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Rothwell, Donald R --- "Australian Cases Involving Wuestions of Public International Law 1997 and 1998" [1998] AUYrBkIntLaw 6; (1998) 19 Australian Year Book of International Law 119

Australian Cases
Involving Questions of
Public International Law
1997 and 1998

Donald R Rothwell[*]

1. International Law in General

High Court of Australia — International Court of Justice

— Extent of Commonwealth obligation to seek Advisory Opinion Genocide

Thorpe v Commonwealth of Australia (No 3)

[1997] HCA 21; (1997) 144 ALR 677

High Court of Australia

Kirby J

In the case of Thorpe v Commonwealth of Australia (No 3), Kirby J in the High Court was called upon to determine a claim for declaratory relief, of which one of the declarations was that the Commonwealth was obliged in law to seek from the United Nations General Assembly an Advisory Opinion from the International Court of Justice on the separate rights and legal status of the Aboriginal peoples of Australia. The existence of the obligation was said to be based on the commission of war crimes and genocide against those peoples.

As to the claim being based on a fiduciary duty on the part of the Commonwealth, Kirby J noted the many difficulties associated with the claim, including the bases for the fiduciary obligation originating before the Commonwealth was liable in law for such acts.[1] However, it was recognised that this declaration did not stand alone and either survived or fell depending on the determination of the other declarations. On those matters, it was noted that there was no precedent for the Court seeking to intrude in the conduct of Australia’s international relations. Additionally, the declarations sought did not deal with any “matter” and also lacked the requirements for a justiciable issue.[2] This approach was seen to be consistent with recent High Court authority, some of which related to claims of genocide.[3] As to the argument that the Court should exercise authority in a matter such as this grounded in international law, Kirby J similarly dismissed the submission:

The court whose jurisdiction Mr Thorpe has invoked is created by the Australian Constitution. It is bound to act within the powers conferred by that instrument. To the extent that any larger powers were suggested, they are not, unsurprisingly, to be found in the Genocide Convention Act. Any “universal jurisdiction” afforded to this court by international law could only be discharged by the court in a way that was compatible with the Australian Constitution and with the function of this court within the Australian Commonwealth.[4]

The Court therefore refused to take on the role suggested by Thorpe, noting that these were matters which the Australian Constitution reserves to the Executive Government of the Commonwealth. The matter was therefore set aside for want of jurisdiction by the Court.

Constitutional Law — Interpretation — Impact of International Law

Newcrest Mining v Commonwealth

[1997] HCA 38; (1997) 147 ALR 42

High Court of Australia

The interaction of international law and municipal law has engaged the High Court on a number of occasions throughout the 1990s, particularly in relation to developments in international law and how these should influence the interpretation of Australian law. In Newcrest Mining v Commonwealth, the High Court was called upon to address a number of constitutional issues in relation to the application of section 51(xxxi) of the Australian Constitution regarding the acquisition of property on just terms with respect to mining leases in the Kakadu National Park, an area subject to listing under the 1972 World Heritage Convention.[5] The core of this case was whether the acquisition on just terms provision in section 51(xxxi) applied to property in a Territory subject to the section 122 territories power of the Australian Constitution. There was also some discussion of the operation of the section 51(xxix) external affairs power.

In the course of his judgment, Kirby J made reference to principles of constitutional interpretation in which international law should play a role in the case of ambiguity. It was noted the Court should not use any principle of interpretation as a “means of introducing by the backdoor, provisions of international treaties or other international law concerning fundamental rights not yet incorporated into Australian domestic law.”[6] However, in the case of fundamental rights, there was an evolution taking place between national and international law, which the Court had recognised in its previous decisions.[7] It was noted:

international law is a legitimate and important influence on the development of the common law and constitutional law, especially when international law declares the existence of universal and fundamental rights. To the full extent that its text permits, Australia’s Constitution, as the fundamental law of government in this country, accommodates itself to international law, including insofar as that law expresses basic rights. The reason for this is that the Constitution not only speaks to the people of Australia who made it and accept it for their governance. It also speaks to the international community
as the basic law of the Australian nation which is a member of that community.[8]

Kirby J then went on to list a number of influential statements on the understanding of universal and fundamental rights, including the Universal Declaration of Human Rights, the French Declaration of the Rights of Man and of the Citizen, and other principles embodied in a range of constitutions and national laws.[9] It was concluded that these provisions reflect universal and fundamental rights recognised by customary international law. These principles were then adopted to the interpretation of the relevant constitutional provisions before the Court in that instance.[10]

Constitutional Law — Interpretation — Impact of International Law

Kartinyeri v Commonwealth

[1998] HCA 22; 152 ALR 540

High Court of Australia

Brennan CJ, Gaudron, McHugh, Gummow, Kirby and Hayne JJ

The proposal to build the Hindmarsh Island bridge has been the subject of considerable political controversy in South Australia. The passage of the Hindmarsh Island Bridge Act 1997 (Cth) by the Commonwealth which removed the bridge area from the protection of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) raised further political debate but also resulted in a constitutional challenge before the High Court. The main focus of the challenge related to the constitutional validity of the 1997 Act and whether it could be legitimately founded on any head of Commonwealth power. At the centre of this question was the operation of section 51(xxvi) of the Australian Constitution, the so-called races power, and whether it permitted the making of a special law that discriminated adversely against a group of Australian Aboriginals.

The majority judges (Brennan CJ, Gaudron, McHugh, Gummow and Hayne JJ) were all of the view that the Act was a valid enactment under section 51(xxvi) of the Constitution. Only Gummow and Hayne JJ gave any consideration to the application of international law in the matter. Noting that in Canada and the United States there have been decisions of the courts in which international norms have been applied in the construction and application of bills of rights, it was accepted that a Commonwealth statute is to be interpreted and applied, as far as the language permits, in conformity with and not in conflict with established principles of international law.[11] However decisions of the High Court such as Polities v Commonwealth [12] and Horta v Commonwealth [13] also show that the legislative provisions of the Constitution are in a special position. Notwithstanding a potential breach of an international law rule, if the statute is clearly founded on constitutional power the Court will not disturb that law. Accordingly, the Act in this instance was to be “interpreted and applied in conformity and not in conflict with any relevant established rules of international law only in so far as its language permits.”[14] Here it was found that the language was unambiguous and so there was no scope for the application of any principles of interpretation based on international law.

Kirby J was in dissent, being of the view that the Act went beyond the operation of section 51(xxvi) because it was detrimental to and adversely discriminatory against people of the Aboriginal race. In reaching this view there was some reference to international law. It was noted that during submissions attention had been given to the so-called “interpretative principle” discussed by Kirby J in Newcrest Mining v Commonwealth,[15] and that the terms of the Constitution should be construed as far as possible with customary international law relevant to racial discrimination and within Australia’s international obligations under treaties Australia was a party to.[16] In this particular instance, Kirby J reasserted his views in Newcrest Mining that where the Constitution is ambiguous the Court should adopt an approach towards its meaning which conforms with principles of universal and fundamental rights.[17] However, it was stressed that such an approach did not involve applying international law to distort the meaning of the Constitution. If the Constitution is clear and a law is clearly within power of the Commonwealth then “no rule of international law, and no treaty (including one to which Australia is a party) may override the Constitution or any law validly made under it.”[18] In the case of an ambiguity however, it is legitimate to have regard to international law.[19] It was also accepted that non-discrimination on the basis of race had become a part of customary international law.[20] Reasserting the view that section 51(xxvi) of the Constitution was ambiguous, Kirby J considered that this conclusion was reinforced by “the resolute steps taken by international law to forbid and prevent detriment to, and adverse discrimination against, people by reference to their race.”[21]

Domestic Implementation of International Law — Australian New Zealand

Closer Economic Relations Agreement — Trade in Services Protocol — Extent of International Obligation

Project Blue Sky v Australian Broadcasting Authority

(1996) 141 ALR 397

Federal Court of Australia

[1998] HCA 28; 153 ALR 491

High Court of Australia

Project Blue Sky v Australian Broadcasting Authority originally commenced before Justice Davies of the Federal Court, from where it was appealed to a Full Bench of the Federal Court in 1996,[22] and then eventually on to the High Court of Australia which heard the matter in 1997 and delivered its judgment in April 1998. At all stages of the litigation the essential issues remained the same.

Project Blue Sky commenced its action against the Australian Broadcasting Authority (ABA) for failing to uphold section 160(d) of the Broadcasting Services Act 1992 (Cth) (hereafter referred to as the BSA) which provided that the ABA in performing its functions was to do so in a manner consistent with Australia’s obligations under conventions to which Australia was a party and any agreements between Australia and a foreign country.[23] In this respect, it was argued that the ABA was bound to take into account the provisions of the 1988 Protocol on Trade in Services[24] to the 1983 Australia New Zealand Closer Economic Relations Trade Agreement (CER),[25] Article 4 of which provides:

Each Member State shall grant to persons of the other Member State and services provided by them access rights in its market no less favourable than those allowed to its own persons and services provided by them.

In addition, Article 5(1) also provides:

Each Member State shall accord to persons of the other Member State and services provided by them treatment no less favourable than that accorded in like circumstances to its persons and services provided by them.

