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Devereux, Annemarie --- "Australian Cases Involving Questions of Public International Law 1996" [1997] AUYrBkIntLaw 7; (1997) 18 Australian Year Book of International Law 221


Annemarie Devereux[*]


Domestic implementation of international law — External affairs power — ILO conventions and recommendations — Customary international law

Victoria v Commonwealth

(1996) 187 CLR 416 (Industrial Relations Case)

In Victoria v Commonwealth, Victoria, South Australia and Western Australia issued an ambitious invitation to the High Court to curtail the breadth of the Commonwealth’s external affairs power under s 51(xxix) of the Constitution. Instead of seeking leave to re-argue the principles established in Commonwealth v Tasmania [1]

(the Tasmania Dam case), the applicant States sought to rely on the narrow reasoning of Stephen J in Koowarta v Bjelke-Petersen; State of Queensland v Commonwealth [2] to the effect that only treaties concerning topics of special concern to the relationship between Australia and another country were sufficient to attract the “international obligations” limb of the external affairs power. In relation to the challenged legislative amendments of the Industrial Relations Reform Act 1993 (Cth) and the Industrial Relations Amendment Act (No 2) 1994 (Cth) dealing with such disparate industrial topics as minimum wages, equal pay, termination of employment, discrimination in employment, family leave, collective bargaining and the right to strike, the States argued that the subject matter of the amendments were essentially domestic and outside the proper scope of the external affairs power. Furthermore, they challenged the sufficiency of ILO Recommendations to found binding international obligations and questioned whether the amending Acts were “reasonably appropriate and adapted” to implementing the international obligations relied upon by the Commonwealth. The Commonwealth responded by justifying its amendments on the basis of valid implementation of a range of international treaties including the Minimum Wage Fixing Convention 1970,[3] the Equal Remuneration Convention 1951,[4] the Discrimination (Employment and Occupation) Convention 1958,[5] the Termination of Employment Convention 1982,[6] the Workers with Family Responsibilities Convention 1981,[7] the Freedom of Association and Protection of the Right to Organise Convention 1948,[8] the Right to Organise and Collective Bargaining Convention 1949,[9] the Convention on the Elimination of all Forms of Discrimination against Women,[10] the International Covenant on Economic, Social and Cultural Rights,[11] the Constitution of the ILO,[12] various Recommendations adopted by the General Conference of the ILO[13] and customary international law.[14] Faced with such a broad ranging challenge to the scope of the external affairs power, the High Court examined at some length the history of external affairs in Australia, affirming the principles it established in the Tasmania Dam case and upholding most of the legislative provisions in question. The judgment of the majority if primarily of interest to international lawyers for its examination of the basic principles underlying the external affairs power and the High Court’s understanding of treaty and customary international law.

Scope of the External Affairs Power

As in Minister for Immigration and Ethnic Affairs v Teoh,[15] the Court affirmed the general proposition that under the common law entry by the Executive into a treaty is insufficient without implementing legislation to modify the domestic or municipal legal order by creating or changing public and private legal rights and obligations.[16] Only with respect to a few areas of external affairs was the Executive Government permitted to affect the municipal legal order directly through international action, including the making of a request to a foreign State for the surrender of a fugitive offender and the preservation of friendly relations with other countries through the sending or receiving of diplomatic representatives.[17] The Court also affirmed the reach of the external affairs power with respect to matters externally geographic to Australia.[18] However, in a joint judgment of Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ rejected the primary contention of the States and upheld the power of the Commonwealth to implement treaties even where the subject matter of the treaty might have hitherto been regarded as domestic.

The majority judgment relied heavily on the history of the executive power to demonstrate the ever-expanding range of issues with which treaties were concerned before Federation in rejecting the argument of the States concerning the intended narrow scope of the external affairs power. The Court noted the diversity of subject areas of treaties entered into in the late nineteenth century between Great Britain and other States as discussed by jurists such as Professor Pitt Cobbett and Oppenheim.[19] Examples cited by the court included the establishment of the International Telecommunication Union, the Universal Postal Union, the International Convention for the Protection of Industrial Property 1863, the Hague Convention for the Pacific Settlement of International Disputes 1899, and the Geneva Convention of 1864.[20] Rather than being confined at the time of Federation, the subject area of treaties was expanding. Given that the intention of the external affairs power was to give the legislature sufficient power to implement such treaties as were entered into,[21] the States argument that the external affairs power was limited to implementing particular categories of legislations could not be sustained. Furthermore, the Court noted that the term “external affairs” had been selected deliberately in preference to “foreign affairs” in order to underline that the power included both the relationship between the Commonwealth of Australia and other parts of the then British Empire and the relationship with foreign countries. The Court thus stated its conclusion that:

[t]he Commonwealth of Australia was established at a time of evolving law and practice in the external relations between sovereign powers and between the self-governing units of the Empire. It would be a serious error to construe para[graph] (xxix) as though the subject matter of those relations to which it applied in 1900 were not continually expanding. Rather, the external relations of the Australian colonies were in a condition of continuing evolution and, at that time, were regarded as such. According, it is difficult to see any justification for treating the content of the phrase “external affairs” as crystallised at the commencement of federation, or as denying it a particular application on the ground that the application was not foreseen or could not have been foreseen a century ago.[22]

Intrusion of a Commonwealth law into a field that had hitherto been the preserve of State law was not a reason to deny validity to a Commonwealth law, provided that it was a law with respect to external affairs. The Court noted that early judgments of the High Court were cogniscient of the potential range of matters which might be dealt with in international conventions, citing in particular a passage from the judgment of Evatt and McTiernan JJ in R v Burgess; ex parte Henry:[23]

A consequence of the closer connection between the nations of the world (which has been partly brought about by the modern revolutions in communications) and of the recognition by the nations of a common interest in many matters affecting the social welfare of their peoples and of the necessity of cooperation among them in dealing with such matters, that it is no longer possible to assert that there is any subject matter which must necessarily be excluded from the list of possible subjects of international negotiation, international dispute or international agreement.[24]

Notwithstanding this awareness that the subjects of treaties might be topics of traditional interest to States, the early authorities upheld the use of the external affairs power to implement treaties in so far as they affected Australia.[25]

In relying upon Stephen J’s minority view in Koowarta that only a subset of international treaties (those concerning topics of international concern) would found Commonwealth power under the external affairs power, the States had argued that it was not necessary to overrule the Tasmania Dam case since Stephen J’s view would have led to the same result in the Tasmania Dam case. The Court, however, regarded these submissions as a distortion of the principles of stare decisis and of ratio decidendi, and characterised the States’ arguments as an attempt “to replace what was decided by that which might have been decided”.[26]

There was some acknowledgment by the Court that there might be some limit to the types of treaties which enliven the legislative power of s 51(xxix), though most of their comments focussed on the need for enlivening treaties to include a binding obligation, rather than accepting any restriction related to the subject matter or nature of conclusion of a treaty. The joint judgment quotes Professor Zines’ suggestion that a treaty expressed in terms of aspiration cannot support a law which adopts one of a variety of possible contradictory ways that might be selected to fulfil the aspiration.[27] The Court affirmed that whilst a law must prescribe a regime that the treaty has itself defined with sufficient specificity to direct the general course to be taken, the international obligations may be expressed in fairly general terms.

The Court accepted that the external affairs power did not limit the Commonwealth’s power to implementing treaties, but might be used to implement other documents such as ILO Recommendations. In doing so, the majority judgment quoted with approval the statement of Evatt and McTiernan JJ in Burgess; ex parte Henry [28]:

But it is not to be assumed that the legislative power over ‘external affairs’ is limited to the execution of treaties or conventions; ... the Parliament may well be deemed competent to legislate for the carrying out of ‘Recommendations’ as well as the ‘draft international conventions’ resolved upon by the ILO or of other international recommendations or requests upon other subject matters of concern to Australia as a member of the family of nations.[29]

The power to implement ILO Recommendations was not viewed as a “free standing power” as such. Instead, the Recommendations needed to embody an international obligation or themselves be of such a nature that implementation of their terms would constitute a reasonably appropriate and adapted implementation of the Principal treaty obligation. Having considered the States’ contentions with respect to the range of treaties coming within the external affairs power, the court considered the specific test for validity with respect to laws enacted in pursuance of the international obligations limb of the external affairs power, reiterating the test established in Tasmania Dam case that such a law needs to be reasonably capable of being considered appropriate and adapted to implementing the treaty.[30] The power was purposive in the sense that the validity of the law would depend upon whether its purpose or object was to implement the treaty. The legislature can choose the means by which it carries into or gives effect to the treaty, provided the means meet the “reasonably appropriate and adapted” test. As to the interaction between this test and that of “reasonable proportionality”,[31] the court acknowledged that proportionality will not always be helpful:

The notion of proportion suggests a comparative relation of one thing to another as respects magnitude, quantity or degree; to ask of the legislation whether it may reasonably be seen as bearing a relationship of reasonably proportionality to the provisions of the treaty in question appears to restate the basic question. This is whether the law selects means which are reasonably capable of being considered appropriate and adapted to achieving the purpose or object of giving effect to the treaty, so that the law is one upon a subject which is an aspect of external affairs.[32]

It is not necessary that the legislation complies with all the obligations assumed under the treaty, but a law will be held invalid if the deficiency in implementing the treaty is so substantial as to deny the law the character of a measure implementing the Convention or it is a deficiency which, when coupled with other provisions of the law, make it substantially inconsistent with the Convention.[33]

Only one member of the Court expressed agreement with the contentions of the State. Whilst feeling bound by precedent and the parties’ failure to contest the authority of the Tasmania Dam case to follow the majority in the orders made, Dawson J expressed his preference for a much narrower reading of the external affairs power. In his opinion, the external affairs power was not a purposive power, but a power to make laws with respect to particular matters, namely external affairs. The concept of proportionality was not useful in answering whether a law was a law with respect to external affairs. Nor did he consider the “reasonably appropriate and adapted” test to be of any substance, since he regarded it as meaning simply that where a treaty is relied upon, the law must give effect to the treaty. Thus he commented, “[w]here the terms of a treaty are little more than exhortation or aspiration, as is not uncommon nowadays, the requirement that a law give effect to the treaty is hardly confining”.[34]

Dawson J’s preferred reading of the Constitution was that where the Commonwealth was specifically not given power over a particular matter (for example intra-state trade), it could not evade such a restriction through use of another power such as external affairs. The Commonwealth’s power with respect to treaties (treaties being in the nature of an external affair), it was a power operating on treaties as a subject matter and authorised laws operating on treaties as a subject matter such as a law with respect to the nature of obligations which could be undertaken by treaty or dictating the manner in which they were to be implemented — for example, by regulation or statute.[35] A law implementing a treaty was not a law with respect to treaties, but a law with respect to the subject matter of the treaty which may or may not be an external affair. For Dawson J, the touchstone of the external affairs power should be externality, not international concern.[36] As he had observed in Richardson v Forestry Commission,[37] the Commonwealth should not gain power over domestic matters not otherwise within its purview simply because it is dealt with in a treaty:

the mere fact that a treaty is international in character does not mean that the matters with which it deals cease to be of a domestic nature and become part of a country’s external affairs.[38]

Dawson J considered that the majority’s view of the external affairs power left the power to determine the scope of the Commonwealth’s power with the executive since there was no limitation on the power of the Executive to enter treaties, and once entered into, the Commonwealth would gain significant legislative powers.

Analysis of the Industrial Relations Act 1988 provisions

In considering the specific legislative amendments challenged in the action, the Court upheld the validity of most of the provisions as reasonably adopted and appropriate implementations of international Conventions and ILO Recommendations. In particular, it upheld the validity of:

• the minimum wages provisions as giving effect to the Minimum Wage Fixing Convention 1970;[39]

• the equal remuneration for work of equal value provisions, by virtue of implementing the Equal Remuneration Convention 1951, the Discrimination (Employment and Occupation) Convention 1958, the International Convention on the Elimination of all Forms of Discrimination against Women, the International Covenant on Economic, Social and Cultural Rights and ILO Recommendations 90 and 111;[40]

• most of the termination of employment provisions by virtue of implementing the Termination of Employment Convention 1982 and the Termination of Employment Recommendation 1982;

• the parental leave provisions, by virtue of implementing the Workers with Family Responsibilities Convention 1981[41] and ILO Recommendation 166;[42]

• the discrimination in employment on the basis of race, colour, sex, age, physical or mental disability, pregnancy, religion, political opinion, national extraction or social origin and sexual preference provisions on the basis that they were implementing ILO Discrimination (Employment and Occupation) Convention 1958;[43]

• the right to strike[44] and engage in industrial action provisions on the basis that they were implementing Article 8 of the International Covenant on Economic, Social and Cultural Rights.[45]

In two respects, the Court rejected the specific contentions of the Commonwealth with respect to the international obligations said to enliven the external affairs power: the first being with respect to the right to strike under customary international law; and, the second being whether discrimination on the basis of mental disability was properly to be regarded as within the scope of ILO 111. In relation to customary international law, the court affirmed the test for the need to demonstrate uniform or consistent State practice, together with States’ awareness that they were bound to so act (opinio juris), which it had accepted in the War Crimes Act case.[46] However, it was not satisfied that there was sufficient evidence of such a sense of legal obligation amongst the community of States, declaring “[i]t is not enough that states act ... from motives of fairness, courtesy and morality”.[47] Secondly, with respect to the definition of discrimination employed in ILO 111, the Court noted that the definition had two elements. It listed certain attributes/grounds of specific discrimination and permitted for a widening of grounds of discrimination following consultations with representative employer and employee groups.[48] Whilst accepting that the extent of the international obligation might vary according to the determinations made under this Convention, the Court queried whether there had been the requisite level of consultation with respect to mental disability. Given however, that the matter had not been fully canvassed in the proceedings, the Court gave no final answer to the question.[49] However, such a questioning has significance not simply in this area of Industrial Relations, but also with respect to the hearing of human rights complaints under the Human Rights and Equal Opportunity Commission Act 1986 (Cth).

Declaration of international law in domestic courts — absence of cause of action — nuclear weapons

Lindon v Cth

[1996] HCA 14; (1996) 136 ALR 251

Kirby J; High Court of Australia

Whilst essentially a decision concerning practice and procedure, namely an application to strike out proceedings, Lindon is of interest to international lawyers who seek declarations in respect of international law within domestic courts. In an action mirroring that which went before the International Court of Justice concerning the illegality of nuclear weapons, Mr. Lindon sought broad ranging declarations that: the threat or use of nuclear weapons in any circumstances is not permitted under municipal law, international or transactional law and that the use of such weapons in war or other armed conflict would be in breach of such laws.

