Russia’s failed bid for a seat on the Human Rights Council and what it means for Australia’s campaign for 2018 – Harry Aitken

Australia is campaigning for a three-year term on the United Nations Human Rights Council (HRC), commencing in 2018. While Australia’s candidacy will not be considered until next year, the Government will be looking closely at the outcome of this year’s ballot, in which States were elected for the 2017 – 2019 term. On 28 October 2016, the General Assembly nominated 15 States to the HRC by secret ballot. In a first for a permanent member of the Security Council, Russia’s bid for re-election was unsuccessful. Russia’s failure has been attributed to its conduct in Syria, with one diplomat commenting ‘[t]hey bomb a hospital one day, they run for the Human Rights Council the next. And they wonder why they missed the cut’. The issue for Australia, which is facing ongoing criticism of its treatment of asylum seekers on Manus Island and in Nauru, is the extent to which a State’s human rights record can frustrate its chances of election to the HRC.

This post will first consider the voting procedures of the HRC, followed by commentary on what Russia’s failed bid might mean for Australia’s 2018 campaign.

 

The Human Rights Council

The HRC is of fairly recent origin. It was brought to life in 2006 by General Assembly Resolution 60/251 and was given responsibility for ‘promoting universal respect for the protection of all human rights and fundamental freedoms for all, without distinction of any kind and in a fair and equal manner’. The HRC is the successor to the United Nations’ Commission on Human Rights and has new functions, including responsibility for a universal periodic review of each State’s compliance with its human rights obligations. There are 47 seats on the HRC, which are divided between the five official UN regions in the following way: Africa (13 seats); Asia (13 seats); Latin America and the Caribbean (8 seats); Western Europe and Other (7 seats); Eastern Europe (6 seats). Australia is part of the Western Europe and Other group, which also inlcudes the US, Canada and Israel. Russia is part of the Eastern Europe group. One third of the HRC is up for election each year and members serve three-year terms.

An outside observer would be forgiven for assuming that only States with unblemished human rights records would be fit to sit on the HRC. Most legal systems abide by the idea that one criminal is not fit to judge another, and so individuals convicted of serious crimes are precluded from appointment to judicial office. However, this logic does not apply to the HRC. States that have failed to meet their own human rights obligations are appointed to judge the compliance of other States with the same obligations. This is ironic, but it is also a realpolitik of the institution. There are no 47 States with perfect human rights records. There are also no absolute rules on membership.

Resolution 60/251 requires members of the General Assembly to ‘take into account the contribution of candidates to the promotion and protection of human rights’ when voting for HRC candidates. Yet it does not preclude members from voting in favour of States that have violated their human rights obligations. The Resolution requires members of the HRC to ‘uphold the highest standards in the promotion and protection of human rights’. But this does not prevent a member from abusing a human right. The words ‘highest standards’ suggest that conduct is to be measured against the practice of other States rather than the rules in human rights treaties. The Resolution empowers the General Assembly by a two-thirds majority to suspend the rights of membership of a member of the HRC if the member ‘commits gross and systematic violations of human rights’. Yet this measure is hard to deploy, because it requires a super majority. It also has a high threshold: the word ‘and’ dictates that it cannot be triggered by a single gross abuse or systemic minor abuses. Finally, it has a suspensive rather than a terminative effect on membership. The gaps in the rules leave room for a General Assembly member to elect a candidate by reference to political as well as legal standards. This means that strategic alliances, political favours and diplomatic clout all play some part in the election of candidates.

Does Russia’s failure in this year’s election suggest there is a limit to this? Does it reveal that there might be a point at which a State’s conduct is so egregious that the idea of nominating it to the HRC becomes untenable, even if there are political circumstances that would otherwise sway the General Assembly to vote for it? Before answering these questions, it is necessary to consider the 2016 vote in more detail.

 

Russia’s bid

The General Assembly nominated Hungary and Croatia to the HRC as the two representatives of the Eastern European group for the 2017 – 2019 term. They received 144 and 114 votes respectively. Russia narrowly missed out, receiving 112 votes. This may still seem like a lot of votes, but it represents a significant reduction from the previous election in 2013 in which Russia received 176 votes. The previous vote was held on 12 November 2013, which was before Russia invaded parts of Ukraine and annexed Crimea in 2014, and intervened in the Syrian Civil War in 2015. It also follows a significant lobbying effort against Russia’s candidacy by human rights groups. This included a letter to the General Assembly, signed by 87 prominent individuals and NGOs, urging members to ‘carefully consider whether Russia’s Syria abuses are compatible with the principles and aims of the world’s principal inter-governmental human rights body’. It is worth observing that Saudi Arabia, despite drawing wide criticism for its intervention in Yemen, was elected to the HRC. But that is likely due to the fact that it ran uncontested in the Asia-Pacific group; there were four seats available and only four contenders.