Pursuant to its statutory obligations, the ABA had adopted a standard known as the “Australian Content Standard”, the principal purpose of which was to establish requirements for certain levels of Australian content in Australian television broadcasting. Project Blue Sky particularly objected to the provisions of the Australian Content Standard which had the following effect:

• providing that until the end of 1997, Australian programs were to constitute at least 50% of all programming broadcast between 6am and midnight; and

• providing that from the beginning of 1998, Australian programs must be at least 55% of all programming broadcast between 6am and midnight.

The ABA argued that the impact of these provisions was to impose a quota on foreign programs which could be broadcast during these periods, the effect of which was that New Zealand television programs were limited from being broadcast on Australian television.[26]

Federal Court

At first instance, Justice Davies upheld the application by Project Blue Sky and made a declaration that the Australian Content Standard adopted by the ABA was invalid and it be varied to the extent that it failed to be consistent with the CER Protocol.[27] However, a Full Bench of the Federal Court upheld an appeal by a 2/1 majority. Justices Wilcox and Finn were of the view that the BSA contained within it two mutually inconsistent instructions: that the ABA provide preferential treatment for Australian programs, and that the ABA do so even-handedly as between Australia and New Zealand.[28] Taking the view that an irreconcilable conflict existed between the provisions of the BSA, it was found that s 122(2)(b) prevailed and that the ABA was not bound to take into account the operation of the CER.[29]

High Court

Before the High Court, the appeal by Project Blue Sky and others was unanimously upheld, though Brennan CJ disagreed with his fellow judges as to the legal effect of their ruling. In a joint judgment, McHugh, Gummow, Kirby and Hayne JJ reviewed the history of the proceedings, the relevant statutory provisions, and the Protocol to the CER. Particular attention was given to the Australian Content Standard and its provisions. It was acknowledged that Clause 9 of the Australian Content Standard was in conflict with Articles 4 and 5 of the CER Protocol with the result that there were two questions for determination:

• was the Australian Content Standard in breach of the provisions of the Broadcasting Services Act?

• if so, was Clause 9 of the Australian Content Standard invalid?[30]

In addressing these issues the judges spent some time assessing the effect of section 122 of the BSA, which related to the Australian content of programs. It was found that the determination of Australian content under the BSA was one of the functions of the ABA and that in carrying out these functions the ABA was required to act in accordance with the directions given in section 160 of the BSA — that being the section which directly refers to treaties and other agreements to which Australia is a party. In this respect the judges noted:

If s 122(1) and (2) were given their grammatical meaning, without regard to the provisions of s 160, they would authorise the making of standards which were inconsistent with Australia’s obligations under international conventions or under its agreements with foreign countries. … When s 122 is read with s 160, the legal meaning of s 122 is that the ABA must determine standards relating to the Australian content of programs but only to the extent that those standards are consistent with the directions in s 160. If, by reason of an obligation under a convention or agreement with a foreign country, it is impossible to make an Australian content standard that is consistent with that obligation, the ABA is precluded by s 160 from making the standard notwithstanding the literal command of s 122(1) and (2).[31]

It was found that the CER and the Protocol were agreements between Australia and a foreign country for the purposes of section 160 of the BSA, with the result that the ABA was precluded from making a Standard inconsistent with the CER or the Protocol.[32]

The judges then proceeded to consider the effect of their determination, and in particular whether the Australian Content Standard was invalid or unlawful. In this instance, the Court found that the terms of section 160 of the BSA were such that powers or functions not carried out in accordance with the policy was a question relating to the administration of a power or function rather than to its validity.[33] In this particular context the following comment was made:

Furthermore, while the obligations of Australia under some international conventions and agreements are relatively clear, many international conventions and agreements are expressed in indeterminate language as the result of compromises between the contracting State parties. Often their provisions are more aptly described as goals to be achieved rather than rules to be obeyed. The problems that might arise if the performance of any functions of the ABA carried out in breach of Australia’s international obligations was invalid are compounded by Australia being a party to about 900 treaties.[34]

It was subsequently determined that while there was a legal duty on the ABA to act in accordance with the provisions of section 160, an act done in breach of its provisions was not invalid. As such, the majority judges differed from Davies J in the Federal Court in finding that the Australian Content Standard was invalid by substituting the view that the Standard had been unlawfully made.[35] It was at this point that Brennan CJ diverged from the other members of the Court by instead finding that the Broadcasting Standard adopted by the ABA was invalid and had no effect.[36] Consequently, the orders issued by Brennan CJ on this point differed, however the practical consequences in terms of the appeal remained the same.[37]

High Court practice and procedure — International Covenant on Civil and Political Rights — Right to a fair hearing

Sinanovic v R

[1998] HCA 40; 154 ALR 702

High Court of Australia

Kirby J

Australian courts have from time to time had occasion to consider the rights of an accused to a fair trial and the influence of international law upon this principle.[38] This was part of the issue before Kirby J in Sinanovic v R where a question arose as to whether an application before the High Court to grant special leave to appeal should be revisited due to the applicant being disadvantaged in his preparation of the claim on grounds of illiteracy and no legal representation. At all relevant times the applicant was a prisoner during the proceedings with his spouse being permitted, by leave of the Court, to make representations on his behalf.

Before Kirby J, particular reference had been made to the provisions of Article 14 of the International Covenant on Civil and Political Rights,[39] in which it had been argued that the applicant had not been treated equally due to not having a transcript of the relevant proceedings and the lack of a properly qualified representative. However, it was noted that the principles of the Covenant were not part of Australian domestic law. Australian courts could take those principles into account where the law is ambiguous or uncertain, however this was not the case in this instance.[40] A review of the history of the matter indicated that there were no grounds on which the complaint could be founded. However, Kirby J made some concluding comments regarding the interaction of international and municipal law which are of interest:

It is understandable, perhaps, for a lay person to think that international law, being at a higher plane, overrides Australian domestic law to the extent of inconsistency; just as State law may override a local government law, or federal law, if valid, may override State law. However, the position is not as simple as that for reasons which I endeavoured to explain in Thorpe v Commonwealth (No 3).[41] The use that may be made of international law in Australian domestic law is more indirect, subtle and controversial.[42]

Accordingly, it was found that there were no grounds on which to challenge the substance of the High Court’s disposal of the matter.

2. Refugees

Refugees — Well-founded fear of persecution — Facts on which fear is based — Determination on date of application or date of decision on application

Minister for Immigration and Ethnic Affairs v Singh

(1997) 142 ALR 191

Federal Court of Australia

The time at which a determination is made whether an applicant for refugee status under the Migration Act 1958 (Cth) meets the test of having a well-founded fear of persecution has been the subject of division within Australian courts.[43] In Minister for Immigration and Ethnic Affairs v Singh, the Federal Court reviewed this question in the circumstances of an application for refugee status made on 15 August 1991 being finally determined by the Refugee Review Tribunal on 24 July 1995. It was argued by Singh that the critical date for assessment was the date of application. The importance of the claim in this instance was highlighted by the decision of Singh to leave India in 1990 due to concerns over his personal safety following events in 1989-1990, and the significant gap in time before a final determination on refugee status had been made by the Tribunal.

In assessing the relevant provisions of the Migration Act, the Court noted that under both section 36 of the Act and the Refugees Convention[44] that whether an applicant answers the description of a person with a well-founded fear of persecution is tied to the time at which the return of the applicant to their country of origin arises. It was noted:

The fear is not a fear in the abstract, but a fear owing to which the applicant is unwilling to return, and thus it must exist at the time the question arises, namely at the time the decision is made whether the applicant is a refugee.[45]

It was noted that, to accept the application date as being the relevant date for the application of the test, would run the risk of accepting a person as a refugee who may have satisfied the conditions for the grant of refugee status at the time of application but, due to improved conditions in the country of origin, no longer satisfies it at the date when the question of return arises.

Upon a review of relevant High Court authorities, it was decided this matter had not been conclusively settled by the High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs.[46] It was also concluded that the approach taken was consistent with the view in New Zealand,[47] the United Kingdom [48]

and Canada.[49] This decision has been followed in subsequent refugee matters before the Federal Court.[50]

Refugees — Treaty Interpretation — Whether part of a particular social-group — China’s ‘One Child Policy’

“Applicant A” v Minister for Immigration and Ethnic Affairs

(1997) 142 ALR 331

High Court of Australia

Brennan CJ, Dawson, McHugh, Gummow and Kirby JJ

Notwithstanding the growth in refugee cases before the Federal Court in recent years, few such cases reach the High Court. However in “Applicant A” v Minister for Immigration and Ethnic Affairs, the High Court was called upon to determine a refugee case in which the principal issue was whether a husband and wife were able to claim refugee status on the basis that they belonged to a particular social group with a well-founded fear of being persecuted. The basis of that fear was that as parents of a single child they would be subject to China’s “One-Child Policy” if they returned to China, the country from which they fled and of which they were nationals. The High Court divided on the matter, with Dawson, McHugh and Gummow JJ finding that the applicants for refugee status did not meet the Refugee Convention[51] criteria of belonging to a particular social group and that their application for refugee status under the Migration Act 1958 (Cth) had been properly rejected. Brennan CJ and Kirby J were in dissent.[52]

McHugh gave the leading majority judgment and usefully began with an assessment of the principles of treaty interpretation. It was noted that the term “refugee” had the same meaning in the Migration Act as that found in the Refugee Convention and Protocol. In Australia,[53] treaties were interpreted in accordance with the 1969 Vienna Convention on the Law of Treaties,[54] of which Article 31 provided the foundational general rule. It was noted however, that decided cases in Australia had not clarified the extent to which a court could have recourse to the context, object and purpose of a treaty, or the relationship between that inquiry and the ordinary textual analysis of the convention provision. However, McHugh J was prepared to adopt an approach put forward in the European Court of Human Rights,[55] which Murphy J had also favoured in Commonwealth v Tasmania.[56] The approach was one which required a court, when faced with treaty interpretation, “to examine both the ‘ordinary meaning’ and the context…object and purpose’ of a treaty.”[57] Such an approach was supported because:

• Article 31 of the Vienna Convention through the use of the singular “General rule of interpretation” is to be interpreted in a holistic manner.