In an attempt to counter the attack that his cause of action was hypothetical rather than real, Mr Lindon referred to Commonwealth legislation concerning nuclear weapons; in particular the South Pacific Nuclear Free Zone Treaty Act 1986 (Cth), the Nuclear Non-Proliferation (Safeguards) Act 1987 (Cth) and the Weapons of Mass Destruction (Prevention of Proliferation) Act 1995 (Cth). However, such references were “at a level of abstraction which is insusceptible to legal resolution by the provision of a declaratory judgment” according to Kirby J. Kirby J thus concluded that Mr Lindon’s statement of claim failed to disclose a reasonable cause of action. It identified no precise legislative or executive, identify an action to be attacked, or specify an individual, corporate or government which is alleged to be in present breach of the law of Australia. Accordingly, the Court had no power to enter into the claims of Mr Lindon.[50]


Refugees Convention — Safe third country — Memorandum of understanding between China and Australia — Interpretation of international documents incorporated in domestic law

Lu Ru Wei v Minister for Immigration and Ethnic Affairs

(23 August 1996)

Drummond J, Federal Court

In Wei, the Federal Court was called upon to decide upon the scope of the Memorandum of Understanding (MOU) between Australia and the People’s Republic of China (PRC) concerning the unauthorised arrival in Australia of Vietnamese refugees previously settled in China. The MOU which was signed on 25 January 1995 had been annexed to the Migration Regulations. By virtue of Regulation 212A(1), China was to be regarded as a safe third country in relation to a persons who were or had been Vietnamese refugees settled in PRC, or a close relative of or dependent on such a person “as covered by the MOU between Australia and PRC” with the consequence that such persons were not eligible to apply for protection visas (s 91C Migration Act 1958).

The central question in the case was the scope of the group to whom Regulation 212A(1) applied: was it restricted to persons who had arrived in Australia as of the date of the signing of the MOU or did it extend to persons who at that stage would have been “future arrivals”. The confusion arose from the variable wording of the MOU. In its earliest provisions, the MOU referred to “the recent movement to Australia of some Vietnamese refugees settled in China”, and spoke of the parties’ agreement to engage in friendly consultations and seek proper settlement of the issue through agreed procedures in relation to “the recent and possible future unauthorised arrivals in Australia of Vietnamese refugees”. However in the paragraph immediately preceding the detailed arrangements, the MOU simply referred to special arrangements for dealing with “current unauthorised arrivals”.

The applicants were a group of persons of ethnic Chinese origin who were forced to leave Vietnam in the late 1970s. They left China in late 1994 and came to Australia in a boat code-named Mudlark by the Department of Immigration and Ethnic Affairs, arriving in Australia in early March 1995. They argued for a narrow interpretation of the ambit of Regulation 212A(1) such that persons “covered by” the MOU included only “current unauthorised arrivals” as of the date of the MOU and did not extend to persons whose arrival postdated that of the MOU. Such an interpretation was said to be supported by the common law presumption in statutory interpretation that laws affecting rights should be read strictly, such that in the absence of express words, the legislative intention would be presumed to be one of minimal interference with fundamental rights and freedoms. In applying this presumption, the applicants argued that the Regulation and MOU should be read as domestic legislation rather than as international instruments.

The Department’s submission was that whether or not the MOU was a treaty or an international document of lesser status,[51] and despite its annexation to the Regulations, the MOU should be read in accordance with the principles of international law as codified in the Vienna Convention on the Law of Treaties 1969.[52] On this basis, it was permissible to look both at extrinsic material relating to the MOU and subsequent State practice (Article 31 Vienna Convention), both of which tended to confirm the intention that the term “current arrivals” in the MOU be given its broadest operation. As such the term should be read so as to include those who might arrive in the weeks or months immediately after the signing of the MOU. At a minimum, it should be read to include those, like the applicants, who were en route at the date of the signing of the MOU. In favour of their submissions, the Commonwealth sought to tender, inter alia, evidence of communications between the Secretary of the Department and his Chinese counterpart after the date of the MOU, in which they recorded their understanding that the MOU applied to future, as well as current arrivals.

Drummond J decided that it was not necessary for him to determine whether or not the MOU was a treaty or an international instrument of lesser status, or to determine the appropriate rules of interpretation for the MOU since on his interpretation of the words of the Regulation, the applicants were clearly covered by the MOU. Whilst accepting that the term “covered by” required a closer connection with the MOU than such phrases as “mentioned in” or “referred to in”, the MOU was clearly intended to cover persons who were “possible future unauthorised arrivals” as of 25 January 1995.

Refugees convention — Fear of persecution — Effect of change of circumstances in country of origin.

Yesus v Minister for Immigration and Ethnic Affairs

Unreported Judgment of Madgwick J,

Federal Court, 9 July 1996.

The effect of a change of circumstance in the country from whence a refugee fled on assessment of refugee status under the Refugees Convention was the focus of attention in Yesus.[53]

Yesus was an Ethiopian national who had worked as an intelligence officer and later as a spy for the government of Emperor Haile Salassie (1971–1974) and Colonel Mengistu (1977–1988). In August 1989, he was appointed Chief of Security for the Dire Dawa region. In 1990, after having fallen foul of a close Mengistu adviser, he was arrested and imprisoned without a charge being laid. Following the Ethiopian People’s Revolutionary Liberation Front’s taking of control in 1991, Yesus was freed from prison, but was later arrested and interned with others who had been senior officials in the Mengistu regime. He remained imprisoned for some 22 months in poor conditions. He was released as a result of a habeas corpus proceeding, though the Special Prosecutor’s office indicated that at the time of release, they expected to gather sufficient evidence in the future to justify charges. Yesus fled to Kenya and applied for refugee status. The tribunal member in Kenya did not exclude him under the Article 1E exclusion (for those who have committed war crimes, or crimes against humanity), but Yesus chose not to accept United Nations High Commission of Refugees (UNHCR) assistance in Kenya because of the requirement that he remain in refugee camps. He alleged a fear of death if he remained in the refugee camps. He subsequently arrived in Australia and claimed refugee status.

The Refugee Review Tribunal (RRT) considered that Yesus was no longer entitled to refugee status given the change of conditions in Ethiopia and the lack of evidence that he would be detained and persecuted if he was to be returned to Ethiopia.

Madgwick J overturned the Tribunal decision. First, though it was not clear in the RRT decision, Madgwick was satisfied that the Tribunal member must have concluded that Yesus was a refugee when he left Ethiopia. The question of refugee status facing Australian authorities had to be answered by reference to facts as existing at the date Yesus was seeking refugee status in Australia, rather than when he left his country of nationality.[54] However, one needed to examine Yesus’s current fear of persecution not in isolation as at the date of the later refugee application, but taking into account the applicant’s past experiences:

It is a commonplace, encapsulated in the expression ‘once bitten, twice shy’, that circumstances which are insufficient to engender fear may also be insufficient to allay a fear grounded in past experience ... If an applicant relies on his past experiences, it is, in my view, incumbent on a decision maker to evaluate whether those experiences produced a well-founded fear of being persecuted. If they did, then a continuing fear ought to be accepted as well-founded unless it is at least possible to say that the fear of a reasonable person in the position of the claimant would be allayed by knowledge of subsequent changes in the country of nationality. [55]

Quoting from the judgments of Mason CJ, Toohey and Gaudron JJ in Chan v Minister for Immigration and Ethnic Affairs, Madgwick J concluded that failure to give decisive weight to a well-founded fear held at the time of fleeing the country of nationality (absent material sufficient to allay the fear) involved an error of law. In his opinion, the Tribunal had failed to properly consider the original fear and evaluate the change of circumstances within the context.

Madgwick J’s conclusion was that, on the material accepted by the Tribunal, there was a real difficulty, to say the least, in concluding that there had been sufficient change to allay Y’s fears. Furthermore, the Tribunal had focused unduly on the more extreme forms of persecution (such as prolonged detention), when other forms of treatment such as a liability to arrest, let alone to detain for a significant period without charges being laid, or sufficient evidence being collected was arbitrary enough to constitute “significant detriment or disadvantage” “oppression” and thus “persecution” within the meaning of the Refugees Convention. Madgwick J thus granted the relief sought by the applicant.

Refugees convention — Real chance of persecution — Necessary speculation inapplicability of balance of probabilities test

Minister for Immigration and Ethnic Affairs v

Wu Shan Liang

High Court of Australia (1996) 185 CLR 259

In Wu[56], the High Court took the opportunity to affirm the tests it had established in Chan v Minister for Immigration and Ethnic Affairs,[57] dispel the line of Federal Court authorities arising from Minister for Immigration Local Government and Ethnic Affairs v Mok[58] and comment upon the latitude to be shown in judicial review of decision-makers decisions on questions of refugee status.

The respondents in the case were three nationals of the PRC, who left Guangxi Province in Southern China by boat, subsequently codenamed Labrador, by Australian officials, arriving at Christmas Island on 23 August 1992. The respondents made application for refugee status, but were rejected by the officials and failed in gaining an order for review before Wilcox J. The Full Court of the Federal Court eschewed all by two grounds of review. One of these grounds was the subject of the appeal before the court — that Wilcox J erred in failing to hold that the delegates erred in requiring the respondents to establish a well-founded fear of persecution beyond reasonable doubt or on the balance of probabilities. For all three respondents, one of the major claims made was persecution on the basis of imputed political opinion. There were three bases of fear of persecution relating to imputed political opinion: (1) all three respondents raised matters relating to their departure from the PRC and activities since departure (based on a recognition that the very act of leaving a country and staying abroad may be seen as a political act); (2) the first and second respondents raised matters relating to the treatment of family members during the cultural revolution; and, (3) the third respondent raised matters relating to his opposition to corruption. It was only in relation to the first of these claims that the Full Court found reviewable error.

In considering whether, as identified Labrador travellers, there was a “real chance” of the respondents facing persecution, the delegates “gave more weight” to the Department of Foreign Affairs and Trade (DFAT) and Red Cross evidence on the likely treatment of Labrador returnees and “greater weight” to evidence regarding the treatment of the returnees from another boat, the Jeremiah, than to the other evidence of known cases and general statements regarding the likely treatment of returnees. The delegate considered it “speculative” to suggest that the first respondent would be treated more harshly than in the known relevant cases. Similar comments were to be found in the assessments of the second and third respondents — such as a statement that “no weight” had been given to the comments in an affidavit regarding the fate of Jeremiah returnees since they were at odds with the general thrust of the other information.

The Full Court of the Federal Court concluded that a proper application of the Chan test required the delegates to engage in speculation in order to make an assessment of whether there was a “real chance” of persecution. They were not satisfied that the delegate had engaged in this exercise given the language indicating a balance of probabilities approach to the decision.

The High Court affirmed the need to approach the review of administrative decision maker’s decision with a liberal, rather than exacting attitude.[59] Furthermore, it criticised the Federal Court’s line of decisions following Minister for Immigration, Local Government and Ethnic Affairs v Mok

[60] as failing to appreciate the significance of legislative amendments since the Chan decision had been handed down. The change in question related to the relevant decision no longer being a Ministerial “determination” of refugee status, but a decision that the Minister was “satisfied” of refugee status. In the High Court’s view, the change meant that,

if a Minister is satisfied that a person has a genuine fear founded upon a real risk of persecution, then the Minister may determine in writing that the person is a refugee. A condition of determination is the Minister’s satisfaction. Accordingly, it is inappropriate to describe a decision refusing refugee status as a decision not to determine that the person is a refugee. Rather, it is a decision that the Minister is not satisfied that the person has a genuine fear founded upon a real risk of persecution.[61]

Whilst a decision as to satisfaction is reviewable,[62] the subjective element of the decision is necessarily of relevance to the issue of whether there has been an error of law.

The High Court was satisfied that in using language such as “speculative” the delegate had not neglected their function of assessing future chances of persecution, but instead had employed language referring to the probative force of the material before the delegate. Taking a beneficial construction of the delegate’s reasoning, they did not find anything indicative of an abandonment of the Chan test. Similarly, with regard to the use of phrases such as “give greater weight to”, the Court found it difficult to understand why such language necessarily indicated that the delegate was approaching the task on a balance of probabilities approach. Greater and lesser weight they regarded merely as terms of relativity, and is not the equivalent of acceptance and rejection. Delegates were entitled to consider the material before them and as Gaudron J had stated in Chan “give proper weight to any credible account”.[63]

The fact that the decisions involved a question of satisfaction, rather than determination made the use of “greater weight”, for example, even more innocuous. In the context of personal satisfaction, the attribution of weight was said to possibly indicate not more than that some material has assisted the decision maker more than other material in the ascertainment of the satisfaction. The Court, though did not move away from the need to consider all possibilities, even those which have not been shown to have existed:

The chance of persecution is not a fact to be inferred solely from facts that are found to have existed; the very uncertainty of what has happened in other cases is itself material to the assessment of the chance of persecution in the instant case. As a matter of ordinary experience, it is fallacious to assume that the weight accorded to information about past facts or the opinion formed about the probability of a fact having occurred is the sole determinant of the chance of something happening in the future: the possibility that a different weight should have been attributed to pieces of conflicting information or the possibility that the future will not conform to what has previously occurred affects the assessment of the chance of the occurrence of a future event. There is no reason to assume that the delegates of the Minister engage in some artificial and fallacious manner of reasoning when they are assessing the chance that an applicant for refugee status may suffer the persecution he or she fears.[64]

The High Court in reviewing the decision making process noted the similarity in statements of the delegates (the use of standard paragraphs), but concluded that that factor did not make the decision invalid, provided the formula used is to guide the steps in making the decision and reveals no legal error. If the formula is used merely to cloak the decision with the appearance of conformity with the law, when the decision is infected by one of the grounds of invalidity prescribed by the Act, the incantation of the formula will not save the decision from invalidity.[65]

In addressing the nature of the decision-making process involved in determining refugee status, the court decried the relevance or utility of a balance of probabilities test. It adopted the reasoning of Lord Diplock in Fernandez v Government of Singapore [66] that the phrase “balance of probabilities” was “inappropriate when applied not to ascertaining what has already happened but to prophesying what, if it happens at all, can only happen in the future”.[67]

In a separate opinion, Kirby J refused to draw any conclusions as to the significance of the changed legislative wording for the appropriate test, preferring to leave it to case in which the issue was the subject of full submissions by the parties and contested in the courts below. However, he included general comments about the desirability of courts in principal countries of refuge seeking to adopt similar approaches to the application of the Refugees Convention. Whilst accepting that the Chan test was the appropriate test to apply in Australia, he noted that it varied slightly from the test applied in England of the need to prove “a reasonable degree of likelihood that he will be persecuted for a Convention reason if returned to his own country”,[68] and the United States — where it is enough that persecution is a reasonable possibility”.[69] His reasoning on the substantive points, though, as to the process to be adopted by decision makers did not vary significantly from the joint judgment, nor did his conclusions as to the decisions of the delegates.

