Australian Year Book of International Law
Ben Olbourne,[**] Donald R Rothwell,[***]
and Tim Stephen[****]
Morrison v Peacock
 HCA 44; 192 ALR 173
High Court of Australia
This case addressed the interpretation of the Marine Pollution Act 1987 (NSW) (the Act) with particular reference to the word ‘damage’ and the relationship of that term to the provisions of the 1973 International Convention for the Prevention of Pollution from Ships (MARPOL) upon which the Act was based. The facts concerned the vessel Sitka II, which while unloading cargo at Lord Howe Island, had a hydraulic hose rupture resulting in the escape of oil. A prosecution was commenced under the Act before the Land and Environment Court (NSW) at which time the respondents contended that the escape of the oil was as a result of unintentional ‘damage’ for which there existed a defence.
The Court noted that the Act was based upon MARPOL, and was in accordance with Commonwealth/state agreements; in this instance New South Wales had given effect to the Convention under the law of that state. It was clear that the term ‘damage’ under the Act was to be given the same meaning as it had under the Convention. Also of relevance was the 1969 Vienna Convention on the Law of Treaties, article 31. Here the Court noted the importance of giving primacy to the text of the Convention:
The need to give the text primacy in interpretation results from the tendency of multilateral treaties to be the product of compromises by the parties to such treaties. However, treaties should be interpreted in a more liberal manner than that ordinarily adopted by a court construing exclusively domestic legislation.
It was also submitted that in this instance an understanding of MARPOL was gained from a consideration of the 1954 International Convention for the Prevention of Pollution of the Sea by Oil (OILPOL) and its equivalent provisions exempting a person from liability in the case of an escape of oil.
In a joint judgment, the Court noted the distinction between the natural meaning of the word ‘damage’ and the phrase ‘damage to’ as it appears in the context of MARPOL. The history of the development of international marine pollution law was noted from the adoption of OILPOL in 1958 through to MARPOL in 1973, as were parallel developments in the law of the sea. In allowing the appeal, the Court noted that the emphasis in MARPOL was upon the discharge of oil in circumstances when permitted under the regulations ‘where oil escapes through some sudden change in the condition of the ship that could not be foreseen and avoided’.’ For these reasons the appeal was allowed.
Western Australia v Ward & Ors; Attorney-General (NT) v Ward & Ors;
Ningarmara & Ors v Northern Territory of Australia & Ors;
Ward & Ors v Crosswalk Pty Ltd & Ors
 HCA 28; (2002) 191 ALR 1
High Court of Australia
The principal issues in these jointly heard cases were whether there could be partial extinguishment of native title rights and interests, and what principles were to be adopted for determining whether such rights and interests had been extinguished in whole or in part. The High Court’s conclusion was that there could be partial extinguishment, but whether this would be so in any particular case, and to what extent, could only be determined by reference to the particular dealings with the land in respect of which a determination of native title was sought.
Considerations of public international law played no significant role in the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ, and only a minor role in two of the other judgments, those of Kirby J and Callinan J (with whom McHugh J agreed, save for one not presently relevant point). However, one sees in the judgments of Kirby J and Callinan J very different views as to the potential influence of international law on Australian municipal law.
Justice Kirby held that the provisions of the Native Title Act 1993 (Cth) (NTA), the primary subject of the proceedings, should, where ambiguous, be given ‘a construction consistent with the principles of fundamental human rights, as expressed in international law’.’ Of particular relevance in the present proceedings were ‘those principles … which forbid adverse discrimination for reasons of race’ as well as ‘the international law that protects the interests of indigenous peoples, who are often specifically vulnerable to racial and other forms of discrimination’.’ Contrary to the judges contributing to the joint judgment, who held that only those elements of Aboriginal cultural knowledge that were directly tied to the use of the land were protected from extinguishment by the NTA, Kirby J held that that all such Aboriginal cultural knowledge was to be regarded as sufficiently connected to the land. This construction, he said, was supported, inter alia, by Australia’s ratification of international instruments that expressly provide for the protection of fundamental human rights. Such rights, he continued, included the rights of indigenous people to have ‘full ownership, control and protection of their cultural and intellectual property’ and
to practise and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artifacts, designs, ceremonies, technologies and visual and performing arts and literature, as well as the right to the restitution of cultural, intellectual, religious and spiritual property taken without their free and informed consent or in violation of their laws, traditions and customs.
In stark contrast to Kirby J’s comments were those of Callinan J. Indeed, the forcefulness of Callinan J’s comments is all the more striking given the complete absence of comment by most of the other members of the Court. Justice Callinan stated that his comments were principally in response to submissions made by an intervener in the proceedings, the Human Rights and Equal Opportunity Commission (HREOC) and, although it was strictly unnecessary to respond to those submissions, he wanted to ensure that his ‘silence on these matters’ was not taken ‘as acquiescence’.
HREOC made submissions on the relevance of international law for the construction of statutes, for the elucidation of the common law, and for the interpretation of the Australian Constitution. Justice Callinan rejected each of these submissions. As to the first, HREOC had argued that courts should construe domestic statutes to accord with international obligations not only in cases of ambiguity but wherever possible. Justice Callinan’s response was forthright:
The task of this Court and other courts in Australia is to give effect to the will of Australian Parliaments as manifested in legislation. Courts may not flout the will of Australia’s democratic representatives simply because they believe that, all things considered, the legislation would “be better” if it were read to cohere with the mass of (often ambiguous) international obligations and instruments. Consistency with, and subscription to, our international obligations are matters for Parliament and the Executive, who are in a better position to answer to the international community than tenured judges. Where legislation is not genuinely ambiguous, there is no warrant for adopting an artificial presumption as the basis for, in effect, rewriting it.
HREOC’s second submission was that the common law was obliged to develop in accordance with international law. Again, Callinan J’s response was straight to the point:
This submission should also be rejected. There is no requirement for the common law to develop in accordance with international law. While international law may occasionally, perhaps very occasionally, assist in determining the content of the common law, that is the limit of its use. The proposition that international law – itself often vague and conflicting – demands that the common law of Australia be moulded in a particular way, apparently without regard for precedent, the conditions in this country, or the fact that governments and individuals may have reasonably relied on the law as it stands is unacceptable. To embrace it would be to deny that Australian courts have long shaped the law for the peculiar circumstances of this country, without the need to resort to shifting prescriptions often designed for different times, places and circumstances.
It is no answer to say that justice and human rights are an aspiration of our legal system. Of course they are. But justice and some human rights may be contestable concepts, capable of being interpreted differently at different times, and capable of eliciting different views from reasonable people. It is hardly self-evident that international law’s pronouncements on these matters should be treated as final.
Justice Callinan then considered the third, and what he regarded as the ‘most adventurous’ submission, namely that the Australian Constitution should be interpreted in accordance with principles of international law. Justice Callinan left no doubt as to his views as to the merits of this argument:
Many things could be said about this submission, but I will confine myself to three. First, if HREOC is claiming that there is a constitutional implication that prevents the legislature and Executive from acting in violation of international law, then it is flatly contrary to authority and principle. The provisions of the Constitution are not to be read in conformity with international law. It is an anachronistic error to believe that the Constitution, which was drafted and adopted by the people of the colonies well before international bodies such as the United Nations came into existence, should be regarded as speaking to the international community. The Constitution is our fundamental law, not a collection of principles amounting to the rights of man, to be read and approved by people and institutions elsewhere. The approbation of nations does not give our Constitution any force, nor does its absence deny it effect. Such a consideration should, therefore, have no part to play in interpreting our basic law.
Secondly, if HREOC is claiming that there is a constitutional implication preventing the Executive alone from acting in breach of international law, it is also mistaken. The scope of the Commonwealth’s executive power is generally coterminous with the scope of its legislative powers. It has been recognised that the Commonwealth, in reliance on the external affairs power, can legislate in a manner that is inconsistent with our international obligations. It can, for example, give force to treaties that would be void at international law. Once that is accepted, it follows that the Executive cannot be bound by international law in the manner that HREOC asserts. If the ‘rule of law’ allows legislative power to make laws in breach of international law, how can the executive power – which generally encompasses matters that could validly be effected by legislation – be fettered? To that there seems no satisfactory answer.
Finally, the submission by HREOC would undermine the long settled principle that provisions of an international treaty do not form part of Australian law unless validly incorporated by statute. It has repeatedly been held that the separation of the legislative and executive arms of government necessitates that treaties be implemented domestically under statute. However, HREOC’s approach would effectively reverse that principle. By giving priority to the principles assumed by the Executive, by permitting judges to construe legislation in a way that violated the intention of Parliament, it would elevate the Executive to a position that it has never enjoyed under our Constitution. That is another reason for rejecting the submission.
