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Australian Year Book of International Law |
Justin Hogan-Doran,[*] Jane McAdam,[**] and Zelie Wood[∗∗∗]
Port of Devonport Corp Pty Ltd v Abey
Supreme Court of Tasmania
Full Court
A Mr Griffiths complained of unfair dismissal, inadequate severance pay, breach of an award and inadequate payment of long service leave, giving rise to an industrial dispute under Section 29(1A) of the Industrial Relations Act 1984 (Tas) (the Act). The employment agreement had terminated by effluxion of time, and the employer submitted that the Industrial Relations Commission had no jurisdiction to hear it. The Commissioner refused to dismiss the case and an application on the basis that since Section 30 of the Act extended (since 2000) the operation of the Act to termination of employment of employees with a reasonable expectation of continuing employment, it covered both employer-initiated termination and termination by effluxion of time.
The Act had previously required the Commissioner ‘to take into account the standards of general application contained in Pt II of the 1982 International Labour Organisation Convention concerning the Termination of Employment at the Initiative of the Employer[1] as set out in Sch 10’ of the Industrial Relations Act 1988 (Cth). Article 3 of that Convention declared that for the purpose of the Convention, the terms ‘termination’ and ‘termination of employment’ meant termination of employment at the initiative of the employer.
An application was made for judicial review, which was dismissed by a single judge (Underwood CJ). As the amended Act excised references to the Convention and used the differing wording in Section 30 that did not speak in terms of termination by an employer, the Full Court also dismissed the appeal.
Secretary, Department of Foreign Affairs and Trade v Whittaker
(2005) 143 FCR 15; (2005) 214 ALR 696; [2005] FCAFC 15
Federal Court of Australia
Black CJ, Kiefel and Emmett JJ
Mr Whittaker requested access under the Freedom of Information Act 1982 (Cth) (the Act) to documents relating to the proposed appointment of Senator Dr John Herron as Australian High Commissioner to Canada.
Certain documents were claimed to be exempt documents under the Act, being four communications between the department and an Australian High Commission, relating to the agrément process between Australia and Canada for Dr Herron’s proposed appointment. As a matter of international practice, until the appointment of the head of mission is put on the public record, the process of obtaining agrément with the receiving country is conducted on a strictly confidential basis.
Under Section 33(1)(a)(iii) of the Act, a document is exempt if disclosure under the Act would, or could reasonably be expected to, cause damage to the international relations of the Commonwealth. Under Section 33(1)(b), a document is exempt if disclosure under the Act would divulge any information or matter communicated in confidence by or on behalf of a foreign government to the government of the Commonwealth. Each document reported or attached a communication from the Canadian government, or requested that a specific communication be sent to the Canadian government.
On reviewing the secretary’s decision, the Administrative Appeals Tribunal (the AAT) decided that the four documents were not exempt documents. The Secretary appealed to the Federal Court, which upheld the appeal. In part, the appeal was upheld for a failure to give adequate reasons. As a matter of law, the AAT’s conclusion that the documents were no longer confidential because Canada had consented to Dr Heron’s appointment suggested a misconception of Section 33(1)(b). The Court held that if disclosure of a document, whenever the disclosure is made, would divulge any matter communicated in confidence, the document will be exempt under Section 33(1)(b), even if that matter is no longer confidential at the time when access is sought.
APLA Ltd v Legal Services Commissioner (NSW)
(2005) 219 ALR 403; [2005] HCA 44
High Court of Australia
The plaintiff, APLA Limited, challenged the validity of the regulations made under the Legal Profession Act 1987 (NSW) which prohibit the advertising of legal services relating to claims for damages, compensation, or other legal entitlements arising out of personal injuries. The plaintiff claimed the regulations were inconsistent with the Constitution, or alternatively violated federal laws and so, by operation of Section 109 of the Constitution, were inoperative to the extent of the inconsistency. The High Court upheld the regulations. In his dissenting opinion, Kirby J made the following comments:
[T]he emergence of new constitutional doctrine is stimulated today by the fact that we read the constitutional text with eyes alive to new insights provided by the context in which the Constitution operates. In my view, that context includes developments of international law as that law expresses the principles of human rights and fundamental freedoms.
The right of freedom of expression has repeatedly been described by courts of high authority as a primary right. For example, the House of Lords has said that ‘without it an effective rule of law is not possible’. Reading the Australian Constitution today, in the context of such developments, we can be confirmed in deriving an implication about a high level of unrestricted communication essential to the operation of the institutions of government as envisaged in the Constitution from the central place that freedom of expression holds in the international law of human rights and fundamental freedoms.[2]
Baird v Queensland
Federal Court of Australia
Dowsett J
This case concerned a costs order against Ms Ella Woibo, whose claim against the state of Queensland for breach of the Racial Discrimination Act 1975 (Cth) (the Act) has been dismissed. In determining the costs order, Dowsett J referred to the concern that claims in respect of Australia’s obligations under international treaties should not be discouraged by adverse costs orders. However, Dowsett J considered that there was nothing to indicate the Act should be treated any differently from other Federal legislation. The fact that the Act implemented Australia’s obligations under an international treaty was not per se relevant to the determination of costs orders.
R v Burgess (2005)
152 A Crim R 100; [2005] NSWCCA 52
Supreme Court of New South Wales
Court of Criminal Appeal
Adams and Hislop JJ, Newman AJ
On 18 March 2003 the appellants David Robert Burgess and Will Saunders painted the words ‘No War’ on one of the sails of the Opera House at Bennelong Point on Sydney Harbour. They were convicted of the offence of maliciously damaging property contrary to Section 195(a) of the Crimes Act 1900 (NSW). They appealed to the New South Wales Court of Criminal Appeal, claiming that they were entitled to have the jury consider whether they acted in defence of others pursuant to Section 418 of the Crimes Act 1900 (NSW). The appellants claimed they were acting in defence of persons they anticipated would be killed or maimed as a result of the Prime Minister’s commitment of Australian troops to the war in Iraq. This included both the people in Iraq who may be injured as a result of the war, and the people of Australia who may be injured as a result of a terrorist attack provoked by Australia’s involvement in the war. The Court upheld the trial judge’s decision not to permit this defence to go to the jury, finding that there was an insufficient connection between the conduct of the Australian government and the possibility of casualties so as to render the painting a ‘reasonable response’.
The appellants had a further basis of appeal. Section 194(3) of the Crimes Act 1900 (NSW) states that ‘an act done by a person under a reasonable belief that the person had a right to do the act shall be taken not to have been done maliciously’. The appellants submitted that because their actions were done out of a belief they could use reasonable force to prevent crime, they were not malicious. They claimed ‘crime’ included those crimes under the 1998 Rome Statute of the International Criminal Court[3] as implemented by the International Criminal Court Act 2002 (Cth). The Court dismissed this contention on the basis that there was insufficient evidence demonstrating how the Australian government’s actions might excite the jurisdiction of the International Criminal Court, and, in any event, the actions in question were not ‘reasonable’.
Greentree v Minister for Environment and Heritage
(2005) 144 FCR 388; 223 ALR 679; [2005] FCAFC 128
Federal Court of Australia
Kiefel, Weinberg and Edmonds JJ
The appellants were found to have contravened Section 16(1) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act). That subsection prohibits the taking of action which has, will have or is likely to have, a significant impact on a declared Ramsar wetland. A ‘declared Ramsar wetland’ is defined by Section 17(1) to refer to wetlands designated by the Commonwealth under Article 2 of the Convention on Wetlands of International Importance especially as Waterfowl Habitat[4] (Ramsar Convention).
Permanent injunctions and substantial pecuniary penalties were imposed at first instance on the appellants in relation to the Ramsar Gwydir Wetlands in northwest New South Wales, west of Moree. The appellants damaged the site by clearing and ploughing it sometime between 27 June 2002 and 30 July 2003.
One issue on the appeal was whether the Ramsar Gwydir Wetlands were designated within the meaning of Section 17(1) of the EPBC Act, given the extent of mapping and description provided for that purpose. Section 17(1) of the EPBC Act provides the answer to the question posed in its heading ‘What is a declared Ramsar wetland?’ as follows:
A wetland, or part of a wetland, designated by the Commonwealth under Article 2 of the Ramsar Convention for inclusion in the List of Wetlands of International Importance kept under that Article is a declared Ramsar wetland as long as the wetland or part is not:
(a) excluded by the Commonwealth from the boundaries of a wetland in the List under that Article; or
(b) deleted by the Commonwealth from the List under that Article.
The area in question was designated and mapped, with the maps being accessible via a website. The maps showed boundaries drawn to scale, did not show latitude and longitude readings or not provide coordinates for the four corners of the site, but did show the Australian Map Grid coordinates on the axes. Some basic topographical features such as roads as well as watercourses were included.
Article 2(1) of the Ramsar Convention provides that:
Each Contracting Party shall designate suitable wetlands within its territory for inclusion in a List of Wetlands of International Importance, hereinafter referred to as “the List” which is maintained by the bureau established under Article 8. The boundaries of each wetland shall be precisely described and also delimited on a map and they may incorporate riparian and coastal zones adjacent to the wetlands, and islands or bodies of marine water deeper than six metres at low tide lying within the wetlands, especially where these have importance as waterfowl habitat.
Justice Sackville at first instance rejected the submission that to be designated under Article 2(1) required strict compliance with the article. In his view, Section 17(1) of the EPBC Act was not intended to incorporate any particular requirement derived from Article 2 as a pre-condition for the valid designation of a wetland for inclusion in the List. Whilst a Contracting Party is obliged to provide the information specified, that does not mean that a failure to do so meant that the rights and duties flowing from the inclusion in the List were not to be obtained. The Convention does not give expression to this. To give it this effect would cut across its object and purposes. This view of the Convention was supported by the practice of the Contracting Parties. Whilst repeatedly urging parties to complete maps and descriptions of wetlands, there had been no suggestion that a failure to do so means that a wetland was not to remain listed.
According to the Full Court, this approach was correct, as:
• The EPBC Act does not import the Ramsar Convention into domestic law.
• Regard may be had to the terms of a Convention where there is ambiguity in the domestic legislation.
