Hack Backs: How Indigenous Australian laws of war can apply in cyberspace  

The Laws of Yesterday’s Wars was launched at the Australian National University on 13 April 2022 by Air Commodore Patrick Keane AM CSC, Professor Tim McCormack FAAL and Samuel White. In part one of this series, Samuel White outlines how Indigenous Australian laws of wars can be relevant to a modern type of warfare – cyber. 

Ambellin Kwaymullina once wrote ‘Australia is a continent, not a country.’ As Kwaymullina writes, First Nations in Australia had international laws for trade and migration. The customs and norms for operating in this interconnected continent were shattered with British colonisation, with the fragments only starting to be combined. However, these are not lessons from the past. Modern military strategists are beginning to grabble with an issue of interconnected nations – an issue that was the everyday life of First Nations: that is, the spectrum of competition.  

War, in the Roman, and later European concept, relates to ‘the contention between two or more States, through their armed forces, for the purpose of overpowering each other, and imposing such conditions of peace as the victor pleases’. This threshold has arguably lowered, requiring merely a use of force to trigger some sort of international law prohibition. Importantly, international law views force as physical. Accordingly, under existing, Westernised international law, economic or informational pressure do not meet these thresholds. These so-called ‘sub use of force’ operations neatly exploit the Western thresholds of ‘war’ and ‘peace’

This has led to a shift in the military lexicon to a ‘new’ form of warfare – the spectrum of competition. It consists of concurrent states of affairs that parties can fluidly move between: co-operation, competition and conflict. Although new to Western warfare, this situation was commonplace within Indigenous Australia: co-operation over land management, competition over valuable resources, and conflict over trespass. 

Whilst the predating of competition to war has been recognised elsewhere, military strategists seem to have been constrained by their Eurocentric thinking. Why not look elsewhere? Perhaps it is because First Nations warfare has been ‘one of the most disputed topics of social anthropology for decades. Peter Dennis wrote that ‘the egalitarian, non-cohesive nature’ of Indigenous Australian society precluded complex military strategy. Meanwhile, military historian Jeffrey Grey concluded Indigenous Australian peoples could not organize anything akin to a battle.  

The dearth of academic commentary is probably a combination of self-censorship and simplistic/racist writings of early British observers. Archaeological evidence supports academic findings, indicating the existence of complex and large-scale military engagements within hunter-gatherer societies. There is also clear support for customs that mitigated the excesses of war, from which lessons can be drawn to inform modern operations including in cyber. 

Lesson 1: Sovereignty to be protected  

Academic commentary around sovereignty has begun to consider whether it is a rule (to be enforced) or a principle (to be abided by). First Nations demonstrate the importance of sovereignty being a rule. Early British settlers often remarked on the strength by which First Nations resisted territorial encroachment. In protecting their Country, but not others, First Nations ‘affirmed their rights as proprietors’, according to Henry Reynolds. In this respect, recent experiences in Ukraine by Russian aggression has demonstrated the need to maintain an ability to enforce sovereign claims, lest they be encroached.  

First Nations enforced their sovereignty through military power. All members of society were required to uphold custom and law, and to protect Country. So too, with direction from the Australian Government, could Australians be educated in their critical role of maintaining sovereignty in an era of cyber? This would constitute a rather novel, but not impractical, form of social resilience. Promoting social resilience in the modern, connected world has been the focus of many States: focus in primary and secondary education, as occurs in Sweden; through truth verification bodies, as occurs in Argentina; or through the use of military personnel to report suspected interference operations and to write comments, as occurs in Israel. Why not, then, look to the lessons of our First Nations? 

This is not to say that Australia need be belligerent. As I have argued elsewhere, within the cyber domain Australia has clear constitutional authority to take pro-active steps to defend itself and to punish those who interfere with its domain reservee (the central functions of government). There are, of course, political and strategic reasons we may not wish to; but the option remains.   

Lesson 2: Avoid escalation  

The second lesson can be applied to the Department of Defence’s current mission: to shape, deter, respond. A logical issue with deterrence theory is that it can escalate very quickly. The trick is to operate in a manner that avoids this. 

Payback was a notion that underwrote Indigenous warfare. It related to legitimacy and justice – junkarti (literally ‘straight’ in Lardil). It provided an exact, tit for tat reciprocity for past actions. As Tyson Yunkaporta explains, the rules of engagement were that cuts could only be inflicted on the arms, back or shoulders. But these cuts, at the end of sparring, had to be replicated on one another. This meant that no one could walk away holding a grudge. 

