Deakin Law Review
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Deakin Law Review |
|
SKY MYKYTA[*]
For many years there has been an uneasy relationship between the judicial and administrative arms of Federal Government in Australia. The Executive has publicly criticised the High Court as being ‘activist’ and has tried to oust the Court’s jurisdiction in many areas, especially over review of immigration and refugee decisions. Nothing has captured this disease more strongly than the 1995 High Court decision of Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh.[1] Eight years after the judgment was handed down it still commands passionate support and ferocious detraction, yet arguably the decision has had little real legal effect in Australia. The ‘Teoh principle’ is easily circumvented by a simple statement from the Executive, and it does little to achieve its apparent aim of holding Government to its international commitments. However, in 1999, on the other side of the world, the Canadian Supreme Court handed down a decision of extraordinary significance to Canadian administrative law in a very similar case. Baker v Canada (Minister of Citizenship and Immigration)[2] addressed the same issues as Teoh, and the Supreme Court was similarly troubled by Government arguments that ratified international instruments have no domestic effect until legislatively implemented. Yet Canadian administrators cannot easily avoid Baker’s requirements, and Canadian citizens can be confident that their decision-makers are not acting in a value-free vacuum. The Baker decision, unlike Teoh, strikes an effective balance between recognising the value and autonomy of the modern administrative law regime whilst applying a standard that ensures that administrative decisions are made according to the rule of law and fundamental values.
A comparison of Baker and Teoh offers a focal point for examining the intersection of administrative law, international law and universal human rights concepts. Each case examined the effect of the ratified but unimplemented United Nations Convention on the Rights of the Child ('CRC') on administrative decisions in their respective jurisdictions. Both involved the deportation of an alien parent of citizen children and addressed the question of whether Crown officers exercising broad statutory discretions were required to pay regard to 'the best interests of the child'[3] in making decisions affecting their parents’ immigration status.
The Supreme Court of Canada and the High Court of Australia both decided that immigration officers must have regard to the Convention, but in differing ways and applying different principles. The Government responses were also dramatically disparate – Canada responded by rapidly implementing its Convention obligations in its new Immigration and Refugee Protection Act;[4] while Australia reacted angrily to the High Court’s decision. Rather than taking it as a signal that the Federal Government should have greater care to implementing Australia’s international obligations, the decision was seen as an unacceptable intrusion into Parliament’s proper sphere, and immediate attempts were made to overturn the ‘Teoh principle’. This principle provides that ratification of international instruments gives rise to a legitimate expectation in persons affected by administrative decisions that such decisions will be made according to the treaty’s principles, and that if the decision-maker proposes to depart from those principles she or he must accord procedural protections to the persons affected. Such an expectation is, however, easily overturned. The Canadian Supreme Court, on the other hand, found that the legitimate expectations doctrine was not useful and decided instead that the general duty of fairness required procedural safeguards to be granted, including the provision of reasons in most cases. Most significantly the Court held that administrative decisions must be made according to the rule of law and in accordance with fundamental values, which are exemplified, inter alia, in ratified international human rights instruments.
Both Baker and Teoh extend judicial supervision of executive actions. Each overturned to some extent the accepted principle that, whilst the Executive is entitled, under its prerogative powers, to enter and ratify any international instruments it desires, it remains for Parliament to implement those instruments in domestic legislation when and as it sees fit. In both cases the Crown argued that the CRC, though ratified, had no domestic effect. In both cases, obiter statements from the New Zealand case Tavita v Minister of Immigration,[5] were endorsed in the majority judgments, to the effect that ratification of treaties should not be considered mere 'window-dressing'.[6] Distaste for Government arguments that international obligations can be completely ignored until legislatively implemented may have provided some of the impetus for the novel judicial solutions arrived at, but there can be no doubt that the decisions altered what had been an accepted principle of the Westminster system.
The nature and acceptance of the doctrine of legitimate expectations varies significantly between Canada and Australia. In Britain and Australia, the common law duty of fairness is triggered where a person who has a right, interest or legitimate expectation is affected by an administrative decision. The content of the duty varies according to the affected person’s circumstances. In Canada the general duty of fairness is somewhat wider, encompassing rights, interests and privileges, and the threshold for activation of the duty appears to be lower.[7] This general duty does not protect legitimate expectations in Canada. Although frequently argued in cases before Canadian courts, the doctrine of legitimate expectations has rarely been approved, and when it has been, it has sometimes provided lesser procedural redress than would have been available under the general duty of fairness.