• However, there was no uncertainty as to the meaning of the relevant part of Section 17(1), in particular the meaning of the word ‘designate’, which merely means ‘to nominate, specify, indicate, describe or identify. Of itself it does not have a meaning which requires precision in description. Nothing in the section or the EPBC Act suggests that it needs to be read as if it required precise boundary identification or mapping.’
• The EPBC was unlike the legislation considered in Richardson v Forestry Commission[5] which transposed the obligation in the 1972 Convention for the Protection of World Cultural and Natural Heritage[6] to ‘identify and delineate’ properties having the requisite values.
Bropho v Western Australia
(2005) 218 ALR 76; [2005] FCA 560
Federal Court of Australia
Nicholson J
The applicant claimed on behalf of the members of the Swan Valley Nyungah Community Aboriginal Corporation who were the Aboriginal inhabitants of Reserve 43131. As the claim makes apparent, the applicant is herself such a person. The applicant was a member of the community and also a Governing Committee member, Vice Chairperson, spokesperson and member of the Corporation. The Reserve had been vested in the Corporation since 1994. In 2003, the Western Australian government decided to close the Swan Valley Nyungah camp in Lockridge because of allegations of ‘abuse and violence perpetrated against women and children at that community’.
Ms Bropho made claims including a claim that state legislation concerning the reserve was invalid under Section 109 of the Commonwealth Constitution because it was inconsistent with the Racial Discrimination Act 1975 (Cth) (RDA), implementing the 1966 International Convention on the Elimination of All Forms of Racial Discrimination.[7] The state legislation and directions under it ceased management of the reserve by the Aboriginal Corporation and vested management in the second respondent, a state authority, and directed that Aboriginal people leave the reserve.
Paragraph 43 of the amended claim alleges that by reason of matters pleaded, the Reserves (Reserve 43131) Act 2003 (WA) was inconsistent with Section 10(1) of the RDA and therefore invalid pursuant to Section 109 of the Commonwealth Constitution. In paragraph 32(a) of its defence, the Government of Western Australia said that the Act was ‘reasonably appropriate and adapted or proportional to a legitimate end, namely protecting Aboriginal persons requiring protection in order to ensure such individuals’ equal enjoyment or exercise of the right to security of person and protection by the State against violence or bodily harm’.
Ms Bropho claimed that the only defence available for conduct contrary to the RDA was the ‘special measures’ exception in the 1966 International Convention on the Elimination of All Forms of Racial Discrimination.[8] Nicholson J said that:
The fact that the Racial Discrimination Act incorporates a specific defence of special measure (which is itself part of the Convention) may, as the applicant submits, assist in interpreting s 10. However, the respondents contend that defence is intended to address specific situations, for example allow for ‘positive discrimination’. It does not displace the principle that conduct which is reasonably appropriate and adapted (or proportional) to a legitimate end is simply not discriminatory in the first place and does not fall within the ambit of the Convention (and therefore does not fall within the ambit of s 10 of the Racial Discrimination Act). The pleading is at least clearly arguable …[9]
Accordingly, the defence was not struck out in that part.
Tran v Minister for Immigration and Multicultural and Indigenous Affairs
Federal Court of Australia
Sundberg, Marshall and North JJ
The Minister had cancelled Mr Tran’s spouse visa pursuant to Section 501(2) of the Migration Act 1958 (Cth) (the Act) under the ‘character test’ including by reason of a ‘substantial criminal record’ (ss 501(6) and (7)). It was not disputed that Mr Tran did not pass the character test. Mr Tran contended that the Minister had failed to take into account relevant considerations that she was bound to take into account and thereby fell into judicially reviewable, jurisdictional error.
Mr Tran had held a visa since 1999. He was convicted of trafficking in heroin, and was sentenced to six years’ imprisonment. He was later convicted of intentionally causing injury. On 10 December 2003 the Minister decided, pursuant to Section 501(2), to cancel Mr Tran’s visa. At the time, Mr Tran’s partner was due to give birth to their first child in February 2004. This was taken into account.
Mr Tran submitted to Ryan J at first instance, who rejected the application for judicial review, that the Minister was required to take into account, as a relevant consideration, whether the cancellation decision might be in breach of, or affected by, Australia’s international treaty obligations. In particular, counsel referred to Australia’s obligations under the 1966 International Covenant on Civil and Political Rights[10] (ICCPR), namely the obligations ‘to protect the family as a natural and fundamental group unit of society’ and the right ‘to found a family’, given Article 23 of the Convention, Article 25 concerning access to public services given the likely impact on Mrs Tran (an Australian citizen) if she were forced, by circumstances, to accompany Mr Tran back to his native Laos, and Article 12.4 concerning arbitrary denial of right of entry into one’s own country.
Justice Ryan found that, on proper construction of the Migration Act 1958 (Cth), the Minister was at least bound to take into account Article 23 of the ICCPR. While not making a finding on the scope of the Minister’s obligation vis-à-vis other provisions of the ICCPR, Ryan J found the Minister in any event considered the impact on the applicant’s wife and family unit as a whole. The mere failure of the Minister to relate explicitly her reasoning to the provisions of the ICCPR did not constitute an error of law. Consequently, Ryan J found it unnecessary to consider the argument raised on behalf of the Minister that the provisions of the ICCPR do not form part of Australian municipal law. The reasons given by Ryan J were affirmed by the Full Court.
D’Orta-Ekenaike v Victoria Legal Aid
(2005) 223 CLR 1; [2005] HCA 12
High Court of Australia
In Giannarelli v Wraith[11] the High Court had held that, at common law, barristers and solicitors are immune from liability for negligence in the conduct of court work or work out of court that leads to a decision affecting the conduct of a case in court (advocates’ immunity). The Legal Profession Practice Act 1958 (Vic) (the 1958 Act) also provided for advocates’ immunity.
The High Court confirmed Giannarelli in D’Orta-Ekenaike v Victoria Legal Aid, Kirby J dissenting, both for barristers and solicitors acting as advocates. In 1996, the plaintiff had been charged with a serious criminal offence and was advised by a barrister retained by the Victorian Legal Aid to plead guilty. He claimed that undue pressure and influence had been brought to bear on him to do so. At trial, he changed his plea to not guilty. His earlier guilty plea was admitted into evidence and he was convicted and sentenced to three years’ imprisonment. Following appeal and a new trial, the plea was not admitted into evidence and he was acquitted.
In 2001, the plaintiff commenced proceedings against Victoria Legal Aid and the barrister for breach of their duty of care to him. The County Court of Victoria stayed the proceedings permanently on the grounds of the immunity. Leave to appeal to the Victorian Court of Appeal was refused. Special leave was granted on the questions whether the decision in Giannarelli should be reconsidered and to determine whether advocates’ immunity applied also to the acts or omissions of a solicitor which, if committed by a barrister, would be immune from suit.
The High Court followed its decision in Giannarelli. Recent House of Lords authority to the contrary, Arthur J S Hall v Simons[12] was seen as influenced by the then imminent introduction of statutory change arising from the 1950 European Convention on Human Rights,[13] whereas local considerations of the question had not (yet) led to statutory change. The Court also held that there was no reason that advocates’ immunity should distinguish between barristers and solicitors. Instead, wherever ‘a legal practitioner (whether acting as advocate, or as a solicitor instructing an advocate) gives advice which leads to a decision which affects the conduct of a case in court, the practitioner cannot be sued for negligence on that account’.[14]
Justice Kirby in dissent criticised the majority’s dismissal of the House of Lords’ decision, in particular its exclusion based on the 1950 European Convention on Human Rights.
In any case, the same principles that inform the European Convention are recognised in the International Covenant on Civil and Political Rights (“the ICCPR”). Australia is a party to the latter. It is also a signatory to the First Optional Protocol to the ICCPR, designed to ensure compliance with the ICCPR’s requirements. Inevitably, those requirements (of equality before, and accountability to, the law) influence the contemporary expression of the common law of Australia.[15]
Re application of O and P
Supreme Court of New South Wales
Campbell J
Two Australian nationals sought to adopt a child from Korea. It was common ground with the New South Wales Department of Community Services that the adoption should be granted. At issue was whether the proposed adoptive parents could add a western name to the ground of the child’s name, retaining his family name as an additional given name. Under the Adoption Act 2000 (NSW), an order could be made changing the name of a child under 18 years of age prior to an adoption where the court is satisfied that such an order should be made on the basis of special reasons having regard to the best interests of the child and (where the child is over 12) any consent of the child. The proposed adoptive parents had earlier adopted another Korean child and had used a western name for that child as well.
In exercising its power under Section 101, the Court should take into account matters of policy concerning adoption which are discernible in the Adoption Act 2000. Section 7 of that Act says that the objects include ‘(f) to ensure that adoption law and practice complies with Australia’s obligations under treaties and other international agreements’.
One of the obligations under treaties, which Section 7(f) of the Act says the Act should advance, is Australia’s obligation under the 1989 Convention on the Rights of the Child[16] (the Convention). Under Article 8.1 Australia has undertaken to ‘respect the right of the child to preserve his or her identity, including nationality, name, and family relations’. The Convention has not however been implemented in Australia by the Commonwealth Parliament passing legislation. As to whether the Australian Court could breach international law by approving a name change, Campbell J said that ‘when [the Convention] has not been incorporated into Australian domestic law, there is no legal obligation which binds either individuals or Courts to act in conformity with it’.[17]
In any event, Campbell J held that Article 8 only required either that the adoption take place in accordance with domestic law or that, in any event, there was ‘no relevant international law principle which prevents the name of a child being changed upon adoption’.[18] Article 8 of the Convention, which was spawned by abduction even by state authorities, ‘has nothing to do with the circumstances in which orders for intercountry adoption are made in this court’.[19] In interpreting Article 8, Campbell J was guided by the international law principles of treaty interpretation as found in articles 31 and 32 of the 1969 Vienna Convention on the Law of Treaties[20] and referred to the travaux préparatoires of the 1989 Convention on the Rights of the Child (UNROC) to aid in his interpretation.
Gargan v Magistrate Dillon
Supreme Court of New South Wales
Barrett J
The proceedings followed on from a sequestration order made in respect of the plaintiff’s estate after a contested hearing before Hely J (Commonwealth Bank of Australia v Gargan[21]). The plaintiff was principally appealing from a decision of a state court magistrate arising from a complaint by an officer of the Official Trustee in Bankruptcy that the plaintiff had failed to file a statement of affairs in contravention of Section 54(1) of the Bankruptcy Act 1966 (Cth).