Povey v Civil Aviation Safety Authority
 VSC 580
Supreme Court of Victoria
This case before the Supreme Court of Victoria was one of a number commenced against Qantas Airways and British Airways for damages arising as a result of passengers on those airlines suffering from deep vein thrombosis (DVT). The plaintiff’s claim against the Civil Aviation Safety Authority (CASA) was with respect to negligence and breach of a statutory duty and was not the subject of this proceeding. The plaintiff’s claim against Qantas and British Airways was brought pursuant to the Civil Aviation (Carriers Liability) Act 1959 (Cth), which incorporates the Warsaw Convention as amended. The effect of the Convention, as given effect to in Australian law by the Act, is that a passenger’s sole right to compensation is defined by the Convention. Article 17 of the Convention accordingly recognises liability for damage sustained as a result of an ‘accident’ on board an aircraft or in the course of embarking or disembarking. For the claim with respect to DVT to succeed against the airlines it is necessary for a plaintiff to establish that the injury occurred in the course of an international air journey and that it was the result of an accident.
The matter accordingly turned on the construction of the Warsaw Convention, and Bongiorno J noted the lack of relevant Australian authority on this point. Reference was accordingly made to relevant Australian, United States and United Kingdom authorities, which examined the operation and effect of the Convention. On the basis of these cases, the relevant provisions of the Act, and the terms of the Convention, it was considered important for the Court to adhere to rules of interpretation that provided ‘certainty and uniformity of application’. In this respect Bongiorno J referred to a passage in the joint judgment of Mason and Wilson JJ in Shipping Corporation of India Ltd v Gamlen in which the issue was the interpretation of the Hague Rules:
To say this is not to assert that we should exclude from our consideration of the rules settled by an international convention the meaning which has been consistently assigned by a national court to words and expressions commonly used in the documentation by which international trade is transacted, when the convention in seeking to regulate the rights and liabilities of parties to international trading transactions, uses those words and expressions. Nor do the principles of interpretation of an international convention exclude recourse to the antecedent municipal law of nations for the purpose of elucidating the meaning and effect of the convention and the new rules which it introduces. It would be extremely difficult to interpret the new rules as if they existed in a vacuum without taking into account antecedent municipal law and the problems which its application generated. However, in resorting to antecedent municipal law we need to recollect that it is the language of the Hague Rules that we are expounding, the antecedent law providing a background for that exposition by enabling us more readily to gauge the sense and direction of the new rules which the convention introduces.
Against this background, and mindful of the rules of treaty interpretation found in the 1969 Vienna Convention on the Law of Treaties, the Court undertook a review of the decisions of foreign courts, which had considered the Warsaw Convention. The judge paid particular attention to the decision of the Supreme Court of the United States in Air France v Saks, and to the desirability of an Australian court at first instance not too readily diverging from a decision of that Court in a matter concerning the interpretation of a treaty to which both Australia and the United States were parties.
The judge concluded that, in light of the terms of the Convention, and the decisions of foreign courts concerning it, the term ‘accident’ could in some instances be given a wider meaning so as to include action or inaction by airline staff, or by the airline itself with respect to passenger safety. Accordingly, he held that the defendants had not established that the plaintiff’s case should be struck out or terminated by judgment in their favour. However, he held that the plaintiff’s present particulars were insufficient to establish an accident as a matter of law, but granted the plaintiff leave to file further particulars.
U v U
 HCA 36; (2002) 191 ALR 289
High Court of Australia
On separation from the husband/father, a wife/mother wished to leave Australia and return to her country of origin, India and to take their daughter with her, for whom she had primary custodial responsibility. The parents made competing applications before the Family Court seeking orders as to custody, access, and the location of residence of their child. The primary decision-maker ordered that the mother was to have primary custody but that she would have to reside in Australia. That decision was upheld by the High Court.
Before the High Court, one of the many arguments made by the mother was that the courts below had failed to apply, or to give any consideration to, Australia’s international treaty obligations, particularly article 12 of the International Covenant on Civil and Political Rights, in interpreting and applying the relevant legislation. That article provides:
2. Everyone shall be free to leave any country, including his own.
3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.
The mother argued that the proper construction of the legislation required the primary judge to make an order permitting her to take the child with her to India, because to do otherwise would be to place an unacceptable restriction on her freedom to leave Australia.
Justices Gummow and Callinan, with whom Gleeson CJ, McHugh and Hayne JJ agreed, dismissed this argument. They held that ‘whatever weight should be accorded to a right of freedom of mobility of a parent, it must defer to the expressed paramount consideration, the welfare of the child if that were to be adversely affected by a movement of a parent’.
Justice Kirby (who with Gaudron J dissented as to the result) found the reference to international human rights law more compelling. He observed, as a matter of empirical fact, that the burdens of restrictions on relocation tended to fall unevenly on the custodial parent. Therefore, the principle that the welfare of the child was paramount and the importance of maintaining contact between the non-custodial parent and the child had to be balanced against the potential serious deprivations of the human rights of the custodial parent. Since women are predominantly the custodial parent, he continued, ‘[t]o take the contrary view is to entrench gendered social and economic consequences of caregiving upon women in a way that is contrary to the Convention on the Elimination of All Forms of Discrimination against Women, to which Australia is a signatory.’
Minister for Immigration and Multicultural Affairs v Khawar
 HCA 14; (2002) 187 ALR 574
High Court of Australia
The international law issues in this case arose out of an application for refugee status made by a Pakistani woman who alleged that she had been subjected to serious and prolonged violence by her husband and his family. She further alleged that although she had sought police assistance, the police had refused to intervene and this refusal was symptomatic of systematic discrimination against women on the part of the Pakistani authorities. The Refugee Review Tribunal (RRT) rejected her application on the ground that the harm she alleged was motivated by purely private non-Convention reasons, such as the fact that her marriage had been a love marriage contrary to the wishes of her husband’s family and that she had not brought a dowry to the marriage. It held that consideration of the further allegations was thereby rendered unnecessary. The High Court (Gleeson CJ, McHugh, Gummow and Kirby JJ, Callinan J dissenting) disagreed and required the matter to be returned to the RRT for further consideration.
The claims of persons seeking refugee status in Australia are determined by reference to the definition of a refugee set out in article 1A(2) of the Refugee Convention. That provision defines as a refugee any person who:
owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence … is unable or, owing to such fear, is unwilling to return to it.
Two issues relating to this definition were considered by the High Court. The simpler one was whether the applicant had identified a recognisable ‘particular social group’. The applicant had variously sought to characterise that group as, inter alia, ‘women’, ‘married women in Pakistan’, ‘married women in Pakistan without the protection of a male relative’, and ‘married women in Pakistan separated from one’s husband and without the protection of a male relative’. The majority held that this was an issue that the RRT should have addressed. Chief Justice Gleeson concluded that it would have been open to the RRT to find that ‘women in Pakistan’ are a particular social group. He held that neither the size of the group nor the degree of its internal cohesiveness would necessarily preclude such a finding. He also held that women in any society were a distinct and recognisable group that existed independently of any persecution they might suffer. Similar comments were made by McHugh and Gummow JJ, and, with some qualification, by Kirby J. Justice Callinan was of a different view. He stated: ‘To regard half of the humankind of a country, classified by their sex, as a particular social group strikes me as a somewhat unlikely proposition.’ He also doubted whether there was any sufficient ‘characteristic, attribute, activity, belief, interest or goal’ to unite the members of such a group other than the persecution they might claim to suffer.
The more complex issue was whether the failure of the Pakistani authorities to provide protection to the applicant against the harm alleged, where that harm was motivated for private reasons, could amount to persecution for the purposes of article 1A(2) of the Convention. The Court approached this question by considering the two concepts of protection and persecution. Chief Justice Gleeson held that there were two relevant senses to the term ‘protection’: the narrower was that of ‘external protection’ or the diplomatic or consular protection extended abroad by a state to its nationals; and the broader was that of ‘internal protection’ or the protection offered by a state to its nationals against violations of their fundamental rights and freedoms. Although he observed that the narrower sense was that intended by article 1A(2), the broader sense was also relevant:
an inability or unwillingness to seek diplomatic protection abroad may be explained by a failure of internal protection in the wider sense, or may be related to a possibility that seeking such protection could result in return to the place of persecution.
It therefore followed that when an applicant applied for refugee status in Australia alleging persecution, regard could properly be had to the obligations of the applicant’s state of nationality to protect the rights and freedoms of its citizens.
Chief Justice Gleeson then turned to consider the concept of persecution. He held that there was no reason why persecutory conduct could not consist of inaction, particularly where there was a duty to act. In this context, he emphasised that the applicant here had relied not just on the unwillingness or inability of the police to intervene to protect her for reason of their corruption, inefficiency, laziness or lack of resources. She had in fact alleged that the police’s refusal to act was an act of systematic discrimination that amounted to a failure of the state to discharge its responsibilities to protect women. Chief Justice Gleeson then reached the following further conclusions: first, that the concept of persecution could extend to include the combined effect of two or more actors; second, that the state or non-state status of those actors is not relevant; and third, where there are two or more actors, the requirement that persecution be for one of the reasons enumerated in the Convention can be satisfied by the motivation of any of them. His Honour then held that the applicant’s claim that the police’s failure to intervene to protect her from her husband was due to active discrimination on the part of the police and could amount to persecution within the terms of article 1A(2) and that the RRT had erred by failing to consider this point.