Russia is not the first State whose position on a human rights body has been jeopardised by its failure to adhere to international rules. In 2011, the General Assembly suspended Libya’s membership of the HRC over concerns about Muammar Al-Qadhafi’s violent crackdown on anti-Government protestors. And in 2001, the US was voted off the Commission for Human Rights (including by some of its allies) over its failure to support UN institutions and various international rules.

Diplomats have labelled the rejection of Russia’s bid for the HRC ‘historic’, as it suggests that candidates’ human rights records play an important role in General Assembly voting behaviour. Thus, powerful States, routinely elected to international bodies, are not immune from this. Notwithstanding this, the success of Saudi Arabia shows that other factors, like the extent of competition with other candidates for the HRC, will play a role. Moreover, the continued appointment of China and the US, who by no means have unblemished human rights records, suggests that the threshold for preclusion is high.

Australia’s campaign

Australia’s nomination to the HRC is far from assured. It will not be in the same position as Saudi Arabia as there are more contenders than there are places. Spain and France will also be campaigning for a seat for the Western European and Others group, but only two spots are open for the 2018 – 2020 term. Those States are likely to garner strong support from fellow EU members.

Russia’s failure suggests that Australia’s human rights record will be an important factor in the election. Australia’s treatment of asylum seekers has attracted significant global attention, including in Australia’s own universal periodic review in 2015. Australia has also been recently accused of breaching its international obligations with respect to offshore detention centers by the UN Special Rapporteur on Torture and Amnesty International. Australia’s campaign focuses on its human rights successes in other areas – like abolition of the death penalty – but these may not mitigate its high profile failures in other spaces. Moreover, its new plan to prevent boat arrivals from ever obtaining any type of Australian visa is unlikely to improve its image.

As recent history has shown, States with poor human rights records are habitually voted onto the HRC. But Russia’s failure is a heartening reminder that, at least to some extent, a State’s compliance with its human rights obligations is a factor in how General Assembly members will vote. This fact, along with strong competition for seats, should give Australia cause for concern for next year’s election. If Australia is unsuccessful, it would be a set-back in the short term. But it would also create a new pressure point for reform by demonstrating that the way that we treat those at home will affect our influence abroad.

 

Harry Aitken is the former Editor-in-Chief of the ILA Reporter. The views expressed in this article are solely his own.

How are the right to food and customary law linked? An Australian and South African comparison – Anna Bulman

Prior to colonisation, African peoples and Australian Aboriginal and Torres Strait Islander peoples lived in close connection with the land and environment, and governed themselves according to their own complex systems of law. With the colonies came completely different legal systems that were imposed onto the captured land, and which failed to properly recognise the existing structures.

Read More

Philip Morris v Australia award released: Tribunal decides that Philip Morris’ claim constitutes an abuse of rights – Jack Williams

On 16 May 2016 the Permanent Court of Arbitration released a redacted version of the Tribunal’s award on Jurisdiction and Admissibility (“Award”) in the investor-State arbitration dispute between Philip Morris Asia Limited (“Philip Morris”) (part of the Philip Morris group) and the Commonwealth of Australia.

The arbitration concerned the Tobacco Plain Packaging Act 2011, which was passed by the Australian Parliament on 21 November 2011 (and became law following Royal Assent on 1 December 2011). On 21 November 2011 Philip Morris served Australia with a formal Notice of Arbitration that initiated a lengthy international arbitration proceeding over Australia’s tobacco plain packaging laws. On 17 December 2015 the Tribunal issued a unanimous decision in Australia’s favour, but the award could not be released until confidential information was redacted.

In its award the Tribunal held that it was precluded from exercising jurisdiction over the tobacco plain packaging dispute because Philip Morris’ initiation of the arbitration constituted an ‘abuse of rights’. This was so, the Tribunal held, because Philip Morris had restructured its business at a time when there was a reasonable prospect that the dispute would materialise and it did this for the principal, if not sole, purpose of initiating arbitration proceedings against Australia over its tobacco plain packaging laws under the 1993 bilateral investment treaty between Australia and Hong Kong. The Tribunal was unconvinced by Philip Morris’ argument that other business and tax advantages were the principle drivers behind the restructure (Award, paras 582 and 584).

Interestingly, the Tribunal held that the test for whether a corporate restructure will constitute an abuse of rights is if an investor restructures its business to take advantage of treaty protection at a time when a specific dispute is foreseeable. The Tribunal held that ‘a dispute is foreseeable when there is a reasonable prospect…that a measure which may give rise to a treaty claim will materialise’ (Award, para 554). This can be contrasted with another leading award on the abuse of rights doctrine, Pac Rim v El Salvador, where the Tribunal held that an abuse of rights will only be established where restructuring takes place at a time when a specific dispute can be foreseen ‘as a very high probability and not merely as a possible controversy’ (Award, para 554). Accordingly this latest award applies a lower threshold test than that in the Pac Rim award for what constitutes an abusive restructure.

In conclusion this award provides authority for the proposition that multinational companies may restructure their business to take general advantage of potential treaty protections. However, if the corporate restructuring occurs at a time when there is a reasonable prospect that a specific dispute will materialise, the abuse of rights doctrine may preclude the investor from taking advantage of any applicable treaty protections with respect to that specific dispute.

Philip Morris sought to either have the tobacco plain packaging laws withdrawn or not applied to their investments or, in the alternative, to be awarded at least US$4.16 billion in damages from the Australian Government (Award, para 89).

The next and final stage in the proceedings is for the Tribunal to decide on the allocation of costs associated with the arbitration (Award, para 590).

Jack Williams is a Legal Officer at the Australian Attorney-General’s Department and spent three years working on the Australian Government’s legal defence of tobacco plain packaging in the arbitration that is the focus of this article and in the World Trade Organization. The views expressed in this article are the author’s own and do not necessarily represent the views of the Australian Government.

Australia-China relations: A lawyer’s perspective — David Douglas

Recently, the Australia-China Youth Association (ACYA) hosted Australia-China Emerging Leaders’ Summits (ACELS) in Shanghai and Sydney respectively, which brought together many prominent youth delegates from the two nations. Legal practice in the Asia-Pacific region was a strong focus. Amongst the delegates and networking participants, there were a number of legal practitioners and law students from both Australia and the People’s Republic of China. Additionally, interesting conclusions were reached regarding the prevalence of legal issues for cross-border commercial activities between the nations.

Foremost, government and business leaders from the two countries attended ACELS. The consistent message coming across was one that all lawyers will be familiar with — the complexity of navigating regulatory regimes between Australia and China. Despite an overall decrease in regulation (a result of the China-Australia Free Trade Agreement and similar initiatives), the primary challenges facing businesses that aim to have bilateral operations still appear to be legal requirements of compliance with regulatory systems and effective communication with relevant regulators. Without knowledge of the precise regulatory limitations for a business’ operations in a jurisdiction, it is difficult for companies to achieve commercial certainty. It is imperative to understand the existing law and its practical application. Attendees highlighted that an absence of this knowledge acts as a ‘legal handbrake’ on prospective commercial operations.

An Australian company, whose operations in China are about 1/50 the size of their presence in Australia, provided the following example. Despite this overwhelming difference in size, it must complete double the number of reports in China as in Australia for regulatory compliance,. Evidently, the complexity of regulatory requirements places substantial burdens on the company, whose operations in China are not large. For the majority of foreign companies operating in China, this appears to be a shared experience — the inability to obtain commercial certainty can hamper their investment options.

Importantly however, Chinese companies looking to invest in Australia have faced similar difficulties. Many large-scale proposed investments appear before the Foreign Investment Review Board, or are so politically-charged that the project’s future becomes uncertain, such as Shanghai Pengxin’s involvement in a bid for the Kidman pastoral empire (see for example this ABC article). Similarly, the recent approval of the bid by Chinese company Landbridge to operate the Port of Darwin has been highly controversial and subject to intense public scrutiny (see for example this ABC article).

These shared experiences at ACELS helped delegates to realise the high demand for cross-border commercial legal practice. Many commercial law firms specialise in advising foreign clients on the local regulatory environment, which presents an opportunity to the next generation of emerging commercial lawyers. They will need to be equipped with fluid skillsets, that enable them to not only advise clients on their home jurisdiction, but to collaborate with colleagues overseas in order to provide seamless advice that gives clients a holistic appraisal of regulatory conditions in each jurisdiction and the interplay between them. Following a string of newly signed free trade agreements between Australia and our major Asian trading partners in China, South Korea and Japan, much larger numbers of companies and investors will be exposed to the legal and regulatory difficulties associated with cross-border business. Naturally, this will lead to an increase in the demand for legal expertise in dealing with these issues.

David Douglas, President of the Australia-China Youth Association and graduate lawyer at a leading international law firm.

Setting the Boundaries in the Timor Sea: The Prospects of Renewed Negotiations between Australia and East Timor – Esther Pearson

The issue of maritime boundaries in the Timor Sea is once again live following a request from East Timor’s Prime Minister, Rui Araugj, to Prime Minister Malcolm Turnbull that the leaders meet to discuss a permanent maritime boundary. According to Dr Araujo, the existing arrangements governing the exploitation of gas and oil resources in the Timor Sea are not consistent with East Timor’s entitlements under international law. Mr Turnbull has offered to hold ‘frank and open’ discussions about the border, while the Shadow Minister for Foreign Affairs, Tanya Plibersek, has said that the Australian Labor Party, if successful at the Federal election, would negotiate in ‘good faith’ and would submit the matter to international arbitration if negotiations were to fail. This article discusses the background to the dispute and the current arrangements between Australia and East Timor, as well as the possible outcome of any arbitration.

Background and Current Arrangements

In 1972, Australia and Indonesia entered an agreement on maritime boundaries in the Timor Sea, with the final boundary being divided into two sections separated by a gap, in recognition of the existence of what was, at the time, Portuguese Timor. The gap became known as the ‘Timor Gap’, and the ‘Timor Gap Zone of Cooperation’ was established between Australia and Indonesia. On 20 May 2002, the date of East Timorese independence, Australia and East Timor entered into the ‘Timor Sea Treaty’ (‘TST’), which established a Joint Petroleum Development Area (‘JPDA’) over the central part of the Zone of Cooperation. The southern boundary of the JPDA representing the median line between Australia and East Timor. Under Article 2 of the TST, the issue of maritime boundaries was set aside without prejudice to the States’ future rights to negotiate a permanent boundary. It was agreed that East Timor would receive 90% of the revenue from the exploitation of the gas and oil deposits in the JPDA and Australia would receive 10%.

On 6 March 2003, the Sunrise International Unitisation Agreement (‘Sunrise IUA’) was signed between Australia and East Timor that unitised the fields that straddled the eastern side of the JPDA into the ‘Greater Sunrise’ field. The Sunrise IUA deemed 20.1% of the field to lie within the JPDA, meaning that, as East Timor was to receive 90% of the revenue under the TST, it would receive 18.1% of the revenue from the Greater Sunrise field. East Timor considered this arrangement to be unacceptable and refused to ratify the agreement.

Negotiations concerning the exploitation of the Greater Sunrise field resumed in 2004, eventuating in the signing of the Treaty on Certain Maritime Arrangements in the Timor Sea (‘CMATS’) on 12 January 2006. Article 2 of CMATS provides that the treaty is without prejudice (inter alia) to the States’ legal position regarding maritime boundaries, while Article 12 defers each States’ boundary claims for up to 50 years. Under Article 5, Australia and East Timor are to share the revenue from the exploitation of the field equally, despite that around 80% of the field lies outside the JPDA and within Australia’s continental shelf.

Legal Context

The key legal instrument governing the law of the sea is the United Nations Convention on the Law of the Sea (‘UNCLOS’). Articles 56 and 57 of UNCLOS allow States to declare an Exclusive Economic Zone (‘EEZ’) of up to 200 nautical miles (‘nm’), in which the State has sovereign rights to explore, exploit, converse and manage natural resources in the seabed, subsoil and water column. Articles 76 and 77 entitle States to a continental shelf that extends to the outer edge of the continental margin, or to a distance of 200 nm from the territorial sea baseline, in which the State has sovereign rights to explore and exploit the seabed and subsoil.

In the case of States with opposite coasts less than 400 nm apart, it is necessary for the States to agree, or for an independent body to decide, on the delimitation of the States’ maritime boundaries. Article 74 of UNCLOS relevantly provides (inter alia) as follows:

  1. ‘The delimitation of the exclusive economic zone between States with opposite or adjacent coasts shall be effected by agreement on the basis of international law, as referred to in Article 38 of the State of the International Court of Justice, in order to achieve an equitable solution.
  2. If no agreement can be reached within a reasonable period of time, the States concerned shall resort to the procedures provided for in Part XV.

Article 83 of UNCLOS addresses the delimitation of the continental shelf and is substantially in the same wording as Article 74.

The Current Situation

East Timor asserts that the north/south boundary between Australia and East Timor should be determined on the basis of equidistance. Given that the southern boundary of the JPDA represents the median line between the States, this would effectively bring the entirety of the JPDA within East Timor’s EEZ. East Timor also wants to shift the eastern and western laterals (the sides of the JPDA) further in each direction. This would bring a greater proportion of the Greater Sunrise field within the JPDA.

Australia, on the other hand, has traditionally argued that the delimitation of continental shelves in the Timor Sea should reflect the ‘natural prolongation’ of each States’ land territory under the sea. This would lead to the formation of two separate continental shelves separated by the Timor Trough, with Australia’s continental shelf extending significantly further than that of East Timor. Australia also refutes East Timor’s claims to the east and west of the JPDA. These opposing attitudes are likely to make it difficult for an agreement to be reached through negotiation.

Articles 74(2) and 83(2) of UNCLOS provide that if no agreement can be reached through negotiation, the States should resort to the procedures enshrined in Part XV. Under Part XV, each State that accedes to or ratifies UNCLOS is to choose whether any dispute will be submitted to the International Tribunal for the Law of the Sea (‘ITLOS’), the International Court of Justice (‘ICJ’) or an arbitral tribunal. On 21 March 2002, in submitting to the jurisdiction of ITLOS and the ICJ, Australia declared that it did not accept any of the dispute resolution procedures in the case of maritime boundary disputes. On 25 March 2002, Australia made a reservation under Article 36(2) of the Statute of the International Court of Justice as to the jurisdiction of the ICJ to resolve disputes over maritime boundaries.

Possible Outcome of Arbitration

This leaves East Timor with the possibility of submitting the matter to international arbitration, should the Australian government be willing. While the arbitrator/s would not be bound by the jurisprudence of ITLOS and the ICJ, the principles established by these bodies are likely to have some influence on the outcome. Despite the finding of the ICJ in North Sea Continental Shelf (Federal Republic of Germany/Netherlands) that natural prolongation should be a significant factor guiding the delimitation of the continental shelf, more recently, the concept of equidistance has been given primacy (see, in particular, Continental Shelf (Libyan Arab Jamahiriya/Malta)).

In its judgment in Maritime Delimitation in the Black Sea (Romania v Ukraine), the ICJ developed a three-step approach to the delimitation of States’ boundaries with opposite coasts. Firstly, a provisional median line is drawn between the coastal States. Secondly, any factors that require an adjustment to the provisional line to achieve an equitable result are considered. Finally, to ensure the result is equitable, the ratio between the States’ coastal lengths and maritime areas, with reference to the adjustment line, are compared. As there are no obvious factors requiring an adjustment to the provisional median line between Australia and East Timor, it is reasonable to expect any arbitral tribunal to find in favour of an equidistant north/south boundary.

In terms of the eastern and western JPDA laterals, an opinion prepared by three public international law specialists, Vaughan Lowe, Christopher Carleton and Christopher Ward, considers that the laterals should move further in each direction. According to the opinion, the western lateral proceeds from the incorrect point on East Timor, and, should the lateral proceed from the correct point, the line would move somewhat to the west. In addition, the eastern lateral gives disproportionate effect to the western Indonesian island of Leti. This means that all points on the lateral are equidistant between East Timor and Leti, resulting in the eastern boundary being closer to East Timor. If half or three-quarters effect were given to Leti, consistent with ICJ jurisprudence (see Continental Shelf (Tunisia/Libyan Arab Jamahiriya), the eastern lateral would move significantly to the east, placing most, or all, of the Greater Sunrise field with East Timor’s EEZ. This also points towards an arbitral tribunal finding in favour of East Timor.

Conclusion

The issue of maritime boundaries in the Timor Sea is the cause of considerable tension between Australia and East Timor. The foregoing analysis suggests that East Timor’s Prime Minister may, in fact, be correct to say that the existing arrangements do not reflect East Timor’s entitlements under international law. With this in mind, the outcome of the upcoming Federal election may bring about a significant change in the relationship between the two Asia-Pacific neighbours.

Esther Pearson is Assistant Editor of the ILA Reporter.

Case Analysis – Plaintiff M68/2015 v Minister for Immigration and Border Protection – Esther Pearson

Introduction

The High Court of Australia delivered its judgment in Plaintiff M68/2015 v Minister for Immigration and Border Protection on 3 February 2016. The primary issues raised in the case related to whether the plaintiff’s detention at Nauru was authorised by a valid law of the Commonwealth, insofar as it was a valid exercise of executive power under section 61 of the Constitution of Australia. However, the case also raised questions of private international law in relation to the laws and Constitution of Nauru. This article will focus on these questions.

Background

The plaintiff was a Bangladeshi national who arrived in Australia as an ‘unauthorised maritime arrival’ (UMA) under s 5AA of the Migration Act 1958 (Cth) (the Act). She was detained and taken to Nauru on 22 January 2014 pending the resolution of her claim for refugee status pursuant to s 198AD(2) of the Act.

Upon arrival in Nauru, the plaintiff was granted a Regional Processing Centre visa (RPC visa). Pursuant to regulation 9(6)(a) of the Immigration Regulations 2013 (Nauru) (the Regulations), the plaintiff’s RPC visa specified that the plaintiff must reside at the Nauru Regional Processing Centre. As the plaintiff was a UMA taken to Nauru under section 198AD of the Act, the plaintiff was a ‘protected person’ under the Asylum Seekers (Regional Processing Centre) Act 2012 (Nauru) (RPC Act). Under section 18(1) of the RPC Act, a protected person was not to leave the Centre without permission, and any protected person who attempted to do so committed an offence.

The Commonwealth submitted that its participation in the plaintiff’s detention was authorised by section 198AHA of the Act. That section applies when the Commonwealth enters into an arrangement in relation to the regional processing functions of a country, and provides that the Commonwealth may take any action in relation to the arrangement. Section 198AHA(5) defines ‘regional processing functions’ to include ‘the implementation of any law… by a country in connection with the role of the country as a regional processing country’.

Questions of law

The parties agreed on a number of questions for the consideration of the Court. The questions of present relevance are:

Question 3

Were the laws by which the plaintiff was detained on Nauru contrary to the Constitution of Nauru?

Question 7

If the plaintiff were returned to Nauru, would her detention there be contrary to [a]rt 5(1) of the Constitution of Nauru?

Article 5(1) of the Constitution of Nauru provides relevantly:

No person shall be deprived of his personal liberty, except as authorised by law in any of the following cases:

(h)        for the purpose of preventing his unlawful entry into Nauru, or for the purpose of  effecting his expulsion, extradition or other lawful removal from Nauru.

The plaintiff submitted that the RPC Act did not fall within the terms of article 5(1)(h) of the Constitution of Nauru because the detention was not ‘for the purpose of effecting… expulsion… or other lawful removal from Nauru’. The plaintiff further submitted that, for this reason, section 198AHA of the Act did not authorise the Commonwealth’s participation in her detention, as the regional processing functions of a country only include the implementation of laws that were lawful under the constitution of the regional processing country, thereby meaning section 198AHA did not apply to the arrangement between the Commonwealth and Nauru.

Conclusions

As identified by French CJ, Kiefel and Nettle JJ (at [48]), the questions and submissions raised the question of whether an Australian court should express a view as to the constitutionality of foreign legislation. French CJ, Kiefel and Nettle JJ — with whom Bell J agreed (at [102]) — found that while there may be some cases where an Australian court must make conclusions as to the legality of another country’s conduct under its own laws, such cases are rare and this was not one. Their Honours found that the plaintiff’s case concerned the Commonwealth’s conduct, and whether this was authorised by a law of the Commonwealth. Consequently, the Commonwealth’s defence did not require any consideration of the validity of the laws of Nauru (at [48]–[49]). Gageler and Gordon JJ came to similar conclusions (see [187] and [414] respectively).

Keane J considered in greater depth the questions and submissions put in relation to the laws of Nauru, and the construction of section 198AHA of the Act. His Honour quoted a passage of the majority of the High Court in Attorney-General (United Kingdom) v Heinemann Publishers Australia Pty Ltd (1988) 165 CLR 30 (the ‘Spycatcher case’), adopting the dictum of Fuller CJ in Underhill v Hernandez 168 US 250 (1897) (‘Underhill’) that, generally, ‘courts will not adjudicate upon the validity of acts and transactions of a foreign sovereign State within that sovereign’s own territory’. In the passage, their Honours also state that the principle rests partly on ‘international comity and expediency’ and is a principle of ‘judicial restraint or abstention’, ‘inherent in the very nature of the judicial process’.

His Honour then turned to consider the more recent Moti v The Queen (2011) 254 CLR 456 (‘Moti’). In that case, an accused was deported from the Solomon Islands to Australia. Commonwealth officials supplied the necessary travel documents knowing that the documents would be used to deport the accused in circumstances that were unlawful under the laws of the Solomon Islands. It was necessary for the High Court to determine whether the deportation was unlawful in considering whether to stay the prosecution of the charges against the accused on the ground of abuse of process. His Honour distinguished the present case on the ground that it was not necessary to determine the validity of the Nauruan legislation to resolve the interpretation of section 198AHA of the Act (at [257]).

Analysis

The principle articulated by their Honours in the Spycatcher case is commonly referred to as the ‘act of state’ doctrine, although that term has been criticised as being ‘vague and unsatisfactory’: Potter v Broken Hill Company Pty Ltd [1906] HCA 88 (O’Connor J) (‘Potter’). It is clear that an act of state encompasses the passage of legislation: Lucasfilm Ltd v Ainsworth [2011] UKSC 39 at [87]. The present case affirms this.

The High Court’s consideration of the doctrine in the present case sits squarely with examinations of principle following the Underhill decision. In Underhill, Fuller CJ expressed the principle in absolute and universal terms. However, it has since been recognised that courts may consider the legality of foreign governments in exceptional circumstances. In earlier decisions, such as Potter, the High Court expressed the exception in terms of whether the legality of the acts of the foreign country arose incidentally to the main issue(s) in the action. In more recent decisions, such as Moti, the exception has been expressed in terms of whether the court needed to come to a conclusion as to the legality of the conduct as a necessary step towards the ultimate decision (at [53]). French CJ, Kiefel and Nettle JJ adopted this expression of the exception in the present case (at [48]).

The result of the High Court’s decision is that the lawfulness of the Nauruan legislation remains to be tested. It should be noted that, however, following the hearing of the matter, regulation 9(6)(a) of the Regulations, which restricted the movement of RPC visa holders, was repealed, and an amended section 18C was inserted into the RPC Act establishing an ‘open centre’ allowing asylum seekers to move freely in and out of the centre 24 hours a day, seven days a week. These changes may be critical to any future analysis of the validity of the legislation.

Esther Pearson is Assistant Editor of the ILA Reporter.

Racial discrimination in Australia: (lack of) protection for Muslims — Jennifer Tridgell

Introduction

2015 brought an escalation of Islamophobia across the Western world. In the United States, Donald Trump called for creation of a Muslim register and restrictions upon Muslims entering the country. Worryingly, his inflammatory, and profoundly racist remarks resonated with many Americans, arguably by ‘merely indulging a [widespread] sentiment’ (Vox, 2015).

Meanwhile, Australian Muslims faced persistent abuse and discrimination, which intensified after the siege in Sydney’s Martin Place (AHRC, 2015). This is consistent with reports from the national Islamophobia Register. But 2015 also marked the 40th anniversary of the Racial Discrimination Act 1975 (Cth) (RDA).

In the words of Australian Race Discrimination Commissioner, Dr Tim Soutphommasane, this historic Act is not about punishing racism, but rather ‘protecting people against prejudice’. The RDA does not shelter Muslims, but only offers them ‘limited protection’, as a national consultation report by the Australian Human Rights Commission revealed. So why does an Act supposed to protect the most vulnerable groups in Australia from vilification, seem to fail?

