International Law in Australian Case Law: A review of with some revision of the fundamentals 1

Transcription

1 International Law in Australian Case Law: A review of with some revision of the fundamentals 1 Contents Construction of Australian law in light of international law CPCF v Minister for Immigration and Border Protection [2015] HCA 1 Approach to statutory interpretation when scheme based upon international conventions and agreements Hird v Chief Executive Officer of the Australian Sports Anti-Doping Authority [2015] FCAFC 7 Essendon Football Club v Chief Executive Officer of the Australian Sports Anti-Doping Authority [2014] FCA 1019 De Akers as a joint foreign representative of Saad Investments Company Limited (in Official Liquidation) v Deputy Commissioner of Taxation [2014] FCAFC 57 Commissioner of Taxation v Macoun [2014] FCAFC 162 SZSVT v Minister for Immigration & Anor [2014] FCCA 768 Scriven v Sargent [2014] QCA 133 Interpreting statutory provisions by reference to international law Christian Youth Camps Limited & Ors v Cobaw Community Health Services Limited & Ors [2014] VSCA 75 Jaffarie v Director General of Security [2014] FCAFC 102 GM Holden Limited v Commissioner of the Anti-Dumping Commission [2014] FCA 708 International law as relevant to the definition of a term or expression Subway Systems v Ireland [2014] VSCA 142 SZU Z v Minister for Immigration & Anor [2014] FCCA 2256 Secretary, Department of Family and Community Services & Prim [2015] FamCA 16 ASADA v 34 Players and One Support Person [2014] VSC 635 Consideration of international law to resolve statutory ambiguity Duckworth & Jamison [2014] FamCA 308 Bateman & Kavan [2014] FCCA 2521 International law as a mandatory relevant consideration Snedden v Minister for Justice for the Commonwealth of Australia [2014] FCAFC 156 Start with the legislative words Plaintiff S v Minister for Immigration and Border Protection [2014] HCA 24 The principle of consistency DPP v Kaba [2014] VSC 52 Tajjour v ew South Wales; Hawthorne v ew South Wales; Forster v ew South Wales [2014] HCA 35 The principle of comity: caution and self-restraint when affecting the exercise of the sovereign powers of a foreign State 1 Stephen Tully, 6 St James Hall Chambers. CLE presentation for NSW Law Society, 3 March

2 Australian Competition and Consumer Commission v Air ew Zealand Limited [2014] FCA 1157 exans SA RCS Paris v Australian Competition and Consumer Commission [2014] FCA 255 Application by the Australian Federal Police ( o.2) [2014] VSC 191 Specific topics: (i) State immunity Li v Zhou [2014] NSWCA 176 Firebird Global Master Fund II Ltd v Republic of auru [2014] NSWCA 360 Firebird Global Master Fund II Ltd v Republic of auru ( o 2) [2014] NSWCA 375 (ii) Human rights Iliafi v The Church of Jesus Christ of Latter-Day Saints Australia [2014] FCAFC 26 WZAP v Minister for Immigration and Border Protection [2014] FCA 947 Dickson v Downer EDI Works Pty Ltd [2014] FCA 1134 Payne & Payne [2014] FCCA 2319 (iii) Sovereignty gurampaa Ltd v Balonne Shire Council & Anor [2014] QSC 146 Lacey v Earle [2014] ACTSC 397 (iv) Sources FTZK v Minister for Immigration and Border Protection [2014] HCA 26 SZSRY v Minister for Immigration & Anor [2013] FCCA 1284 Miscellaneous matters (i) Judicial communications Merrick & Wellington [2014] FamCA 514 (ii) Whether State or Territory legislation imposes consequences for conduct or events committed outside it In the matter of an application for bail by Pikula [2015] ACTSC 3 (iii) Exclusive Economic Zone CMA CGM SA v Ship 'Chou Shan' [2014] FCAFC 90 Other noteworthy points 2

