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Olbourne, Ben; Rothwell, Donald R --- "Australian Cases Involving Questions of Public International Law 2001" [2002] AUYrBkIntLaw 8; (2002) 22 Australian Year Book of International Law 251

Australian Cases
Involving Questions of
Public International Law 2001

Ben Olbourne[∗] and Donald R Rothwell[∗∗]

International Law in General[∗∗∗]

Treaties – Convention for the Protection of the World Cultural and Natural Heritage – Queensland Wet Tropics World Heritage Area – Environment Protection and Biodiversity Conservation Act 1999 (Cth)

Booth v Bosworth

[2001] FCA 1453

Federal Court of Australia

Branson J

The Environment Protection and Biodiversity Conservation Act 1999 (Cth) gives effect in Australian law to the provisions of the 1972 Convention for the Protection of the World Cultural and Natural Heritage (World Heritage Convention).[1] In Booth v Bosworth, the Federal Court was asked to consider a request for an injunction restraining the respondents from killing spectacled flying foxes on or near their lychee orchard. The orchard was situated adjacent to but not within the Wet Tropics World Heritage area in far north Queensland. Evidence was presented to the Court that during the 2000-2001 lychee season, between 9,900-10,800 spectacled flying foxes were killed as a result of the operation by the respondents of an electronic grid on their orchard.

In considering the operation of the Act, Branson J gave consideration to the provisions of the World Heritage Convention and the 1969 Vienna Convention on the Law of Treaties.[2] She concluded that for the purpose of determining the World Heritage values of an identified property under the Convention, it was appropriate to consider World Heritage Committee criteria and the accompanying ‘Operational Guidelines’ for the implementation of the Convention.[3] On the basis of the evidence presented, the judge further concluded that the flying fox contributed to the world heritage value of the Wet Tropics area. This was due to the flying fox contributing to the genetic diversity and biological diversity of the area, and that as a part of the biological diversity for the area this was ‘a most important and significant natural habitat for in-situ conservation’.[4]

Following a further review of the evidence, Branson J concluded that the disappearance or an appreciable drop in numbers of the flying fox from the area would impact on the world heritage values of the area:

Either such event would tend to detract from the biological diversity of the area and from the importance and significance of the habitats contained within it for in situ conservation of biological diversity.[5]

The Court found that this impact on the world heritage values of the area constituted a significant impact for the purposes of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) and that the continuing operation of the grid was likely to have a significant impact on the world heritage values of the area.[6] On the basis of these findings, Branson J was prepared to grant an injunction. In considering how a discretion should be exercised in cases such as these, she noted:

it would be a rare case in which a Court could be satisfied that the financial interests of private individuals, or even the interests of a local community, should prevail over interests recognised by the international community and the Parliament of Australia as being of international importance.[7]

Human Rights

Convention on the Rights of the Child – Criminal Law – Sentencing

R v Togias

[2001] NSWCA 522

New South Wales Court of Appeal

Spigelman CJ, Grove J and Einfeld AJ

The status of the 1989 Convention on the Rights of the Child[8] was considered by the New South Wales Court of Appeal in R v Togias following an appeal by the Crown against a sentence imposed for drug importation. In the appeal lodged by the Director of Public Prosecutions against a three-year suspended sentence, the New South Wales Court of Appeal considered the relevance of the Convention and related international instruments to the sentencing process. It was argued that article 9[9] of the Convention was relevant to considerations as to whether a custodial sentence was justified in the case of the respondent, a 21-year-old mother with (at the time of appeal) an 11-month-old child.

The Court had some difficulty in assessing the submissions made concerning the relevance of the Convention, with no attempt made by counsel to assist the Court on the use which could be made in Australian law of international law, or any international authority where a court had applied treaty obligations in the sentencing process. While Spigelman CJ was prepared to note the ‘difficult questions’ that arose in this instance, he concluded that the Court had not received ‘the kind of assistance required for the determination, for the first time, of the important principles involved’.[10] The impact of the Convention was given more weight by Grove J who noted that:

Its proclamation and discernible aims are available to be considered in a sentencing exercise and should be considered in an appropriate case.[11]

However, it was considered that this was not an appropriate case for that consideration to be undertaken.

The Convention’s impact was given more weight by Einfeld J, who argued:

I find it difficult to accept that this substantial accumulation of solemn voluntary commitment by Australia to support a clear right for babies to be breastfed for a substantial period can be accorded no weight, or can have little effect, on the process of sentencing a breastfeeding mother.[12]

However, the Court (or Enfeld J?) noted that there existed no single case in either Europe, the United Kingdom, New Zealand, Canada, South Africa, or the United States, in which this issue had been decided. The Court accordingly took the view that there were no grounds upon which the determination of an appropriate sentence could be made with reference to the Convention.


Refugee Convention – Persecution by non-state actors – Whether government unwilling or unable to provide effective protection

Re Minister for Immigration and Multicultural Affairs & Anor; Ex parte Miah

[2001] HCA 22; (2001) 206 CLR 57

High Court of Australia

In this matter, a Bangladeshi national had applied for refugee protection in Australia. He alleged that he had been harassed, attacked and injured, and forced to flee in the face of threats to his life, as a result of his public opposition to Islamic fundamentalists in Bangladesh. In his application he stated his belief that the government of Bangladesh would not provide him with effective protection because it supported the Islamic fundamentalists. Subsequent to the submission of his application, but prior to its determination by a delegate of the Minister for Immigration, there was a change of government in Bangladesh. There was evidence, accepted by the Minister’s delegate, that the new government respected religious freedom and was capable of preventing extremist attacks on religious minorities. On the basis of the available factual information, the Minister’s delegate came to the following conclusion:[13]

While the government has reportedly failed at times to denounce, investigate or prosecute the Islamic extremist attacks on religious minorities and women, there is no indication that it is totally powerless to stop those violations of other people’s rights. The current government can still be said to be capable of offering persons like the applicant effective protection against the religious fundamentalists.

On the basis of this finding, the Minister’s delegate held that the claimant’s fear of persecution in Bangladesh could not be well-founded and that, therefore, he could be returned there.

The claimant applied to the High Court for relief on the basis, inter alia, that the Minister’s delegate had applied the wrong test in assessing his application for refugee status. His complaint was that, in the context of his claim, the question was not whether the Bangladeshi government was ‘totally powerless’ to stop the alleged persecution or whether it was ‘capable of offering … effective protection’, but whether it was willing to do so.[14] The complaint therefore focused on the meaning and application of the definition of a refugee contained in the 1951 Convention Relating to the Status of Refugees (Refugee Convention),[15] according to which applications for refugee status in Australia are assessed. Article 1A(2) of the Refugee Convention defines as a refugee any person who:

owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence … is unable or, owing to such fear, is unwilling to return to it.

A majority of the High Court (Gleeson CJ, Hayne and Kirby JJ) rejected the claimant’s complaint on this point on the basis that a fair reading of the delegate’s reasons for decision did not reveal that he had applied an incorrect test.[16] In so doing, there was some discussion of what the Convention definition entailed. Chief Justice Gleeson and Hayne J noted that ‘[t]he distinction between a government’s ability or power to protect a citizen against persecution, and the existence of a political will to do so’ is not necessarily ‘clear-cut and obvious’, although it could potentially be ‘real and important’.[17] They continued: ‘To say that a democratically elected government is unable to control a certain group could mean that there are not enough police or soldiers at the government’s disposal. But it could also mean that the government cannot take the political risk of alienating the group.’[18] On looking closely at the delegate’s reasons, they concluded that it was unlikely that the delegate had been intending to refer only to a ‘theoretical capability’ or ‘to distinguish between power to protect and willingness to protect’.[19] On the contrary, he had expressed ‘a conclusion about the practical likelihood of effective protection’, and that this showed that the delegate had assessed the claimant’s application consistently with the requirements of the Convention definition.[20]

Justice Kirby agreed with the reasoning of Gleeson CJ and Hayne J, adjudging that although the delegate’s conclusion was worded infelicitously, the delegate had addressed both the capability and the willingness of the Bangladeshi government to provide protection.[21] On the question of principle, Kirby J observed:[22]

An applicant for refugee status may establish a “well-founded fear of being persecuted” … notwithstanding that the law of the country of nationality provides ostensible rules for the protection of the individual. This may be so despite the steps taken by the government of that country, and its agencies, to prevent and punish conduct that breaches such rules. Whatever the law provides and the officials attempt, if the country of nationality is unable, as a matter of fact, to afford protection, the “fear” of an applicant may be classified as “well-founded” and the conclusion may be reached that “protection is unavailable” in the person’s country of nationality. The elements of the Convention definition will, to that extent, be established.

Justice Gaudron dissented on the grounds that the delegate had misunderstood what is involved in the Convention definition. She stressed a number of points with respect to that definition. The first was that the Convention ‘looks both to the position of the individual and to the conditions which pertain in the country of his or her nationality’.[23] She continued:[24]

More precisely, the question whether a person has a well-founded fear of persecution is one that has both subjective and objective elements and necessitates consideration of the mental and emotional state of the individual and, also, the objective facts relating to conditions in the country of his or her nationality.

The second point was, as the majority accepted, that persecution did not need to be carried out or sanctioned by the authorities of the state concerned. This, she observed, was relevant to the question whether or not the fear was well-founded. However, she emphasised that the Convention definition went further and directed attention to the question whether the individual claiming protection is unable or is unwilling, owing to a well-founded fear of persecution, to avail himself or herself of the protection of that state.[25] This has two consequences: first, an individual may be able to avail himself of the state’s protection but his or her fear may be such that he or she is unwilling to do so. And, second, the fact that the state concerned is able and willing to provide protection is not necessarily determinative of the question whether an individual comes within the terms of the Convention definition.[26]

The third point was that even though circumstances may have changed in the country in question, a failure to have regard to the past acts of persecution suffered or alleged by a claimant is ‘to ignore the subjective aspect of the Convention definition of “refugee” and, also, the nature of fear’.[27] As with the preceding points, such a failure was inconsistent with the requirement to look at the position of the individual and to determine whether that person was unwilling to avail himself or herself of the protection of that country.

On the basis of her reading of the Convention definition and the delegate’s reasons for decision, Gaudron J held that the delegate had failed to determine correctly whether the claimant was a refugee. She said that the question whether or not the claimant had a well-founded fear of persecution in Bangladesh was not answered by asking the question whether the new Bangladeshi government was willing and/or able to provide protection for persons like the claimant. This, she reasoned, failed to take into account the claimant’s allegations that he, as an individual, had been the target of persecution as a result of his opposition to the Islamic fundamentalists and that the government would not provide him with protection from the fundamentalists. She also held that the delegate had failed to consider whether the change of government was sufficient to preclude whatever fear the claimant had developed as a result of the past acts of persecution to which he had been subjected from continuing to be well-founded. For these reasons, she would have granted the claimant relief and ordered the Minister to re-determine the claimant’s application.

Refugee Convention – Status in domestic law of ‘order’ of the United Nations High Commissioner for Refugees

Minister for Immigration and Multicultural Affairs v Yusuf;

Re Minister for Immigration and Multicultural Affairs & Anor; Ex parte Yusuf;

Minister for Immigration and Multicultural Affairs v Israelien;

Re Minister for Immigration and Multicultural Affairs & Anor;

Ex parte Israelien

[2001] HCA 30; (2001) 206 CLR 323

High Court of Australia

In these proceedings, the High Court rejected the applicants’ claims that the Australian authorities had not complied fully with the requirements of domestic legislation and procedural fairness in reaching the conclusion that they were not entitled to refugee protection in Australia. One of the applicants, Mr Israelien, based his application on the claim that he feared persecution if returned to Armenia for two reasons: first, on account of his political opinions which he had claimed to have manifested by his conscientious objection to war in general and, in particular, to serving in the Nagorno-Karabakh conflict; and second, on account of his membership of a particular social group, namely that of deserters or draft-evaders. His claims on both grounds were rejected.

However, in the proceedings below, a question had arisen as to the relevance of a report that the United Nations High Commissioner for Refugees had issued an ‘order’ to the effect that Armenian draft resisters should be given refugee status.[28] Justices Kirby and Callinan addressed the significance of the report of the High Commissioner’s ‘order’. Justice Callinan said that although the role of the High Commissioner is an important one, the Refugee Convention did not purport to confer on that official ‘any power or jurisdiction, to declare or order, let alone conclusively so, a particular group or class of persons to be refugees’.[29] Justice Kirby agreed, holding that neither by Australian law nor by any provision of international law applicable in Australia does the High Commissioner ‘have authority to require that courts or tribunals of Australia treat a particular individual, or class of individuals, as a “refugee” or “refugees” for the purposes of the Refugee Convention’.[30]

Refugee Convention – ‘Membership of a particular social group’ – Whether a family can be a particular social group – Whether persecution ‘for reasons of’ membership of a particular social group

Minister for Immigration and Multicultural Affairs v Sarrazola

[2001] FCA 263

Federal Court of Australia

Heerey, Sundberg & Merkel JJ

In this matter, the Full Court of the Federal Court considered the circumstances in which membership of a particular family could constitute ‘membership of a particular social group’ for the purposes of the Refugee Convention. The claimant had fled Colombia with her family and applied for refugee status on arrival in Australia. She alleged that she had a well-founded fear of persecution if returned to Colombia on account of her being part of a family that had been targeted by criminals. The claimant’s brother had been killed by ‘underworld figures’ for failing to repay money that he owed to them. Subsequently, the claimant and her family were approached and told that they were now responsible for her brother’s debts. When they failed to pay, they were threatened with physical violence. It was found by the Refugee Review Tribunal of fact that the claimant had been selected to repay the debt as she was the only surviving immediate member of her brother’s family. But her claim for refugee status was rejected on two grounds: first, her family, however it was defined, did not constitute ‘a particular social group’; and second, even if her family did constitute a particular social group, the harm she feared was not ‘for reasons of’ her membership of that group. The Full Court of the Federal Court held that the tribunal had erred in law in reaching both of these conclusions.

On the first ground, the tribunal had held that whether a family constitutes a particular social group depends on whether, and the extent to which, its members are recognised within their society as a group that is set apart from the rest of the community. The tribunal had stated that there must be ‘some level of notoriety, or a public perception that they are a particular social group’ and that the particular family in question must be ‘well known in the society in question’. The Full Court held that this test was too demanding. Justice Merkel, with whom Heerey and Sundberg JJ agreed, started with the proposition that there was no reason why a particular family could not constitute a particular social group for the purposes of the Refugee Convention, provided that there was recognition within the society that the family was a group that was set apart from the rest of the community.[31] In addressing this last consideration, however, the question to be asked is ‘whether the family unit considered to be a social group is publicly recognised as being set apart as such’ and not ‘whether the particular family (… however configured) is well known as such’.[32] If the second question were the correct one, Merkel J continued, ‘it is difficult to perceive how any particular family could be viewed as a social group other than a family that had, fortuitously or otherwise, gained fame or notoriety, or a family which had a special or institutionalised position in society, such as a Royal family’.[33] Unsurprisingly, his Honour was not prepared to give the Convention definition such a limited application.

In respect of the present matter, Merkel J held that the tribunal had erred because it had asked itself whether the particular family was recognised, in the sense of being well-known, by Colombian society as a group set apart from the rest of the community. What it should have addressed were the characteristics that might identify and thereby define a family that, on the facts, might be set apart from the general community as a social group.[34]

On the second ground, the tribunal had accepted that while it is not necessary that the fear of persecution be solely attributable to membership of the relevant social group, the extent to which membership of that group is a factor in the risk of persecution is a relevant consideration. The tribunal rejected the claimant’s application on the ground that those persecuting the claimant and her family were only interested in the claimant because she ‘provided a means of recovering a debt’ and that her membership of the family, however defined ‘was entirely subsidiary. … There was nothing perceived about the group or attributed to them which provided the motivation for the infliction of harm.’ However, Merkel J held that this conclusion was inconsistent with the earlier finding that the claimant had been selected to repay the debt as she was the only surviving immediate member of her brother’s family.[35] This finding led to the conclusion that her fear of persecution was founded, at least in part, on reasons of her membership of that family.[36] As Merkel J said, ‘[t]he only reasonable explanation for the [tribunal’s] conclusion is that it has treated the reasons for the persistence of the persecutors in threatening the respondent and her family (having the means to pay) as separate or severable from the reason why she was selected and held to be responsible for her brother’s debt (her family connections).’[37] As the two factors were ‘inextricably linked’, the tribunal had erred and its decision was set aside.

Refugee Convention – Principle of non-refoulement – Effective protection – Right to enter and reside in safe third country – Doctrine of effective protection modified by domestic legislation

Al-Rahal v Minister for Immigration and Multicultural Affairs

Federal Court of Australia

[2001] FCA 1141; (2001) 184 ALR 698

Spender, Lee & Tamberlin JJ

Al Toubi v Minister for Immigration and Multicultural Affairs

Federal Court of Australia

[2001] FCA 1381

Gray, Hill & Moore JJ

In article 33(1) of the Refugee Convention, states parties undertake not to ‘expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion’. The meaning and application of this provision have arisen for decision in many different respects.[38] In these cases, it fell to be considered in the context of claims for refugee status where there existed a ‘safe third country’, that is a country other than that of the nationality of the claimant and Australia, where the claimant had been afforded ‘effective protection’ and to which the claimant could safely be returned. The existence of a possible ‘safe third country’ may, although will not necessarily, arise where the claimant has left his country of nationality and taken up residence in another country. In this circumstance, article 1E of the Convention provides that the Convention ‘shall not apply to a person who is recognised by the competent authorities of the country in which he has taken up residence as having the rights and obligations which are attached to the possession of the nationality of that country’.[39]

In Al-Rahal, the claimant was an Iraqi citizen. Before arriving in Australia and claiming refugee status, he had lived for several years in Syria. While in Syria, he had married an Iraqi woman who remained there. He also claimed that in Syria he had worked for an Iraqi opposition party, Al Dawa. He sought refugee protection from Australia on the basis that he feared persecution if returned to Iraq or to Syria. The Refugee Review Tribunal made a number of relevant findings: Iraqis may enter and re-enter Syria if sponsored by a relative or an Iraqi opposition party operating in Syria; the claimant could be sponsored by his wife or Al Dawa; the claimant would not be subject to Convention-related persecution in Syria; and the risk of the claimant being deported by Syria to Iraq was remote. The Tribunal therefore rejected his claim for refugee status on the basis that he had effective protection in Syria. The Tribunal also held that it was unnecessary in these circumstances to undertake an assessment of the substantive merits of the claimant’s claim for refugee status in respect of Iraq.

Before the Full Court of the Federal Court, the claimant submitted that the Refugee Review Tribunal had erred in interpreting and applying article 33(1) because it had not made a positive finding that the claimant had a right and would be permitted to re-enter and remain in Syria. He contended that it was not sufficient for the Tribunal to conclude that Syria may allow him to enter and remain, or for the Tribunal to act on the basis of speculation and conjecture as to what the Syrian authorities would do. By majority (Spender and Tamberlin JJ, Lee J dissenting), the Full Court rejected the claimant’s contentions. Justice Tamberlin, who wrote the leading judgment, held:[40]

Consistently with the authorities,[41] the relevant question when determining whether refoulement would result in a breach of Art 33 by Australia is whether as a matter of practical reality there is a real chance that the third country will not accept a refugee and would refoule them to a country where their life or freedom would be at risk for a Convention reason. This is a question of fact and degree. It does not require proof of actual permission, or of a right, to enter that country.

Justice Spender, who agreed with Tamberlin J, held that whether article 33 applies is a question of fact and that ‘it is sufficient for effective protection of a person in the third country if that person has a right to reside, enter and re-enter that country, but that it is not a necessary requirement of effective protection that the person have a formal right to reside, enter and re-enter that country’.[42] The majority also rejected the construction that Lee J would have placed on article 33, namely that article 33 prohibited a country from returning a refugee unless the third country had ‘accepted an obligation’ to receive and protect that person.[43]

The claimant made the further submission that the Tribunal had erred in concluding that article 33(1) entitled Australia to return him to Syria without first determining whether or not he satisfied the requirements of the Convention definition of a refugee. The majority also rejected this submission. Spender and Tamberlin JJ held that if it was found that there was a safe third country that would accord the claimant effective protection against Convention-related persecution, then it was legitimate for the Australian authorities to return the claimant to that third country without undertaking an assessment of the substantive merits of the claim for refugee status.[44]

The circumstances in Al-Toubi were similar. The claimant was of Iraqi nationality and had lived for six years in Iran and for three years in Syria. The Refugee Review Tribunal accepted his claim of a well-founded fear of persecution if he were returned to Iraq. The Tribunal also accepted that having left Iran, the claimant would have difficulties in Iran if returned from Australia. In respect of Syria, the Refugee Review Tribunal made similar findings as had the Tribunal in Al-Rahal as to the conditions under which Iraqis would be permitted to enter and reside in Syria. It found that the claimant’s wife and children lived in Syria and that his re-entry could be sponsored by his wife. In response to the claim that Syrian authorities would refoule an Iraqi citizen to Iraq if the latter had committed a crime or was a security risk, the Tribunal observed that since the claimant had lived for three years in Syria without being a concern for either of these reasons, any chance that he would become a concern for these reasons on his return to Syria was remote and therefore there was no real chance that he would be refouled to Iraq. The Tribunal concluded that the claimant would be able to obtain effective protection in Syria from Convention-related persecution and therefore his claim for refugee status in Australia was rejected.