Justice Kirby approached the issue in substantially the same way. To tie all the elements together, he adopted the formula used previously by members of the House of Lords, ‘Persecution = Serious Harm + The Failure of State Protection’, and added that the motivation for the persecution, which had to be for one of the reasons enumerated in the Convention, could be associated with either the ‘serious harm’ or ‘the failure of state protection’.
Justices McHugh and Gummow dismissed the notion of ‘internal protection’ as being inconsistent with the history and context of article 1A(2) and as adding ‘a layer of complexity … which is an unnecessary distraction’. However, their conclusions as to the meaning of the term ‘protection’ may not, in substance, have differed greatly from those of Gleeson CJ. This can be seen in their adoption of the following proposition:
it may surely be legitimate for a person who fears non-state agents not to accept diplomatic protection outside the country as this would provide the country of origin with the possibility of lawfully returning him or her to that country. This would expose the refugee to the feared harm and therefore would make his or her unwillingness to avail of such external protection both reasonable and ‘owing to such fear’ of persecution.
As for ‘persecution’, McHugh and Gummow JJ concentrated on the element of discrimination inherent in the concept of persecution, rather than on the mere fact of failure of state intervention or on an attempt to combine the conduct of the state and non-state actors. They held that the persecution in this case, if it could be established as a matter of fact and if it could be established to have been due to one of the enumerated reasons, lay ‘in the discriminatory inactivity of state authorities in not responding to the violence of non-state actors’. They continued: ‘the harm [in this case] is related to, but not constituted by, the violence’. The failure of the RRT to make findings on this question of discriminatory treatment, along with a similar failure in respect of the particular social group alleged by the applicant, were errors that required reconsideration.
Justice Callinan held that persecution required the doing of a deliberate act; inactivity or inertia by state authorities was not sufficient. The applicant was therefore left complaining of the harm caused by her husband, which although sufficiently serious, was not for a Convention-proscribed reason. As the RRT had made the necessary findings to come to this conclusion, he held it had not made any error and its decision should be upheld.
Minister for Immigration and Multicultural Affairs v Singh
 HCA 7; (2002) 186 ALR 393
High Court of Australia
This case concerned the proper construction to be given to article 1F of the Refugee Convention, a provision that had not previously been considered by the High Court. Article 1F falls within that part of the Convention that identifies those persons to whom its protection is not to be extended. So far as was relevant to these proceedings, it provides:
The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: …
(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee.
The facts were as follows. The applicant for refugee status was a Sikh of Indian nationality. He claimed to have held a senior position in the Khalistan Liberation Force (KLF), an organisation whose objectives included the promotion of Sikh culture and religion, the eventual creation of an independent Sikh state, and preventing the oppression of Sikhs. In support of his application, the applicant said that he had been forced to leave India because the police were arresting members of the KLF and he feared that he would be subjected to torture and imprisonment if returned to India.
On being questioned about his activities in the KLF, the applicant disclosed that he had been a ‘Commander of Information’ with responsibilities for procuring information on potential ‘targets’. On one occasion, he actively participated in obtaining information about a police officer who was believed to have been responsible for torturing a KLF member. That officer was subsequently killed by KLF members. The applicant also claimed to have been involved in the movement of weapons and explosives.
The Administrative Appeals Tribunal (AAT) accepted the submission put to it that since the applicant’s criminal conduct in respect of the killing of the police officer could only be characterised as an act of revenge or retribution against the particular officer for the alleged torture of a KLF member, it could not be regarded as a political crime for the purposes of article 1F(b). The AAT further held that the political nature or otherwise of the KLF could have no relevant bearing on whether the applicant’s crime was political or not. As it was satisfied in relation to the remaining elements of article 1F(b), the AAT rejected the applicant’s claim for refugee status.
Before the High Court, the applicant raised for the first time an argument based on the wording of article 1F. He submitted that the concluding words of sub-paragraph (b), ‘prior to his admission to that country as a refugee’, had the effect that any consideration of whether the Convention did not apply to him could not be made before, or in the absence of, a finding that he was a refugee for the purposes of article 1A(2). All five judges rejected this argument. Justice Kirby held that there is nothing in the Convention that forbids consideration of the two matters at the same time or requires them to be considered in any particular order. Chief Justice Gleeson, with whom McHugh J agreed, said that the words should be read as if they said ‘putative admission … as a refugee’.
The applicant’s main contention on appeal was that the AAT had made an error of law in not considering whether his actions, although motivated in part by revenge, could nevertheless also have been motivated by political considerations and could conceivably be regarded as ‘political crimes’. The majority of the High Court (Gleeson CJ, Gaudron and Kirby JJ) agreed that the AAT had erred in this way.
Chief Justice Gleeson, whose reasons for the decision were closely mirrored by those of Gaudron J, regarded the AAT as having proceeded on the basis that there was a necessary antithesis between revenge or retribution and political action. However, he observed, this need not be so. It was a normal incident of any form of prolonged conflict, including ordinary democratic politics, that people will have scores to settle with their adversaries and that they will seek retribution for past wrongs, real or imagined. ‘Revenge,’ therefore, ‘is not the antithesis of political struggle; it is one of its most common features’. It may have been that the applicant’s acts were in some way done in support of the KLF’s objective of preventing the oppression of Sikhs. Whether or not the applicant’s conduct could be characterised in this way, and whether it would as a result amount to a ‘political crime’, were matters that the applicant had put in issue but which the AAT had regarded as unnecessary for it to decide. The AAT’s conclusion that the applicant’s crimes were to be regarded as non-political might turn out to be correct, Gleeson CJ said, but it had reached it by means of an ‘impermissible short-cut’. Justice Kirby likewise concluded that the AAT adopted an ‘over-simplistic view’ and had accepted ‘an erroneous dichotomy between crimes of revenge and “political crimes”’. The case had to be remitted for further consideration.
Like the majority, Callinan J accepted the proposition that a crime motivated in part by a desire for revenge could conceivably be regarded as a political crime. However, he was of the view that ‘murder, especially premeditated murder, or its planning or furtherance, will practically never be a political crime’. In light of the evidence before it that the applicant was aware that the consequence of his activities would be the unlawful killing of the police officer, Callinan J held that the AAT was entitled to conclude that he had committed a serious non-political crime.
It was inevitable in determining the issues that arose for dispute in this case that some consideration would be given to identifying what was meant by the term ‘non-political crime’. Most of the judges noted the analogies that were to be drawn with extradition law and the extensive jurisprudence relating to the operation of the ‘political offence exception’, while at the same time recognising that caution had to be exercised to reflect the different context in which the term arose in article 1F of the Refugee Convention.
Chief Justice Gleeson commented only briefly. He stated that while there is ‘no bright line’ between crimes that are political and those that are not, ‘there must be a sufficiently close connection between the criminal act and some objective identifiable as political to warrant its characterisation as a political act’.
Justice Gaudron counselled against placing limits on the notion of a political crime by reference to descriptions such as ‘atrocities’, ‘terrorist crimes’ or ‘unacceptable means’. These, she said, were imprecise and involved over-simplification, and, moreover, they found no expression in the text of the Refugee Convention. In light of the text of the Convention, Gaudron J observed that ‘there is no reason why the political purpose should be the sole or, even, the dominant purpose of the crime, so long as it is a significant purpose’, nor is it necessary that the criminal acts be directed against the government of the day. Accordingly, she held that a crime would be a political crime ‘if a significant purpose of the act or acts involved is to alter the practices or policies of those who exercise power or political influence in the country in which the crime is committed’.
Justice Kirby’s consideration of the meaning of the term was much more extensive and cannot be done justice to in these pages. It will have to suffice to note that he did not attempt to set out a precise definition of what constitutes a political crime, as Lord Lloyd of Berwick had done in T v Home Secretary. Instead, he set out the following list of principles (which he recognised to be non-exhaustive) as guidance as to the meaning of ‘serious non-political crimes’ in article 1F(b) of the Convention:
(a) To characterise the crime as “political” or “non-political”, it is necessary to consider all of the facts of the case in the context, and for the purposes, of the Convention. There is no bright line for distinguishing “non-political” from “political” crimes;
(b) “Political” crimes are not confined to crimes that fall within the purely political offences such as treason, sedition and the like. “Non-political crimes” take their meaning accordingly;
(c) Depending on the circumstances, murder may be a “political crime” if it is otherwise so characterised;
(d) The ascertainment of the object or purpose of the crime is relevant to deciding whether it is “political” or “non-political” in character. To be “political” it must, in some appropriately close way, be linked with the purpose of changing the political environment, commonly the government, by the commission of the crime;
(e) Whilst purely personal grudges or motivations for a crime may sometimes demand that the crime be classified as personal (and “non-political” for that reason), revenge and personal hatred are not, as such, inconsistent with political action. On the contrary, they may be its expression in a particular case;
(f) In deciding whether a crime is “political” or “non-political” it will sometimes be relevant to consider the weapons and means used; whether the “target” of the crime is a public official or a government agent as distinct from unarmed civilians chosen indiscriminately; and whether the crime is proportionate to the political end propounded. If it is excessive and disproportionate, it will be easier to infer that its true character is “non-political”, that is, done for the satisfaction of some other and different, possibly entirely personal (“non-political”) purpose. It will usually be necessary to examine the alleged objectives of any organisation involved and the applicant’s connection, if any, with that organisation; and
(g) It will also be appropriate to read the exception for “serious non-political crimes” in the context of the burden that is placed by the Convention upon countries of refuge and the exceptions that are provided in the specified cases, including by Art 1F, where, in the particular case, that burden would be intolerable. The serious crimes mentioned in the exclusions in Art 1F are such that their extreme character is accepted as exempting the country of refuge from the protection obligations stated in the Convention, however much otherwise the applicant qualifies for recognition as a “refugee”.
