Commonwealth of Australia Bills Commonwealth of Australia Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
1998-99
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Administrative
Decisions (Effect of International Instruments) Bill
1999
No. ,
1999
(Attorney-General)
A
Bill for an Act relating to the effect of international instruments on the
making of administrative decisions
ISBN: 0642 410011
Contents
A Bill for an Act relating to the effect of international
instruments on the making of administrative decisions
Preamble
This Preamble sets out considerations taken into account by the
Parliament of Australia in enacting the law that follows.
In Minister for Immigration and Ethnic Affairs v Teoh (1995) 183
CLR 273 a majority of the High Court held that the act of entering into an
international instrument gives rise to a legitimate expectation at law that
could form the basis for challenging an administrative decision. It also held
that such a legitimate expectation could be set aside by an executive or
legislative indication to the contrary.
There is a need for certainty in making administrative decisions.
Uncertainty is created by allowing decisions to be challenged on the ground that
decision makers did not properly give effect to such legitimate
expectations.
Australia is fully committed to observing its obligations under
international instruments.
However, international instruments by which Australia is bound or to
which Australia is a party do not form a part of Australian law unless those
instruments have been validly incorporated into Australian law by legislation.
It is the role of Commonwealth, State and Territory legislatures to pass
legislation in order to give effect to international instruments by which
Australia is bound or to which Australia is a party.
On 10 May 1995, the then Minister for Foreign Affairs and the then
Attorney-General issued a joint statement concerning legitimate expectations and
international instruments. On 25 February 1997, the present Minister for Foreign
Affairs and present Attorney-General issued a further joint statement. Both
statements said, on behalf of the Commonwealth, that the act of entering into an
international instrument should not give rise to such legitimate expectations,
and that legislation would be introduced to set aside any such legitimate
expectations.
The Parliament of Australia enacts:
This Act may be cited as the Administrative Decisions (Effect of
International Instruments) Act 1999.
This Act commences on the day on which it receives the Royal
Assent.
This Act extends to all the external Territories.
In this Act, unless the contrary intention appears:
administrative decision means:
(a) a decision by or on behalf of the Commonwealth, a State or a
Territory; or
(b) a decision by or on behalf of an authority of, or office holder of,
the Commonwealth, a State or a Territory;
that is a decision of an administrative character (whether or not the
decision is made under an enactment), and includes such a decision reviewing, or
determining an appeal in respect of, a decision made before the commencement of
this Act.
enactment means:
(a) an Act passed by the Parliament, by the Parliament of a State or by a
Legislative Assembly of a Territory; or
(b) an instrument of a legislative character made under such an
Act.
international instrument means:
(a) any treaty, convention, protocol, agreement or other instrument that
is binding in international law; and
(b) a part of such a treaty, convention, protocol, agreement or other
instrument.
The fact that:
(a) Australia is bound by, or a party to, a particular international
instrument; or
(b) 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.
Section 5 does not apply to an administrative decision by or on behalf
of:
(a) a State or Territory; or
(b) an authority of, or office holder of, a State or Territory;
if provision having the same effect as, or similar effect to that which,
section 5 would otherwise have in relation to the decision is made by an Act
passed by the Parliament of the State or Legislative Assembly of the
Territory.
To avoid doubt, section 5 does not affect any other operation or effect,
or use that may be made, of an international instrument in Australian
law.