The High Court of Australia, torture, and ‘oblique intention’ – Stephen Ranieri

(“High Court of Australia” by Malcolm Tredinnick/Flickr. Adapted from original.)

The absolute prohibition of torture, both as a matter of treaty law and international customary law, has been described as one of the ‘few issues on which international legal opinion is [most] clear’ and its transgressors rightfully identified as the ‘common enemies of mankind’. In SZTAL and SZTGM v Minister for Immigration and Border Protection [2017] HCA 34 (SZTAL), the High Court of Australia recently had cause to consider the CAT, ICCPR, and other international legal materials regarding torture, in relation to Australia’s ‘complementary protection regime’ established through the Migration Act 1958 (Cth) (Migration Act). 

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2016 – Year in Review

The past year has been incredibly tumultuous, having reset the international stage and delivering incredibly unexpected political outcomes. From an international legal perspective, while events such as Brexit, Donald Trump’s election, and the crisis in Syria have undoubtedly raised important legal questions and will likely change international law in the future, there have been numerous other significant developments.

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


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.


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.


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]).


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.

ILA Event – Sydney – International Law and Sea Level Rise, 9 March 2016

On 9 March 2016, the Andrew & Renata Kaldor Centre for International Refugee Law, the International Law Association (Australian Branch) and the UNSW Environmental Law Group will co-convene an expert panel discussion on International Law and Sea Level Rise: Human Rights, Displacement, Maritime Zones and Biodiversity.

The panel of expert speakers include:

  • Associate Professor Stephen Humphreys, LSE: international human rights law;
  • Professor Jane McAdam, UNSW: international law and forced migration; and
  • Professor Rosemary Rayfuse, UNSW: international environmental law and law of the sea.

The event will be chaired by Christopher Ward SC, President of the Australian Branch of the International Law Association.

The event will start at 1 pm and finish at 2 pm and will be held at the Law Staff Common Room, Level 2, Law Building UNSW (please see reception on Level 2 for directions).

The event is free. To register pleaseclick here.

Children Forgotten in the Forgotten Children Report – Nina Gibson

The Australian Human Rights Commission’s (AHRC) Forgotten Children Report (Report) was tabled in Parliament on 11 February 2015. Whilst the Report has been the subject of significant political controversy, there has been limited discussion or analysis of its content.

This article seeks to highlight two important findings in the Report. First, Australia’s indefinite detention of asylum-seeking children and their families reveals a tension between our domestic legislation and our obligations to protect children under international law. Secondly, the indefinite or prolonged length of the detention of children gives rise to a multitude of harms, compounding the gravity of Australia’s violations of its international obligations.

The findings of the Report are startling. At the time of its publication, Australia held 800 children in mandatory closed immigration detention (including 186 children detained on Nauru) for indefinite periods, ‘with no pathway to protection or settlement’. Over 100 babies had been born in detention, with no experience of life outside detention centres. As at March 2014, children and their parents had been detained for an average of 413 days, with some children detained for over 27 months due to their parents having had adverse security assessments. In 2013, over 200 physical and sexual assaults involving children were reported in immigration detention centres. During a 15-month period from January 2013 to March 2014, 128 children in detention engaged in self-harm, whilst 34 per cent of detained children had developed serious mental health disorders. The Report also establishes clear correlations between the length for which children are detained and the deterioration of their mental health and development.

The detention of children under Australian law

Australia is the only country in the world that mandates the closed and indefinite detention of asylum-seeking children as a first action. Section 189 of the Migration Act 1958 (Cth) (Act) requires an officer to detain an ‘unlawful non-citizen’ in the ‘migration zone’. Under section 5AA of the Act, mandatory detention extends to ‘unauthorised maritime arrivals’ (which includes children) as well as the children of unauthorised maritime arrivals subsequently born in detention.

The Report notes that countries including Greece, Malaysia and the US detain children for immigration matters, however, unlike Australia, ‘detention … is not mandatory and does not occur as a matter of force’. Whilst Australia was one of the first states to sign and ratify the United Nations Convention on the Rights of the Child (CRC) in 1990, the CRC has not been incorporated into Australian law by legislation.

The High Court held in Al-Kateb vs Godwin that it is not contrary to Australian law to keep a person in immigration detention, even if the removal of that person from Australia would not occur in the foreseeable future. As a result of the decision, the Department of Immigration and Border Protection insists that ‘there is no time limit on the lawfulness of detention under Australian law’. Nonetheless, when considering the indefinite detention of children, the High Court confirmed in Teoh’s Case that, when making decisions that affect children, government officials should take into account the rights guaranteed by the CRC. As discussed below, the rights afforded to children under the CRC have been superseded by the indefinite nature of their detention.

Breaches of the United Nations Convention on the Rights of the Child

The Report argues that the detention of asylum-seeking children in Australia violates the basic protection provided to children under international law.

Pursuant to article 37(b) of the CRC, the detention of children is ‘only as a measure of last resort’ and must not be arbitrary. The detention of children will not be ‘arbitrary’ where it is ‘necessary and reasonable’ in all the circumstances of the child’s claims for asylum. Further, the detention of the child must be a proportionate means to achieving a legitimate aim.

The AHRC finds that, in the majority of cases, the detention of children has been arbitrary within the meaning of article 37(b). This is due to children being detained as a first action and held in detention irrespective of whether the child or their family poses an unacceptable risk to the Australian community. The finding underlines a serious failure to give effect to international human rights law in Australia’s domestic legislation, namely the above-mentioned sections of the Act.

The AHRC also determines that the indefinite detention of children undermines the ‘best interests’ principle enshrined in the CRC. Article 3(1) of the CRC stipulates that ‘in all actions concerning children … the best interests of the child shall be a primary consideration’. The Report provides a breakdown of the psychological, developmental and physical effects of immigration detention on children of varying ages and argues that current immigration law fails to address the particular vulnerabilities of those children. Further, it states that indefinite detention fails to consider the individual circumstances of children and does not address the best interests of the child as a primary consideration.

Importantly, the AHRC finds that the adverse effects of detention, such as instances of self-harm and abuse, mental health disorders and developmental delays have almost always been exacerbated by the length at which children are detained. Accordingly, the longer a child is held in detention the more serious the violation of their rights under the CRC becomes.

In the eyes of this author, it is uncontroversial that children are subject to specific vulnerabilities and, as such, should be afforded special protection under both domestic and international law.

And yet, the disparity between Australia’s domestic legislation and its international obligations, as well as the indefinite nature of immigration detention, illustrates that both sides of Australian politics have failed to recognise the vulnerabilities of asylum-seeker children and protect them from the multitude of harms arising from immigration detention.

Nina Gibson works in public international policy, having held positions at UN Women, the Australian Institute of International Affairs and the Extraordinary Chambers of the Courts of Cambodia. Nina holds a Bachelor of International Relations and a Masters of Law, Governance and Development, both from the ANU. The views in this article are solely her own.

Release of Human Rights Watch World Report 2015

On 29 January 2015, Human Rights Watch (HRW) – the international human rights advocacy organisation – released the 25th edition of its World Report (Report). The Report reviews notable human rights issues across 90 states and territories.

The Report’s chapter on Australia covers issues ranging from asylum seekers and refugees to disability rights to freedom of expression. The chapter recognises Australia’s record on human rights, calling up our ‘solid record of protecting civil and political rights, with robust institutions and a vibrant press and civil society that act as a check on government power’.

However, it then goes on to state:

The government’s failure to respect international standards protecting asylum seekers and refugees, however, continues to take a heavy human toll and undermines Australia’s ability to call for stronger human rights protections abroad.

This post canvasses the human rights issues raised in the Report, with a focus on those issues which are not heavily reported by Australian media.

Asylum Seekers and Refugees

Australia’s asylum and refugee policies receive the heaviest criticism. The Report observes that:

  • asylum claims are not processed in a fair, transparent, or expedient manner, with significant cost to detainees’ physical and mental harm;
  • gay asylum seekers in detention on Manus Island fear persecution, sexual assault and resettlement in Papua New Guinea, where homosexual relationships are criminalised;
  • 50 refugees have had adverse security assessments made against them and are consequently subject to indefinite detention; and
  • 3,500 asylum seekers have been processed via a screening system which permits no access to legal representation or right to appeal.

Indigenous People’s Rights

The Report notes the controversial establishment of an indigenous advisory council, whilst defunding the pre-existing Congress of Australia’s First Peoples. It also raises the continued disproportionate representation of indigenous Australians in prison and disparate life expectancy and infant mortality rates. Positively, the Report notes the steps that are being taken towards a referendum on indigenous recognition in the Constitution and the improvements in some health and socioeconomic indicators.

Disability Rights

The Report welcomes the continued rollout of the National Disability Insurance Scheme but criticises changes to the Disability Support Pension which will result in people with disabilities receiving appreciably lower welfare payments. As forty-five percent of people with a disability live near or below the poverty line, the cuts will have an adverse impact on the disability sufferers’ quality of life.

Sexual Orientation and Gender Identity

The section notes that Australian law restricts marriage to heterosexual relationships, despite increasing public support for same-sex marriage.

Freedom of Expression

According to HRW, threats to rights of freedom of expression in Australia include:

  • the revision of funding agreements with community legal centres to prohibit centres from using Commonwealth funds for law reform or advocacy;
  • counterterrorism laws targeting home-grown terrorism – including new offences for ‘advocating terrorism’; and
  • new offences for journalists who disclose information relating to Australian ‘special intelligence operations’.

Foreign Policy

HRW condemns Australia’s foreign aid cuts of more than $600 million and appears to imply that foreign aid priorities are self-serving.

It also raises the government’s muted criticism of countries with histories of rights-abuses – including Sri Lanka and Cambodia – to win support for its refugee policies from those countries. For example, in 2014 it elected not to co-sponsor a UN Human Rights Council (Council) resolution establishing an international inquiry into human rights abuses in Sri Lanka as it had done in previous years. This is despite Australia’s bid for a seat on the Council in 2018.