Following his statement, which was set out above, that murder will almost never be a political crime, Callinan J proposed the following definition:
A crime, in my opinion, will be a political crime if, first, it is done genuinely and honestly for political purposes, that is in order to change or influence an oppressive government or its policies, and, secondly, the means employed, although of a criminal nature according to the law of the country in which they are employed, are reasonably, in all of the circumstances, adapted to that purpose. Circumstances which will be relevant to the question of reasonableness or otherwise are the nature and extent of the persecution, discrimination or oppression suffered by an applicant or a group to which he or she belongs before the commission of the crime; the availability and efficacy of measures to redress or punish such persecution, discrimination or oppression; the extent to which the applicant sought first to invoke or use such measures before embarking on the crime; the means available to the applicant or group to avoid persecution, discrimination or oppression; the nature of the government or its policies that the applicant wishes to influence or change; the process by which that government achieved power; the aims of, and means employed by any organisation to which the applicant belonged in furtherance of which the applicant claimed to be acting; the existence or otherwise of a free press in the applicant’s country; the history, so far as it can be reliably ascertained, of dissension in the applicant’s country; the way in which both the polity from which the applicant has departed and the polity of the country in which the applicant has sought refuge regard and punish the crime of the applicant, and any crime of his or her “targets” said to justify the former’s crime; the respective roles of the government and the group of which the applicant is a member in the perpetuation of cycles of violence; and, the risk of indiscriminate harm to members of the public. No one of these need necessarily be decisive, except perhaps the last in some cases. As to that, its absence does not mean that the crime will necessarily be a political crime, although when it is present it will almost always be decisive as a ground of exclusion.
V872/00A v Minister for Immigration and Multicultural Affairs;
V900/00A v MIMA; V845/00A v MIMA; V856/00A v MIMA;
V903/00A v MIMA
Full Court of the Federal Court of Australia
 FCAFC 185; (2002) 190 ALR 268
Black CJ, Hill and Tamberlin JJ
These appeals were heard together as they raised a common question as to the extent of Australia’s obligations under article 33(1) of the Refugee Convention. That provision reads as follows:
No Contracting State shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
The common question was whether Australia would be acting consistently with its non-refoulement obligation were it to return an applicant for refugee status to a safe third state in circumstances where that person, although lacking a legally enforceable right of entry, was likely to be allowed entry as a matter of practical reality.
The appellants in each case were Iraqi nationals who claimed they feared persecution in Iraq by reasons of their political opinions, religious beliefs and perhaps membership of a particular social group. They had each resided in Syria, for periods ranging from 29 days to 15 years, before making their way to Australia where they applied for refugee status. The RRT found that the position of Iraqis in Syria was that Iraqis could enter Syria if sponsored by a family member or friend, and could remain there indefinitely; that Iraqis had access in Syria to public services and means for supporting themselves; that Iraqis did not face persecution in Syria; and that there was no real chance of being returned to Iraq by the Syrian authorities. The RRT found that each of the appellants had previously lawfully entered Syria and had contacts there who could sponsor their re-entry. The RRT therefore concluded, as a matter of practical reality and fact, that effective protection was available to the appellants in Syria.
The appellants submitted that the RRT had erred in failing to determine whether they had a legally enforceable right to re-enter and remain in Syria. They contended that their ability to re-enter and remain in Syria was subject to the discretion of the Syrian authorities and that this was not sufficient. The Full Court of the Federal Court rejected this submission. Justice Tamberlin observed that article 33 ‘speaks in factual terms’ in the context of an assessment whether the third state would offer the person effective protection. Since this assessment required consideration of whether the person faced a real risk of persecution in the third state or of refoulement to the state of nationality where there was a real risk of persecution, Tamberlin J could see ‘no reason in principle why the standard to be applied in relation to each of the factors to be considered, namely, ability to access, ability to remain and an absence of a real risk of refoulement’ should not be the same. Justice Tamberlin therefore held that the appropriate question to ask in relation to securing access to a safe third country is ‘whether there is any real risk that the applicant would not be able to secure access to that country so as to attract its protection’. This would be, he said, ‘essentially a question of practical reality and fact’. Chief Justice Black and Hill J held they were constrained by previous authority to come to the same conclusion.
Cabal v United Mexican States (No 3)
 FCA 1204; 186 ALR 188
Federal Court of Australia
This case was one of a series concerning an extradition request by Mexico for the return of Cabal and Pasini in relation to breaches of Mexico’s Law of Credit Institutions in connection with the affairs of a bank called Banco Union, of which Cabal was chairman. The applicants raised a number of matters before French J, including the constitutional validity of the Extradition Act 1988 (Cth), and irregularities concerning the warrants issued for arrest in Australia. Certain objections were also raised as to the extradition being based on political motives.
As to the claims directly based on extradition, French J reviewed the relevant terms of the 1990 Treaty on Extradition between Australia and Mexico and the Extradition (United Mexican States) Regulations 1991 (Cth) adopted under the Extradition Act. He noted that much had been made in the case of the alleged inadequacies of the Mexican judicial system and its susceptibility to political influence. However, he noted that the ‘general functioning of the judicial system of an extradition country is not a matter for this court’. These were matters that would have been taken into account by the executive government when entering into an extradition treaty. While French J accepted that the government and judicial system of a requesting country may have changed since the extradition treaty was entered into, ‘the continuance of the Treaty and ultimate surrender decisions are still matters for the executive and not for the courts’.
As to the argument that the extradition had in this instance been sought because of the political opinions of the applicants, it was observed that under the Act it is sufficient to make out ‘substantial grounds’ for believing this to be the case. It was accepted that it was not necessary to establish that surrender be sought solely on the ground of political opinion in order to make out the objection under the Extradition Act, and accordingly it was necessary to make a judgment about the multiple purposes of the requesting country. While noting that each case would require individual and careful evaluation, it was conceded:
… the extreme case of a political figure with a history of recent opposition to the government of the requesting country, whose surrender is sought for offences at the lower end of the scale of extradition offences, in a departure from that country’s usual practice, may support the assessment that the surrender is actually sought for the purpose of prosecuting or punishing the person on account of political opinions.
In seeking to make an argument that extradition was being sought for a political purpose, French J stressed that the onus was upon the applicant and would require a ‘weighty’ case to support the contention. He concluded that the fact there may have been political controversy in Mexico about the laying of charges, in this instance, or that politicians or political figures may have made statements about the case, does not establish a basis for an extradition objection. In a clear reference to the case of Mr Christopher Skase and Australia’s attempts to seek his extradition from Spain during the 1990s, French J noted:
Recent experience in Australia demonstrates that high profile extradition cases involving attempts to return alleged offenders to this country can enter the sphere of political debate and controversy. This is particularly so where very large sums of money are said to be involved. There is no reason to expect that such cases in other countries may not give rise to similar debate and sometimes public and political controversy. That is not a new phenomenon.
The judge concluded that in order to make out an extradition objection under the Act, it would be necessary to show:
1. a well-defined political opinion, at the time of the request for surrender, is or has been held by the applicant;
2. the content of the history of expression of, or action upon the asserted political opinion by the applicant is such to be of demonstrable concern to the requesting government and to form a credible basis of that government’s desire to prosecute or punish the applicant; and
3. there is material of probative value on which the inference is open that the crucial decisions underlying the request for extradition by the requesting government have been taken because of the applicant’s political opinions.
Upon a careful review of the evidence in this case, French J concluded that there were no grounds in which it could be said that in this instance the request for extradition had been made for the purpose of prosecuting or punishing the applicants for their political opinions. The order for extradition was confirmed and the application dismissed.
Oates v Attorney-General (Commonwealth)
 FCA 347; 189 ALR 216
Federal Court of Australia
O’Loughlin, Whitlam, Conti JJ
This case concerned a challenge to an extradition request by Australia to Poland. It was argued that the offences with which the applicant was charged were outside the terms of the relevant extradition treaty, being found in the 1934 Treaty between the United Kingdom of Great Britain and Northern Ireland and the Republic of Poland for the Surrender of Fugitive Criminals. At first instance, Lindgren J dismissed the application and the applicant appealed to the Full Federal Court.