• Taking the text as the starting point is consistent with the basic principle of interpretation.

• Looking at both the context, object and purpose as well as the text is consistent with the general principle that international instruments should be interpreted in a more liberal manner.

• Because treaties lack the precision of domestic legislation, there is a need to adopt broad interpretative principles.[58]

On the basis of these interpretative principles, McHugh J then assessed the terms “membership of a particular social group” under both the Convention and the Act. After a review of the notion of persecution for a Convention reason, it was concluded that persecution had no place in defining the term “a particular social group”, the result being that applicants for refugee status “must demonstrate that the form of persecution that they fear is not a defining characteristic of the ‘particular social group’ of which they claim membership.”[59] It was accepted however that such a social group could emerge as a result of persecution, however this would depend on “external perceptions of the group” which would require the group’s identification as a social unit.[60] Noting that it followed that such a group would cover a relatively large group of people, McHugh J offered the following observations on the Convention term:

It follows that, once a reasonably large group of individuals is perceived in a society as linked or unified by some common characteristic, attribute or activity, belief, interest or goal which itself does not constitute persecution and which is known in but not shared by the society as a whole, there is no textual, historical or policy reason for denying these individuals the right to be classified as ‘a particular social group’ for Convention purposes.[61]

On a review of the relevant facts, McHugh J found that the applicants for refugee status were not members of a particular social group as that term was understood in the Convention, but rather they were a disperate collection of couples throughout China who want to have more than one child. There was no “social attribute or characteristic” linking the couples to allow them to be identified as such for Convention purposes. Consequently, the appeal in this instance was dismissed.

Both Dawson and Gummow JJ come to a similar conclusion, broadly expressing opinions consistent with those of McHugh J. Dawson J, in a point later supported by Gummow J,[62] notes the broad humanitarian aims of the Refugees Convention but observes that it does not afford universal protection to the asylum seeker and that it plainly contemplates that that there will be some persons who will not be able to gain asylum as refugees. As such: “It would therefore be wrong to depart from the demands of language and context by invoking the humanitarian objectives of the Convention without appreciating the limits which the Convention itself places on the achievement of them.”[63]

In dissent, Kirby J rejected adopting an approach that would narrow the interpretation of the relevant Convention provisions, noting after an exhaustive review of case law and their assessment by academic commentators that a case-by-case approach was preferable.[64] He concluded that it was possible to identify a particular social group because of the objective characteristics of the applicants in this case. In addition, membership of the group exposed them to a well-founded fear of persecution which was induced possibly by enforced sterilisation or abortion. As to whether the fear in this instance was “for reasons of” their membership of that social group to whom the “One-Child Policy” applied, Kirby J was firm:

The law and policy which the appellants resist is of such a character and so incompatible with their basic dignity and physical integrity, that they should not be forced to submit to it. Like infractions of a person’s race, religion, nationality or political opinion, the impugned persecutory conduct, as found, attacks features of their very existence as human beings which are fundamental and beyond any country’s legitimate law and policy. It explains and justifies their “well-founded fear”.[65]

Brennan CJ found the applicants in this case to also be members of a particular social group due to their being the parents of one child and not having voluntarily adopted an approved birth-preventing mechanism. Their membership of this group made them liable to sterilisation upon their return to China and it followed that they met the criteria for refugee status.[66]

Refugees Convention — Status of Indonesian national born in East Timor

— Whether applicant also Portuguese national — Dual nationality — Australia’s Convention obligations

Jong Kim Koe v Minister for Immigration and Multicultural Affairs

(1997) 143 ALR 695

Federal Court of Australia

Black CJ, Foster, Lehane JJ

The status of persons born in East Timor who applied for refugee status in Australia has been the subject of ongoing debate during the 1990s as Australian authorities have assessed the claims of East Timorese asylum seekers. The case of Jong Kim Koe v Minister for Immigration and Multicultural Affairs addressed this issue following an application for refugee status by a person born in East Timor and who arrived in Australia in 1992. The applicant alleged that due to participation in the demonstrations preceding the massacre at Santa Cruz cemetery in Dili, East Timor in 1991, he was being sought by Indonesian authorities and as such met the status of a refugee under the terms of the Refugees Convention. When the matter came before the Refugee Review Tribunal, it was ruled that as the applicant was both an Indonesian and Portuguese national, and there was no likelihood of persecution in Portugal, that he was not a refugee.

The Federal Court assessed a number of issues. The first was the international recognition of Portuguese nationality, and whether this makes the applicant a refugee under the terms of the Convention. In interpreting the terms of the Refugees Convention the Court was mindful of the provisions of the 1969 Vienna Convention on the Law of Treaties, and also previous decisions of the High Court.[67] Despite reference to the decision in Nottebohm,[68] the Court could not find any relevant principles from the authority cited. Nevertheless, it was concluded that there could be “no question as to the acceptance of jus soli as a basis for the conferral of nationality”,[69] and this position did not change despite the Portuguese withdrawal from East Timor in 1975 and Indonesian incorporation. Accordingly there was no error of law by the Refugee Review Tribunal on this point.

As to the Australian position regarding the recognition of Indonesian sovereignty over East Timor, the Court could find no inconsistency in that position while also maintaining that persons born in East Timor also retained Portuguese nationality. The Court commented:

All that is suggested is that a particular East Timorese person, born at a time when East Timor was a Portuguese colony, acquired Portuguese nationality at birth and has not, as a result of any event which has occurred since, been deprived of it. That limited proposition is not inconsistent with the position, taken by Australia, that Portugal has no general authority internationally to represent, or to protect the interests of, the East Timorese people.[70]

However, the Court accepted that a finding of dual nationality also raises an obligation under the Refugees Convention to make a determination regarding “effective nationality”, and whether the nationality is effective as a source of protection. As the Refugee Review Tribunal had not undertaken a review of the effectiveness of the nationality granted in this instance, it was ordered that the matter be returned to the Tribunal for that review.[71]

Refugees — Whether well founded fear of prosecution for reasons of membership of particular social group — One-child policy

Minister for Immigration and Ethnic Affairs v Guo

Minister for Immigration and Ethnic Affairs v Pan

(1997) 144 ALR 567

High Court of Australia

The “One-Child Policy” of the Peoples’ Republic of China has been the subject of considerable comment from a human rights perspective, and likewise it has ramifications for the Refugees Convention. In the cases of Minister of Immigration and Ethnic Affairs v Guo

, and Minister for Immigration and Ethnic Affairs v Pan, the High Court was called upon to review decisions of the Federal Court,[72] in which decisions as to refugee status by the Refugee Review Tribunal had been overturned. Central to the case was the determination of the refugee status of applicants who claimed a well-founded fear of persecution for reasons of political opinion and their membership of a particular social group. In particular, it was claimed that their breach of the “One-Child Policy” resulted in their having a political profile such that if they were returned to China they would be persecuted for their political opinion.

The Court noted the Convention definition of ‘refugee’ in Article 1A(2), and proceeded to make comments on each of the criteria relevant in this instance. As to the fear of persecution, the views of Mason CJ in Chan Yee Kin v Minister for Immigration and Ethnic Affairs [73] were noted where it was stated that persecution required “some serious punishment or penalty or some significant detriment or disadvantage”.[74] In determining whether there had been persecution for a Convention reason,[75] it was noted that in the case of a “political opinion” it need not be an opinion actually held by the refugee. It would be sufficient if the opinion is imputed to the refugee.[76] As to the assertion that the refugee applicants in this instance were members of a particular social group, that being “parents of one-child in the PRC”, it was noted that the Court’s decision in “Applicant A” v Minister for Immigration and Ethnic Affairs [77] had held by a majority that such persons were not so classified and that such persecutory conduct could not define a particular social group.

