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McAdam, Jane; Roach, Deborah; Rothwell, Donald R --- "Australian Cases before Australian Courts and Tribunals Involving Questions of Public International Law 2004" [2006] AUYrBkIntLaw 12; (2006) 25 Australian Year Book of International Law 377

Australian Cases before Australian Courts and Tribunals Involving Questions of
Public International Law 2004

Jane McAdam,*Deborah Roach* and Donald R Rothwell[∗]

International Law in General

Treaties – Interpretation – Vienna Convention on the Law of Treaties – Maritime Law – Hague-Visby Rules

El Greco (Australia) Pty Ltd v Mediterranean Shipping Co SA

[2004] FCAFC 202; (2004) 140 FLR 296

Federal Court of Australia

Black CJ, Beaumont, Allsop JJ

This matter concerned an appeal and cross-appeal arising from an action for damage sustained by a cargo of posters and prints loaded on board the MSC Melbourne at Port Botany, Sydney. The cargo was offloaded at Antwerp and then reloaded onto the Aquitania bound for Piraeus. Upon arrival of the goods at their final destination it was discovered they were damaged. The appeals arose out of proceedings concerning the liability of the carrier under maritime law, as reflected in the relevant international conventions and the Carriage of Goods by Sea Act 1991 (Cth). The Court was unanimously of the view that the appeal failed and the cross-appeal would be allowed, with Allsop J writing the principal judgment.

A significant issue before the Court was the interpretation of the relevant international conventions and this question was addressed in some detail by Allsop J. The relevant instruments, which together reflect international maritime law dealing with carriage of goods by sea and bills of lading as developed throughout the twentieth century, were the 1924 International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading (Hague Rules),[1] the 1968 Protocol to amend the International Convention for the Unification of Certain Rules of Law relating to Bills of Lading (Visby Rules),[2] and the 1979 Protocol amending the International Convention for the Unification of Certain Rules of Law relating to Bills of Lading (Hague-Visby Rules).[3] In considering how these treaties were to be interpreted, Allsop J noted:

Subject to any contrary intention revealed by domestic statute making an international instrument part of domestic law, the ascertainment of the meaning of, and obligations within, an international instrument that is made part of domestic law is to be ascertained by giving primacy to the text of the international instrument, but also by considering the context, objects and purposes of the instrument. The manner of interpreting the international instrument is one which is more liberal than that ordinarily adopted by a court construing exclusively domestic legislation; it is undertaken in a manner unconstrained by technical local rules or precedent, but on broad principles of general acceptation.[4]

This approach to treaty interpretation, especially the adoption of a broad or liberal construction, was reinforced in the view of Allsop J by the 1969 Vienna Convention on the Law of Treaties[5] which was an ‘authoritative statement of customary international law’.[6]

Acknowledging that under article 32 of the Vienna Convention on the Law of Treaties it was possible to examine the preparatory work of a treaty, Allsop J noted:

An understanding of the circumstances of the conclusion of the convention or protocol in question is not reached merely by reading, literally, the text of either the convention or protocol or what was said and written by the delegates at the various meetings and conferences leading up to the making of the relevant instrument. The relevant legal, practical and jurisprudential context and history must be understood in order that the compromises inherent in these international agreements be appreciated. Further, care must be taken not to accept too literally or overwhelmingly any particular words by one delegate without understanding the context of such words in the whole of the preparatory work and in the circumstances of the conclusion of the relevant agreement.[7]

He noted that an appreciation of the historical context is relevant to an understanding of a domestic statute; this is also relevant within the context of the Vienna Convention in seeking to understand the contexts and compromises behind a treaty. In the view of Allsop J: ‘This is especially so when those meeting to discuss the issues can be seen to be expert people involved in an industry or profession (perhaps of succeeding generations) grappling with similar or identical issues in similar commercial and legal circumstances.’[8]

Justice Allsop then applied these principles of treaty interpretation to permit an understanding of the development of the Hague Rules, Visby Rules, and finally the Hague-Visby Rules. The comprehensive analysis included a review of the background of the relevant negotiating conferences, the proceedings of the negotiating conferences including the travaux préparatoires, relevant academic and scholarly literature, the works of professional bodies such as the International Law Association and the Comité Maritime International, the decisions of superior courts in interpreting the Rules, and relevant domestic legislation adopted in other states.[9] This approach permitted a detailed analysis to be undertaken of the meaning of relevant terms in the Hague-Visby Rules so as to permit for a disposition of the matter.[10]

Constitutional Interpretation – International Law – Aliens – Migration Act 1958 (Cth)

Singh v Commonwealth of Australia

[2004] HCA 43; (2004) 222 CLR 322

High Court of Australia

These proceedings arose from a challenge to the validity of section 198 of the Migration Act 1958 (Cth). This section provides for the removal of unlawful non-citizens from Australia. The plaintiff in this case was born in Australia in 1998 to Indian parents who had entered Australia illegally without visas in 1997. She was a citizen of India by descent from her parents. However, because neither of her parents was an Australian citizen or permanent resident, the plaintiff was considered a non-citizen of Australia. She was therefore liable to be deported from Australia.

The central issue was whether Parliament had the power to legislate for the removal of someone in the plaintiff’s position. Under the Constitution, section 51(xix) gives Parliament the power to legislate with respect to ‘aliens’. The plaintiff argued that because she was born in Australia, she was not an alien, and therefore it was beyond the legislative competence of the Parliament to treat her as such.

By a majority,[11] the High Court held that the laws treating the plaintiff as having alien status were within the legislative power of Parliament conferred by section 51(xix). The majority held that the meaning of the term ‘alien’ was not fixed, and included a citizen of a foreign state. Thus the plaintiff was considered an alien according to the Act and within the meaning of section 51(xix) of the Constitution.

In his reasoning, Kirby J referred to and applied principles of international law. He stated that international law has long recognised the right of each nation state to determine its own nationality, and that the principles governing the conferral of nationality fall within the domestic jurisdiction of each nation state.[12] He stated that since international law recognises nationality by birth, by descent and by variants of the two, the interpretation of the Constitution by the Commonwealth in the present case involved no relevant inconsistency with international law.[13] In addition, Kirby J stated that since the Constitution must operate in the environment of international law, and because the general notion of alienage adapts to that environment, it follows that Australia’s constitutional power to enact federal legislation with respect to ‘aliens’ is not confined to traditional theories of citizenship.[14]

Constitutional and Statutory Interpretation – Consistency with International Law

Baker v The Queen

[2004] HCA 45; (2004) 210 ALR 1

High Court of Australia

In this case, the appellant was convicted of crimes including rape, murder and conspiracy to murder and sentenced to imprisonment for life. Given that the circumstances of the crimes were particularly horrendous, the trial judge Taylor J said to the appellant and his co-accused: ‘I believe you should spend the rest of your lives in gaol and there you should die. If ever there was a case where life imprisonment should mean what it says … this is it’.[15] This statement amounted to a ‘non-release recommendation’, that is, a recommendation by the original sentencing court that the person should never be released from imprisonment.

In 1997, amendments were made to section 13A of the Sentencing Act 1989 (NSW) that affected a limited number of prisoners serving life sentences who had been the subject of these non-release recommendations. Previously, section 13A allowed a person who had completed at least eight years of a life sentence to apply to the Supreme Court for a determination of a minimum sentence, after which parole might be possible. This was changed under the amendment so that prisoners who were subject to a non-release recommendation had to complete at least 20 years of their imprisonment before making an application, as well as satisfying the court that ‘special reasons’ existed to justify the determination of a minimum term.

