Australian Year Book of International Law
Ben Olbourne,[∗] Donald R Rothwell[∗∗]and Tim Stephens[∗∗∗]
Austin v Commonwealth of Australia
 HCA 3; (2003) 215 CLR 185
High Court of Australia
The plaintiffs in these proceedings were serving judicial officers of the Supreme Courts of New South Wales and Victoria. They sought to challenge the construction and constitutional validity of a certain superannuation tax levied on them under federal law. All the members of the High Court agreed on the proper construction of the legislation and all the members, save for Kirby J, agreed that the legislation was invalid in its application to the plaintiffs.
Chief Justice Gleeson, Gaudron, McHugh, Gummow and Hayne JJ approached the construction of the legislation and the Federal Constitution from the orthodox point of view of primarily Australian domestic law, although some reference was made to the domestic laws of other states, most notably the United States of America. Justice Kirby, in contrast, emphasised the relevance of international human rights law to both the process of construction of the legislation and also the assessment of the constitutional validity of that legislation. After advocating the adoption of a ‘purposive’ principle to the construction of legislation, Kirby J continued:
In the task of construction it is permissible to have regard to any applicable principles of international human rights law that throw light upon the point in controversy. To do this is not to introduce into the interpretation, by the backdoor, provisions in international human rights treaties to which Australia is a party but which have not been incorporated as part of this country’s domestic law. That would be an impermissible course. Instead, it involves a different, and permissible course. Faced with a choice between competing concepts of the common law or ambiguous Australian statutes, a decision-maker may take into account, as relevant, the consideration that one interpretation will conform to the international law of human rights and another will not.
Justice Kirby then referred to the International Covenant on Civil and Political Rights (ICCPR) and, in particular, article 14.1, which provides that ‘everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law’. This entitlement, he said, was to be implied in the Australian Constitution. In relation to the question of the interpretation of the Constitution, Kirby J also observed that it was his view that ‘this Court may also interpret the Australian Constitution so as to ensure that the development of constitutional doctrine, relating to matters of fundamental principle, conforms, so far as the text and other considerations allow, to the principles of the law of universal human rights.’ He then applied this approach to the present case:
In the present case, this includes the right of access to judges who are competent, independent and impartial in the full sense of those words. Many international statements concerning the features essential to the judicial branch of government recognise the importance of providing adequate remuneration for the judiciary and protection of such remuneration against its effective reduction in office. Where there is an ambiguity in the applicable legislation or an uncertainty in the meaning and application of the Constitution, I will prefer the construction that upholds these basic principles and applies them to the problem in hand in preference to a construction which does not. I take such notions to be inherent in the type of judiciary for which the Australian Constitution provides or which it recognises.
Attorney-General for Western Australia v Marquet
 HCA 67; (2003) 202 ALR 333
High Court of Australia
These proceedings arose out of an attempt to address what was alleged to be the unequal distribution of electors among the electoral divisions in the state of Western Australia. The state parliament had purported to pass two bills to this effect but questions arose as to whether it had been necessary for these bills to be approved by a simple majority or by an absolute majority of both houses of the parliament. The Clerk of the parliament applied to the Supreme Court of Western Australia for a declaration that it was lawful for him to present the bills for royal assent. The proceedings raised issues as to the construction of earlier legislation and the ability of the parliament to fetter its sovereignty by enacting legislation that purported to restrict the power of the parliament subsequently to repeal that legislation.
The Full Court of the Supreme Court of Western Australia held that it was not lawful for the Clerk to present the two bills. On appeal, the High Court came to the same conclusion. Chief Justice Gleeson, Gummow, Hayne, Callinan and Heydon JJ all did so by reference purely to considerations of municipal law. Justice Kirby, on the other hand, would have held that it was lawful for the Clerk to present the bills. In his reasons, he emphasised the importance of international human rights law as an interpretive tool in the process of statutory construction.
Starting with the proposition that the state legislation in question could be viewed as ambiguous, Kirby J held that it was necessary to approach the question of construction by looking for an interpretation that favoured ‘civil rights’ and ‘human rights’. In respect of the latter, his Honour referred to the fact that Australia was a party to the ICCPR and that article 25(b) of that instrument provided that ‘[e]very citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions … to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage …’. Of this provision, he said: ‘The purpose of the Article is to provide a broad formulation of the guarantee of democratic accountability to their citizens on the part of the governments of the States Parties.’ Justice Kirby then referred to General Comment 25 adopted by the United Nations Human Rights Committee (HRC) and a number of decisions of the HRC in respect of individual communications. He observed that the HRC had emphasised that ‘accountability of the government to citizens is essential’ and that it had been critical of those states parties that had created ‘enclaves of power’ for particular groups sometimes reinforced by constitutional powers accorded to one legislative chamber to block initiatives adopted by the popularly elected chamber aimed at removing the entrenched privileges.
His Honour then stated that ‘it remains the law that this Court will construe ambiguities in Australian legislation so as to avoid serious derogations from the international law of fundamental human rights’. On turning to consider the state legislation in question, Kirby J concluded:
this Court should therefore prefer a construction of the [legislation] that avoids an effective derogation from Art 25 of the ICCPR to a construction that would not only give effect to that derogation but would purportedly “entrench” it by imposing requirements for “repeal” of the incompatible laws that do not apply to other legislation. Supposed exceptional requirements that make repeal of the offending law more difficult should be given a strict interpretation. This is so because they would otherwise burden the individual human rights stated in Art 25 of the ICCPR.[9 ]
Re Minister for Immigration and Multicultural Affairs;
Ex parte Hieu Trung Lam
 HCA 6; (2003) 214 CLR 1
High Court of Australia
The applicant, a man of Vietnamese origin who had been granted a permanent visa to remain in Australia, initiated these proceedings in the High Court seeking to have quashed the respondent’s decision to cancel his visa by reason of his conviction for serious criminal offences. He alleged inter alia that, in reaching its decision, the respondent had failed to take into account the best interests of his children. He relied, in particular, on what he claimed to be a ‘legitimate expectation’ that the respondent would contact directly the person who had been identified as the then primary carer of his children. The High Court concluded that no such legitimate expectation could have arisen in the present case, or that, if it did, then the failure to comply with such an expectation did not necessitate the Court’s intervention. Accordingly, the proceedings were dismissed.
In the course of their judgments, all members of the High Court considered the Court’s earlier judgment in the case of Minister for Immigration and Ethnic Affairs v Teoh. In that case, the Court had held that a person may have a legitimate expectation that a government official would act in conformity with the obligations set out in an international convention, which Australia had ratified but which it had not yet enacted into domestic law. Mason CJ and Deane J had observed that:
ratification by Australia of an international convention is not be to dismissed as a merely platitudinous or ineffectual act … ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the [convention].
In the present case, McHugh and Gummow JJ doubted whether mere ratification of an international convention was sufficient to give rise to a legitimate expectation. Consistently with their view that a legitimate expectation could arise only if a person in fact subjectively held that expectation, they observed that assessing whether a legitimate expectation might arise in respect of the ratification by Australia of an international convention required a consideration of the extent to which ratification of the convention had impinged upon the popular consciousness. They then noted that ‘in general, ratification, as an executive act, [does] not in the domestic constitutional structure thereby confer rights upon citizens or impose liabilities upon them’. This did not mean that ratification was merely a platitudinous act; it gave rise to an international responsibility on the part of the ratifying state to the other contracting states.
However, McHugh and Gummow JJ were careful not to deny that unincorporated treaties could have any effect in the Australian domestic legal order. Thus, they observed:
in various respects, an unincorporated treaty, left in that state, may be invoked in various ways in the conduct of domestic affairs. For example, a peace treaty will, without legislation, change the status of enemy aliens in Australian courts. Further, the taking of a step by the executive government in the conduct of external affairs, whilst of itself neither creating rights nor imposing liabilities, may supply a step in the broader process of resolution of justiciable disputes. The so-called “disguised extradition” cases are an example. The treatment of public policy objections in the conflict of laws may be another. More frequently encountered are the rules of statutory interpretation which favour construction which is in conformity and not in conflict with Australia’s international obligations.
Hayne J expressed a similar reservation as to the Court’s decision in Teoh. Callinan J was more forthright:
I cannot help observing … that I have further reservations about the application of the doctrine [of legitimate expectation] in the kind of case that Teoh was. There, it was the ratification of an international Convention that was said to give rise to the legitimate expectation. The non-enactment of the Convention into Australian law could well indicate parliamentary resistance to it. It might be that the parliament believed that Australian law already paid sufficient regard to all relevant considerations … The fact remains that the Convention is not part of Australian law. It is true that the Executive is both the ratifier of the Convention and the decision maker here, but its obligations and processes owe their existence to, and are defined by, [legislation]. In consequence, the view is open that for the Court to give the effect to the Convention that it did, was to elevate the Executive above the parliament. This in my opinion is the important question rather than whether the Executive act of ratification is, or is not described as platitudinous or ineffectual.
Toben v Jones
 FCAFC 137; (2003) 199 ALR 1
Federal Court of Australia
Carr, Kiefel and Allsop JJ
Proceedings were instituted in the Human Rights and Equal Opportunity Commission in reliance on the Racial Discrimination Act 1975 (Cth) relating to the publication of certain material on the Internet, which the complainant claimed constituted racial vilification under the Act. Before the Federal Court of Australia, questions were raised regarding the constitutionality of the Act and its relationship with the 1965 International Convention on the Elimination of All Forms of Racial Discrimination.
The Court unanimously held the Act was a valid exercise of the section 51 (xxix) power in the Constitution over ‘external affairs’. The connection between the Act and the Convention was reviewed, with Carr J noting that the Convention’s terms were directed to ‘not only at acts of racial discrimination and hatred, but also to deterring public expressions of offensive racial prejudice which might lead to acts of racial hatred and discrimination’.  According to Carr J, it was consistent with the Convention that a ‘state should legislate to “nip in the bud” the doing of offensive, insulting, humiliating or intimidating public acts which are done because of race, colour or national or ethnic origin before such acts can grow into incitement or promotion of racial hatred or discrimination’.
Justice Allsop reviewed settled High Court of Australia authority regarding the operation of the ‘external affairs’ power under the Constitution and referred to three elements:
1. a law must be one which is “reasonably capable of being considered as appropriate and adapted” to implementing the treaty 2. that the implementation of the obligations undertaken by Australia does not provide the outer limit of the power
3. that it is unnecessary for the law to be a full and complete implementation of the treaty. 
It was concluded that ‘careful regard’ had been given in the Act to balancing the Convention with the provisions of the Universal Declaration of Human Rights, and that accordingly it was possible to assert that the provisions in the legislation were appropriate and adapted to meet the objectives of the Convention. Whether these measures were the best possible method for implementing the Convention, were questions for the legislature.
R v Disun
 WASCA 47
Supreme Court of Western Australia
Murray, Anderson and Templeman JJ
This case arose following the arrest of two Indonesian citizens for ‘people smuggling’ contrary to the Migration Act 1958 (Cth). The arrests took place on board the MV Tampa following that vessel undertaking a search and rescue operation in the Indian Ocean when an Indonesian fishing vessel KM Palapa I began to sink. The MV Tampa rescued all persons on board and sailed to Christmas Island where contrary to requests from Australia, it anchored within the territorial sea. The MV Tampa was subsequently boarded by Australian Federal Police who carried out the arrests of the Indonesian citizens. It was alleged that these individuals were responsible for organising the voyage of the KM Palapa I and setting sail for Australia contrary to the provisions of the Migration Act.
A key issue for resolution was the extraterritorial operation of the Crimes Act 1914 (Cth) and whether it permitted an arrest to take place on board a foreign vessel. While it was accepted that the Crimes Act had extraterritorial operation, it had been submitted to the Court that the Act had to be read consistently with the territoriality of other nations and that in this case the MV Tampa, which was a Norwegian-flagged vessel, was a part of Norway notwithstanding that the vessel lay within Australia’s territorial sea at the time the arrests took place. Accordingly, extradition of the persons in question consistent with the Extradition Act 1988 (Cth) should have been sought.