On the requirement that there be a “well-founded” fear of persecution, the Court again noted the views expressed in Chan Yee Kin, stating:

Chan is an important decision of this court because it establishes that a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50%. But to use the real chance test as a substitute for the Convention term “well-founded fear” is to invite error.[78]

In this respect, particular attention was given to the so-called “real chance” test put forward by Mason CJ in Chan Yee Kin.[79] It was noted that a fear is “well-founded” if there is a “real substantial basis for it”, and as was evident from the decision in Chan Yee Kin, such a fear may exist “even though there is far less than a 50% chance that the object of the fear will eventuate”.[80] However, such a fear cannot exist if it is only assumed or mere speculation. Some further comments were made as to the decision-making process by the Refugee Review Tribunal in this instance and its application of the “real chance” test. However the Court concluded there were no grounds to disturb the Tribunal’s findings as it had taken into account all relevant factors.[81]

Refugees — Refugee Convention — Applicant recognised as resident of France

— Whether Australia owed protection obligations

Minister for Immigration and Multicultural Affairs v Thiyagarajah

(1997) 143 ALR 118

Federal Court of Australia

Emmett J

(1997) 151 ALR 685

Federal Court of Australia

von Doussa, Moore and Sackville JJ

The international law obligations on Australia under the Refugees Convention to accept an applicant for refugee status who had residency in a country other than their country of origin was the issue at stake in Minister for Immigration and Multicultural Affairs v Thiyagarajah. In this instance the refugee applicant had fled Sri Lanka in 1985 and was subsequently granted refugee status in France in 1988. A ‘Carte de Resident’ had been granted by France to the refugee which was valid for 10 years and automatically renewable. A travel document had also been issued which specifically allowed re-entry to France. Thiyagarajah and his family subsequently entered Australia from France in 1994 on a visitors entry permit and in 1995 applied for protection visas under the Migration Act 1958 (Cth). At issue was whether Australia had protection obligations under the Convention towards Thiyagarajah.

At first instance, Emmett J had accepted Australia was under an obligation to apply the terms of the Convention to Thiyagarajah. It was particularly noted that notwithstanding the applicant’s status in France, he did not have the same rights of re-entry and employment as a French national and should not therefore be seen as the equivalent of a French national for the purposes of a refugee determination. On appeal, the Federal Court noted that Thiyagarajah had left France following threats made against him by members of a Tamil separatist organisation, however there was nothing on the evidence to suggest that the French authorities were unwilling or unable to protect him.

In the judgment of von Doussa J, supported by Moore and Sackville JJ, the relevant provisions of the Refugees Convention were reviewed as was the first instance decision of Emmett J. It was noted that under the Convention, Article 1C(3) provides that the Convention does not apply to a person who has acquired a new nationality, and enjoys the protection of the country of that new nationality. However, in deciding this matter the Court was mindful of changes that had been introduced by the Migration Reform Act 1992 (Cth), which had altered the status of the definition of refugee previously found under the Migration Act 1958 (Cth).[82] As a result it was appropriate to consider whether the refugee applicant held nationality under which protection was granted. If that was not the case, there was still the need to make a determination as to whether the applicant met the Convention requirements for protection as a refugee.

It was also noted that there were additional questions under international law relevant to the determination. The first was whether Australia was under an obligation to assess an applicant for refugee status when the applicant already held refugee status in another country. The second was whether Australia was under an obligation not to deport a non-citizen from Australia to the country from where they came if they fell within the Convention definition of a refugee. In this regard, particular attention was given to Articles 31-33 of the Refugees Convention, in particular the obligation of non-refoulement. On the relationship between the Convention definition of a refugee and the obligation of non-refoulement, von Doussa J gave particular attention to the similarities in wording of Articles 1A(2) and 33(1) of the Convention,[83] and relevant authority on this point.[84] While there was a reluctance to explore the “outer boundaries of the principles of international law”, it was noted:

It is sufficient to conclude that international law does not preclude a Contracting State from taking this course where it is proposed to return the asylum seeker to a third country which has already recognised that person’s status as a refugee, and has accorded that person effective protection, including a right to reside, enter, and re-enter that country.[85]

It was subsequently found that there was no basis to disturb the finding of the Refugee Review Tribunal that the return of the applicant to France would not infringe the Convention as it had not been shown that French authorities were incapable of protecting the applicant and his family.[86]

Refugees Convention — Meaning of “country” — Whether “country” is a sovereign state — Status of Hong Kong

Koe v Minister for Immigration and Ethnic Affairs

(1997) 148 ALR 353

Federal Court of Australia

Tamberlin J

The status of Hong Kong, prior to reunification with the People’s Republic of China, under the Refugee’s Convention was at issue in Koe v Minister for Immigration and Ethnic Affairs. In this case an applicant for refugee status had a history of residency in Indonesia, China and Hong Kong. In an application for refugee status in Australia it was asserted that the applicant possessed a fear of returning to Hong Kong due to the forthcoming reversion to Chinese sovereignty and the impact this would have upon democratic institutions. In making a determination of eligibility for status as a refugee under the Migration Act 1958 (Cth), the issue arose as to whether Hong Kong could be classified as a “country” for the purposes of Article 1A(2) of the Convention.

In assessing this matter, Tamberlin J reviewed the United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status,[87] and relevant authorities on the point.[88] It was accepted that at the time of the determination Hong Kong was a not a state or nation for the purposes of international law. It had no capacity to enter into legal relations and was under the control of the United Kingdom. However, it was concluded:

Nevertheless, Hong Kong at the relevant date had a distinct area with identifiable borders. It had its own immigration laws, and was inhabited by a permanent identifiable community…[89]

Accordingly, it was appropriate to treat Hong Kong as a country for the purposes of the Refugees Convention.

3. Extradition

Extradition — Meaning of “extradition country” — Hong Kong

Special Administrative Region — Extradition Act (Cth)

Attorney-General (Cth) v Tse Chu-Fai

(1997) 150 ALR 566

Supreme Court of New South Wales

Graham AJ

[1998] HCA 25; 153 ALR 128

High Court of Australia

The central issue in Attorney-General (Cth) v Tse Chu-Fai was the status of the Hong Kong Special Administrative Region (HKSAR) as an “extradition country” for the purposes of the Extradition Act 1988 (Cth). This was particularly relevant given the effect of the handover by the United Kingdom to China on 1 July 1997 of Hong Kong, and the consequential change in status of the territory for the purposes of an extradition request under Australian law.

The facts concerned Tse Chu-Fai, who had been arrested on 17 July 1997 under a warrant issued by a magistrate under the authority of the Extradition Act.[90] The request for extradition was founded on information laid before a Magistrate’s Court in Hong Kong in March 1997, resulting in a warrant for apprehension being issued in Hong Kong on 14 March. The extradition request was subsequently made to the Commonwealth Attorney-General on 14 July 1997 by the Chief Executive of the HKSAR, after which steps were taken for the arrest and detention Tse Chu-Fai. The arrest was challenged before the Supreme Court of New South Wales in proceedings that commenced on 5 September 1997.[91] Graham AJ upheld the application for a writ of habeus corpus that the Extradition Act did not apply in the case of the HKSAR and ordered the release of Tse Chu-Fai. On appeal by the Attorney-General, the matter went before the High Court in March 1998, with judgment being handed down on 3 April 1998.

“Extradition Country” under Extradition Act

The High Court[92] gave considerable attention to the definition of an “extradition country” under the Extradition Act, and in doing so had occasion to review the history of Hong Kong prior to and since 1 July 1997. The status of Hong Kong and adjacent territories under United Kingdom sovereignty was reviewed, as were the events leading up to the 1984 Joint Declaration between China and the United Kingdom on the Question of Hong Kong.[93] It was clear from the terms of the Joint Declaration that an exchange of sovereignty over Hong Kong would take place between the United Kingdom and China on 1 July 1997.

The Extradition Act, section 5 defines an “extradition country” as being one which is declared by regulations as such. Hong Kong was declared an “extradition country” under the Extradition (Hong Kong) Regulations 1997[94] which commenced on 29 June 1997. The Regulations expressly provided for the application of the Extradition Act to Hong Kong subject to the provisions of the 1993 Agreement for the Surrender of Accused and Convicted Persons between the Government of Australia and the Government of Hong Kong (Surrender Agreement).[95] The Agreement was designed to become operative from 29 June 1997, the day on which the Regulations also became operative. Given the anticipatory scheme put in place, the High Court asked whether the ‘Hong Kong’ identified in the 1997 Regulations with effect on 29 June 1997 was the Hong Kong with the same relevant identity after 1 July that year and to which Tse Ch-Fai was subject to extradition. Of some importance was the consent given by the People’s Republic of China (PRC) to the 1993 Surrender Agreement. In addition, an Exchange of Notes had taken place between the PRC and Australia in June 1997 confirming the forthcoming resumption of sovereignty over Hong Kong by the PRC and the continued application of the Surrender Agreement to the HKSAR from 1 July.

