Teoh and Visions of International Law

Abstract

In 1995 the High Court of Australia handed down its decision in The Minister for Immigration v. Teoh. In this case the Court decided that international conventions that were not incorporated into Australian law could nevertheless give rise to a legitimate expectation that, in making administrative decisions, 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. The decision came under attack from the government (which issued an executive statement that attempted to undermine the effectiveness of the case) and in the parliament where there have been three unsuccessful attempts to pass legislation to overturn the effect of the case.

This article explores the way in which the responses to Teoh illustrate four competing approaches to international law in Australia. The first vision sees international law as a clear, binding obligation on Australia, particularly in the area of human rights. The second sees international law as purely in the domain of States and thus irrelevant in the courts or to ordinary Australians. The third perceives international law as a threat that might have unpredictable consequences for the democratic, constitutional order of Australia. The final vision sees international law as entirely subversive of Australian values and rejects its entitlement to any role in Australian law.

The passions that this debate has sparked in Australia and the strength of the negative visions of international law in Australia are compared to other common law jurisdictions that have taken a more moderate approach.

JEL Classification: K33, K23