3 Construction of Australian law in light of international law CPCF v Minister for Immigration and Border Protection [2015] HCA 1: Question: whether Australia s obligations under international law limited the scope of the powers under the Maritime Powers Act 2013 (Cth) or affected their construction. Per French CJ at [5]-[21]: Consideration of: ss 72, 74, Maritime Powers Act (Cth); An Indian vessel became unseaworthy and engaged Australia s rescue obligations at international law in respect of its passengers and crew: United Nations Convention on the Law of the Sea (1982) [1994] ATS 31; International Convention on Maritime Search and Rescue; Guidelines developed by the International Maritime Organization; s 181, Navigation Act 2012 (Cth); Non-refoulement obligations under the Refugees Convention, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the International Covenant on Civil and Political Rights; The legal regime applicable to the contiguous zone under the UN Convention on the Law of the Sea and considered in academic commentary. It is necessary in considering UNCLOS and any other relevant international conventions or rules of international law to bear in mind that international law and convention or treaty obligations do not have a direct operation under Australian domestic law. Consideration of UNCLOS directs attention to the Seas and Submerged Lands Act 1973 (Cth), which is part of the statutory background relevant to the enactment of the MPA. Conclusions: Section 7 cannot be elevated to support the plaintiff's contention that powers under the MPA are to be exercised in accordance with international law. Nor is s 7 necessary to support the proposition that the MPA is to be construed in accordance with Australia's international legal obligations. That is true for any statutory provision able to be construed consistently with international law and international legal obligations existing at the time of its enactment: Jumbunna Coal Mine L v Victorian Coal Miners Association per O Connor J. If the terms of a statutory provision are clear, there may be no available interpretation that is consistent with international law. There is no textual basis in s 72(4) itself which would support a construction limiting the power which it confers by reference to Australia's non-refoulement obligations assuming they subsist extra-territorially. There is, however, a broad constraint imposed by s 74 of the MPA which is protective of the safety of persons taken to a place under s 72(4). The constraint imposed by s 74 embraces risks of the kind to which the nonrefoulement obligations under the Refugees Convention and the Convention against Torture are directed. The existence of such risks may therefore amount to a mandatory relevant consideration in the exercise of the power under s 72(4) because they enliven the limit on that power which is imposed by s 74 at the point of discharge in the country to which the person is taken. However, whether a person is entitled to the benefit of non-refoulement obligations in the place to which that person is taken does not of itself determine the question whether that is a safe place within the meaning of s 74. Per Hayne and Bell JJ at [78]-[81], [112], [161]: Consideration of UNCLOS: whether, for the purposes of international law, Article 33 permits the coastal state to take persons on the vessel into its custody or to take command of the vessel or tow it out of the contiguous zone remains controversial. It is 3

4 not necessary or appropriate to attempt to resolve any controversy about the proper construction of Art 33. The Commonwealth submitted that Australia had exclusive jurisdiction over the Commonwealth ship and all persons on it. So much may readily be accepted. It is unnecessary to consider whether the obligations which Australia has assumed under the Refugees Convention and other international instruments are relevant to construing the ambit of the power given by s 72(4). Per Crennan J at [212]-[213], [219]: Consideration of the International Convention on Maritime Search and Rescue: there is inherent tension between the obligations of Australian authorities to assist persons in the contiguous zone on unseaworthy vessels in conditions of distress and danger, the federal legislature s object of preventing contraventions of the Migration Act in the contiguous zone, and the preference of persons like the plaintiff to access nonrefoulement obligations under the Refugees Convention in Australia rather than in another country. The Refugees Convention is a part of the context of the Act. If the s 72(4)(b) power had been invoked to return the plaintiff to Sri Lanka or to take the plaintiff to a place outside the migration zone which was not safe, questions might have arisen about an interpretation of s 72(4)(b) consistent with Australia s obligations under the Refugees Convention. However, no such issues arose on the facts in the special case. Per Kiefel J at [264], [297]-[304]: Consideration of: English authorities and Chu Kheng Lim v Minister for Immigration: the power to exclude or expel even a friendly alien is recognized by international law as an incident of sovereignty over territory. the Replacement Explanatory Memorandum to the Maritime Powers Bill 2012 which acknowledges that s 72(4) may engage Australia s non-refoulement obligations. The Special Case states no fact as to Indian State practice or as to whether obligations of nonrefoulement are accepted by the domestic law of India. In the absence of necessary facts respecting the law of India, all that can be said about Question (1)(a) is that the Special Case does not permit an answer to it. Per Gageler J at [373]-[91]: Conclusions: The exercise of the maritime power conferred by s 72(4) is not conditioned on observance of Australia s obligations under the Refugees Convention, the International Covenant on Civil and Political Rights or the Torture Convention. Nothing in the scheme of the Act supports an affirmative implication of another and more general limitation on the scope of the maritime powers which would make the validity of their exercise conditional on the observance of all applicable international law norms. The international context points rather to wider issues associated with the assertion of Australia's international law rights and compliance with Australia s international law obligations being left to be addressed by the Australian Government from time to time as the exigencies of the occasion might require. The principle that a statute is to be interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with the established rules of international law does not assist. Application of that principle to a statute conferring power on an executive officer to take action outside Australia requires the language of that statute to be read so far as possible as empowering the officer to act in conformity with applicable international law norms, as understood within the international community. The principle gives rise to no presumption that the statute is to be read as 4