When the Commonwealth Director of Public Prosecutions sought to proceed with that charge before the magistrate on 3 May 2005, the plaintiff submitted that the magistrate had no jurisdiction to hear and determine the proceeding. The magistrate heard submissions on that preliminary matter, reserved his decision and, on 18 July 2005, dismissed the challenge to jurisdiction.
The plaintiff also alleged that ‘the magistrate became bound, by reference to s. 5 Commonwealth of Australia Constitution Act 1900 and s. 109 Australian Constitution to give effect to the International Covenant on Civil and Political Rights [ICCPR], which became Sch 2 to the Human Rights and Equal Opportunity Commission Act 1986’.
That Australian courts are bound to give effect to the provisions of the ICCPR as part of Australian law was rejected (indeed, that point had been made by the plaintiff himself in other proceedings). Justice Barrett followed the judgment of Kirby J in Re Kavanagh’s Application,[22] quoting the following passage:
[W]here there is applicable Australian legislation which is clear, and without relevant ambiguity, and where such legislation governs the case to the exclusion of the common law, there is no room for the articles of the ICCPR to ‘bring to bear’ on Australian law the influence mentioned in Mabo [No 2] or as otherwise favoured by me. In such cases, because Australian parliaments have not, so far, given domestic effect to the ICCPR as part of the municipal law of Australia, the duty of Australian courts is clear. It is the duty stated in the Australian Constitution itself. It is to obey and give effect to the law of Australia, including the law stated by the Parliament.[23]
Justice Barrett concluded that ‘[e]ven allowing for the view most favourable to the plaintiff about the operation of the Covenant in Australian law, it does not have any impact where, as here, the matter in issue is the statutory jurisdiction of a court, clearly and unambiguously conferred by an Act of the Parliament of the Commonwealth.’[24]
Mallard v The Queen
(2005) 157 A Crim R 121; 222 ALR 236; [2005] HCA 68
High Court of Australia
The appellant, Mr Mallard, was tried and convicted by the Supreme Court of Western Australia for murder. The appellant unsuccessfully appealed to the Court of Criminal Appeal of Western Australia. After serving eight years of his sentence for life imprisonment, he petitioned for mercy. The Attorney-General for Western Australia referred the petition to the Court of Criminal Appeal, which dismissed the petition. The Court refused to consider exculpatory evidence that the prosecution had failed to disclose during the trial. The appellant then appealed to the High Court. The Court allowed the appeal, holding that the Court of Criminal Appeal’s duty to consider the ‘whole case’ included a duty to consider all questions of fact and law involved in the case, including: evidence adduced at trial, ‘new’ evidence (which was not led at trial) and ‘fresh’ evidence (which had only come to light after trial).
In discussing the prosecution’s duty of disclosure, Kirby J noted the reference in Western Australian prosecution guidelines to international statements about human rights. Thus, he considered it relevant to consider several international law decisions concerning the 1966 International Covenant on Civil and Political Rights[25] and the European Convention on Human Rights and Fundamental Freedoms[26] (the European Convention). He referred to the case of Edwards v United Kingdom,[27] in which the European Court of Human Rights (the ECHR) affirmed that the right to a fair and public hearing under Article 6(1) of the European Convention extended, in a criminal prosecution, to a requirement that ‘the prosecution authorities disclose to the defence all material evidence for or against the accused’. This was subsequently affirmed by the ECHR in Fitt v United Kingdom[28] and recognised to be a requirement under English law. Justice Kirby also referred to the ECHR’s recognition that the duty of disclosure is not absolute, and may be tempered by considerations of national security, the public interest, the protection of witnesses, or the maintenance of secrecy of police methods. However, any damage to the accused’s right to a fair trial must be counter-balanced by other means.
McGee v Gilchrist-Humphrey
(2005) 92 SASR 100; [2005] SASC 254
Supreme Court of South Australia
Doyle CJ, Perry and Sulan JJ
The plaintiff Mr McGee was summoned to appear before a commission of inquiry exercising powers under the Royal Commissions Act 1917 (SA) (the Act). In anticipation of the proceedings, the plaintiff sought a declaration from the Full Court of the Supreme Court of South Australia that the Act did not abrogate the common law privilege against self-incrimination. The Court held that the Act did not abrogate the privilege either expressly or by necessary implication. In a concurring opinion, Perry J considered whether Australia’s obligations under the 1966 International Covenant on Civil and Political Rights[29] (ICCPR) (particularly Article 14 which provides that no one should be ‘compelled to testify against himself or to confess guilt’) were relevant in interpreting the Act. He made the following comments:
Where a statute is ambiguous, the courts should favour that construction which accords with Australia’s obligations under a treaty or international convention to which Australia is a party at least in those cases in which the legislation is enacted after or in contemplation of entry into, or ratification of, the relevant international instrument. The underlying rationale of that principle is that Parliament, prima facie, intend to give effect to Australia’s obligations under international law
. On that basis, it is difficult to see how recourse to a treaty entered into after the relevant statute was passed could be justified. On the present state of the law in Australia, it would be inappropriate for this Court to have regard to the terms of the ICCPR in construing the provisions of the Act.[30]
Ponzio v Multiplex Ltd
Federal Court of Australia
Marshall J
The Building Industry Taskforce (the Taskforce), through its inspector Gary Ponzio, brought proceedings against Multiplex Limited (Multiplex) in the Federal Court for breach of Section 170NC of the Workplace Relations Act 1996 (Cth). Section 170NC prohibits a person from taking or threatening to take industrial action or other action with the intent to coerce another person to agree to the making of a certified agreement in the Australian Industrial Relations Commission. The Taskforce claimed that Multiplex took action with intent to coerce No Bolt Operations Pty Ltd, a scaffolding sub-contractor, to enter into an industrial agreement with the Construction, Forestry, Mining and Energy Union.
Multiplex sought exclusion of some of the evidence filed on behalf of Mr Ponzio pursuant to Section 138 of the Evidence Act 1995 (Cth). Multiplex claimed that several tape-recorded conversations were obtained in contravention of the Surveillance Devices Act 1999 (Vic) (the Act), which provides that a person must not knowingly install, use or maintain a listening device to overhear, record, monitor or listen to a private conversation to which a person is not a party without the express or implied consent of each party to the conversation. ‘Private conversation’ is defined in Section 3 of the Act as a conversation carried on in circumstances that may reasonably be taken to indicate that the parties to it desire it to be heard only by themselves. In construing the definition of ‘private conversation’, the Court stated that it was ‘mindful’ of Article 17(1) of the 1966 International Covenant on Civil and Political Rights[31] which prohibits arbitrary or unlawful interference with a person’s privacy. The Court then went on to say:
However, as Gummow and Hayne JJ explained in Kartinyeri v Commonwealth of Australia [1998] HCA 22; (1998) 195 CLR 337 at [97], a statute will be interpreted in accordance with established rules of international law only ‘as far as its language permits’. The ‘implication that [a statute] should be construed to conform with international law’, although criticised by McHugh J in Al-Kateb v Godwin (2004) 208 ALR 124, [2004] HCA 37 at [65], was said by his Honour to be: ‘… too well established to be repealed now by judicial decision.’[32]
Given that the Act referred to the desire of the ‘parties’ and not the desire of any one party to the conversation, the language of the Act did not permit a finding that the failure to obtain the consent of one party was unlawful in circumstances where only one of the parties did intended for the conversion to be private.
Re Minister for Immigration and Multicultural and Indigenous Affairs;
Ex parte Ame
High Court of Australia
The applicant was born on 20 May 1967 in the province of Papua. At that time Papua was administered by Australia as Possession of the Crown and as part of the administrative union known as the Territory of Papua and New Guinea. On 16 September 1975 (Independence Day), Papua New Guinea became an independent sovereign state. In 1967, Papua was part of ‘Australia’ for the purposes of the Australian Citizenship Act 1948 (Cth) (the Citizenship Act). Persons born in Papua after the commencement of the Citizenship Act, such as the applicant, acquired the status of Australian citizens by birth. Nevertheless, under the Migration Act 1958 (Cth) (the Migration Act) such persons required an entry permit in order to be entitled to enter or reside in any of the states or internal territories. The applicant entered Australia on 3 December 1999, the holder of a visa that expired on 3 March 2000. Since then he had had a series of visas, the most recent of which was to expire 28 days after completion of these proceedings.
The Minister for Immigration and Multicultural and Indigenous Affairs (the Minister) contended that, once the applicant’s visa expires, he would be liable to removal from Australia pursuant to sections 189, 196 and 198 of the Migration Act. Section 198 requires Commonwealth officers to remove from Australia ‘as soon as reasonably practicable any unlawful non-citizen’. The Minister claimed the applicant would become an unlawful non-citizen upon expiry of his visa as he had ceased to be an Australian citizen on Independence Day. The applicant commenced proceedings seeking writs of prohibition and mandamus and a declaration. The High Court dismissed his application.
In his concurring opinion, Kirby J referred to Australia’s obligations under international law. He noted Article 13(2) of the 1948 Universal Declaration of Human Rights,[33] which provides that ‘everyone has the right to leave any country, including his own, and to return to his country’, and Article 12(4) of the 1966 International Covenant on Civil and Political Rights,[34] which provides that ‘no one shall be arbitrarily deprived of the right to enter his own country’. However, he found that these provisions did not assist the applicant as:
[T]he expectations and administration of the Australian law before Independence Day did not treat Australia as the ‘country’ or ‘own country’ of a person such as the applicant. His true ‘country’ remained Papua. The veneer of ‘Australian citizenship’ did not afford him a right to enter or ‘return’ to mainland Australia. This may have been in breach of international law, especially as it is now understood. But so have been many aspects of Australian statute law governing immigration before the independence of Papua New Guinea and perhaps since.[35]
Whilst Kirby J found the Citizenship Act to be within the Commonwealth’s constitutional power, he regarded it as ‘useful and proper to check conclusions affecting constitutional interpretation by reference to any relevant international law, and especially as such law relates to human rights and fundamental freedoms’.[36] Article 15 of the Universal Declaration of Human Rights provides that ‘everyone has the right to a nationality’ and that ‘no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality’. However, he found that the Regulations made under the Citizenship Act were not arbitrary, in that they only operated in relation to a person who had already acquired citizenship of the new Independent Papua New Guinea. They did not deprive anyone of nationality or render them stateless. The Draft Articles on Nationality of Natural Persons in Relation to the Succession of States,[37] which have been adopted by the International Law Commission, provide that ‘persons … having their habitual residence in the territory affected by the succession of States are presumed to acquire the nationality of the successor State on the date of such succession’.[38] The successor state is required to ‘attribute its nationality to persons … having their habitual residence in its territory’.[39] The ‘predecessor State’ is required to ‘withdraw its nationality from persons [who are] qualified to acquire the nationality of the successor State in accordance with Article 24’.[40] Justice Kirby found that Australia’s actions, as the ‘predecessor State’, fully conformed to these requirements.