One of Lord Denning’s innovations, the legitimate expectations doctrine was originally applied to provide procedural protections to parties who had no legal right or interest per se, but who, as a matter of fairness, deserved such protection. A classic legitimate expectation will arise in three situations: where a person has an interest that they expect will continue (such as a licence); where an administrator has made a representation that a particular procedure will be followed and then changes that procedure without warning; where an administrator promised that a certain result will ensue or certain criteria will be applied in making a decision and that promise was subsequently broken.[8] In Australia the doctrine has been applied to require the decision-maker to grant a hearing before employment is terminated or a licence is revoked or refused.[9] The doctrine was accepted and applied by the High Court in Heatley v Tasmanian Racing and Gaming Commission[10] to find that the general public have a legitimate expectation, upon payment of admission, that they will 'continue to receive the customary permission to go on to racecourses'.[11] Heatley had been 'warned off' the racecourses with no prior notice, no reasons and no opportunity to be heard. He had a special need to attend the racecourses in person because he was a professional gambler: his livelihood depended on it. In such circumstances, although he had no legal right and the Commission had actual statutory power to warn people off, procedural fairness required that Heatley be heard by the Commission before he could be denied entry.
In 1994, before the Teoh and Baker decisions, the effect of the ratified but unimplemented CRC was considered by the New Zealand Court of Appeal in Tavita.[12] Mr Tavita, a Western Samoan citizen who entered New Zealand on a visitor’s permit in December 1987, became an overstayer in March 1989. A removal warrant was issued in March 1990 and he appealed to the Minister of Immigration seeking a cancellation of the warrant on humanitarian grounds. This request was denied in April 1991, but in June 1991 Tavita’s daughter, a New Zealand citizen, was born and he subsequently married the child’s mother. In September 1993 the Immigration Service sought to enforce the removal order and judicial review proceedings were brought seeking to have the order quashed and his case reconsidered. Tavita relied in part on the CRC which had been ratified but not incorporated into domestic law. The Court found that the Minister’s delegate had given no regard to the principles of the CRC, in fact the decision had been made before the birth of the child. Ultimately, the Court of Appeal gave the Minister a chance to avoid an adverse decision by adjourning the appeal to allow a reconsideration of Tavita’s case in light of the new facts. In his interim judgment however, Cooke P made a number of observations that have been applied in subsequent decisions both in New Zealand and other jurisdictions. In a frequently cited passage Cooke P stated:
[Counsel for the Minister argued] that in any event the Minister and the Department are entitled to ignore the international instruments. That is an unattractive argument, apparently implying that New Zealand’s adherence to the international instruments has been at least partly window-dressing. Although, [in the circumstances], a final decision is neither necessary nor desirable, there must at least be hesitation about accepting it.[13]
Tavita was allowed to remain in New Zealand on reconsideration hence the appeal was never reconvened. The decision prompted the Minister to change departmental policy to require the interests of children affected by immigration decisions to be considered.[14] The lack of a final judgment on the issue may have enabled the New Zealand Government to more easily take a progressive approach to Tavita’s case.
Ah Hin Teoh was a Malaysian citizen who entered Australia in May 1988 on a temporary entry permit. In July 1988 he married Helen Lim, an Australian citizen, who had been the de facto wife of Teoh’s brother (who was deceased at the time of the marriage). Lim already had four children when she married Teoh, three of whom were the children of Teoh’s brother. She had a further three children with Teoh, amounting to seven in total. Before the expiry of his temporary permit, Teoh applied for permanent residence.[15] In November 1990, with his residence application still pending, Teoh was convicted of six counts of being knowingly concerned in the importation of heroin, and three counts of possession of heroin. He was sentenced to six years imprisonment with a non-parole period of two years and eight months. The sentencing judge accepted that Mrs Teoh’s heroin addiction played a part in Teoh’s crimes. In January 1991, Teoh was informed by letter from a delegate of the Minister that his application for residence had been rejected. The attached reasons stated that it was a policy requirement that applicants for residence be of good character and that because of his criminal record Teoh could not meet the character requirement. He was also informed that he was entitled to apply for a review of the decision by the Immigration Review Panel ('IRP'). This body was not entitled to substitute its own decision for that of the Minister’s delegate but was entitled to review the whole case on its merits and make a recommendation carrying significant weight. Teoh made an application to the IRP for review and submitted a number of testimonials supporting his application. It was accepted by the IRP that Teoh was a good father and responsible family man who had made serious attempts to keep his wife out of trouble. The IRP made its recommendation in the following terms:
All the evidence for this Application has been carefully considered, including the claims of Ms Teoh. It is realised that Ms Teoh and family are facing a very bleak and difficult future and will be deprived of a possible breadwinner as well as a father and husband if resident status is not granted. However the applicant has committed a very serious crime and failed to meet the character requirements for the granting of Permanent Residency. The Compassionate claims are not considered to be compelling enough for the waiver of policy in view of [Mr Teoh’s] criminal record.[16]
In July 1991 a delegate of the Minister accepted the IRP’s recommendation. In February 1992 another delegate ordered Teoh’s deportation.