Justice Anderson noted that the Extradition Act did not require a request for extradition to be made when the persons concerned were within the territory of Australia, which included territorial waters. As the persons in question were already within Australian territory, there was no need for an extradition request to be made. It was noted:
In short, it is only if the MV Tampa was a territorial enclave of Norway whilst within Australian territorial waters that there would be any need to have recourse to the Extradition Act or to the Extradition Treaty between Norway and Australia. Whether the ship was or was not a “floating island” of Norway is a question which falls to be answered by reference to the customary rule of international law recognised as part of the common law of Australia and the answer is that there is no rule of international law which is to the effect that persons on board private ships entering Australian territorial waters are immune from local jurisdiction.
It was concluded that as the MV Tampa was not a foreign warship nor had it entered Australian waters with consent, that there was no basis upon which the persons on board the vessel could claim immunity from arrest and prosecution.
The appeal was dismissed with the concurrence of Murray and Templeman JJ.
B v Minister for Immigration and Multicultural and Indigenous Affairs
 FamCA 451; 199 ALR 604
Family Court of Australia
Nicholson CJ, Ellis and O’Ryan JJ
These proceedings arose out of the continued detention of children at the Woomera Immigration and Reception Centre and the Baxter Immigration and Reception Centre. The central issue for consideration was the extent of the Family Court of Australia’s welfare jurisdiction and injunction powers to order the release of the children from detention. In the course of the Court’s deliberations, consideration was given to the impact of the 1989 Convention on the Rights of the Child, particularly as it related to the court’s jurisdiction over children.
Chief Justice Nicholson and O’Ryan J were of the view that the Family Court’s welfare jurisdiction was partly founded in the operation of the section 51 (xxix) constitutional power over ‘external affairs’, in particular due to the effect of the Convention on the Rights of the Child. The relationship between the Family Law Act 1975 (Cth) and the Convention had previously been the subject of review in B and B; Re Family Law Reform Act 1995 and the Court assessed the impact of this decision, concluding that while the Convention was adopted subsequently to the Act, it was ‘highly likely’ that section 43 of the Act incorporated the provisions of the 1959 United Nations Declaration on the Right of the Child. Further, Nicholson CJ and O’Ryan J were of the view that the intention of the Parliament in passing section 67ZC of the Act was to implement certain relevant parts of the Convention and that accordingly that section of the Act was supported by the ‘external affairs’ power. The same view was not shared by Ellis J, who concluded that the Family Law Reform Act 1995 (Cth) did not incorporate the Convention and that it was not the intent of Parliament to implement the Convention consistent with the operation of the ‘external affairs’ power.
Re Minister for Immigration and Multicultural and Indigenous Affairs;
Ex parte Applicants S/134/2000
 HCA 1; (2003) 211 CLR 441
High Court of Australia
In this case, the Refugee Review Tribunal (the Tribunal) had rejected the applicant’s application for a temporary protection visa on the basis that she had not satisfactorily demonstrated that she and her children had a well-founded fear of persecution in Afghanistan. The Tribunal was empowered to make this assessment in order to fulfil Australia’s protection obligations under the Refugee Convention. Article 1A(2) of the 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.
In making her application for refugee protection, the prosecutor had stated that her husband had fled Afghanistan two years prior to her departure and that she had no information as to his whereabouts. It so happened that her husband was in Australia and had been granted a temporary protection visa. There was a reference to this in the prosecutor’s file held by the respondent’s department, but it was apparent that the Tribunal either had not noticed this reference or had not appreciated its significance. Whether either of these failures or the additional failure of the Tribunal to take into account the presence and status of the prosecutor’s husband in Australia amounted to reviewable error on the part of the Tribunal was the primary focus of the proceedings before the High Court.
In its judgment, the majority (Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ) first considered the extent to which the presence in Australia of the prosecutor’s husband was a relevant consideration in the determination of her application. It observed that Australian legislation ‘plainly draws a distinction between those to whom Australia has protection obligations and those who are spouses or dependants of such persons who hold protection visas’ and recognises that membership of this second category of persons was itself a criterion for the grant of a protection visa. It then noted that this implemented ‘the principle of family unity’ which, although it had not been incorporated directly into the Refugee Convention, had been included in the Final Act of the Conference of Plenipotentiaries of 1951 that had adopted the Refugee Convention.
However, the majority rejected the prosecutor’s contentions on the basis that she had put forward her claim for refugee protection solely on the basis that she was herself a refugee and that she had not asserted any entitlement to protection on the basis of membership of a family unit, to one of whom, her husband, protection obligations were owed. The majority further held that the Tribunal’s failure to raise the matter of her husband’s presence and status in Australia did not amount to a want of procedural fairness since the Tribunal had not actually been aware of the reference in the prosecutor’s file to her husband and had not relied on any information relating to the husband in reaching its decision. The minority (Gaudron and Kirby JJ) would have held that the respondent was, in the circumstances, under a positive obligation to consider the relationship between the prosecutor and her husband and that its failure to do so amounted to a reviewable error.
Dranichnikov v Minister for Immigration and Multicultural Affairs
 HCA 26; (2003) 197 ALR 389
High Court of Australia
This appeal to the High Court turned on the question whether the Tribunal had, for the purpose of determining whether the appellant had a well-founded fear of persecution by reason of membership of a particular social group, mistaken the group of which the appellant claimed to be a member. He alleged that the Tribunal had dismissed his claim in relation to the broad group of ‘businessmen in Russia’, whereas his case had in fact been in relation to a more limited group consisting of Russian businessmen in Vladivostok who publicly criticised the local law enforcement authorities for failing to take action against crime or criminals. A majority of the High Court agreed that the Tribunal had indeed made this error and that the Tribunal’s conclusion that the appellant did not face persecution by reason of his membership of that group could not stand.
In the course of their judgment, Gummow and Callinan JJ set out briefly the proper approach to be followed by a decision-maker in determining whether an applicant for refugee protection had established a fear of persecution for reasons of membership of a particular social group. They said:
the task of the Tribunal involves a number of steps. First the Tribunal needs to determine whether the group or class to which an applicant claims to belong is capable of constituting a social group for the purposes of the [Refugee Convention]. That determination in part at least involves a question of law. If that question is answered affirmatively, the next question, one of fact, is whether the applicant is a member of that class. There then follow the questions whether the applicant has a fear, whether the fear is well founded, and if it is, whether it is for a Convention reason.
In his concurring judgment, Kirby J emphasised that the terms of the Convention make it vital that the decision-maker identifies correctly the particular social group of which an applicant claims membership:
an applicant faces a paradox in identifying the “particular social group” that he or she relies on in cases of this kind. Defining the group widely increases the ease of establishing membership of that group and, to the extent of fulfilling a requirement of the Convention definition. However, the wider the definition of the “group” propounded, the more difficult it may be for the applicant to show that the suggested fear is one of “persecution” which is “well-founded” and exists “for reasons of” membership of that social group. If the category is defined too narrowly, the decision-maker might be justified in considering that the “particular social group” claimed is not a “social group” at all when that phrase is read as an element of an international treaty intended to have operation at the level of obligations imposed upon nation states.
Appellant S395/2002 v Minister for Immigration and
; Appellant S396/2002 v Minister for Immigration and Multicultural Affairs
 HCA 71
High Court of Australia
The appellants in these two cases applied for refugee protection visas in Australia on the basis that they had a well-founded fear of persecution on account of their homosexual relationship if they returned to Bangladesh. The Tribunal found that the appellants were homosexuals and that homosexual men are a particular social group in Bangladesh for the purposes of the Refugee Convention. It also found that, although they had been shunned by their families and had been the subject of gossip and taunts from neighbours, they had not suffered serious harm amounting to persecution. The Tribunal therefore rejected their claim for refugee protection. The appellants appealed, alleging that the Tribunal had erred in the interpretation and application of the Convention.
In its decision, the Tribunal stated:
[H]omosexuality is not accepted or condoned by society in Bangladesh and it is not possible to live openly as a homosexual in Bangladesh. To attempt to do so would mean to face problems ranging from being disowned by one’s family and shunned by friends and neighbours to more serious forms of harm, for example the possibility of being bashed by the police. However, Bangladeshi men can have homosexual affairs or relationships, provided that they are discreet. Bangladeshis generally prefer to deny the existence of homosexuality in their society and, if possible, will ignore rather than confront it.
It was contended that this passage, and its decision read as a whole, revealed that the Tribunal had made a number of errors of law. These included, first, impliedly dividing homosexual men into two particular social groups – discreet and non-discreet homosexual men; second, failing to consider whether the need to act discreetly to avoid the threat of serious harm constituted persecution; and, third, by failing to consider whether the appellants might suffer serious harm if members of the Bangladesh community discovered that they were homosexuals. Justices McHugh and Kirby held that the Tribunal had erred in each of these respects. Justices Gummow and Hayne also held that the Tribunal had erred in its approach. Therefore, the appeals were upheld and the case was remitted to the Tribunal for re-determination.
The primary focus in the proceedings before the High Court was on the issue of the discretion or otherwise to be expected of an applicant for refugee status in respect of the reason for his or her alleged persecution. Justices McHugh and Kirby did not accept the appellants’ contention that the Tribunal had required them to be discreet about their homosexuality, but they did find that the Tribunal had failed to consider whether the choice of the appellants to live discreetly was a voluntary choice uninfluenced by a well-founded fear of harm if they did not live discreetly. They also found that the Tribunal had failed to consider whether persons for whom the government of Bangladesh is responsible condoned or inculcated such a fear.
Justices McHugh and Kirby held that the proposition that persons seeking refugee protection are required, or can be expected, to take reasonable steps to avoid persecutory harm (such as by conducting themselves discreetly) was wrong in principle. Their reasoning is set out in the following passages. First, they said:
The purpose of the Convention is to protect the individuals of every country from persecution on the grounds identified in the Convention whenever their governments wish to inflict, or are powerless to prevent, that persecution. Persecution covers many forms of harm ranging from physical harm to the loss of intangibles, from death and torture to State sponsored or condoned discrimination in social life and employment. Whatever form the harm takes, it will constitute persecution only if, by reason of its intensity or duration, the person persecuted cannot reasonably be expected to tolerate it. But persecution does not cease to be persecution for the purpose of the Convention because those persecuted can eliminate the harm by taking avoiding action within the country of nationality. The Convention would give no protection from persecution for reasons of religion or political opinion if it was a condition of protection that the person affected must take steps – reasonable or otherwise – to avoid offending the wishes of the persecutors. Nor would it give protection to membership of many a “particular social group” if it were a condition of protection that its members hide their membership or modify some attribute or characteristic of the group to avoid persecution. Similarly, it would often fail to give protection to people who are persecuted for reasons of race or nationality if it was a condition of protection that they should take steps to conceal their race or nationality.
And later, they said:
The notion that it is reasonable for a person to take action that will avoid persecutory harm invariably leads a tribunal of fact into a failure to consider properly whether there is a real chance of persecution if the person is returned to the country of nationality. This is particularly so where the actions of the persecutors have already caused the person affected to modify his or her conduct by hiding his or her religious beliefs, political opinions, racial origins, country of nationality or membership of a particular social group. In cases where the applicant has modified his or her conduct, there is a natural tendency for the tribunal of fact to reason that, because the applicant has not been persecuted in the past, he or she will not be persecuted in the future. The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted. In many – perhaps the majority of – cases, however, the applicant has acted in the way that he or she did only because of the threat of harm. In such cases, the well-founded fear of persecution held by the applicant is the fear that, unless the person acts to avoid the harmful conduct, he or she will suffer harm. It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct.
In respect of homosexual persons, McHugh and Kirby JJ held that if the harm inflicted or threatened is for a Convention reason and is serious enough to constitute persecution, then such persons are entitled to Convention protection. ‘It is immaterial’, they said, ‘that the conduct of the applicant for refugee status disclosed his or her identity as a homosexual and attracted the attention of persecutors.’ As for the appellants, McHugh and Kirby JJ concluded that the Tribunal had failed properly to consider whether they had a real fear of persecution if returned to Bangladesh and this amounted to sufficient error for the Tribunal’s decision to be set aside. Justices Gummow and Hayne reached the same conclusion.