Junkarti ensured equity and helped curb the violence and brutality of warfare, as few persons cared to endure more than a few blows or cuts in payback for what they had inflicted – let alone be killed for killing an opponent. Acting in a de-escalatory manner was not to say that violence or aggression was prohibited. Yet Indigenous cultural norms promoted training to disarm, rather than to kill. This has been mirrored by other cultural restrictions in societies that practice warfare across a spectrum (rather than a binary construct) – such as the Mexica.  

From a cyber-domain perspective, this could extend to focusing on tactics, techniques and procedures that allow for temporary knockouts rather than permanent damage. In many ways, distributed denial of service attacks allows for just this. These attacks utilise extended networks of computers to flood a targeted system, providing temporary knockout effects. If the correct nodes in the computer network are chosen, it can be the cyber equivalent of a nerve centre knockout similar to what the First Nations peoples trained for.

Lesson 3: Empathetic relations 

Escalation, in a global era of deterrence theory, is a state of affairs to be avoided. Again, recent experiences in Ukraine and the sabre rattling (the making of military threats as a form of deterrence) Russia demonstrate that there is incentive to be able to effectively operate within an environment that has the potential for risk. One solution, then, is to act in a manner that Australia is happy to have reciprocated. This is particularly relevant for a nation dedicated to a rules-based global order.   

The first sign of blood was often sufficient for the blood-causing side to declare victory: as one observer noted, ‘in tribal fights as soon as a black on either side was wounded, his side began a retreat‘. A shout would then go around the battlefield and all would temporarily quit fighting to discuss the implications of the casualty’s fall. This would often take the battle off into a new direction. There were specific shouts passed around a battlefield if anyone had fallen (often ‘blood’ – indicating a wounding). This enabled hostilities to halt quickly.  

Within the cyber domain, the application of this is clear. It may take time, but in an interconnected world where cyber offensives are easier than cyber defence, we must be prepared to facilitate norms such as those that existed in First Nations Australia.  

The result of this complex series of laws of war allowed for the spectrum of co-operation, competition and conflict to be easily navigated. Except for long-standing feuds, which could fester for decades, Indigenous Australian conflicts typically ended on a note of complete forgiveness and goodwill. A police officer who witnessed a battle in far north Queensland was astounded at the wholehearted manner in which animosities were dropped: 

I could not refrain from wondering at the entire absence of any ill-feeling or animosity among these people. They had been only a few minutes previously emulating each other in inflicting severe wounds and hurts, nay, even in slaughtering their enemies, and yet, here they were laughing, chatting, and feasting, with every manifestation of goodwill and reciprocal friendship. That the battle… had been fought in downright earnest was only too apparent. But it had not left a vestige of that acrimony which we should have looked for from a like contest between civilised people. 

Although it may seem unrealistic from an Anglo-Saxon perspective, there are clear alternatives to how war can be fought. It requires critical questions to be asked, and our cultural norms to be critically assessed. For, as Audre Lorde warned us, ‘the master’s tools will never dismantle the master’s house’. Failing to do so, and maintaining our house, will only result in it being blown down.  

Samuel White is a Cybersecurity Post-Doctoral Fellow & RUMLAE Associate Researcher at the University of Adelaide, Adjunct Research Fellow at the University of New England, & Legal Officer in the Australian Regular Army. His new book, the Laws of Yesterday’s Wars is available now at Brill Publishing.

Calm before the (next) storm: what the idea of institutional abuse of children may mean for the United Nations

The United Nations’ response to allegations of sexual exploitation and abuse by peacekeepers appears to have benefitted from the energy and commitment shown by the present UN Secretary-General António Guterres. However, there is still no shortage of work to do in the face of such egregious abuses of human rights and the range of dire consequences for victims. The travails of other institutions also point to a new dimension of this ongoing challenge: the possibility that, in addition to any individual’s misdeeds, a form of child abuse may arise, in effect, from an institutional response to alleged wrong-doing that does not do enough.