Hwang (an infant by her next friend Yu) v Commonwealth of Australia;
Fu (an infant by his next friend Huang) v Commonwealth of Australia
[2005] HCA 66; (2005) 222 ALR 83
High Court of Australia
In these two proceedings, which were heard together, the defendants applied to strike out the writ of summons filed on behalf of each of the plaintiffs, Bonnie Hwang and Roger Wenjie Fu, on the basis that they did not disclose a reasonable cause of action. The plaintiffs sought declarations that they had acquired Australian citizenship and nationality by birth in Australia and retained that citizenship and nationality, that Section 10(2) of the Australian Citizenship Act 1948 (Cth) was beyond the power of the Federal Parliament, and that Section 198 of the Migration Act 1958 (Cth) did not apply to them.
The Australian government had sought to remove the two plaintiffs from Australia pursuant to Section 198(1) of the Migration Act 1958 (Cth) which requires Commonwealth officers to remove from Australia ‘as soon as reasonably practicable any unlawful non-citizen’. That power is conditioned upon the person not being a citizen as defined by Section 10 of the Australian Citizenship Act 1948 (Cth). The plaintiffs submitted that because the power to make laws with respect to citizenship did not exist at Federation and was the product of international law operating on Australia’s emergence as a fully independent sovereign nation some time after Federation, this power was subject to all restraints of international law. Particularly, the plaintiffs contended that the power was subject to the 1989 Convention on the Rights of the Child[41] (the Convention) Article 3(1) of which provides:
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
The Court rejected this submission, holding that the Parliament always had the power to make laws with respect to citizenship and its existence did not depend upon international law. It was therefore unnecessary to consider how the Convention operated to constrain this power.
AB v New South Wales
(2005) 226 ALR 322; [2005] FMCA 113
Federal Magistrates Court
Driver FM
The applicant, a child of Romanian origin, had been refused admission to a selective high school operated by the respondent, the state of New South Wales, because he was not an Australian citizen or permanent resident. The applicant had applied for permanent resident status with the Department of Immigration, Multicultural and Indigenous Affairs, but his application had not yet been granted. On 23 January 2003, the applicant made a complaint to the Human Rights and Equal Opportunity Commission (HREOC) alleging unlawful discrimination contrary to Section 9 of the Racial Discrimination Act 1975 (Cth) (the RDA). A delegate of the President of HREOC had terminated the complaint on the basis that it was lacking in substance. The applicant brought proceedings in the Federal Magistrates Court pursuant to Section 46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (the HREOC Act), seeking a declaration that the exclusion from the high school was unlawful and an order requiring the respondent to admit him to the school.
Section 9(1) of the RDA provides as follows:
Where:
(a) a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances 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.
Annexed as a schedule to the RDA is the 1966 International Convention on the Elimination of all forms of Racial Discrimination[42] (the Convention). Article 1(4) of the Convention provides that:
Nothing in this Convention may be interpreted as affecting in any way the legal provisions of the States’ Parties concerning nationality, citizenship or naturalization, provided that such provisions do not discriminate against any particular nationality.
Article 5 of the Convention establishes the right to education and training as a fundamental right. Accordingly, the applicant submitted that the requirement that students at selective high schools be Australian or New Zealand citizens or permanent residents of Australia had the effect of impairing the exercise by persons of Romanian origin of the right to education on an equal footing with persons of Australian and New Zealand national origin. The applicant admitted there was no evidence of direct discrimination, but submitted that he had been indirectly discriminated against pursuant to Section 9(1A) of the RDA. Federal Magistrate Driver accepted that there were four elements to indirect discrimination:
(a) a term condition or requirement is imposed on a complainant;
(b) the term, condition or requirement is not reasonable in the circumstances;
(c) the complainant does not or cannot comply with that term, condition or requirement;
(d) the requirement has the effect of interfering with the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as the complainant of any relevant human right or fundamental freedom.
It was clear that a requirement had been imposed on the applicant, and that he could not comply with it. The issue was whether the conduct satisfied elements (b) and (d). Federal Magistrate Driver found that the requirement that the student be an Australian citizen or permanent resident was unreasonable. It was more reasonable that the requirement be that the student had applied for Australian citizenship or permanent residency.
In determining whether the conduct satisfied element (d), Driver FM considered the definition of ‘national origin’. He accepted the definition offered by the Full Federal Court in Macabenta v Minister for Immigration,[43] where ‘national origin’ was defined as ‘a connection 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’. He said this was supported by the interpretation given to the Convention internationally, particularly in a background paper prepared for the 55th session of the United Nations Economic and Social Council on 26 February 1999. However, Driver FM then found that there was nothing to indicate that persons of Australian national origin are better able to comply with the respondent’s requirement for citizenship or permanent residence than persons of Romanian national origin. The application was dismissed.
Vanstone v Clark
(2005) 224 ALR 666; [2005] FCAFC 189
Federal Court of Australia
Black CJ and Weinberg J
In 2002 the appellant, the Minister for Immigration and Multicultural and Indigenous Affairs (the Minister), suspended the respondent, Mr Geoff Clark, from office as a Commissioner of the Aboriginal and Torres Strait Islander Commission (ATSIC) for ‘misbehaviour’. This ‘misbehaviour’ was in the form of a conviction for obstructing police arising from his involvement in events at the Criterion Hotel in Warrnambool on 2 May 2002. Under the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth)(the ATSIC Act) the Minister had power to specify conduct as constituting ‘misbehaviour’ for the purposes of the ATSIC Act. The Minister’s predecessor had made a Determination that defined misbehaviour by reference to a conviction for an offence for which there is a penalty of imprisonment. The respondent appealed this determination to the Federal Court claiming, amongst other things, that the definition of misbehaviour contravened Section 10(1) of the Racial Discrimination Act 1975 (Cth)(the RDA).
At first instance, Gray J found that the definition of misbehaviour did violate Section 10(1) of the RDA, as it imposed higher standards on ATSIC officers (who were likely to be people of Aboriginal or Torres Strait Island descent) than comparable office holders (such as trade union officials, municipal councillors and various ministerial appointees). Justice Gray referred to the principle of statutory interpretation that if legislation is capable of a reading consistent with Australia’s international obligations, then that is to be preferred over an alternative reading the effect of which would be to put Australia in breach of its obligations. Keeping in mind the 1966 International Convention on the Elimination of All Forms of Racial Discrimination,[44] Gray J held that the Determination should be read down to the extent necessary to give ATSIC officers the same rights as were enjoyed by the other office-holders. His Honour also rejected an argument by the Minister that ‘because the ATSIC Act is a special measure for the benefit of indigenous people, within the meaning of s 8 of the RDA, it follows that any provision within it cannot be subject to s 10(1)’.
The Minister appealed to the Full Federal Court. The appeal was upheld. Weinberg J was the only judge to deal substantively with the question of racial discrimination. He held that the definition of misbehaviour did not contravene Section 10(1) of the RDA, as it imposed the same standards of behaviour on all Commissioners regardless of their background. It was not unusual to expect higher standards of behaviour from some office holders over others. Although not necessary to decide the issue, Weinberg J also held that the ATSIC Act did not constitute a ‘special measure’.
Humane Society International Inc v Kyodo Senpaku Kaisha Ltd
Federal Court of Australia
Allsop J
The applicant sought leave under Federal Court Rules Order 8 for leave to serve originating process out of the jurisdiction and on the respondent in Japan. The application, supported by a statement of claim, sought declaratory and injunctive relief concerning whaling said to have been carried out by the respondent, a Japanese fishing and whaling company, in the Australian Antarctic Exclusive Economic Zone contrary to provisions of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act). This included the taking of some 428 minke whales in the Australian Whale Sanctuary in contravention of sections 229, 229A, 229B, 229C, 229D and 230 of the EPBC Act, which govern the killing, injuring, taking or possession of cetaceans.
The Japanese respondents had hunted whales in accordance with a special permit issued by the Japanese government under Article VIII of the 1946 International Convention for the Regulation of Whaling,[45] being for the conduct of scientific research. Japan does not recognise Australia’s claim of territorial sovereignty over the Australian Antarctic Territory.
Section 475(1) of the EPBC Act provides that an ‘interested person’ may apply to the Federal Court for an injunction where a person has engaged or proposes to engage in conduct that constitutes an offence under or a contravention of the EPBC Act.
At an earlier stage, Allsop J directed that notification be given to the Commonwealth Attorney-General so that the Australian government could put submissions on the proper construction and interpretation of the legislation and treaties involved, in particular in the light of what might be seen to be Australia’s national interest, including inter-governmental relations between Australia and Japan.
The government submitted that the Japanese government would regard any attempt by Australia to enforce Australian law against Japanese vessels and its nationals in the Antarctic EEZ to be a breach of international law on Australia’s part and would give rise to an international disagreement with Japan. Further, enforcement of Australian domestic law against foreigners in the Antarctic EEZ, based as it is on Australia’s claim to territorial sovereignty to the relevant part of Antarctica, can be ‘reasonably expected to prompt a significant adverse reaction from other Antarctic Treaty Parties’. Finally, up to this point, the Australian government has not enforced the laws of the Commonwealth in Antarctica against nationals of other states which are parties to the Antarctic Treaty, except where there has been submission to Australian law, for example, by applying for permits under applicable Australian law. An assertion of jurisdiction by an Australian court over claims concerning rights and obligations found in the EPBC Act, in the view of the government, would or may provoke an international disagreement with Japan, undermine the status quo attending the 1959 Antarctic Treaty,[46] and ‘be contrary to Australia’s long term national interests’. Accordingly, diplomatic rather than legal efforts were being pursued.