As for the Tribunal’s identification of the appellants’ ‘particular social group’, McHugh and Kirby JJ held (Gummow and Hayne JJ concurring) that by finding that there was no reason to suppose that the appellants would not continue to act discreetly in the future, the Tribunal had in effect broken down the group of ‘homosexual men in Bangladesh’ into two groups – discreet and non-discreet homosexual males in Bangladesh. This ‘inevitably’ invited error as it focused the Tribunal’s mind primarily on the consequences of the sexual behaviour of non-discreet members of the group to the detriment of a consideration of other forms of harm suffered by members of the group generally. Thus the Tribunal had erred by failing to consider whether the appellants faced persecution if other persons became aware of their homosexual identity regardless of the discretion or otherwise with which they conducted their relationship. Similarly, Gummow and Hayne JJ emphasised that sexual identity was not to be regarded as limited to engaging in particular sexual acts or in particular forms of physical conduct. It may and often will, they said, extend to many aspects of human relationship and activity.
Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri
 FCAFC 70; (2003) 198 ALR 241
Full Court of the Federal Court of Australia
Black CJ, Sundberg and Weinberg JJ
The respondent in this case was a Palestinian from the Gaza Strip. On arrival in Australia, he applied for asylum as a refugee but his application was rejected by the Tribunal. The respondent then submitted a request to the appellant that he be returned to the Gaza Strip. This request could not be met as the appellant was unable to obtain permission for the respondent’s entry into either Egypt, Jordan, Syria or Israel. The delay in his repatriation caused the appellant to suffer anxiety and depression and also led to self-harm. The principal issue that arose in these proceedings was whether the power and duty of the appellant to detain the respondent as an unlawful non-citizen continued during a time when there was no real likelihood or prospect of his being removed from Australia in the reasonably foreseeable future.
The powers and duties of the appellant were set out in the provisions of the Migration Act 1958 (Cth), principally section 196, which provided that ‘an unlawful non-citizen detained … must be kept in immigration detention until he or she is … removed … deported … or granted a visa’, and section 198, which provided that ‘[a]n officer must remove as soon as reasonably practicable an unlawful non-citizen who asks the Minister, in writing, to be so removed.’
The Court resolved the issue identified above by the application of what it termed ‘a well-established principle of statutory construction concerning fundamental rights and freedoms’. This principle is that the legislature would not be taken to have intended to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unmistakable and unambiguous language. The Court could not find the expression of such a clear and unambiguous intention and, therefore, concluded that the appellant did not have the power mandatorily to detain the respondent when there was no real likelihood or prospect in the reasonably foreseeable future of his removal from Australia or release from detention.
The Court then considered whether this conclusion was consistent with established rules of international law and in accordance with Australia’s treaty obligations. In so doing, it affirmed the principle that statutory provisions should be read ‘subject to an implied limitation by reference to the principle that, as far as its language permits, a statute should be read in conformity with Australia’s treaty obligations’.
The Court looked first to the International Covenant on Civil and Political Rights (ICCPR), and started with the following general observations:
Although not incorporated into domestic law, the nature and subject matter of the ICCPR, the universal recognition of the inherent dignity of the human person (recited in its preamble) as the source form which human rights are derived, and the reference to and relevance of its principles in domestic law gives the ICCPR a special significance in the application of the principle of statutory construction now being considered.
The Court then considered article 9 of the ICCPR, which prohibits arbitrary detention. It examined the travaux préparatoires and also the jurisprudence of the Human Rights Committee. In relation to the latter, the Court observed:
Although the views of the Committee lack precedential authority in an Australian court, it is legitimate to have regard to them as the opinions of an expert body established by the treaty to further its objects by performing functions that include reporting, receiving reports, conciliating and considering that a State Party is not fulfilling its obligations.
The Court added that it was ‘appropriate, as well, to have regard to the opinions expressed in works of scholarship in the field of international law, including opinions based upon the jurisprudence developed within international bodies, such as the Committee’.
The Court also considered article 5(1) of the 1950 European Convention on Human Rights and Fundamental Freedoms and the jurisprudence of the European Court of Human Rights in relation to that provision. From this analysis, the Court concluded that the prohibition on arbitrariness of detention required not just that detention not be ‘against the law’, but that detention must not be, in each individual case, ‘unproportional’ or unjust. This it regarded as being consistent with, and supporting, the conclusions it had reached as regards the proper construction of the legislation by means of purely domestic rules of construction.
The Court concluded that following the consideration given to the ICCPR, and the principles that as far as the language permits a statute is to be read in conformity with Australia’s treaty obligations, that the Migration Act should not be read as permitting continued detention. The appeal of the Minister and Department was accordingly dismissed.
SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs
 FCAFC 120; (2003) 199 ALR 265
Full Court of the Federal Court of Australia
Cooper, Carr and Finkelstein JJ
The appellant, an Iranian national, sought protection in Australia as a refugee on the grounds that, if returned to Iran, he would be persecuted on account of his religious beliefs. The basis of his claim was that he had met a girl of the Baha’i faith whom he had announced he intended to marry and whose religion he intended to adopt. The Tribunal rejected his claim principally for the reason that he had failed to satisfy it that he had a genuine commitment to the Baha’i faith. It concluded that he had constructed the story of identification with the faith, or of an intention to convert to it, in order to manufacture a basis for his claim to refugee status. Subsequently, the appellant put forward the claim that he feared persecution on account of the religious beliefs that would be imputed to him by the Iranian authorities by reason of his association with his girlfriend and other members of the Baha’i faith. The Full Court of the Federal Court, by majority (Cooper and Carr JJ; Finkelstein J dissenting), rejected this alternative case on the basis that he had failed to establish that he in fact held such a fear.
In their reasons, both Cooper J and Carr J considered what it is that an applicant claiming refugee status on the basis of imputed religious beliefs has to establish to come within the Convention definition of a refugee. Cooper J observed that the Convention definition of a refugee involves both subjective and objective elements. The subjective element is a personally-held fear of persecution for a Convention reason. The objective element is that the subjective fear objectively be well-founded. In respect of the subjective element, Cooper J emphasised that merely showing a fear of being persecuted is not sufficient; it is necessary for an applicant to show a nexus between his fear and one of the grounds for persecution set out in the Convention. He described this as a requirement that the applicant ‘show that the persecution he or she fears will, in all reasonable likelihood, be for one or more of the five Convention reasons’. This requirement could be assessed by asking the question, ‘Why the applicant was, or fears he or she will be, persecuted?’
Justice Cooper held that the appellant had failed, on the facts put before the Tribunal, to establish that he feared that the Iranian authorities had imputed, or would impute, to him Baha’i beliefs on the basis of his associations and, further, that he had not established that he feared he would be persecuted by reason of such imputed beliefs. Justice Carr reached the same conclusions.
NAFG v Minister for Immigration and Multicultural and Indigenous Affairs
 FCAFC 152; (2003) 200 ALR 252
Full Court of the Federal Court of Australia
Gray, Ryan and Gyles JJ
The appellant in this case claimed to be a Bangladeshi citizen who faced persecution at the hands of Muslim fundamentalists by reason of being a Buddhist. The appellant had possessed a Bangladeshi passport since 1990, which he had used for some travel. The appellant had also possessed an Indian passport for many years, which he had used extensively for travel. He claimed that this Indian passport was a forgery and that he would be arrested if he returned to India on a false document. In its decision, the Tribunal found that the appellant was a Bangladeshi citizen but dismissed his application on the basis that he could obtain ‘effective protection’ in a country other than the country of his nationality, that is, India. The Tribunal referred in particular to the fact that the appellant had the right to reside in, to enter and to re-inter India. The appellant argued before the Full Court of the Federal Court that the Tribunal had misdirected itself as to the meaning of ‘effective protection’.
Justice Ryan, with whom Gyles J agreed, held that it was sufficient for the purposes of article 33 of the Convention that a Tribunal be satisfied that the applicant would, as a matter of practical reality, be able to obtain protection in a third state. This was, in the present case, evidenced by the fact that the appellant had a ‘right’ to enter and leave India and had done so on a number of occasions without interference from the Indian authorities. It followed that it was not necessary that the appellant be able to invoke some enforceable provision of Indian law, which entitled him to enter India.
As for the possible relevance of India not being a party to the Refugee Convention, Ryan J held that this may be relevant to an assessment of the risk of that country’s refouling the appellant to his own country, but it was not determinative of the question whether the appellant had effective protection in India. In the present case, it was to be inferred from the fact that the appellant had freely entered and left India on a number of occasions that India’s status as a non-party could not have affected the assessment of the risk of that country refouling him to Bangladesh.
Oates v Attorney-General (Commonwealth)
 HCA 21; (2003) 214 CLR 496
High Court of Australia
In 1996, the respondent had issued a request to the Republic of Poland for the appellant’s extradition to Australia. The appellant challenged this request, unsuccessfully, through the Australian courts. In this appeal to the High Court, the appellant made a further attempt to resist his return, on this occasion limiting his case to the seeking of an order quashing the extradition request as invalid. The invalidity arose, it was argued, on the ground that the offences to which the request referred were not offences listed in the 1934 Treaty between the United Kingdom of Great Britain and Northern Ireland and the Republic of Poland for the Surrender of Fugitive Criminals. The effect of this, according to the appellant, was that not only was Poland not under an obligation to extradite him, but that it was also unlawful for the respondent to have made the request in the first place.
The High Court dismissed the appeal. It examined the terms of the Treaty of Extradition and concluded that the Treaty had nothing to say on the making of a request for extradition by one party of the other and, specifically, it did not provide that the lawfulness of a request for extradition depended upon the offence or offences in respect of which extradition was sought being offences of the kind listed in the Treaty. On the contrary, the Court concluded that, save for the principle of ‘specialty’ according to which, in simple terms, a person surrendered should only be tried for the offence or in respect of facts specified in the request for extradition, ‘the treaty was wholly concerned with the circumstances in which, the procedures according to which, and the conditions upon which, each state party would be obliged to apprehend and surrender to the other a person in its territory’.
The Court then considered whether the appellant could derive any assistance from the relevant Australian extradition legislation. At the time the request for his extradition was made, this was the Extradition Act 1988 (Cth). The Court observed that among the principle objects of the Act set out in section 3 was that of facilitating the making of requests for extradition by Australia to other countries. But the Court was unable to find expressed in the legislation any limitation on the power of the respondent to request the extradition of the appellant in the present case. It set out its conclusion in the following terms:
It is true that a request for extradition of a person in the position of the appellant might have the effect of setting in train steps that result in a loss of that person’s liberty pending the determination by the foreign state of the request and, if that determination is favourable to the request, interruption of the individual’s life in the foreign state and removal, probably in custody, to Australia. It is an established principle, frequently applied by this Court, that legislation is construed, in the event of ambiguity, to uphold fundamental rights and to avoid unnecessarily diminishing them. However, in this case, that principle cannot assist the appellant. There is no ambiguity in ... the … 1988 Act so far as requests for extradition are concerned. … [nor] is there a relevant express restriction on the Executive’s power to make a request and the foregoing principle of construction cannot fill the omission so as to give rise to an implied restriction.
Blunden v Commonwealth of Australia
 HCA 73; (2003) 203 ALR 189
High Court of Australia
These proceedings arose out of a collision in 1964 between two ships of the Royal Australian Navy. The collision took place 18 miles off the coast of Australia on the high seas. The plaintiff claimed to have suffered serious psychological injuries and was seeking damages for what he alleged were the defendant’s negligent acts and omissions in respect of the collision. The respondent raised a defence of limitation. The point in issue before the High Court was the identification of what the statute of limitations, if any, was applicable to the plaintiff’s claim.
The plaintiff contended that, since the collision occurred on the high seas and since his claim was being made under federal law, the common law applied in its ‘pristine form’, unaffected by statutory law including laws as to limitation. The respondent contended that since the collision occurred in international waters, the applicable law should be that of the ‘law area’ within Australia with which the event had the closest relevant connection. This was, it was suggested, either the law of the Australian Capital Territory as the place of the seat of the administration and operation of the Royal Australian Navy, or, alternatively, New South Wales as the place of the last port of call of the vessels before the collision.