Before the Full Court, the claimant submitted again that the Tribunal had erred in applying the test as to the criteria for a safe third country in that Syria could not be so regarded because there was a risk of repatriation to Iraq on commission of a criminal offence however trivial. The Full Court rejected this argument. It reiterated:[45]

The test for determining whether a particular country is a safe third country is necessarily a test related to the individual circumstances of the person seeking protection in Australia. The issue is whether the third country concerned will be safe for that person or whether there is a real chance that the third country will refoule the person to a country where he or she would be at risk of persecution for a Convention reason.

The Full Court observed that the Tribunal had properly applied this test and it therefore dismissed the appeal.

* * * * * * *

The interpretation of article 33(1) of the Refugee Convention favoured by the Australian courts and re-affirmed in Al-Rahal, namely that Australia may, conformably with its obligations under the Convention, refoule a refugee to a country which would allow him or her to enter and remain even though he or she did not have a legal or formal right to enter and remain, has now been displaced, for the purposes of Australian law, by the enactment of domestic legislation.[46] The effect of that legislation is that the Australian authorities must now determine whether or not a claimant has a ‘legally enforceable right’ to re-enter the safe third country.[47] The combination of the preceding common law position and the statutory amendment is that the Australian authorities will now not grant refugee status under the Refugee Convention to:[48]

(a) a person who can, as a practical matter, obtain effective protection in a third country; or
(b) a person who has not taken all possible steps to avail himself or herself of a legally enforceable right to enter and reside in a third country.

Refugees –Detention within Australian territorial sea – Pacific solution – Migration Act

Ruddock v Vadarlis; Ruddock v Victorian Council for Civil Liberties Inc

[2001] FCA 1329; 183 ALR 1

Federal Court of Australia

Black CJ, Beaumont and French JJ

This matter arose on appeal from a decision of North J in Victorian Council for Civil Liberties Inc v Minister for Immigration and Multicultural Affairs[49] in what is widely referred to as the ‘Tampa’ case. On 26 August 2001, the Australian Search and Rescue organisation (AusSAR) assisted in the coordination of a search and rescue operation in the Indian Ocean for the Palapa 1, an Indonesian-flagged ship carrying 433 people. The Norwegian flagged roll-on/roll-off container ship, MV Tampa, responded to this request and with the assistance of the Australian authorities was guided to the sinking vessel where it successfully carried out the rescue operation. Immediately following the rescue, the Tampa headed towards the Indonesian port of Merak, some 246 nautical miles to the north. However, approximately four hours into this voyage, the Tampa reversed course and began steaming south towards the Australian territory of Christmas Island, which had only been 75 nautical miles south of where the original rescue had taken place. Later that evening the master of the Tampa, Captain Rinnan, was asked by Australian authorities to change course for Indonesia and threatened that if he did enter Australia’s territorial sea with the intention of offloading the persons rescued from the Palapa 1 that he would be subject to prosecution under the Migration Act 1958 (Cth). Following a period during which the Tampa anchored offshore Christmas Island, it sought to enter the Christmas Island territorial sea whereupon members of the Australian Special Air Service (SAS) boarded the vessel. The proceedings arose out of action taken at first instance seeking a writ of habeas corpus against the Minister for Immigration and Multicultural Affairs, the Attorney-General, the Minister for Defence and the Commonwealth of Australia for the release of 433 asylum-seekers aboard the MV Tampa.

The Tampa incident raised a multitude of legal issues, both international and municipal, some of which eventually received a hearing in Federal Court litigation which commenced on 31 August 2001.[50] However, the international law issues arising under the law of the sea and with respect to the rights and status of refugees, were not fully explored during that litigation, though they were subject to extensive media commentary and debate during the midst of the incident.[51] Nevertheless, on appeal to the Full Court of the Federal Court, some reference was made to the provisions of the 1951 Refugee Convention.

In upholding the appeal, with the effect that the order for habeas corpus was dismissed, Beaumont J noted:

Finally, it should be added that this is a municipal, and not an international court. Even if it were, while customary international law imposes an obligation upon a coastal state to provide humanitarian assistance to vessels in distress, international law imposes no obligation upon the coastal state to resettle those rescued in the coastal state’s territory. By Art 33, a person who has established refugee status may not be expelled to a territory where his life and freedom would be threatened for a Convention reason. Again, there is no obligation on the coastal state to resettle in its own territory. Any extrajudicial assessment of executive policy in the present circumstances should be seen in this context.[52]

Likewise, the other majority judge, French J, made reference to the obligations contained in article 33 of the Refugee Convention and the impact, if any, they had upon the powers of the executive. He questioned whether entry by the executive into a Convention fettered executive power under the Constitution.[53] However, he considered this issue moot, as nothing done by the executive was considered to be in breach of the Convention. Here French J noted the role of the Court in this instance:

The steps taken in relation to the MV Tampa which had the purpose and effect of preventing the rescuees from entering the migration zone and arranging for their departure from Australian territorial waters were within the scope of executive power. The finding does not involve a judgment about any policy informing the exercise of that power. This is a matter which has been and continues to be debated in public and international forums … The task of the court is to decide whether the power exists and whether what was done was within that power, not whether it was exercised wisely and well. [54]


Extradition Request – Poland – Offence recognised by requested state

Oates v Attorney-General (Commonwealth)

[2001] FCA 84; 181 ALR 559

Federal Court of Australia

Lindgren J

This case concerned an extradition request made by Australia to Poland for the return of Oates to Australia to face charges of conspiracy to defraud and various charges relating to his position as a company director. All the charges were laid under the Western Australian Criminal Code and Companies Code. At issue was whether the crimes, of which Oates was accused in Australia, were ones that fell within any of the crimes or offences provided for in the relevant extradition treaty, being the 1934 Treaty between the United Kingdom of Great Britain and Northern Ireland and the Republic of Poland for the Surrender of Fugitive Criminals.[55] Justice Lindgren noted that the extradition request was governed by the provisions of the Extradition (Foreign States) Act 1966 (Cth) under which Poland was an extradition country. However, the Act was to be interpreted subject to the terms of the treaty.[56] It was noted that in the absence of a statutory constraint, the executive power of the Commonwealth found in section 61 of the Constitution was so large that the Attorney-General could lawfully request the extradition of a person to Australia ‘where the Attorney perceives it to be in Australia’s interests to make such a request.’[57]

As to the Treaty between Australia and Poland, it was noted that it contained no limitations as to the circumstances under which an extradition request could be made. As such:

The Treaty contains reciprocal undertakings to surrender persons, not limitations on either country’s power to request the other to do so. The Treaty is directed to the nature and extent of the undertaking by the requested country and the circumstances in which that undertaking is enlivened. [58]

As such, the question as to how the requested state should respond to the request for extradition was entirely a matter for that state:

Relevant to the question will be its municipal criminal and extradition laws and its own language version of the extradition treaty, upon which its own courts, not those of the requesting state, must rule.[59]

On these and related grounds, the application challenging the extradition request was dismissed.

Law of the Sea

Territorial sea and sea-bed – Native title claim – Sovereignty – Right of innocent passage

Commonwealth of Australia v Yarmirr & Ors;

Yarmirr & Ors v Northern Territory of Australia & Ors

[2001] FCA 56; (2001) 184 ALR 113

High Court of Australia

These proceedings arose out of a native title claim by a number of groups of Aboriginal people to the sea and sea-bed in the area around Croker Island off the coast of the Northern Territory of Australia. The claim was made under the Native Title Act 1993 (Cth) (the Act) which had been enacted in response to the decision of the High Court in Mabo v Queensland (No 2).[60] Initially, the claim was for the right to occupy, use and enjoy the seas and seabed within the claimed area, and to possess the seabed and seas and the airspace above the seas, to the exclusion of all others. The courts below had held that a native title claim could validly be made in respect of the territorial sea and sea-bed, but had rejected, as a matter of evidence, the extent of the rights and interests claimed in these proceedings.[61] The courts had held, in addition, that the claim for exclusive possession was untenable as it was inconsistent with other rights, including the international right of innocent passage.

The Act provides for the protection of those native title rights that are ‘recognised by the common law of Australia’. The meaning and application of this phrase was one of the principal issues that arose for determination. The majority (Gleeson CJ, Gaudron, Gummow and Hayne JJ) considered, but held that it was unnecessary to decide, the question whether or not the common law extended or applied beyond the land mass of Australia (ie below the low-water mark) to all or any part of Australia’s territorial sea or sea-bed. It held that provided that the native title rights claimed were not inconsistent with any sovereign rights and interests of Australia or the Northern Territory in the claimed area, then the common law would recognise the native title rights and they would be protected under the Act. The majority eschewed any attempt at a comprehensive description or definition of Australia’s or the Northern Territory’s sovereign rights or interests: it did conclude, however, that those rights included ‘the concession of an international right of innocent passage’.[62] As the claimants’ native title rights determined by the primary judge were not inconsistent with any sovereign rights, the majority affirmed the decisions made by the courts below.

Justice McHugh, who dissented, took a very different approach to the operation of the Act. He held that it was not enough that the native title rights and interests claimed were not inconsistent with the common law. This fell short of the requisite recognition by the common law.[63] He held further that it was not the acquisition or exercise of sovereignty that led to the recognition of native title rights, but rather ‘the bringing of the common law to the territory’.[64] This proposition required consideration of the territorial reach of the common law. After an examination of the relevant authorities,[65] McHugh J held that the acquisition and extension of sovereignty, first by Great Britain and then by Australia and/or the Northern Territory, and the exercise of sovereign rights, over the territorial sea and the sea-bed had not brought the common law to those areas.[66] Therefore, the common law does not, and never had, extended beyond the low-water mark.[67] As a result, native title rights in respect of the territorial sea and sea-bed could not be ‘recognised’ by the common law and protected under the Act.