Teoh applied to the Federal Court for judicial review of the decisions of the Minister’s delegates on the grounds that there was:
(a) a breach of procedural fairness in not allowing Teoh a chance to contradict the finding of bad character;
(b) an improper exercise of power in failing to take relevant considerations into account; and
(c) an improper exercise of the discretionary power to accord with the Departmental policy without proper regard to the merits of Teoh’s case.
Teoh’s application was rejected at first instance and he appealed to the Full Federal Court. At that stage he sought and obtained leave to amend the grounds for review to add the following:
(d) the Minister’s delegates breached the requirements of procedural fairness in failing to make appropriate investigations into the hardship to Teoh’s family that would result from a refusal of his application; and
(e) French J erred in finding that hardship to Teoh’s wife and children had been taken into relevant consideration by the Minister’s delegates.
The Full Federal Court unanimously allowed Teoh’s appeal, quashed the decisions of the Minister’s delegates refusing his application for residence and deporting him, and ordered that the application be reconsidered according to law. In making these orders, two judges held that the executive Government’s ratification of the CRC was a positive statement to the national and international community that Australia would adhere to the principles of the CRC, and gave rise to a legitimate expectation that these principles would be applied. Lee and Carr JJ held that if an administrator proposed not to follow the CRC’s principles in making a decision of the sort challenged, the administrator was required to first make appropriate investigations and obtain reports on the future welfare of the children. The Minister appealed to the High Court of Australia.
A majority of 4:1 of the High Court dismissed the Minister’s appeal. In doing so they adopted somewhat different reasons from those of the Full Federal Court, and held that the Full Court went too far in requiring investigations and reports into the effect of the deportation on the children. Mason CJ and Deane J saw the critical questions as whether the CRC is relevant to the exercise of statutory discretion in immigration decisions, and whether Australia’s ratification of the CRC can give rise to a legitimate expectation that the decision-maker will exercise discretion in conformity with CRC principles. It was ultimately held that Australia’s ratification of the CRC did give rise to a legitimate expectation that discretionary decisions would be made in conformity with its principles and where administrators decided to depart from them they had an obligation to inform the persons affected by the decision and allow them an opportunity to persuade the administrator to conform with the CRC. This was the High Court’s attempt to avoid granting the substantive right to have decisions made in conformity with the CRC whilst reinforcing procedural rights. A decision-maker is still entitled, under the High Court’s formulation, to depart from the principles of the CRC but is required to provide extra procedural protections. Echoing Tavita, the majority stressed that:
Ratification 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 the 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.[17]
The decision constituted a significant expansion of the legitimate expectations doctrine, both because it held that ratification alone constituted a representation by the executive government that the CRC would be complied with in administrative decisions, and because no actual knowledge of, or reliance on, the treaty was required for the expectation to arise: it was enough that the reliance was objectively reasonable.[18] McHugh J delivered a firm dissent arguing that the ratification of a treaty was a statement only to other State parties to that treaty, not to the Australian community nor even the global community, and therefore could not be a representation giving rise to a legitimate expectation.[19] In a stinging aside he said:
It seems a strange, almost comic, consequence if procedural fairness requires a decision-maker to inform the person affected that he or she does not intend to apply a rule that the decision-maker cannot be required to apply, has not been asked or given an undertaking to apply, and of which the person affected by the decision has no knowledge.[20]
Additionally he argued that the High Court had been correctly moving towards a more general presumption that procedural fairness applies to all administrative decisions regardless of expectations. McHugh J held that procedural fairness had been accorded Teoh and that his children had been a primary consideration in the IRP’s recommendation.