These were all submissions. No affidavit was filed, nor any certificate given. Even so, the submissions were accepted as the views of the Australian government and so non-justiciable.
In refusing leave to permit service abroad, Allsop J took into account that (a) the issues were of international political controversy which are otherwise dealt with under international law and procedures; (b) Japan would view the assumption of jurisdiction as baseless by international law; (c) the injunction would be ignored, and would be futile; (d) the ‘making of a declaration alone … might be seen as tantamount to an empty assertion of domestic law (by the Court), devoid of utility beyond use (by others) as a political statement’; and (e) that the futility would be ‘compounded by placing the Court at the centre of an international dispute (indeed helping to promote such a dispute) between Australia and a friendly foreign power which course or eventuality the Australian Government believes not to be in Australia’s long term national interests’.
[Note: On 14 July 2006, the Full Court allowed an appeal against the orders made by Allsop J and ordered that the applicant have leave to serve the originating application and the amended statement of claim on the respondent: (2006) 154 FCR 425; [2006] FCAFC 116. On 2 February 2007, Allsop J made orders allowing substituted service of the originating process: [2007] FCA 124 (reasons given 16 February 2007).]
Tisand
Pty Ltd v Owners of Ship MV Cape Moreton (Ex Freya)
(2005) 143 FCR 43; 219 ALR 48; [2005] FCAFC 68
Federal Court of Australia
Ryan and Allsop JJ
On 8 June 2004, the motor vessel ‘Cape Moreton’ (the ship) was arrested by an Admiralty Marshal of the Court on the application of the plaintiffs in support of a claim by them for damage to a cargo of zircon sand, said to have occurred on a voyage from Richards Bay in South Africa to China. A company called Freya Navigation Shipholding Ltd (Freya) was said to be legally responsible, as carrier, for the damage. The beneficial owner of the ship, Alico, entered an appearance, seeking to have the writ in rem set aside. At issue was the meaning of ‘the owner’ in Section 17(b) (and so Pt III) of the Admiralty Act 1988 (Cth) (the Act) and whether it necessarily includes ‘registered owner’.
In Australia a party may be the ‘owner’ of a ship for the purposes of sections 17, 18 or 19 of the Act and not be on any register, if it is the beneficial owner. Alico claimed that it was the owner, even though Freya was still on the register of ships in Liberia. As such, the ship could not be arrested as it was not owned by the party alleged to be responsible for the damage. Tisand submitted that if a party is in fact registered as owner on an international ship register that, of itself, is sufficient for satisfaction of the criterion of ‘owner’ in the above sections, irrespective of the beneficial ownership (in the property sense) of the ship.
The Full Court held that the phrase ‘the owner’ in sections 17, 18 and 19 of the Act did not necessarily encompass the party entered on any international register of ships but instead referred to an owner in a proprietary sense. As such, Freya was not ‘the owner’ of the ship at the commencement of the proceeding and the arrest could not be sustained. In the course of so holding, the Court nevertheless commented on the importance of registers and the concept of ‘registered owner’ in public international law.
An aspect of their public law function is the part they play in the international use of the high seas. A cardinal principle of international law is that jurisdiction over a ship on the high seas rests with the state to which the ship belongs. A related rule is that all ships using the high seas must possess a (that is a single) national character. Generally, the attribution of national character to a ship is determined by the entry of the ship on the public records of a particular state, such nationality bringing with it the right to fly the nation’s flag, thereby subjecting the ship to that state’s jurisdiction for various purposes including safety, crewing and criminal law.[47]
The Court then highlighted the ease with which ships could be registered on ‘open registers’ and how this has led to international concern about ‘flags of convenience’. This has resulted in requirements being imposed by international conventions (such as the 1958 Geneva Convention on the High Seas[48] and the 1982 United Nations Convention on the Law of the Sea[49]) that there be a genuine link between the flag state and the ship and the ability to exercise effective jurisdiction and control in administrative, technical and social respects over the ship. The 1986 United Nations Convention on Conditions for Registration of Ships[50] introduced the notion of an economic link requiring the participation of nationals in the ownership, manning and management of ships. Such provisions indicate that the purpose of the register was not merely to keep a record of title, but to facilitate the control of international shipping in the interests of safety, proper crewing and the prevention of pollution by placing responsibility on known and identified entities.
NAGV and NAGW of 2002 v Minister for Immigration and
Multicultural and Indigenous Affairs
High Court of Australia
The appellants were citizens of the Russian Federation who were found by the Refugee Review Tribunal (RRT) to have a well-founded fear of persecution on account of their Jewish faith and the political activities and opinions of the first appellant (thus satisfying the definition of ‘refugee’ in Article 1A(2) of the 1951 Refugee Convention[51]). The RRT nevertheless denied them protection visas under the Migration Act 1958 (Cth) on the ground that they had a right of return to Israel, and accordingly would receive ‘effective protection’ there,[52] thus discharging Australia of its protection obligations.
This approach was based on Minister for Immigration and Multicultural Affairs v Thiyagarajah,[53] and was upheld on appeal by the Full Federal Court. Although that court expressed the view that Thiyagarajah had been wrongly decided, it nonetheless felt bound to follow it as it had long been considered settled law.[54] The present case before the High Court was, in effect, a challenge to the Thiyagarajah approach.
The appeal to the High Court turned upon the construction of Section 36(2) of the Migration Act, which at the relevant time provided that: ‘A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under [the Refugee Convention].’ The particular focus was the meaning of the phrase ‘to whom Australia has protection obligations’.[55]
The Minister contended that even though the appellants technically qualified as refugees under Article 1A(2) of the Convention, Australia did not have protection obligations towards them because Israel would allow them to enter and remain there, and would not seek to return them to a place of persecution. It was argued that this was in accordance with Australia’s obligation under Article 33(1) of the Refugee Convention to respect the principle of non-refoulement.
The Court reasoned that this was a non-sequitur, arguing that Australia did not discharge its protection obligations under international law simply by ensuring that the principle of non-refoulement would not be breached.[56] It remarked that the Minister’s argument was particularly curious in light of the Convention’s drafting history, since it would be ‘an exquisite irony’ if contracting states to the Refugee Convention had never been obliged to protect Jewish refugees by virtue of Israel’s law of return,[57] or, as Kirby J put it, ‘if the enactment by the State of Israel of the Law of Return, without more, meant that the Convention’s “protection obligations”, accepted by other countries, were thereby withdrawn throughout the world, by implication and not express terms, from application to all persons who were, or might be, classified as Jewish’.[58] The Court held that the Refugee Convention does not provide, either expressly or impliedly, that a contracting state’s protection obligations are only engaged where there is no other state that can provide effective protection.[59] Likewise, it held that at the relevant time, Section 36(2) of the Migration Act required only that an individual meet the definition in Article 1A(2) of the Convention before Australia’s protection obligations would be triggered.[60]
In reaching this conclusion, the joint judgment of Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ considered the role of the 1951 Refugee Convention in Australian law. In particular, it noted that the right of asylum under customary international law is a right pertaining to states (to grant asylum), not to individuals (to enter and be granted asylum). Further, it observed that the Refugee Convention is an instrument that circumscribes state sovereignty in states’ treatment of their nationals, but does not confer international legal personality on refugees,[61] and that the obligations that states have assumed under the Refugee Convention are owed to other contracting parties, not to refugees. In separate reasons,[62] Kirby J took issue with this characterisation of the Convention, noting ‘the growth of the recognition of the individual as a subject of international law’ over the past 50 years, and the terms and subject matter of the Convention itself.[63]
In construing the Migration Act, Kirby J noted that the ‘Convention constitutes an important means of protection for the human rights and fundamental freedoms of refugees who claim such protection as non-citizens in Australia’.[64] Sections 36(2) and 65(1) of the Act, giving effect to Australia’s accession to that instrument, should be interpreted ‘so as to ensure that Australia’s international obligations [are] thereby carried into full effect’.[65] In this regard, Kirby J observed that the Refugee Convention does not absolve contracting states of their protection obligations to a refugee where ‘the applicant might have obtained protection elsewhere’.[66] He noted the absurdity of such an approach, which would effectively transform some states’ generosity towards refugees into a mechanism for releasing other contracting states from their international obligations.[67] Furthermore, if the Minister’s interpretation was correct, ‘[i]t would shift obligations clearly imposed by international law to contingencies that, in some cases, may be imponderable’, and would ‘introduce a serious instability and uncertainty of “protection obligations” into the Convention’s requirements.’[68]
Justice Kirby also observed that the term ‘protection obligations’ in Section 36(2) of the Act entails much more than the obligation in Article 33(1) of the Convention not to return refugees to persecution,[69] engaging ‘at least the obligations accepted by the contracting parties under the Convention that would normally be the primary responsibility of the country of nationality in relation to its own citizens’.[70] Accordingly, Australia’s non-refoulement obligation under Article 33(1) was merely one of ‘many other “protection obligations” that remain to be fulfilled in respect of the appellants whilst they are in Australia, and whilst s 36(2) is engaged in their case’.[71]
The Court allowed the appeal.
Exclusion clauses under the Refugee Convention—definition of ‘war crimes’ and ‘crimes against humanity’ – defence of superior orders – applicability of the Rome Statute and other instruments relating to international criminal law
SRYYY v Minister for Immigration and Multicultural and Indigenous Affairs
Federal Court of Australia
Merkel, Finkelstein and Weinberg JJ
The appellant, a Sri Lankan national, was excluded from refugee status under Article 1F(a) of the Refugee Convention. That article excludes from Convention protection any person ‘with respect to whom there are serious reasons for considering that … he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes’. The appellant was said to fall within the terms of Article 1F(a) because, as a soldier in the Sri Lankan army, he had performed violent acts amounting to torture, and had made threats (including death threats to children) in order to extract information. He was denied a protection visa by a delegate of the Minister on the ground that there were serious reasons for considering that he was ‘complicit in the crimes against humanity and the war crimes of the Sri Lankan army’.[72]
The Administrative Appeals Tribunal (AAT) reviewed and affirmed this decision, and the Federal Court dismissed an appeal from the AAT’s decision as incompetent because there was no jurisdictional error.