Background

An uneasy calm seems to have fallen over the question of peacekeepers behaving badly. Perhaps the energy and commitment to addressing this issue shown by Secretary-General António Guterres has actually made an impact, or perhaps global attention being rivetted on COVID-19, and all of the pandemic’s consequences, has provided a lull in the storm. Perhaps it is just because there are significantly fewer peacekeepers in the field than at the high-water mark of United Nations (UN) peacekeeping deployments around 2015.

Whatever the case may be, the issue of sexual exploitation and abuse (SEA) perpetrated by peacekeepers has not dropped from the headlines entirely, and even Guterres is not suggesting there is cause for celebration – rather, he continues apace to address this persistent stain on the reputation and credibility of the UN (for example, in a recent call to punish perpetrators). 

Undoubtedly, the contemporary response by the UN is a vast improvement over when, in 1993, UN Special Representative to Cambodia, Yasushi Akashi, was faced with accusations of peacekeepers sexually abusing the local population, and responded that ‘boys will be boys‘. However, given the UN’s immunities as an international organisation, much of the UN’s response to peacekeeper wrongdoing centres on the actions of individuals and deflecting the necessary response to others: what the individual is alleged to have done, whether that is punishable by law, and, if so, punishable in what legal context and by which particular actor.

For SEA allegations, this is reflected in related UN reporting mechanisms, for example, which largely rely on action by States to hold individuals accountable, and on a much wider front in related scholarship

This has been a live problem for the UN for quite some time, but the response has not been swift. The first substantive report was in 2005 and, despite the UN’s ‘zero tolerance‘ policy, and much that has been done towards preventing misconduct by UN peacekeepers, it is not clear how effective such measures have been. Even handling such matters has proven to be fraught, and remains so in various ways, not least for individuals wishing to report instances of SEA to the UN. 

In that light, the present reporting regime, and its basis in Security Council Resolution 2272, do represent progress by more openly addressing SEA by peacekeepers and reporting publicly on how alleged incidents are being addressed. However, it is unclear whether the problem is on the way to being resolved, or even that the UN has done what it can within the powers that it has (which might also be said about other forms of misconduct arising under the aegis of UN activities, but that is another debate).

The specific question

As is now being discovered – the hard way – by various organisations around the world, there are consequences if the institutional response to alleged child abuse is itself found to be lacking. That is, other institutions have now been seen to perpetrate institutional abuse by their inadequate response to SEA in relation to children. This is seen in relation to, for example, various churches – in Australia, the USA , Canada, and so on, or their high office holders wherever they may be – or in emerging complaints and scandals, dogging the footsteps of even seemingly-venerable organisations to the point of insolvency. The travails of church organisations are particularly interesting, as finding them culpable, or laying charges against their high office holders, would have been unthinkable not so many years ago.

So, quite separately to the challenges that persist in testing the culpability of an individual alleged wrong-doer, the question here is – what does it mean if the UN is seen as failing to act, or to act sufficiently, in the face of multiple or ongoing instances of SEA of children?

What is institutional child abuse?

There is no generally accepted definition for the term ‘institutional abuse’, but in scholarly writings the phrase is used consistently to mean abuse that occurred in an institutional setting – institutional being taken broadly as non-familial, settings of the kind central to the recent Royal Commission in Australia. Similarly, various countries have found that the issue is not confined to one place, or one organisation, or even one type of organisation (religious, for example). 

Part of the signature of such acts is abuse of institutional power, which itself comes in various forms, but commonly arises if ‘adults tend to place the interest of institutions … above the protection of children‘. This includes failing to act – or to act sufficiently – in the face of relevant reports, or, indeed, failing to provide a reasonable mechanism to elicit reports in the first place. 

Public inquiries have also contributed to debunking the idea that wrong-doers of this kind are easily recognisable as different from the rest of the community. Such perpetrators have commonly been portrayed as some kind of ‘monster’, meaning their presence in a situation would be self-evident; if there are no ‘monsters’ to be seen, inaction is justifiable. Open inquiries with a wide remit have shown the profound fallacy of such logic, and nothing suggests that this learning should be disregarded in relation to peacekeepers (or any other representative of the UN for that matter). 

Crucially, such public inquiries have highlighted the regrettable reality that, not infrequently, a ‘failure to act’ is a knowing failure. Failures to act range from ‘mere’ ineptitude in institutional leadership, to denial and/or obfuscation to protect the name and reputation of the organisation, to active and wilful cover-ups, or worse.