Varying responses followed the Teoh decision. Some regarded it as a major step forward in holding governments’ to their international commitments.[21] It was asked: why shouldn’t the Executive government be bound to apply principles it has expressly approved by its own act of ratification? Australia does not have a true separation of powers – the Executive government is drawn from and leads Parliament – so it is somewhat disingenuous to suggest that the act of ratification of treaties by the Executive government is thoroughly undemocratic. However others see Teoh as 'a misguided and ultimately unsuccessful attempt to avoid the allegation of "back door" incorporation of treaty law by the judiciary'.[22] Arguably the Teoh principle is easily circumvented by a simple statement negating the expectation. Such a statement was issued by the then Attorney-General and Foreign Minister less than five weeks after the High Court’s decision was handed down:
We state, on behalf of the Government, that 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 have not been enacted into domestic Australian law.[23]
Legislation overturning the Teoh principle has thrice been presented to Federal Parliament, but has yet to be enacted.[24]
The Baker case involved similar facts to both Tavita and Teoh. Baker was a Jamaican citizen who entered Canada on a visitor’s visa in August 1981 and remained illegally thereafter. She supported herself as a domestic worker for 11 years and had four children, all Canadian citizens. After the birth of her last child she suffered from post-partum psychosis and was diagnosed with paranoid schizophrenia. She then applied for welfare and the immigration authorities finally caught up with her. Baker was ordered deported in December 1992. In 1993 she applied for an exemption (based on humanitarian and compassionate grounds) from the requirement that permanent residence applications be made from outside Canada. Baker was the sole care-giver for two of her Canadian children whilst the other two were in regular contact and emotionally dependent on her. On 18 April 1994 she received a letter from Immigration Officer Caden stating that her exemption application had been refused due to insufficient humanitarian and compassionate grounds. No reasons for the decision were provided with this letter. On request she was provided with notes made by another Immigration Officer, Lorenz.[25] Baker then applied to the Federal Court, Trial Division to have Caden’s decision reviewed. Simpson J held that since no reasons were required and none provided, she would assume that Caden had acted in good faith and made a decision on correct principles, thus she dismissed Baker’s application. The other grounds for review advanced by Baker were:
(a) that Officer Caden’s decision was ultra vires because there was no evidence to support the claim in Officer Lorenz’s notes that Baker would be a strain on the welfare system;
(b) that Officer Caden’s decision breached the requirements of natural justice because there was a reasonable apprehension of bias evident from Officer Lorenz’s notes;
(c) that there was a failure to take into account relevant considerations because the CRC mandated that Baker’s children’s best interests be a primary consideration in the exercise of discretion, or that the children were a relevant consideration in any event; and
(d) that there was a breach of procedural fairness in that Baker’s legitimate expectation that the children’s interests would be a primary consideration was disappointed.
Simpson J rejected all these grounds, however she certified a 'serious question of general importance'[26] arising from Baker’s case for consideration by the Federal Court of Appeal:
Given that the Immigration Act does not expressly incorporate the language of Canada’s international obligations with respect to the International Convention on the Rights of the Child, must federal immigration authorities treat the best interests of the Canadian child as a primary consideration in assessing an application under s114(2) of the Immigration Act?[27]
The Federal Court of Appeal held that the CRC imposed no obligations on officers exercising discretion under the Immigration Act. Their decision was based in large part on McHugh J’s dissent in Teoh.
It is interesting to note that the Teoh decision is never mentioned by the Supreme Court of Canada in Baker. Notwithstanding the fact that Teoh was argued before the Federal Court at both levels, was relied upon in the Federal Court of Appeal’s judgment, and that Iacobucci J’s partially dissenting judgment expresses the same concerns as McHugh J, 'there appears to have been a taboo in the Supreme Court on mentioning Teoh'.[28] This is especially surprising considering that obiter from Tavita is approved in both cases, and that the Canadian Supreme Court and the Australian High Court frequently consider each others’ decisions . L’Heureux-Dubé J dismissed Baker’s legitimate expectations claim stating that the CRC did not constitute a statement by government capable of supporting a legitimate expectation. However, she left open the question as to whether international treaties could give rise to such expectations in other circumstances.[29] The Baker decision has great significance for Canadian administrative law because of its finding that the duty of fairness requires reasons for many executive decisions.[30] L’Heureux-Dubé J held that Officer Lorenz’s notes were sufficient to satisfy the requirement for reasons in this case, and held that those reasons disclosed bias.