The Full Federal Court in the instant case was asked to determine whether the AAT, in assessing whether the applicant was excludable under Article 1F(a), was entitled to rely on the Rome Statute of the International Criminal Court as an ‘international instrument drawn up to make provision in respect of’ war crimes and crimes against humanity, since that instrument was not in force at the time the appellant was alleged to have committed such crimes. Even if it was entitled to do so, the appellant submitted that the AAT had failed to consider inter alia whether the defence of superior orders applied to him, thereby relieving him of individual criminal responsibility.
The Court determined that there was no jurisdictional error in the AAT’s application of the Rome Statute’s definitions of ‘crimes against humanity’ and ‘war crimes’, but that it did fall into jurisdictional error by failing to apply the defence of superior orders set out in Article 33 of that instrument.
The judgment contains an extensive discussion of the drafting history of Article 1F(a) of the Refugee Convention, and in particular the meaning of the phrase ‘as defined in the international instruments drawn up to make provision in respect of such crimes’.[73] The Court observed that the phrase was intended to do away with an earlier draft text that had referred to specific international instruments that should be used to determine excludable acts,[74] recognising ‘the uncertain and imprecise content of [international criminal] law at any particular time’.[75] Indeed, the Court drew attention to the dynamic nature of international law rules, whose content ‘inevitably turns on the future evolution of international law’:[76] ‘The drafters of the final form of the article avoided that difficulty by enabling the decision-maker to draw upon the definitions of such crimes by reference to unspecified international instruments drawn up to provide for the crimes in question, rather than by reference to any specific international instruments or to customary international law.’[77]
However, the Court recognised the inherent difficulties in interpreting the meaning of ‘war crimes’ and ‘crimes against humanity’, given the overlapping and at times inconsistent definitions in various international instruments.[78] It acknowledged that ‘the choice of instrument against which the appellant’s acts are to be assessed can have a significant impact on whether or not those acts constitute the commission of a crime against humanity, and, more particularly, a “war crime”.’[79] For example, the Court observed that under instruments such as the 1945 London Charter[80] or the 1949 Geneva Conventions[81] and their Additional Protocols,[82] it would be difficult to sustain a finding that there were ‘serious reasons for considering’ that the appellant had committed a ‘war crime’, since those instruments tie war crimes to international armed conflicts. By contrast, ‘[p]erhaps the most significant change in terms of scope and content of individual criminal responsibility since the Second World War’[83] has been customary international law’s extension of individual criminal responsibility to war crimes committed in internal armed conflicts as well.[84] The choice of international instrument similarly impacts upon the availability and content of the defence of superior orders.[85] By contrast to earlier instruments that incorporated ‘superior orders’ within the wider defence of duress, the Rome Statute contains a distinct superior orders defence that may absolve an individual from criminal responsibility (in Article 33).[86]
The Minister argued that Article 1F(a) may be interpreted by reliance on any international instrument dealing with such crimes, even if that instrument (in this case, the Rome Statute) was not in existence at the time when the alleged conduct occurred. The Minister further contended that Article 1F(a) does not require that the alleged conduct constituted an international crime at the time when it was committed. The Court found a textual difficulty with this approach: ‘It is implicit in the phrase “there must be serious reasons for considering” that the person in question has “committed” a relevant international crime, that the conduct in question constituted a crime at the time that conduct was engaged in.’[87] Nevertheless, an international instrument defining a crime need not have existed at the time when the crime was committed in order to be relied upon at a later date.[88] This, in the Court’s view, reflected the fact that ‘[t]he law of war is to be found not only in treaties, but in the customs and practices of states … [and] in many cases treaties do no more than express and define for more accurate reference the principles of law already existing.’[89] Furthermore, the drafting history of Article 1F(a) suggested that that provision was intended to exclude those who had committed serious crimes during the Second World War, ‘notwithstanding that the “international instrument” defining such crimes, namely the London Charter, was drawn up after the commission of the crimes in question’.[90] Finally, Article 1F(a) does not contain a temporal requirement with respect to the international instrument sought to be relied upon; it need only have been ‘drawn up to make provision in respect of such crimes’.[91] The Rome Statute, although not in force at the time of the appellant’s alleged criminal conduct in 1999 and 2000, had been ‘drawn up’ and accordingly fell within the terms of Article 1F(a).[92]
With respect to resolving inconsistencies between different international instruments, the Court noted first that Article 1F(a) recognised that international criminal law would evolve over time, and as such, it would be consistent with its purpose to rely on ‘a definition in an instrument that is contemporary in the sense that it reflects international developments up to the date of the alleged crime, rather than to definitions in earlier instruments that may have become antiquated or are otherwise inappropriate’.[93] (Even so, a decision-maker would be permitted to rely on any international instrument provided that it satisfied the criterion in Article 1F(a).) The Rome Statute was one such instrument, and it was therefore open to the AAT to rely on it, both with respect to the definitions of ‘war crimes’ and ‘crimes against humanity’, and the applicability of the defence of superior orders.[94]
The standard of ‘serious reasons for considering’ does not require the appellant to have been formally charged with a crime, nor does the decision-maker have to be satisfied ‘beyond reasonable doubt’ or ‘on the balance of probabilities’ that a crime has been committed. The phrase requires only that there be ‘clear and convincing evidence’ that the appellant had committed such crimes.[95]
However, in determining whether the definition in the chosen international instrument has been satisfied, the decision-maker must address every element of that definition. In the instant case, with respect to crimes against humanity, the Court found that the AAT had failed to address the question of whether the appellant had requisite ‘knowledge’ of the existence of a widespread and systematic attack,[96] and had accordingly committed a jurisdictional error.[97] However, this would be immaterial to the outcome of the present case unless the appellant could also show that the AAT’s decision with respect to war crimes was also flawed, since a finding that he was involved in either type of crime would be sufficient to satisfy Article 1F(a).[98] In this regard, the Court accepted the appellant’s contention that the AAT had failed to consider whether the defence of superior orders applied to him and thereby relieved him of criminal responsibility for acts that might otherwise constitute war crimes. In determining whether a person ‘has committed a crime’ for the purposes of Article 1F(a), a decision-maker must also consider whether any defences are made out: ‘We are unable to accept the proposition [put by the Minister] that a person may be said to have committed a crime when that person has a defence which, if upheld, will absolve or relieve that person from criminal responsibility.’[99] Indeed, to fail to consider the applicability of defences ‘would be antithetical to the purpose of Art 1F(a), and contrary to principle’.[100]
For this reason, the Court found that the AAT had fallen into jurisdictional error, and the appeal was allowed.[101]
Applicant NABD of 2002 v Minister for Immigration
and
Multicultural and Indigenous Affairs
High Court of Australia
This case concerned the meaning of freedom of religion, and, in particular, whether the Refugee Review Tribunal (RRT) had fallen into jurisdictional error by categorising Iranian Christians as either aggressive proselytisers (who would be persecuted for their religious beliefs) or quiet evangelists (who would not be persecuted). It was argued that in doing so, the RRT had failed to consider the critical issue, namely whether the appellant had a well-founded fear of persecution based on his religion.
The majority of the Court (Gleeson CJ, and, in a joint judgment, Hayne and Heydon JJ) dismissed the appeal on the grounds that there was no jurisdictional error on the part of the RRT. Justices McHugh and Kirby, in separate judgments, would have allowed the appeal.
In his written reasons, Kirby J engaged in extensive analysis of the meaning of freedom of religion as a matter of international and regional human rights law. First, he noted Australia’s ratification of the ICCPR and its Second Optional Protocol, the aim of which is to abolish the death penalty throughout the world. Section 22(3)(c) of the Extradition Act 1988 (Cth) seeks to implement this obligation by requiring Australian authorities, in all cases concerning the extradition of a person to a country that retains the death penalty, to obtain an undertaking that the individual will not be subject to the death penalty, or that that penalty will not be carried out if the individual is subject to it, before any such extradition may take place.[102] Australian decision-makers should accordingly ‘approach the meaning and application of the Act in ways that are consonant’.[103] In Kirby J’s view, neither the RRT nor the Federal Court took sufficient account of the appellant’s fear about the risk of the death penalty being applied to him were he returned to Iran.[104]
Justice Kirby also discussed the Refugee Convention as ‘part of the international law that upholds basic human rights’.[105] He supported the view that if a state was ‘unable or unwilling to afford one of its own citizens his or her human rights as set forth in the UDHR, refugee and asylum law should recognize that individual’s right to asylum in a state that will uphold those rights’,[106] regarding the Convention as a primary human rights instrument ‘providing tangible redress from certain basic human rights violations’.[107] He explained that the term ‘persecution’ includes the ‘sustained or systemic violation of basic human rights demonstrative of a failure of State protection’.[108]
Understanding the Convention in this context leads to the conclusion that any requirement that a person’s expression of his or her religion be discreet or inconspicuous is incompatible with human rights law. While an individual’s religious beliefs must necessarily be accommodated within the human rights of other people, that does not mean that religion must be a secret or privately manifested belief.[109] This reasoning is supported by Article 18 of the Universal Declaration of Human Rights and Article 18 of the ICCPR, which make clear that the right to freedom of religion is subject ‘only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others’.[110] This is further supported by General Comment 22 of the Human Rights Committee, which supports a broad interpretation of the right of an individual to manifest his or her religious beliefs.[111] In Kirby J’s view, the situation in Iran (as detailed in uncontested country reports) fell ‘far short’ of the activities that the Committee regarded as inherent in free religious expression. In analysing the meaning of freedom of religion, Kirby J also referred to the Declaration on the Elimination of All Forms of Intolerance and of Discrimination based on Religion or Belief,[112] UNHCR’s Handbook on Procedures and Criteria for Determining Refugee Status,[113] and general human rights law, both at the international and European levels.[114]
SZBPQ v Minister for Immigration and Multicultural and Indigenous Affairs
Federal Court of Australia
Hely J
The international law issue in this case was whether, when determining a protection visa application, the Refugee Review Tribunal (RRT) was required to prefer an interpretation of Section 420 of the Migration Act – namely, that it act according to substantial justice and the merits of the case – consistent with Australia’s obligations under the Convention on the Rights of the Child. The appellant argued that Australia’s ratification of that treaty gave rise to a legitimate expectation that the RRT would act in conformity with its provisions, and therefore treat the appellant’s best interests as a primary consideration. However, Hely J dismissed this argument on the grounds that Section 420 of the Act was ‘facultative, not restrictive’ in its intent,[115] and that ‘[c]ompliance with its provisions is not a precondition to lawful decision-making.’[116] Furthermore, in determining whether or not a protection visa should be granted, he stated that the RRT does not exercise any discretion upon which the ‘best interests of the child’ principle could be brought to bear as a ‘primary consideration’.[117] Accordingly, ‘there was no scope for the application of principles derived from the reasoning of the majority in Teoh’s case, and no error on the part of the RRT in failing to take into account the provisions of the CROC in coming to its decision’.[118]
QAAH v Minister for Immigration and Multicultural and Indigenous Affairs
Federal Court of Australia
Wilcox, Madgwick and Lander JJ
This appeal to the Full Federal Court concerned the applicability of the cessation clause in Article 1C(5) of the Refugee Convention to a holder of a temporary protection visa who applied for permanent protection in Australia. The appellant was an Afghan citizen who, in March 2000, had been granted a Class XA temporary protection visa valid for 36 months. Due to departmental delays in processing applications for permanent protection visas, a 2001 amendment to the Migration Regulations 1994 (Cth) provided that the time limit on Class XA visas would, in effect, be extended, so as to give continued protection to temporary visa-holders who applied for permanent protection during the visa’s initial 36 month validity. This did not, however, apply to Class XA visa-holders who had already lodged a permanent protection visa application prior to the amendment, and which remained pending. Instead, such persons were eligible for a Class XC visa, for which they were deemed to have applied.
