Background

Briefing Paper - Anti Teoh Legislation

Editorial note: this Briefing Paper relates to the Bill introduced by the former government. This Bill lapsed due to the election. The government introduced a fresh Bill in similar terms but this lapsed due to the 1998 election. 

Women's Rights After Teoh

In Minister for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 128 ALR 353, the High Court held that ratification of a treaty created a legitimate expectation that a Commonwealth administrative decision maker would act in accordance with treaty obligations. If a decision make intends to act contrary to the treaty the decision maker is required to notify a person who would be adversely affected and to give that person an opportunity to make submissions on the matter.

The Commonwealth prepared legislation to overcome the decision. This is the Administrative Decisions (Effects of International Instruments) Bill 1995 (see below)

Concern has been expressed by numerous groups including those concerned with women's rights, about the effect of the legislation on the enjoyment of human rights recognised in the various human rights instruments to which Australia is party. These concerns extend to the Convention of the Elimination of All Forms of Discrimination Against Women (CEDAW). After the Teoh decision, it would have been possible to require admi nistrative decision-makers to pay some attention to CEDAW in making decisions which affect women and to give a women affected by a particular decision a hearing if CEDAW was not to be complied with. The government's legislation will remove this mechanism for making CEDAW more relevant to the lives of Australian women.

Further, there are concerns that the Teoh legislation will have a general dampening effect on the use of human rights conventions by the courts and by decision-makers.

The legislation has implications in a general and specific sense for women. Issues which are relevant women include:

• the need for immediate and effective reassurance concerning the government's stated commitment to the human rights of women and the advancement of women's rights in accordance with treaty obligations
• clarification of the means by which the government proposes to advance women's human rights in Australia to ensure compliance with treaty obligations, particularly CEDAW.
• the status of the Australian commitments made in Beijing

Administrative Decisions Bill 1995 (Anti-Teoh)

To eliminate any expectations which might exist that administrative decisions at any level will be made in conformity with provision of ratified but unimplemented treaties.

Passage Throught The House of Representatives:

• Introduced: 28/06/95
• Passed: 21/09/95
• 2nd reading amendment: 1 Opp/negatived
• Selection of Bills: report 8/95 (28/8/95)
• Referred Legal and Constitutional Legislation Committee 28/08/95
• Report tabled: 28/09/95
• Motion to suspend standing and sessional orders to enable motion to be moved to refer bill to Standing Committee on Legal and Constitution Affairs moved by Opposition and negatived 21/09/95

Passage Through The Senate:

• Introduced: 27/09/95
• 2nd reading adjourned:27/09/95
• Motion to suspend standing orders: 17/10/95
• Notice of motion: 19/10/95