In the course of his reasons, McHugh J had cause to comment on section 6 of the Act which provided that the Act extended to ‘any waters over which Australia asserts sovereign rights’. His Honour found this reference ‘curious’ for the following reason:[68]

The sovereignty of a state extends only “to a belt of sea adjacent to its coast, described as the territorial sea.”[69] Beyond the territorial sea lie the high seas over which no nation has sovereignty. International law recognises, however, that a nation has rights in respect of its continental shelf even where that shelf extends beyond the boundaries of the territorial sea. In respect of its continental shelf, a nation has “sovereign rights” to exploit the sea-bed and its subsoil. In 1953, Australia declared that it had sovereign rights over its continental shelf. But it had no sovereignty over the waters or area beyond the territorial sea boundary.[70] Consistent with its international obligations, Australia might declare native title over the sea-bed and subsoil. But as at present advised, I am not persuaded that, consistently with international law, it could do so over any part of the high seas. If I thought that it was possible to read the Act as declaring that native title existed over the high seas, I think that it would be necessary to read the Act down to be consistent with Australia’s obligations in international law.

Justice Kirby also dissented. On the principal issue, he held that if the territorial reach of the common law was limited, then it had to give way to the application of the Act in respect of the territorial sea and sea-bed areas claimed by the claimants.[71] Like McHugh J, Kirby J also made reference to the possibility of a native title claim that might extend beyond the territorial sea by seeking to rely on Australia’s interests in the continental shelf. Such a claim, he observed, ‘would enliven an additional norm of international law’ which ‘generally upholds access to the open sea as part of the common heritage of humanity’.[72] This norm, his Honour remarked, ‘is more comprehensive than the right of innocent passage and presents greater scope for conflict with any native title rights and interests in the high seas’.[73] However, he found that the present proceedings did not require any further consideration of this issue.

In resolving the questions of principle and of the proper construction of the Act, Kirby J would have made substantial use of international principles. His Honour stated:[74]

In resolving the problem of legal recognition of continuing exclusive elements of native title in the sea (where exclusive enjoyment can be proved as a fact to exist) there are new sources to inform the content of the common law of Australia, including as that expression is used in the Act. Those sources assist in the resolution of ambiguous provisions in Australian legislation or gaps in the common law of Australia. While it has been demonstrated that the common law, inherited from England, is capable, in certain circumstances, of recognising exclusive rights in the sea, I regard international principles as an even more persuasive source in a decision about whether certain exclusive rights in the determination area may be recognised by the common law in the present context.

The international principles to which Kirby J then referred were, first, those ‘[e]xpositions of international law, concerned with fundamental human rights, [that] repeatedly stress the impermissibility of discrimination and unequal treatment of people on the grounds of their race’,[75] and, second, ‘[t]he importance of preserving and protecting the traditional society and culture of indigenous peoples’ which had been recognised by international bodies such as the United Nations Human Rights Committee and Commission on Human Rights.[76] Then, in the context of the claimants’ claim to exclusive rights in the subject area, Kirby J stated:

If it were proved, for example, that persons such as the claimants did indeed, by their own laws and customs, enjoy over a claimed area rights and interests exclusive of others, it would be discriminatory against them to deny recognition of exactly the same entitlements in respect of their rights and interests in land or waters as other Australians would enjoy in respect of their rights and interests. On the face of things, once recognition of indigenous rights and interests is accepted in principle, the common law accepts the indigenous rules to be applicable so far as it can. If it does not, there needs to be a very good legal reason to justify denying such recognition, given that the denial necessarily involves discrimination against vulnerable persons defined in terms of their race.

His Honour would have held that the claimants did have exclusive rights over the territorial sea and the sea-bed in the area claimed, subject to the existence of other established rights such as the right of innocent passage.

[∗] Trinity College, University of Cambridge.

[∗∗] Faculty of Law, University of Sydney.

[∗∗∗] In order to facilitate access by non-traditional means, the following footnotes incorporate a media-neutral format for case citations by including, where available, the paragraph number of the quotation or references. The paragraph number is included in parentheses after the traditional citation eg [2001] FCA 1329; (2001) 183 ALR 1, 32 [126]. All the judgments referred to may be accessed via <>.

[1] 1037 UNTS 151; [1975] ATS No 47.

[2] 1155 UNTS 331; [1974] ATS No 2.

[3] [2001] FCA 1453 [59].

[4] Ibid [68].

[5] Ibid [103].

[6] Ibid [105].

[7] Ibid [115].

[8] [1991] ATS No 4.

[9] The relevant portion of art 9 provides as follows: ‘1. State parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.’

[10] [2001] NSWCCA 522 [36].

[11] Ibid [85].

[12] Ibid [123].

[13] (2001) 206 CLR 57, 63-64 [12].

[14] Ibid 65 [17].

[15] (1954) 189 UNTS 150; [1954] ATS No 5.

[16] Justice Gaudron dissented on this point. Justice McHugh decided the case on an alternative basis and did not consider this question.

[17] (2001) 206 CLR 57, 66 [24].

[18] Ibid.

[19] Ibid.

[20] Ibid.

[21] Ibid 119-120 [200]-[201].

[22] Ibid 118-119 [198].

[23] Ibid 76 [62].

[24] Ibid.

[25] Ibid 77 [64].

[26] Ibid 77 [65].

[27] Ibid 79 [70].

[28] In this context it was noted that the UN Handbook on Procedures and Criteria for Determining Refugee Status (1979) observes that ‘punishment for desertion or draft-evasion could … in itself be regarded as persecution’ where ‘the types of military action, with which an individual does not want to be associated, is condemned by the international community as contrary to basic rules of human conduct’

[29] [2001] HCA 30; (2001) 206 CLR 323, 397 [242].

[30] Ibid 376 [169].