On 1 August 1997 the appellant applied for an order determining a minimum term according to section 13A of the Act. The judge in the first instance held that the appellant was not eligible to make the application. The appellant then appealed to the New South Wales Court of Criminal Appeal. He argued that the amendment was invalid because it attempted to vest functions in the Supreme Court of New South Wales that were incompatible with the exercise of the judicial power of the Commonwealth.[16] He also argued that the amendments related only to those ‘the subject of a non-release recommendation’ and were therefore excessively selective. In addition, he argued that there was no real exercise of judicial power because the requirement of ‘special reasons’ had no possible content or meaning, and therefore the legislation was intended to ensure that those affected would never be released. The Court of Appeal rejected these arguments,[17] and the appellant appealed to the High Court, which rejected the appeal.[18]

On the first issue, the High Court stated that the New South Wales Parliament had the power to legislate with respect to serious offenders and to select non-release recommendations as the criterion distinguishing them from other offenders. Furthermore, since the amendment applied not only to pending prosecutions but also to any future prosecutions, the legislation was not excessively selective. Finally, the Court also held that the requirement of special reasons did not lack meaning or content, because this was a common ‘verbal formula’ used by legislators to allow the exercise of judicial discretion.[19]

Justice Kirby, in dissent, upheld the appellant’s challenge that the law was invalid based on the constitutional principle expressed in Kable v Director of Public Prosecutions (NSW).[20] He held that it was the role of the court to monitor the proportionality of sentences in order to avoid serious excesses and departures from the international law of human rights to which Australia has subscribed.[21] If there are ambiguities and uncertainties in the provisions of the Constitution, Kirby J was of the view that the Court should interpret these provisions in light of international norms because ‘they are part of the contemporary context in which the Constitution, as a living body of law, falls to be construed by this Court’.[22]

Justice Kirby referred to jurisprudence in other jurisdictions which are now taking a similar approach, such as the Supreme Court of the United States of America; that this was an indication that Australian courts should now be doing the same.[23] In addition, Kirby J argued that since Australian courts regularly construe ordinary statutes to ensure that, as far as possible, they operate consistently with international law, there was no reason why the Constitution should not be the same. He held that no other approach is compatible with the operation of national constitutions, nor with the jurisprudence of other final courts in the contemporary world.[24]

Therefore, since this law limited the extent of a judge’s sentencing discretion, as well as effectively imposing a heavier penalty on the appellant than the one he was sentenced for at the time of the offence, Kirby J held that the provisions of the impugned law offended the international law of human rights and fundamental freedoms[25] and so should be held invalid.

Statutory Interpretation – International Law – Immigration Detention – Migration Act 1958 (Cth)

Behrooz v Secretary of the Department of Immigration and

Multicultural and Indigenous Affairs

[2004] HCA 36; (2004) 208 ALR 201

High Court of Australia

These proceedings arose out of the escape of the appellant, an Iranian man, from Woomera Immigration Reception and Processing Centre (‘the detention centre’). The appellant was detained in ‘immigration detention’ as an unlawful non-citizen according to section 196(1) of the Migration Act (1958). He allegedly escaped and was charged with contravening section 197A of the Act. In defence, the appellant argued that the conditions prevailing at Woomera were so intolerable that the detention was not a legal form of detention authorised by the Act. He argued that since there was no legal ‘immigration detention’, his escape could not be held to contravene section 197A of the Act. The appellant sought summonses seeking material about the conditions at Woomera.

At first instance, the Magistrate upheld the appellant’s defence and granted the summonses by concluding that ‘the detention went beyond that which was authorised by the Act and was necessarily illegal’.[26] However, an appeal by the first respondent to the Supreme Court of South Australia was allowed and the summonses set aside. The appellants moved to the Full Court of the Supreme Court for leave to appeal; however, this was refused. The appellants appealed to the High Court.

By a majority, the Court held that the appellant had no right to escape from Woomera even if he could show that the conditions of detention were harsh. The Court also held that the summonses did not have a legitimate forensic purpose because the information sought by Mr Behrooz would not assist his argument that he was not in immigration detention.

When considering the legality of the detention, Kirby J (in dissent) considered whether international law, namely the International Covenant on Civil and Political Rights (ICCPR), [27] was relevant to the construction of the meaning of ‘immigration detention’. In his reasoning, Kirby J held that it had long been established that statutes are to be interpreted and applied to conform with international law if the language of the statute permits.[28] He held that Australian courts should adhere to this approach rather than the more conservative approach of only turning to international law if there is an ambiguity in the meaning of the statute.[29]

In addition, Kirby J held that this ‘interpretative principle’ applies equally to both customary international law and treaty law. In particular, Kirby J held that the ICCPR was particularly relevant to the proceedings because Australia had voluntarily accepted the obligations expressed in it, including the obligation to ensure that its laws conformed to the requirements of the Convention.[30] Furthermore, he held that infringement of the rights in the ICCPR was not lawful unless sustained by ‘a clear expression of an unmistakable and unambiguous intention’ in valid legislation.[31]

Justice Kirby also stated that courts such as the High Court are entitled to pay close attention to the decisions of bodies such as the Human Rights Committee of the United Nations (UNHRC), even though they are not legally binding on the state party concerned, because Australia has submitted itself to the Committee’s scrutiny of alleged infractions by Australia of such obligations.[32]

Thus Kirby J applied provisions of the ICCPR to the present proceedings.[33] He held that since Parliament provided for derogations from personal freedom in the Act in the form of immigration detention, that detention must conform to the obligations under the ICCPR, in particular that it must not involve inhuman and intolerable conditions.[34] Since the appellant’s detention could have consisted of conditions that were inhumane and intolerable, Kirby J upheld the appellant’s arguments and allowed the appeal.

Relationship between international and domestic law – role of international law in constitutional interpretation – indefinite detention – statelessness – whether mandatory detention contravenes the International Covenant on Civil and Political Rights

Al-Kateb v Godwin

[2004] HCA 37; (2004) 219 CLR 562

High Court of Australia

In this case, the High Court considered whether it was lawful for a stateless person, with no prospect of removal in the reasonably foreseeable future, to remain indefinitely in immigration detention. The stateless appellant had applied unsuccessfully for refugee status, and had subsequently requested that he be removed from Australia. However, because no other state would accept him, he could not be removed. The High Court accepted that there was no real likelihood of his removal in the reasonably foreseeable future.

The key question in the case was whether the mandatory detention provisions of the Migration Act 1958 (Cth) ceased to apply where it was not ‘reasonably practicable’ to effect an unlawful non-citizen’s removal. The minority[35] found in favour of that proposition, holding that without clear language authorising indefinite detention, the provisions of the Act did not sustain the applicant’s continuing detention. Chief Justice Gleeson stated that: ‘The possibility that a person, regardless of personal circumstances, regardless of whether he or she is a danger to the community, and regardless of whether he or she might abscond, can be subjected to indefinite, and perhaps permanent, administrative detention is not one to be dealt with by implication.’[36] If the purpose of removal under section 198 cannot be fulfilled, then detention must be suspended:

If the stage has been reached that the appellant cannot be removed from Australia and as a matter of reasonable practicability is unlikely to be removed, there is a significant constraint for the continued operation of s 198. In such a case s 198 no longer retains a present purpose of facilitating removal from Australia which is reasonably in prospect and to that extent the operation of s 198 is spent. If that be the situation respecting s 198, then the temporal imperative imposed by the word ‘until’ in s 196(1) loses a necessary assumption for its continued operation. That assumption is that s 198 still operates to provide for removal under that section.[37]

By contrast, the majority found that the language of the relevant provisions of the Migration Act required that an unlawful non-citizen be kept in detention until removal became possible. Justice McHugh stated that the words of the Act were ‘unambiguous’ and noted: ‘The words of the three sections are too clear to read them as being subject to a purposive limitation or an intention not to affect fundamental rights’.[38] Justice Hayne held that the period of detention was fixed by reference to the occurrence of one of three specified events: the individual is removed from Australia under section 198 or 199 of the Migration Act; deported from Australia under section 200; or granted a visa. Accordingly, ‘[d]etention must continue until one of those events occurs.’[39] In his view, it was not possible to state that the appellant would remain in detention permanently, but simply that at the present time, it was not, and had not been, reasonably practical to effect removal. In other words, ‘there is now no country which will receive a particular non-citizen whom Australia seeks to remove, and it cannot now be predicted when that will happen’.[40]

The decision reflects polarised understandings of the relationship between international and domestic law, exemplified by the judgments of McHugh and Kirby JJ. Justice Kirby endorsed Gummow J’s view that there are limits on the Executive’s power under the Constitution to detain aliens for the purposes of deportation or expulsion,[41] noting that that conclusion is also supported by the common law presumption in favour of personal liberty, and international law.[42] Drawing on comparative jurisprudence, Kirby J argued that the High Court of Australia ‘should be no less defensive of personal liberty’ than courts in the United States, the United Kingdom and Hong Kong, which had all withheld a power of unlimited detention from the Executive.[43]

This view was strongly disputed by McHugh J, who stated that ‘courts cannot read the Constitution by reference to the provisions of international law that have become accepted since the Constitution was enacted in 1900’.[44] The basis of his objection seems to have been ‘the widespread nature of the sources of international law’, which, in his view, make it ‘impossible to believe that, when the Parliament now legislates, it has in mind or is even aware of all the rules of international law’.[45] Although the High Court accepts that statutes should be interpreted and applied in conformity with international law,[46] McHugh J claimed that it would be ‘heretical’ to claim that the Constitution should be read in the same way, since it would operate as a restraint on the grants of power it confers.[47] Further, to interpret the Constitution consistently with international law would be commensurate with ‘amending the Constitution in disregard of the direction in s 128’.[48] By contrast, McHugh J accepted that political, social and economic developments since 1900 could be taken into consideration in constitutional interpretation. He regarded these as different from rules of international law, since rules are specific and, when so applied, would necessarily have an amending effect on the Constitution, rather than simply adding ‘context’.[49]

Justice Kirby countered these arguments, stating that he did not accept McHugh J’s use of the term ‘rules’ to describe his application of international law; rather, he relied on international law principles instead: ‘They do not bind as other “rules” do. But the principles they express can influence legal understanding.’[50] Furthermore, no matter what the historical position in Australia:

the complete isolation of constitutional law from the dynamic impact of international law is neither possible nor desirable today. That is why national courts, and especially national constitutional courts such as this, have a duty, so far as possible, to interpret their constitutional texts in a way that is generally harmonious with the basic principles of international law, including as that law states human rights and fundamental freedoms.[51]

Justice Kirby argued that the use of international law as an interpretive principle of the Constitution was simply another step in the evolutionary process of constitutional law.[52] International law developments were another change requiring adaptation, in the same way that the High Court had adapted the Constitution to changing times before,[53] and Kirby J noted that the constitutional courts of many other states followed this interpretative approach.[54]

Finally, the majority held that immigration detention is non-punitive.[55] By contrast, Gummow J noted that there is ‘often no clear line between purely punitive and purely non-punitive detention’.[56] Justice Hayne considered whether it could be said that mandatory detention in Australia contravened article 9 of the ICCPR. He noted that such detention was in accordance with a procedure established by law (compliant with article 9(1)), and the lawfulness of that detention could be tested in court (compliant with article 9(4)). He therefore found it unnecessary to examine whether any weight should be given to the opinions of the Human Rights Committee on this issue.[57]

Constitutional Interpretation – Principles of International Law – Human Rights Jurisdiction – Military Law

Re Colonel Aird; Ex parte Alpert

[2004] HCA 44; (2004) 209 ALR 311

High Court of Australia

These proceedings arose out of the alleged criminal conduct of a member of the Royal Australian Regiment while he was on leave overseas. Private Alpert, the applicant was deployed to Malaysia where his unit was serving at the Royal Malaysian Air Force Base. While on leave in Thailand, he allegedly raped a young woman. The young woman complained to the Australian military authorities who intended to try Private Alpert by general court martial in Australia under the Defence Force Discipline Act 1982 (Cth) (DFDA).

The central issue in this case was whether it was beyond the power of the Australian Parliament to try, by military tribunal, a member of the Regular Army for an offence committed on leave but during the time he was serving overseas. More specifically, the issue was whether the legislation was a valid exercise of the Commonwealth’s constitutional defence power.[58] By a four to three majority,[59] the High Court held that the DFDA was within the constitutional defence power, because there was the ‘service connection’ between the Act and what was necessary to maintain discipline and moral in the armed forces.[60]

The dissenting members of the Court, Kirby, Callinan and Heydon JJ, held that the application of the Act was constitutionally invalid. Justice Kirby held that holding the DFDA to be valid was against legal authority, constitutional history, and inconsistent with the Court’s recent doctrine on Chapter III of the Constitution. He also held that it was antithetical to the functions of citizen jurors and the rights of service personnel, and amounted to legislation that effectively excluded Australian criminal courts from their usual role in such trials.[61]

In Kirby J’s analysis of constitutional interpretation, he considered the extent to which it was permissible to take into account universal principles of international law when interpreting the Constitution. Although in this case he found that the principles of international law were of little assistance, Kirby J still held that it was an important consideration in the process of interpreting the Constitution since it, like other law in Australia, now operated in a context that was profoundly affected by international law.[62]

In addition, Kirby J stated that it was also irresponsible for the Court to ignore this interpretive approach, as domestic law plays an important role in contributing to the enlargement of the international rule of law. He argued that other jurisdictions have also done the same, such as the Supreme Court of the United States, and that Australia should do likewise.[63] Applying the relevant principles of international law, Kirby J acknowledged the existence of the territorial principle,[64] the passive nationality principle,[65] and the active nationality principle,[66] and applied the latter to show that Australia’s application of its own criminal law to an Australian national overseas did not contravene international law.

Justice Kirby also applied principles of human rights and fundamental freedoms in resolving the reach of Australian constitutional law in the present case. He highlighted that by the operation of regional human rights obligations, there had been a trend in the most developed countries to diminish the ambit of service discipline in favour of independent courts,[67] and that Australia should also do the same. He also analysed the possible application of one of the most fundamental human rights principles, that of double jeopardy. This principle states that no one shall be liable to be tried or punished again for an offence for which he has already been convicted or acquitted in accordance with the law and penal procedure of each country.[68] Justice Kirby stated that if the applicant were tried by a service tribunal, he would be exposed to a risk of double jeopardy, particularly by a foreign court that may not recognise the authority of the military tribunal.[69] However, despite this risk, Kirby J ultimately held that the international law of human rights was not offended in this case. He held that the rule against double jeopardy did not apply in the international context to forbid successive prosecutions by different sovereigns based on the same set of facts. [70] He therefore rejected the appeal.

Foreign State Immunity – Act of State – Commercial Transactions – Foreign States Immunity Act (Cth)

Wells Fargo Bank Northwest National Association v Victoria Aircraft Leasing Ltd

[2004] VSC 262

Supreme Court of Victoria

Dodds-Streeton J

These proceedings involved an application by the United States of America (USA) for an order to set aside a Third Party Notice that was served upon it by the defendants. The plaintiff, Wells Fargo Bank, was the security trustee for the Export Import Bank of the United States (Eximbank). Eximbank was the holder of a mortgage and security interests over a Boeing 737-400 aircraft and was an agent of the United States. The first defendant, Victoria Aircraft Leasing Ltd, was the owner of the aircraft. The second defendant, Nauru Air Corporation, was the operator of the aircraft. The third defendant was the Republic of Nauru. These proceedings arose when Wells Fargo sought to exercise remedies, including foreclosure and possession, in relation to the aircraft. Nauru filed a counterclaim and served the United States with a Third Party Notice. The United States made an application to set aside the Third Party Notice on the pleadings alone.

There were two main issues in this case. The first was whether the United States, as a foreign state, was immune from the jurisdiction of Australian courts pursuant to the Foreign States Immunities Act 1985 (the Act). The second issue was whether the claims made against the United States in the Third Party Notice were justiciable, as they required adjudication of ‘acts of state’ and a ‘determination of matters bearing upon the validity of acts and transactions of foreign states’.[71]

A pivotal issue before the Court was the meaning of ‘commercial transaction’ under the Act. Counsel for both sides agreed that the Court was entitled to have recourse to an Australian Law Reform Commission (ALRC) Report and that a construction promoting the goals of the legislation should be adopted.[72] The United States argued that the ALRC Report showed that the Act was intended to be an ‘evolution’ of the common law doctrine of ‘restrictive immunity’,[73] as well as being consistent with principles of international law, and relied upon a number of sources to support this proposition.[74] In contrast, the defendants argued that ALRC Report demonstrated that legislation was intended to create a radical break with the principles developed under the common law doctrine and discarded the distinction between governmental acts and commercial transactions.

Justice Dodds-Streeton accepted the submissions of the United States on this point: ‘In my opinion, if a transaction is substantially, essentially or predominately of a political, diplomatic, governmental or intelligence or like character, it is not a “commercial transaction”.’[75] The nature or character of the transaction between Nauru and the United States was held to be overwhelmingly non-commercial because it involved high-level dealings about issues of terrorism, intelligence, and reform of banking and passport abuse to achieve conformity with international conventions.[76]

As to the act of state issue, Dodds-Streeton J did not reach a conclusion because of the finding that the United States had immunity.[77] It was noted, however, that the argument put forward by the United States that the proceedings could embarrass the Court or prejudice the relationship between Australia and each of the foreign states was persuasive.[78]

Human Rights

Interpreting domestic law in light of Australia’s international obligations – mandatory detention

Re Woolley; Ex parte Applicants M276/2003 by their next friend GS

[2004] HCA 49

High Court of Australia

The appellants were four Afghani children aged 7, 11, 13 and 15, who had arrived in Australia with their parents in 2001 without visas. They were placed in immigration detention. The case concerned the lawfulness of such detention. The appellants sought to challenge the legislative scheme for mandatory detention inter alia on the grounds that it was inconsistent with Australia’s obligations under international human rights law.

The Court held that Australia’s international obligations could only be taken into account in interpreting domestic legislation if the legislation were expressed in ambiguous language.[79] Since the legislation in question was found to be clear, there was no reason to interpret it in a manner consistent with Australia’s obligations under the Convention on the Rights of the Child.[80] Justice Kirby stated that where the law is ‘clear and valid (and is the result of a deliberately devised and deliberately maintained policy of the Parliament), a national court … is bound to give it effect according to its terms. It has no authority to do otherwise.’[81]

Both McHugh and Kirby JJ noted that the treatment of child asylum seekers and refugees was the subject of a number of international treaties to which Australia was a party, such as the Refugee Convention,[82] the ICCPR and the 1989 Convention on the Rights of the Child,[83] and that there was an increasing volume of international jurisprudence on states’ human rights obligations with respect to asylum seekers held in detention. Justice McHugh observed that ‘international jurisprudence favours the argument that the mandatory detention of infant asylum seekers is arbitrary’.[84] He considered a number of opinions by the Human Rights Committee in cases brought against Australia concerning mandatory immigration detention;[85] comparative jurisprudence in New Zealand, the United States, the United Kingdom and Canada;[86] and the reports of the United Nations Working Group on Arbitrary Detention.[87] He concluded that the opinions expressed in those fora indicated:

that a regime which authorises the mandatory detention of unlawful non-citizens may be arbitrary notwithstanding that the regime may allow for the detainee to request removal at any time. They suggest that something more is required if the regime is not to be found to breach the Refugees Convention, the ICCPR or the Convention on the Rights of the Child, or to be otherwise contrary to international law. Something more may include periodic judicial review of the need for detention, some kind of defined period of detention and the absence of less restrictive means of achieving the purpose served by detention of unlawful non-citizens.[88]

Yet, despite recognising that Australian law did not accord with international practice and opinion on immigration detention, McHugh J stated that the issue before the Court was ‘not whether the detention of the present applicants is arbitrary according to international jurisprudence, whether it constitutes a breach of various Conventions to which Australia is a party or whether it is contrary to the practice of other states’.[89] Such jurisprudence was not relevant to determining the real issue before the Court, namely whether Parliament, in enacting the detention provisions of the Migration Act, had sought to exercise (or authorise the Executive to exercise) the judicial power of the Commonwealth. Justice McHugh found that no such exercise of judicial power had occurred, and accordingly held that the relevant sections of the Migration Act were valid enactments that applied to non-citizen children.[90]

Justice Kirby reluctantly made the same finding, observing that there was no legal basis in Australia for making a contrary decision. He stated that:

recent authority of this Court repeatedly confirms the lawfulness and validity of the applicants’ detention. It does so notwithstanding the extended duration of the detention, the status of the respondents as children, the arguable breach of international obligations and the unfortunate consequences that I would be prepared to assume such prolonged detention of children occasions.[91]

Convention on the Rights of the Child – Best Interests of the Child – Migration Act – Mandatory Considerations – Legitimate Expectation

Le v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 875

Federal Court of Australia

French J

This case involved a Vietnamese national, Mr Van Tu Le, who came to Australia with his wife as a refugee in 1990. Mr Le had three children, one of whom was a permanent resident of Australia and two of whom were Australian citizens. In 1998 Mr Le was convicted of two assaults and sentenced to two years’ imprisonment. This resulted in a reassessment of his visa according to section 501 of the Migration Act 1958 (Cth) which gives the Minister the power to cancel the visa of a non-citizen who is unable to pass the ‘character test’. Mr Le’s visa was subsequently cancelled. Mr Le applied for judicial review of the decision on the basis that there was jurisdictional error on the part of the Minister in the decision-making process.

The first error asserted was in relation to the interests of his children. Mr Le alleged that there was a failure to take them into account as a relevant consideration, that he had a legitimate expectation that the Minister would observe Australia’s obligations under the Convention on the Rights of the Child (CRC),[92] and finally that there was Wednesbury unreasonableness [93] in the decision because the Minister acted upon deficient information.