All the members of the High Court concluded that the applicable law was that of the Australian Capital Territory. Save for Kirby J, they all reached this conclusion purely by reference to considerations of domestic law. Justice Kirby, however, also considered ‘the context of international law’.
Although acknowledging that international law was not dispositive of the issue arising for decision, Kirby J decried that ‘some of the arguments before this Court proceeded as if there were no relevant context of public international law’. That context was that ‘[t]he high seas are not a law-free zone. They are subject to international law, expressed both in treaties to which Australia is a party and in customary international law.’ This context meant that in determining the relevant municipal law, it was appropriate ‘to begin the task (and to resolve any uncertainties), so far as possible, in accordance with the principles of the international law applicable to the high seas’.
Justice Kirby briefly identified those principles in the following passages:
In so far as there is an applicable principle of public international law, it is that extra-territorial acts may only be rendered subject to the exercise of jurisdiction by national courts applying domestic law if certain rules are observed. One of these rules is that there must be a substantial and bona fide connection between the subject matter and the source of the jurisdiction relied upon.
The rule of international law that a State may not exercise its authority on the territory of another State gives effect to the principle of sovereign equality among all Members of the United Nations, as laid down in Article 2, paragraph 1, of the Charter of the United Nations. It is for this reason that, notwithstanding the possible establishment of jurisdiction, in the sense of power over a defendant which is liable to be sued, an Australian court might, in a given case, in circumstances different from the present, refrain from exercising that jurisdiction in respect of a wrong allegedly occurring on the high seas. For example, if the wrong occurred on the high seas in conditions of armed conflict, hostilities between nations or collisions between vessels flying different flags, questions of justiciability, sovereign immunity, convenient forum and ascertainment of any applicable law could arise. Such questions would be resolved by an Australian court with due regard the principle of international law that ordinarily restricts the exercise of the authority of the municipal court to their own geographical territory, to any internal or proximate territorial waters and to events or things having relevant connections with the state concerned.
Since the present case involved the civil liability of the respondent in respect of injuries which, although suffered on the high seas, allegedly arose as a consequence of negligence solely attributable to the control and direction of naval vessels flying the Australian flag, Kirby J concluded that there was clearly a substantial and bona fide connection between the subject matter of the plaintiff’s action and the curial jurisdiction relied upon. Consequently, he held, ‘for Australian law and an Australian court to apply its domestic prescriptions to events happening on the high seas, either by applying the provisions of a statute or a principle of the common law of Australia, would offend no rule of public international law’.
Petrotimor Companhia de Petroleos S.A.R.L. v Commonwealth of Australia
 FCAFC 3; 197 ALR 461
Federal Court of Australia
Black CJ, Beaumont and Hill JJ
In these proceedings brought by Petrotimor, Petrotimor alleged that rights it had acquired under a 1974 Concession Agreement with the government of Portugal to engage in offshore petroleum exploration and exploitation in the Timor Sea, had been expropriated by the Commonwealth following Australia’s declaration of a continental shelf over parts of the Timor Sea. It was also alleged that the Commonwealth’s entry into the 1989 Timor Gap Treaty with Indonesia for the joint exploitation of the Timor Sea was outside of the Executive’s power and that the Treaty was void. Various declarations were sought by way of relief against the Commonwealth, and the Joint Authority established under the 1989 Treaty.
In dismissing Petrotimor’s claims, the Court considered a range of matters dealing with public international law, private international law, and related constitutional law issues. One of these went to the issue of the justiciability of the right of the Executive to define the boundaries of Australia. Here it had been argued, that as the Parliament had enacted the Seas and Submerged Lands Act 1973 (Cth) which defined the boundaries of the continental shelf, the right of the Executive to define those boundaries had been superseded. In considering this argument, the Court reviewed the legislative history concerning the continental shelf and its relationship with the provisions of the 1958 Convention on the Continental Shelf. It concluded that the Executive’s power to assert the boundaries of the continental shelf, had been prescribed under the Act. As to the sovereignty conferred under the Act, Black CJ and Hill J were of the view that the legislation intended ‘that the vesting of sovereignty was over the whole of the area of the continental shelf (whatever the boundaries might ultimately be) in respect of which international law has reflected Australia’s sovereignty’.
On the issue of Act of State, the various authorities on point were reviewed with reference made to the principle being based upon one of ‘judicial restraint’ or ‘abstention’ by the relevant municipal court. With respect to the particular matter before the Court, Black CJ and Hill J noted that:
Indeed, the facts of the present case and the exchange of diplomatic notes between Australia and Portugal illustrate just how considerable the embarrassment could be should an Australian court adjudicate on actions of the Portuguese government, let alone the possible embarrassment which might be caused to relations between Australia and East Timor on that country now becoming independent.
While it was accepted that this was such a case for judicial restraint, it was accepted that within Australia the doctrine was affected by constitutional restraints on the exercise of federal jurisdtiction, so that in this instance ‘the consequence is not judicial restraint, but lack of jurisdiction in the Court to adjudicate the applicant’s claims’.
Short consideration was also given to the weight to be accorded to an executive certificate from the Attorney-General. The Court reaffirmed, that in matters involving foreign relations the Court could rely upon such a certificate, but that ‘a certificate could have no effect on the question of construction of legislation of the Parliament where the issue arises as a matter of domestic law’.
As to the validity of the Timor Gap Treaty, the Court identified a clear parallel with the case of Horta, with Beaumont J noting that ‘there is no substance in the applicant’s contention that there is no power available under s 61 of the Constitution “to enter into treaties that are illegal or void under international law”’. The validity of the Treaty was therefore not addressed by the Court.
United States – Continued Dumping and Subsidy Offset Act of 2000
(the ‘Byrd Amendment’)
WT/DS217/AB/R and WT/DS234/AB/R
World Trade Organisation Appellate Body
In this case, in which Australia was a complainant, and which involved the largest number of World Trade Organisation (WTO) members to date, the WTO Appellate Body upheld a ruling of a WTO Panel that the United States Continued Dumping and Subsidy Offset Act of 2000 (the Byrd Amendment) is inconsistent with two WTO agreements: the Agreement on Implementation of Article VI of GATT 1994 (Anti-Dumping Agreement) and the Agreement on Subsidies and Countervailing Measures (SCM Agreement).
By operation of the Byrd Amendment, anti-dumping and countervailing duties collected by US Customs are distributed to competing US manufacturers of the same product who requested the imposition of anti-dumping or countervailing duties. The Australian Government, and other complainants, argued that the Byrd Amendment unfairly disadvantaged exports to the US which have not been found to be either dumped or subsidised in the US and third country markets. The Byrd Amendment amended the Tariff Act of 1930 by adding a new section 754 entitled ‘Continued Dumping and Subsidy Offset’. Section 754 provides that the US Commissioner of Customs shall distribute, on an annual basis, duties assessed pursuant to a countervailing duty order, an anti-dumping duty order, or a finding under the US Antidumping Act of 1921, to ‘affected domestic producers’ for ‘qualifying expenditures’. Under the Byrd Amendment an ‘affected domestic producer’ is a domestic producer that was a petitioner or interested party in support of the petition with respect to which an anti-dumping duty order, a finding under the US Antidumping Act of 1921, or a countervailing duty order has been entered. The term ‘qualifying expenditures’ is defined as various expenses incurred after the issuance of the anti-dumping duty finding, or order or countervailing duty order in relation to the production of the product that is subject to the anti-dumping or countervailing duty order.
In 2001, Australia, Brazil, Canada, Chile, the European Communities, India, Indonesia, Japan, Korea, Mexico and Thailand (the Complaining Parties) requested the establishment of a Panel to examine the WTO-consistency of the Byrd Amendment. In the Panel Report, circulated on 16 September 2002, the Panel found the Byrd Amendment to be inconsistent with articles 5.4, 18.1 and 18.4 of the Anti-Dumping Agreement; articles 11.4, 32.1 and 32.5 of the SCM Agreement; articles VI:2 and VI:3 of the General Agreement on Tariffs and Trade 1994 (GATT 1994), and article XVI:4 of the Marrakesh Agreement Establishing the World Trade Organisation (WTO Agreement).
The US filed an appeal with the Appellate Body in relation to certain issues of law covered in the Panel Report. In its report, released 16 January 2003, the Appellate Body concurred with the Panel that the Byrd Amendment was a ‘specific action’ against dumping or subsidisation within the meaning of article 18.1 of the Anti-Dumping Agreement and article 32.1 of the SCM Agreement. The Appellate Body noted that it was clear from the text of the Byrd Amendment that ‘offset payments are inextricably linked to, and strongly correlated with, a determination of dumping’. The Appellate Body reasoned that the Byrd Amendment was an action ‘against’ dumping or a subsidy because it ‘has an adverse bearing on, and, more specifically, is designed and structured so that it dissuades the practice of dumping or the practice of subsidization, and because it creates an incentive to terminate such practices’.
Having concluded that the Byrd Amendment is a specific action against dumping, the Appellate Body moved to consider whether the measure was in accordance with the provisions of the General Agreement on Tariffs and Trade (GATT) 1994 as interpreted by the Anti-Dumping Agreement or the SCM Agreement. It was held that because offset payments made under the Byrd Amendment are not definitive anti-dumping duties, provisional measures or price undertakings, then the measure was inconsistent with GATT 1994 as interpreted by the Anti-Dumping Agreement. Accordingly, the Byrd Amendment was found to be inconsistent with article 18.1 of the Anti-Dumping Agreement. For similar reasons the Appellate Body held that the Byrd Amendment did not correspond with any of the permitted responses to subsidisation under the GATT 1994, as interpreted by the SCM Agreement, and was therefore inconsistent with article 32.1 of the SCM Agreement. Therefore the Appellate Body has clearly concluded that anti-dumping or countervailing duties or price undertakings are the only permitted responses to dumping or subsidisation, unless formal proceedings are initiated under the WTO dispute settlement process.
However, the Appellate Body reversed the Panel’s finding that the Byrd Amendment is inconsistent with article 5.4 of the Anti-Dumping Agreement and article 11.4 of the SCM Agreement. The Panel had examined the apparent effect of the Byrd Amendment in providing a financial incentive for domestic producers to file or support applications for the initiation of anti-dumping or countervailing duty investigations. It concluded that although there was no requirement that the investigating authorities inquire into the motives or intent of a domestic producer in electing to support a petition, the Byrd Amendment ‘may be regarded as having undermined the value of [Anti-Dumping Agreement] Article 5.4/SCM Article 11.4 to the countries with whom the United States trades, and the United States may be regarded as not having acted in good faith in promoting this outcome’.
The Appellate Body rejected this interpretation, preferring a close textual reading of the two provisions and concluding that they ‘require no more than a formal examination of whether a sufficient number of domestic producers have expressed support for an application’. Similarly the Appellate Body also rejected the Panel’s conclusions that the Byrd Amendment defeated the ‘object and purpose’ of the two provisions. Finally, the Appellate Body reversed the Panel’s finding that the US had not acted in good faith, holding that nothing in the covered agreements supports the conclusion that simply because a WTO member is found to have violated a substantive treaty provision it has therefore not acted in good faith.
Accordingly, as a consequence of the finding that the US had acted inconsistently with article 18.1 of the Anti-Dumping Agreement and article 32.1 of the SCM Agreement, the Appellate Body upheld the Panel’s finding that the US has failed to comply with article 18.4 of the Anti-Dumping Agreement, article 32.5 of the SCM Agreement and article XVI-4 of the WTO Agreement. All three of these provisions similarly provide that each WTO Member shall ensure the conformity of its laws, regulations and administrative procedures with WTO rules. The WTO Dispute Settlement Body adopted both the Panel and Appellate Body Reports on 27 January 2003.
Canada: Measures Affecting the Importation of Milk and the Exportation of Dairy Products – Second Recourse to Article 21.5 of the DSU by
New Zealand and the United States
WT/DS103/AB/RW2 and WT/DS113/AB/RW2
World Trade Organisation Appellate Body
Australia was a third participant in this case, which arose out of a complaint by New Zealand and the United States in relation to measures taken by Canada in order to comply with recommendations and rulings of the WTO Dispute Settlement Body (DSB) arising from its adoption of an earlier report (Original Panel Report). The Appellate Body upheld the finding of a Panel that Canada’s implementation measures were not consistent with Canada’s obligations under the Agreement on Agriculture and the Agreement on Subsidies and Countervailing Measures (SCM Agreement). Australia participated at the oral hearing before the WTO Appellate Body, but did not file a written submission.
The Original Panel Report concluded, and the Appellate Body agreed, that Canada provided ‘export subsidies’ within the meaning of article 9.1(c) of the Agreement on Agriculture through certain classes of milk designated by Canada (Special Milk Classes 5(d) and 5(e)). It was also held that these subsidies were being provided for quantities of exports in excess of the quantity commitment level specified in Canada’s Schedule. Accordingly, the Original Panel and Appellate Body found that Canada had acted inconsistently with its obligations under articles 3.3 and 8 of the Agreement on Agriculture.
In implementing these rulings and recommendations Canada abolished Special Milk Class 5(e) and restricted export subsidies under Special Milk Class 5(d) to its commitment levels. Canada also established a new class of milk, Class 4(m), under which over-quota milk could be sold as domestic animal feed. Canada maintained its domestic milk supply management system, under which domestic milk supply is controlled through the allocation of quotas to individual milk producers by the Canadian government. The Canadian government also fixes the price of domestic milk, markets domestic milk products, collects the proceeds of sales and distributes these among producers. Milk producers are generally permitted to sell milk domestically within the limits of their allocated quotas. However, an exception was allowed for above quota milk in a new milk Class 4(m). Additionally, Canada introduced a new category of milk for export, known as ‘commercial export milk’ (CEM). CEM is sold by Canadian producers to Canadian processors for processing into dairy products for export. Sales are made by contracts concluded in advance of the milk production. Canadian producers may sell any quantity of CEM to processors on terms and conditions freely negotiated between the producer and the processor. Sales of CEM do not require a quota or any other form of permit from the Canadian government or its agencies, and revenues derived from sales of CEM are collected directly by producers, without government involvement. However, if a dairy product derived from CEM is sold on the domestic market, the processor is liable to financial penalties.
The Complaining Members were concerned that the CEM scheme provided subsidies to Canadian producers. This was because, as the domestic price of milk is fixed by the Canadian government at a rate designed to ensure a ‘fair return’ to producers, most domestic procedures can cover all of their costs of production, including fixed costs, through domestic sales of milk. Accordingly, domestic producers can finance the sale of CEM at a price that is below the industry-wide costs of production (COP).
In the Panel Report, circulated on 26 July 2002, the Panel concluded that Canada, through the CEM scheme and the continued operation of Special Milk Class 5(d), had acted inconsistently with its obligations under articles 3.3 and 8 of the Agreement on Agriculture, by providing export subsidies within the meaning of article 9.1(c) in excess of its quantity commitment levels. The Panel recommended that the DSB request Canada to bring its dairy products marketing regime into conformity with its obligations in respect of export subsidies under the Agreement on Agriculture.
In responding to Canada’s several grounds of appeal, the Appellate Body first considered whether the Panel erred in its interpretation of article 10.3 of the Agreement on Agriculture in requiring the complaining Members to make out a prima facie case of their claims. Referring to previous decisions, the WTO Appellate Body observed that it had held consistently that in general the burden of proof rests upon the complaining Member. That Member must make out a prima facie case by presenting sufficient evidence to raise a presumption in favour of its claim and, if this is successful, the responding Member may then seek to rebut the presumption.
However, as regards the burden of proof under article 10.3 of the Agreement on Agriculture, the Appellate Body held that the provision ‘cleaves the complaining Member’s claim in two, allocating to different parties the burden of proof with respect to the two parts of the claim’. It is for the complaining Member to prove the first part of the claim, namely that the responding Member has exported an agricultural product in quantities that exceed the responding Member’s quantity commitment level. If successful in doing so, then the responding Member ‘must establish that no export subsidy … has been granted’ in respect of the excess quantity exported.
Although concluding that the Panel’s interpretation was in error, the Appellate Body noted that this had not affected any of the Panel’s findings under articles 3.3, 8, 9.1(c), and 10.1 of the Agreement on Agriculture because the Panel had concluded that the complaining Members had made out a prima facie case and that Canada failed to discharge its obligation to establish that it had not granted export subsidies for the dairy products exported in excess of the quantity commitment level.
The second of Canada’s grounds of appeal was that the Panel erred in its interpretation and application of article 9.1(c) of the Agreement on Agriculture. This in turn raised two separate questions: (a) whether the Panel erred in finding that CEM involves ‘payments’ under article 9.1(c); and (b) whether the Panel erred in finding that these ‘payments’ were ‘financed by virtue of governmental action’. In relation to both questions the Appellate Body upheld the Panel’s rulings.
The Appellate Body noted that the word ‘payment’ in article 9(1)(c) of the Agreement on Agriculture denotes a transfer of economic resources, and therefore includes not only a monetary payment but also the transfer of goods or services at less than full value. In this case the issue was whether the CEM involves non-monetary ‘payments’, in the form of the transfer of economic resources from producers to processors. In order to determine whether payments had been made there must be a comparison between the price of CEM and an objective standard or benchmark reflective of the proper value of the milk to the producer. The standard for determining the proper value of CEM is the average total cost of production of the milk (the COP standard), as this standard represents the economic resources the producer invests in the milk.
Canada argued that the Panel erred in construing the COP standard as a single, industry-wide, average cost of production figure, rather than each individual producer’s costs of production. The Appellate Body rejected this argument stating that as the issue is ‘whether Canada, on a national basis, has respected its WTO obligations’ then ‘the benchmark should be a single, industry-wide cost of production figure, rather than an indefinite number of cost of production figures for each individual producer’.
Further, Canada objected to the inclusion, in the COP standard, of an imputed amount for the costs of the producer’s family labour and management, and for the costs of owner’s equity. Again the Appellate Body rejected the argument, expressing the view that labour and other services provided by a dairy farmer’s family are relevant economic resources invested in the production of milk and must therefore be included in the COP standard. The Appellate Body made additional observations regarding other costs in dispute in relation to inclusion in the COP standard.
The Appellate Body then turned to the second main element of Canada’s appeal of the Panel’s findings under article 9.1(c) of the Agreement on Agriculture, namely whether the Panel erred in finding that ‘payments’, made on the sale of CEM, are ‘financed by virtue of governmental action’.
Canada submitted that the Panel erred by finding that a ‘demonstrable link’ exists between Canadian governmental action and the financing of CEM payments. It was argued that the Canadian government was uninvolved in any stage of the export transaction, and that producers and processors freely entered into and established the terms of CEM contracts. The Appellate Body observed that the phrase ‘financed by virtue of governmental action’ as found in article 9.1(c) possessed three distinct elements: (1) ‘governmental action’, (2) ‘by virtue of’, and (3) ‘financed’.
As regards ‘governmental action’, the Appellate Body noted that the text of article 9.1(c) does not place any qualifications on the types of governmental action that may be relevant. Accordingly, governmental regulation of the supply and price of milk may be encompassed within the term. However, as indicated by the words ‘by virtue of’, and ‘financed’, there must also be a demonstrable link between the relevant governmental action and the financing of the payments. There must be a link between the ‘action’ and the ‘financing’; that is the process by which financial resources are provided so that payments can be made. Even if a government does not fund the payments itself, it must play a sufficiently important part in the process by which a private party funds payments, so that required nexus is established.
In relation to the case at hand, the Appellate Body observed that Canadian ‘governmental action’ controls virtually every aspect of domestic milk supply and management, including fixing the price of domestic milk at such a level that producers are provided with a return on their domestic sales that covers most of their fixed costs. This allows producers to sell export milk at prices below the costs of production. The Appellate Body therefore rejected Canada’s argument that it had merely created a regulatory framework. On this basis the Appellate Body agreed with the Panel that governmental action in the domestic market financed payments to processors, and that Canada had failed to establish the contrary, pursuant to article 10.3 of the Agreement on Agriculture.
As a consequence of upholding the Panel’s finding that there had been an export subsidy under article 9.1(c), the Appellate Body also upheld the Panel’s conclusion that through the combination of the supply of CEM, Canada had acted inconsistently with its obligations under articles 3.3 and 8 of the Agreement on Agriculture. Both reports were adopted by the DSB on 17 January 2003.
Japan – Measures Affecting the Importation of Apples
World Trade Organisation Appellate Body
On 26 November 2003, the Appellate Body issued its report in which it upheld Panel findings that Japan’s quarantine restrictions on apple imports from the United States were inconsistent with provisions of the Agreement on the Application of Sanitary and Phytosanitary Measures (the SPS agreement). Australia was a third participant in the proceedings.
Japan had imposed a series of requirements on the importation of apples from the United States in order to target ‘fire blight’, a bacterial disease that may infect various host plants, including apples. The Panel had found that these requirements (the phytosanitary measure): (1) were maintained ‘without sufficient scientific evidence’ and therefore were inconsistent with article 2.2 of the SPS Agreement, (2) did not qualify as a provisional measure under article 5.7 of the SPS Agreement, and (3) were not based on a ‘risk assessment’ within the meaning of article 5.1 of the SPS. Japan argued on appeal that the Panel had erred in respect of all three of these rulings.
In its Report the Appellate Body began by considering the argument of the United States that this trade dispute related only to ‘mature, symptomless’ apples, and therefore the Panel had no authority to consider Japan’s arguments regarding possible introduction of fire blight through accidental introduction of infected apples in a shipment of otherwise mature, symptomless apples. The Appellate Body rejected this argument, stating that ‘[a] respondent is entitled to answer the complainant’s case and is not confined to addressing the specific facts and arguments put forward by the complainant, provided that the response is relevant to the issues in dispute.’
As regards Japan’s claim concerning the Panel’s interpretation of article 2.2, the Appellate Body observed that the Panel made several findings of fact that supported its conclusion that there was negligible risk of transmission of fire blight through apple fruit, and that scientific evidence did not support the view that apples are likely to be the pathway for the entry of fire blight into Japan. Japan challenged the Panel’s findings in relation to this aspect of the case on two grounds. First, Japan argued that the United States had failed to make out a prima facie case that apples infected with fire blight would not act as a pathway for the transmission of the disease. The Appellate Body rejected this argument, observing that a distinction must be drawn between the principle that a complainant must establish a prima facie case of inconsistency with a covered agreement, and the principle that a party asserting a fact bears the onus of proving the fact. In this case Japan countered the United States claim that Japan’s measure was maintained without sufficient scientific evidence by making allegations in respect of infected apples being exported to Japan as a result of handling errors or illegal acts. It was for Japan to prove those allegations, not for the United States. Second, Japan submitted that the Panel erred in applying article 2.2 of the SPS Agreement by not assessing whether the United States had established a prima facie case regarding the sufficiency of the scientific evidence in the light of Japan’s approach to risk and scientific evidence. The Appellate Body upheld the Panel’s ruling, noting that its assessment of the scientific evidence followed the approach articulated by the Appellate Body in Japan – Measures Affecting Agricultural Products. The Appellate Body affirmed the Panel’s reasoning by which it contrasted the extent of the risk and the nature of the measure and concluded that it was clearly disproportionate to the risk identified on the basis of the available scientific evidence. This ‘clear disproportion’ implies that ‘a rational or objective relationship’ does not exist between the measure and the risk and therefore the measure is maintained ‘without sufficient scientific evidence’ as that term is used in article 2.2 of the SPS Agreement.
The Appellate Body turned to the alternative argument made by Japan before the Panel that its phytosanitary measure was adopted under article 5.7 of the SPS Agreement on a provisional basis because of the insufficiency of scientific evidence. In rejecting this argument, the Appellate Body noted that the findings of fact made by the Panel suggested that there was a body of scientific evidence that permitted a risk assessment in quantitative and qualitative terms. In light of the findings of the Panel the Appellate Body concluded that with respect to the transmission of fire blight through apple fruit, the ‘relevant scientific evidence’ was not ‘insufficient’ within the meaning of article 5.7. The Appellate Body also noted that article 5.7 was triggered by insufficiency of scientific evidence and not by the existence of scientific uncertainty.