Refugees convention — Real chance of persecution — Imputed political opinion

Guo Wei Rong and Pan Run Juan v

Minister for Immigration and Ethnic Affairs

Federal Court of Australia, 26/2/96,

Beaumont J, Einfeld and Foster JJ (1996) 64 FCR 15[70]

The application of the Chan “real chance” of persecution test for refugee status has continued to vex courts. In Guo Wei Rong and Pan Run Juan v Minister for Immigration and Ethnic Affairs (Guo), the Federal Court elucidated their understanding of the subjective and objective elements of the Chan test, emphasising the need for decision makers to avoid a “balance of probabilities approach” to their decision making. One judge, Beaumont J, also provided an interesting examination of the way in which political opinion may be imputed to an individual and the need to take into account the cumulative effect of activities in considering whether there is a “real chance” of persecution.

The appellants (husband and wife) were citizens of the People’s Republic of China (PRC), having moved to China from Vietnam. Two illegal departures had been made from the PRC — the first in 1992, and the second in 1993. The present case concerned the refugee application made in December 1993 (the 1993 application) claiming refugee status on the basis of a well-founded fear of persecution for reasons of political opinion and their membership of a particular social group. In support of their fear of persecution on the basis of political opinion, the appellants pointed to the political profile which would be imputed to them given their illegal departures, protest activities by Guo when interned at Port Hedland in late 1992 (engaging in a highly publicised hunger strike, protesting against treatment by the Immigration Department), and infringement of the “one-child policy”. The latter factor was that relied upon to establish membership of a particular social group.

Mr Guo had also been the facilitator of the illegal departure of Vietnamese refugees to Hong Kong in 1985. He served only part of his resulting sentence by using forged medical certificates and bribing officials. After his leaving prison and particularly after his illegal departure in 1992, he had been subject to ill-treatment. According to Mr Guo, his wife and he had been threatened with forcible sterilisation, been subject to restrictions on his fishing licence (unable to fish in deep waters), been unable to obtain household registration, as well as having been subjected to “regular searches” and the confiscation of some goods including his boat. After his deportation to China in 1992, he claimed that he was detained for a period of 28 days and allegedly beaten and interrogated about his protest activities, and accused of spying for the Australian government. He was subsequently arrested and detained for a further three months in 1993. Late in October 1993, his third child was born. In November 1993, he again left China, reaching Australia in December 1993 where he again applied for refugee status.

Guo and Pan were refused refugee status by a delegate of the Minister on 31 January 1994. When appealed to the Refugee Review Tribunal (RRT), the decision of the delegate was upheld. The RRT considered that the restrictions on Guo relating to fishing, his goods and household registration were not for Convention reasons but were related to Guo’s failure to meet his loan and his reluctance to bring himself to the attention of the authorities for fear of being required to serve the remainder of his sentence. The RRT considered that Mr Guo had given inconsistent accounts of the matters relating to the one-child policy and that his evidence was “evasive” and “implausible”. The fines which might be imposed for breach of the “one-child policy” did not amount to persecution, but could be regarded as a “disciplinary measure which could be imposed on the population at large”. As for his treatment after his return in 1992, the RRT did not accept that such treatment was related to Guo’s activities in Australia, considering that if that had been the case Guo would have been detained for a longer period. Instead, they considered that the period of imprisonment and fines the applicant received was within the range and consistent with the independent evidence concerning illegal departure. The RRT preferred such independent evidence to that of Guo’s “unsupported assertions” and concluded that any punishment faced by Guo on return in relation to his illegal departure would not be persecution for a Convention reason. It considered that Guo had not been imputed a political profile for his activities in 1985 and 1992 and would not be in relation to the 1993 departure. Whilst he was likely to receive a severe penalty for leaving China given his repeat offender status, the application of laws of general application was not sufficient to bring Guo within the terms of the Refugee Convention.

Whilst the appellants’ action before Sackville J was unsuccessful, the Full Federal Court overturned the decision of the RRT though the Court was somewhat divided as to the basis for the orders. For Einfeld J (with whom Foster J seems to have been in agreement)[71] the major error of the RRT had been methodological. In applying a “balance of probabilities” test to determine the questions at hand, the RRT had failed to apply the Chan “real chance of persecution” test. Beaumont J was more concerned that the RRT had failed to consider appropriately the cumulative effect of the appellant’s behaviour and the real chance that a political opinion would be imputed to him. In his opinion, the court had been too concerned with judging whether the likely penalty would be disproportionate.

According to Einfeld J, the RRT had wrongly applied a “balance of probabilities” approach to the Chan test. Instead of engaging in speculation to consider whether there was a “real chance” of persecution based on a Convention ground, the RRT had “shunned speculation, weighed the probabilities and therefore avoided the “‘real chance’ test”.[72] In reaching this conclusion, Einfeld J pointed to the language employed by the RRT — exemplified by its use of terms such as preferring and giving greater weight to particular evidence. In his opinion, the RRT had weighed evidence and made findings before it evaluated whether there was a real chance of persecution for a Convention reason. It had failed to consider the possibility that any of its findings were inaccurate and that there was in fact a possibility that the prior punishment had been Convention related.[73]

In Einfeld J’s opinion, in order to undertake the “real chance” test, it was necessary to consider alternative hypotheses, engage in speculation of the future and consider foreseeable eventualities.[74] Whilst what has happened in the past will often be instructive in relation to what may or may not happen in the future, the “real chance” test is compromised if it is heavily influence by findings about the past made on the balance of probabilities. The decision maker thus always has to consider the possibility that his/her judgment is accurate. Einfeld J proposed a five-step process for decision makers in applying the Chan test. According to this approach, it was necessary to:

(1) identify the hypothesis (in most cases, this being that there is a real chance of persecution on a particular Convention ground);
(2) note the relevant evidence;
(3) engage in foreseeable future speculation and note the potentialities;
(4) address the question of whether or not the evidence in fact points to the hypothesis; and
(5) if so, examine whether the hypothesis is negated by compelling facts.[75]

It is noteworthy that such a methodology seems to proceed on the basis of assuming the existence of Convention-related persecution until the last step of the process, a methodology which may not be warmly greeted by Immigration officials. In the specific facts of this case, Einfeld J felt that application of this process would lead to a finding that there was a real chance of persecution on the basis of imputed political opinion given in particular the cumulative effect of Guo’s actions, and Pan’s bearing of a third child. Any illegal departure must be considered in all its circumstances, including compounding factors such as defiance of the “one-child policy”.

Beaumont J was concerned less with the methodology employed by the RRT than with the particular reasoning displayed in relation to the facts of the case. After discussing the manifestations of “persecution” as discussed by the High Court in Chan (including interrogation, detention, exile, measures in “disregard” of human dignity, and governmental failure or inability to protect persons from persecution), Beaumont J stressed the need for decision makers to consider whether a political opinion might be imputed to a particular individual.[76] Hathaway’s relevant quotation of a passage from Raul Rodolfo Lira Pastene concerning the essence of imputed political opinion was reproduced:

Nowhere in the Convention does it say that to be considered a refugee an applicant must have been prominent in the political life of his country of origin. The crucial test is that certain behaviour or actions on the part of the applicant are or have been perceived by the authorities in power as political opposition.[77]

Beaumont J also examined the position in Canada, the United States and England as to the imputation of political opinion. Whilst conclusions in particular cases varied, judges had accepted that political opinion might be imputed to an individual even in unlikely situations — such as where the individual remains neutral,[78] or whether the claimant is not given the opportunity to articulate his or her beliefs.[79] In relation to the meaning of “political”, Beaumont J examined decisions in the extradition context[80] and the dictionary meaning of “political” to conclude that the term was not limited to party politics.[81]

In relation to the decision of the RRT, Beaumont J considered that the RRT had failed to appreciate and give proper significance to the evidence before it. In particular, Beaumont J was critical of the RRT’s failure to consider whether the conduct of Guo, looked at as a whole, was capable of being perceived by the Chinese authorities as politically neutral or as politically “significant”. In his opinion, the RRT had focused unduly on considering the reasonableness of the sentence imposed on Guo after his return in 1992. The degree of punishment likely to be meted out for the subject offence was not the appropriate test of whether there was persecution. The fact that the sentence was within the normal range would not preclude a political character being imputed to the accused. Consideration needed to be given to the entirety of circumstances of Guo, rather than simply past sentences, including his activities in Port Hedland. In his opinion, the conduct of Guo in transporting Vietnamese nationals to Hong Kong was, of its nature, “implicitly political”.[82]

Whilst Beaumont J favoured remitting the case for re-determination to the RRT, Einfeld and Foster JJ ordered the rather unusual declaration that the appellants were entitled to refugee status upon the basis of fear of political persecution.

Refugees convention — Use of international law in interpreting domestic legislation — Due process — Procedural fairness

Wu Yu Fang v Minister for Immigration and Ethnic Affairs

Unreported decision of

Federal Court of Australia, (Jenkinson, Carr and Nicholson JJ), 28/2/96

Wu Yu Fang involved an appeal against the Minister for Immigration and Ethnic Affairs as to whether persons should have been considered to have made an application for refugee status upon their arrival in Australia in November 1994. The date of lodgment was of particular importance since they would be ineligible applicants after 31 December 1994 under the amendments associated with the MOU between Australia and the PRC (discussed above in relation to Guo). The appeal involved a number of administrative law issues including legitimate expectations, constructive lodgments, and estoppel, but of most significance to international lawyers is the way in which the Court dealt with international law in evaluating the appellants claim to a breach of procedural fairness and denial of a right to legal assistance. During their detention the Refugee Advisory and Casework Service (RACS) had written to the Port Hedland Detention Centre seeking access to the Albatross arrivals, but received a reply stating that no decision had been made yet whether to fund legal assistance for such persons and that no persons had requested legal advice.

The evidence before the Court was that Department of Immigration and Ethnic Affairs (DIEA) officers had been instructed to pay particular attention to whether arrivals used any language indicative of a claim of refugee status, such as “humanitarian”, “human rights”, “protection”, “asylum”, “freedom”. O’Loughlin J was satisfied that no such key word had been used, and that there was no reason for the Court to interfere with the Department’s view that there had been no claim of refugee status. The applicants claimed that O’Loughlin had adopted a formalistic view in requiring them to use particular words to indicate a claim. The Full Court, however rejected this critique of O’Loughlin’s approach, and affirmed that whether a person will be treated as a refugee in Australia does not arise out of the use of key words, but arises when a person whose circumstances fall within the Convention definition of a refugee makes an application in accordance with the legislation for that status to be recognised.

It viewed as correct O’Loughlin J’s decision not to consider whether Vietnam or China was the appropriate country against which to consider the applicant’s claim, given that his role was to determine whether in fact the applicant had attempted to invoke a claim of refugee status.

The Court was divided upon the question of whether there had been a breach of any duty to inform the appellants of their right to apply for refugee status, of rights to access legal advice and procedural fairness. Nicholson J (with whom Jenkinson J agreed) regarded that the statutory rights to assistance as having no application to persons like the applicants due to the prohibition in s 193(1) and that s 256 concerning provision of facilities for access to legal advice was applicable only after a relevant request for legal advice had been made. He rejected the existence of a common law duty, or the use of international law as an aid to the construction of the Migration Act with respect to procedural rights. Nicholson J adopted the conservative approach to the use of international law — that it can only be used where there is an ambiguity in the legislation,[83] and that where no common law rule is shown to exist as the source of an unjust discrimination, there is no room for international law to be an influence on the development of the common law.[84] Nicholson J did not hide the toughness of this approach:

The reality is that Parliament has chosen to take a tough line on the provision of information, including information concerning access to legal advice, in relation to non-citizens and, absent some constitutional right to which effect should be given, the courts are bound to apply what Parliament has enacted although it may be arguably, contrary to provisions of Australia’s international obligations.

Concerning procedural fairness, Nicholson J was of the view that to attract the rules of procedural fairness one needed an appropriate administrative decision, which was difficult to identify here given that there were not decisions precluding the appellants from being considered an applicant for a protection visa. However, on the basis that s 198 is the basis for such a decision (the removal and detention power), s 198(4) and s 198(2) made it clear that the officer was not obliged to take any of the steps to assist applicants, and as such was manifesting a clear intention that officers are not required to provide advice to applicants or tell them of their entitlement to seek legal advice. Given that there was no “status” decision being made, the decisions concerning providing applicants with an immediate impression were not relevant. Regarding the legitimate expectation argument, any expectation must be reasonable, and here given the lack of any express promise, or regular practice, there may be some doubt. Any reasonableness arising from the treatment of others, however, was negatived by the contrary statutory indications in s 198(4) and s 193(2).

Furthermore, even if there had been a breach of procedural fairness or legitimate expectation, Nicholson J felt there would be no remedy for the applicants given that the date for filing an application had passed and the court could not set aside such statutory requirements. Nicholson J acknowledged that the conduct of officers did not accord with internationally expressed goals relating to treatment of refugees, however “the conditions for application of international law, as prescribed by Australian domestic law, are not present to enable international law to control that conduct”.

Carr J took a broader approach to the existence of procedural fairness requirements, holding that there were a series of decisions being made which affected the appellants in such a way as to attract a common law duty to extend procedural fairness — such as the decision to detain, what to do in the short, medium and long term with the applicants, disposal of the boat. Carr J also saw as relevant to the degree of procedural fairness required that Australia has ratified the Refugees Convention, the Refugee Protocol, and the International Covenant on Civil and Political Rights. He also made reference to the Standard Minimum Rules and “The Body of Principles for the Protection of all Persons Under Any Form of Detention or Imprisonment” which included such guarantees as being treated with dignity, having access of counsel, and being informed of their rights.

According to Carr J, the appellants had a legitimate expectation that the provisions of Article 10 of the ICCPR (treatment with dignity) would be observed according to the Teoh principles. The Joint Statement issued by the Minister for Foreign Affairs and the Attorney General had no relevance given that it was made several months after the events in this case. The legitimate expectation was not simply whether or not the appellants would be told of their right to access a lawyer. Instead, it was necessary to approach the question in a broader way. According to Carr J, as a matter of common law, procedural fairness required the respondents to:

- let the appellants know, after the compliance interviews, what the DIEA’s initial impressions were concerning the appellants’ prospects of remaining in Australia;[85]
- inform the appellants that a lawyer had expressed an interest in helping them;
- inform the appellants that if they so required, they were entitled to all reasonable facilities for obtaining legal advice;[86]
- provide the appellants with the relevant form for application for protection visas.[87]

However, the obligation did not extend to obliging officers to advise the appellants of the change of law introduced on 15 November 1994.

Carr J specifically disagreed with Nicholson J that the statute expressed a contrary intention, and concluded that the obligation to accord procedural fairness can arise independently of decision making. The threshold test was whether such activity could have serious consequences for the person concerned.[88] Furthermore, he would have given a declaration as requested by the appellants, for it might influence the exercise of the Ministerial discretion under s 91F(2) and thus would not be without use.

Use of international law in interpreting domestic legislation — ICCPR — Refugees convention — Freedom of communication

Human Rights and Equal Opportunity Commission v

Secretary, Department of Immigration and Multicultural Affairs

Unreported decision of

Federal Court of Australia, 7/6/96, (Lindgren J)

In this case, which might be termed the “HREOC communications” case, the Human Rights and Equal Opportunity Commission (HREOC) were challenging a decision of the Department of Immigration, a decision not to pass on to persons in the Port Hedland detention centre a letter regarding a complaint which had been made on their behalf by a solicitor of the Refugee Advisory and Casework Service (RACS). Although it focused upon the interpretation of the HREOC’s functions and powers, it also brought to bear important elements of international law regarding detention and freedom of communication.

The facts were as follows: In March 1996 RACS wrote a letter to the Manager of the Port Hedland Reception and Processing Centre requesting the Department to furnish to the RACS solicitor access to all persons who arrived in Australia in February 1996 on the Teal and said to be currently detained. Access was said to be required in order that such persons could be provided, on a pro bono basis, with legal advice and assistance immediately. The Department replied that no decision had been made about the funding of legal assistance and that since none of the Detainees had requested legal advice, the Department would decline to furnish RACS lawyers with access to their clients. RACS then sent a letter to HREOC alleging that the detainees were being held in isolation and incommunicado, and that RACS had been denied access to them, which they alleged, represented inter alia a breach of Article 9(4) of the ICCPR.

HREOC then wrote two letters: one to the detainees of the Teal, providing them with details of the complaint and advising them of a contact from whom they might obtain legal advice (the RACS solicitor who had made the complaint). This was in a sealed envelope. The second letter was a covering note to the Superintendent of the Detention Centre, advising that under s 20 of the HREOC Act, mail between the HREOC and a detainee was to be delivered unopened. Subsequently, the HREOC sought the Department’s assurance that the detainees would not be expelled from Australia until the Commission’s investigation was complete.

The exercise (with the original letters) was repeated, with the sealed letter in Mandarin.

The Attorney-General’s Department advised that the better interpretation of paragraph 20(6)(b) was that it was confined to communications from the Commission arising out of or related to a complaint made by a detainee and it was not a general power to communicate with detainees on any matter within its purview. The Commission argued that the broader approach (of extending to all communications) was consistent with its function of initiating investigations on its own motion. Furthermore, it pointed out that if a person was held incommunicado, the narrow approach would prevent the Commission becoming satisfied that the detainee did not desire an inquiry to be held or continued, or allow the facts to be established. If there were any ambiguity, it should be resolved in favour of a construction which accorded with Australia’s obligations under international treaties. The particular provisions which were highlighted were Articles 2.2, 2.3, 3 and 17 of the International Convenant on Civil and Political Rights (ICCPR). Human rights provisions should be read beneficially. Were a narrow interpretation to be adopted, it would have serious consequences for other investigatory bodies such investigations carried out under the Ombudsman Act 1976; the Complaints (AFP) Act 1981; and the Inspector-General of Intelligence and Security Act.

Lindgren J agreed with the Commission that a broad approach should be adopted to the interpretation of s 20. It was its clear plain and grammatical effect — with no apparent constraint as to the nature of the communication. It was necessary to learn more about the complaint. The Commission’s powers to gain documents would not be sufficient power for it to carry on its investigation. Each of the powers could sit comfortably with each other, and should not be read down in comparison.

As to the Department’s argument that the handing over of the letter should not be ordered on discretionary grounds because of the paragraph relating to a contact for legal advice, Lindgren J accepted that it was reasonable for HREOC to take the view that the detainees might need legal advice in connection with the HREOC inquiry, such that the Department’s request should be denied.

Refugees convention — Article 1E – Rights of a national

Barzideh v Minister for Immigration and Ethnic Affairs

(1996) 69 FCR 417

Federal Court of Australia, Hill J, 21 August 1998

At the heart of Barzideh v Minister for Immigration and Ethnic Affairs (Barzideh) was the interpretation of Article 1E of the Refugees Convention. Article 1E provides:

this Convention shall not apply to a person who is recognised by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.

The point for interpretation was whether Article 1E required a person to have all the rights and obligations of a national or a selection of the rights, and if so, which selection of rights was sufficient for a person to be excluded from the scope of the Refugees Convention.

Barzideh was a citizen of Iran who arrived in Australia in February 1994 and was granted a visitor’s entry permit. He had been living in Germany since 1986 and had been granted refugee status there in 1991. On entry into Australia, Barzideh applied for refugee status. The RRT found that the applicant had in Germany sufficient rights to bring him within Article 1E and was not satisfied that the applicant had a well-founded fear of persecution in Germany. According to the Tribunal, Article 1E was fulfilled where an applicant had most, but not all, of the rights normally enjoyed by nations, citing for their authority, Re: Jeganathan Nagalingam And: Minister for Immigration, Local Government and Ethnic Affairs and Noel Barnsley.[89]

Hill J rejected the sufficiency of this authority, regarding Nagalingam as only authority for the proposition that Article 1E refers not only to rights provided by the Refugees Convention but rights beyond that.[90] There was, however, dicta in the judgment of Olney J to the effect that the German authorities should be asked as to the level of protection available to the applicant in Germany and that such an answer would be determinative. Furthermore, Olney J had also suggested that the proper test under Article 1E was whether the rights equated with those of a national.

In considering the meaning of Article 1E, Hill J affirmed that whilst the Refugees Convention had been made part of Australian law, the construction of the Convention should not be approached as if it were part of Australian legislation. Technical rules should be put aside in favour of broad principles of interpretation. The foremost consideration was the ordinary meaning of the words used in the Convention, however the travaux might be used to confirm the ordinary meaning or where there is ambiguity or an absurdity produced by application of the “ordinary meaning” test.[91] According to Hill J, the ordinary meaning of Article 1E suggested that Article 1E will apply only where the claimant has (or is accepted by the competent authorities as having) the same rights and obligations as a national, but is not in fact a national. Hill J examined the travaux relating to the Article, its genesis with concern about refugees of German extraction residing in West Germany,[92] and concluded that the intention was not to widen the class of persons excluded from refugee status beyond those who had de facto nationality. Thus the test should be whether a person, whether by force of a general law or by force of a recognition given by the relevant competent authorities on an individual basis, the person seeking to be classified as a refugee enjoys the same rights and comes under the same obligations as does a person who is a national without actually being a national of the territory. In doing so, he rejected the “selective” views to the contrary expressed in the UNHCR Handbook and Hathaway as unsupported by the terms of the Convention or the travaux.[93]

Whilst conceding that the rights referred to in Article 1E must be civil, rather than political rights (since otherwise it would only apply to nationals),[94] Hill J was insistent that logic precluded being able to draw distinctions between types of rights covered:

If, as the Tribunal itself seems to believe, some of the rights are important and some are not, then the fact that the Tribunal might decide that some rights are ‘of particular importance’ and others are not, confers a discretion upon the person deciding whether or not refugee status may be applied, yet the Convention appears to apply an objective criterion not a subjective one.[95]

Hill J seemed to ascribe particular weight to the view of the authorities in question (here German). The German authorities considered that they had not given B de facto nationality and in most cases this would be determinative.

Article 1E continues to be the subject of litigation in many jurisdictions. Given that non-nationals cannot enjoy all the rights of nationals (eg political rights), it is illogical to speak in terms of requiring identical rights. Thus, one is left with consideration of what rights must be shown to exist. Given the context of the Refugees Convention and Australian courts movement towards vigilant protection of individual rights it is hardly surprising that the Federal Court is requiring a high standard of rights before a person is denied the protection of the Refugees Convention. In other jurisdictions, courts have sought to avoid providing a definitive list of rights which come within the rubric of Article 1E rights, however, it is clear that long-term residence is insufficient[96] and that the refugee must enjoy such fundamental rights as the right to stay in a country: see, for instance, Hurt v Minister for Manpower and Immigration;[97] Canada (Minister for Citizenship & Immigration) v Mohamud [98] and the right to return to a country: Mahdi v Canada (Minister of Citizenship and Immigration).[99]


Hague convention on child abduction — Family Law (Child Abduction Convention) Regulations — Paramountcy principle — Child’s objection to return

De L v Director-General, NSW Department of Community Services

(1996) 187 CLR 640

In De L, the High Court considered the validity and interpretation of the Family Law (Child Abduction Convention) Regulations which were enacted in order to give effect to Australia’s obligations under the Convention on the Civil Aspects of International Child Abduction (the Hague Convention).[100] Its importance lies not only in its consideration of the scope of the external affairs power, but in relation to one of the key provisions of the Convention and Regulations — the discretionary power of the State (/court) to not order removal to a child’s country of habitual residence where the child objects.

In De L, the mother was Australian who had married an American in Virginia, USA. There were two children of the marriage. Four days after the appellant mother left the United States with her two children, the father applied to a Virginia court for custody. The court ordered that he have temporary custody of the children and that they not be removed from the United States. It also ordered that custody and visitation would be reviewed at a hearing after the return of the children to the jurisdiction. In the Australian proceedings, a counsellor was asked to obtain the wishes of the children. On the basis of such evidence, the primary judge found that the children objected to being returned to the United States within the meaning of Regulation 16(3)(c) of the Child Abduction Regulations and refused to order the children’s removal to the United States. In the Court of Appeal, a majority of the court overruled the primary judge’s finding and order the return of the children. Nicholson CJ, in dissent, was not satisfied that the counsellor had been directed to ascertaining the children’s attitude towards removal for the purposes of the custody hearing and had instead focused on whether the children wished to return to the United States.

Before the High Court, the appellant mother challenged not only the Full Court’s interpretation of the term “objects” in Regulation 16(3)(c) by the Full Court, but the validity of the Regulations. The basis of her challenge was that the Regulations were inconsistent with the “paramountcy principle” recognised in domestic and international law (that the welfare of the child be the paramount consideration in making decisions concerning children). Furthermore, she alleged that there had been a breach of procedural fairness in ordering the return of the children. The High Court upheld the validity of the Regulations, and was unanimous in ordering that there be a rehearing of the matter to determine whether the children “objected” in a sense relevant to the Regulations. Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ issued a joint judgment, whilst Kirby J wrote an individual opinion.

Schedule 1 of the Regulations set out the English text of the Hague Convention. Relevantly, Article 3 states that the removal of a child, or the retention of a child in any contracting state is to be considered wrongful where it is in breach of rights of custody attributed to a person, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention. The decision concerning the return of the child is not to be taken as a determination on the merits of any custody issue (Article 19). Article 20 permits a State to refuse return if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms, or inter alia, if the child objects to such return (Article 13), or it would cause serious harm to the child (Article 13). These provisions were implemented in Regulation 16 — with Regulation 16(3)(c) being the particular provision dealing with children’s objections.

Validity of the Regulations

The Court rejected the appellant’s challenge to the validity of the Regulations. Under s 111B of the Family Law Act 1975, there was a power to make regulations “as is necessary to enable the performance of the obligations of Australia, or to obtain for Australia any advantage or benefit, under” the Convention. This power was sufficient for the enactment of the Regulations such that there was no need to rely upon the general power under s 125, a general power which was encumbered by a need that the Regulations not be inconsistent with the Act. Thus the validity of the Regulations was not negated by any possible inconsistency with Family Law Act 1975.[101] In relation to the constitutional basis for the Regulations, the court was satisfied that the subject matter (return of children to other countries and from other countries to Australia) brought the regulations within the realm of “external affairs” by virtue of being concerned with matters “geographically external” to Australia.[102] Thus they were supported by s 51(xxix) of the Constitution. As such, there was no need to determine whether they were also valid under the “international obligations” limb of the external affairs power — that is to consider whether they were an appropriate and adapted implementation of the Hague Convention.[103]

The court, however, commented on the interaction of the “paramountcy principle” embodied in s 64(1)(a) and proceedings under the Regulations. Had the Regulations not existed, the Family Court would have been faced with making a determination as to whether the children should be returned and would have been guided by the principles it propounded in ZP v PS.[104] In such a context, the Family Court would have first considered whether the welfare of the child required the making of such an order. However, s 64(1)(a) which states the principle to be applied in decisions in relation to custody, guardianship, welfare of, or access to a child does not govern proceedings under the Child Abduction Regulations.[105] Instead, the Regulations reflect the Convention’s preference for issues to be determined in the forum which has been the habitual residence of the child. The court did not regard the paramountcy principle as in all cases irrelevant to the decision of the judge. In noting the unconfined discretionary nature of the decision of the judge whether or not to order the return when satisfied that the child objected, the court accepted that the welfare of the child is properly to be taken into consideration in exercising that discretion.[106]

Child “objects” to the return

In approaching the question of the appropriate interpretation of the term “objects” in Regulation 16(3)(c), the Court recognised that its terms were part of a compromise in the Hague Convention. The general principle of the Hague Convention was that children who had been wrongfully removed from or retained in a country other than the country of habitual residence should be returned to that country and that custodial disputes should be resolved in the country of habitual residence. To this general principle, the Convention admitted certain exceptions, including that of where the child objected to the return and was of sufficient age and maturity for such an objection to be taken into account. Given such a history, there was no reason why the court should apply a “strict and narrow” reading of the exception to the general principle. It thus did not follow the approach of the Family Court that it was necessary to show “a strength of feeling which goes far beyond the usual ascertainment of the wishes of the child in a custody dispute”.[107]

Instead, it concluded that:

No form of words has been employed which would supply, as a relevant criterion, the expression of a wish or preference or of vehement opposition. No additional gloss is to be supplied.[citations omitted][108]

The court referred to English and New Zealand authorities[109] which supported a similar approach — that the relevant question to consider was whether the child objected to return for the purposes of the custodial hearing. Balcombe LJ, for instance, was quoted in S v S (Child Abduction) (Child’s Views) as explaining:

[T]he return to which the child objects is that which would otherwise be ordered under Art[icle] 12, viz, an immediate return to the country from which it was wrongfully removed, so that the courts of that country may resolve the merits of any dispute as to where and with whom it should live ... There is nothing in the provisions of Art[icle] 13 to make it appropriate to consider whether the child objects to returning in any circumstances.[110]

The implication of this test were clarified by the further quotation of Balcombe LJ concerning the facts of S v S:

Thus, to take the circumstances of the present case, it may be that S would not object to returning to France for staying access with her father if it were established that her home and schooling are in England, but that would not be the return which would be ordered under Art[icle] 12.[111]

In considering the factual evidence before it, the court agreed that the report of the counsellor did not demonstrate the type of objection necessary to be shown in the circumstances, that is, an objection to being returned for the custodial hearing. However, the Court considered that the directions given to the Court Counsellor to “ascertain the wishes of the children” in relation to an application for return to the United States and a cross-application for custody in Australia were “fatally flawed” as categorised by the Full Court. Given the evidence of the appellant that the children did not want to return to the United States and the practical difficulties confronting her in establishing whether or not they objected, procedural fairness required that there be a rehearing as to whether the children objected.

Interestingly, the court also noted that ordinarily in cases involving children of the age and maturity spoken of in Regulation 16(3)(c), there should ordinarily be separate representation of children.[112] In this context, the court pointed to the capacity of the court to order such separate representation under s 68L of the Family Law Act 1975, given that the proceedings could be categorised as ones in which the child’s welfare was “a relevant consideration”. According to the court, such separate representation should not hinder, but would assist the prompt disposition of the application would be assisted by such an appointment.[113]

The court also foreshadowed greater use of conditions being used in order to safeguard the welfare of children. It noted as a “remaining consideration” that the effect of Regulation 15(1) was that in making an order for the return of a child from Australia, a court might include conditions which it considers appropriate to give effect to the Convention. In explaining circumstances in which conditions might be appropriate, the Court quoted passages from the Supreme Court of Canada case of Thomson v Thomson [114] and the English Court of Appeal in C v C (Minor: Abduction: Rights of Custody Abroad). [115] These passages highlight that conditions may be used to ameliorate the short-term harm which may be suffered by children who are returned for hearings — including undertakings on the part of the parent in the country of habitual residence not to obstruct the return or presence of the other parent to the country of habitual residence.[116]

In his separate opinion, Kirby J expressed some dissatisfaction with the way in which the delays in the case had accumulated to defeat the apparent purpose of the Convention, the Act and the regulations. The case took over 18 months to complete its decision, which he concluded offended the spirit of Article 11 of the Convention. Kirby J also set out in greater detail the reasoning behind the Hague Convention’s emphasis on the urgent return of children in cases of abduction or unlawful retention. The factors he considered underlying the Hague Convention included the desire to deter parents from abduction or unlawful retention of children, to prevent the abducting parent from gaining the benefits of delays including the concentration of influence by the custodial parent; to prevent time affecting the application of the Convention (for example over time, a child’s preference becoming an objection, or the child becoming mature enough to voice an objection) and in recognition of the disadvantage faced by the non-custodial parent in instituting litigation in another country.[117] Thus, for the Convention to be properly implemented, it was essential for courts to deal with the matters in a timely fashion and not to be distracted by looking at issues which essentially were matters of substance. If courts allowed more lengthy procedures, they would inevitably become engaged in the objective assessment of the individual welfare of the child, whereas the intention of the Convention and Regulations was for the Court to simply make a decision on the forum for the determination of such questions.

Linked to the Hague Convention’s preference for rapid removal to the country of habitual residence, was the Convention’s specific eschewed of a “best interests of the child” approach in this context. According to Kirby J, such an approach was considered to be too time consuming. Whilst agreeing with the majority as to the inapplicability of s 64(1)(c) of the Act to proceedings under the Regulations, Kirby J noted that the Full Court of the Family Court has held the Hague Convention to be not inconsistent with the Convention on the Rights of the Child (CROC) which contains a similar provision in relation to the best interests of the child.[118] Furthermore, in Kirby J’s estimation, the Convention was not an exception of the concern of the law for a child’s best interests, but a recognition that it is in the best interests of children as a class not to be subjected to the turmoil and emotional divisiveness of international abduction.[119] Where that occurs, the children will be ordinarily returned. The welfare or best interests of the child must be taken into account. However, they will not be permitted to defeat the attainment of the objects of the Convention. Given that the exceptions provided for in the Convention are narrowly drawn, they should be narrowly construed. To the extent that this implies some modification of the paramountcy principles, this cannot be avoided. For Kirby J, the duty of the Court was clear: it was to apply the plain language of the valid law.

In giving meaning to the term “objects”, Kirby J considered that the exceptions to the general rule should be narrowly construed.[120] Thus “objects” imported a strength of feeling which goes far beyond the usual ascertainment of the wishes of the child in a custody dispute. His conclusion was based on his view of the context of the phrase (in an international treaty whose primary purpose was to require return of the children), on the Convention’s clear distinction between determination of the rights of custody and determination of an application following abduction, background material on the Convention,[121] and authorities in Switzerland,[122] Israel[123] and the United States.[124] In his view, the evidence here supported no more than a conclusion as to the children’s preferences, such that it should not have stood in the way of the children’s return. However, it was appropriate to remit the matter for hearing given the procedural error involved in the direction to the Counsellor, the delay since the orders of the primary judge and the fact that the Central Authority had consented to the remission.

Kirby J’s judgment also includes some interesting reflections on the approach of domestic courts to the interpretation of treaty law. He noted that some courts have followed a strict rule, akin to that formerly observed by the common law of excluding travaux, historical, argumentative and other material and confining attention to the words of the treaty alone, citing the case of Hanbury-Brown (digested below) as the most recent instance of such an approach. Whilst seeing the object of the task of interpreting treaty language is the same as that of interpreting municipal legislation, that is to give meaning to the words used, read in their context and to the fullest extent possible, for the purpose of achieving the objects which are stated or otherwise apparent, Kirby J noted that the general trend of courts was that to resort to opinions of scholars and decisions of municipal courts and such material as travaux, except in cases of unarguably clear treaty language.[125]

Furthermore, in addressing the question of the need for domestic legislation to follow treaties closely when implementing them, Kirby J articulated the need for some margin of discretion in comparing legislation and treaty:

Typically, international treaties are expressed in language negotiated at international conferences in which there is participation from different linguistic, legal and cultural traditions. In translating an international treaty into the detail typical of Australian legislation, a margin of discretion must be allowed.[126]

In the context of the particular issue raised concerning inconsistency of the Regulations with the Convention, the different onus of proof, Kirby J considered that such was not so as to be constitutionally significant. The alteration was possibly explainable in terms of the adversarial system in Australia. Such a system had also been adopted in the USA and New Zealand and conformed to an opinion of experts at the Hague Conference on Private International Law. In such circumstances, it could not be said that the Regulations were not reasonably adapted and appropriate to implementing the Hague Convention.

Hague Convention on Child Abduction — Family Law (Child Abduction Convention) Regulations — Child’s “objection” to return

Between: Director-General, Department of Community Services (Appellant/Central Authority) and Jocelyn Yvonne Crow & John Alexander Crowe and Terence Alexander Crowe

Full Court, Family Court of Australia [1996] FLC 83, 621

Barblett DCJ, Ellis and Lindenmayer JJ

In Crowe, the Full Court of the Family Court of Australia had a further opportunity to examine the Child Abduction Regulations introduced to give effect to the Hague Convention on Child Abduction.[127] In particular, the court examined the circumstances in which a parent can be said to have custodial rights in another country and the meaning and significance of a child’s objection to being returned to the original country of residence.

The facts giving rise to the case were as follows: The mother and father were both of New Zealand birth. Having been married in 1986, they had one child of the marriage, who was aged eight at the date of the hearing before the trial judge. From the child’s birth until the parent’s separation in 1989, the child lived with her paternal grandparents. When the mother left the marriage, she took the child with her. After suffering depression, she requested the grandparents to take the child and care for her. There was some dispute as to the frequency with which the mother saw the child after that. The grandparents moved several times within New Zealand, without consulting the mother and in 1995 moved to Australia. The Central Authority commenced proceedings pursuant to the Regulations at the request of the Central Authority of New Zealand. The grandparents’ position was that should the child be ordered to return to New Zealand, they would not return with her, and led evidence from a psychologist and psychiatrist that the child would be adversely affected by removal from her grandparents. There was also evidence put before the court from a psychologist and psychiatrist that the child would be adversely affected by removal from her grandparents, and that the child had stated that it would be “the worst thing if I have to live with Mummy all my life and not go back home to Australia to live with Grandma and Pop, best if just stays how it is”. The psychiatrist had also reported that the child “nevertheless told me that if she had to go to her mothers she would, although she was adamant that it was not her preference”.

The first question for the court to determine was whether the mother had custodial rights sufficient to bring the case within the Child Abduction Regulations. Under Regulation 4, it was necessary that she be attributed “rights of custody”, either jointly or alone, under a law in force in the convention country in which the child habitually resided immediately prior to the child’s removal or retention. Rights of custody for this purpose might arise, by operation of law, by reason of a judicial or administrative decision; or by reason of an agreement having legal effect under a law in force in Australia or a convention country. The trial judge had found that by operation of New Zealand law and in the absence of an order of an appropriate court, both the mother and the father are guardians of the child and the mother would have rights of guardianship and custody. The central authority cited a number of decisions[128] to support its submission that “custody” should be read broadly and that the mother’s rights equated to such rights. The respondents challenged this interpretation and suggested that it was open to the trial judge to find that the mother had rights of custody, but that she was not exercising those rights.[129] The court accepted that the starting point was New Zealand law and drew the same conclusion as that of the trial judge. Whilst under the Guardianship Act 1968 (NZ), both the mother and father were guardians and custody and control of the child such that either party could remove the child from New Zealand, such action would not bring an end to the rights of the other parent. In the Court’s view, the mother had not renounced her custodial rights during the period the grandparents cared for the daughter, but instead was exercising her custodial rights by arranging for the grandparents to look after the daughter. The retention in Australia interfered with this consensual arrangement and was in breach of the mother’s custodial rights.

Having established that the mother (and thus the Central Authority) came within the terms of the Child Abduction Regulations, it was necessary for the court to consider the significance of the child’s expressed desires with respect to remaining in Australia and the possibility of the child suffering harm should she be returned. Under the Child Abduction Convention, a State need not return a wrongfully removed or retained child where, inter alia, there is a grave risk that the return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation or the child “objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of the child’s views” (Article 13). These provisions were mirrored in Regulations 16(b) and (c) respectively. From the evidence before him, the trial Judge had determined that there was a grave risk of harm pursuant to Regulation 16(3)(b) and that the child relevantly objected under Regulation 16(3)(c) and had refused to order the return of the child to New Zealand.

Objection to return

The Court’s reasoning on the objection point was based largely on the High Court’s consideration of overseas authorities in De L v Director General, NSW Department of Community Services & Anor.[130] In particular, the Court noted that the High Court had rejected the Full Court of the Family Court’s previous “strict and narrow reading” of the phrase “objects”:

No form of words has been employed which would supply, as a relevant criterion, the expression of a wish or preference or of vehement opposition. No additional gloss ... is to be supplied.[131]

It had established the need to take a literal view of “objection”. The focus of the Full Court’s attention in Crowe was determining the nature of an objection which came within the Convention and Regulations. According to the Court, there was nothing in Regulation 16(3) to make it appropriate to consider whether the child objects in any circumstances since the Convention was concerned with facilitating the return of the child for the specific purpose of facilitating proceedings to determine the question of ultimate residence. Nor was it sufficient that the child had an objection to living with a particular parent. Instead the objection needed to relate to return to the country of habitual residence for the hearing of any custodial dispute. The court admitted that there may be cases where objections in relation to living with a particular parent and objection to return may be so linked that they could not be separated.

In evaluating evidence concerning an “objection”, the court accepted that it would be relevant to examine the reasons for the objection — in particular whether the objections relate to return for the purpose of the custodial hearing or permanent return.[132] In the present case it accepted that most of the evidence related to the child’s objections to final return, rather than return for the purpose of determination. As such, no relevant “objection” had been demonstrated.

Risk of Grave Harm

On the available evidence, the court overturned the trial judge’s findings that should the child be returned, there was a grave risk of psychological harm. Whilst accepting that the child had symptoms of anxiety and insecurity,[133] it did not accept there was evidence before the trial judge to indicate a grave risk of psychological harm. It rejected evidence that the child would be harmed if it did not form an attachment to the mother on the basis that there was no evidence that such a bond would not develop. It also perceived the child’s evidence as related to fears of living with her mother, rather than going to New Zealand. As such the potential harm was not related to the return. It perceived much of the potential harm as arising not from the child’s return, but from the grandparent’s refusal to accompany the child. In rejecting such a basis for harm, the court adopted the reasoning of Butler-Sloss LJ in C v C (Abduction Rights of Custody):[134]

The grave risk of harm arises not from the return of the child, but the refusal of the mother to accompany him ... If the grave risk of psychological harm to a child is to be inflicted by the conduct of the parent who abducted him, then it would be relied upon by every mother of a young child who removed him out of the jurisdiction and refused to return. It would drive a coach and four through the Convention, at least in respect of applications relating to young children. I, for my part, cannot believe that this is in the interests of international relations. Nor should the mother, by her own actions, succeed in preventing the return of a child who should be living in his own country and deny him contact with his other parent.[135]

Hague Convention on Child Abduction — Vienna Convention on the Law of Treaties — Interpretation of regulations giving effect to international convention — Use of travaux preparatoires — Habitual residence — Removal/retention

In the Marriage of Hanbury Brown and Director General

of Community Services

[1996] FamCA 23; (1996) 130 FLR 252

Federal Court (Ellis, Lindenmayer and Finn JJ)

Hanbury Brown was another case concerning the interpretation of the Child Abduction Regulations. Whilst the primary task of the court was to determine whether there had been a wrongful removal from or retention in another country other than the country of habitual residence, by virtue of the applicant’s mothers contentions, the case is noteworthy for its examination of the law regarding use of travaux preparatoires in interpreting legislation giving effect to international instruments. As noted later by Kirby J in Crowe, the court adopted a fairly strict approach to use of travaux — acknowledging their utility in cases of ambiguity or to confirm the evident meaning of the words, but denying their role in routinely informing the courts of the intention of particular international provisions. the court examined the law concerning the use of travaux preparatoires in interpreting legislation giving effect to international instruments.

The factual scenario giving rise to the dispute involved a series of negotiations between the parents as to the residence of the children. Prior to the breakdown of the marriage, the father and mother had resolved to move to Australia. With the mother’s consent, the father (the primary care taker of the children) took the children to Australia in late 1992 in order to look for a suitable residential property. In early 1994, the wife expressed the desire to end the marriage and in mid July the father and the children returned to Australia with the consent of the mother. The judge at first instance found the intention at this stage to be that the father and the children take up residence in Sydney and would continue in such unless and until the parties came to an agreement to the contrary. The mother subsequently decided to continue residing in the United States, but in order that she have contact with the children, the husband agreed to bring the children over for a period of nine months. Before the husband and children arrived in the United States for this planned long visit, the mother decided that she wished the children to remain in the United States with her, though she did not communicate this intention to the father until his arrival in the United States. Approximately one month after learning of this intention, the father took the children back to Australia without the wife’s knowledge or consent. Both parents commenced proceedings for custody of the children — the mother in the United States, and the father in Australia.