Self-evidently, the Purposes of the UN, given by the UN Charter, do not call on the UN to care for children in the way that, for example, the operator of an orphanage or other youth 

services organisation does. It is abundantly clear, however, that the UN implicitly has a non-trivial element of responsibility for avoiding harm to children with whom its representatives are in contact – and this includes peacekeepers (noting that harms are not limited to those implied by a strict understanding of SEA).

So, regardless of what individual States do in their own legal realms, the question remains: has the UN done enough on its own account to respond to SEA of children?

Whose aegis and whose initiative?

Without being unduly exacting, the question might be rephrased: has the UN used the powers that it has to solve the problems within its grasp, and so better protect children? 

How one might answer then depends, to a degree, on one’s conception of the relationship between the UN and an individual peacekeeper.  

Peacekeeping operations are provided with their mandate by a decision of the UN Security Council.  In effect, this legal basis for authorising peacekeeping operations means that they function as a subsidiary organ of the Security Council.  This does not, however, give the UN direct legal control of troops deployed in peacekeeping under the UN’s aegis. In the context of wider questions about the effectiveness of peacekeeping operations, scholarship on peacekeeper misconduct has highlighted a wide range of issues created by this always complex, and often convoluted, chain of command

Leaving this ongoing scholarly and practical debate to one side, a new dimension of legal concern is emerging. Put bluntly: in the future the UN may be maligned for an insufficient or inadequate institutional response to SEA of children, constituting a further wrong of institutional abuse.  In line with current debate in States contending with such cases (including Australia), this could arise almost regardless of the questions of legal culpability of individual peacekeepers

In the face of that, rather than confining itself to lamenting the lack of legal power to prosecute wrong-doers directly, there may still be actions that the UN could take to improve protection of children from SEA perpetrated by peacekeepers.  Put more bluntly, the shift in understanding of child abuse, to recognise institutional child abuse, suggests hand-wringing

should now give way to creative problem-solving, of the kind already seen in the Security Council’s creation of other means and mechanisms – international criminal tribunals, committees to address terrorists and their activities, indeed peacekeeping itself (it having emerged as something of a substitute for the capacity intended to exist under Article 43 of the Charter).

Thus, it may be that development of the concept of institutional abuse of children strengthens the case for a direct mechanism for responding to such allegations against UN peacekeepers, and new lines of discussion could open up accordingly. Should, for example, the UN conceive of itself as offended by such actions sufficient to instigate new ‘review of conduct’ mechanisms? Could such mechanisms be given competence to assess the conduct of individuals, even if not to address such conduct directly? That is, could they be designed to address the matter without undermining the legal recourse against individuals that (in very broad terms) remains the right and province of their State? 

These are questions for another time, but scholarship on the concept of institutional abuse of children suggests strongly that, in the interests of better protecting children as well as protecting the good name of the UN, effort invested in exploring these questions will not be wasted.

Dr Carolyn M Evans CSC teaches and researches at the Faculty of Law & Justice at UNSW Sydney, specialising in international law in relation to international organisations. She recently published her first monograph Towards a more accountable United Nations Security Council (Brill, 2021).

Corporate liability for war crimes in Australia 

The criminal indictment of two Swedish business executives in November 2021 for complicity in war crimes serves as a timely reminder of the importance of the laws of war, and the consequences of breaching them globally and in Australia. 

The Swedish Criminal Indictment  

In November 2021, the Chairman and former Chief Executive Officer (CEO) of Swedish oil company, Lundin Energy (formerly Lundin Oil AB), were charged with complicity in war crimes for their alleged involvement in the forcible displacement of civilians in Sudan between 1999 and 2003. 

The charges follow a decade long investigation by Swedish authorities into the operations of Lundin Energy, which, during the Second Sudanese civil war, was alleged to have paid the former Sudanese Regime to secure a prospective oil site called ‘Block 5A’ in southern Sudan (now South Sudan). Swedish authorities claim that the army and supporting militia of the Regime led a series of offensive military operations in Block 5A, attacking and abducting civilians, plundering, and burning entire villages in order to secure the area for oil exploits. Based on a report by the European Coalition for Oil in Sudan, it is estimated that as many as 12,000 died and 160,000 were displaced from the Block 5A area because of these attacks.  

While these war crimes were directly committed by the former Sudanese Regime led by former President Omar al Bashir, who currently faces charges of war crimes, crimes against humanity and genocide in the International Criminal Court, Lundin Energy and its two executives are also facing action by Swiss authorities for their alleged indirect role in aiding and abetting such crimes.  

In particular, Swedish Prosecutors claim that the accused executives ‘had decisive influence on [Lundin Energy’s] business in Sudan’, with Chief Public Prosecutor Krister Petersso stating that ‘what constitutes complicity [in this case] in a criminal sense is that [company executives employed the former Sudanese Regime] despite understanding or, in any case being indifferent to [the way in which they were conducting such operations]’. 

While the both the accused and the company deny the charges, if convicted, the accused individuals face up to lifetime imprisonment. Lundin Energy itself also faces forfeiture of up to 1.4 billion Swedish Krona in profits made from the sale of its business in 2003 (totalling to over AUD$211 million). 

With the proceedings set to take place early this year, this is the first time since the Nuremberg Trials where executives of a listed company will be tried for war crimes. This case serves as a timely reminder of the potentially grave legal risks and consequences for companies that fail to appropriately scope, understand, prevent and mitigate risk factors associated with operating business in armed conflict zones.  

International Humanitarian Law 

For companies, international humanitarian law (‘IHL’), also known as the ‘laws of war’, provides the most comprehensive framework for understanding and measuring acceptable behaviour during times and places of armed conflict. As a specialised body of law codified under the four Geneva Conventions and their Additional Protocols, IHL seeks to limit the way in which war is waged by regulating the means and methods of warfare and protecting those who are not, or no longer, taking part in hostilities. 

IHL is binding not just on States, soldiers, and organised armed groups, but also upon corporations and business personnel conducting operations in armed conflict. Directors, employees, and agents of companies, as well as the corporate entity itself, can be held criminally responsible for grave breaches of IHL and face prosecution for war crimes.

International Criminal Law and War Crime Offences

Under international criminal law, liability for corporate actors is restricted to individual culpability, with executives, agents and employees of companies able to be prosecuted for war crimes and other serious international crimes such as genocide and crimes against humanity. From as early as the Nuremburg Trials, executives of German companies and banks were convicted of war crimes for acts such as pillaging occupied territories and funding the Schutzstaffel (or the ‘SS’, the paramilitary branch of the Nazi Party).  

Australia’s domestic laws are broader in application and can hold both corporate individuals and the corporate entity itself to account for their actions in armed conflict. Individuals and corporations can be held criminally responsible for grave violations of IHL under division 268 of the Criminal Code Act 1995 (Cth) (‘Criminal Code’), which codifies 78 different war crimes ranging from offences such as wilful killing, attacking civilians, torture and sexual crimes, to offences including the employment of prohibited weapons or warfare, use of child soldiers and the unlawful deportation or transferring of civilian populations. Corporations convicted of war crimes are liable to significant fines: five times those that could be imposed on individuals. Currently, such maximum penalties range from AUD$666,000 to $2,220,000. 

Division 12 of the Criminal Code sets out the legal regime for corporate criminal responsibility, with section 12.1(2) providing that a company may be found guilty of any offence, including crimes punishable by imprisonment such as war crimes. Where an employee or agent physically commits a war crime in the actual or apparent scope of their employment, both the individuals and company may be criminally responsible. A company can be responsible for their employees’ actions if the company authorised, directed, or otherwise encouraged, tolerated or failed to prevent certain acts. This framework of liability shows that company culture cannot be accepting of, or indifferent towards, the way they conduct business in places of war. 

Business Activities in Armed Conflict

Certain daily operations of companies carrying out business during armed conflict can potentially result in liability for war crimes. For example, companies that: 

  • over-exploit natural resources, appropriate property for private use without the owner’s consent, or seize property from adverse or enemy parties may be liable for a range of war crimes under the Criminal Code, including pillaging, destruction or appropriation of property, or destruction or seizure of enemy or adversary property.   
  • use armed personnel to forcibly evict civilians from prospective business sites, or engage in operations which destroy homes or land, or otherwise render residential or agricultural land uninhabitable to locals, may be liable under the Criminal Code for offences relating to the transfer or displacement of civilian populations. 
  • contract private or government security forces to defend business sights, depending on the nature and terms of the corporation’s engagement, may be exposed to liability for any war crimes committed by such forces, such as those arising from attacking civilians or other serious violations of IHL 
  • manufacture or trade prohibited weapons, components or chemicals, or companies that provide logistical, financial, information or transport services to armed groups during armed conflict may be complicit in war crimes where they directly or indirectly facilitate the commission of war crimes by others.  

Prosecutions in Australia 

It must be noted that, to date, there have been no prosecutions brought in Australia under the Criminal Code, let alone any against corporate defendants. As noted above, there currently exists no international court in which a war crimes prosecution of a corporation could be pursued. A further relevant consideration is that, in respect of war crimes, Australian law claims universal jurisdiction, enabling prosecutions regardless of territorial link between Australia and the alleged crime or offender. Given, however, that a war crimes prosecution cannot be commenced in Australia without the consent of the Attorney-General, it might be thought that there will be restraint in exercising such jurisdiction. 

Corporate liability 

Although not the focus of this post, a holistic discussion on Australian law potentially applicable to the commission war crimes should also include alternative legal mechanisms. The ‘money trail’ from illegal conduct involving businesses in war zones could include prosecutions for money laundering, or civil proceedings under the Proceeds of Crime Act. Additionally, Australia’s recent enactment of a ‘Magnitsky-style Act’ means that autonomous sanctions can be imposed on entities that have been involved in the commission of serious violations of IHL

Importance of IHL

Whilst Australian authorities have not yet commenced a prosecution of a corporation for war crimes, the Swedish example of Lundin Energy should serve as a stark reminder to Australian companies doing business in conflict zones that the prospect of legal accountability for involvement in violations of IHL is very real. Indeed, as noted above, there is no shortage of an Australian legal framework that would enable this to occur. A move to prosecutions of ‘white collar war crimes’ might be viewed as reflective of a broader global trend towards clamping down on financial support for often violent vices of international concern.   

It is crucial that Australian companies operating in conflict zones understand the principles of IHL and how they apply to their business. Australian Red Cross, along with RMIT University, have developed a series of IHL resources to assist companies improve their IHL understanding and implementation, including: 

Pranamie Mandalawatta is a Legal Advisor at the Australian Red Cross International Humanitarian Law (IHL) Department responsible for managing the Department’s engagement with the Australian Government and legal sector, including the judiciary. Pranamie has a background in IHL, international criminal law, human rights and cyber law. She formerly acted as a senior legal officer in the Office of International Law at the Australian Attorney General’s Department and has also worked as a criminal defence lawyer at Sydney-based law firm, Nyman Gibson Miralis. Pranamie holds a Masters in public international law from the Australian National University and has interned at the United Nations International Residual Mechanism for Criminal Tribunals.

Liam MacAndrews is currently a Senior Solicitor at Nyman Gibson Miralis, Sydney, working in criminal defence.  His practice covers international/transnational criminal matters as well as financial crime cases.  Previously, Liam worked in international criminal law at the Extraordinary Chambers in the Courts of Cambodia.  Liam also works as a sessional academic at the Queensland University of Technology.

Event: War in Ukraine – Institutional Responses and International Law, 22 March 2022

The international legal system provides a variety of institutional mechanisms to respond to gross violations of international law, including the crime of aggression, breaches of the prohibition on the use of force and war crimes. This seminar addresses the avenues being considered and/or utilised to respond to Russia’s war against Ukraine. These options include the UN Security Council, the International Court of Justice and the International Criminal Court. 

Speakers:

Dr Christopher Ward SC is Senior Counsel, NSW Bar, Sydney, Australia, Honorary Professor, Australian National University, Canberra and Immediate Past President, International Law Association: 

International Law in times of war: responding to a Security Council Permanent Member

Molly Thomas, International Criminal and Human Rights Lawyer, The Hague and Editor-in-Chief of the ILA Reporter: 

Paths to Accountability: The ICC and Beyond

The event is organised by the ILA (Australia Branch) and generously hosted by Marque Lawyers. Drinks and light catering will be available for those in attendance. A limited number of online tickets is available for ILA (Australia Branch) members with a zoom link sent just prior to the seminar.

Registration is essential and on Eventbrite.

Practice makes perfect – the High Court of Australia and Articles 31(3)(a) and (b) of the Vienna Convention on the Law of Treaties – Part 2

This post is the second of a two-part series on the High Court of Australia’s use of subsequent agreement and practice under Article 31(3)(a) and (b) of the Vienna Convention on the Law of Treaties (VCLT) to interpret treaties that appear in domestic law (which I refer to broadly as ‘incorporated treaties’).

