Case: Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273
Outcome: followed
The applicant submits that Australia's ratification of the Torture Convention also provides the foundation for a legitimate expectation that Australia's Convention obligations would prevail over the Minister's decision to execute the surrender warrant. In support of such submission the applicant relies upon the decision of the High Court of Australia in Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273, especially the observations of Mason CJ and Deane J at 290-291 where there Honours said: Junior counsel for the appellant contended that a convention ratified by Australia but not incorporated into our law could never give rise to a legitimate expectation. No persuasive reason was offered to support this far-reaching proposition. The fact that the provisions of the Convention do not form part of our law is a less than compelling reason legitimate expectations are not equated to rules or principles of law. Moreover, ratification by Australia of an international convention is not to be dismissed as a merely platitudinous or ineffectual act (45), 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 (46) and treat the best interests of the children as "a primary consideration". It is not necessary that a person seeking to set up such a legitimate expectation should be aware of the Convention or should personally entertain the expectation; it is enough that the expectation is reasonable in the sense that there are adequate materials to support it. 17 Relying upon such extract, the applicant submits that Australia's obligations to act in accordance with the provisions of the Torture Convention are embodied in domestic law. Further, those obligations must be given full effect since Australia is a party to the Vienna Convention on the Law of Treaties ('the Vienna Convention') and pursuant to Article 43 of the Vienna Convention Australia is bound to give effect to the Torture Convention. Article 43 provides: The invalidity, termination or denunciation of a treaty, the withdrawal of a party from it, or the suspension of its operation, as a result of the application of the present Convention or of the provisions of the treaty, shall not in any way impair the duty of any State to fulfil any obligation embodied in the treaty to which it would be subject under international law independently of the treaty. 18 Article 26 thereof reinforces the above obligation and provides: Every treaty in force is binding upon the parties to it and must be performed by them in good faith. 26 The statements contained in Teoh [1995] HCA 20 ; 183 CLR 273 relied upon by the applicant do not assist him in the present proceedings. The ratification of an international convention gives rise to a legitimate expectation that ' the executive government and its agencies' will act in conformity with the terms of such convention, absent ' statutory or executive indications to the contrary ' (see Teoh 183 CLR 291). There is no scope for argument that the Minister has not acted in conformity with the provisions of the Torture Convention by ignoring the possibility of torture on return, since provisions to safeguard such consequence have been enacted in domestic legislation by s 22(3)(b) of the Extradition Act . The Minister is bound to follow the provisions of the Extradition Act , which he did, and as such there is no basis upon which the claimed breach of procedural fairness brought about by a legitimate expectation of conformity with the Torture Convention could arise. 27 The affidavit of Ms Kristy Lee Alexander, solicitor for the Minister, sworn on 29 August 2007, filed in the High Court in support of an application for expedition of the applicant's application for special leave, states the action proposed to be taken by the Minister once the applicant's application for special leave to the High Court had been determined. However, such action did not involve the making of any further decision by the Minister as the implementation of the extradition process had been invoked by the decision made under s 22(2) of the Extradition Act . Rather the affidavit simply described the steps which would be taken to complete the extradition. No obligation existed upon the Minister to inform the applicant of such procedures. 28 By letter dated 16 April 2007 to the UN the applicant requested that he be provided with some documentation which he might use at the hearing before the Full Federal Court on 18 May 2007 for the purposes of his appeal. The letter asserts that racial segregation is a form of torture, and after seeking information upon the question whether racial segregation in prisons in California constitute 'torture' within the Convention definition the letter states: As I understand it, the Committee only meets twice a year to determine filed communications. I appreciate that this process may be lengthy. However, my appeal will be heard on 18 May 2007. I kindly ask if your office could provide me with something tangible to put before the Australian court that would show the Committee's provisional view on my prospects of success involving the outcome of this communication.