The Central Authority, pursuant to a request from the Central Authority of the United States commenced proceedings in the Family Court of Australia for the return of the children to the United States. The husband filed an application for a permanent stay of the Central Authority’s application. Moss J dismissed the husband’s application on 2 June 1995, and also dismissed the Central Authority and wife’s application on 7 June 1995. His Honours reasons were that the children’s habitual residence was in Australia, and as such they had not been removed from their “habitual residence” under the Child Abduction Regulations. The wife appealed from that decision. Her grounds of appeal related to Moss J’s interpretation of the Hague Convention and Regulations. Disputing Moss J’s interpretation of these instruments, the mother argued that:

(a) The Hague Convention and Regulations were focussed primarily on return to the custodial parent and this should be the focus of the inquiry. The “retention” of a child need not be continual possession but could occur by a one-off removal, and the necessary return was return to the custodial parent, regardless of the location of the custodial parent. In support of this contention, the mother adduced passages from the travaux preparatoires which appeared to offer an alternative intention of the Convention than that demonstrated in the Convention’s preamble;
(b) the children had dual habitual residence in the United States and Australia; or alternatively that the children’s habitual residence was in the United States; and
(c) that the power of primary decision making of whether a wrongful removal had taken place belonged with the Central Authority and should not be disturbed.

The Central Authority itself disputed the last point made by the mother and supported the court’s role in determining wrongful removal. The father supported Moss J’s findings and raised a cross-appeal that if the Central Authority possessed the power under the Regulations to make a binding determination as to the “wrongful removal” question, the Regulations were invalid as purporting to confer judicial authority on an administrative body contrary to Chapter III of the Constitution (the “Brandy” point).

Ellis, Lindenmayer and Finn JJ gave a joint judgment in which they dismissed the wife’s appeal, upheld the court’s power to consider the wrongfulness of the “removal” and thus the validity of the Regulations. As a preliminary matter, the court considered the extent to which travaux preparatoires could be used in the interpretation of provisions giving effect to international conventions.

Use of Travaux Preparatoires

The need to consider the proper use of travaux preparatoires in the interpretation of domestic provisions giving effect to an international covenant arose because of the arguments advanced on behalf of the mother in support of the argument that the Hague Convention was not so much concerned with the removal of a child from a place or the return to a particular place, but from a custodial parent. On her argument, she was a custodial parent and regardless of where the children’s habitual residence was, the children should be returned to her. Whilst the wife’s argument was bolstered by the fact that the operative Article of the Hague Convention, Article 3, did not mention removal from the country of habitual residence, the Preamble of the Convention advanced an intention that the focus was removal from such a country. The Preamble stated:

Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the state of their habitual residence ... have resolved to conclude a convention to this effect.

In order to support her contrary explanation for the intention of the convention, the wife sought to rely on passages from the travaux preparatoires. In the face of travaux being put forward to support a contrary formulation of the Convention than that which appeared on the face of the Convention, the court decided to consider in what circumstances it was appropriate for the court to consider the travaux.

After surveying the major English and Australian decisions on the use of travaux, the court noted a lack of uniformity or unanimity concerning the use of travaux to assist in the interpretation of international instruments and legislative instruments giving effect to such. Whilst accepting that a majority of judges used travaux in particular situations, there was no majority in favour of using the travaux in all situations. The court, for instance, progressed through the judgments of the House of Lords in Fothergill v Monarch Airlines Limited.[136] Lord Wilberforce supported the cautious use of travaux where the material involved is public and accessible and where the travaux “clearly and indisputably point to a definite legislative intention”.[137] Lord Diplock accepted that the Vienna Convention on the Law of Treaties codified existing public international law at the time of the Convention’s coming into force (1969) and thus should determine the use of the travaux. By examining Articles 31 and 32 of the Vienna Convention, Lord Diplock concluded that the travaux should be used where the text is ambiguous or obscure. Furthermore, in Lord Diplock’s view, judges may be under a constitutional obligation to consider the travaux in relation to treaties coming into force after the Vienna Convention. Lord Scarman was also quoted extensively — in particular his view that “if there be ambiguity or doubt, or if a literal construction appears to conflict with the purpose of the convention, the court must then, ... have recourse to such aides as are admissible and appear to it to be not only relevant but helpful ...”[138]

Turning to the Australian authorities, the court drew upon the varying opinions expressed in the Commonwealth v Tasmania (the Tasmania Dam case).[139] In that case, Gibbs J had stated that :

If there is an ambiguity, the travaux preparatoires may help to resolve it. Even if there is no ambiguity, it appears that the travaux preparatoires may be used as a supplementary means of interpretation, to confirm the meaning which appears from the treaty itself.[140]

Wilson J had affirmed the propriety of having recourse to the travaux where there is ambiguity, supporting the proposition by referencing Fothergill. Brennan J viewed the Vienna Convention as a codification of customary international law and that the travaux should not be used where the text of a convention is sufficiently clear in itself, quoting the decision of the Permanent Court of Justice in Conditions of Admission of a State to Membership in the United Nations.[141] Dawson J took a more restrictive approach, considering the Convention in question represented the “highest point” in the international expression of concern and as such that it was unnecessary to go beyond the provisions of the Convention.

In the present case, the court noted that the Vienna Convention had entered into force for Australia on 27 January 1980, thus prior to the adoption and entry into force of the Hague Convention. They thus accepted that it was appropriate to interpret the Hague Convention in accordance with Articles 31 and 32 of the Vienna Convention. Accordingly, the court’s primary task was to interpret the provisions of the Convention “in good faith in accordance with the ordinary meaning to be given to the words of the Convention in their context”, including the preamble and in the light of the Convention’s object and purpose. According to the court’s reading of Articles 31 and 32 of the Vienna Convention, the court was permitted to have regard to the travaux preparatoires only in two circumstances — either to confirm the meaning arrived at by the application of the primary rule or to remove an ambiguity or overcome a manifestly absurd or unreasonable result flowing from the application of the primary rule.

Given the court’s conclusions about the ordinary meaning of the Convention and its view that the result was not manifestly absurd or unreasonable (discussed below), it considered that it was not necessary to consider the arguments based on the travaux. On the court’s reasoning, however, the travaux may have been considered had the travaux pointed to an affirmation of the plain reading of the Convention — the distinction in this case appeared to be that the travaux were being adduced to demonstrate an interpretation contrary to the “plain reading” interpretation.

Interpretation Points

The focus of the court’s interpretative task was to determine the meaning of “removal” which under Regulation 2(1) was “the wrongful removal or retention of a child within the meaning of the Convention”. Wrongful removal or retention was mentioned at various points of the Convention, but the central provision was Article 3, which provided:

The removal or the retention of a child is to be considered wrongful where — (a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and (b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

As averted to above, Counsel for the wife relied upon the absence of specific mention of removal from the country of habitual residence to argue that all the Convention required was a removal from a custodial parent or retention away from a custodial parent. According to the wife, such removal need not be continuing, but was sufficient if it was a “one-off” removal or retention. In such circumstances, the Regulations would require return to the custodial parent, wherever the custodial parent was. The court was not persuaded and rejected this argument.

First, the court considered the context of Article 3. They considered that the preamble showed a clear intention that the Convention was concerned with removal from and return to the country of habitual residence. In ordinary parlance, “removal from” and “return” were correlatives, and their use in Article 3 indicated a need for continued wrongful possession outside the State of habitual residence. “Removal” in the court’s opinion indicated physical movement of the children from one state to another, and that in each case the State from which the “removal” has occurred or against which the “retention” is practised is that of the child’s habitual residence. The court was fortified by the same conclusion having been reached by the English Court of Appeal, the House of Lords[142] and US authorities.[143] Furthermore, the court foresaw an absurd result from the mother’s interpretation — that an international convention, designed essentially to overcome problems arising from the territorial limits of the jurisdiction of courts of contracting states and the diversity of custody laws applicable within them, could be used to determine cases without any real international flavour at all — for example where the child was removed by one parent back to Australia, the country of habitual residence, without the permission of the other parent, and the other parent seeking to invoke the Hague Convention upon his/her return to Australia.[144]

Since the court did not find the result of the “reading in context” absurd or unreasonable, they regarded it as not necessary to have recourse to the travaux. However, on the basis that they could be wrong in this conclusion, they noted that the travaux do not throw any doubt on their conclusion that the only obligation created by the Convention is to order the “return” of children to their country of habitual residence immediately prior to their removal.

On the wife’s second argument that the children had dual habitual residences — in the United States and Australia, the court was satisfied that the Convention by using the language of “a State” anticipated a child having only one state of habitual residence. Such a conclusion was also consistent with all precedent to which the court had been referred.[145] The court rejected the argument that the children’s habitual residence was in the United States, preferring the version of events proffered by the father which demonstrated that the children’s presence in the United States was regarded as temporary. They did not accept that there was any evidence of a settled purpose or intention to the contrary to support the arguments of the mother.[146]

The Role of the Central Authority and Validity of the Regulations

The Court accepted as cogent and persuasive the submissions of the Central Authority in support of the court’s role and the validity of the Regulations. The Central Authority had submitted that the court had the power to make an order for the return of the child if satisfied that the removal had been wrongful. In addition to pointing to the fact that the Regulations referred to receipt of evidence on the matter, the court’s authority was consistent with existing authority,[147] and the approach adopted overseas.[148] In circumstances where the court was of the view that a wrongful removal had occurred, the duty of the court to order return was almost absolute.


Extradition Treaty between USA and Australia — Reasonable grounds for belief

Reiner Jacobi v United States of America & Chris Owens

[1996] 962 FCA 18 November 1996

The applicant sought review under s 21(2) of the Extradition Act 1988 (Cth) of the decision of Mr Owens that he was a person eligible to surrender to the USA. The primary issue was whether there was sufficient material provided by the requesting country and before the magistrate to satisfy the requirements of Article XI(3)(c) of the Extradition Treaty between Australia and the USA[149] — that is whether the facts provided “reasonable grounds” for a belief that the offence was committed by the person whose extradition was sought. Under Article XI of the Treaty, the requesting country was required to provide a “description of the facts, by way of affidavit, statement, or declaration, setting forth reasonable grounds for believing that an offence has been committed and that the person sought committed it”. The extradition offence was described in the warrant of arrest as “conspiracy to import and distribute hashish”. Under the Regulations to the Extradition Act, only particular prescribed documents were required to be produced in relation to an extradition offence. Kiefel J regarded the Treaty as merely requiring support documentation for the extradition request, rather than mandating production of specific documents. His consideration of the documents produced, however, led him to the conclusion that the facts there evidenced were insufficient to establish “reasonable grounds” that an offence had been committed by the applicant.

Declaration of international law in domestic courts — absence of cause of action — nuclear weapons

Kainhofer v DPP

Unreported Judgment, Full Federal Court

17 September 1996

Lockhart, Hill and Kiefel JJ

Extradition Treaty between Australia and the Republic of Austria — Translation Requirements — Extradition Act 1988.

In Kainhofe r the Federal Court had to consider the significance of a requirement for translation of documents in the Extradition Treaty between Australia and the Republic of Austria (as amended by a protocol coming into force on 1 February 1987).[150] By virtue of s 11 of the Extradition Act 1988 (the Act) and Regulation 4 of the Regulations, the Act was to have effect subject to limitations, conditions, exceptions and qualifications necessary to give effect to the Treaty. Article 19 of the Treaty stated that:

If a document that is sent from a contracting party to the other contracting party in accordance with this Treaty is not in the language of the other contracting party, the first mentioned contracting party shall also send a translation of the document into that language.

The appellant submitted that Article 19 had not been strictly complied with since there had been no translation of the authentication of translations.[151] As such, the extradition request was said to be invalid. A differently constituted Full Court had previously ruled that Article 19 was not a limitation within the meaning of the Act, but no more than a facilitative provision designed to assist consideration of an extradition request.

Lockhart, Hill and Kiefel JJ agreed with this interpretation. Furthermore, they considered that Article 19 was concerned with documents furnished in support of an extradition request, not authentications.


Convention on the Elimination of all Forms of Racial Discrimination — Racial Discrimination Act 1975 — Indirect discrimination — National origin

Australian Medical Council v Sir Ronald Wilson, Elizabeth Hastings, Jenny Morgan, Dr B Siddiqui and Commonwealth Minister for Health[152]

Federal Court of Australia

Black CJ, Heerey and Sackville JJ

(1996) 137 ALR 653

Continuing confusion has surrounded the interpretation of the prohibition against indirect racial discrimination under the Racial Discrimination Act 1975 (Cth) (RDA), the legislative implementation of the Convention on the Elimination of all Forms of Racial Discrimination (CERD). The most recent decision to grapple with the means of demonstrating indirect racial discrimination is Australian Medical Council v Wilson.

This case concerned a challenge to the restrictions placed on the ability on overseas trained doctors (OTD’s) to practice medicine and be given a Medicare provider number in Australia. Under s 19 of the Medical Practitioners Act 1970 (Vic), a person was qualified to be registered as a medical practitioner on either of two grounds: either that they were a graduate of a university, college or other body accredited by the Australian Medical Council (AMC), or if not, that they held a certificate of the AMC certifying that the person was qualified to be registered in all States and Territories. Only Australian and New Zealand bodies were accredited by the AMC, such that OTD’s had to seek registration through the certification procedures. At the time of the challenged proceedings, in order to obtain certification, it was necessary for an OTD to undergo a written examination. Only if the OTD succeeded in being placed in the top 200 examination applicants could the OTD proceed to the oral examinations and subsequent certification. Dr Siddiqui, a doctor trained in India, underwent the written examinations on numerous occasions but had been unsuccessful in obtaining registration. He alleged that he had been the victim of unlawful racial discrimination under either s 9(1), the direct discrimination provision or s 9(1A),[153] the indirect discrimination provision of the RDA.

The HREOC in its decision on 7 August 1995 did not accept that Dr Siddiqui had been the subject of discrimination on the basis of “race or ... national origin” (s 9(1) since the basis of the distinct system for registration was identity of the medical school. However, it upheld Dr Siddiqui’s complaint in respect of s 9(1A) of the RDA, and awarded him damages in the order of $50,000. Whilst, in the context of s 9(1A), the HREOC accepted the reasonableness of some limitations such as an examination and quota system in relation to OTD’s being imposed in the interests of Australia’s health system, the HREOC felt that other less restrictive alternatives had not been examined. Thus the way in which the system operated with respect to Dr Siddiqui (having successfully passed the examinations, but not having come within the necessary quota) was unreasonable. The HREOC was also satisfied that the basis of such indirect discrimination was national origin.

The Federal Court took a different approach, and in the course of rejecting Dr Siddiqui’s claim, made interesting observations about the interaction of the direct and indirect discrimination provisions of the RDA. The leading judgment was that of Heerey J, with whom Black CJ agreed in most respects.

Interaction of Direct and Indirect Discrimination Provisions

Acknowledging that the origin of Australia’s statutory provisions targeting indirect discrimination (such as the United States civil rights legislation) had given rise to divergent opinions as to whether indirect discrimination are merely explanatory of direct discrimination prohibitions[154] or were mutually exclusive with direct discrimination,[155] Heerey J concluded that the mutual exclusivity construction should be adopted. This approach, he believed was consistent with the language of the provisions, their legislative history and the preponderance of authority. Sackville J acknowledged that the “mutually exclusive” approach to s 9(1) and s 9(1A) was not necessarily supported by the general terms of the CERD which the Racial Discrimination Act 1975 was intended to implement (given that the language of the Convention suggests that it was intended to require State parties to address indirect discrimination and not merely what can be described as “direct discrimination”)[156] and by the fact that s 9(1A) was only introduced in 1990. He also acknowledged that the terms of the RDA, taken from the CERD, are “vague and elastic”. Notwithstanding these expressed opinions, Sackville J accepted that the balance of judicial opinion was in favour of the “mutually exclusive” view of the sections, and that unless and until the High Court considered the issues, the preferable course was to follow the weight of precedent.[157]

Siddiqui’s claim

Direct Discrimination

In relation to the interpretation of s 9(1), the direct discrimination provision, Heerey J expressed agreement with the approach of Doyle CJ in Aboriginal Legal Rights Movement v State of South Australia.[158] In essence, this approach was that for s 9(1) to be operational, one needed an act which in fact produced a distinction on the basis of race, and that the act occurred by reason of or by reference to the racial distinction. This was not an inquiry as to motive, but whether the racial distinction was a material factor in the making of the relevant decision or the performance of the relevant act. He accepted the Commission’s analysis that the distinction in treatment of medical schools was not made on the basis of national origin but on the basis of the identity of the medial school in which the candidate for registrate was trained. Heerey J quoted extensively from an analogous Canadian case, Jamorski v Attorney-General of Ontario [159], in which a distinction for the purpose of internships was made between applicants from accredited medical schools (all those in Canada and most in the USA) and those from “unaccredited acceptable” medical schools. In rejecting the complaint of discrimination under s 15(1) of the Canadian Charter of Rights and Freedoms from graduates of unaccredited medical schools, the Ontario Court of Appeal concluded that the distinction was not discriminatory. The groups were not considered to be similarly situated since the schools were not similarly monitored and known. Furthermore, there was nothing perjorative or invidious in the system of classification. Even if there was discrimination, the Court considered that the distinction was a reasonable legislative response to provide and regulate medical education and to regulate the admission to the practice of medicine.

Sackville J undertook a more detailed analysis of what was meant by discrimination on the basis of “national origin”. Sackville J accepted the view put forward in the English decision of Ealing London Borough Council v Race Relations Board [160] that “national origin” related to race rather than citizenship. He accepted as providing guidance as to the meaning of national origin, the expositions provided by the judges in Ealing. Thus, he quotes from Lord Cross:

national origin ... suggests a connected subsisting at the time of birth between an individual and one or more groups of people who can be described as a ‘nation’ — whether or not they also constitute a sovereign state. The connection will normally arise because the parents or one of the parents of the individual in question are or is identified by descent with the nation in question, but it may also sometimes arise because the parents have made their home among the people in question. [161]

Recognising that Dr Siddiqui had gained Australian citizenship, Sackville J accepted his “national origin” as Indian.

However, in examining the facts of the current case against the test of s 9(1) Sackville J concluded that the criterion for the differing methods of registration was not race or national origin. A person of Australian national origin who graduated overseas was in the same position as Dr Siddiqui, just as a non-Australian who graduated from an Australian medical school was entitled to registration without progression through the AMC exams. Sackville J acknowledged the minuscule number of Australian-born persons going through the AMC exams (15 out of 1,431), but such did not dissuade him his conclusion since Australian medical students were of disparate national origins and were treated equally.[162]

Indirect Discrimination

Effect or Purpose of Imposition of Term — Comparison Group

The court was divided as to the procedure to be taken in order to establish that the imposition of a term or condition had the effect of nullifying or impairing the enjoyment of human rights under the indirect discrimination of the RDA (s 9(1A)). For Heerey J, it was necessary to undertake a comparison between two groups who were subject to the same term, condition or requirement to determine if persons of particular race were discriminated against in terms of the application of the test. The prohibition of s 9(1A) related to conditions which disproportionately affected in an adverse way members of the complainant’s group.[163] Thus in Heerey J’s view, the only way Dr Siddiqui could demonstrate a case to satisfy s 9(1A) would be to show that OTD’s of Indian national origin who met the quota formed a lower proportion of all OTD’s meeting the quota than the proportion that all Indian OTD’s applying for registration bore to all OTD applicants. As no such evidence was before the court, Heerey J rejected Dr Siddiqui’s claims.

Sackville J adopted a different approach, concluding that there may be cases in which members of a group are impaired in the exercise of a human right precisely because they must comply with a condition to which members of other groups are not subject. It was necessary to adopt a broad interpretation that involved considering whether the imposition of the condition had a disparate impact on persons of a particular group in order to fulfil the intention of the RDA as demonstrated through its preamble and the objectives of CERD.[164] Sackville J thus rejected Heerey J’s approach of comparing the group of which the applicant is a member to others subject to the condition. Instead, it was sufficient to compare the situation of those subject to the condition with those who were not subject. In relation to this point, Black CJ agreed with Sackville J.

Even on this test, however, Sackville J was satisfied that the imposition of the test and quota did not have the “prescribed effect” of nullifying or decreasing the enjoyment of human rights of persons on an equal footing since persons of Indian national origin are eligible to apply to accredited medical schools in Australian and New Zealand and that no evidence of disability in gaining entry to medical schools was before the court. Sackville J was not concerned by the fact that only a small number of the Australian population was of Indian origin, stating:

That reflects, in large measure, the fact that the bulk of the Australian population is always likely to consist primarily of persons of Australian origin.[165]

Similarly with respect to the small number of Indian students at Australian medical schools, Sackville J was satisfied that this had nothing to do with distinctions based on national origin, but rather reflected the “simple fact” that Australian medical schools, like virtually all State-funded Universities throughout the world, primarily serve the resident population of the countries in which they are located.

Reasonableness of the Distinction

Notwithstanding his view that there had been no indirect discrimination coming within the terms of s 9(1A), Heerey J commented on the HREOC’s reasoning with respect to the “reasonableness” of the quota. Heerey J accepted that reasonableness was to be determined having regard to the circumstances of the case including the personal impact of the requirement and the reasons for imposition. He accepted that the decision to impose the quota involved complex questions bearing on an issue of first importance for the Australian society, namely the provision and financing of health care in Australia. By identifying alternative means of applying the quota and finding that the AMC provided “no convincing explanation” why such alternatives could not be utilised, the HREOC incorrectly reversed the onus of proof. The onus was properly on Dr Siddiqui to show that the term was not reasonable, in the sense of being not rational, logical and understandable. He also rejected the HREOC’s reasoning in the sense of portraying as illogical a conclusion that a quota could lawfully be imposed, but that it was not rational to select the first 200 candidates.[166]

Neither the decision of the HREOC, nor the Federal Court has provided a satisfactory methodology for understanding indirect discrimination complaints. Siddiqui emphasises questions of form (that Australians might be subject to the same condition) without significant attention to the effect of the condition (that is the overwhelming operation of this condition to the detriment of overseas-born doctors) whilst the HREOC’s reasoning fails to grapple with the ‘nationality’ versus “national origin” distinction. It is to be hoped that the question of the operation of the prohibition of racial indirect discrimination comes before the Federal Court or High Court of Australia for its further consideration.

[*] BA (Hons) LLB (Hons) ANU, LLM Columbia, Doctoral Candidate ANU.

[1] Commonwealth of Australia v Tasmania. Tasmania Dam case (1983) 158 CLR 1; (hereafter referred to as Tasmania Dam case).

[2] Koowarta v Bjelke-Petersen; State of Queensland v Commonwealth [1982] HCA 27; (1982) 153 CLR 168; (hereafter referred to as Koowarta).

[3] ILO Convention (No 131) concerning Minimum Wage Fixing with Special Reference to Developing Countries, Aust Treaty Series 1974, No 13.

[4] ILO Convention (No 100) concerning Equal Remuneration for Men and Women Workers for Work of Equal Value, Aust Treaty Series 1975, No 45.

[5] ILO Convention (No 111) concerning Discrimination with respect of Employment and Occupation, Aust Treaty Series 1974, No 12.

[6] ILO Convention (No 158) concerning Termination of Employment of the Initiative of the Employer, Aust Treaty Series 1994, No 4.

[7] ILO Convention (No 156) concerning Equal Opportunities and Equal Treatment for Men and Women Workers with Family Responsibilities, Aust Treaty Series No 7.

[8] ILO Convention (No 187) concerning Freedom of Association and Protection of the Right to Organise, Aust Treaty Series 1974, No 3.

[9] ILO Convention (No 98) concerning the Application of the Principles of the Right to Organise and to Bargain Collectively, Aust Treaty Series 1974, No 5.

[10] Aust Treaty Series 1983, No 9.

[11] Aust Treaty Series 1976, No 5.

[12] Aust Treaty Series 1946, No 17.

[13] ILO Recommendation 90 Equal Remuneration Recommendation 1951; the ILO Recommendation 111 Discrimination (Employment and Occupation) Recommendation 1958; the ILO Recommendation 166 Termination of Employment Recommendation 1982; the ILO Recommendation 165 Workers with Family Responsibilities Recommendation 1981 (hereafter referred to in summary ref form eg 160 Recommendation).

[14] Customary international law was said to found the international obligations with respect to freedom of association and the right to strike.

[15] Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 286–288, 298, 315.

[16] (1996) 187 CLR 416 at 480; citing also Halsbury’s Laws of England, 1st edn, (1909) vol 6, p 216; Walker v Baird [1892] AC 491 at 492; Brown v Lizars [1905] HCA 24; (1905) 2 CLR 837 at 851, 860; Chow Hung Ching v R [1948] HCA 37; (1948) 77 CLR 449 at 478; Bradley v Commonwealth [1973] HCA 34; (1973) 128 CLR 557 at 582; Simsek v Macphee (1982) 148 CLR 636 at 641–2.

[17] The Court referred to Barton v Commonwealth [1974] HCA 20; (1974) 131 CLR 477 at 498–9 per Mason J, 487–88 per Barwick CJ, 491 per McTiernan and Menzies JJ, and 505 per Jacobs J.

[18] The Court cited in this context Polyukhovich v Commonwealth of Australia [1991] HCA 32; (1991) 172 CLR 501 at 632 per Dawson J (hereafter referred to as Polyukhovich).

[19] Cobbett P, “The International Organization of Society” (1909) 6 The Commonwealth Law Review 193 (Pt 1) 243 (Pt 2); Oppenheim L, International Law (1905) vol 1, s 578.

[20] (1996) 187 CLR 416 at 479.

[21] Ibid, at 483.

[22] Ibid, at 482.

[23] R v Burgess; ex parte Henry [1936] HCA 52; (1936) 55 CLR 608.

[24] Ibid, at 687.

[25] Barton J in McKelvey v Meagher [1906] HCA 56; (1906) 4 CLR 265 at 286. The Court also cited the opinion expressed by Deakin as Attorney General in 1902, Opinions of Attorneys-General of the Commonwealth of Australia (1981) vol 1, p 134; see discussion at (1996) 187 CLR at 481–3.

[26] Tasmania Dams, n 1 above, at 484–5.

[27] Zines L, The High Court and the Constitution, 3rd edn (1992) p 250. Whilst the Court did not refer directly to Professor Zines’ acknowledgment that treaties which are entered into for the purpose of extending the Commonwealth’s power would not enliven the external affairs power, the “frail shield” referred to by Gibbs CJ in Koowarta, the court did not give any appearance of disavowing this limitation.

[28] R v Burgess; ex parte Henry, n 24 above, at 687.

[29] Ibid, quoted at (1996) 187 CLR at 483.

[30] Airlines of NSW Pty Ltd v New South Wales (No 2) [1965] HCA 3; (1965) 113 CLR 54; Tasmania Dam, n 1 above; Richardson v Forestry Commission [1988] HCA 10; (1988) 164 CLR 261 cited at 488. It is noticeable that the majority quote frequently from judgments of Dawson J. It can be surmised that this tendency was in an attempt to close the gap between the attitude of the majority and Dawson J.

[31] Tasmania Dam, ibid; Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1; (hereafter referred to as Chu Kheng Lim). Chu Kheng Lim.

[32] (1996) 187 CLR at 488.

[33] Ibid, at 489.

[34] Ibid, at 571.

[35] Ibid, at 567.

[36] Ibid, at 571.

[37] Richardson, n 30 above.

[38] [1988] HCA 10; (1988) 164 CLR 261 at 321; quoted at (1996) 187 CLR at 566.

[39] The court noted the broad language of the Minimum Wage Fixing Convention 1970, but accepted that it included obligations susceptible to implementation by a law of the Commonwealth; ibid, at 496.

[40] These provisions included giving the Industrial Relations Commission the power to make an order for increasing rates of payment to ensure equal remuneration provided that such an order, inter alia, could reasonably be regarded as appropriate and adapted to implementing the Convention. The Court viewed this provision as ensuring that the Commission acted within constitutional limits, rather than a legislative attempt to give the Commission power to determine its own constitutional boundaries; ibid, at 509.

[41] In upholding the validity of these provisions, the court noted that although the Workers with Family Responsibilities Convention 1981 contains no specific provisions relating to parental leave, the conditions of society and industrial organisation in Australia make provision for parental leave an obvious way of discharging the obligations imposed by Articles 3, 4 and 7 of the Convention.

[42] The Court held that s 170DE(2) which provided that “harsh, just or unreasonable determinations” were invalid and resulted in a shifted onus of proof, went beyond implementation of the Convention; (1996) 187 CLR at 517–8.

[43] This Convention lists particular grounds of discrimination, but also includes an “expandable” definition of discrimination dependent on the carrying out of consultations with employer and employee groups.

[44] The court considered that s 170PG(3) which provided that employers who, in breach of their contracts with employees, locked them out from their place of employment were protected in certain circumstances was beyond the relevant international law obligations and thus invalid.

[45] The court considered that it was reasonably open to Parliament to conclude that qualifying common law rights of action against strikers and providing protection against loss of employment by strikers would fulfil, at least in part, Australia’s obligations to provide a right to strike; (1996) 187 CLR at 546, 547.

[46] As to the components of establishing customary international law, the court cited Columbian-Peruvian asylum case, Judgment of November 20th 1950, ICJ Rep 1950, p 266 [1950] ICJ Rep 266 at 276–277; North Sea Continental Shelf Cases [1969] ICJ Rep 1 at 43; Polyukhovich, n 6 above, at 560.

[47] (1996) 187 CLR at 545.

[48] Article 1 of ILO 111.

[49] (1996) 187 CLR at 532.

[50] Other questions of jurisdiction, standing and justiciability were raised but Kirby J found it unnecessary to consider them.

[51] Re: Minister for Foreign Affairs and Trade; Commissioner of the Australian Federal Police and Commonwealth of Australia And: Geraldo Magno and Ines Almeida [1992] FCA 566; (1992) 37 FCR 298 at 305, 335–6.

[52] Aust Treaty Series 1974, No 2.

[53] Convention Relating to the Status of Refugees, Aust Treaty Series 1954, No 5.

[54] Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.

[55] Quoting Gaudron J in ibid, at 414–5.

[56] Minister for Immigration and Ethnic Affairs v Wu Shan Liang; (hereafter referred to as Wu).

[57] See n 54 above.

[58] Minister for Immigration, Local Government and Ethnic Affairs v Mok (1994) 55 FCR 375

[59] Re Gavin Ray McAuliffe And: Secretary, Department of Social Security (1992) 28 ALD 609 at 616; Pozzolanic Enterprises Pty Ltd v Collector of Customs (1993) 43 FCR 280 at 287; R v Quinn [1990] HCA 21; (1990) 170 CLR 1 at 35–6; discussed at (1996) 185 CLR at 272.

[60] (1994) 55 FCR 375; discussed at (1996) 185 CLR at 272.

[61] (1996) 185 CLR at 274–5.

[62] Federal Commission of Taxation v Brian Hatch Timber Co (Sales) Pty Ltd [1972] HCA 73; (1972) 128 CLR 28 at 57 per Windeyer J; Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353 at 360 per Sir Owen Dixon; Re: Commissioner of Taxation of the Commonwealth of Australia And: Alan Edward Jackson (1990) 27 FCR 1 at 13; Federal Commissioner of Taxation v Bayly [1952] HCA 31; (1952) 86 CLR 506 at 510.

[63] Chan, n 54 above, at 413.

[64] (1996) 185 CLR at 281.

[65] Ibid, at 266.

[66] Fernandez v Government of Singapore [1971] 1 WLR 987.

[67] Ibid, at 993–994; discussed at (1996) 185 CLR at 282–3.

[68] R v Home Secretary; Ex parte Sivakumaran [1987] UKHL 1; [1988] AC 958.

[69] Immigration and Naturalisation Service v Cardoza-Fonseca [1987] USSC 32; (1987) 480 US 421 at 425.

[70] This decision is on appeal to the High Court of Australia.

[71] Foster J expressed “general agreement” with the judgments of both Einfeld J and Beaumont J without acknowledgment of their different bases of reasoning; (1996) 64 FCR at 186.

[72] (1996) 64 FCR 151 at 179.

[73] Ibid.

[74] Citing Minister for Immigration, Local Government and Ethnic Affairs v Mok, n 57 above; Wu v Minister for Immigration and Ethnic Affairs [1995] FCA 1327; (1995) 57 FCR 432; and Chheng Phea Rith v Minister for Immigration, Local Government and Ethnic Affairs, Sundberg J, unreported, 31 August 1995; (1996) 64 FCR at 172–4.

[75] (1996) 64 FCR at 175.

[76] Citing Chan, n 54 above, at 390 per Mason CJ, at 416 per Gaudron J, and at 433 per McHugh J; UN Handbook on Procedures and Criteria for Determining Refugee Status, (1988).

[77] Immigration Appeal Board Decision M79–1132, 28 March 1980, at 4 per J-P Houle; quoted by Hathaway JC, The Law of Refugee Status (1991) p 152.

[78] Bolanos-Hernandez v Immigration and Naturalisation Service [1985] USCA9 933; (1984) 767 F 2d 1277 at 1286; quoted by Stevens J in Immigration and Naturalisation Service v Elias-Zacarias [1992] USSC 11; (1992) 112 S Ct 812; cited at 161.

[79] Attorney-General (Can) v Ward (1993) 103 DLR (4th) 1 at 38–9.

[80] T v Secretary of State for the Home Department [1995] 1 WLR 545.

[81] Noted at 165; cf Cunliffe v Commonwealth [1994] HCA 44; (1994) 182 CLR 272.

[82] (1996) 64 FCR 151 at 166.

[83] Chu Kheng Lim, n 31 above.; Teoh, n 15 above.

[84] Note Mabo v Qld (No 2) (1992) 175 CLR 1 at 42.

[85] Re HK (An Infant) (1967) 2 QB 617.

[86] Whilst recognising that in general, procedural fairness does not require advice to be given by administrators: Elbourne v Minister for Immigration, Local Government and Ethnic Affairs (1991) 22 ALD 211 at 212; Re: Minister of State for Immigration Local Government and Ethnic Affairs; Regional Director, South Western Region, Department of Immigration Local Government and Ethnic Affairs and Farouk Mohammed Buksh (1992) 26 ALD 399 (1992) 26 ALD 399 at 404, Carr J felt that this case involved an exceptional case where the appellants were in a particularly disadvantaged position due to language difficulties and their being held largely incommunicado.

[87] Carr J agreed that s 256 did not impose an affirmative obligation on officers to inform detainees of their right to legal advice on the basis of Guo Wei Rong v Minister for Immigration and Ethnic Affairs, Sackville J, but distinguished Guo Wei Rong on the facts given that Rong was told at a later stage of the proceedings, whereas here there was a breach of procedural fairness to have never told the appellants of their rights.

[88] Re Pergamon Press Ltd (1971) Ch 388; Calvin v Carr (1977) 2 NSWLR 308; Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596; Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564.

[89] [1992] FCA 470; (1992) 38 FCR 191 per Olney J.

[90] (1996) 69 FCR 417 at 423.

[91] Re: Minister for Foreign Affairs and Trade; Commissioner of the Australian Federal Police and Commonwealth of Australia And: Geraldo Magno and Ines Almeida [1992] FCA 566; (1992) 37 FCR 298; James Buchanon and Co Ltd v Babco Forwarding and Shipping (UK) Ltd [1978] AC 141.

[92] (1996) 69 FCR at 426.

[93] Ibid, at 427.

[94] Ibid, at 428 — quoting, Weis P, “The Concept of the Refugee in International Law” (1960) 3 Journal du Droit International 982.

[95] Ibid, at 428.

[96] See n 77 above, p 213.

[97] (1978) 21 NR 525 (FCA).

[98] (1995) 98 FTR 83.

[99] (1994) 86 FTR 299.

[100] Aust Treaty Series 1987, No 2.

[101] (1996) 187 CLR at 650.

[102] Ibid, citing Victoria v Commonwealth (the Industrial Relations Act case) (1996) 187 CLR 416 at 485, 566–568, 571–572.

[103] The court noted, however, that by virtue of the construction given to the provisions in the case, the Regulations were such as to “meet the terms in which the regulation-making power is conferred” (1996) 187 CLR at 650. If the Regulations were regarded as enabling the performance of obligations under the Hague Convention, they would seem likely to be regarded as an appropriate and adapted implementation of the Convention.

[104] (1994) 181 CLR 639 at 646–647; discussed at (1996) 187 CLR at 658.

[105] See n 107.

[106] Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492; discussed at (1996) 187 CLR at 661.

[107] Quoting from Re R (A Minor: Abduction) [1992] 1 FLR 105 at 108; cited at (1996) 187 CLR at 654.

[108] (1996) 187 CLR at 655.

[109] S v S (Child Abduction) (Child’s Views) [1992] 2 FLR 492; Urness v Minto [1994] SLR 988; Clarke v Carson [1996] 1 NZLR 349; Andersen v Central Authority for New Zealand, 11 June 1996, unreported decision of the New Zealand Court of Appeal; discussed at (1996) 187 CLR at 654.

[110] [1993] Fam 242 at 250; cited at (1996) 187 CLR at 656.

[111] Ibid.

[112] The Court noted recent example in Clarke v Carson, n 109 above.

[113] Clarke, ibid; cited at (1996) 187 CLR at 660.

[114] [1994] 3 SCR 551; discussed at (1996) 187 CLR at 661–2.

[115] [1989] 1 WLR 654; discussed at (1996) 187 CLR at 661–2.

[116] (1996) 187 CLR at 662.

[117] Ibid, at 669–670.

[118] Between: Gabrielle Forsythe Murray (Appellant) and Director, Family Services, ACT (Respondant) [1993] FLC 92–416; cited at (1996) 187 CLR at 682.

[119] (1996) 187 CLR at 684–5.

[120] Ibid, at 684.

[121] Perez-Vera, “Explanatory Report on the Convention on the Civil Aspects of International Child Abduction”, Permanent Bureau of the Hague Conference (1992) para 34.

[122] Rajaratnam v Rajaratnam-Hertig, Decision of the Supreme Court of Appeals of the Canton of Zurich, Switzerland, 19 December 1988; cited by Kay J in [1996] FLC 92–674 at 83,026–7.

[123] Tournai v Mechoulam decision, WMFHN–1, Supreme Court of Israel, 15 April 1992.

[124] Levesque v Levesque (1993) 816 F Supp 662.

[125] In the Marriage of Stephanie Selina Hanbury-Brown and Robert Hanbury-Brown and Director General of Community Services (1996) 187 CLR at 676; (hereafter referred to as Hanbury-Brown). Kirby J proceeded to cite academic articles extensively, in particular Anton D, “The Hague Convention on International Child Abduction” (1981) 30 International and Comparative Law Quarterly 537 at 542.

[126] De L v Director-General, NSW Department of Community Services (1996) 187 CLR 640 at 680.

[127] An explanation of these Regulations appears above in relation to De L.

[128] SA v Temple (1993) FLC 92–365, Re Bassi; Bassi and Director-General, Department of Community Service (1994) FLC 92–465, and In the Matter of: William Gordon McCall (Husband) and Rebecca Anne McCall (Wife) and State Central Authority (Applicant) and Attorney-General of the Commonwealth (Intervener) (1995) FLC 92–551.

[129] Re F (1995) 3 ALL ER 641.

[130] (1996) FLC 92–706. This case is digested above.

[131] De L, citing S v S

, n 109 above, at 499 per Balcombe LJ; quoted at [1996] FLC 83 at 621 and 639.

[132] (1996) FLC 83 at 621 and 641.

[133] Lord Donaldson of Lymington MR was quoted in C v C (Abduction: Rights of Custody) (1989) 1 WLR 654 as pointing out that there was some psychological harm to the child in such situations whether or not the child was returned.

[134] Ibid, at 654.

[135] See n 132 above, at 621 and 643.

[136] Fothergill [1980] UKHL 6; [1981] AC 251; discussed at (1996) 130 FLR at 271–5.

[137] Ibid, at 278.

[138] Ibid, at 294–5.

[139] Tasmania Dam, n 1 above; discussed at (1996) 130 FLR at 275–6.

[140] Ibid, at 93–94.

[141] [1948] ICJR 56.

[142] Re H; dicta of CA in In Re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562 at 567; In Re E (A Minor) (Abduction) [1989] 1 FLR 135 at 142.

[143] Friedrich v Friedrich [1993] USCA6 114; 983 F 2d 1396(6th Cir 1993).

[144] (1996) 130 FLR at 284.

[145] See n 142 above.

[146] As to settled purpose, see In Re B (Minors), Cooper v Casey (1995) FLC 92–575 at 81.695.

[147] G and O (1990) FLC 92–103; Artso and Artso (1995) FLC 92–566; Family Law (Child Abduction Convention) Regulations 1986 Between: State Central Authority (Applicant) and Rebecca Anne McCall (Wife) (1995) FLC 92–552; Cooper v Casey, n 146 above.

[148] Citing Re J [1990] 2 AC 562; Sachs, “Child Abduction — The Hague Convention and Recent Case-Law” [1993] Fam Law 530; Halsbury’s Laws of England, vol 5(2) para 986–7, 989; Friedrich v Friedrich [1993] USCA6 114; 983 F 2d 1396 at 1400 (1993); Rydder v Rydder [1995] USCA8 258; 49 F 3d 369 (1995).

[149] Australian Treaty Series 1976 No 10.

[150] Australian Treaty Series 1975, No 16 and 1987, No 6.

[151] There was evidence before the Court of a translation subsequently provided.

[152] Hereafter referred to as Australian Medical Council v Wilson.

[153] Section 9(1A) of the RDA states: “Where:

(a) a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstance of the case; and

(b) the other person does not or cannot comply with the term, condition or requirement; and

(c) the requirement to comply has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as the other person, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life;

the act of requiring such compliance is to be treated, for the purposes of this part, as an act involving a distinction based on, or an act done by reason of, the other person’s race, colour, descent or national or ethnic origin”.

[154] Waters v Public Transport Corporation [1991] HCA 49; (1992) 173 CLR 349 at 357–359 per Mason CJ and Gaudron J, at 382 per Deane J.

[155] Australian Iron & Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165 per Brennan and Dawson JJ at 170–1 and 184 respectively, McHugh J, Dawson and Toohey JJ in Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349; Commonwealth v Human Rights and Equal Opportunity Commission and Michael Dopking (1995) 133 ALR 629, discussed at (1996) 137 ALR at 662.

[156] Meron T, “The Meaning and Reach of the International Convention on the Elimination of all Forms of Racial Discrimination” (1985) 79 Am J Int Law 283.

[157] (1996) 137 ALR at 662.

[158] (1995) EOC 92–759 at 78, 634.

[159] (1988) 49 DLR (4th) 426, discussed at (1996) 137 ALR at 665.

[160] [1971] UKHL 3; (1972) AC 342.

[161] Ibid, at 365, discussed at (1996) 137 ALR at 681.

[162] (1996) 137 ALR at 683.

[163] (1996) 137 ALR at 669–671.

[164] (1996) 137 ALR at 686–688.

[165] (1996) 137 ALR at 688.

[166] (1996) 137 ALR at 667–668.

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