In regard to the alleged failure to take into account a relevant consideration, French J held that the Minister is not required to consider the best interests of the child as a mandatory relevant consideration in the exercise of his discretion by reason of the terms of section 501 of the Act, by international law, or by the Minister’s own policy directions.[94] In his reasoning regarding the relevance of international law to the present issue, French J held that although Australia is a party to the CRC, it is only bound in international law by the obligation to treat the best interests of the child as a primary consideration in decision-making, and not in the exercise of domestic statutory power as is the case here.[95]

Addressing the topic more generally, French J held that although statutes are generally to be interpreted and applied, to the extent that their language allows, so as to conform and not conflict with established laws of international law:

this does not extend to writing into statutes conditions, expressive of treaty obligations, which would narrow the powers that Parliament has conferred upon administrative or ministerial decision-makers.[96]

Therefore, although the provisions of an international treaty may be a relevant consideration in the exercise of statutory discretions, French J held that they are not mandatory considerations attracting judicial review for jurisdictional error.[97]

The appellant also argued that he had a legitimate expectation that the Minister would regard the best interests of the children as a primary consideration in accordance with article 3(1) of the CRC. He argued that the information he provided at a departmental interview in July 2000 should have been passed on to the Minister, and that he should have been warned and given an opportunity to comment if he did not fulfil the necessary requirements under the Minister’s Direction. Justice French held that there was a legitimate expectation that that the Minister would regard the best interests of the children as a legitimate expectation, however he held that, based on the circumstances of the case, the absence of giving Mr Le a warning and an opportunity to comment did not lead to a lack of procedural fairness.[98]

The second ground for appeal was based on the Minister’s adverse findings of whether Australia owed Mr Le protection obligations under article 1A(1) of the Refugee Convention.[99] The appellant claimed that there was procedural unfairness because the Minister did not give him the chance to comment upon the findings.

Justice French held that there was no practical unfairness in Mr Le not being able to comment on the findings because Mr Le had not produced any evidence to suggest that he would have been able to make any submissions affecting the applicability or reliability of the country information cited.[100] Therefore, French J held that, despite inadequacies of aspects of the decision-making process, there was no jurisdictional error on the part of the Minister.[101]

Statutory Interpretation – Vagrants, Gaming and Other Offences Act 1931 (Qld) – International Covenant on Civil and Political Rights

Coleman v Power

[2004] HCA 39

High Court of Australia

The appellant, Mr Coleman, was protesting in Townsville Mall by distributing pamphlets containing charges of corruption against several police officers. When one of the police officers approached the appellant and asked to see a pamphlet, he pushed the police officer and said loudly ‘This is Constable Brendan Power, a corrupt Police officer’. The appellant was charged with using insulting words contrary to section 7(1)(d) of the Vagrants, Gaming and Other Offences Act 1931 (Qld).

The central issue was whether section 7(1)(d) of the Act was constitutionally invalid because it penalised persons using words that had a political content or purpose, and that the penalty amounted to a burden on the freedom of political communication. In the first instance, the magistrate found the law valid and Mr Coleman guilty. Mr Coleman’s appeals to the District Court, the Supreme Court of Queensland and the Queensland Court of Appeal failed.[102]

In the High Court, the majority[103] held that Mr Coleman’s conviction should be set aside, and that the legislation creating the offence was either constitutionally invalid or should be interpreted in such a way so it did not include the appellant’s conduct. Justices Gummow, Hayne and Kirby held that the words the appellant used would constitute no offence unless those hearing him were reasonably likely to be provoked to retaliate physically.

Chief Justice Gleeson, in dissent, held that section 7 of the Act was not inconsistent with the freedom of political communication conferred by implication by the Commonwealth Constitution or by international treaties, in particular the ICCPR.[104] He made a number of observations regarding the application of international law principles to the present case, and whilst neither party raised the topic during the course of the appeal, he thought it appropriate to discuss because of the possibility that the meaning of a state Act was affected by an international obligation.

Nevertheless, Gleeson CJ held that interpreting ambiguous terms and principles in statutes by reference to international obligations was permissible, but it required some care. He held that past case law did not contain a presumption that the ICCPR could control or influence the meaning of an act of the Queensland Parliament, particularly one that preceded the ICCPR’s existence.[105] Chief Justice Gleeson also held that the present proceedings were not an appropriate place to determine the influence of established principles of international law upon the development of the common law because it concerned the interpretation of a Queensland statute and not the development of common law.[106] He also stated that it was not the role of international law to change the meaning of the words of a statute without intervention by the relevant state Parliament. Furthermore, section 14B of the Acts Interpretation Act 1954 (Qld) provided that reference to extrinsic materials to assist in the interpretation of a statute was only permitted if they were mentioned in the Act. Since there were no treaties or international agreements mentioned in the Act, reference to them was not permitted. Nevertheless, Gleeson CJ stated that even if the Act were to be construed in the light of article 19 of the ICCPR, section 7 was not inconsistent with the article.[107] He stated that article 19 contemplated restrictions on the freedom of speech for the protection of public order, and therefore the restrictions of words that were ‘insulting’ did not violate the ICCPR.

Finally, Gleeson CJ noted that the practical consequences of favouring a construction based on the ICCPR would seriously disrupt Parliament’s intention in enacting the 1931 Act. The 1851 Act prohibited the use of threatening, abusive or insulting words in a public street, but only if it was used with intent to provoke a breach of the peace. The 1931 Act removed this latter requirement. A construction in favour of the ICCPR that was ratified in 1980 would reinstate this latter requirement back into the legislation without express permission by Parliament, which was not a desirable outcome.[108]

Justice Kirby approached the issue of statutory interpretation from a very different perspective. He held that there were three norms of statutory construction. First, ambiguities should be interpreted in accordance with the Constitution as a priority. Second, a construction diminishing fundamental human rights, including those rights expressed in international law, should not be preferred if an alternative construction was equally available. Third, a construction should not limit fundamental rights expressed in the common law unless the language was express and unambiguous.[109]

Concerning the second norm, Kirby J held that the Act should adhere to the principle of freedom of expression as expressed in article 19 of the ICCPR.[110] He held that exceptions to this rule should be construed strictly and narrowly in order to conform to the permissible exceptions set out in article 19 of the ICCPR.[111] Justice Kirby also dismissed the criticisms of Gleeson CJ regarding the use of principles of international human rights law to assist in the interpretation of statutory provisions. He stated that the use of these principles had been ‘frequent, consistent and of long standing’ in his own judgments,[112] and that ‘it preceded [his] service on the Court’.[113] He also stated that the Court was free to adopt a construction of legislation that had not been argued by either party, and that it was not restricted to the interpretative principles argued by their representatives.[114]

Justice Kirby also rejected the notion that statutes should be read according to the subjective intentions of parliamentarians who voted, stating that it should rather be interpreted according to the objective purpose derived from the living language of the law as read today.[115] To derive this meaning, Kirby J referred to the approach taken by Scarman LJ in Ahmad v Inner London Education Authority[116] that legislation should be construed and applied in the context of a modern society which has accepted international obligations. He held that this did not allow a carte blanche for derogation from the ICCPR, but a facilitative approach in determining the meaning of the words in today’s context.[117] Justice Kirby concluded by stating that his approach to the interpretation of statutes by reference to principles of human rights and fundamental freedoms, as expressed in international law, will become more common in the future and gradually be considered orthodox.[118]


Refugee Convention – interpretation of ‘particular social group’ – whether society must perceive collection of individuals as a group set apart from the rest of the community – whether law of general application can be persecutory

Applicant S v Minister for Immigration and Multicultural Affairs

[2004] HCA 25

High Court of Australia

The appellant was a married Afghan man of Pashtun ethnicity. He had fled Afghanistan to avoid forcible recruitment by the Taliban for military service, which had already tried to conscript him twice. The Refugee Review Tribunal (Tribunal) had found that forcible military recruitment by the Taliban was ad hoc and random, rather than individually targeted. Accordingly, it held that the appellant was not targeted for reasons of political opinion or religious views and was therefore not a refugee. It had not, however, considered whether he was persecuted as a member of a ‘particular social group’.

Justice Carr of the Federal Court had remitted the matter to the Tribunal for redetermination on the ground that it should have considered whether able-bodied young men constituted a ‘particular social group’ for the purposes of article 1A(2) of the Refugee Convention.[119] The Minister had appealed successfully to the Full Federal Court on the basis that there was ‘no trace of any evidence before the Tribunal that would support a claim that Afghan society perceived young able-bodied men as comprising a separate group either as a result of the Taliban’s recruitment process or for any other reason’.[120]

The primary ground of appeal before the High Court was that the majority of the Full Court[121] had erred in requiring that the Tribunal must have evidence that Afghan society perceived young able-bodied men as forming a particular social group. The appellant argued that while social perceptions may be relevant to the question of whether a particular social group exists, they are not required to establish the group’s existence.[122]

The majority of the High Court (Gleeson CJ, Gummow and Kirby JJ; with whom McHugh J agreed in separate reasons) revisited the three-pronged test established in Minister for Immigration and Multicultural Affairs v Zamora[123] for determining when a group is a ‘particular social group’ within the meaning of article 1A(2) of the Refugee Convention. While it affirmed the first two elements of the test – that the group must be able to be identified by an attribute or characteristic that is common to all members of the group, and that this attribute cannot simply be the fear of persecution – it overturned the third prong. Whereas Zamora premised the existence of a ‘particular social group’ on ‘recognition within the society that the collection of individuals is a group that is set apart from the rest of the community’,[124] the High Court in the present case found that ‘[t]he general principle is not that the group must be recognised or perceived within the society, but rather that the group must be distinguished from the rest of the society.’[125] Thus, while the group must be cognisable within society, it does not have to be perceived or recognised by the society as a group set apart from the community. Community perceptions will be relevant and may amount to evidence that a particular social group exists, but are not conclusive.[126] For example, the majority noted that communities may sometimes deny the existence of certain groups because the characteristic shared by group members offends religious or cultural beliefs of the majority.[127] This was reflected in Appellant S395/2002 and Appellant S396/2002 where the Court and the Tribunal accepted that homosexuals in Bangladesh constitute a particular social group,[128] even though Bangladeshi society preferred to ignore the existence of homosexuals.[129]

Justice McHugh, who agreed in broad terms with the majority, explained that while a ‘particular social group’ within the meaning of article 1A(2) of the Refugee Convention must be a ‘cognisable group within their society’, ‘it is not necessary that it be recognised generally within the society as a collection of individuals which constitutes a group that is set apart from the rest of the community’.[130] To impose such a requirement would import a condition that the Refugee Convention does not require.[131] Accordingly, in his view:

[i]t is enough that the persecutor or persecutors single out the asylum-seeker for being a member of a class whose members possess a “uniting” feature of attribute, and the persons in that class are cognisable objectively as a particular social group.[132]

The second ground of the appeal before the High Court concerned whether the appellant could be considered to have a well-founded fear of persecution. The majority reaffirmed that persecutory treatment does not have to stem from ‘enmity’ or ‘malignity’, as the Minister submitted, but may in some cases be motivated (in the persecutor’s mind) by an intention to confer a benefit.[133]

The majority also confirmed that even laws of general application are capable of being enforced in a discriminatory manner,[134] although in the instant case, the Taliban’s conscription policy was found to be ad hoc and random and therefore not a law of general application.[135] The Court surmised that the aim of the Taliban’s conscription policy was to protect the nation. Although a law or policy aimed at protecting the nation’s security is prima facie a legitimate national objective, here, the Taliban’s character as ‘a ruthless and despotic political body founded on extremist religious tenets’ affected the legitimacy of that objective, especially when assessed in accordance with international standards.[136] Even if it were accepted as a legitimate objective, the Taliban’s conduct in the circumstances was not a proportionate means of realising that objective. As the Tribunal observed, it was a policy implemented in an arbitrary manner which would not be condoned internationally.[137]

The majority allowed the appeal and reinstated Carr J’s orders that the matter be remitted for redetermination by the Tribunal. It held that the majority of the Full Court erred in law by requiring that the Tribunal needed evidence that Afghan society perceived able-bodied young men as a separate social group. In addition, it held that the Tribunal failed to consider the correct issue, namely ‘whether because of legal, social, cultural and religious norms prevalent in Afghan society, young able-bodied men comprised a social group that could be distinguished from the rest of Afghan society’.[138]

Justice Callinan dissented on the grounds that conscription is not persecution for a Convention reason.[139]

Refugee Convention – non-state agents – when fear of persecution by non-state agents is well-founded

Minister for Immigration and Multicultural Affairs v Respondents S152/2003

[2004] HCA 18; (2004) 222 CLR 1

High Court of Australia

In Kirby J’s view, this appeal involved no new legal principles or propositions, but simply rehearsed established law on refugees and judicial review. Since it is frequently cited, however, it is reported here. The case concerned Australia’s protection obligations to persons fearing harm perpetrated by private individuals, where that harm was neither condoned, encouraged nor tolerated by the state or its officials.

The respondents were a de facto husband and wife from Ukraine. The case focused on the first respondent, the husband, who was a Jehovah’s Witness who claimed that he had a well-founded fear of persecution for reasons of religion. The Tribunal found that there was no evidence generally of persecution of Jehovah’s Witnesses in Ukraine, and held that the first respondent had simply been the victim of random and unconnected attacks by private individuals. Furthermore, the Tribunal found that there was no evidence to support the assertion that the Ukrainian authorities were unable or unwilling to protect their citizens. Justice Wilcox in the Federal Court held that this conclusion had been properly reached.[140] However, the Full Court held that the Tribunal had erred by failing to consider ‘whether, in a practical sense, the State was able to provide protection particularly in light of the pervasive pattern of harm’.[141] Since the incidents involving the first respondent had been found to be isolated and random, the High Court interpreted ‘the pervasive pattern of harm’ as referring to ‘the hostility, in certain elements of the community, towards “sectarian” religious practice and proselytising, and the propensity of some of those elements to express their hostility in a violent manner’.[142]

The Court confirmed the Australian position, consistent with the predominant international approach, that ‘persecution’ under the Refugee Convention may be inflicted by non-state agents.[143] However, according to the majority of the Court (McHugh J dissenting on this point), it will only qualify as persecution under the Convention when the state’s acts or omissions make it complicit, for example through condoning, tolerating or encouraging the persecutory conduct. Justice Kirby adopted the formulation expressed by the House of Lords: ‘Persecution = Serious Harm + The Failure of State Protection.’[144] Importantly, the duty on the state is not one of absolute protection: ‘No country can guarantee that its citizens will at all times, and in all circumstances, be safe from violence.’[145] Rather, the state has a duty to take reasonable measures to protect its citizens’ lives and safety, in accordance with international standards,[146] which include an ‘appropriate criminal law’ and ‘a reasonably effective and impartial police force and justice system’.[147] Justice McHugh emphasised that persecution does not have to derive from a pattern of harm, but can be constituted by a single act.[148]

Justice McHugh’s interpretation of non-state persecution was somewhat different, although he ultimately reached the same conclusion as the other members of the Court. He argued that determining the state’s ability to prevent harm incurred as a result of random acts by private individuals was relevant to ascertaining well-founded fear of persecution, but not necessary.[149] In his view, the critical question ‘is whether the evidence established a real chance that the asylum seeker will be persecuted for a reason proscribed by the Convention, if returned to the country of nationality’.[150] He argued that the approach of the House of Lords in Horvath,[151] and thus by the majority in the instant case, was flawed because it required an additional hurdle for individuals fearing persecution by non-state agents. Whereas an individual who establishes a well-founded fear of persecution by the state (for a Convention reason) automatically satisfies the need for protection, an individual fearing non-state persecution must show persecutory acts plus evidence that the state has breached its duty to protect the applicant.[152] In McHugh J’s view, once persecutory conduct for a Convention reason has been established, it should be immaterial whether it is carried out by the state or a non-state agent. While state culpability is not a requirement of persecution, the state’s attitude ‘may be relevant, however, to whether a person has a well-founded fear of persecution’.[153] A well-founded fear will exist where there is a real chance that the asylum seeker will be persecuted for a Convention reason, regardless of whether or not the state has law enforcement systems in place.[154] Once a real chance of persecution is established, ‘refugee status cannot be denied merely because the state and its agencies have taken all reasonable steps to eliminate the risk’.[155] Justice Kirby questioned McHugh J’s interpretation, based on the Convention’s history, nature, language and purpose;[156] however, ultimately he found it unnecessary to decide whether or not his theory ought to be accepted. Justice Kirby noted the importance, however, of observing so far as possible ‘common approaches to the interpretation and application of an international treaty’,[157] suggesting that McHugh J’s approach was an aberration.

The Court found that there had been no failure on the Tribunal’s part to consider and decide relevant issues in the case, and accordingly allowed the appeal and set aside the substantive orders of the Full Court.

Persecution by non-state agents – whether a state’s means of effective protection must be assessed against ‘international standards’ – meaning of ‘international standards’

MZ RAJ v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1261

Federal Court of Australia

Heerey J

This case concerned a Sri Lankan family of four who had unsuccessfully applied for protection visas in Australia. The husband, who was active in politics, claimed that he would be persecuted by non-state agents if returned to Sri Lanka. His wife claimed a fear of persecution based on her own and her husband’s political opinion, and her Tamil ethnicity.

The Court affirmed the position in Minister for Immigration and Multicultural Affairs v Respondents S152/2003[158] that a state cannot be expected to ‘exercise a degree of control that guarantees its citizens protection against all harm’.[159] However, the question raised in this case was whether, in determining a level of effective state protection, the decision-maker must evaluate the protection offered by the state against ‘international standards’.[160] To do so would require the decision-maker to identify the content of ‘international standards’, and determine whether the law enforcement mechanisms of the state in question complied with them.[161]

The meaning of ‘international standards’ had been considered in the course of argument before the High Court in S152.[162] Reflecting on the inconclusiveness of that debate, and examining a case from the European Court of Human Rights discussed in that context,[163] Heerey J observed that there was no singular authority for the meaning of ‘international standards’. He therefore set out the following approach for decision-makers faced with asylum claims about an absence of effective protection against persecution by non-state agents in the country of origin:

It will be concerned with general conditions of law enforcement in a particular country and how they are likely to apply to the particular claimant. It will necessarily assume that protection cannot be absolute. To take an analogy from the law of negligence, the test of whether a defendant has breached a duty of care owed to a plaintiff involves comparing the conduct of the defendant with that of a hypothetical reasonable person in the defendant’s position.[164]

Accordingly, Heerey J found that the Tribunal had not erred in failing to consider whether Sri Lankan policing standards complied with international standards, since ‘the source and content of [those standards] are completely undefined and could not be defined by counsel before this Court’.[165] On this basis, he declined to follow the decision of Mansfield J in Applicant A99 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs.[166]

Law of the Sea

Whaling – International Convention for the Regulation of Whaling – Exclusive Economic Zone – Australian Antarctic Territory – Australian Whale Sanctuary – Environment Protection and Biodiversity Conservation Act (Cth)

Humane Society International Inc v Kyodo Senpaku Kaisha Ltd

[2004] FCA 1510; (2005) 212 ALR 551

Federal Court of Australia

Allsop J

This matter involved an application seeking declaratory and injunctive relief concerning whaling alleged to have been carried out by the respondent in the exclusive economic zone (EEZ) of the Australian Antarctic Territory in contravention of the Environment Protection and Biodiversity Conservation Act 1999 (Cth). Several directions and orders were issued concerning a future hearing and an opportunity for the Attorney-General to be given an opportunity to make submissions. In a judgment issued pending submission invited from the Attorney-General, several observations were made regarding the relevant international law issues.

One of the central issues was the relationship between the 1946 International Convention for the Regulation of Whaling

[167] and the treaties that concern the Antarctic. In this regard, particular reference was made to the 1991 Madrid Protocol on Environmental Protection to the Antarctic Treaty,[168] which in article 4 deals with the other components of the Antarctic Treaty System. Annex II of the Protocol was also considered, with reference made to article 7 and its provision that nothing in the Annex is to derogate from the rights and obligations of parties to the Whaling Convention.[169] This was interpreted by Allsop J as follows:

Thus, for the purposes of public international law rights and obligations, nothing in Annex II to the Madrid Protocol affects the Whaling Convention. In other words, for public international law purposes, nothing in the Madrid Protocol Annex II is to be taken as derogating from Japan’s right to issue to its nationals with a permit under Article VIII of the Whaling Convention authorising such nationals to kill whales in the Antarctic for the purposes set out in Article VIII of the Whaling Convention.[170]

Reference was made to the provisions of the 1982 United Nations Convention on the Law of the Sea[171] permitting coastal states to proclaim an EEZ,[172] and how under Australian law, an Australian Whale Sanctuary had been created in the EEZ. However, certain exemptions existed under the Environment Protection and Biodiversity Conservation Act and the related Antarctic Treaty (Environment Protection) Act 1980 (Cth) but not in relation to whaling for scientific purposes. Here, Allsop J observed:

This construction may be seen to reflect the separate development in public international law of the protection of whales as part of the marine environment and the regulation of whaling. It may also be seen to reflect the development of Australian municipal law in implementing marine and environmental protection in the Antarctic.[173]

Reference was also made to the impact of the Environment Protection and Biodiversity Conservation Act in the protection of whales within the Australian Whale Sanctuary. This reflected a potential conflict between the Act and the Whaling Convention, which Allsop J noted:

may be seen to conform with a conclusion that whatever the rights in public international law that Japan enjoys under Article VIII of the Whaling Convention, the content of the relevant municipal law can be seen to be such as to prohibit the killing of whales for any purpose within Australian territory, including the Antarctic EEZ.[174]

[∗] Sydney Centre for International and Global Law, Faculty of Law, University of Sydney.

[1] [1956] ATS No 2.

[2] (1968) SDIA No 14.

[3] [1993] ATS No 23.

[4] [2004] FCAFC 202 [142].

[5] [1974] ATS No 2.

[6] [2004] FCAFC 202 [144].

[7] Ibid [146].

[8] Ibid [147].

[9] Ibid [154]-[245].

[10] Ibid [245]-[310].

[11] Gleeson CJ, Gummow, Kirby, Hayne, Heydon JJ; McHugh and Callinan JJ dissenting.

[12] [2004] HCA 43 [257].

[13] Ibid.

[14] Ibid [258].

[15] [2004] HCA 45 [26].

[16] The argument was based upon the Kable principle; see Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51.

[17] Baker v R [2002] A Crim R 417.

[18] The majority judges were Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ. Kirby J was in dissent.

