United Nations Convention on the Rights of the Child
In the further written submissions received from counsel for the applicants my attention was directed to Article 3 of the United Nations Convention on the Rights of the Child ("the Convention"). The Convention came into force on 2 September 1990 and was ratified by Australia with effect from 16 January 1991. Article 3 states:
"1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."
It has not been incorporated into Australia's domestic law by statute.
This ground had not been raised in the application for review but counsel for the respondent, quite properly, did not oppose the issue being raised. I gave the parties the opportunity to make further oral submissions on this issue.
The applicants submitted that Ms Leonardi knew that a child was involved in the matter because when she gave Mr Tien the opportunity to provide reasons why his visa should not be cancelled Mr Tien told her that he had a five year old daughter, born in Australia, who goes to school. Thus, it was said that the best interests of the child should have been a primary consideration but that they were not. Reliance was placed on Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 and Davey Browne v Minister for Immigration and Multicultural Affairs (unreported, Wilcox J, 29 May 1998). It followed, said the applicants, that there had accordingly been an error of law within s 476(1)(e) of the Act as the law applicable to the third applicant, the child, had been incorrectly applied.
The respondent submitted that as a matter of fact the rights of the child had been taken into account but that in any event there was no action involved "concerning" the child as the decision to cancel Mr Tien's visa did not affect the child's visa; rather it was the Act (s 140) which cancelled the child's visa.
The foundation for the applicant's submission is found in the judgments of the majority (Mason CJ, Deane and Toohey JJ) in Teoh. At 286‑287 Mason CJ and Deane J said:
"It is well established 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 our municipal law by statute."
However, their Honours went on to hold that ratification of an international treaty creates a legitimate expectation, subject to one qualification, that administrative decision‑makers will act in conformity with the treaty. At 291 their Honours said:
"… Moreover, 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 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'."
(The qualification to which I referred is the reference to "absent statutory or executive indications to the contrary"). However, their Honours were concerned to point out at 291 that:
"The existence of a legitimate expectation that a decision‑maker will act in a particular way does not necessarily compel him or her to act in that way. That is the difference between a legitimate expectation and a binding rule of law. To regard a legitimate expectation as requiring the decision‑maker to act in a particular way is tantamount to treating it as a rule of law. It incorporates the provisions of the unincorporated convention into our municipal law by the back door."
What is important for present purposes is that their Honours pointed out what should happen if a decision‑maker proposed to make a decision inconsistent with the legitimate expectation. They said at 291 that in such circumstances:
"… procedural fairness requires that the person affected should be given notice and an adequate opportunity of presenting a case against the taking of such a course."
In other words, if a decision‑maker proposed to give a decision which did not accord with the principle that the best interests of the child were to be a primary consideration the decision‑maker was bound to bring this fact to the attention of the party affected.
Toohey J referred to the same proposition at 302:
"In any event it is not that decision‑makers must give effect to the precept that 'the best interests of the child shall be a primary consideration'. There may be other interests carrying equal weight. Rather, a decision‑maker who does not intend to treat the best interests of a child as a primary consideration must give the person affected by the decision an opportunity to argue that the decision‑maker should do so."
As Wilcox J noted in Davey Browne (supra) 15 the decision in Teoh:
"excited concern at a bureaucratic and political level."
On 10 May 1995 the then Minister for Foreign Affairs and the then Attorney‑General issued a joint statement the purpose of which was described as being "to restore the position to what it was understood to be prior to the Teoh case". The statement referred to the reference to "statutory or executive indications to the contrary" and said:
"We now make such a clear and express statement. 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. It is not legitimate, for the purpose of applying Australian law, to expect that the provisions of a treaty 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."
On 25 February 1997 the new Minister for Foreign Affairs and the Attorney‑General issued a replacement statement which included the following:
"Therefore, we indicate on behalf of the Government that the act of entering into a treaty does not give rise to legitimate expectations in administrative law which could form the basis for challenging any administrative decision made from today. This is a clear expression by the Executive Government of the Commonwealth of a contrary indication referred to by the majority of the High Court in the Teoh case."
A Bill to give effect to this statement the Administrative Decisions (Effect of International Instruments) Bill 1997 passed the House of Representatives in 1997 but it is still before the Senate. Notwithstanding the publication of this statement I do not consider that the statement has the effect apparently intended. I consider that the reference to "statutory or executive indications to the contrary" referred to by Mason CJ and Deane J in Teoh (supra) is a reference to indications made at or about the time the relevant treaty is ratified. There is considerable force in the observations of Hill J in Department of Immigration and Ethnic Affairs v Ram (1996) 69 FCR 431 where in the context of the first ministerial statement on 10 May 1995 his Honour said at 437‑438:
"When, in Teoh, Mason CJ and Deane J refer to 'executive indications to the contrary', it may well be that their Honours intended to refer to statements made at the time the treaty was entered into, rather than to statements made years after the treaty came into force.
When initially referring to executive comments, their Honours do so in the context of ratification, an act that speaks both to the other parties to the Convention and to the people of Australia as well as to the world. I doubt their Honours contemplated a case where at the time of ratification, Australia had expressed to the world and to its people its intention to be bound by a treaty protecting the rights of children, but subsequently, one or more ministers made statements suggesting that they at least had decided otherwise."
In Davey Browne (supra) Wilcox J did not find it necessary to determine the effectiveness of the second Ministerial statement on 25 February 1997 because the Tribunal was required by the Criminal Deportation Policy announced in 1992, when making a decision on whether a deportation order should be issued, to apply the terms of the Convention.
In Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608 the Full Federal Court (Burchett and Branson JJ, Whitlam J dissenting) held that, in a deportation case similar to Teoh, a deportation decision by the Administrative Appeals Tribunal should be set aside as no notice had been given that the Tribunal did not intend to give effect to the principle that the best interests of the child shall be a primary consideration. It was accepted in that case, as indeed is made clear in Teoh, that:
" … the law declared by the decision in Teoh is concerned with procedural fairness; it does not create a substantive rule, applicable irrespective of obligations procedurally imposed." (at 615 per Burchett J)
The decision which was set aside had been made on 14 November 1995 and the Full Court did not have to consider the significance of the later Ministerial Statement on 25 February 1997.
In the circumstances before the Court Ms Leonardi became aware during the interview that Mr Tien had a five year old daughter (in fact four years old) who was born in Australia and goes to school in Australia. Ms Leonardi said Mr Tien told her this in the course of providing reasons not to cancel his visa. Consistently with the decision in Teoh and the approach taken by the Full Court in Vaitaiki (supra) Ms Leonardi was obliged to give Mr Tien notice if she proposed to make a decision inconsistent with the legitimate expectation that the best interests of his child were to be a primary consideration and if she decided not to give the best interests of the child the consideration required by the Convention she was obliged to tell Mr Tien of her intention not to do so, so that he might have the opportunity to respond to that matter cf Vaitaiki (supra) per Burchett J at 615.
I do not accept the respondent's submission that Ms Leonardi in fact considered the rights of the third applicant either in the manner contemplated by Teoh or at all. The evidence does not support the submission that Ms Leonardi took account of the third applicant's best interests. The only evidence which bears on this issue is Ms Leonardi's statement that she took into account all of the information given to her during the interview but she considered there were strong grounds for cancellation of Mr Tien's visa for the reasons which she identified. This evidence is so general that I am not satisfied that Ms Leonardi specifically turned her attention to, or focused, on "the best interests" of the third applicant at all.
Even if it could be said, contrary to my finding, that Ms Leonardi did turn her mind to, or focus on, the best interests of the child, the evidence does not support the conclusion that Ms Leonardi considered the best interests of the child as a primary consideration. I am satisfied on the evidence before the Court that Ms Leonardi, in reaching her decision to cancel Mr Tien's visa did not consider the best interests of the child as a primary consideration nor did she tell Mr Tien that she was intending not to consider the best interests of the third applicant as a primary consideration. Adopting the words of Wilcox J in Davey Browne (supra) 24, Ms Leonardi:
"… did not grapple with the obligation under the Convention to make the best interests of [the child] a primary consideration."
The decision which Ms Leonardi made did not necessarily have to be a decision in the best interests of the child but Ms Leonardi was obliged to address that issue as a primary consideration at the same time as she was considering the matters which tended to support a decision adverse to the best interests of the child. As I noted earlier, if she decided not to make the best interests of the child a primary consideration she was bound to draw this decision to the attention of Mr Tien and give him an opportunity to respond to it.
If, as the respondent submitted, Ms Leonardi took the view that she had performed the Convention obligation by taking into account the information supplied by Mr Tien that he had a five year old daughter born in Australia who goes to school, then for the reasons I have given, she either incorrectly interpreted the applicable law or incorrectly applied the law to the facts she had found.
I do not consider that the Ministerial Statement made on 25 February 1997 is such an "executive indication to the contrary" as to displace the application of the Teoh principle to the circumstances before the Court. The executive indication to the contrary contemplated by the judgment of Mason CJ and Deane J is one that a decision‑maker or decision‑makers in particular circumstances will not act in accordance with a Convention. The Ministerial Statement says nothing about the manner in which decision‑makers will go about their task in reaching a decision. Rather the Ministerial statement appears to be an attempt (in my view unsuccessful) to reverse or overrule the principle for which Teoh is authority. I do not consider that it is a "clear expression by the Executive of a contrary indication". Put shortly, the Statement appears to be saying that Teoh is not the law. However, Teoh is a principle to be observed by decision‑makers unless and until the Parliament or the Executive tells decision‑makers not to act in accordance with treaties; or until the Parliament legislatively overrules Teoh. In order for a Ministerial Statement to constitute an executive indication to the contrary (as referred to by Mason CJ and Deane J in Teoh) it would be necessary for the statement to say something to the effect that decision‑makers will not act, or are directed not to act, in accordance with particular provisions of particular Conventions or treaties.
I reject the respondent's submission that Ms Leonardi's decision to cancel Mr Tien's visa was not an "action concerning" the third applicant. That submission is inconsistent with the reasoning in Teoh (supra). Ms Leonardi's decision concerned the third applicant because it was the trigger which had the effect of requiring her father to be removed from Australia and the decision had a further self‑executing direct effect on the third applicant as it caused the cancellation of her visa as well as the visa of her mother, the second applicant, because of the provisions of s 140 of the Act. In O'Connor v LEAW Pty Ltd (1997) 42 NSWLR 285, Rolfe J said at 303 that the term "concerning" is "a word of wide import". It is sufficiently wide to mean that Ms Leonardi's decision was a decision "concerning" the third applicant having regard to the dependency of her visa on the visa of her father and the consequence to her of the removal of her father from Australia.
It follows therefore that the decision to cancel Mr Tien's visa should be set aside and that the respondent pay the applicants' costs of the application including reserved costs. I will hear the parties on the form of the order.
I certify that this and the preceding thirty‑two (32) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg