Parliament Legislate to Limit the

” (Griffin and Evans, 2002) a wider vision of international law, according to Griffin and Evans is one that views adhering to laws that are international as an obligation “to the extent of mandating each arm of government to promote compliance with international law.” (2002) This position is justified firstly, through holding that international law “is law, and it produces binding, legal obligations on Australia. Hence international law should be obeyed out of a sense of legal obligation.” (Griffin and Evans, 2002) the second justification used is one that holds that “the content of international laws often has some moral force and should be obeyed out of a sense of moral obligation.” (Griffin and Evans, 2002) in the area of human rights law this is particularly held true and in cases where “judges sometimes come close to the language of natural law when describing the importance of these rights.” (Griffin and Evans, 2002) Both Chief Justice and Deane in Teoh reflect in their joint judgment the view that complying with international law is “both legally and morally obligatory” the application of the interpretive rule is that “ambiguous statutes should be read so that they conform to rather than conflict with international obligations.” (Griffin and Evans, 2002) This is reflective of respect held for international treaties and makes a judicial assumption that the parliament has the intentions to hold the legal obligations of Australia on an international basis as serious “unless there is a clear indication to the contrary.” (Griffin and Evans, 2002) the facts in this case are revisited in the work of Lacey who states “at one level, the majority of the High Court simply rearticulated the existing principles regarding the legitimate use that may be made of unincorporated international treaties in Australian law.” (2004) High Court Justices Mason and Deane are noted to have stated:

T]he fact that the Convention has not been incorporated into Australian law does not mean that its ratification holds no significance for Australian law. Where a statute or subordinate legislation is ambiguous, the courts should favor that construction which accords with Australias obligations under a treaty or international convention to which Australia is a party, at least in those cases in which the legislation is enacted after, or in contemplation of, entry into, or ratification of, the relevant international instrument. That is because Parliament, prima facie, intends to give effect to Australias obligations under international law. It is accepted that a statute is to be interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with the established rules of international law.” (Lacey, 2004)


The High Court Justices furthermore “referred to the accepted use that may be made of international instruments in the development of the common law.” (Lacey, 2004) Lacey states that the primary legal principle was the question of “whether Australias ramification of the Convention [on the Rights of the Child] [could] give rose to a legitimate expectation that the decision-maker will exercise that discretion in conformity with the terms of the Convention. The fact that the majority of the court, including Mason and Deane (together with Hoohey who delivered a separate judgment) answered this question in the affirmative…” And it was precisely this that fermented into a controversy in regards to the decision of the court. The judgment, which was joint in nature provided reasoning as follows in addressing the question in this case:

R]atification by Australia of an international convention is not to be dismissed as a merely platitudinous or ineffectual act, particularly when the instrument evidences internationally accepted standards to be applied by courts and administrative authorities in dealing with basic human rights affecting the family and children. Rather, ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the convention. That positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the Convention and treat the best interests of the children as “a primary consideration.” [Emphasis added.]” (Lacey, 2004)

The expectation that had been identified in Teoh held that whether or not the individual was in possession of the knowledge of the existence of the Convention “would not preclude the expectation from arising.

” (Lacey, 2004) it was held by both Mason and Deane in this case that “it was enough that the expectation was reasonable in the sense that there are adequate materials to support it. The effect of the legitimate expectation was not to create a binding rule of law, whereby a decision-maker was compelled to act in conformity with the Convention. Such a result would have involved the incorporation of the Convention by the backdoor and would have linked the effect of the legitimate expectation with substantive outcome, rather than with the procedures to be adopted.” (Lacey, 2004)


Lacey holds that in administrative law “this distinction is critical…and stems from the separation of powers in Australia.” (2004) Only the legalities of the decision-making in judicial review of administrative action is allowable and the merits of the case are not considered “which is an administrative function to be performed by the executive.” (Lacey, 2004)Lacey relates that the ultimate outcome of the expectation being held to be legitimate in Teoh was not of this class or decision, however. It did not involve a development of the law in conflict with the constitutional separations of powers. The effect of the legitimate expectation in Teohs case was limited to a procedural guarantee, which was itself premised upon the right of the decision-maker to act inconsistently with a treaty obligation. Where a decision-maker proposed to decide a matter inconsistent with a legitimate expectation, procedural fairness would require that any persons affected be given notice and an adequate opportunity of presenting a case against such a course of action.” (2004)

The High Courts decision in Teoh included that delivered by Justice McHugh described as a “strong dissenting judgment” treating the identified legitimate expectation to be one that involved the substantive protection of the treaty instead of applying the focus on the requirements of procedural law. McHugh stated:

In my opinion, no legitimate expectation arose in this case because:

1) the doctrine of legitimate expectations is concerned with procedural fairness and imposes no obligation on a decision-maker to give substantive protection to any right, benefit, privilege or matter that is the subject of a legitimate expectation;

2) the doctrine of legitimate expectations does not require a decision-maker to inform a person affected by a decision that he or she will not apply a rule when the decision-maker is not bound and has given no undertaking to apply that rule; (3) the ratification of the Convention did not give rise to any legitimate expectation that an application for resident status would be decided in accordance with Art 3.” (Justice McHugh as cited in Lacey, 2004)

The point departed from by McHugh was: “therefore entirely different from that of the majority and at the start the question was being approached from a different viewpoint and McHugh went on to question various views of legitimate expectations in terms of the practicality of the role of the doctrine in Kioa v West in which the High Court “had adopted a broad approach to the types of interests sufficient to enliven procedural fairness requirements. While this is an accurate analysis of the position since Kioa regarding what is referred to as the threshold test, it is submitted that the doctrine of legitimate expectations must still play a role in determining the content of procedural fairness requirements in any given case.” (2004)

McHugh also criticized the “objective nature of the expectation in Teoh…” As it was the belief of McHugh that “the subjective state of mind of an individual is affected by a decision should be treated as relevant to whether the expectation is objectively reasonable.” (Lacey, 2004) in other words the individual perspective of the claimant must within their view be required to have been shown to find the expectation to be reasonable therefore prior to that expectation holding validity. However, it was held by McHugh that the individual, being unaware of an objectively reasonable benefit and does not become aware in order to take advantage of that opportunity has not, if holding no expectation for such, suffered any type of disappointment or injustice “if the privilege or benefit is discontinued.” (Lacey, 2004)

In other words, one cannot “lose” what one does not “hold” and in this case the expectation. It is the opinion of Lacey that McHugh is directly “at odds with that of the majority” the capacity to.


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