In their majority judgment, O’Loughlin and Whitlam JJ reviewed the history of extradition legislation in Australia from the Extradition Act 1870 (Imperial), Extradition Act 1903 (Cth), Extradition (Foreign States) Act 1966, to the current Extradition Act 1988 (Cth). The interaction of the Great Britain-Poland Extradition Treaty with those Acts, was also considered. They noted that the operation of the Extradition Act 1988 may be qualified to give effect to particular extradition treaties, especially with respect to the definition of ‘extradition offence’.
Attention was given to the distinction in the Act between the principal objects of the Act, and the capacity of Australia to request a surrender of a person from a country other than New Zealand. In this light, it was concluded that section 40 of the Act ‘plainly assumes that the executive power of the Commonwealth to request extradition is entirely unconfined and not subject to any gloss lurking in an extradition treaty’.
Having reached this conclusion as to Australia’s capacity to make an extradition request under the Act, in the view of the majority the 1934 Extradition Treaty only had marginal significance. As to how Poland viewed Australia’s extradition request this was a matter to be determined by Polish authorities ‘according to Polish law’. In dissent, Conti J took a narrower view of section 40 of the Extradition Act and concluded that the history of extradition legislation in Australia when looked at in conjunction with the Treaty had operated so as to displace the executive power of the Commonwealth to request extradition.
R v Hong Phuc Truong
 VSCA 27
Court of Appeal – Supreme Court of Victoria
Winneke P, Ormiston and Buchanan JJA
This application for leave to appeal against convictions of kidnapping and murder sought to raise grounds not addressed at trial, but which went to the failure of the prosecution to comply with the requirements of the Extradition Act 1988 (Cth) resulting in, it was argued, a miscarriage of justice. The principal argument related to the rule of speciality and whether the surrender by one country of a person pursuant to an extradition request confined the requesting state to prosecuting only for the offences identified at the time of extradition.
In the present case, the applicant was extradited to Australia from the United Kingdom on charges of conspiracy to kidnap and conspiracy to murder, notwithstanding that the substantive charges of kidnapping and murder were also the subject of Australia’s extradition request to the United Kingdom. The applicant was tried and convicted on the substantive charges and sentenced to a total period of 23 years 8 months before being eligible for parole. The significant distinction between the conspiracy charges and those of actually committing kidnap and murder kidnap was that in the case of conspiracy there was no requirement to prove the actual commission of the act of kidnap or murder.
The leading judgment was delivered by Ormiston JA, with whom Winneke P and Buchanan JA agreed. He gave an exhaustive summary of the facts and of Australia’s extradition request to the United Kingdom. An important aspect of the case was that the dual criminality certificate issued in the United Kingdom and acted upon by the Metropolitan Magistrate under the Extradition Act (UK) listed a schedule of four charges, including conspiracy to murder, conspiracy to kidnap, conspiracy to blackmail, and conspiracy to import a controlled drug.
The principal issue was identified as being the interpretation of the principle of speciality in the form it had been adopted in the Extradition Act 1988 (Cth), section 42, and whether this precluded the Crown from bringing counts of kidnapping and murder against the applicant when he had been surrendered for charges of conspiracy to kidnap and murder. To that end, it was necessary to consider whether a narrow or wide application of section 42 was appropriate, and also ‘if speciality be a general principle of international law which is intended to be reflected in the Australian Act, then does not the understood content of that principle reflect on the meaning of the section?’. Justice Ormiston warned against too narrow an interpretation of the Act, noting that:
If one takes too narrow and technical approach, then it will be open, in every case in which an accused has been surrendered to Australia pursuant to some extradition arrangement or the other, to claim that the offence in respect of which he was surrendered was different in kind, by reference to its constituent elements, from that which is the subject of the presentment or indictment, or alternatively that no other offence can come within the second part of the restriction in sub-para. (i) of s. 42 (a) in that the conduct constituting the relevant offence was inherently different by definition from that for which an accused is later prosecuted.
Justice Ormiston then considered the terms of the Extradition Act 1988 (Cth), noting that it should be assumed that the language of the Act was chosen to achieve compliance with Australia’s obligations under extradition treaties. He then undertook a review of the principle of speciality in light of the decisions of Australian and foreign courts, and the writings of publicists. The history of extradition legislation in Australia was also considered. In concluding this analysis, Ormiston JA was of the view that ‘notwithstanding the broader statements of some of the text writers, there cannot be said to be any uniform rule, whether of international law or municipal law, embodying the principle of speciality’.
Justice Ormiston concluded that the Extradition Act 1988 (Cth), section 42, should be afforded a broad interpretation so as to reflect a wider range of offences so that while there must be a primary extraditable offence, there remains a power to charge for different offences providing they are based on the same conduct. Such an approach also reflected the need for the Act to be construed in light of the ‘complex and varied procedure for extradition between Australia and the rest of the world’ in which applications will be heard by courts and tribunals that have little or no familiarity with Australian law, the common law, and some criminal law concepts expressed in different terms. It was therefore concluded that in construing the Extradition Act 1988 (Cth), section 42:
one is concerned only with the manner in which the allegation is made and the acts and omissions which go to make up the allegation, not those which go to make up the constituent elements of the specified offence. That makes proper allowance for the variety of ways in which these allegations are made and the variety of documents which must be put forward to governments around the world to support claims for extradition.
On these grounds the Court dismissed the appeal and held the Crown was entitled to have the applicant tried for the offences of kidnapping and murder.
The ‘Volga’ Case (Russian Federation v Australia)
International Tribunal for the Law of the Sea
Case No 11 (23 December 2002)
In early December 2002 the Russian Federation commenced proceedings against Australia in the International Tribunal for the Law of the Sea (ITLOS) seeking the release of the Volga, a Russian-flagged long-line fishing vessel detained by Australian authorities for illegal fishing in the Australian Exclusive Economic Zone (AEEZ) surrounding Heard and McDonald Islands in the Southern Ocean. Russia relied on article 292 of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) which gives ITLOS compulsory jurisdiction over disputes concerning the prompt release of such vessels.
The Volga was arrested by Australian authorities on 7 February 2002 whilst illegally fishing for Patagonian toothfish (Dissostichus eleginoides) in the AEEZ. This was an act of illegal, unregulated and unreported (IUU) fishing in the Southern Ocean contrary to the provisions of Australian law and the 1980 Convention for the Conservation of Antarctic Marine Living Resources (CCAMLR). Following boarding, the Master of the Volga was served with a notice pursuant to the Fisheries Management Act 1991 (Cth) (the FMA) stating that the vessel was boarded for the purpose of ascertaining whether it had been engaged in illegal fishing, that the boarding party had determined that it had been so engaged and that the Volga would therefore be escorted to an Australian port. The Volga was escorted to Fremantle and detained. A notice of seizure was served on the Master by an Australian Fisheries Management Authority (AFMA) officer under FMA, section 106C stating that the vessel and its equipment and catch had been seized and would be forfeited unless a written claim in English was made to AFMA within 30 days. The on-board catch of 131 tonnes of toothfish and 21 tonnes of bait was seized and later sold for $A1.93 million, and the proceeds held in trust. Forfeiture proceedings are ongoing.
Australia set a bond of approximately $A3.33 million for the release of the Volga. This comprised:
• approximately $A1.92 million representing the agreed value of the Volga together with the fuel, lubricants and fishing equipment on board;
• approximately $A0.42 million representing an amount for potential fines against the three crew members; and
• $A1 million for the guarantee of non-repetition of IUU fishing by the Volga as monitored by the Vessel Monitoring System (VMS). Effectively, this amount represented a ‘good-behaviour bond’ to be refunded on the conclusion of forfeiture proceedings provided that the Volga did not enter the AEEZ without permission in the interim.
In addition Australia refused to release the vessel unless information was provided as to:
• the ultimate beneficial owners of the Volga (including information as to any parent company to Olbers Company Limited, the company incorporated in Russia that owns the Volga);
• the names and nationalities of directors of Olbers Company Limited and any parent company;
• the name, nationality and location of the manager(s) of the Volga’s operations;
• the insurers of the vessel; and
• the financiers of the vessel (if any).
On 6 March 2002, three crew members (the chief mate, the fishing master and the fishing pilot, all Spanish citizens), were charged in the Court of Petty Sessions of Western Australia under the FMA, section 100, which provides that it is an offence to use a foreign boat for commercial fishing unless there is in force a foreign fishing licence authorising the use of the boat at that place. The master, a Russian national, was not charged before he died on 25 February 2002. The three crew members were granted bail on 6 March 2002 on a number of conditions, including that they each deposit amounts of $A75,000 and that they not leave Perth. On 23 March 2002 the Volga’s owner deposited these amounts. The crew applied for variation of their bail conditions, and on 30 May 2002 they successfully obtained an order permitting their return to Spain pending the hearing of their cases. This order was appealed to the Supreme Court of Western Australia which on 14 June 2002, varied the bail conditions, increasing the deposit required to $A275,000 for each crew member. In turn the three crew were successful in their appeal against this order to the Full Court of the Supreme Court of Western Australia, which on 16 December restored the original bail amounts and varied the conditions of bail to permit the crew members to return to Spain. These conditions were agreed to and the crew left Australia on 20 December 2002.
On 2 December 2002, the Russian Federation filed an application against Australia in the ITLOS seeking the release of the Volga and the three crew members. Following oral submissions from both parties on 12-13 December, ITLOS handed down its judgment on 23 December 2002. The Tribunal held by 19 votes to two that: (a) Australia did not comply with the provisions of UNCLOS for the prompt release of the Volga or its crew on the posting of a reasonable bond or other financial security; and that (b) Australia must promptly release the Volga on the posting of a bank guarantee of $1.92 million. It should be noted that because it was unnecessary for ITLOS to consider the bond set for the release of the Volga’s crew, this note does not address the parties’ arguments on the issue in any detail.
Russia alleged that Australia failed to comply with UNCLOS article 73(2) by setting a bond that was unreasonable and by imposing impermissible conditions for the release of the Volga. There were therefore two questions before ITLOS. The first, and main question, was the reasonableness of the bond set by Australia. That question turned on two issues: (a) the relevance of various factors in assessing the reasonableness of the bond; and (b) the weight to be accorded to those factors found relevant. The second question for ITLOS to decide was whether Australia could, consistent with article 73, set non-financial conditions for release of the Volga, such as the carriage of a VMS together with the $A1 million good-behaviour bond to be forfeited if VMS data revealed that on release the Volga had entered the AEEZ without authorisation.
Russia submitted that in determining whether a bond was reasonable a balance had to be struck between the interests of the coastal state in ensuring compliance with its laws and the interests of the flag state in having the vessels which fly its flag (and their crew) released from detention promptly on the payment of a reasonable bond. In its Memorial, Russia argued that what is reasonable will depend upon the circumstances of the case and that four matters in the Volga Case were of particular relevance to assessing the reasonableness of the bond:
(a) the proceeds of the catch: Relying on the Monte Confurco Case it was said that this amount should be deducted from any bond set by ITLOS, which exceeded the total proceeds (namely $A1.93 million).
(b) the gravity of the offences alleged and the penalties: Russia argued, inter alia, that it was unreasonable to set a bond on the basis of maximum possible fines against the crew rather than the likely fines to be imposed.
(c) humanitarian considerations: Namely the discernible psychological effects on the crew as a consequence of prolonged confinement in Australia.
(d) the circumstances in which the Volga was seized: Russia argued that the Volga was not properly arrested by Australia pursuant to UNCLOS article 111, which provides coastal states with the right of hot pursuit.
In its Statement in Response, Australia noted that the purpose of a bond ‘is to guarantee that in the worst-case scenario the detaining state is no worse off by the release of the vessel’. It was agreed that whether a bond is reasonable will depend upon the circumstances of the case. However, it was said that the circumstances should not be viewed narrowly. In this case, it was argued, relevant factors included the value of the detained vessel and equipment, the gravity of offences as reflected in potential penalties, international concern over IUU fishing for toothfish, and compliance with Australian laws and international obligations pending the completion of domestic proceedings. Australia strongly emphasised the last two factors, pointing out that IUU fishing threatens the viability of toothfish and by-catch species such as seabirds that are snared on the long-lines set by IUU vessels. In oral submissions, counsel for Australia repeatedly noted that the Volga Case involved systematic criminal activity. It was alleged that the Volga was a member of a fleet of seven vessels ‘operated as part of a substantial trans-national criminal enterprise designed to plunder the protected and endangered resources of the Southern Ocean’. The evidence of this was strong and was neither admitted nor contested by Russia.
In addition, Australia argued that two of the matters relied on by Russia were irrelevant namely, the value of the catch seized and the alleged breach of article 111. In relation to the value of the catch, Australia argued that notwithstanding the decision in the Monte Confurco Case, the proceeds of the seized toothfish was irrelevant because both the vessel and the catch were entitled to be forfeited if the allegations of illegal fishing were proved in domestic proceedings. As counsel for Australia put the argument by analogy, a burglar would not be allowed to deposit his stolen property as bail in criminal proceedings against him for the theft.
Neither the jurisdiction of ITLOS nor the admissibility of Russia’s application were contested by Australia and so in its judgment the Tribunal turned to the two main questions: the reasonableness of the bond, and the permissibility of the non-financial conditions, set by Australia for the release of the Volga. Before addressing these questions, the Tribunal stated (in just three paragraphs) some guiding principles that it derived from two of its prompt release cases. ITLOS noted that in the Camouco Case it had set out a number of factors relevant to assessing the reasonableness of bonds, including the gravity of alleged offences, possible penalties under domestic law of the detaining state, the value of the vessel detained and the cargo seized and the amount and form of bond imposed by the detaining state. It also noted that in the Monte Confurco Case it had found that this list was not exhaustive and that it did not intend to identify ‘rigid rules as to the exact weight to be attached to each of them’. Most critically ITLOS then quoted an earlier passage from the Monte Confurco, where it had held that articles 292 and 73 of UNCLOS were designed to balance the interests of flag states in having their vessels and crews released promptly with the interests of coastal states detaining such vessels in securing the appearance of the Master in its court and the payment of fines. This balancing act, which focused narrowly on specific coastal and flag-state interests, formed the framework of ITLOS’ decision in the Volga Case.
Accordingly, when the Tribunal considered the first relevant factor, the alleged offences against Australian law, the Tribunal held that no direct weight was to be placed on the serious problem of IUU fishing in the CCAMLR area. While ITLOS said that it ‘understands the international concerns about [IUU] fishing and appreciates the objectives behind the measures taken by States, including the States Parties to CCAMLR’ it noted that the task set for the Tribunal under article 292 was to decide whether the bond set by Australia was reasonable and that it was only by reference to possible penalties for the alleged offences that ITLOS could determine their gravity. The Tribunal therefore appears to have accorded very little weight to the very serious problem of IUU fishing, together with the uncontested evidence that the Volga was part of a fleet of vessels systematically violating Australian fisheries laws and CCAMLR conservation measures.
In dissent, Judge Anderson noted that while he dissented on one issue (namely the permissibility of detaining states imposing non-financial conditions when setting a bond) the willingness of the Tribunal to express understanding and appreciation of international concerns over IUU fishing in the CCAMLR area marked a positive development in the Tribunal’s prompt release jurisprudence. Nonetheless, Judge Anderson did conclude that coastal state duties under article 61 to conserve the marine living resources of its EEZ together with the obligations of states parties to CCAMLR to protect and preserve the Antarctic environment were relevant factors to determining the reasonableness of bond under article 292. This clearly sits at odds with the Tribunal’s narrow approach.
Judge ad hoc Shearer went further. He considered that the Tribunal had been overly cautious in evaluating the evidence presented in the case. Judge ad hoc Shearer noted that while article 292(3) requires ITLOS to deal with an application for prompt release without in any way prejudicing the merits of any case in the detaining state’s courts against the vessel, owner or crew, the question of reasonableness in the Volga Case could not be assessed in isolation from the ‘grave allegations of illegal fishing in a context of the protection of endangered fish stocks in a remote and inhospitable part of the seas’. Judge ad hoc Shearer also pointed out that in the Monte Confurco Case the Tribunal had indicated that the limitation in article 292(3) did not prevent it from examining the facts so as to consider properly the reasonableness of the bond. It is certainly correct, as Judge ad hoc Shearer noted, that the Tribunal made virtually no mention of the ‘grave allegations’ made by Australia. However ITLOS did not explain this vacuum by reference to article 292(3). Rather the Tribunal simply appears to have discounted this broader factual matrix through adopting the narrow interpretation of the task set by article 292. In any event, Judge ad hoc Shearer very helpfully set out principles that could be applied in future prompt release cases for considering the extent to which ITLOS may assess facts that may bear upon the merits of any domestic proceedings.
After considering the gravity of the offences, ITLOS considered the bond sought by Australia and noted its tripartite nature (representing sums for the vessel, for the potential fines against the crew and for the ‘good-behaviour bond’). In relation to the vessel the Tribunal held that the amount of $1.92 million, representing the agreed value of the vessel (including fuel, lubricants and gear) was reasonable for the purposes of article 292 of UNCLOS. As has already been noted this marked a substantial upholding of the bond sought by Australia and a rejection of the amount of $A500,000 suggested by Russia to be reasonable.
In relation to the potential fines against the crew the Tribunal noted that it was unnecessary to consider the issue given the crew’s release. The remaining component of the bond (the issue of VMS, other non-financial conditions, and the ‘good-behaviour bond’ of $A1 million to guarantee non-repetition of future illegal fishing) was then addressed. The majority held that whether or not non-financial conditions could be imposed hinged on whether or not they could be described as a ‘bond or other security’ as that phrase is used in UNCLOS article 73(2). It was held that in light of the object and purpose of article 73(2), the phrase must be taken to refer to a bond or security ‘of a financial nature’. The majority concluded that the whole purpose of article 73(2) (when read together with article 292) was to enable flag states to secure the release of detained vessels and their crew ‘by posting a security of a financial nature whose reasonableness can be assessed in financial terms’.