[31] [2001] FCA 263 [37], referring to Minister for Immigration and Multicultural Affairs v Zamora [1998] FCA 913; (1998) 85 FCR 458, 464.

[32] [2001] FCA 263 [37] (original emphasis).

[33] Ibid [38].

[34] Ibid [40].

[35] Ibid [48].

[36] Ibid [49].

[37] Ibid [55].

[38] See, eg, B Olbourne and D R Rothwell, ‘Australian Cases Involving Questions of Public International Law 2000’ (2001) 20 Aust YBIL 169, 191-192.

[39] The relationship between arts 33(1) and 1E was discussed by Hill J in Minister for Immigration and Multicultural Affairs v Yasouie [2001] FCA 1133.

[40] [2001] FCA 1141; (2001) 184 ALR 698, 720 [93].

[41] Justice Tamberlin referred, inter alia, to Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 151 ALR 685, 707-708 per von Doussa J, and Patto v Minister for Immigration and Multicultural Affairs [2000] FCA 1554 [37] per French J.

[42] [2001] FCA 1141; (2001) 184 ALR 698, 699 [4] (emphasis in original).

[43] Ibid 714 [55]-[56] per Lee J; 700 [8] per Spender J.

[44] Ibid 699 [3], 722 [102].

[45] [2001] FCA 1381, [32].

[46] Section 36(3) of the Migration Act 1958 (Cth), which came into force in respect only of claims for refugee status made after 16 December 2000, provides that: ‘Australia is taken not 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.’

[47] Minister for Immigration and Multicultural Affairs v Applicant C [2001] FCA 1332 [88] (Full Court of the Federal Court), approving the first instance decisions of the Federal Court in S115/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 540; Kola v Minister for Immigration and Multicultural Affairs [2001] FCA 630; Bitani v Minister for Immigration and Multicultural Affairs [2001] FCA 631; W228 v Minister for Immigration and Multicultural Affairs [2001] FCA 860; V1043/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 910; and V856/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 1018. See also Taiem v Minister for Immigration and Multicultural Affairs [2001] FCA 611; (2001) 186 ALR 361.

[48] Minister for Immigration and Multicultural Affairs v Applicant C above n 47, [65].

[49] [2001] FCA 1297; 182 ALR 617.

[50] Ibid; Ruddock v Vadarlis [2001] FCA 1329.

[51] See J-P L Fonteyne, ‘All Adrift in a Sea of Illegitimacy: An International Law Perspective on the Tampa Affair’ (2001) 12 Public Law Review 249-253; D R Rothwell ‘The Law of the Sea and the MV Tampa Incident: Reconciling Maritime Principles with Coastal State Sovereignty’ (2002) 13 Public Law Review 118-127.

[52] [2001] FCA 1329; (2001) 183 ALR 1, 32 [126]

[53] Here, the decision in Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 was noted.

[54] [2001] FCA 1329; (2001) 183 ALR 1, 55 [204]

[55] [1935] ATS No 10.

[56] [2001] FCA 84 [15]; [2001] FCA 84; 181 ALR 559, 564.

[57] [2001] FCA 84 [39]; [2001] FCA 84; 181 ALR 559, 569. Support for this view was found in Barton v Commonwealth [1974] HCA 20; (1974) 131 CLR 477.

[58] [2001] FCA 84 [50]; [2001] FCA 84; 181 ALR 559, 572.

[59] [2001] FCA 84 [51]; [2001] FCA 84; 181 ALR 559, 572.

[60] (1992) 175 CLR 1.

[61] Yarmirr v Northern Territory (No 2) (1998) 156 ALR 370; Commonwealth v Yarmirr (1999) FCA 1668; (1999) 168 ALR 426. See D R Rothwell, ‘Australian Cases Involving Questions of Public International Law 1997 and 1998’ [1998] AUYrBkIntLaw 6; (1998) 19 Aust YBIL 119, 146; D R Rothwell and B Olbourne ‘Australian Cases Involving Questions of Public International Law 1999’ [1999] AUYrBkIntLaw 19; (1999) 20 Aust YBIL 361, 380-382. It had been determined, as a matter of fact at first instance, that the claimants’ native title rights were not to exclusive possession of the claimed area, but to fish, hunt and gather for personal, domestic or non-commercial needs including for the purpose of observing traditional, cultural, ritual and spiritual laws and customs; and access to the sea and sea-bed for these purposes, and for travel, visiting and protecting places within the claimed area of cultural or spiritual importance, and to safeguard cultural and spiritual knowledge.

[62] [2001] HCA 56; (2001) 184 ALR 113, 135 [61].

[63] Ibid 146 [104], 176 [232].

[64] Ibid 171 [209].

[65] In particular, R v Keyn (1876) 2 Ex D 63 and New South Wales v Commonwealth [1975] HCA 58; (1975) 135 CLR 337.

[66] [2001] HCA 56; (2001) 184 ALR 113, 171 [210].

[67] Ibid 163 [179].

[68] Ibid 152 [129] (some footnotes omitted).

[69] Convention on the Territorial Sea and the Contiguous Zone, 29 April 1958, art 1 (1958) 516 UNTS 205; [1963] ATS No 12 .

[70] Ibid, arts 2-5.

[71] [2001] HCA 56; (2001) 184 ALR 113, 184 [259].

[72] Ibid 189 [276].

[73] Ibid 190 [277].

[74] Ibid 195 [292].

[75] Ibid 196 [294].

[76] Ibid 196-197 [295].

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