Arguably even more significant, in terms of the development of administrative law, is the standard of review that was applied to the Immigration Officer’s decision in Baker. An appropriate balance was sought, and, in my opinion, struck between recognising the importance of administrative tribunals (with their high levels of expertise and flexibility), and the importance of holding such decision-makers accountable to fundamental values. L’Heureux-Dubé J put it thus:
Though discretionary decisions will generally be given considerable respect, that discretion must be exercised in accordance with the boundaries imposed in the statute, the principles of the rule of law, the principles of administrative law, the fundamental values of Canadian society, and the principles of the Charter.[31]
The application of this standard lays the foundations for a requirement that administrators publicly justify their decisions. The judiciary must accept, certainly, that Parliament has seen fit to delegate discretion over many decisions to administrators, but concomitantly, the increasing interference in people’s lives requires that those decisions be justified where they curtail fundamental rights and freedoms. If a decision-maker’s reasons disclose a reasonable justification for the curtailment having carefully weighed up the conflicting issues, then it is not for the courts to intervene, but if that decision is arbitrary and unjustified, why should not the courts step in and require that the decision be set aside and remade according to law? In this way, judges can show deference to the discretionary decisions that are publicly justifiable, and not be accused of merely substituting the decision they would have made.[32] It is an accepted canon of interpretation that international law (including ratified but unincorporated treaties) can be used to resolve ambiguities in statutes. Since international instruments give expression to universally accepted human rights concepts, and since these reflect the values of society (as L’Heureux-Dubé J adverted to), they may influence the scope of statutory discretions. Therefore, as with Charter rights violations in Canada, the onus should lie on the Government to show that decisions 'can be demonstrably justified in a free and democratic society',[33] and by according procedural protections to those affected. The role of administrative law is to safeguard citizens from arbitrary acts of Government. In this age of increasing delegation of Government powers, the Courts must broaden the scope of their supervision of Government acts, whilst still deferring to decisions that they might not have made themselves but which are shown to be justified by the decision-maker.
In stark contrast to the Australian Government’s response, Canada saw Baker as a reminder of the need to implement its international obligations promptly. Perhaps this can in part be attributed to Canada’s rights culture[34], but certainly, unless Australia’s ratification was a cynical publicity exercise (which one is loath to infer), our Government also fully intends to implement its treaty obligations promptly and effectively.
Perhaps one of the reasons for the aggravated response from the Australian Federal Government to the Teoh decision was that the Immigration Department’s conduct was far less egregious than the officers’ conduct in the Tavita and Baker cases.[35] When the decisions were made to refuse permanent residence and deport Teoh, he had the right to have those decisions reviewed by the IRP. The application was reviewed on its merits, including the impact on his family, and acknowledged the 'bleak and difficult future'[36] facing his wife and family, but found on balance that he should not be granted residence. By contrast, in Tavita the Minister stated in his affidavit evidence that:
had these new facts [the birth of Tavita’s child and his marriage] been before me it is unlikely that my decision would have been any different... In my experience it is common to find persons, in New Zealand unlawfully... who have children born in New Zealand.[37]
Tavita was facing a removal order that would be in force for five years – five years in which he would not have been able to enter New Zealand to visit his family. Similarly in Baker, the Minister’s delegate evinced a callous disregard for Baker’s circumstances and for the consequences for her family:
The PC [Baker] is a paranoid schizophrenic and on welfare. She has no qualifications other than as a domestic. She has FOUR CHILDREN IN JAMAICA AND ANOTHER FOUR BORN HERE. She will, of course, be a tremendous strain on our social welfare systems for (probably) the rest of her life. There are no H&C (sic) factors other than her FOUR CANADIAN-BORN CHILDREN. Do we let her stay because of that? I am of the opinion that Canada can no longer afford this type of generosity.[38]
Bear in mind that Baker was only seeking an exemption from the requirement that she apply for permanent residency from outside Canada. The official attitude in Teoh’s case seems very compassionate by comparison. Neither Tavita nor Baker had the option of a review on the merits of their cases by an independent tribunal. Additionally, Teoh was no mere overstayer or petty criminal – he was a convicted heroin trafficker who had been sentenced to a substantial term in prison.
Would the High Court have come to the same decision in Teoh if they had applied the justification principle emerging from Baker? Arguably, they would have deferred to the decision of the administrator if a justification standard had been applied. It may or may not have been the decision that the members of the High Court themselves would have made on the merits, but conceivably, it was open to find that, with all the procedural safeguards provided, it was legitimate government policy to deny permanent residency to a person convicted of a crime with significant adverse societal implications. Certainly it had to be acknowledged that Teoh’s family would suffer detriment, as the IRP stressed, but the broader protection of society may have mandated such a result. The important aspect would be for the court to ensure a proper balancing of considerations had been undertaken, both of fundamental values and of Government policy.
