Andrew Edgar and Rayner Thwaites: Enforcing International Law Through Judicial Review

Australian academic analysis of the interaction between public international law and domestic administrative law is largely framed by models that no longer characterize that interaction well. Australian scholarship on the domestic implementation of international law, insofar as it discusses administrative law, focuses on enforcement by the courts of unincorporated treaty commitments through the legitimate expectations principle. In a recent paper we argue that this is a peripheral aspect of Australian administrative law’s role in the implementation of international law and take an initial step towards a descriptively adequate account; one that highlights the inclusion of Australia’s international treaty commitments in statutes as qualifications on executive discretions.

This technique, the use of treaty obligations to qualify executive discretion under statute, has been used in Australia to implement treaties and conventions in relation to, for example: aviation, broadcasting, coasts and seas, customs duties, the environment, maritime safety, nuclear material and facilities, postal services, and telecommunications.

At the centre of our paper are two case studies of prominent Australian administrative law decisions from the mid to late 1990s, Teoh’s case and Project Blue Sky. We return to these two decisions, twenty or so years after they were delivered, for two reasons: the elapse of time has changed their appearance; and the decisions’ implications for the current relationship between international and domestic law have not been well understood.

When Teoh’s case was handed down in 1995 academics and practitioners were excited by its implications for the implementation of international law in the domestic legal system. This excitement centred on the proposition, advanced by a majority of the High Court of Australia, that Australia’s ratification of an international convention gave rise to a legitimate expectation that a decision-maker will act consistently with that convention.  The particular legitimate expectation at issue in Teoh was drawn from art 3 of the Convention on the Rights of the Child (CROC), which provides in part that “In all actions concerning children…the best interests of the child shall be a primary consideration.” Internationally, Teoh’s case constituted one of a common law trinity of cases focused on the legal consequences of ratification of the CROC, alongside Tavita (New Zealand) and Baker (Canada). These cases have occupied a central place in discussions of the influence of international norms on administrative discretion and the contribution of judicial review to that interaction. These cases raised the prospect of domestic law being permeable to international law in a way that it had not been previously. They appeared to qualify common understandings of the relevant national systems as dualist, challenging the idea that international law could only become part of the domestic legal order by legislative incorporation.

Writing four years after the decision, Sir Gerard Brennan wrote that “Teoh might prove to be a growth point of principle governing the effect of international law on executive power.” Almost twenty years after Brennan’s comments, this potential has not been realised in Australian law. As Australian administrative lawyers know, its High Court has offered sustained criticism of the legitimate expectations doctrine – not just in relation to the use of unincorporated treaties, but extending to its application to unincorporated treaties. That judicial criticism has had an effect. It has stunted the growth of the doctrine. Our review of the case law suggests that, following Lam in 2003, Teoh ceased to stand for the broad proposition of interest to international lawyers, namely that Australia ratifying any international convention raises a legitimate expectation that a decision-maker will act consistently with that convention. Instead, Teoh now stands for the much narrower proposition that Australia’s ratification of one, particular, international convention, the CROC, gives rise to a legitimate expectation that the decision-maker will act consistently with that Convention.

Yet an exposition of Teoh’s case, in particular, the majority’s application of legitimate expectations to unincorporated treaties and of government and judicial responses to Teoh’s use of legitimate expectations, remains at the centre of accounts of the interaction of international and administrative law provided in contemporary Australian texts of international and constitutional law.

A return to the administrative process under review in Teoh, namely decisions to cancel a visa on character grounds, highlights another set of administrative law techniques for enforcement of Australia’s treaty obligations as a qualification on the exercise of administrative discretion, different from the legitimate expectations doctrine employed by the Teoh majority.  In part in reaction to Teoh, the government introduced reference to art 3 of the CROC into the very administrative process under review in Teoh, by means of a sub-statutory instrument; ministerial Directions. This reference to art 3 of the CROC has enabled the application of another judicial review ground; mandatory relevant considerations. Where they apply (and where a child is affected by the decision), the Directions convert the best interests of the child into a mandatory relevant consideration. This form of translation enables a supervisory role for the courts, who review administrative decision-makers’ consideration of the international law obligation through the lens of administrative law doctrine.

This means of qualifying executive discretion is both of practical significance and a challenge to common models of ‘incorporation’.  The qualification of executive discretion with reference to treaty commitments does not map neatly onto prevailing models of what it means to ‘incorporate’ international law into domestic law. Following James Crawford and WR Edeson (‘International Law and Australian Law’ in K W Ryan (ed) International Law in Australia (Law Book Company, 2nd ed, 1984) 71, 118.), we suggest that to focus on whether or not a measure can be regarded as ‘incorporating’ international law is to ask the wrong question. Whether or not such provisions can be regarded as incorporation, they enable enforcement of international law through forms of judicial review.  The enforceability of the measure implementing the treaty is the important point.

However enforcement by way of administrative law principles can be complex. Our second case study examines such complexity through the High Court’s reasoning in Project Blue Sky. In that case the High Court was required to determine whether the Australian Broadcasting Authority’s content standards (delegated legislation requiring half of all television programming to be Australian programs) complied with the Authority’s obligation to act consistently with international law. The source of that obligation was s 160(d) of the Broadcasting Services Act 1992 (Cth) which required the Authority to perform its functions in a manner consistent with “Australia’s obligations under any convention to which Australia is a party or any agreement between Australia and a foreign country”.

The High Court’s reasoning indicates the potential complexity of enforcing such statutory requirements. The majority judges determined that while the content standard did not comply with the Protocol on Trade in Services to the Australia New Zealand Closer Economic Relations — Trade Agreement, that did not mean that it was invalid. They determined that the content standard was unlawful. This meant that it continued operating but that a person could apply for an injunction to stop the standard being enforced against them. The majority decided on this complex, restrained form of enforcement, in part due to its wariness about enforcing international law. The reasoning leading to this conclusion included their concern that many international conventions and agreements are expressed in “indeterminate language” best described as “goals to be achieved rather than rules to be obeyed”. The majority judges’ wariness of enforcing international law as a qualification on a statutory discretion resulted in a complex remedy. In another case explained in our article, it led to a restrained review of the administrator’s decision.

Legislative provisions that require administrators to conduct their functions consistently with international law can potentially enable enforcement of international law through forms of judicial review. This enforcement is, however, often redirected and transformed through

administrative law doctrine. Administrative law doctrine offers courts techniques for pulling back from direct enforcement of international law, whether through the use of weak remedies, deferential review, or otherwise.

Our case studies seek to show how and why international law commitments are altered when they are ‘drawn down’ into domestic law and litigants seek to enforce them there. In particular, they constitute an exploration of how international law is ‘translated’ into domestic law, where that translation exercise is instigated by statutory reference to treaty obligations that qualify the exercise of administrative discretion. When administrative officials seek to ignore, or sideline, international law in their deliberations regarding the discretion, plaintiffs can, through administrative law proceedings, seek to bring those international law obligations to the fore. Our case studies, in particular that of Project Blue Sky, indicate that enforcement of international law obligations through administrative law doctrine can be complex. Interest in the influence of international law in domestic administrative law is best served by engagement with the fact that legislative implementation of international law may only constitute the starting point of the translation process, a process shaped by interactions between parliament, administrators and the courts, often refracted through administrative law doctrine.

Andrew Edgar is an Associate Professor at Sydney Law School and Rayner Thwaites is a Senior Lecturer and ARC Discovery Early Career Researcher at Sydney Law School.

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