Japan’s third main ground of appeal was that the Panel erred in finding that the measure was not based on a risk assessment as required by article 5.1 of the SPS Agreement. Before the Panel the United States conceded, and the Panel accepted, that Japan’s relevant 1999 risk assessment properly identified fire blight as a disease of concern. However, the Panel accepted the argument of the United States that the risk assessment did not (a) evaluate the likelihood of entry, establishment or spread of fire blight, and (b) this evaluation was not performed ‘according to the sanitary or phytosanitary measures which might be applied’ as stipulated in the definition of ‘risk assessment’ in Annex A to the SPS Agreement.
The Appellate Body confirmed the Panel’s conclusions in this regard, noting first that Japan’s assessment did not evaluate the entry, establishment or spread of fire blight through apple fruit as a separate and distinct vector. It observed that ‘[u]nder the SPS Agreement, the obligation to conduct an assessment of “risk” is not satisfied merely by a general discussion of the disease to be avoided by the imposition of the phytosanitary measure.’ The Appellate Body also upheld the Panel’s finding that the 1999 assessment did not address the likelihood of entry of the disease having regard ‘to the sanitary or phytosanitary measures which might be applied’. The 1999 assessment had only considered the regulatory scheme then in place, not the range of measures that might be applied and their relative effectiveness.
Ali Aqsar Bakhtiyari and Roqaiha Bakhtiyari v Australia
Communication No 1069/2002
UN Doc CCPR/C/79/D/1069/2002 (2003)
Human Rights Committee
Views adopted on 29 October 2003
The authors of the communication were Mr and Mrs Bakhtiyari and their five children, all alleged nationals of Afghanistan. The authors claimed to be victims of violations by Australia of a number of provisions under the International Covenant on Civil and Political Rights (the Covenant).
Mr Bakhtiyari arrived unlawfully in Australia in 1999 and was granted a protection visa on the basis of his asserted Afghan nationality and Hazara ethnicity. Mrs Bakhtiyari and her children also subsequently arrived unlawfully in Australia and were taken into immigration detention. Their application for a protection visa was refused by the Minister for Immigration and Multicultural and Indigenous Affairs (the Minister) in May 2001 on the grounds that Mrs Bakhtiyari was Pakistani rather than Afghan as claimed. On receipt of information suggesting that Mr Bakhtiyari was from Quetta, Pakistan, and was not an Afghan farmer, as he had claimed, the Department of Immigration and Multicultural and Indigenous Affairs (the Department) issued Mr Bakhtiyari a notice of intention to cancel his protection visa. Mr Bakhtiyari’s protection visa was subsequently cancelled and he was taken into custody in immigration detention.
Mr Bakhtiyari and Mrs Bakhtiyari and her children commenced several proceedings in various courts in relation to these and other decisions by the Minister and the Department, including the Family Court of Australia, which held on 19 June 2003, that it had jurisdiction to make orders against the Minister including release from detention, if that was in the bests interests of the child. On the basis of an order of the Family Court the Bakhtiyari children were released from detention into the care of members of the community in Adelaide.
In relation to article 7 of the Covenant, the authors argued that as the Australian authorities had erred in finding that Mrs Bakhtiyari and her children were not Afghan nationals, they would be sent to Afghanistan on return to Pakistan where they would be exposed to torture or cruel, inhuman or degrading treatment or punishment. The authors also submitted that the prolonged detention of Mrs Bakhtiyari and her children was in breach of article 9(1) and (4) of the Covenant. The authors also claimed that the deportation of Mrs Bakhtiyari and her children would violate articles 17 and 23(1), on the grounds that this would be an ‘interference’ with the family. Finally the authors contended that the prolonged detention of the children amounted to a violation of article 24.
The Committee rejected all but one of the arguments by Australia that the communication was inadmissible. In relation to the complaint under article 7, the Committee noted that Australian authorities had determined that the authors were not from Afghanistan, that the authors had failed to demonstrate that if returned to Pakistan that they would be liable to be sent to Afghanistan, and that the authors had not substantiated that even if returned to Afghanistan that they would face, as a necessary and foreseeable consequent, treatment contrary to article 7. Accordingly the Committee concluded that the claim by the authors that they would face treatment contrary to article 7 had not been substantiated before the Committee and was therefore inadmissible.
In relation to the merits of the authors’ claim, the Committee observed that it was unable to conclude that the detention of Mr Bakhtiyari on his arrival was arbitrary and in breach of article 9(1) of the Covenant having regard, among other things, to the fact that he had been granted a protection visa some seven months after his arrival. As regards Mrs Bakhtiyari and her children, however, the Committee found that whatever justification there may have been for an initial period of detention, Australia had not demonstrated that detention for an extended period was justified. Australia had not established that other, less intrusive, measures could not have achieved the same objectives in terms of compliance with Australian immigration policies. Hence the Committee concluded that the detention was arbitrary and contrary to article 9(1).
The Committee also considered that Australia had violated article 9(4) in relation to Mrs Bakhtiyari and her children as any court review of their detention was limited to a formal assessment as to whether they were non-citizens without an entry permit. They were therefore unable to challenge judicially their detention as required by article 9(4). The Committee noted, however, that in relation to the children the violation of article 9(4) came to an end with the finding by the Family Court that it had jurisdiction to make orders that children be released from immigration detention.
As to the claims under articles 17 and 23, the Committee observed that:
[t]aking into account the specific circumstances of the case, namely the number and age of the children, including a newborn, the traumatic experiences of Mrs Bakhtiyari and the children in long-term immigration detention in breach of article 9 of the Covenant, the difficulties that Mrs Bakhtiyari and her children would face if returned to Pakistan without Mr Bakhktiyari … the Committee takes the view that removing Mrs Bakhtiyari and her children without awaiting the final determination of Mr Bakhtiyari’s proceedings would constitute arbitrary interference in the family of the authors …
As regards article 24, the Committee stated that the ‘the principle that in all decisions affecting a child, its best interests shall be a primary consideration, forms an integral part of every child’s right to such measures of protection as required by his or her status as a minor, on the part of his or her family, society and the States, as required by’. In this case the ‘children have suffered demonstrable, documented and on-going adverse effects of detention…in circumstances where that detention was arbitrary and in violation of article 9(1)’. Accordingly, the Committee considered that up until the Family Court determined that it had welfare jurisdiction with respect to the children, there had been a violation of article 24(1).
The Committee concluded by observing that under article 3(2)(a) of the Covenant, Australia was under an obligation to provide the authors with an effective remedy. As regards the violations of article 9(1) and (4) in relation to Mrs Bakhtiyari, Australia must release her from detention and pay appropriate compensation. Appropriate compensation must also be paid to the children for violations of articles 9 and 24 already suffered. The Committee also considered that in order to refrain from violating articles 17(1) and 23(1) of the Covenant, Australia should refrain from deporting Mrs Bakhtiyari and her children while Mr Bakhtiyari continues to pursue domestic proceedings.
Shukuru Juma v Australia
Communication No 984/2001
UN Doc CCPR/C/78/D/984/2001 (2003)
Human Rights Committee
Decision on admissibility of 28 July 2003
In this case the author of the communication was an Australian citizen born in Tanzania serving a sentence of life imprisonment for murder in a Queensland correctional centre. The author claimed to be the victim of violations by Australia of article 14(3)(f) and (5) of the Covenant.
As regards the alleged violation of article 14(3)(f), the author claimed that English was his fourth language and that he was unable to understand the legal process that led to his conviction because he did not have the assistance of an interpreter. The Committee found that this complaint was inadmissible, as the author had failed to substantiate his claim sufficiently. It was apparent that the author could express himself adequately in English, had not requested an interpreter during his trial, and refused the assistance of an interpreter during the hearing of an appeal against his conviction in the Queensland Court of Appeal at which he represented himself. The Committee noted that ‘the requirement of a fair hearing does not obligate States parties to make the services of an interpreter available ex officio or upon application to a person whose mother tongue differs from the official court language, if such person is otherwise capable of expressing himself adequately in the official language of the court’.
The Committee also found that the author’s claim regarding article 14(5) was inadmissible. It appeared that this claim related to the dismissal by the High Court of the author’s application for special leave to appeal from the judgment of the Queensland Court of Appeal. The Committee noted that mere dismissal of a request for special leave to appeal is not sufficient to demonstrate that there has been a violation of article 14(5). This article does not require an appellate court to proceed to a factual retrial, but rather requires that there be an evaluation of the evidence presented at the trial and of the conduct of the trial. Both the Queensland Court of Appeal and the High Court examined the author’s main claim that he should have been provided with an interpreter and both tribunals rejected it.
Edward Young v Australia
Communication No 941/2000
UN Doc CCPR/C/78/D/941/2000 (2003)
Human Rights Committee
Views adopted on 6 August 2003
The author of the communication, an Australian citizen, claimed to be the victim of a violation of article 26 of the Covenant. The author had been in a same-sex relationship with Mr C, a war veteran, for whom the author cared in the last years of his life. Following the death of Mr C in 1998, the author applied for a pension under section 13 of the Veterans’ Entitlement Act 1986 (Cth) (VEA) as a veteran’s dependant. The application was rejected by the Repatriation Commission on the basis that the author was not a ‘dependant’ within the meaning of the VEA. On an application by the author to the Veterans’ Review Board for a review of the Commission’s decision, the Board held that having regard to the terms of VEA it was required to affirm the original decision.
Under section 11 of the VEA, ‘dependant, in relation to a veteran’ is relevantly defined as ‘the partner’ of the veteran. Section 5E of the VEA defines a ‘partner’ as the other ‘member of a couple’. The term ‘couple’ is defined in section 5E(2) of the VEA as follows:
a person is a “member of a couple” for the purposes of this Act if:
(a) the person is legally married to another person and is not living separately and apart from the other person on a permanent basis; or
(b) all of the following conditions are met:
i. the person is living with a person of the opposite sex (in this paragraph called the “partner”);
ii. the person is not legally married to the partner;
iii. the person and the partner are, in the Commission’s opinion …, in a marriage-like relationship;
iv. the person and the partner are not within a prohibited relationship for the purposes of Section 23B of the Marriage Act 1961.
In relation to admissibility, the Committee noted the argument by Australia that the author was not a victim because, regardless of the relationship, the author would not be eligible for a pension. Australia contended that no heterosexual or homosexual partner of Mr C could have been entitled to the pension as, inter alia, the death of Mr C was not ‘war caused’ as required by section 13 of the VEA.
In response the Committee noted that the domestic bodies seised of the case had found the author’s sexual orientation to be determinative of the author’s ineligibility, and accordingly the author had established that he was a victim of an alleged violation. The Committee also concluded that the claim was not inadmissible on the grounds that domestic remedies had not been exhausted, as any resort to such remedies would objectively have had no prospect of success.
The Committee turned to the merits of the author’s claim, namely that his rights under article 26 of the Covenant had been violated by virtue of discrimination on the basis of sexual orientation. The Committee acknowledged the Australian government’s submission that the author’s claim would inevitably have failed even if he had been recognised as Mr C’s partner under the VEA. However, the Committee declined to enter into a consideration of the facts and evidence in this regard, noting that the only reason provided for disposing of the author’s case was on the basis that he was not a person of the opposite sex.
The Committee considered that a plain reading of the term ‘member of a couple’ under the VEA entailed that the author would never be entitled to a pension. The Committee recalled that it had decided in Toonen v Australia that the prohibition against discrimination under article 26 comprises also discrimination based on sexual orientation. The Committee stated:
In the instant case, it is clear that the author, as a same sex partner, did not have the possibility of entering into marriage. Neither was he recognized as a cohabiting partner of Mr C, for the purpose of receiving pension benefits, because of his sex or sexual orientation. The Committee recalls its constant jurisprudence that not every distinction amounts to prohibited discrimination under the Covenant, as long as it is based on reasonable and objective criteria. The State party provides no arguments on how this distinction between same-sex partners, who are excluded from pension benefits under the law, and unmarried heterosexual partners, who are granted such benefits, is reasonable and objective, and no evidence which point to the existence of factors justifying such a distinction has been advanced.