In reviewing the operation of the Extradition Act and interpretation of “extradition country” the High Court observed that no distinction should be made between the use of the word ‘country’ rather than ‘state’ in the Act. This was not intended to limit the operation of the Act, which was designed to “provide comprehensively for extradition arrangements as the circumstances require from time to time”.[96] More attention was given to the operation of s 5(b)(ii) of the Extradition Act, which provided that an “extradition country” could be “a territory for the international relations of which a country is responsible”. While accepting that the status of the HKSAR within the PRC was “unusual”,[97] the Court refused to be dawn on the issue and preferred to focus on interpretation of the Act. In noting that the term “territory” may be given a wide definition, extending to both a tract of land and any area under effective jurisdiction of a State,[98] here the issue remained whether the HKSAR was a territory over which the PRC was responsible for the conduct of international relations. To this end the provisions of Article 13 of the Basic Law of the HKSAR (Basic Law)[99] was influential in stating that while the HKSAR was able to conduct relevant external affairs on its own in accordance with the Basic Law, the PRC remained “responsible” for foreign affairs relating to the HKSAR.

All which remained for the Court was to address the distinction, if any, in the reference to Hong Kong under the 29 June 1997 Regulations and following the events of 1 July. Here the Court was of the firm view that there was no change in the status of the HKSAR:

Nor has there been such a change as to warrant the conclusion that beginning 1 July 1997, a legislative condition for the continued operation of the 1997 regulations came to an end. There has been no change in the relevant territorial area. There has been a change in the legislative and executive institutions of government in Hong Kong. Nevertheless, and this is the crucial matter, the body of law in force has, in terms of Art 8 of the Basic Law, been maintained. In particular, the body of law for the alleged contravention of which extradition of the first respondent is sought has remained constant.[100]

On these grounds the Court had no difficulty in finding that the request for extradition had been validly made under the Extradition Act

Executive Certificate

The Court concluded with some remarks concerning the status of an Executive Certificate from the Minister for Foreign Affairs, Alexander Downer, dated 9 September 1997 stating that Australia recognised that the HKSAR of the PRC was a territory for which the PRC was responsible for the international relations of. The Court rejected a view that this certificate fell within the ambit of section 52 of the Extradition Act, which provides for such certificates to be prima facie evidence of the facts stated therein. Rather, the Court emphasised that the definition of the term “extradition country” and “Hong Kong” under the Act were matters of law to which the certificate could not be directed. While the certificate was therefore of no effect in this instance, it was accepted that in a “matter pertaining to the conduct of foreign affairs … information by the Executive may be both helpful and relevant”.[101]

4. Human Rights

Genocide — Genocide Convention — Limitations on actions of the Commonwealth — Constitutional Law — ‘Stolen Generation’

Kruger v Commonwealth; Bray v Commonwealth

[1997] HCA 27; (1997) 146 ALR 126

High Court of Australia

Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ

Courts in Australia have throughout the 1990s been asked on a number of occasions to rule on matters in which part of the claim is based on genocide and the provisions of the 1948 Genocide Convention.[102] This was part of the question in Kruger v Commonwealth; Bray v Commonwealth in which Aboriginal plaintiffs, members of the so-called “Stolen Generation”, brought various claims against the Commonwealth resulting from those acts taken under the Aboriginals Ordinance 1918 (Cth). As part of the claim it was asserted that the Ordinance was invalid because it was contrary to an implied constitutional right or freedom from acts that amounted to genocide. A number of judges on the High Court gave consideration to these claims.

Dawson J noted the Convention definition of genocide, a Convention Australia had been a party to since 8 July 1949. It was observed there was nothing in the Ordinance which could be characterised as authorising acts committed with the intent to destroy in whole or in part any Aboriginal group as those terms were understood in the Convention.[103] It was also noted that the Convention did not form part of Australian law, and that consistent with the principles outlined in Minister for Immigration and Ethnic Affairs v Teoh,[104] the Convention is not part of domestic law unless validly incorporated into municipal law by statute. The presumption that statutes are to be broadly interpreted consistently with Australia’s obligations under international law did not apply in the case of legislation enacted before the treaty, as applied in this instance. Even if it was allowed that legislation should be interpreted and applied, so far as the language permits, in accordance with established rules of international law, an exception would apply that was “logically necessary” in the instance “where the relevant obligations are under a treaty which had not been entered into at the time the legislation came into force.”[105] As to the existence of a pre-existing rule of international law involving a prohibition upon genocide, presumably one based on customary international law, this would be no more than a “canon of construction” that would have no different impact on the interpretation of the Ordinance.[106]

Gaudron J noted that genocide is so repugnant to basic human rights acknowledged by the common law, that an intention to authorise acts of genocide would need to be clear beyond doubt before a legislative provision could be construed as having that effect.[107] However, in this instance the focus of the claim was the extent of the Commonwealth’s constitutional power under section 122 to enact laws with respect to territories, and this required a different approach. It was accepted, however, that section 122 did not confer

power to pass laws authorising acts of genocide as defined in Article II of the Genocide Convention. The acts encompassed in that definition are so fundamentally abhorrent to the principles of the common law that … it is impossible to construe the general words of s 122 as extending to laws of that kind.[108]

No other members of the Court gave this question detailed attention.

Convention on the Rights of the Child

— Deportation — Application of “Teoh” Test

Vaitaiki v Minister for Immigration and Ethnic Affairs

[1998] FCA 5; (1998) 150 ALR 608

Federal Court of Australia

Burchett, Whitlam and Branson JJ

The celebrated decision of the High Court in Minister for Immigration and Ethnic Affairs v Teoh [109] has been the subject of significant response by government[110] and also academic comment.[111] While the High Court has yet to revisit the issues raised by Teoh and subsequent events, in Vaitaiki v Minister for Immigration and Ethnic Affairs the Federal Court did address the impact of Teoh. This matter arose from a deportation order against a Tongan citizen following the commission of serious offences. During that process the question arose as to the extent of the obligation, if any, to take into account when making the deportation order the welfare of the children of the deportee.

All members of the Federal Court made reference to the impact of Teoh and its consequences for the decision in this instance, though it was noted that the Administrative Appeals Tribunal when making its initial decision on 30 September 1994 did not have the advantage of the published High Court views in Teoh. Burchett J found that the initial Tribunal decision was not a valid decision in accordance with the law as established by Teoh.[112] It was clear that as neither the operation of the 1989 Convention on the Rights of the Child [113] nor the children’s citizenship was mentioned by the Tribunal that the interests of the children were not treated as primary. However, after the matter had been referred back to the Tribunal following an order by Sackville J in the Federal Court, a further issue arose as to whether at the rehearing the “Teoh test” had been appropriately applied.[114] Here Burchett J reviewed how Teoh had been interpreted by the Tribunal and in particular whether there was now evidence that the best interests of the children had been taken into account. It was noted that the mere holding of the additional hearing did not meet the requirement of procedural fairness. Rather, “the substantive law required the interests of young children who were Australian citizens to be to taken into account as very significant matters.”[115] A detailed review of the assessment undertaken by the Tribunal on the second occasion revealed that the interests of the children had received only “perfunctory treatment” with the result being that Burchett J found that the children’s best interests had not been “given adequate consideration at all.”[116] Accordingly, it was found the Tribunal had failed to take the children’s best interests into account and the appeal was upheld and the matter remitted for further hearing by the Tribunal. Branson J agreed with this finding.[117]

Whitlam J dissented, differing with the majority on the extent to which the Tribunal at the rehearing had adequately applied the “Teoh test”. He found that the findings of the Tribunal were not unreasonable and there were no grounds for finding an error of law. He noted: “The tribunal was not bound, as a matter of law, to apply the provisions of the Convention. The tribunal was not obliged by virtue of the Convention to accord more weight to the interests of the appellant’s children than to the need to protect Australian society.”[118] Whitlam J did not accept that the Tribunal had given “perfunctory” treatment to the position of the children in this instance:

The tribunal was required, as it had previously done, to take into account any hardship which would be caused to them. What Teoh required was that the tribunal, absent notice and an adequate opportunity of persuading it otherwise, should give a decision on the basis that the best interests of the children were to be a primary consideration. It does not matter whether this expectation or assumption arises from the ratification of the Convention or the status of the children as Australian citizens.[119]

The ground of distinction then between the majority judges and Whitlam J was whether the interests of the children should the primary consideration. In this respect it is clear that differing interpretations were given to the views expressed in Teoh as to the weight that should be accorded to the Convention. The distinction is an important one, especially as there were differing views on the matter in the High Court. It may well prove to be a ground for future consideration by the High Court.

Convention on the Rights of the Child

— Deportation — Ministerial Executive Statement — Legitimate Expectations

Browne v Minister for Immigration and Multicultural Affairs

[1998] 566 FCA(Unreported — 29 May 1998)

Federal Court of Australia

Wilcox J

The application of the test laid down by the High Court in Teoh’s case arose in Browne v Minister for Immigration and Multicultural Affairs. In this case Mr Browne, a New Zealand citizen who had migrated to Australian in 1989, became subject to criminal deportation proceedings following his conviction for criminal offences in 1993. A deportation order was issued in 1995, and in 1997 an application was made before the Administrative Appeals Tribunal requesting an extension of time to challenge the deportation decision. During the course of the proceedings before the Tribunal it was revealed that during the period of his incarceration while on limited release Mr Browne had fathered a child. He had formed a close relationship with the mother of the child and indicated an intention to marry the mother.