The effect of creating a separate visa class was to require the grant of a new Class XC visa to affected persons, rather than merely extending the temporal validity of their existing Class XA visa. On 27 March 2003, the day before the appellant’s Class XA visa expired, the Minister’s delegate advised him that he had been granted a Class XC visa. In granting this visa, the delegate referred to the reasons that had led to the initial Class XA visa grant, based on evidence presented by the applicant in March 2000. No new evidence was considered.
The appellant’s application for a permanent protection visa was rejected on 21 November 2003, and affirmed by the Refugee Review Tribunal (RRT) on 3 May 2004. In its reasons, the RRT considered the applicability of (and the relationship between) Article 1A(2) (the definition of ‘refugee’) and Article 1C(5) (cessation of refugee status based on changed conditions in the country of nationality) of the Refugee Convention. It observed that the key issue raised by Article 1C(5) was ‘whether an individual can no longer refuse to avail him or herself of the protection of his or her country because the circumstances in connection with which he or she was recognised as a refugee have ceased to exist’.[119] The RRT applied the test contained in that provision, and found that the original circumstances leading to the grant of the appellant’s temporary protection visa had ceased to exist, and accordingly on those grounds, he no longer had an international protection need. The RRT recognised, however, that he could still be a Convention refugee for other reasons, although it found on the evidence that he was not.
In the Federal Court, the primary judge had to determine whether the RRT had acted correctly in applying the cessation clause. The appellant submitted that even though he had not provided any new information to the Department when the decision to grant him a Class XC visa in March 2003 was made, it was a condition precedent to the grant of such a visa that the Minister was satisfied at that time that he was a person to whom Australia owed protection obligations. Accordingly, he said, his circumstances at that date were sufficient to justify the grant of a protection visa to him, and he should therefore continue to benefit from that protection until the circumstances changed in a manner envisaged by Article 1C. The effect of the appellant’s submissions was ‘either that a temporary (XC) visa continues until the cessation clause is engaged, despite the statutory limit on its life, or that there is some obligation to grant a new visa without reference to current circumstances’.[120] It was submitted, inter alia, that the RRT erred in considering only the circumstances that existed as at March 2000, when the initial Class XA visa was granted, rather than the circumstances in March 2003.
The primary judge held that it was unnecessary to determine whether or not the cessation clause had been engaged.[121] He found that the only relevant question was whether the appellant had a well-founded fear of persecution for a Convention reason at the time of the RRT’s decision, requiring the RRT only to consider Article 1A(2) of the Refugee Convention, not Article 1C(5). In any case, the primary judge held that the only ‘circumstances’ against which a decision to grant the applicant a protection visa had ever been assessed were those of March 2000, and accordingly there was no ‘recognizable legal basis’ supporting the appellant’s assertion that it was against circumstances in 2003 that the cessation clause should be assessed.[122]
Two issues were raised on appeal to the Full Federal Court: (a) the effect of the March 2003 decision; and (b) the approach the RRT ought to have adopted with respect to Article 1C(5). The majority (Wilcox and Madgwick JJ) allowed the appeal, ordering that the RRT’s decision be quashed and the appellant’s application for a protection visa be remitted to the RRT.
With respect to the first issue, the majority accepted that the Class XC visa had been granted on the basis of the appellant’s circumstances in March 2000, and accordingly, were the cessation clause to be applied, it must necessarily apply to the circumstances existing at that time, rather than in March 2003.[123]
The second issue required a detailed analysis of the Refugee Convention, raising a number of important international law issues. In considering the nature and effect of Article 1C(5) of the Refugee Convention, the majority discussed the relevance of material such as UNHCR guidelines and notes on international protection. Though acknowledging that such documents are not ‘rules of law’, Wilcox J affirmed that, except where inconsistent with the Migration Act or the Refugee Convention:
these statements should be taken into account by anybody who is required to determine whether a particular person should be recognized as a refugee, for the first time, or whether a previously recognized person has ceased to be a refugee. Like the UNHCR Handbook mentioned in Chan, these are documents prepared by experts published to assist States (including Australia) to carry out their obligations under the Convention.[124]
In support of this view, Wilcox J referred to the House of Lords’ extensive reliance on UNHCR material in interpreting the Refugee Convention in R (Hoxha) v Special Adjudicator.[125]
Extending this analysis, Madgwick J explained that the Refugee Convention must be read in light of the Vienna Convention on the Law of Treaties, noting that although that treaty was adopted after the Refugee Convention, it reflects customary international law and is therefore applicable.[126] Following McHugh J in Applicant A v Minister for Immigration and Ethnic Affairs,[127] he observed that the correct approach to treaty interpretation, now generally accepted by the High Court, was an ‘ordered, yet holistic one’,[128] permitting recourse to ‘useful and valid extrinsic materials’ in elucidating the meaning of a treaty’s text, irrespective of any textual ambiguity.[129]
Justice Wilcox (Madgwick J concurring[130]) drew considerably on the House of Lords’ discussion in Hoxha of the relationship between articles 1A(1), 1A(2) and 1C of the Refugee Convention, noting in particular Lord Brown’s view that where the status of a person who has already been recognised as a refugee is at issue, the inquiry should proceed via Article 1C(5) rather than Article 1A(2). He referred also to Lord Brown’s acknowledgment that there is a heavy burden on any state contending that a person’s status as a refugee has ceased,[131] and his conclusion that ‘the approach to the grant of refugee status under Article 1A(2) does not precisely mirror the approach to its prospective subsequent withdrawal under 1C(5)’.[132]
On the relationship between the Migration Act and the Refugee Convention, Wilcox J explained that while the language used in Section 36(2)(a) of the Act requires a determination by the Minister (or delegate) or the RRT as to whether Australia has protection obligations under the Convention to a particular individual, ‘the real question is whether the person falls within the Convention’s definition of “refugee”’.[133] Again following Lord Brown’s reasoning in Hoxha, he held that if Australia had already determined that a person was a refugee, then ‘Australia has a protection obligation to that person, by force of the Convention itself, unless and until Article 1C(5) has caused cessation of that obligation.’[134]
The fact that the appellant had been previously recognised by Australia as a refugee was of ‘critical importance’, since that formed the starting point for consideration of his application for a permanent protection visa. Justice Wilcox explained that ‘it affected what might loosely be called the burden of proof’.[135]
In an original application for refugee status, relying on Article 1A(2), the Minister (or her delegate or the tribunal) must be satisfied of facts that support the inference that the applicant has a well-founded fear (including that there is a real chance) of persecution for a Convention reason if returned to his or her country of nationality. If the facts do not go so far, the claim for a protection visa will fail. The situation is different in relation to an inquiry under Article 1C(5) as to possible cessation of refugee status. If the facts are insufficiently elucidated for a confident finding to be made, the claim of cessation will fail and the person will remain recognised as a refugee.[136]
Justice Madgwick observed that the Refugee Convention forms part of international human rights law, and that the refugee issue is of a ‘social and humanitarian nature’.[137] He stated that the historical context, purpose and substantive provisions of the Convention did not support an interpretation ‘apt to require a ready, second uprooting of people who have achieved a measure of asylum on the strength of their recognition as refugees’.[138] Justice Wilcox expressly endorsed Madgwick J’s statements about the principles governing interpretation of the Convention,[139] noting in particular the distinction between a state’s recognition of a person as a ‘refugee’, and a grant of protection to such a person: ‘Recognition is a function of the Convention; protection is a function of the Act.’[140] Refugee status does not expire merely because a temporary visa has, and may only cease by virtue of the application of Article 1C(5) of the Convention.
In addition to, though irrespective of, states’ international treaty obligations, Madgwick J stated that ‘[i]n interpreting the Convention, the possible burden to the States of providing more than protection for the least possible period strictly necessary must be balanced against the demands of humane treatment of the people concerned and the hardships of returning them to places where, or of which, they have held genuine and serious fear, unless their future safety is reasonably assured.’[141] He referred to Gaudron J’s remarks in Minister for Immigration and Ethnic Affairs v Teoh[142] and Callinan J in Sanders v Snell[143] to support his view that general standards of humane values and conduct, or, in Callinan J’s words, ‘matters in respect of which any civilised person would hold expectations, whether referable to a United Nations Convention or otherwise’, must be considered. In Madgwick J’s view, a ‘reasonable, civilised person or State party to the Refugees Convention would … understand the contracting States’ obligations to refugees in the context of the likely circumstances of refugees’, including ‘their probable dislocation and consequent special need to re-establish a degree of stability in their and, often, their families’ lives’.[144]
Accordingly, the majority found that the RRT had taken the correct approach. Where an individual has already been recognised as a refugee, the decision-maker must first consider whether the cessation clause in Article 1C(5) of the Refuge Convention applies. If the cessation clause does not apply, then the individual remains a Convention refugee. If the original grounds for granting refugee status have ceased, in accordance with Article 1C(5), then the decision-maker must go on to assess whether there are any new grounds that qualify the individual as a refugee under Article 1A(2) of the Refugee Convention.