5 legislatively constraining the officer to act in conformity with international law norms as those norms might be ascertained, interpreted and then enforced by a domestic court. The Explanatory Memorandum contained no suggestion that compliance with international obligations was to be made a condition of a maritime officer validly exercising a maritime power under the Act. Per Keane J at [459]-[63], [490]-[92], [504]: Conclusions: The power conferred by s 72(4) is not subject to observance of Art 33(1) of the Convention. As a matter of municipal law, the power to "detain and take" a person to a place is simply not limited in the way for which the plaintiff argues. Judicial authority in Australia, the United Kingdom and the United States of America suggests that a state's obligations under the Convention arise only with respect to persons who are within that state's territory. The plaintiff does not accept that this body of authority is correct, but it is unnecessary to come to a conclusion on that point. Whatever the true effect of the Convention may be, the terms of the Migration Act are clear. Australian courts are bound to apply Australian statute law "even if that law should violate a rule of international law". International law does not form part of Australian law until it has been enacted in legislation. In construing an Australian statute, our courts will read "general words... subject to the established rules of international law" unless a contrary intention appears from the statute. In this case, there is no occasion to invoke this principle of statutory construction. The terms of the Act are specific. They leave no doubt as to its operation. Powers exercisable by the Executive government under the common law are not limited by international law obligations not incorporated into domestic law. The provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by an Act of the Commonwealth Parliament. A line has been drawn which limits the normative effect of what are unenacted international obligations upon discretionary decision-making under powers conferred by statute and without specification of those obligations. Such obligations are not mandatory relevant considerations attracting judicial review for jurisdictional error: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam per McHugh and Gummow JJ. A decision to take a detained person to a particular country is likely to involve difficult issues of international relations. It is hardly to be supposed that such a decision would be left to a maritime officer upon hearing where a detainee would like to be taken. Approach to statutory interpretation when scheme based upon international conventions and agreements Hird v Chief Executive Officer of the Australian Sports Anti-Doping Authority [2015] FCAFC 7, [141]-[149], [167]. Contention: The Australian Sports Anti-Doping Authority (ASADA) was required to conduct its investigation independently of a sporting administration body (SAB). The National Anti-Doping (NAD) scheme authorised ASADA to exercise certain powers in order to cooperate with a request from a SAB if the request is reasonably necessary to enforce or give effect to the World Anti-Doping Code and other relevant international anti-doping 5

6 instruments. ASADA must have regard to the World Anti-Doping Code and other relevant international anti-doping instruments. Consideration of: The 1994 General Anti-Doping Convention of the Council of Europe, entered into 16 November 1989, and entered into force for Australia on 1 December 1994 (acceded to on 24 April 1994); International Convention Against Doping In Sport, adopted by the United Nations Educational, Scientific and Cultural Organisation on 19 October 2005, 2419 UNTS 201 (entered into force 1 February 2007); World Anti-Doping Code, adopted by the World Anti-Doping Agency on 5 March 2003 and taking effect on 1 January 2009; Regulation 4 of the Australian Sports Anti-Doping Authority Regulations 2006 prescribed additional relevant international anti-doping instruments, including the International Anti-Doping Arrangement , signed by Australia on 18 April 1996; The fact that the Australian Sports Anti-Doping Authority Act 2006 (Cth), Australian Sports Anti-Doping Authority Regulations 2006 (Cth) and NAD Scheme refer to these international instruments in various ways does not make them part of Australian law. Provisions of an international instrument cannot become part of Australian law without legislation to that effect. The provisions of the ASADA Act, the 2006 Regulations and the NAD Scheme must be construed in their own terms, according to the ordinary principles of construction. These principles permit recourse to international instruments of the presently relevant kind in some circumstances for specific purposes: see the Acts Interpretation Act 1901 (Cth) (Acts Interpretation Act), ss 15AB(1) and (2)(d); Legislative Instruments Act 2003 (Cth), ss 6 and 13(1); Minister for Foreign Affairs and Trade v Magno [1992] FCA 566; (1992) 37 FCR 298 at pet Gummow J. The international instruments may confirm (within the meaning of s 15AB(1)(a) of the Acts Interpretation Act) that the meaning of the relevant provisions of the ASADA Act and the NAD Scheme is the ordinary meaning conveyed by the text of those provisions taking into account [their] context... and the purpose or object : Acts Interpretation Act, s 15AB(1)(a). The international instruments provide no greater assistance because the relevant parts of these instruments are either aspirational rather than normative (AMS v AIF (1999) 199 CLR 160 at 180 per Gleeson CJ, McHugh and Gummow JJ) or too imprecise to give more guidance than this in construing the legislative regime. The relevant international instruments were briefly touched upon to illustrate that, like the provisions of the ASADA Act and the NAD Scheme, they recognise the importance of effective cooperation between anti-doping regulatory agencies and sports organisations in preventing doping in sport. Consideration of international instruments: Preamble; Key obligations. The provisions of the ASADA Act and the NAD Scheme also contemplate close cooperation. Even without reference to the international instruments, the ASADA Act and the NAD Scheme authorised ASADA to conduct an investigation in cooperation with the AFL. The effect of the international instruments is to confirm that this ordinary meaning of the relevant provisions is their intended meaning. The provisions regarding the need for cooperation in these international instruments confirm that the ASADA Act and the NAD Scheme contemplated that ASADA and the SABs would work closely together to combat doping in sport, particularly in ASADA s anti-doping investigations. There is nothing in the legislative 6

7 regime that supports the appellant s contentions. There is no basis in any of the relevant international anti-doping instruments to suppose that a regulatory agency such as ASADA should be solely responsible for investigations into anti-doping matters. Essendon Football Club v Chief Executive Officer of the Australian Sports Anti-Doping Authority [2014] FCA 1019, [268]-[70], [295]-[329]: For legislation which gives effect to international conventions and agreements, Australian principles of statutory construction apply, this not being a situation where the whole text of an international convention or agreement has been incorporated into the domestic law: The relevant law of Australia is found in the Act and in the Regulations under it. It is Australian principles of statutory interpretation which must be applied to the Act and the Regulations. One of those principles is s 15AA(1) of the Acts Interpretation Act 1901 (Cth). Another is s 15AB(2)(d) of that Act. The Convention has not been enacted as part of the law of Australia... Section 36 of the Act is the only section (apart from the interpretation section, s 5) which refers in terms to the Convention. That does not mean that thereby the whole of it is enacted into Australian law...by reason of s 15AB(2)(d) of the Acts Interpretation Act, the Convention may be considered for the purposes described in s 15AB(1). Further, Australian courts will endeavour to adopt a construction of the Act and the Regulations, if that construction is available, which conforms to the Convention. And this Court would seek to adopt, if it were available, a construction of the definition in Art 1A of the Convention that conformed with any generally accepted construction in other countries subscribing to the Convention, as it would with any provision of an international instrument to which Australia is a party and which has been received into its domestic law. The Convention will also be construed by reference to the principles stated in the Vienna Convention on the Law of Treaties (the Vienna Convention )... But despite these respects in which the Convention may be used in construing the Act, it is the words of the Act which govern: Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; (2006) 231 CLR 1 at [34] per Gummow ACJ, Callinan, Heydon and Crennan JJ. The Court must give primacy to the text of the legislation, although context and purpose are important. The context to be considered in these proceedings includes the international context. It may in some instances be necessary and appropriate to consider legislation in its historical context. Consideration of international instruments Preamble objectives Key articles identifies obligations of States Code identifies roles and responsibilities of athletes and other persons Conclusion: The World Code contemplates very close co-operation between the AFL and ASADA. There is general support of the legal validity investigation by ASADA which involves the co-operation of a sporting administration body such as the AFL. These references also support the legality of the disclosure of information by ASADA to the AFL in order to facilitate enforcement of the AFL s disciplinary standards relating to management and governance of anti-doping issues, or the conduct of the investigation in reliance on the AFL s contractual powers of compulsion. There is a general principle of the common law that legislation will be construed, so far as is possible, in accordance with the provisions of international agreements to which it gives effect: Cabal v United Mexican States ( o 3) (2000) [2000] FCA 1204 at [127] per French J. However, it can be immediately observed that the references in the instruments are general in nature and do not direct themselves to the issue in these proceedings. The issues in these 7

8 proceedings must be determined by recourse to the Australian principles of statutory construction. This depends upon an examination of the Act and the NAD Scheme. The complexity of the statutory scheme which imports concepts agreed internationally under the WADA Code does not assist in simplifying the legislative framework: Anti-Doping Rule Violation Panel v XZTT (2013) 214 FCR 40 at [42]. De Akers as a joint foreign representative of Saad Investments Company Limited (in Official Liquidation) v Deputy Commissioner of Taxation [2014] FCAFC 57, [27]-[70]: Company incorporated in Cayman Islands was wound up. The Deputy Commissioner of Taxation sought a taxable capital profit in Australia. Where was the centre of main interests for the purposes of the UNCITRAL Model Law on Cross-Border Insolvency as incorporated into Australian law by the Cross-Border Insolvency Act 2008 (Cth)? What did adequate protection mean under the Model Law? The Model Law, with the modifications in Pt 2 of the CBI Act, has the force of law in Australia: the CBI Act, s 6. Consideration of: Academic commentary, English authorities and law reform proposals about the universalist principles of the Model Law and the rule of equality or hotchpot between creditors; The Model law: preamble, key articles, UNCITRAL publications: guides, reports of working groups; The CBI Act: key sections, Explanatory Memorandum; the principles governing the interpretation of international instruments: Vienna Convention on the Laws of Treaties 1969; Povey v Qantas Airways Ltd [2005] HCA 33; 223 CLR 189 at 202; El Greco (Australia) Pty Ltd v Mediterranean Shipping Co SA [2004] FCAFC 202; 140 FCR 296 at [142]-[144]; BGM v Minister for Immigration and Multicultural Affairs [2006] FCAFC 60; 150 FCR 522 at [156]-[160]. Conclusions: discern the key elements of the Model Law; operative principle needs to conform with the principles underpinning the Model Law; foreign cases upon the Model Law are relevant, but also local cases on pre-existing law to the extent that they are conformable with the operation of the Model Law and its aims and purposes. See also Young, Jr, in the matter of Buccaneer Energy Limited v Buccaneer Energy Limited [2014] FCA 711: Whether centre of main interests in United States; Whether presumption under Article 16(3) Model Law on Cross-Border Insolvency of the United Nations Commission on International Trade Law that the place of registered office is the centre of debtor s main interests had been rebutted. Commissioner of Taxation v Macoun [2014] FCAFC 162 at [10]-[12] per Edmonds and Nicholas JJ: Question: whether a pension from a foreign retirement plan received in years of income when pensioner no longer employed by a specialised agency was exempt from income tax under the Specialised Agencies (Privileges and Immunities) Regulations 1986 (Cth). Consideration: 8

9 The International Organisations (Privileges and Immunities) Act 1963 (Cth) and Regulations incorporate, as part of Australian domestic law, the international law obligations assumed by Australia under certain international conventions, including the Convention on the Privileges and Immunities of Specialized Agencies. The IOPI Act applies to international organisations that are declared by the Regulations to be ones to which the Act applies. The Regulations specify that the IBRD, the organisation that employed the respondent, is a Specialized Agency, and that it is therefore an international organisation to which the IOPI Act applies. SZSVT v Minister for Immigration & Anor [2014] FCCA 768, [33]-[58]: Evidence: Comment by protection visa applicant from Iran at entry interview: It s not one reason it s ongoing oppression... the existence of race, even here there is discrimination, they make fun. the Explanatory Memorandum made clear that the concept of degrading treatment or punishment in the Migration Act 1958 (Cth) was defined by Article 7, ICCPR. Question: was there a failure to consider an integer of an applicant s unarticulated claims, namely differential treatment of Faili Kurds on the basis of race? was racial discrimination inherently degrading such as to attract complementary protection? Issue: whether Article 7 of the ICCPR applied in the context of the definition of degrading treatment and punishment in s 5(1), Migration Act 1958 (Cth). Applicant: Human Rights Committee General Comment Number 20, observations from the European Commission on Human Rights and jurisprudence from the European Court of Human Rights about the equivalent provision in the European Convention on Human Rights (article 3) was relevant to statutory interpretation because it formed part of the context at the time a legislative amendment occurred. Respondent: the exclusion in the s 5(1) definition of degrading treatment or punishment directly incorporated a test under international law Although the test for complementary protection in one sense reflected international law, it was unnecessary for the Court to analyse the application of international treaties by international judicial and quasi-judicial bodies or to determine whether racial discrimination could of itself constitute degrading treatment or punishment. Such jurisprudence could be helpful to the extent, if any, it assisted in construing and informing the text of the relevant provisions of the Act. legislation intended to implement Australia s obligations under international law should be construed in light of such obligations. However, the construction of the definition of degrading treatment and punishment could not be approached as if one was directly applying the ICCPR or the ECHR. It was not relevant to consider in the abstract, or solely by reference to such jurisprudence, whether racial discrimination could, of itself, amount to degrading treatment. the construction of the relevant statutory provisions must begin and end with the text construed in light of the context including the purpose of the provision the complementary protection regime contained its own definitions and tests that differed from those referred to in international law treaties and commentaries, albeit that such tests reflected international law. the Tribunal was required to apply the exhaustive statutory definition 9

10 The purpose for referring to extrinsic material such as the Explanatory Memorandum has to be legitimate: s.15ab, Acts Interpretation Act. The Court: at [78], [82]: the propositions of international law taken from the decision of the European Commission of Human Rights was not drawn to the tribunal s attention. it was assumed that as a matter of construction of the s.5(1) definition in some circumstances discrimination on the grounds of race could be inherently degrading and capable of amounting to extreme humiliation which is unreasonable within the definition of degrading treatment or punishment. it was unnecessary to resolve the construction of the definition of degrading treatment and punishment or the application of international law or jurisprudence of international judicial or quasi-judicial bodies. as the material before the Tribunal did not squarely raise a claim in relation to the discrimination the Applicant claimed he would experience if he were to return to Iran, the Tribunal was not obliged to consider it. Scriven v Sargent [2014] QCA 133 at [17]: Consideration of Spencer v The Commonwealth [2010] HCA 28: Mr Spencer says, with the benefit of land use change, the Commonwealth has achieved a very significant saving in costs that would be incurred in otherwise meeting its target under the Kyoto Protocol. He says that the only means of meeting its commitment, in the absence of actually reducing emissions in that way, would be by purchasing offsets on the international market. Mr Spencer asserts that he has suffered a corresponding loss as a consequence of the 1997 Vegetation Act and the 2003 Vegetation Act. The obligation owed under international law to the other parties to the Framework Convention and the Kyoto Protocol is not an obligation that could be enforced against the Commonwealth under the law of Australia or of any State. The Commonwealth accepts that it derives a benefit in relation to its international obligations by reason of restrictions imposed on the clearing of native vegetation and that to achieve that benefit by other means could incur substantial expense. As there is an arguable case that there has been an acquisition, it is not necessary to express a final view on that question. Mr Spencer has established that there is a serious question to be tried as to whether he has suffered such sufficient detriment as a consequence of the 1997 Vegetation Act and the 2003 Vegetation Act as might constitute a taking or acquisition. Interpreting statutory provisions by reference to international law Christian Youth Camps Limited & Ors v Cobaw Community Health Services Limited & Ors [2014] VSCA 75, [191]-[194]: Facts: whether a refusal to provide accommodation was discriminatory on the basis of sexual orientation or was necessary to comply with the religious beliefs of accommodation provider Issues: (i) whether there is a special rule of statutory interpretation which applies where an exemption for religious freedom exists under the Equal Opportunity Act 1995 (Vic) for the prohibition against discrimination; (ii) the relevance of provisions of human rights jurisprudence and articles from the European Convention on Human Rights. Courts should favour a construction of legislation which accords with Australia s obligations in international law: Minister for Immigration and Ethnic Affairs v Teoh per Mason CJ and Deane J. Consider: 10

11 Applying the principle depends upon there being an ambiguity in the statutory provision; it is the Commonwealth, not the States, which assumes international obligation application to state law is weakened. the principle gives way to a construction reached through ordinary means Assuming that Australia s obligations under the Covenant were relevant, all that could be said is that the provisions of the Equal Opportunity Act 1995 (Vic) are in conformity, and not in conflict, with those obligations. The principle that a statute is to be interpreted and applied so that it is in conformity and not in conflict with established rules of international law is a canon of statutory construction which applies only where a statutory regime and the text permits such an interpretation. Where the terms of the text are clear and the legislative intent plain from the regime of the Act, international human rights norms, and comparative judicial decisions interpreting and applying them in quite a different setting, have no role in interpreting the provision or in its application to the facts: at [554]. Jaffarie v Director General of Security [2014] FCAFC 102, [53]-[66]: Facts: An adverse security assessment issued by ASIO on the basis that an individual poses a serious threat to Australia by reason of people smuggling activities. Question: (i) should a confined meaning be given to the definition of security in s 4(aa) of the Australian Security Intelligence Organisation Act; (ii) was the phrase Australia s territorial and border integrity constrained by an accepted meaning of the phrase in international law such that a serious threat is limited to acts that threaten to attack a State or to subject it to division, secession, occupation or annexation. Applicant: people smuggling fell short of what constituted a serious threat to the protection of Australia s territorial and border integrity. Consideration of academic commentary concerning statehood. Conclusions: unnecessary to resolve any question as to accepted meaning of the phrase territorial integrity under international law; the term security and the phrase the protection of Australia s territorial and border integrity are to be given their natural and ordinary meaning of the words employed; a confined meaning is not supported by: o the natural and ordinary meaning of the phrase employed in paragraph (aa); or o any of the Constitutional heads of power relied upon to support the legislation; there is no constraint within s 51(vi) (the power to make laws with respect to the naval and military defence of the Commonwealth and of the several States) which confine the competence of the Commonwealth legislature to define the term security in a manner consistent with the confined interpretation sought to be distilled from international law. There is no reason why a serious threat to territorial and border integrity is confined to an attack which threatens the oneness of Australia. A reading of s 51(vi) which confines the legislative competence of the Commonwealth Legislature to resisting an attack upon the borders of Australia is a reading which is not self-evidently correct and one which is inconsistent with the manner in which that power has been construed to-date; the power to make laws with respect to immigration and emigration (s 51(xxvii)) would clearly extend to steps to prevent or monitor 11

12 people smuggling and to protect Australia s territorial and border integrity from serious threats ; the external affairs power (s 51(xxix)) is wide enough to cover places, persons, matters or things and is unqualified; A confined construction of paragraph (aa) could frustrate ASIO s ability to properly monitor and assess threats to Australia s national interests Special leave refused in Jaffarie v Director General of Security and Ors [2015] HCATrans 13 (13 February 2015). Followed in MYVC and Director-General of Security and Anor [2014] AATA 511 at [49]- [52]: Proceeded on the basis that the protection of Australia s territorial and border integrity encompassed the activity of people smuggling. The Tribunal is satisfied that organised people smuggling could pose a serious threat to Australia s border integrity and therefore falls with the definition of security in s 4 of the ASIO Act. GM Holden Limited v Commissioner of the Anti-Dumping Commission [2014] FCA 708 at [12] cited comments from Pilkington (Australia) Ltd v Minister for Justice and Customs (2002) 127 FCR 92 at [25]-[28] in relation to Part XVB, Customs Act 1901 (Cth). The particular agreement negotiated at the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) to which the explanatory memorandum made reference was the Implementation Agreement. The Implementation Agreement created international obligations upon Australia. Legislation will be interpreted and applied, as far as its language permits, so that it is in conformity, and not in conflict, with Australia's international obligations. Where a statute is ambiguous (the conception of ambiguity not being viewed narrowly) the court should favour a construction consistent with the international instrument and the obligations which it imposes over another construction: Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287; Kartinyeri v Commonwealth (1998) 195 CLR 337 at [97]. The ascertainment of the meaning of, and obligations within, an international instrument (here the Implementation Agreement) 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: Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 230 (per Brennan CJ, agreeing with McHugh J), at 240 (per Dawson J), at (per McHugh J), at 277 (per Gummow J, also agreeing with McHugh J); Morrison v Peacock (2002) 210 CLR 274 at 279 [16]; 192 ALR 173 at 176 [16] (per Gleeson CJ, McHugh, Gummow, Kirby and Hayne JJ). 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: Stag Line Ltd v Foscolo Mango & Co Ltd [1932] AC 328 at 350; James Buchanan & Co Ltd v Babco Forwarding and Shipping (UK) Ltd [1978] AC 141 at 152; Fothergill v Monarch Airlines Ltd [1980] UKHL 6; [1981] AC 251 at , 285, 293; Shipping Corporation of India Ltd v Gamlen Chemical Co (Australasia) Pty Ltd [1980] HCA 51; (1980) 147 CLR 142 at 159; Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 at ; Applicant A at 255; and Morrison v Peacock at 279 [16]; 176 [16]. 12

13 The need for a broad or liberal construction is reinforced by the matters which can be taken into account under Art 31 of the Vienna Convention on the Law of Treaties done at Vienna on 23 May 1969, in accordance with which Australian courts interpret treaties: Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168 at 265; Commonwealth v Tasmania (Tasmanian Dam Case) [1983] HCA 21; (1983) 158 CLR 1 at 93, 177; and Applicant A at The word treaty is defined in the Vienna Convention as an international agreement concluded between States in written form and governed by international law, whether in one or more instruments and whatever its particular designation. This covers the Implementation Agreement. International law as relevant to the definition of a term or expression Subway Systems v Ireland [2014] VSCA 142: Question: whether the Victorian Civil and Administrative Tribunal was obliged to refer parties to arbitration because it is a court before which an action is brought for the purposes of s 8, Commercial Arbitration Act 2011 (Vic). The Commercial Arbitration Act 2011 (Vic) was intended to be as uniform as possible with Model Law. Per Maxwell P at [29], [39]: Consideration of: the UNCITRAL adopted the Model Law on International Commercial Arbitration Explanatory Note from the UNCITRAL Secretariat. Analytical Commentary prepared by the UNCITRAL Secretariat A law giving effect to an international agreement attracts special rules of interpretation. There is now a substantial body of Australian jurisprudence on this subject, from which the following principles may be discerned: (a) certainty and uniformity of application are of paramount importance; (b) to that end, the rules generally applicable to the interpretation of domestic statutes give way to the rules applicable to the interpretation of treaties; (c) because the international agreement is addressed to a much wider and more varied judicial audience than an act of a domestic legislature, the interpretation of the domestic enactment should be unconstrained by technical rules of interpretation and should instead be informed by broad principles of general acceptation ; and (d) recourse may be had to the working documents of the international body by which, or through which, the agreed rules were developed. Conclusion: In interpreting s 8 of the Victorian Act, very great weight must be given to the intention of the drafters of art 8 of the Model Law and to the importance of uniformity of interpretation. Per Beach JA at [91]: In my view, the word court in s 8 includes VCAT. I am fortified in this conclusion by the reasons for judgment of Maxwell P. Consideration of provisions of the Commercial Arbitration Act 2011 (Vic) to determine the ordinary meaning of the word. Per Kyrou AJA at [94], [115]: the question whether VCAT is a court for the purposes of s 8 of the Act must be answered by the application of the ordinary rules of statutory interpretation as expanded by the Act. having regard to the language of s 8 of the Act, the context in which the word court appears in the Act, the key purpose and paramount object of the Act, the wording of the Model Law and the extrinsic materials relating to the Model Law, VCAT is not a court for the purposes of the Act. 13

14 SZU Z v Minister for Immigration & Anor [2014] FCCA 2256 at [54]-[55]: Section 5, Migration Act 1958 (Cth) provides that the definition of receiving country must be determined solely by reference to the laws of that country. Thus, if the applicant does not put forward evidence of foreign law, then the Tribunal may be unable to reach a state of satisfaction on the question. It is not the case that the Tribunal is obliged to seek out for itself and consider the content of the law of each and every state to which an applicant happens to mention a connection. The presumption in private international law proceedings, that foreign law is to be presumed to be the same as Australian law in the absence of evidence, in my view has no relevance to the present proceedings. To apply that presumption would be to ignore the word solely in the definition of receiving country. Secretary, Department of Family and Community Services & Prim [2015] FamCA 16 at [21]: The expression habitual residence, and its cognate forms, have long been used in international conventions, particularly conventions associated with the work of the Hague Conference on Private International Law. Although the concept of habitual residence was used in a Hague Convention (on civil procedure) as long ago as 1896, and has since been frequently used in other Hague Conventions, none of those instruments has sought to define the term. Rather, as one author has put it, the expression has repeatedly been presented as a notion of fact rather than law, as something to which no technical legal definition is attached so that judges from any legal system can address themselves directly to the facts. Thus the Explanatory Report commenting on the Abduction Convention said that the notion of habitual residence [is] a well-established concept in the Hague Conference, which regards it as a question of pure fact, differing in that respect from domicile. ASADA v 34 Players and One Support Person [2014] VSC 635 at [12]: Consideration of commentary on the definition of commercial, a footnote to the Model Law and Californian legislation. At the outset of drafting the Model Law it was held that a provision binding the term commercial to national laws was not desirable. It was feared that this wording could be interpreted as dealing with the highly sensitive issue of state immunity, which was not intended to be touched by the Model Law. Consideration of international law to resolve statutory ambiguity Duckworth & Jamison [2014] FamCA 308, [39]-[60]. Issue: are orders sought by a mother to divide the property of the parties to the marriage, and for interim spouse maintenance proceedings concerning the divorce or separation of the parties? Yes. Question: what does separation mean in s111cd(1)(c)(v), Family Law Act 1975 (Cth)? Principles of interpretation: Ordinarily...the legal meaning...will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the cannons of construction may require the words of a legislative provision to be read in a way that does not correspond with literal or grammatical meaning: Project Blue Sky Inc. v Australian Broadcasting Authority, per McHugh, Gummow, Kirby and Hayne JJ. Whilst it is clear that whilst the primary task of a court construing Australian law giving effect to international treaty obligations is to enquire what the Act provides, rather than what 14