In reviewing the decision of the Tribunal, Wilcox J in the Federal Court received submissions concerning the importance of the 1989 Convention on the Rights of the Child and the significance of the decision in Teoh’s case for this matter. It was noted that the decision in Teoh “excited concern at bureaucratic and political level” resulting in the issuing of a 10 May 1995 joint statement by the Minister for Foreign Affairs and the Attorney-General, and a later statement of 25 February 1997 by the then Minister for Foreign Affairs and the Attorney-General.[120] While Wilcox J was unwilling to form an opinion as to the effectiveness of the later 1997 joint statement, it was accepted that the Tribunal was obliged to apply the terms of the Convention as a matter of substantive law. It was explained as follows:

Whatever the content of the procedural obligation in cases generally, in cases affecting children that constitute a review, after the announcement of the Criminal Deportation Policy in 1992, of a criminal deportation decision, that Policy imposes an obligation upon the Tribunal to apply the Convention. This matter was not considered in Teoh, no doubt because the case concerned a decision of the Immigration Review Panel made on 25 July 1991.

It therefore followed that, as the 1992 Criminal Deportation Policy contained express reference to “the relevant obligations of the Commonwealth of Australia under international treaties ratified by the Australian Government”, an obligation existed to take the Convention on the Rights of the Child into account when making a decision in this instance. This was not the case that existed in Teoh. As to the degree of weight the Convention required be given to the interests of the child, reference was made to the statements by Mason CJ and Deane J in Teoh,[121] in which “first importance along with other considerations” was noted. In this context, it followed that the ultimate decision was one in which the best interests of the child were not necessarily dominant. However, the decision should be one in which “those interests are to be balanced equitably against the factors that tend to support a contrary decision.” It was ordered that the decision of the Tribunal be set aside.

Convention on the Rights of the Child

— Immigration — Legitimate Expectation — Effect of cancellation of visa on members of family unit

Tien v Minister for Immigration and Multicultural Affairs

[1998] FCA 1552; (1998) 159 ALR 405

Federal Court of Australia

Goldberg J

The application of the test laid down in Teoh’s case by a delegate of the Minister for Immigration and Multicultural Affairs at Melbourne International Airport was the issue which arose in Tien v Minister for Immigration and Ethnic Affairs. Here Mr Tien, the holder of a long-stay visa, had arrived in Australia on 5 November 1998 in the company of another person whose passport and Australian visa were found to be fraudulent with the result that Tien’s travelling companion became subject to immediate deportation. In the case of Mr Tien, following a lengthy interview with the Minister’s delegate, an intention to cancel his visa was issued and immigration clearance was refused. The effect of the cancellation of the visa was that two dependants of Mr Tien, his de facto wife and their child, also had their visas cancelled and they became unlawful non-citizens under the Migration Act 1958 (Cth).

In considering the application of the 1989 Convention on the Rights of the Child, it was noted that the Minister’s delegate had been made aware of the existence of Mr Tien’s child, who had been born in Australia and was resident in Australia at the time of the cancellation of the visa. Goldberg J reviewed the decision in Teoh, particularly the judgment of Mason CJ and Deane J, commenting that one of its consequences was that a decision-maker was bound to bring to the attention of the party affected that they were making a decision in which the best interests of the child were not a primary consideration.[122]

Consideration was also given to the effect of the 1997 Ministerial Statement by the Minister for Foreign Affairs and the Attorney-General.[123] However, the view taken by Goldberg J was that the effect of the statement was not that as contemplated by Mason CJ and Deane J in Teoh, as in that case it was contemplated that such a statement regarding the treaty or convention would have been made at or about the time the treaty was ratified. In addition it was found that it did not meet the requirement proposed in Teoh of being a “clear expression by the Executive of a contrary intention.” The Statement seemed to suggest that Teoh was not the law, however the Teoh principle remained good until such time as dealt with by the parliament or the executive.[124] In this regard, comments made by Hill J in Department of Immigration and Ethnic Affairs v Ram [125] were noted with approval.

In this instance it was concluded that the Minister’s delegate had not acted consistently with the Convention on the Rights of the Child. The extent of the obligation was that the Minister’s delegate:

was obliged to give Mr Tien notice if she proposed to make a decision inconsistent with the legitimate expectation that the best interests of his child were to be a primary consideration, and if she decided not to give the best interests of the child the consideration required by the Convention she was obliged then to tell Mr Tien of her intention not to do so, so that he might have the opportunity to respond to that matter.[126]

It was accepted that the decision did not necessarily have to be in the best interests of the child, rather that the interests of the child had been addressed as a primary consideration at the same time as considering other matters which may have been adverse to the child.[127] It was concluded that the decision to cancel the visa should be set aside.

5. Law of the Sea

Law of the Sea — Native Title claims — Relationship between native title rights and international law — Innocent Passage

Yarmirr v Northern Territory

(1998) 156 ALR 370

Federal Court of Australia

Olney J

Following the landmark decision in Mabo v Queensland (No 2),[128] and subsequent enactment of the Native Title Act 1993(Cth), there were ongoing questions regarding the application of native title as developed under Australian law beyond the low-water mark to maritime areas. In Yarmirr v Northern Territory this issue was addressed in relation to determination of a native title claim to the sea and sea-bed in the Croker Island region of the Northern Territory. During the course of ruling on the validity of the native title claim, Olney J had occasion to refer to the relevant principles of the law of the sea which applied.

It was noted that previous High Court authority had recognised that sovereign rights over the territorial sea were subject to obligations imposed by international law, especially the rights of foreign vessels to innocent passage.[129] In both the Seas and Submerged Lands Act 1973 (Cth) and the Maritime Legislation Amendment Act 1994 (Cth), reference is made to the relevant provisions of the 1958 Geneva Convention on the Territorial Sea and Contiguous Zone[130] and the 1982 United Nations Convention on the Law of the Sea [131] which deal with coastal state sovereignty over the territorial sea and the right of innocent passage. It followed from this that:

Australia acknowledges that the right of the ships of all States to innocent passage through the territorial sea is a burden on the sovereignty which it enjoys over the territorial sea; and if that be a correct analysis it can fairly be said that the Conventions bring to bear a legitimate and important influence on the development of the common law. It would be contrary both to international standards and the values of the common law, for the common law to recognise a native title right which conflicts with Australia’s international obligation to permit innocent passage of the ships of all States through its territorial sea.[132]

The result of this finding was that the claimed right of exclusive possession and occupation of the claimed maritime area failed and could not be recognised as native title rights.[133] However, Olney J did go on to make a finding recognising the existence of native title subject to certain limitations.[134]

6. International Environmental Law

World Heritage Convention — Development proposal — Ministerial consent

Friends of Hinchinbrook Society v Minister for the Environment

(1997) 142 ALR 632

Federal Court of Australia

Sackville J

(1997) 147 ALR 608

Federal Court of Australia

Northrop, Burchett and Hill JJ

(1998) (Unreported — 13 March 1998)

High Court of Australia

Gaudron and McHugh JJ

Controversy over the effects on World Heritage values of a proposed development at Oyster Point opposite Hinchinbrook Island in northern Queensland has been raging since the early 1990s. The proposal involves the building of a 1500 bed resort and a marina for up to 234 boats, with a dredged channel linking the resort to the Hinchinbrook Channel, a stretch of water between the Hinchinbrook Island and the mainland. Both the island and the channel are part of the Great Barrier Reef World Heritage Area. The proposal has had a series of demonstrations against it, some violent. The issue came to a head in 1997 with two decisions of the Federal Court of Australia in Friends of Hinchinbrook Society Inc v Minister for Environment. This case focused on the question of the validity of the decision of the federal Minister for the Environment in giving consent to the carrying out of various works associated with the proposed resort, pursuant to sections 9 and 10 of the World Heritage Properties Conservation Act 1983 (Cth).[135] These works included the dredging of a boat access channel, the removal of mangroves and the coppicing (pruning) of mangroves. The relevant areas had been proclaimed under the Act to be areas which the Governor-General was satisfied were likely to be damaged as to their World Heritage values. It was argued that in granting consent to the carrying out of these works, the Minister had improperly exercised his powers under sections 9 and 10 and had also committed a variety of legal errors in granting the consents. Declaratory relief and orders were sought, primarily under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and the World Heritage Properties Conservation Act 1983 (Cth). The Minister had taken into account a comprehensive briefing paper and about 50 submissions with regard to the proposal. His Department advised him, on the basis of the scientific evidence, the revised plans and the provision for regional planning arrangements, that a consent under sections 9 and 10 of the Act would be consistent with the protection, conservation and presentation[136] of the World Heritage property and would not cause any significant damage to the immediate environment around Oyster Point. The reasons for the decision were set out in some detail by the Minister, and referred directly to the obligations under the World Heritage Convention. The comprehensiveness of the reasons for decision were no doubt based on advice that the Minister’s decision was likely to be challenged in the courts.

The applicant Society relied on a range of administrative law arguments in challenging the Minister’s decision. A central argument was that the federal Minister’s consent was so unreasonable that no reasonable person could have so exercised it. It was also said that it was unreasonable for him to rely on the Queensland government to take the necessary action to eliminate or minimise the impacts. Further, he had not satisfied himself that there would be no material adverse impact on the protection and conservation of the property, as required by section 9 of the World Heritage Properties Conservation Act. It was also contended that the Minister had failed to apply the precautionary principle under that Act and the Australian Heritage Commission Act 1975 (Cth).