[19] [2004] HCA 45 [13] per Gleeson CJ.

[20] Ibid [66]; Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51.

[21] Ibid.

[22] Ibid [134].

[23] Ibid.

[24] Ibid [140].

[25] Ibid [138]-[139], referring to obligations accepted by Australia under the 1966 International Covenant on Civil and Political Rights, (16 December 1996) 999 UNTS 171; [1980] ATS 23, and in particular arts 6, 7, 9, 14, 15.

[26] [2004] HCA 36 [31].

[27] Above n 25.

[28] Ibid [126].

[29] Ibid [127].

[30] Ibid.

[31] Ibid [128].

[32] Ibid [127].

[33] In particular, arts 7,9,10 of ICCPR.

[34] [2004] HCA 36 [128]-[133].

[35] Gleeson CJ, Gummow and Kirby JJ.

[36] [2004] HCA 37 [21].

[37] Ibid [122] per Gummow J; see also Gleeson CJ at [22], Kirby J at [145].

[38] Ibid [33].

[39] Ibid [226].

[40] Ibid [229], [231]; see also Callinan J at [295].

[41] Ibid [140] per Gummow J.

[42] Ibid [150] per Kirby J.

[43] Ibid [149], [156]-[161].

[44] Ibid [62].

[45] Ibid [65].

[46] Polites v The Commonwealth [1945] HCA 3; (1945) 70 CLR 60.

[47] [2004] HCA 37 [66].

[48] Ibid [68].

[49] Ibid [71].

[50] Ibid [173].

[51] Ibid [175].

[52] Ibid [169]-[70].

[53] Ibid [178].

[54] Ibid [184]-[185].

[55] Ibid [45] per McHugh J; [264]-[269] per Hayne J.

[56] Ibid [135].

[57] Ibid [238]-[239].

[58] S 51(vi) of the Constitution.

[59] Gleeson CJ, McHugh, Gummow and Hayne JJ.

[60] [2004] HCA 44 [45] per Gleeson CJ.

[61] Ibid [113].

[62] Ibid [114]-[116].

[63] Ibid [117].

[64] Ibid [120].

[65] Ibid [122].

[66] Ibid.

[67] Ibid [130].

[68] Ibid [128] with reference to art 14 (7) of the ICCPR.

[69] Ibid [129].

[70] Ibid [132].

[71] [2004] VSC 262 [1].

[72] S 15AA of the Acts Interpretation Act 1901 (Cth).

[73] [2004] VSC 262 [70].

[74] Ibid [72]-[79].

[75] Ibid [108].

[76] Ibid [110].

[77] Ibid [55].

[78] Ibid [54].

[79] [2004] HCA 49 [11] per Gleeson CJ.

[80] Ibid [11] per Gleeson CJ; Kirby J at [196], [201]; see also Hayne J at [221]-[222].

[81] Ibid [201] per Kirby J.

[82] 1951 Convention Relating to the Status of Refugees (1954) 189 UNTS 150; [1954] ATS No 5.

[83] [1991] ATS No 4; [2004] HCA 49 [107] per McHugh J; [199]-[200] per Kirby J.

[84] [2004] HCA 49 [107].

[85] Ibid [108]-[109].

[86] Ibid [110]-[113].

[87] Ibid [114].

[88] Ibid.

[89] Ibid [115].

[90] Ibid [115]-[116].

[91] Ibid [213].

[92] Above n 83.

[93] Being a reference to the decision adopted in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223.

[94] [2004] FCA 875 [59].

[95] Ibid [60].

[96] Ibid [59].

[97] McHugh and Gummow JJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502, 527.

[98] [2004] FCA 875 [80].

[99] Above n 82.

[100] [2004] FCA 875 [89].

[101] Ibid [90].

[102] See Coleman v P [2001] QCA 539.

[103] Gummow, Hayne, McHugh and Kirby JJ.

[104] Above n 25.

[105] [2004] HCA 39 [19].

[106] Ibid [20].

[107] Ibid [21].

[108] Ibid [23].

[109] Ibid [225].

[110] Ibid [240]-[241].

[111] Ibid [242].

[112] Ibid [243].

[113] Ibid.

[114] Ibid.

[115] Ibid [245].

[116] [1978] QB 36, 48.

[117] [2004] HCA 39 [248].

[118] Ibid [249].

[119] Applicant S v Minister for Immigration and Multicultural Affairs [2001] FCA 1411.

[120] Minister for Immigration and Multicultural Affairs v Applicant S [2002] FCAFC 244.

[121] Ibid, Whitlam and Stone JJ; North J dissenting.

[122] [2004] HCA 25 [16].

[123] [1998] FCA 913; (1998) 85 FCR 458, 464.

[124] Ibid.

[125] [2004] HCA 25 [27], emphasis added.

[126] Ibid, [27], [35]; see also [67] per McHugh J, [98] per Callinan J.

[127] Ibid [34].

[128] [2003] HCA 71; (2003) 78 ALJR 180, 190 [55] per McHugh and Kirby JJ, 192 [65] per Gummow and Hayne JJ); [2003] HCA 71; 203 ALR 112, 126, 128.

[129] See Lindgren J’s findings at first instance in Kabir v MIMA [2001] FAC 968, [17].

[130] [2004] HCA 25 [69]; see also [62]-[63].

[131] Ibid [68].

[132] Ibid [69].

[133] Ibid [38], citing Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; (2000) 201 CLR 293, 305 [35], 311-12 [60].

[134] [2004] HCA 25 [42].

[135] Ibid [41].

[136] Ibid [47], citing Tribunal.

[137] Ibid [48].

[138] Ibid [50].

[139] Ibid [103].

[140] Labara v Minister for Immigration and Multicultural Affairs [2001] FCA 652.

[141] [2004] HCA 18 [47].

[142] Ibid [17] per Gleeson CJ, Hayne and Heydon JJ; [50] per McHugh J.

[143] Ibid [18].

[144] Ibid [100] per Kirby J, citing the test established by Lord Hoffmann in R v Immigration Appeal Tribunal, ex parte Shah [1999] UKHL 20; [1999] 2 AC 629, 653 and endorsed by Lord Clyde in Horvath v Sect’y of State for the Home Dept [2000] UKHL 37; [2001] 1 AC 489, 515-16.

[145] [2004] HCA 18 [26] per Gleeson CJ, Hayne and Heydon JJ; see also Kirby J at [115], [117].

[146] Ibid [28].

[147] Ibid [26].

[148] Ibid [74].

[149] Ibid [32].

[150] Ibid [33].

[151] [2000] UKHL 37; [2001] 1 AC 489.

[152] [2004] HCA 18 [59].

[153] Ibid [65] (emphasis added).

[154] Ibid [78].

[155] Ibid [83].

[156] Ibid [107].

[157] Ibid [111].

[158] [2004] HCA 18.

[159] [2004] FCA 1261, [21].

[160] Ibid [18].

[161] Ibid [26].

[162] See ibid [27].

[163] Osman v United Kingdom (1998) 29 EHRR 245, discussed at ibid [28]-[32].

[164] [2004] FCA 1261 [31].

[165] Ibid [34].

[166] [2004] FCA 773.

[167] [1948] ATS No 18.

[168] [1998] ATS No 6.

[169] [2004] FCA 1510 [49].

[170] Ibid [50].

[171] [1994] ATS No 31.

[172] [2004] FCA 1510 [54].

[173] Ibid [57].

[174] Ibid [62]. A final determination was made by Allsop J in 2005, [2005] FCA 664. The matter subsequently went on appeal, [2006] FCAFC 116.

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