Term Paper on "Parliament Legislate to Limit the Effect"

Term Paper 20 pages (5030 words) Sources: 10

[EXCERPT] . . . .

PARLIAMENT LEGISLATE to LIMIT the EFFECT of the HIGH COURT'S DECISION in MINISTER vs. TEOH (1995) 183 CLR 273

The work of Griffith and Evans (2002) entitled: "Teoh and Visions of International Law" the case of Teoh (1995) 183 CLR 273 it is stated that the Minister for Immigration and Ethnic Affairs v Teoh was one of those High Court decisions taken to the streets. What was, on reflection, an unexceptional, even conservative, decision, ignited a fierce political debate." The work of Lacey (2004) entitled: "A Prelude to the Demise of Teoh: The High Court Decision in Re Minister for Immigration and Multicultural Affairs; Ex-parte Lam" states that the authority of the High Court in its' 1995 decision in Teoh must now be examined in light of the High Court's 2003 decision in Lam." (Lacey, 2004) the work of Selway (2004) entitled: "The Principle Behind Common Law Judicial Review of Administrative Action - the Search Continues" states that common law "has had considerable difficulty in identifying a principle or principles by which to explain the order of the court's in reviewing administrative action." (Selway, 2002) Selway states that specifically "the separation of judicial power justifies and requires the distinction between jurisdictional and non-jurisdictional errors and the distinction between invalidity and merit review in Australian administrative law." (Selway, 2002) Since about 1700, "the role of the courts in reviewing administrative and judicial decision was explained on the basis of the rule of law. The relevant act or decision was invalid because it was in breach of or unauthorized by the law, or was beyond the scope of the power given to the decision maker by the law and was consequently of no legal effect, or the relevant decision maker had failed to comply with the law and should be compelled to do so. Judicial review was thus an aspect of the rule of law and could be explained by the principle of ultra vires. This explanation for judicial review is usually described as the 'ultra view theory.'" (Selway, 2002)

MAJOR ISSUES of TEOH

The key elements in this case include the first issue, which relates to the development of administrative law in Australia. John McMillan, in the work entitled: "Parliament and Administrative Law" states that the origins of administrative law: "...are located strongly in the common law, supplemented by s. 75(v) of the Constitution which confers an original jurisdiction upon the High Court to grant three administrative law remedies against the Commonwealth. Nowadays, however, the common law and constitutional underpinnings have been overshadowed in importance by the rights and review mechanisms created by Parliament in the last three decades. The protection of the public against executive error or abuse now has a firm legislative foundation." (2000) the second issue has to do with the "tension and conflict that arises between Parliament and the courts in the development of administrative law." (McMillan, 2000)

HISTORICAL BACKGROUND of the DECISION in TEOH

The applicant in Teoh "had been subject to a deportation order following a criminal conviction for importing heroin into Australia." Teoh was the parent responsible for seven children who were born in Australia and including the biological and step-children of Mr. Teoh. Mr. Teoh was a Malaysian citizen who cam to Australia in 1988 on a temporary entry permit. Griffith and Evans relate that he married Jean Helen Lim, an Australian citizen soon after he arrived in Australia. Ms. Lim already had four children and Teoh and Lim further had three children together. Griffith and Evans report that "Teoh applied for permanent residency in Australia..." (2002) and in 1999, prior to the determination of his application "he was found guilty of being involved in the importation of heroin and possession of heroin. He was sentenced to six years' imprisonment. In January 1991, Mr. Teoh's application for permanent residency was refused by a delegate of the Minister on the grounds that Mr. Teoh was not of good character because, inter alia, of his conviction for drug offences." (Griffin and Evans, 2002) an application was made by Teoh to have the decision reviewed "by the Immigration Review Panel..." who "acknowledge that 'Ms. Teoh and her family [were] facing a very bleak and difficult future' if residency was refused, but held that this was not enough to justify a waiver of the policy of refusing resident status to people with serious criminal convictions." (Griffin and Evans, 2002) the decision was upheld by French justice in the Federal Court and Mr. Teoh claimed "...that the decision-maker had failed properly to take into account as a primary consideration the damage that would be caused to his children if he were to be deported. This test was derived from article 3 of the Convention on the Rights of the Child 1989 (CROC). The Full Court upheld this claim." (Griffin and Evans, 2002) the appeal of the Minister to the High Court was dismissed in April 1995 in a joint judgment which "held that international conventions were not incorporated into Australian law could nevertheless give rose to a legitimate expectation that, in making administrative decision, the government would either act in a manner consistent with its treaty obligations or give the person affected an opportunity to argue that the treaty provisions should be applied. Such legitimization expectations existed if there were no 'statutory or excessive indications to the contrary. Thus, the delegate of the Minister had erred in failing to make the interest of the child a 'primary consideration' as required under article 3 of the CROC, and in not giving Mr. Teoh a chance to argue that the Convention should have been applied." (Evans and Griffin, 2002) Griffin and Evans state:.." It followed, therefore, that Mr. Teoh had been denied procedural fairness and the decision of the delegate was set aside." (2002) Within a month of the judgment being handed down a formal response with delivered by the government "in the form of a Joint Statement by the Minister for Foreign Affairs and the Attorney General." (Griffin and Evans, 2002) the intention of the statement was clarification of the government's position in relation to the Teoh case and for the purposes of elimination of "international conventions as a basis for legitimate expectations in administrative decision-making." (Griffin and Evans, 2002) the statement is stated to have been an explicit referenced which relied "on the dicta in the judgment" of Justices Mason and Deane "that statutory or executive indications to the contrary may negative legitimate expectations that could otherwise arise from treaties." (Griffin and Evans, 2002) the specific statement of the Justices was as follows:

E]entering into an international treaty is not reason for raising any expectation that government decision-makers will act in accordance with the treaty if the relevant provisions of that treaty haven to been enacted into domestic Australian law. It is not legitimate, for the purpose of applying Australian law, to expect that the provisions of a treat not incorporated by legislation should be applied by decision-makers. Any expectation that may arise does not provide a ground for review of a decision. This is so, both for existing treaties and for future treaties that Australia may join." (Griffin and Evans, 2002)

The legislative response is reported in the work of Griffin and Evans who state: "Each executive statement was expressed to be an anticipation of legislation to confirm that the ratification of treaties does not give rise to legitimate expectations. The Administrative Decisions (Effect of International Instruments) Bill was introduced in 1995. The Bill enjoyed bi-partisan support but lapsed with the calling of the 1996 election. A Bill of the same name and of similar scope was then introduced by the new government in 1997." (Griffin and Evans, 2002) Clause 5 of the primary provision of each of the Bills states:

The fact that:

Australia is bound by, or party to, a particular international instrument; or an enactment reproduces or refers to a particular international instrument; does not give rise to a legitimate expectation of a kind that might provide a basis at law for invalidating or in any way changing the effect of an administrative decision." (Griffin and Evans, 2002)

The case of Teoh has brought a large examination to the range and role of legitimate expectations in judicial review of administrative action. And according to Griffin and Evans, "...of wider import is the exposure of different visions of international law in the working of municipal law." (Griffin and Evans, 2002) the view of the internationalist is that international law creates "standards and obligations that are of domestic relevance." (Griffin and Evans, 2002) Whereas, it is perceived by the traditionalist that international law is for the most part 'benign, but "predominantly a matter for states and of minimal relevance to domestic law of individuals within Australia." (Griffin and Evans, 2002) a view, which is more limited vision "has a rhetoric that approves of international law but also perceives it as a potential threat to other important values. The more conservative vision is overtly hostile… READ MORE

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