Justice Sackville, at first instance, in considering these and other arguments, made a series of observations on whether specific articles of the Convention placed binding obligations on Australia. In particular, he considered the language of Article 4, which states that each State Party to the Convention “recognises that the duty of ensuring the identification, protection, conservation, presentation and transmission to future generations of the cultural and natural heritage referred to in Articles 1 and 2 and situated in its territory belongs primarily to it…” and that the State Party “will do all it can to this end, to the utmost of its own resources…”. He also referred to Article 5, which requires that State Parties “shall endeavour, in so far as possible, and as appropriate for each country, “… “(d) to take the appropriate legal, scientific technical, administrative and financial measures necessary for the identification, protection, conservation, presentation and rehabilitation of this heritage”. Sackville J stated of these provisions:

This language, while sufficient to impose obligations under international law, in my opinion cannot be read as imposing an obligation on the Commonwealth itself to take all the appropriate legal and administrative measures. Nor is any other conclusion suggested by Art 34, which provides that State Parties with a federal system have the same obligations in relation to the Convention as do State Parties with a unitary constitutional system…
In short, it is open, under the Convention, for Australia to discharge its obligations by ensuring that appropriate legal and administrative measures are taken to protect and conserve the natural heritage, whether those measures are implemented under Commonwealth or State laws or administrative arrangements or a combination of both.[137]

The Judge concluded that none of the grounds advanced by Friends of Hinchinbrook had been made out, and dismissed the application.

The applicants immediately lodged an appeal to the Full Court of the Federal Court which delivered its judgment in August 1997. The appellant Society, in addition to challenging the findings of the primary judge, placed at the forefront of its appeal a new matter, namely, that the Minister, in making a decision under s 9 of the World Heritage Properties Conservation Act, had applied the wrong legal test, in terms of the interpretation of the duty in Article 4 of the World Heritage Convention relating to the “protection, conservation and presentation of the cultural and natural heritage.” Leave was granted by the Full Court to argue this ground. The Society submitted that the Minister, in arriving at the conclusion to give consent under section 9, in considering whether the acts in question were consistent with “protection, conservation and presentation” was the wrong legal test. The Society put the view that consent under section 9 could only be given if the acts in question had some positive benefit especially to the protection and conservation of the natural heritage. In so far as the Society’s submission gave any weight to the word “presentation” as it appears in section 9, “presentation” should, so the submission would have it, be taken to subordinate “protection” and “conservation”.[138] In putting this submission, the Society relied on a passage from the judgment of Brennan J in Tasmanian Dam,[139] where it was stated that:

the duty of “presentation” was to be interpreted as meaning to “require the provision of lighting or access or other amenities so that the outstanding universal value of the property can be perceived”; nevertheless, conservation of the property is an element of its presentation, and is not to be sacrificed by presentation. The duty thus requires the protection and conservation of the features which give the property its outstanding universal value. It is the “object and purpose” of the Convention to ensure that those features are protected and conserved.”

The Federal Court, noting that this view was not echoed in the other judgments in the Tasmanian Dam case, stated that the Convention “does not envisage that natural or cultural heritage is to be locked away from sight and made inaccessible to the public in all circumstances, or indeed in most circumstances.”[140] It found, contrary to the Society’s submission, that none of the objects of “presentation”, “protection”, or “conservation” is subordinate to the other: “What is required in a particular case will be a balancing of the obligations of “protection” and “conservation”, as well as “presentation”, each given equal weight.”[141] The Court therefore concluded on this point that the Minister’s task was to weigh the damage to the world heritage which presentation may bring with it against the need to protect and conserve that value. If the Minister concludes that the risk of damage will be insignificant, then “there is only one conclusion to which he could come, as he here did, namely to give his consent.”[142] The court thus concluded that there was no error shown by the Minister in giving his consent under section 9. An application for leave to appeal to the High Court was dismissed in 1998.


[*] Associate Professor and Associate Dean, Faculty of Law, University of Sydney.

[1] [1997] HCA 21; (1997) 144 ALR 677 at 689 (Kirby J).

[2] Ibid.

[3] See in particular the decision in Re Limbo (1989) 92 ALR 81 at 82-83, 85 (Brennan J).

[4] [1997] HCA 21; (1997) 144 ALR 677 at 693.

[5] 1037 UNTS 151; 47 ATS 1975.

[6] [1997] HCA 38; (1997) 147 ALR 42 at 147.

[7] See Mabo v Queensland (No 2) (1992) 175 CLR 1 at 42 (Brennan J).

[8] [1997] HCA 38; (1997) 147 ALR 42 at 148.

[9] Ibid.

[10] Other members of the Court did not discuss this issue or any other relevant issue of international law.

[11] [1998] HCA 22; (1998) 152 ALR 540 at 571.

[12] [1945] HCA 3; (1945) 70 CLR 60.

[13] [1994] HCA 32; (1994) 181 CLR 183.

[14] [1998] HCA 22; (1998) 152 ALR 540 at 573.

[15] [1997] HCA 38; (1997) 147 ALR 42 at 147-151; and see the discussion above, at 122.

[16] [1998] HCA 22; (1998) 152 ALR 540 at 577 (Kirby J).

[17] Support for this view was found in Tavita v Minister for Immigration [1994] 2 NZLR 257 at 266 (Cooke P); R v Oakes [1986] 1 SCR

103.

[18] [1998] HCA 22; (1998) 152 ALR 540 at 599.

[19] Recent High Court authority cited in support of this proposition include Mabo v Queensland (No 2) (1992) 175 CLR 1 at 42; Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 38; Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 287; Dietrich v R [1992] HCA 57; (1992) 177 CLR 292 at 306.

[20] [1998] HCA 22; (1998) 152 ALR 540 at 600; see South West Africa Cases (Second Phase) [1966] ICJ Rep 3 at 293 (Tanaka J).

[21] [1998] HCA 22; (1998) 152 ALR 540 at 600.

[22] Australian Broadcasting Authority v Project Blue Sky Inc (1996) 141 ALR 397.

[23] Other indicators under which the ABA were to operate included:

• the objects of the Act and regulatory policy;

• general policies of the Government as notified by the Minister;

• directions given by the Minister in accordance with the Act.

[24] 20 ATS 1988.

[25] 2 ATS 1983.

[26] The Australian Content Standard, clause 7, provided a definition of an Australian program, of which factors taken into account included:

• if the program was produced under the creative control of Australians;

• the Minister has issued a certificate;

• if the program was made under an agreement between Australia and another country; and

• if the producers were Australian and a percentage of the cast were Australian.

[27] For comment see A Henderson and M Kelly, “Australia’s identity crisis: the cost of closer international relations” (1996) 15 Communications Law Bulletin 26-27.

[28] (1996) 141 ALR 397 at 414.

[29] Ibid. Here Wilcox and Finn JJ relied upon the principle of generalia specialibus non derogant. Justice Northrop was in dissent and argued that the provisions of s 160(d) of the Broadcasting Services Act were mandatory with the result that, if they were not complied with, a program statement which is inconsistent with that provision is invalid: ibid. at 406. However, it was noted: “This conclusion is reached without considering whether a domestic law which is inconsistent with an obligation of Australia under a convention or agreement with a foreign country is invalid by reason of that inconsistency.”

[30] [1998] HCA 28; (1998) 153 ALR 490 at 508.

[31] Ibid.

[32] Ibid. In this regard the Court made reference to the Explanatory Memorandum that accompanied the Bill that became the Act, in which it was stated that clause 160 “Requires the ABA to perform its functions in a manner consistent with various matters, including Australia’s international obligations or agreements such as Closer Economic Relations with New Zealand”.

[33] Ibid.

[34] Ibid. at 517-18.

[35] Ibid. at 518-19. However it was noted that: “In a case like the present, however, the difference between holding an act done in breach of s 160 is invalid and holding it as valid is likely to be of significance only in respect of actions already carried out by, or done in reliance on the conduct of, the ABA. Although an act done in contravention of s 160 is not invalid, it is a breach of the Act and therefore unlawful”: ibid. at 518.

In this regard the Court made important comments as to whether the provisions were directory rather than mandatory: see the discussion ibid. at 515-517 and comments in E Campbell, “Waiver by agencies of government of statutory procedural requirements” [1998] UNSWLawJl 62; (1998) 21 University of New South Wales Law Journal 711 at 716-717.

[36] [1998] HCA 28; (1998) 153 ALR 490 at 504.

[37] For further discussion of the implications of the decision see DR Rothwell “Quasi-incorporation of international law in Australia: broadcasting standards, cultural sovereignty and international trade” (1999) 27 Federal Law Review 527.

[38] See especially the decision in Dietrich v R [1992] HCA 57; (1992) 177 CLR 292.

[39] 999 UNTS 171; 23 ATS 1980.

[40] [1998] HCA 40; (1998) 154 ALR 702 at 707-708.

[41] [1997] HCA 21; (1997) 144 ALR 677; see the discussion above at, 121.

[42] [1998] HCA 40; (1998) 154 ALR 702 at 708.