Accordingly, the Committee found that Australia had violated article 26 of the Covenant by denying the author a pension on the basis of his sex or sexual orientation, and concluded that he was entitled to an effective remedy, including the reconsideration of his pension application without discrimination based on his sex or sexual orientation, if necessary through an amendment of the law.
Professor Ruth Wedgwood and Mr Franco DePasquale appended a jointly authored individual opinion in which they concurred in the Committee’s conclusions.
Carlos Cabal and Marco Pasini Bertran v Australia
Communication No 1020/2001
UN Doc CCPR/C/78/D/1020/2001 (2003)
Human Rights Committee
Views adopted on 7 August 2003
In this case the authors, both nationals of Mexico, claimed to be victims of violations of articles 7, 10(1) and 2(a), and 14(2) of the Covenant. At the time of the communication Mr Cabal was residing in Mexico and Mr Bertran was in detention in Port Philip maximum security prison awaiting extradition to Mexico.
The authors had been arrested in 1998 in Australia pursuant to provisional arrest warrants issued under the Extradition Act 1988 (Cth), and were kept in custody in several prisons in Victoria pending extradition to Mexico to face charges for offences against Mexico’s Law of Credit Institutions in connection with the affairs of a Mexican bank. For most of the period spent in detention, the two authors were not segregated from convicted prisoners serving terms of imprisonment.
The authors claimed that Australia violated article 10(2)(a) of the Covenant by failing to segregate them from convicted persons and failing to treat them separately in a manner appropriate to their status as unconvicted persons. Both authors claimed further that the conditions under which Mr Cabal had been detained and Mr Bertran continued to be detained violated their right to be treated with humanity, contrary to articles 7 and 10(1). Finally it was argued by the authors that as they had been treated in all respects as persons found guilty and serving a sentence and therefore had not been afforded the right to be presumed innocent until proved guilty according to law as required by article 14(2) of the Covenant.
For the purposes of admissibility, and although not contested by Australia, the Committee first considered whether the obligations assumed by states under the Covenant apply to privately-run detention facilities, such as the Port Phillip maximum security prison. The Committee stated that the contracting-out to the private commercial sector of core state activities involving the use of force and the detention of persons ‘does not absolve a State party of its obligations under the Covenant’. However, for other reasons the Committee found that only the authors’ complaints regarding articles 7 and 10(1) were admissible.
In relation to the claim concerning article 10(2)(a) the Committee noted Australia’s invocation of its reservation, entered on becoming a party to the Covenant, that ‘in relation to [article 10(2)(a)] the principle of segregation is accepted as an objective to be achieved progressively’. The Committee acknowledged the efforts by Australia to achieve this objective, including through the planned construction of a remand prison by 2004. Further the Committee stated that ‘although it may be considered unfortunate’ that Australia had not achieved its objective to segregate convicted and unconvicted persons ‘the Committee cannot find that the reservation is incompatible with the object and purpose of the Covenant’. Accordingly this part of the author’s claim was found inadmissible.
In addition, the Committee noted that the authors were provided with separate treatment in many respects in being accorded privileges such as the right to wear their own clothes, and to make telephone calls. The Committee therefore took the view that the authors’ claim in relation to this second aspect of article 10(2)(a) was inadmissible for want of substantiation.
As regards the authors’ claim under article 14(2) concerning violation of the right to be presumed innocent, the Committee recalled that this provision relates only to individuals charged with a criminal offence. Given that the authors had not been charged by Australia with a criminal offence, the claim was therefore inadmissible.
The Committee turned to address the merits of the authors’ claims concerning articles 7 and 10(1). In general terms the Committee found that the prison conditions to which the authors were subjected, including the use of shackling during transport to and from prison, and being subject to regular strip and cavity searches, did not give rise to a violation of articles 7 and 10(1) having regard, inter alia, to the justification offered by Australia that the authors posed a flight risk.
However, the Committee did find that there had been a violation of article 10(1) of the Covenant in relation to one incident in which the authors were detained for one hour in what was described as a ‘triangular cage’. Consequently, in relation to this single violation, the Committee concluded that the authors were entitled to an effective remedy of compensation and that Australia was under an obligation to ensure that similar violations of the Covenant do not occur in the future.
Mr Hipólito Solari-Yrigoyen appended a dissenting individual opinion, finding that a violation of articles 7 and 10(1) was disclosed in Australia’s treatment of the authors in having required their shackling when leaving the prison, and in conducting strip and cavity searches.
Omar Sharif Baban v Australia
Communication No 1014/2001
UN Doc CCPR/C/78/D/1014/2001 (2003)
Human Rights Committee
Views adopted on 6 August 2003
This communication was brought by Mr Baban on his own behalf and that of his son, both Iraqi nationals of Kurdish ethnicity. The author claimed that he and his son were victims of violations by Australia of articles 7, 9(1), 10(1), 19 and 24(1) of the Covenant. The author and his son arrived in Australia unlawfully in 1999 and were detained in immigration detention. Mr Baban’s application for a protection visa was refused. The Refugee Review Tribunal (RRT) dismissed the author’s appeal against the decision refusing the visa, and a subsequent application to the Federal Court of Australia for judicial review of the RRT’s decision was dismissed by Whitlam J.
On 24 July 2000, and while in detention at the Villawood Detention Centre, Mr Baban participated in a hunger strike with other detainees. On 27 July 2000, the hunger strikers and the author’s son were forcibly removed and transferred to the Port Headland Detention Centre. The author and his son were later returned to Villawood Detention Centre in order to attend the hearing of an appeal to the Full Federal Court against the decision of Whitlam J. That appeal was dismissed. The author lodged an application for special leave to appeal in the High Court of Australia; however, after the author and his son escaped from Villawood Detention Centre, the High Court adjourned the hearing of the special leave application. At the time of the communication the whereabouts of Mr Baban and his son were unknown.
Australia challenged the admissibility of the communication on several bases. The Committee considered that counsel representing Mr Baban had sufficient authority to proceed with the communication, observing that Mr Baban duly provided authorisation provided in advance.
The Committee considered that the author’s claim under article 7 concerning both possible deportation to Iraq to face alleged persecution and alleged mistreatment suffered while in detention in Australia was inadmissible. Mr Baban had not exhausted all domestic remedies available, the High Court having adjourned the hearing of his application for special leave until Mr Baban could be located, and accordingly the first aspect of his article 7 claim was inadmissible. In relation to mistreatment in Australia, the Committee was of the view that the author had failed to substantiate his claim with respect to this issue.
The author’s claim that his right of freedom of expression under article 19 had been infringed by actions taken by Australia to bring the hunger strike to an end was found inadmissible by the Committee. The Committee held that even assuming that a hunger strike was a type of expression protected by article 19, steps lawfully taken to address concerns regarding the health and safety of detainees may properly be understood to fall within the legitimate restrictions provided in article 19(3).
The Committee also rejected as inadmissible the author’s claim that Australia had infringed article 24 by not having regard to the best interests of his infant son. The Committee noted in this regard the submissions by Australia that efforts had been taken to provide children in detention with appropriate educational, recreational and other programs, including outside the detention facilities.
The only admissible claim was therefore that under article 9(1) and (4) of the Covenant. The Committee observed that in order to avoid a characterisation of arbitrariness, detention should not continue beyond the period for which the state party can provide appropriate justification. Although noting that Australia had advanced reasons for the detention, the Committee stated that Australia had failed to demonstrate that those reasons justified lengthy detention involving the hardship of prolonged detention for his son. It was noted in particular that ‘the State party has not demonstrated that, in the light of the author’s particular circumstances, there were not less invasive means of achieving … compliance with the State party’s immigration policies, by, for example, the imposition of reporting obligations, sureties or other conditions’.
In relation to the article 9(4) claim, the Committee observed that ‘[j]udicial review of the lawfulness of detention under article 9, paragraph 4, is not limited to mere compliance of the detention with domestic law but must include the possibility to order release if the detention is incompatible with the requirements of the Covenant, in particular those of article 9, paragraph 1.’
Accordingly the Committee reached the view that the facts disclosed violations of article 9(1) and (4), and therefore Australia was under an obligation to provide the author with an effective remedy, including compensation.
Sir Nigel Rodley appended an individual opinion dissenting from the Committee’s finding of a violation of article 9(4). Professor Ruth Wedgwood dissented from the Committee’s views regarding both article 9(1) and (4), stating that:
while article 9, paragraphs 1 and 4, of the Covenant may well require reference to substantive standards beyond domestic law … nonetheless there is no grounding in the Covenant to dictate that courts must be the repository of all policy judgments and standard-setting in difficult areas such as unlawful immigration.
John K Love et al v Australia
Communication No 983/2001
UN Doc CCPR/C/77/D/983/2001 (2003)
Human Rights Committee
Views adopted on 25 March 2003
The four authors of the communication claimed to be victims of violation by Australia of articles 2(2) and (3), and 26 of the Covenant. The authors, who were all Australian citizens, were experienced airline pilots who commenced employment with Australian Airlines, then an airline owned and operated by the Australian government, in 1989 or 1990. The employment of all four authors was terminated upon their reaching 60 years of age pursuant to a compulsory age-based retirement policy. Three of the authors were dismissed in 1990 and 1991, and the employment of the fourth, Mr Love, was terminated in 1992. At their time of compulsory retirement, all four authors possessed valid pilot licences together with medical certificates.
The Industrial Relations Act 1988 (Cth) was subsequently amended in 1994 to make it unlawful to terminate a person’s employment on the grounds of his or her age, and from 1995 the new owner of Australian Airlines, Qantas Airlines Limited, ceased to impose a fixed retirement age in relation to its domestic pilots. From 1991 onwards, Australian Airlines and subsequently Qantas, which was privatised in July 1995, refused to enter into re-employment negotiations with the authors.
The Committee found that the claims of three of the four authors were inadmissible ratione temporis because, at the time that their employment was terminated allegedly in violation of article 26, Australia was not a party to the Covenant. The Committee noted:
the acts of alleged discrimination, properly understood, occurred and were complete at the time of the dismissals. The Committee does not consider that the continuing effects in this case of these acts could themselves amount to violations of the Covenant, nor that subsequent refusals to take up re-employment negotiations could appropriately be understood as fresh acts of discrimination …
As regards the merits of the remaining admissible claim, that of Mr Love, the Committee began by observing that not every distinction constitutes discrimination in violation of article 26 and that a distinction may be justified on reasonable and objective grounds in relation to the pursuit of an aim that is compatible with the Covenant. Discrimination related to age that is not based on such reasonable and objective criteria could constitute discrimination on the grounds of ‘other status’ under article 26. However, the Committee observed that it was not clear that mandatory retirement on the grounds of age would generally constitute age discrimination:
The Committee took note of the fact that systems of mandatory retirement age may include a dimension of workers’ protection by limiting the life-long working time, in particular when there are comprehensive social security schemes that secure the subsistence of persons who have reached such an age. Furthermore, reasons related to employment policy may be behind legislation or policy on mandatory retirement age.
In relation to the instant case, the Committee stated that the objective of maximising the safety of passengers, crew and other persons was a legitimate aim under the Covenant and that, as to the reasonableness and objective character of the age-based distinction, the Committee noted that at the time of the author’s dismissals the widespread national and international practice involved a mandatory retirement age of 60.
Given that the Committee found no discrimination that was violative of article 26, the Committee stated that it was unnecessary to consider the argument made by Australia that the claim was in any event inadmissible as the impugned acts could not be attributed to the Australian government.
Mr Nisuke Ando and Mr Prafullachandra Natwarlal Bhagwati each appended individual opinions in which they expressed concurrence with the result, but for reasons which differed from the majority of the Committee.
Stephen Hagan v Australia
Communication No 26/2002
UN Doc CERD/C/62/D/26/2002 (2003)
Committee on the Elimination of Racial Discrimination
Views adopted on 20 March 2003
The petitioner, an Australian national with origins in the Kooma and Kullilli Tribes of South Western Queensland, alleged that he was a victim of a violation of several articles of the International Convention on the Elimination of All Forms of Racial Discrimination (the Convention) in relation to the naming of a grandstand at a sporting ground in Toowoomba. Mr Hagan’s complaint related to the use of the term ‘nigger’ in naming the grandstand the ‘E S “Nigger” Brown Stand’. Mr Brown was a well-known sporting and civic personality and the offending term was used as his nickname either because of his fair skin and blond hair, or because of his penchant for using ‘Nigger Brown’ shoe polish. The petitioner argued that he and his family were offended by the use of the term ‘nigger’, which he described as one of the most racially offensive terms in the English language.