The human rights age has taught the world that protection of fundamental rights and values is extremely important. The rising influence of universal conceptualisations of rights has occurred concurrently with increasing delegation of power to administrators and increasing interference of the administrative state in people’s lives. It is the role of the judiciary to protect people from arbitrary acts of government and it is eminently reasonable to expect government to justify its decisions, especially where they infringe on fundamental rights.
The justification principle emerging from the Baker decision strikes an appropriate balance between acknowledgment of the benefits of the administrative regime and protection from its caprices. The Teoh decision, whilst striving to require greater governmental integrity, arguably crosses the line and allows a court to find a breach of procedural fairness only because it would not have made the same decision in a hearing de novo. Judicial review is aimed at upholding the rule of law and requiring justification from government is an acceptable aspect of this role. Perhaps too, an indication of deference may discourage the Federal Government from further tightening review options and, at the same time, force them to justify their decisions. Ideally a standard of justification according to clear requirements will provide greater guidance for decision-makers, more certainty for people affected by administrative decisions, and an enhanced public perception of government.
[*] Associate Lecturer in Law, Deakin University.
[1] Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh [1995] HCA 20; (1995) 183 CLR 273 ('Teoh').
[2] Baker v Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817; SCJ No 39 ('Baker').
[3] This language is taken from Article 3 of the CRC.
[4] S.C. 2001, c. 27.
[5] Tavita v Minister of Immigration [1994] 2 NZLR 257 ('Tavita'). In Baker [1999] 2 SCR 817; SCJ No 39, L’Heureux-Dubé J for the majority cited Tavita at [70]; in Teoh [1995] HCA 20; (1995) 183 CLR 273, Mason CJ and Deane J cited Tavita at 300.
[6] Tavita [1994] 2 NZLR 257, 266.
[7] See David Wright, 'Rethinking the Doctrine of Legitimate Expectations in Canadian Administrative Law' (1997) 35 Osgoode Hall Law Journal 139.
[8] Ibid.
[9] See for instance FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342.
[10] [1977] HCA 39; (1977) 137 CLR 487.
[11] Ibid 509 (Aickin J).
[13] Ibid 265-6.
[14] 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, 9.
[15] Note Teoh’s compliance with immigration procedure, cf Baker below.
[16] Cited in the judgment of Mason CJ and Deane J in Teoh [1995] HCA 20; (1995) 183 CLR 273, 281.
[17] Teoh [1995] HCA 20; (1995) 183 CLR 273, 291 (Mason CJ and Deane J).
[18] Ibid.
[19] Ibid 316 (McHugh J).
[20] Ibid 314 (McHugh J).
[21] Margaret Allars, 'One Small Step for Legal Doctrine, One Giant Leap Towards Integrity in Government: Teoh’s case and the Internationalisation of Administrative Law' [1995] SydLawRw 16; (1995) 17 Sydney Law Review 204.
[22] Dyzenhaus, Hunt and Taggart, above n 14, 11. See also Elizabeth Handsley, 'Legal Fictions and Confusion as Strategies for Protecting Human Rights: A Dissenting View on Teoh's Case' (1997) 2 Newcastle Law Review 56.
[23] Cited in Handsley, above n 22, 61. Similar statements have been made by the present Government.
[24] Only South Australia has implemented this so-called 'anti-Teoh' legislation.
[25] The contents of the notes are discussed below, n 39.
[26] A requirement under s 83(1) of the old Immigration Act, above n 4.
[27] Cited in Baker [1999] 2 SCR 817; SCJ No 39, [9].
[28] Dyzenhaus, Hunt and Taggart, above n 14, 14.
[29] Baker [1999] 2 SCR 817; SCJ No 39, [29].
[30] Ibid [43].
[31] Ibid [56].
[32] See generally Dyzenhaus, Hunt and Taggart, above n 14.
[33] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (U.K.) 1982 c. 11.
[34] Although Australia has many statutory protections and some constitutional protections of fundamental rights and freedoms, unlike Canada it has no constitutional bill of rights.
[35] See below n 38 and 39 and surrounding text.
[36] Cited in Teoh [1995] HCA 20; (1995) 183 CLR 273, 281 (Mason CJ and Deane J).
[37] Cited in Tavita [1994] 2 NZLR 257, 261.
[38] Cited in Baker [1999] 2 SCR 817; SCJ No 39, [5]. Capitalisation in original.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/DeakinLawRw/2003/19.html