[43] See Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; Somaghi v Minister for Immigration and Ethnic Affairs [1991] FCA 389; (1991) 31 FCR 100; Morato v Minister for Immigration and Ethnic Affairs [1992] FCA 637; (1992) 39 FCR 401.

[44] United Nations Convention Relating to the Status of Refugees, 1951, 18 UNTS 150; 5 ATS 1954.

[45] (1997) 142 ALR 191 at 194.

[46] (1989) 169 CLR 379.

[47] (1997) 142 ALR 191 at 196.

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

[49] Salinas v Canada (Minister of Employment and Immigration) (1992) 93 DLR (4th) 631.

[50] See Minister for Immigration and Ethnic Affairs v Singh (1997) 144 ALR 284.

[51] See n 44 above.

[52] For review, see the discussion in C Ward, “Applicant A” v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331: principles of interpretation applicable to legislation adopting treaties” (1998) 26 Federal Law Review 207-218.

[53] See the decisions in Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168 at 265; Commonwealth v Tasmania (1983) 158 CLR 1 at 93.

[54] 1155 UNTS 331; 2 ATS 1974.

[55] See Golder v United Kingdom (1975) 1 EHRR 524 (Zekia J).

[56] (1983) 158 CLR 1 at 177.

[57] (1997) 142 ALR 331 at 352.

[58] (1997) 142 ALR 331 at 351-352; see also the views of Kirby J at 383. This approach towards treaty interpretation was also adopted by the Federal Court of Australia in Federal Commissioner of Taxation v Lamesa Holdings (1997) 157 ALR 290 at 296-297 (Burchett, Hill and Emmett JJ) where the provisions of the 1976 Agreement between Australia and the Kingdom of the Netherlands for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes or Income, 24 ATS 1976, incorporated by the International Tax Agreements Act 1953 (Cth) were under consideration. The High Court also had occasion to consider rules of treaty interpretation in Great China Metal Industries v Malaysian Shipping Corporation Berhad [1998] HCA 65; (1998) 158 ALR 1 in which reference is made to the appropriate rules of treaty construction for the Hague Rules; see 19 (McHugh J), 40-42 (Kirby J).

[59] (1997) 142 ALR 331 at 358.

[60] Ibid. at 359.

[61] Ibid. at 361.

[62] Ibid. at 374.

[63] Ibid. at 346.

[64] Ibid. at 394.

[65] Ibid. at 395.

[66] Ibid. at 338.

[67] See in particular the decision in Minister for Foreign Affairs and Trade v Magno [1992] FCA 566; (1992) 112 ALR 529.

[68] Nottebohm case (Liechtenstein v Guatemala) [1955] ICJ Rep 4.

[69] (1997) 143 ALR 695 at 703 (Black CJ, Foster, Lehane JJ).

[70] Ibid. at 705.

[71] Ibid. at 707-709.

[72] See Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151; Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1995) 38 ALD 38.

[73] (1989) 169 CLR 379.

[74] (1997) 144 ALR 567 at 575 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ).

[75] Those being “for reasons of race, religion, nationality, membership of a particular social group or political opinion”.

[76] See also comments on this issue in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 416 (Gaudron J), 433 (McHugh J).

[77] (1997) 142 ALR 331.

[78] (1997) 144 ALR 567 at 576 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ).

[79] (1989) 169 CLR 379 at 429 where it was said: “If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a 50% chance of persecution occurring.”

[80] (1997) 144 ALR 567 at 577 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ); 594-596 (Kirby J).

[81] See the discussion ibid. at 579-580 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ); 595-596 (Kirby J).

[82] See the discussion at (1997) 151 ALR 685 at 692-694 (von Doussa J).

[83] Ibid. at 697-698 (von Doussa J).

[84] See in particular the decisions in Nguyen Tuan Cuong v Director of Immigration [1996] UKPC 43; [1997] 1 WLR 68; Bugdaycay v Secretary of State for the Home Department [1986] UKHL 3; [1987] AC 514.

[85] (1997) 151 ALR 685 at 702 (von Doussa J).

[86] This decision was subsequently followed in the case of Minister for Immigration and Multicultural Affairs v Prathapan (1998) 156 ALR 672, which involved similar facts of a Sri Lanka n national who had been granted refugee status in France subsequently lodging an application for refugee status in Australia.

[87] United Nations High Commission for Refugees(1988).

[88] See the decisions in Reel v Holder [1979] 3 All ER 1041.

[89] (1997) 148 ALR 353 at 363 (Tamberlin J).

[90] Extradition Act 1988 (Cth), section 12(1).

[91] Tse Chu-Fai v Governor of the Metropolitan Reception Centre (1997) 150 ALR 566.

[92] The Court issued a unanimous judgment (Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ).

[93] Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People’s Republic of China on the Question of Hong Kong (1984) 23 ILM 1366.

[94] SR No 123/1997.

[95] 11 ATS 1997.

[96] (1998) 153 ALR 128 at 139.

[97] Here the court was directed to comment in MN Shaw, International Law (4th ed, 1997) at 716 which states in relation to the impact of the 1984 Joint Declaration: “Accordingly, a high level of succession is provided for, but it is as well to recognise that the Hong Kong situation is unusual”.

[98] See discussion in R v Governor of Brixton Prison; ex parte Schtraks [1964] AC 556 at 579, 587, 593, 604.

[99] (1990) 29 ILM 1519,

[100] (1998) 153 ALR 128 at 142.

[101] Ibid. at 143.

[102] 78 UNTS 277; 2 ATS 1951.

[103] [1997] HCA 27; (1997) 146 ALR 126 at 161 (Dawson J); 197 (Toohey J); 190 (Gaurdon J); 220 (McHugh J).

[104] See Teoh n 19 above. See also the comments of Toohey J ibid. at 174.

[105] Note 103 above, at 161 (Dawson J).

[106] Ibid. at 162 (Dawson J); these views were broadly adopted by Gummow J ibid. at 232; see also the comments of Fullagar J in Waters v Commonwealth [1951] HCA 9; (1951) 82 CLR 188.

[107] Ibid. (1997) at 188.

[108] Ibid. at 190.

[109] See Teoh n 19 above.

[110] See A Downer and D Williams, “Joint statement — the Minister for Foreign Affairs and the Attorney-General and Minister for Justice — the effect of treaties in administrative decision-making” (25 February 1997), extracted below at 224.

[111] See M Allars “International law and administrative discretion” in BR Opeskin and DR Rothwell (eds) International Law and Australian Federalism (1997) 232.

[112] [1998] FCA 5; (1998) 150 ALR 608 at 613.

[113] 4 ATS 1991.

[114] The decision in the second hearing was given on 14 November 1995.

[115] Note 112 above, at 616.

[116] Ibid. at 618.

[117] Ibid. at 631.

[118] Ibid. at 628.

[119] Ibid. at 629.

[120] The 1997 statement announced: “Therefore, we indicate on behalf of the Government that the act of entering into a treaty does not give rise to legitimate expectations in administrative law which could form the basis for challenging any administrative decision made from today. This is a clear expression by the Executive Government of a contrary indication referred to by the majority of the High Court in the Teoh case.”

[121] See Teoh n 19 above, at 289 (Mason CJ and Deane J).

[122] [1998] FCA 1552; (1998) 159 ALR 405 at 427.

[123] See A Downer and D Williams, n 110 above.

[124] Note 122 above, at 429. In this regard it was noted that: “In order for a ministerial statement to constitute an executive indication to the contrary … it would be necessary for the statement to say something to the effect that decision-makers will not act, or are directed not to act, in accordance with particular provisions of particular Conventions or treaties.” ibid. at 429.

[125] (1996) 69 FCR 431 at 437-438 (Hill J). Reference was also made to the decision of the Federal Court in Vaitaiki v Minister for Immigration and Ethnic Affairs n 112 above.

[126] See n 122 above, at 428.

[127] Ibid. at 429.

[128] (1992) 175 CLR 1.

[129] See the discussion in New South Wales v Commonwealth (Seas and Submerged Lands Act case) [1977] HCA 36; (1975) 138 CLR 346 at 466 (Mason J).

[130] 516 UNTS 205; 12 ATS 1963.

[131] 31 ATS 1994.

[132] (1998) 156 ALR 370 at 429 (Olney J).

[133] See also ibid. at 430 regarding a public right of navigation.

[134] See the final determination at ibid. at 439-442 (Olney J).

[135] The Australian Heritage Commission Act 1975 (Cth) was also relied upon in argument, but is not relevant for present purposes. For more detailed comment on the case, see A Fleming, “Friends of Hinchinbrook Society Inc v Minister for Environment and Management of World Heritage(1997) 14 Environmental and Planning Law Journal 295.

[136] The phrase used in Article 4 of the Convention Concerning the Protection of the World Cultural and Natural Heritage, 1972, 1037 UNTS 151; 47 ATS 1975.

[137] (1997) 142 ALR 632 at 667.

[138] (1997) 147 ALR 608 at 635-636.

[139] Commonwealth v Tasmania (1983) 158 CLR 1 at 224.

[140] See n 138 above at 637.

[141] Ibid. (Hill J).

[142] Ibid. at 638 (Hill J).


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