In 1999 the petitioner requested the trustees of the sportsground to remove the offending term. Following public consultation the trustees decided to take no action. This decision was supported by members of the local Aboriginal community. The petitioner subsequently commenced proceedings in the Federal Court of Australia alleging violations of sections 9(1) and 18C(1) of the Racial Discrimination Act 1975 (Cth). In 2000 the Federal Court dismissed the application on several grounds. The Full Federal Court dismissed the petitioner’s appeal against the decision of Drummond J at first instance, and the High Court of Australia subsequently refused special leave to appeal.
The Committee took account of the context in which the term was used, namely that it was first placed on the grandstand in 1960 and that the offending term was used as a nickname and was not designed to demean or diminish its bearer, Mr Brown, who was neither black nor of Aboriginal descent. However, the Committee opined that ‘use and maintenance of the offending term can at the present time be considered offensive and insulting, even if for an extended period it may not necessarily have been so regarded’. The Committee went on to observe that:
[∗] Barrister, London.
[∗∗] Sydney Centre for International and Global Law, Faculty of Law, University of Sydney.
[∗∗∗] Sydney Centre for International and Global Law, Faculty of Law, University of Sydney.
  HCA 3; (2003) 215 CLR 185, .
 999 UNTS 171.
  HCA 3; (2003) 215 CLR 185, .
 Ibid .
 Marquet v Attorney-General of Western Australia  WASCA 277.
 (2003) 202 ALR 333, .
 Ibid .
[9 ] Ibid .
  HCA 20; (1995) 183 CLR 273.
 Ibid 291.
 (2003) 214 CLR 1, .
 Ibid .
 Ibid .
 Ibid .
 Ibid .
 Ibid .
 660 UNTS 171.
  FCAFC 137; 199 ALR 1, 10 
 Ibid 10 .
 Ibid 34-35 [140-42].
 Ibid 34-35 [143-44].
 Ibid 35-36 .
  WASCA 47 .
 Ibid .
 Ibid , making reference to the decisions in Chung Chi Cheung v The King  AC 160, Chow Hung Ching v The King  HCA 37; (1948) 77 CLR 449.
 Ibid .
  ATS 4.
 (1997) 21 Fam LR 676.
  FamCA 451; (2003) 199 ALR 604, 649 .
 Ibid 651 [287-88].
 Ibid 672 [423-24]. This case was subsequently appealed to the High Court, see Minister for Immigration and Multicultural and Indigenous Affairs v B  HCA 20.
 1951 Convention Relation to the Status of Refugees (1954) 189 UNTS 150;  ATS No 5.
  HCA 1; (2003) 211 CLR 441, -. The legislation is s 36(2) of the Migration Act 1958 (Cth).
 Ibid -.
 Ibid .
 Ibid .
 Ibid .
 (2003) 197 ALR 389, .
 Ibid .
  HCA 71; (2003) 203 ALR 112, .
 Ibid . See also Gummow and Hayne JJ at .
 Ibid .
 Ibid .
 Ibid .
 Ibid -.
 Ibid .
 Ibid .
 Ibid .
  FCAFC 70; (2000) 198 ALR 241, .
 Ibid  quoting from the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24,  per Gleeson CJ.
  FCAFC 70; (2000) 198 ALR 241, .
 Ibid .
 Ibid .
 Ibid .
 213 UNTS 221.
 Ibid -.
 Ibid .
  FCAFC 120; (2003) 199 ALR 265, .
 Ibid .
 Ibid .
 Ibid , .
  FCAFC 152; (2003) 200 ALR 252; , , and  per Gyles J.
 Ibid .
 See the discussion of the decision of the Full Court of the Federal Court in this case at  AUYrBkIntLaw 10; (2004) 23 Aust YBIL 233, 252-53.
  ATS 10.
  HCA 21; (2003) 214 CLR 496, .
 Ibid .
 Ibid .
 (2003) 203 ALR 189, .
 Ibid .
 Ibid - (internal quotations omitted).
 Ibid .
 Treaty between Australia and the Republic of Indonesia on the Zone of Co-operation in an Area between the Indonesian Province of East Timor and Northern Australia, done over the Timor Sea, 11 December 1989, in force 9 February 1991  ATS 9.
 See the detailed set of ‘Agreed Facts’ concerning this matter as outlined by Beaumont J FCAFC 3; , 197 ALR 461, 488-98 .
 Convention on the Continental Shelf, 499 UNTS 311.
  FCAFC 3; 197 ALR 461, 468-469  per Black CJ and Hill J. See also Beaumont J at 511 .
 Ibid 469 .
 Ibid 473 .
 Ibid 476 .
 Ibid 469-70  per Black CJ and Hill J; see also Beaumont J at 514 .
 Horta v Commonwealth  HCA 32; (1994) 181 CLR 183.
  FCAFC 3; 197 ALR 461, 515 .
  ATS 8, annex 1A.
 The Australian government’s submissions are summarised in the Appellate Body Report at -. The complete submissions can be found at <http://www.dfat.gov.au/trade/negotiations/disputes/wto_disputes-US_AD.html> .
  ATS 8, annex 1A.
  ATS 8.
 Art 18.1 of the Anti-Dumping Agreement provides that ‘[n]o specific action against dumping of exports from another Member can be taken except in accordance with the provisions of GATT 1994, as interpreted by this Agreement.’ Art 32.1 of the SCM Agreement mirrors this provision, and provides that ‘[n]o specific action against a subsidy of another Member can be taken except in accordance with the provisions of GATT 1994, as interpreted by this Agreement.’
 WT/DS217/AB/R .
 Ibid .
 Those two provisions are identical and provide that ‘[a]n investigation shall not be initiated … unless the authorities have determined … that the application has been made by or on behalf of the domestic industry. The application shall be considered to have been made “by or on behalf of the domestic industry” if it is supported by those domestic producers whose collective output constitutes more than 50 per cent of the total production of the like product produced by that portion of the domestic industry expressing either support for or opposition to the application. However, no investigation shall be initiated when domestic producers expressly supporting the application account for less than 25 per cent of total production of the like product produced by the domestic industry.’
 Panel Report [7.62].
 WT/DS217/AB/R .
 The recommendations and rulings of the DSB resulted from the adoption by the DSB of the Panel Report, Canada – Measures Affecting the Importation of Milk and the Exportation of Dairy Products, WT/DS103/R, WT/DS113/R, as modified by the Appellate Body Report, WT/DS103/AB/R, WT/DS113/AB/R. This Panel Report was described by the Appellate Body as the ‘Original Report’ in this case.
  ATS 9, annex 1A.
 Art 3.3 provides that ‘a Member shall not provide export subsidies listed in paragraph 1 of Article 9 in respect of the agricultural products or groups of products specified in Section II of Part IV of its Schedule in excess of the budgetary outlay and quantity commitment levels specified therein and shall not provide such subsidies in respect of any agricultural product not specified in that Section of its Schedule’ and art 8 provides that ‘[e]ach Member undertakes not to provide export subsidies otherwise than in conformity with this Agreement and with the commitments as specified in that Member’s Schedule.’
 Canada – Measures Affecting the Importation of Milk and the Exportation of Dairy Products – Second Recourse to Article 21.5 of the DSU by New Zealand and the United State, WT/DS103/RW2, WT/DS113/RW2.
 Art 10.3 provides that ‘[a]ny Member which claims that any quantity exported in excess of a reduction commitment level is not subsidized must establish that no export subsidy, whether listed in Article 9 or not, has been granted in respect of the quantity of exports in question.’
 WT/DS103/AB/RW2, WT/DS113/AB/RW2, .
 Art 9.1(c) provides that ‘[t]he following export subsidies are subject to reduction commitments under this Agreement: … (c) payments on the export of an agricultural product that are financed by virtue of governmental action, whether or not a charge on the public account is involved, including payments that are financed from the proceeds of a levy imposed on the agricultural product concerned or on an agricultural product from which the exported product is derived.’
 WT/DS103/AB/RW2, WT/DS113/AB/RW2, .
 However, the Appellate Body emphasised that it had not found that Canada‘s domestic supply management system was, in general terms, inconsistent with Canada’s obligations under the covered agreements and, specifically, the Agreement on Agriculture.
  ATS 8, annex 1A.
 Australia‘s submissions are summarised in the Appellate Body Report at -. An executive summary of Australia’s submissions can be found at <http://www.dfat.gov.au/trade/negotiations/disputes/wto_disputes_japan_importation_apples.html> .
 WT/DS245/AB/R,  (emphasis in original).
 Art 2.2 provides that ‘[m]embers shall ensure that any sanitary or phytosanitary measure is applied only to the extent necessary to protect human, animal or plant life or health, is based on scientific principles and is not maintained without sufficient scientific evidence, except as provided for in paragraph 7 of Article 5’.
 Art 5.7 relevantly provides that ‘In cases where relevant scientific evidence is insufficient, a Member may provisionally adopt sanitary or phytosanitary measures on the basis of available pertinent information …’
 Art 5.1 relevantly provides that ‘Members shall ensure that their sanitary or phytosanitary measures are based on an assessment, as appropriate to the circumstances, of the risks to human health, animal or plant life or health, taking into account the risk assessment techniques developed by the relevant international organizations.’ The term ‘risk assessment’ is defined in para 4 of annex A to the SPS Agreement as ‘[t]he evaluation of the likelihood of entry, establishment or spread of a pest or disease within the territory of an importing Member according to the sanitary or phytosanitary measures which might be applied, and of the associated potential biological and economic consequences …’
 WT/DS245/AB/R, .
 16 December 1966, 999 UNTS 171.
 B and B v Minister for Immigration and Multicultural Affairs  FamCA 451; (2003) 199 ALR 604. See discussion in this section, above n 29.
 Art 7 provides that ‘[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment …’
 Art 9(1) provides that ‘[e]veryone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.’ Art 9(4) provides that ‘[a]nyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.
 Art 17 provides that ‘1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence … 2. Everyone has the right to the protection of the law against such interference or attacks.’ Art 23(1) provides that ‘[t]he family is the natural and fundamental group unit of society and is entitled to protection by society and the State.’
 Art 24(1) provides that ‘[e]very child shall have … the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.’
 UN Doc CCPR/C/79/D/1069/2002 (2003), [9.6].
 Ibid [9.7].
 Art 14(3) provides that ‘[i]n the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: … (f) To have the free assistance of an interpreter of he cannot understand or speak the language used in court;’ art 14(5) provides that ‘[e]veryone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.’
 UN Doc CCPR/C/78/D/984/2001 (2003), [7.3].
 Art 26 provides that ‘[a]ll persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.’
 Case No 488/1992, Views adopted 31 March 1994. For the response of the Australian government see (1995) 15 Aust YBIL 471-77.
 UN Doc CCPR/C/78/D/941/2000 (2003), [10.4].
 Art 10(2)(a) provides that ‘[a]ccused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons.’
 See above n 123.
 Art 10(1) provides that ‘[a]ll persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.’
 UN Doc CCPR/C/78/D/1020/2001 (2003), [7.2].
 Ibid [7.4].
 Baban v Minister for Immigration & Multicultural Affairs  FCA 471.
 See above n 123.
 Art 19(1) provides that ‘[e]veryone shall have the right to hold opinion without interference.’
 See above n 126.
 See above n 124.
 UN Doc CCPR/C/78/D/1014/2001 (2003) [7.2].
 Ibid, ‘Individual’ Opinion of Professor Ruth Wedgwood.
 UN Doc CCPR/C/77/D/983/2001 (2003), [7.3].
 Ibid [8.2].
 660 UNTS 195.
 Hagan v Trustees of the Toowoomba Sports Ground Trust  FCA 1615.
 Hagan v Trustees of the Toowoomba Sports Ground Trust  FCA 123.
 UN Doc CERD C/62/D/26/2002 (2003), .