In his dissenting judgment, Lander J reached the opposite conclusion. He reasoned that Article 1C(5) was irrelevant because the RRT had not been asked to consider the revocation of a visa, but rather the grant of a new type of visa (permanent protection). Accordingly, he said, it ought to have done so de novo – that is, treating it as a fresh application for protection, and thus according to Article 1A(2) and not Article 1C(5) of the Convention.[145] Justice Lander described the RRT’s approach in the instant case as ‘too favourable to the appellant’,[146] finding that it had erred by first considering the cessation clause.[147]
[Note: This matter was appealed to the High Court: Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; see also NBGM v Minister for Immigration and Multicultural Affairs [2006]
HCA 54.]
[*] Barrister, Sydney.
[**] Faculty of Law, University of New South Wales.
[∗∗∗] Sydney Centre for International and Global Law, Faculty of Law, University of Sydney.
[2] [2005] HCA 44; (2005) 219 ALR 403 [355]-[356].
[5] [1988] HCA 10; (1988) 164 CLR 261.
[8] Art 1(4) of the Convention provides that ‘[s]pecial measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.’
[9] [2005] FCA 560; (2005) 218 ALR 76 [35].
[11] [1988] HCA 52; (1988) 165 CLR 543.
[12] [2002] 1 AC 615.
[14] [2005] HCA 12; (2005) 223 CLR 1 [91].
[15] Ibid [316].
[17] [2005] NSWSC 1297 [74].
[18] Ibid [82].
[19] Ibid [91].
[21] [2004] FCA 707; (2004) 206 ALR 571.
[22] [2003] HCA 76; (2003) 78 ALJR 305.
[23] Ibid [10]-[14].
[24] [2005] NSWSC 1106 [21].
[27] [1992] ECHR 77; (1992) 15 EHRR 417.
[28] [2000] ECHR 89; (2000) 30 EHRR 480.
[30] Ibid [8].
[32] [2005] FCA 1410 [93].
[33] GA Res 217A(III), UN Doc A/810 (1948).
[35] [2005] HCA 36 [88].
[36] Ibid [121].
[37] Official Records of the General Assembly, Fifty-fourth Session, Suppl No 10, UN DOC A/54/10 (1999).
[38] Ibid art 5.
[39] Ibid art 24(a).
[40] Ibid art 25(1).
[42] Art 1(4) of the Convention provides that ‘[s]pecial measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.’
[44] Art 1(4) of the Convention provides that ‘[s]pecial measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.’
[47] [2005] FCAFC 68; (2005) 143 FCR 43 [124].
[50] UN Doc TD/RS/CONF/19/Add.1. Not in force.
[52] The appellants had previously considered – and rejected – the option of relocating to Israel because the first appellant’s wife was not herself Jewish; they were concerned that families of mixed marriages faced discrimination there; they did not speak Hebrew; and compulsory military service in Israel conflicted with the pacifist upbringing of their children. Despite this, the RRT did not regard these factors as negating the existence of effective protection for the family in Israel.
[54] [2003] FCAFC 144; (2003) 130 FCR 46, 48-49 (Finn J); 68 (Conti J).
[55] NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 6 [27] (Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ) (joint reasons).
[56] Ibid [29] (joint reasons); Kirby J described the Minister’s interpretation as ‘a strained one’: [76].
[57] Ibid [30] (joint reasons), citing Sackville J in NAEN v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 216 [74].
[58] NAGV [97] (Kirby J).
[59] Ibid [42] (joint reasons).
[60] Section 36 was altered with effect from 16 December 1999 to stipulate in para 3 that: ‘Australia is not taken to have protection obligations to a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.’ The exceptions are where the individual would have a well-founded fear for a Convention reason in that country, or where the individual has a well-founded fear that that country would send him or her to a country where he or she would face persecution for a Convention reason.
[61] NAGV [27] (joint reasons).
[62] Kirby J agreed with the orders, but based his reasons on a narrower footing: Ibid [63].
[63] Ibid [68] (Kirby J).
[64] Ibid [89] (Kirby J).
[65] Ibid, referring to Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 [29] per Gleeson CJ; Coleman v Power [2004] HCA 39; (2004) 78 ALJR 1166 [17]–[24] (Gleeson CJ), [240]-[249] (Kirby J).
[66] NAGV [90] (Kirby J).
[67] Ibid [91] (Kirby J).
[68] Ibid [93] (Kirby J).
[69] Ibid [81] (Kirby J).
[70] Ibid [70] (Kirby J).
[71] Ibid [81] (Kirby J).
[72] SRYYY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 42 [3].
[73] In this context, the court recalled arts 31 and 32 of the Vienna Convention on the Law of Treaties: namely that a treaty is to be interpreted in good faith in accordance with the ordinary meaning of its terms in their context, and in light of the treaty’s object and purpose; that in interpreting a treaty, recourse may be had to matters external to the treaty including ‘subsequent practice in the application of the treaty’, relevant rules of international law applicable in the relations between the parties, the travaux preparatoires, decisions in other fora, views of leading scholars, and UNHCR’s publications: Ibid [18].
[74] Ibid [28].
[75] Ibid [29].
[76] Ibid [31].
[77] Ibid.
[78] Ibid [46].
[79] Ibid [50].
[80] London Charter of the International Military Tribunal (‘Nuremburg Charter’) (8 August 1945).
[81] Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (12 August 1949), 75 UNTS 31 (Geneva Convention I); Convention for the Amelioration of the Condition of the Wounded and Sick and Shipwrecked Members of Armed Forces at Sea (12 August 1949), 75 UNTS 85 (Geneva Convention II); Convention Relative to the Treatment of Prisoners of War (12 August 1949), 75 UNTS 135 (Geneva Convention III); Convention Relative to the Protection of Civilian Persons in Time of War (12 August 1949), 75 UNTS 287 (Geneva Convention IV).
[82] Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, opened for signature 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1979) (Protocol I); Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, opened for signature 8 June 1977, 1125 UNTS 609 (entered into force 7 December 1978) (Protocol II); Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Adoption of an Additional Distinctive Emblem, opened for signature 8 December 2005, (entered into force 14 January 2007) (Protocol III).
[83] Ibid [49].
[84] Ibid [36]. This was recognised by the International Criminal Tribunal for the Former Yugoslavia in Tadic in 1995.
[85] Ibid [51].
[86] Ibid [52]. See discussion of customary international law at [53]ff.
[87] Ibid [61]. The Court drew support from Sackville J’s approach in Ovcharuk v Minister for Immigration and Multicultural Affairs [1998] FCA 1314; (1998) 88 FCR 173, 190-91.
[88] Ibid [63].
[89] Ibid, citing International Military Tribunal (Nuremberg) Judgement and Sentences.
[90] Ibid [64].
[91] Ibid [65]. On a related point, the Court explained that art 1F(a) does not require the individual to have committed a crime under or pursuant to an international instrument; rather, the instrument is simply the source of the definition by which exclusion is to be tested: [67]. The instrument relied upon does not have to make express provision for the crimes allegedly committed by the individual concerned.
[92] Ibid [66].
[93] Ibid [72].
[94] Ibid [75]-[76]. The Court noted that a decision-maker is not required to determine whether or not that instrument accurately reflects the state of customary international law at the time of the alleged crime: [74], see also [77].
[95] Ibid [79].
[96] Ibid [111].
[97] Ibid [112].
[98] Ibid [113].
[99] Ibid [127].
[100] Ibid.
[101] Ibid [137]-[138].
[102] Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29 [91] (Kirby J).
[103] Ibid [92] (Kirby J) (citation omitted).
[104] Ibid [93] (Kirby J).
[105] Ibid [108] (Kirby J).
[106] Ibid [110] (Kirby J) citing M J Parrish, ‘Redefining the Refugee: The Universal Declaration of Human Rights as a Basis for Refugee Protection’ (2000) 22 Cardozo Law Review 223, 258.
[107] Ibid, citing D J Steinbock, ‘Interpreting the Refugee Definition’ (1998) 45 UCLA Law Review 733, 736.
[108] Ibid [111] (Kirby J) citing C Harvey, ‘The Right to Seek Asylum in the European Union’ (2004) European Human Rights Law Review 17, 20, citing J Hathaway, The Law of Refugee Status (1991) 104-5.
[109] Ibid [113]-[114] (Kirby J).
[110] Ibid [115] (Kirby J) citing ICCPR art 18(3).
[111] See UN Human Rights Committee, ‘General Comment No 22: The Right to Freedom of Thought, Conscience and Religion (Art 18)’ (1993) [4].
[112] UNGA Res 36/55 (25 November 1981), cited at [118] (Kirby J).
[113] NABD [120] (Kirby J).
[114] See list of instruments cited at ibid [119]; [121]-[122].
[115] SZBPQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 568 [15], citing Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 [49].
[116] SZBPQ [15].
[117] Ibid [17].
[118] Ibid.
[119] QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 136 [15].
[120] Ibid [24].
[121] Ibid [29], referring to the primary judge’s decision at [23].
[122] Ibid, referring to the primary judge’s decision at [25].
[123] Ibid [35].
[124] Ibid [46].
[125] [2005] EWCA Civ 112; [2005] 1 WLR 1063; see Wilcox J at ibid [59].
[126] QAAH [91]-[92].
[127] (1997) 190 CLR 225.
[128] QAAH [93]; see also [94]-[96].
[129] Ibid [95].
[130] Ibid [88].
[131] See discussion at ibid [58].
[132] Cited at ibid [58].
[133] Ibid [65].
[134] Ibid.
[135] Ibid [69].
[136] Ibid [70].
[137] [106], citing Refugee Convention Preamble, 5th placitum.
[138] Ibid; see also his analysis of particular provisions of the Convention: [108]-[111].
[139] Ibid [82].
[140] Ibid [83].
[141] Ibid [101].
[142] (1995) 193 CLR 273, 304.
[143] (1998) 196 CLR 329, 351 (at fn 65).
[144] QAAH [101].
[145] Ibid [267], [272]; see also Emmett J in NBGM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1373 [62].
[146] QAAH [292].
[147] Ibid [295].
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