In relation to the security of $A1 million (the so-called good-behaviour bond) required by Australia in connection with the VMS, the Tribunal held that such a security could not come within article 73(2) because the bond or other security referred to is for the release of ‘arrested’ vessels alleged to have committed offences. A bond to prevent future illegal activity, it was held, was not encompassed by article 73(2).
In their dissenting judgments, both Judge Anderson and Judge ad hoc Shearer rejected the Tribunal’s interpretation of article 73(2) both with respect to the non-financial conditions and the $A1 million ‘good-behaviour bond’. Judge Anderson held that the plain and ordinary reading of article 73(2), with due reference to object and purpose, disclosed no explicit prohibition on the setting of non-financial conditions for the release of vessels. Moreover, the word ‘bond’ should be read consistently with the context of the term which is (as revealed by the drafting history) ‘legal and precisely that of release of an accused person against a bail bond that may, and often does, contain non-pecuniary conditions’. For Judge Anderson the overriding question was simply whether the bond, in the broad sense including its amount, form and attendant conditions, was ‘reasonable’. Neither the non-financial conditions nor the ‘good-behaviour bond’ were excluded from being considered as ‘bond’ within the meaning of article 73(2) and so it remained to be determined whether they were reasonable. Judge Anderson held that they were, given the real risk that the Volga, on release, would re-offend.
Judge ad hoc Shearer in his dissent held that the amount and terms of the bond set by Australia were reasonable. After noting that since UNCLOS had entered into force there have been dramatic declines in the stocks of many fish species, in all oceans, Judge ad hoc Shearer held that the words ‘bond’ and ‘financial security’ as they are used in articles 73(2) and 292 ‘should be given a liberal and purposive interpretation in order to enable the Tribunal to take full account of the measures – including those made possible by modern technology – found necessary by many coastal states (and mandated by regional and sub-regional fisheries organisations) to deter by way of judicial and administrative orders the plundering of the living resources of the sea’. In any event, according to Judge ad hoc Shearer, a narrow interpretation of article 73(2) could, as demonstrated by Judge Anderson, include non-financial conditions within the meaning of the word ‘bond’ as used in that article and in article 292.
Russia had also alleged that the Volga was arrested in breach of UNCLOS article 111, which provides for hot pursuit. Australia argued that the issue was irrelevant to the question of the reasonableness of a bond and should not be considered by the Tribunal because it could prejudice the merits of future action against Australia foreshadowed by Russia. Moreover, Australia contended that even if relevant, article 111 had not been violated. The Tribunal did not enter into these difficult and controversial issues. Instead (and without explaining its reasoning) the Tribunal held that the circumstances surrounding the arrest of the Volga were irrelevant to prompt release proceedings under article 292. Accordingly, it declined to consider the alleged illegality of the arrest in its assessment of the reasonableness of the bond. This appears to be the correct approach. As Judge Anderson explained in his separate judgment, article 292 is concerned with the question of release and not arrest.
Finally the Tribunal turned to the issue of the proceeds of the catch, an issue that has proven to be one of the most controversial in its prompt release jurisprudence. In the Monte Confurco Case the majority held that the value of the catch seized by French authorities was to be deducted from the total bond. In the Volga Case the majority appears to have reversed this precedent by holding that ‘although the proceeds of the sale represent a guarantee to [Australia], they have no relevance to the bond to be set for the release of the vessel and the members of the crew’. For this reason the Tribunal held that ‘the question of their inclusion or exclusion from the bond does not arise in this case’.
The Volga Case is the fifth decision to date by the ITLOS in the prompt release area and goes some way to clarifying the Tribunal’s jurisprudence on this topic. It was the second case in which Australia had appeared before the ITLOS, and the first for the Russian Federation before this or any other international tribunal.
[*] The 2002 report also includes a case involving Australia before the International Tribunal for the Law of the Sea. In subsequent years this section of the Aust YBIL will be further expanded to include matters involving Australia arising before other international courts and tribunals.
[**] Trinity College, University of Cambridge.
[***] Sydney Centre for International and Global Law, Faculty of Law, University of Sydney.
[****] Faculty of Law, University of Sydney.
 1430 UNTS 61;  ATS No 29.
 192 ALR 178 ; Marine Pollution Act 1987 (NSW), s 7.
 1155 UNTS 331;  ATS No 2.
 192 ALR 176 .
 Ibid .
 327 UNTS 3;  ATS No 7.
 192 ALR 179 .
  HCA 28; 191 ALR 1, 157-58, 164 , .
 Ibid 157-58, . Justice Kirby referred to the International Convention on the Elimination of All Forms of Racial Discrimination, 660 UNTS 195,  ATS No 40.
  HCA 28; 191 ALR 1, 162 . Justice Kirby referred to the International Covenant on Civil and Political Rights, 999 UNTS 171;  ATS No 23; and the International Covenant on Economic, Social and Cultural Rights, 993 UNTS 3;  ATS No 5.
 Draft United Nations Declaration on the Rights of Indigenous Peoples, prepared by the United Nations Working Group on Indigenous Populations, adopted by the Sub-Commission on Prevention of Discrimination and Protection of Minorities at its 36th meeting, 26 August 1994, res 1994/45, art 29.
 Ibid art 12.
  HCA 28; 191 ALR 1, 273 .
 Ibid 273 .
 Ibid 274 -.
 Ibid 275-76 -.
 See also Rosenboom v Qantas Airways Ltd  NSWSC 792.
 1929 International Convention for the Unification of Certain Rules Relating to International Carriage by Air (Warsaw Convention) LNTSer 29; , 137 LNTS 11, as amended by the 1955 Hague Protocol 478 UNTS 371;  ATS No 18.
 See eg South Pacific Air Motive Pty Ltd v Magnus  FCA 1107; (1998) 87 FCR 301; Sidhu v British Airways  UKHL 5;  AC 430.
  VSC 580 .
  HCA 51; (1980) 147 CLR 142, 159.
 International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading 1924,  ATS 2.
  VSC 580 .
  USSC 43; 470 US 392 (1984).
  VSC 580 .
 In a judgment delivered on 23 December 2003, the Victorian Court of Appeal allowed an appeal against the judgment of Borgiorno J, Qantas Ltd & British Airways plc v Povey  VSCA 227.
 999 UNTS 171;  ATS No 23.
 Family Law Act 1975 (Cth).
  HCA 36; 191 ALR 289, 308 .
 1249 UNTS 13;  ATS No 9.
  HCA 36; 191 ALR 289, 324-325 .
 See B Olbourne and D R Rothwell, ‘Australian Cases Involving Questions of Public International Law 2000’  AUYrBkIntLaw 10; (2001) 21 Aust YBIL 169, 182-83 for discussion of the decision of the Full Court of the Federal Court.
 In Australia, applications for refugee status are determined in the first instance by a delegate of the Minister for Immigration and Multicultural Affairs. Review of the determination may then be sought from the RRT. Either party may then appeal the matter to a single justice of the Federal Court of Australia. Further appeals lie to the Full Court of the Federal Court of Australia and, with leave, to the High Court of Australia.
 1951 Convention Relating to the Status of Refugees, 189 UNTS 250;  ATS No 5, as amended by the 1967 Protocol Relating to the Status of Refugees, 606 UNTS 267;  ATS No 37.
 187 ALR 574, 582 .
 Ibid 582 .
 Ibid 582-83 , echoing the comments of McHugh J in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 258, 263.
 187 ALR 574, 593-94 -
 Ibid 605-6 -
 Ibid 609-10 .
 Ibid 609-10 -.
 Ibid 580 .
 Ibid 580 .
 Ibid 581 .
 Ibid 580-81 .
 Ibid 581 , -.
 Ibid 582 .
 See ibid 601, 602, 603 , , .
 R v Immigration Appeal RRT; Ex parte Shah  UKHL 20;  2 AC 629 at 653 per Lord Hoffman; Horvath v Secretary of State for the Home Department  UKHL 37;  1 AC 489 at 515-16 per Lord Clyde.
 187 ALR 574, 604 .
 Ibid 591 .
 Ibid 591 , taken from United Nations High Commissioner for Refugees, Interpreting Article 1 of the 1951 Convention Relating to the Status of Refugees (April 2001), fn 81.
 187 ALR 574, 594 .
 Ibid 594 .
 Ibid 594 .
 Ibid 609, 610 , .
 Ibid 610-11 -.
 Art 1F(b) had been considered by the House of Lords in T v Home Secretary  UKHL 8;  AC 742. The appeal here came from the Full Court of the Federal Court: Singh v Minister for Immigration and Multicultural Affairs  FCA 1125; (2001) 179 ALR 713, and was discussed in Olbourne and Rothwell, above n 32, 169, 193-94.
 Appeals in respect of decisions concerning art 1F of the Convention lie to the AAT, not the RRT: Migration Act 1958 (Cth), s 500(1)(c).
 Relevant parts of the AAT’s reasons appear in the judgment of Gleeson CJ HCA 7; , 186 ALR 393, 397 .
