles of the Convention concerning the Protection of World Cultural and
Natural Heritage (‘World Heritage Convention’)125 and, consequently, in breach
of s 137 of the Environment Protection and Biodiversity Conservation Act 1999
(Cth), which stated that ‘the Minister must not act inconsistently with …
Australia’s obligations under the World Heritage Convention’.126 Although
Griffiths J accepted that s 137 was a ‘prohibition’,127 suggesting that it was a
strict limit on the Minister’s discretion to grant the approval, he determined that
it was inappropriate to interpret that obligation literally128 and that it was for the
Minister to ‘form a view’ regarding whether the approval and any conditions
would be inconsistent with Australia’s obligations under the World Heritage
Convention.129 This reasoning resulted in Griffiths J not directly testing the
approval by reference to the World Heritage Convention. It was enough for
Griffiths J that the Minister was ‘mindful’ of s 137 as the Minister had referred
122 Ibid 392 [98].

123 Ibid 386 [84]; Closer Economic Relations Agreement arts 4, 5.
124 (2016) 251 FCR 308. An appeal of the Australian Conservation Foundation case focusing
on different issues to those discussed here was dismissed by the Full Court of the Federal
Court: Australian Conservation Foundation Inc v Minister for the Environment and Energy
(2017) 251 FCR 359.
125 Convention concerning the Protection of World Cultural and Natural Heritage, opened for
signature 16 November 1972, 1037 UNTS 151 (entered into force 17 December 1975).
126 Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 137(a).
127 Australian Conservation Foundation Inc v Minister for the Environment (2016) 251 FCR
308, 357 [201].
128 Ibid 356 [197].
129 Ibid 357 [201].
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
130 Ibid 357 [201]–[202].

131 Ibid 355–7 [189]–[200].
132 Ibid 356 [199].
133 Broadcasting Services Act 1992 (Cth) s 3(1)(e); Project Blue Sky (1998) 194 CLR 355, 376
[48].
134 Broadcasting Act 1942 (Cth) s 134; Senate Environment, Communications, Information
Technology and the Arts Legislation Committee, Parliament of Australia, Australian
Content Standard for Television & Paragraph 160(d) of the Broadcasting Services Act 1992
(1999) 1 [1.1].
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.
exercise of administrative discretion. When administrative officials seek to

ignore, or sideline, international law in their deliberations regarding the
discretion, plaintiffs can, through administrative law proceedings, seek to bring
those international law obligations to the fore. Our case studies demonstrate that
the primary factors affecting the courts’ ability to enforce international law in
such proceedings are the statutory implementation technique and the degree of
indeterminacy of the international law obligation.
More generally we have sought to demonstrate two points. The first is that
Teoh now has very little scope for operation in relation to the implementation
and enforcement of unincorporated international law obligations. This finding
contrasts with hopes expressed in the early years after Teoh was decided and
with the focus on Teoh in Australian international law texts. The second is that
interest in the influence of international law in domestic administrative law is
best served by engagement with, or at least an awareness of, the fact that
legislative implementation of international law may only constitute the starting
point of the translation process, a process shaped by a complex series of
institutional interactions, often refracted through administrative law doctrine.

Implementing Treaties in Domestic Law

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Implementing Treaties in Domestic Law

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IMPLEMENTING TREATIES IN DOMESTIC LAW:

TRANSLATION, ENFORCEMENT AND ADMINISTRATIVE

administrative law plays, as Janet McLean notes, a ‘crucial gate-keeping role’

This article contributes to the literature on the ‘translation’ of international

focus on executive discretion leads us to reflect on the application of the

19 Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment

context of treaties implemented as qualifications on administrators’ discretionary

21 McLean, ‘Divergent Legal Conceptions of the State’, above n 3, 167.

II ADMINISTRATIVE LAW IN THE AUSTRALIAN IMPLEMENTATION

A The Prominence of Teoh

subsequent fate. Nothing more is said about administrative law or executive

B Does Qualifying Administrative Discretion Involve Incorporation?

implementation of the International Covenant on Civil and Political Rights31 as

III QUALIFYING ADMINISTRATIVE DISCRETION BY REFERENCE TO TREATY

statutory requirement. Section 95(2) of the Chemical Weapons (Prohibition) Act

A Structuring Discretion: Convention on the Rights of the Child

legitimate expectation] — legitimate expectations are not equated to rules or

1 What Does the Legitimate Expectations Doctrine in Teoh Give to the

2 From Legitimate Expectations to Statute-Based Mandatory Considerations

necessary indications with the intent of forestalling the use of legitimate

in exercising the statutory discretion. In this way, Teoh led to incorporation of

relevant considerations doctrine is dependent on government action in the

77 These amendments were understood to enable prescriptive Directions of the form

3 What is Teoh Authority for Now with Respect to Legitimate Expectations?

narrower proposition, confining the legitimate expectations doctrine from Teoh

consequence. The relevant considerations ground of review enabled by the

B Confining Discretion: Australia New Zealand Closer Economic Relations

97 Brennan, above n 52, 191.

the requirements of numerous, potentially conflicting, treaties.102 This is a fairly

102 Rothwell, above n 30, 539–41.

programs could not be regarded as Australian content, as required by s 122 of the

preliminary’ to the Australian Broadcasting Authority’s power to make content

Broadcasting Authority had acted consistently with international law when

122 Ibid 392 [98].

130 Ibid 357 [201]–[202].

exercise of administrative discretion. When administrative officials seek to

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