A Matter of Definitions

For barrister Kate Eastman SC, the answer lies in delineating between the blurred definitions of race and religion. Whilst the RDA makes it unlawful to discriminate against a person on the basis of race, colour, descent, national origin or ethnic origin, it does not extend to religion (section 9). Yet since 1995, Jewish Australians have been comprehensively protected for sharing a common ‘ethnic origin’ (see for example the decision in Jones v Scully). This article calls for similar protection to be extended to Muslim Australians.

Uncertainty around scope of the term ‘ethnic origin’ creates difficulties for Australian courts, especially without clear definitions to guide statutory interpretation. Neither the RDA nor the treaty it incorporates, the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), have defined the meaning of each ground for discrimination, such as ‘race’ or ‘ethnic origin’.

As Eastman notes, the ICERD Committee has argued that these terms are flexible and should be interpreted in light of contemporary circumstances. It asserted that religion is intertwined with issues of ethnic and racial discrimination, and expanded the scope of ICERD to encompass discrimination against Muslims, Jews and Sikhs, amongst others.

However, in Maloney v R the High Court of Australia rejected an approach to interpreting the RDA as a living or organic instrument. Rather than consider recent developments in international law, which could spark ‘informal modification’ (French CJ at [23]), the Court treated the RDA as an instrument of static meaning.

International Jurisprudence

Australia has largely followed two major cases for defining ethno-religious grounds of discrimination. First is the New Zealand decision of King-Ansell v Police, where the defendant was charged with vilification of Jewish people under New Zealand’s equivalent of the RDA. The Court treated ‘ethnic origin’ as a fluid concept, a ‘historically determined social identity’ (Richardson J at [543]) that stems from a common historical origin, and shared beliefs, customs and traditions.

Secondly, in Mandla v Dowell Lee the House of Lords ruled that a school was guilty of discrimination by refusing entry to a Sikh boy, who insisted on wearing his turban and not cutting his hair in compliance with school uniform standards. The majority favoured two different approaches. Lord Templeman took an essentialist stance to define Sikhs as an ethno-religious group based on ‘common colour and a common physique’. On the other hand, Lord Fraser treated ‘ethnic origins’ as a contemporary concept and social construct that evolves over time. By contrast, Australia’s treatment of ethno-religious identity has been inconsistent.

A Domestic Perspective

In New South Wales, courts have taken a narrow reading of ‘ethno-religious origin’ under the Anti-Discrimination Act 1977 (NSW). In Khan v Commissioner, Department of Corrective Services, an Indian Muslim prisoner claimed that refusal to provide halal food was discrimination based on his ethno-religious origin. His case was rejected, despite the fact that his Jewish inmates could request kosher food. Moreover, the Attorney-General of NSW expressly stated that the Act must recognise the link between race and religion, thereby deliberately clarifying that ‘ethno-religious groups such as Jews, Muslims, and Sikhs have access to racial vilification and discrimination provisions’. Despite the shortcomings of this approach, this case has not been overturned and remains the leading decision on ethno-religious discrimination in NSW.

To address this, the RDA should be amended to ensure greater protection for Muslims. Currently in Australia, it is sufficient that a person’s ‘ethnic origin’ is one of the factors in discrimination (RDA, section 18B). Yet where it is the sole factor, the victim does not have protection available. Additionally, attempts to distinguish between an individual’s religion and ethnic origins are often arbitrary and confusing. By either amending the RDA or adopting a national multicultural Act, as Professor Andrew Jakubowicz proposes, we can offer more comprehensive protection for vulnerable groups from ethno-religious discrimination in Australia.

Regardless of which approach is favoured, our government should consult all members of the community, including Muslims, on how to strength legislative protection. Finally, implementation is most effective when law is widely known and respected. Community education programs can raise awareness of the RDA, whilst also shaping a culture where racial discrimination is widely denounced.

Conclusion

Upon the enactment of the RDA, Prime Minister Gough Whitlam declared that it was a historic Act, which would ‘entrench new attitudes of tolerance and understanding in the hearts and minds of the people’. Over 40 years later, these sentiments are just as important today, especially as Islamophobia continues to sweep the Western world. If Australia is truly a land of the ‘fair go’, then Muslims clearly should have statutory protection from racial discrimination and vilification.

Jennifer Tridgell is a final year law student at Macquarie University and Assistant Editor of the ILA Reporter. She has previously worked at the Australian Human Rights Commission in the Race Discrimination team. This article is written in her personal capacity.