15 the treaty it relates to provides, in cases where domestic statutes specifically refer to or adopt international instruments: The first step is to ascertain, with precision, what the Australian law is, that is to say what and how much an international instrument Australian law requires to be implemented...the subsequent step is the construction of so much only of the instrument, and any qualifications or modifications of it, as Australian law requires. Consideration of: rules of treaty interpretation: Articles 31, 32, Vienna Convention on the Law of Treaties; commentaries on the 1996 Child Protection Convention to determine the meaning of legal separation in Article 10; the objects of the 1996 Convention; overseas jurisdictions which use the phrase divorce, legal separation and annulment : although the meaning of the terms divorce and annulment are identical to the meaning of those terms as used in Australia, the notion of legal separation in those countries does not appear to have any Australian equivalent. Conclusion: The words legal separation where they appear in Article 10 encompass not only the process by which a formal judicial order for legal separation is made, but also the attendant and ancillary orders which may be associated with, or arise in consequence of, that exercise of jurisdiction. Does separation in s111cd(1)(c)(v) mean legal separation as used in Article 10? the use of the word separation in legislation which was plainly and advertently intending to give effect to Australia s obligations under the 1996 Convention is problematic because it may potentially go beyond enacting Australia s obligations under the 1996 Convention, or alternatively, not achieve or precisely replicate Australia s obligations under that Convention; little assistance derived from extrinsic material eg Explanatory Memorandum. The phrase proceedings concerning the divorce or separation of the child s parents or the annulment of their marriage was intended to, and does, capture all proceedings of a matrimonial character between married spouses or de facto partners, arising out of the termination of their relationship because: The 1996 Convention was intended to potentially have broad application to a wide range of legal systems, concepts and doctrines, including common law and civil law systems, and therefore broad concepts were likely to be employed both in its Articles, and therefore necessarily in Australian domestic legislation giving effect to it; Many of the actual or prospective Convention States have an established usage of the terms divorce legal separation and annulment which, when used conjointly, are intended to describe all of the means by which a marriage or like relationship can be brought to an end, and when deploying the terms in one phrase, intend to describe the full panoply of proceedings associated with the termination of marriage, civil union or a de facto relationship by whatever means; The terms as used in Division 4 of Part XIIIAA, Family Law Act are intended to apply not only to Australian Family Law Act proceedings, but also to proceedings in other contracting States, which may employ quite different concepts and processes in relation to the termination of marriage or like relationships. Bateman & Kavan [2014] FCCA 2521 at [28], [89]-[90]: Submissions of the Australian Human Rights Commission: 15

16 ambiguity in the Child Support (Assessment) Act 1989 (Cth) can be resolved by adopting an interpretation of parent in the CSA Act that is consistent with Australian s international law obligations under the Convention on the Rights of the Child (CRC); o this principle assists in minimising the risk of legislation inadvertently causing Australia to breach international law. Any breach of international law occasioned by an Act of Parliament ought to be the result of a deliberate decision by Parliament. To this end, where a construction that is consistent with international law is open, that construction is to be preferred over a construction that is inconsistent with international law. legislative provisions that are ambiguous are to be interpreted by reference to the presumption that Parliament did not intend to violate Australia s international obligations; the requirement of ambiguity has been interpreted broadly: Teoh per Mason CJ and Deane J; consideration of articles from CRC; Contentions: ambiguity about the scope of parent under the CSA Act should be resolved in favour of an interpretation (which appears open on an ordinary reading of s 29) that would allow a person recognised as a parent under the Family Law Act to also be a parent for child support purposes under the CSA Act. such an interpretation would promote the human rights of children born as a result of artificial conception procedures because it would promote a child s right under article 27(4) of the CRC to recover maintenance from people otherwise legally recognised as being their parents. This would be in the children s best interests and would promote their right to an adequate standard of living. Conclusions: The submissions of the Australian Human Rights Commission are accepted in their totality. What is abundantly clear from the various provisions of the International Convention on the Rights of the Child is that this young child has rights. Indeed, children born into this world, irrespective of how that may have occurred, have equal and universal rights. The child s rights include the right to know his parentage socially, psychologically, emotionally, medically and financially. International law as a mandatory relevant consideration Snedden v Minister for Justice for the Commonwealth of Australia [2014] FCAFC 156, at [145]-[167] (Middleton and Wigney JJ) Question: was the Minister obliged to consider Australia s international obligations under the Third Geneva Convention in exercising power under s 22(2), Extradition Act 1988 (Cth)? No, international law was not a relevant mandatory consideration attracting judicial review for jurisdictional error. The factors a decision-maker is bound to consider in making a decision are determined by construction of the statute conferring the power or discretion. Section 22(3) expressly states the considerations to be taken into account. Whilst Australia s international obligations was a matter that the Minister could choose to take into account in considering Mr Snedden s case, he was not obliged to. If the Minister chose to take it into account, it did not become a mandatory consideration. Any error about Australia s international obligations having regard to Article 129 of the Third Geneva Convention will not be a jurisdictional error. It did not involve or result in the 16