 The AAT made findings in relation to the applicant’s other claims that also led it to conclude that there were serious reasons to suspect the applicant had committed serious non-political crimes, but these proved to be of lesser significance in the later proceedings.
  HCA 7; 186 ALR 393, 414-15 -.
 Ibid 395 , 409 . See also Gaudron J at 402 - and Callinan J at 438 .
 Justice McHugh was of the view that the AAT had not made any error of law, but had decided, as a matter of fact, that the applicant was motivated by revenge and not by any political considerations: ibid 406, 407 , . Justice Callinan’s reasons are considered below.
 Ibid 399 . See also Gaudron J, 406 .
 Ibid 400 . See also Gaudron J, 406 .
 Ibid 400 .
 Ibid 424, 426 , .
 Ibid 440 .
 Ibid 439 .
 Ibid 441 .
 Eg Gaudron J, ibid 404, 405 , ; Kirby J, 417-18 -.
 Ibid 400 .
 Ibid 404 .
 Ibid 405 .
 Ibid 405 .
  UKHL 8;  AC 742 at 786-87.
  HCA 7; 186 ALR 393, 427-28 [141(4)].
 Ibid 439 .
  FCAFC 185; 190 ALR 268, 286 .
 Ibid 286 .
 Ibid 286 .
 Ibid 269, 276 , . The previous authority included Al-Rahal v Minister for Immigration and Multicultural Affairs  FCA 1141; (2001) 184 ALR 698. See B Olbourne and D R Rothwell, ‘Australian Cases Involving Questions of Public International Law 2001’  AUYrBkIntLaw 8; (2002) 22 Aust YBIL 251, 260-63.
 An appeal against the decision of the Full Federal Court is before the High Court: V872/00A v Minister for Immigration and Multicultural Affairs (M114/2002).
 See Cabal v Secretary, Department of Justice (Vic)  FCA 949; discussed in Olbourne and Rothwell, above n 32, 194-95.
  ATS No 13.
  FCA 1204; 186 ALR 188, 229 .
 Ibid 229 .
 Ibid 266 ; see also Cabal v United Mexican States (No 2)  FCA 295.
 Ibid 266-67 .
 Ibid 267 .
 Ibid 267 .
 Ibid 268 .
 Ibid 270 .
  ATS No 10.
 189 ALR 216, 226 .
 Extradition Act 1988 (Cth), s 3.
 Ibid s 40.
 189 ALR 216, 226 .
 Ibid 227 .
 Ibid 247 . On 10 April 2003, the High Court unanimously dismissed an appeal from the judgment of the Full Court: Oates v Attorney-General  HCA 21.
  VSCA 27 .
 Ibid .
 Ibid .
 Ibid .
 Ibid .
 Ibid .
 Ibid .
 Ibid .
 Ibid .
 The applicant has appealed to the High Court against the judgment of the Victorian Court of Appeal: Truong v R (M226/2002).
 (10 December 1982), 1833 UNTS 3;  ATS No 31.
 Also known as ‘Chilean Sea Bass’, ‘Antarctic Sea Bass’ and ‘Sea Bass’.
 Senator the Hon Ian Macdonald and Senator the Hon Robert Hill, ‘Navy apprehends second suspected illegal fishing vessel’, Media Release, AFFA02/8MJ, 12 February 2002 <www.affa.gov/ministers/macdonald/releases/2002/02008.mj.html> (17 December 2002).
 1329 UNTS 47;  ATS No 9.
 Volga Case (Russian Federation v Australia) ITLOS Case No 11, 23 December 2002 (2003) 42 ILM 159 .
 Ibid .
 Volga Case above n 117 – Australian Statement in Response, p 7 (Australian Statement in Response) <www.itlos.org> (28 April 2003).
 See Olbers Co Ltd v Commonwealth of Australia  FCA 1269.
 Volga Case, above n 117 , .
 Australian Statement in Response, above n 119,13.
 David Bennett QC, Volga Case, Verbatim Record of Oral Submissions, 7 <www.itlos.org> (23 December 2002).
 A VMS is a satellite-based system that may be used to determine the position of a vessel at any time.
 David Bennett QC, Volga Case, Verbatim Record of Oral Submissions, 7 <www.itlos.org> (23 December 2002).
 Section 100 provides that: ‘A person must not, at a place in the AFZ [Australian Fishing Zone], use a foreign boat for commercial fishing unless: “there is in force a foreign fishing licence authorising the use of the boat at that place; or if the boat is a Treaty boat – a Treaty licence is in force in respect of the boat authorising the use of the boat at that place. A person who contravenes subsection (1) is guilty of an offence punishable on conviction by a fine not exceeding 2,500 penalty units. (2A) Strict liability applies to subsection (2). An offence against this section is an indictable offence but may be heard and determined, with the consent of the prosecutor and the defendant, by a court of summary jurisdiction. If an offence is dealt with by a court of summary jurisdiction, the penalty that the court may impose is a fine not exceeding 250 penalty units.” A penalty unit is AU $110 (Crimes Act 1914 (Cth), s 4AA).’
 Volga Case, above n 117.
 Australian Statement in Response, above n 119, 7.
 Volga Case, above n 117 , .
 Director of Public Prosecutions (Cth) v Lijo  WASC 154.
 Volga Case, n 117, .
 Ibid .
 Ibid [95(3)] (Judge Anderson and Judge ad hoc Shearer dissenting).
 Ibid [95(4)], (5) & (6) (Judge Anderson and Judge ad hoc Shearer dissenting).
 Ibid .
 Volga Case above n 117 – Memorial of the Russian Federation, p 13 <www.itlos.org> (28 April 2003).
 Monte Confurco Case, The (Seychelles v France), ITLOS Case No 6, 18 December 2000 <www.itlos.org> (28 April 2003).
 Memorial of the Russian Federation, above n 136, 15.
 Ibid 16.
 Australian Statement in Response, above n 119, 10 .
 Ibid 11 . In opening for Australia, Agent for Australia, Mr Bill Campbell said that while art 292(3) required ITLOS to ‘deal only with the question of release’ this restricted the task of the Tribunal but did not limit the matters that could be taken into account in discharging the task: oral submissions, 12 December 2002, 3pm <http://www.itlos.org> (19 December 2002) p 5.
 Ibid 13 ; 13 ; 17 ; and 19 .
 Ibid 18 .
 Oral submissions by David Bennett QC, counsel for Australia, 12 December 2002, 3pm <http://www.itlos.org> (19 December 2002) p 26.
 Australian Statement in Response, above n 119, 18 ; 20, .
 Ibid 18-19 .
 Oral submissions by Professor James Crawford SC, counsel for Australia, 12 December 2002, 3pm <http://www.itlos.org> (19 December 2002) p 22.
 Volga Case, above n 117  and  respectively.
 Camouco Case, The (Panama v France), ITLOS Case No 5, 7 February 2000, (2000) 39 ILM 666.
 Volga Case, above n 117 . See the Camouco Case, above n 150 .
 Volga Case, above n 117 . See the Monte Confurco Case, above n 137 .
 Volga Case, above n 117 . See the Monte Confurco Case, above n 137 , .
 Volga Case, above n 117 .
 Ibid .
 Volga Case, above n 117, Dissenting Opinion of Judge Anderson .
 Professor Ivan Shearer AM, Challis Professor of International Law, University of Sydney, was chosen by Australia to participate as judge ad hoc pursuant to art 17(2) of the Statute of ITLOS.
 Volga Case, above n 117, Dissenting Opinion of Judge ad hoc Shearer .
 Ibid .
 Volga Case, above n 117 , .
 Ibid .
 Ibid .
 Ibid .
 Ibid .
 Ibid .
 Ibid, Dissenting Opinion of Judge Anderson .
 Ibid .
 Ibid .
 Ibid .
 Dissenting Opinion of Judge ad hoc Shearer, Volga Case, above n 117 
 Ibid .
 Volga Case, above n 117 .
 Ibid, Dissenting Opinion of Judge Anderson .
 Volga Case, above n 117 .
 The four cases preceding the Volga case were: (1) The M/V Saiga Case (St Vincent v Grenadines), Case No 1, 4 December 1997 < www.itlos.org> (12 December 2003); (2) the Camouco Case, above n 150; (3) the Monte Confurco Case, above n 137; (4) the Grand Prince Case (Belize v France), Case No 8, 20 April 2001 < www.itlos.org> (23 December 2002). Three of these cases, the Camouco, Monte Confurco and Grand Prince cases concerned the prompt release of fishing vessels, although in the Grand Prince Case ITLOS refused to consider the application on behalf of Belize, finding that it had no jurisdiction to do so because the vessel did not have Belizean nationality. For an overview of the prompt release cases to date (with the exception of the Volga Case) see E Franckx, ‘ “Reasonable Bond” in the Practice of the International Tribunal for the Law of the Sea’ (2002) 32 California Western International Law Journal 303.
 The other case being the Southern Bluefin Tuna Cases (Australia v Japan; New Zealand v Japan) (Provisional Measures), ITLOS Cases No 3 & 4, 17 August 1999 (1999) 38 ILM 1624.