Part 1 of this series considered the High Court’s approach to subsequent agreement and practice in Minister for Home Affairs v Zentai (2012) 246 CLR 123 (Zentai), Maloney v The Queen (2013) 252 CLR 168 (Maloney) and Commonwealth Minister for Justice v Adamas (2013) 253 CLR 43 (Adamas). These cases indicate that the High Court will not consider subsequent agreement or practice to interpret an incorporated treaty where such recourse would conflict with Australia’s division of powers. However, where no such conflict arises, the High Court remains divided on what recourse may be made to VCLT Articles 31(3)(a) and (b) materials. 

Part 2 in this series first considers the High Court’s receptive use of subsequent practice in Macoun v Commissioner of Taxation (2015) 257 CLR 519) and then examines the Court’s latest decision concerning an incorporated treaty – Addy v Commissioner of Taxation [2021] HCA 34. Finally, I explain why, subject to any conflict with Australia’s division of powers, Australian courts should consider VCLT Articles 31(3)(a) and (b) materials in its interpretative exercise. 

The twist 

Two years after Adamas, the High Court was presented with a further opportunity to consider extrinsic materials in Macoun v Commissioner of Taxation (2015) 257 CLR 519 (Macoun). This case centered on the International Organisations (Privileges and Immunities) Act 1963 (Cth) (IOPI Act) which gives effect to Australia’s obligations under the Convention on the Privileges and Immunities of the Specialised Agencies (Agencies Convention) through the Specialized Agencies (Privileges and Immunities) Regulations 1986 (SAPI Regulations). Importantly, the Agencies Convention was not incorporated into statute. Instead, it was ‘common ground’ that the Court was examining the Agencies Convention ‘to construe the IOPI Act in a manner which accords with Australia’s international obligations if such a construction is open’ (at [67]).  

The Court stated that VCLT Articles 31 and 32, including Article 31(3), were the relevant rules to construe the Agencies Convention. Despite Macoun’s submission to the contrary, the Court considered practice that post-dated the introduction of the IOPI Act (at [80]), specifically, decisions of foreign domestic courts and the United Nations Administrative Tribunal (UNAT).  

The Court appeared to treat foreign domestic court decisions as subsequent practice under VCLT Article 31(3)(b). This is not strictly correct. Foreign court decisions do not evidence agreement of all the parties to a treaty. Consistent with the International Law Commission’s 2018 work on subsequent agreement and practice, I suggest that decisions of foreign domestic courts are better understood as a subsidiary means of interpretation under VCLT Article 32.  

The Court’s examination of the UNAT decision was more consistent with the VCLT. Pronouncements of international tribunals, such as the UNAT, are not themselves subsequent practice but may help identify subsequent practice where they reflect, give rise to, or refer to the practice of the parties. The Court’s examination of the UNAT decision correctly focuses on the states’ position recorded in the decision, for example, points agreed or conceded by all parties. 

What can we make of the Court’s discussion of subsequent practice in Macoun? Wall suggests that Macoun is a marked improvement in the Court’s approach to treaty interpretation, possibly explained by the Convention’s subject matter, the extrinsic materials in dispute, composition of the bench and quality of submissions. However, a salient distinction in Macoun is that the Agencies Convention was not incorporated into statute. I re-emphasise that the Court only examined the Agencies Convention to construe the IOPI Act. The Court was not interpreting the Agencies Convention on the basis that it had been incorporated into statute (indeed, it had not been incorporated into statute). This may explain why the Court was so receptive to subsequent practice that post-dated the SAPI Regulations.  

If this distinction is correct, it raises a puzzling question: why can you rely on subsequent practice to understand your international legal obligations, but not to interpret statutes that incorporate those obligations? I accept there may be circumstances where it is difficult to accommodate VCLT Article 31(3) materials into the interpretative exercise, for example, where there is a conflict with Australia’s division of powers. However, I see no other reason to exclude VCLT Article 31(3) materials from the interpretative process.  

The latest development

On 3 November 2021, the High Court handed down its decision in Addy v Commissioner of Taxation [2021] HCA 34 (Addy). Whilst Addy does not resolve the issues addressed above, it is worth a brief discussion as the latest example of treaty interpretation from the High Court.  

In 2015, Addy (a national of the United Kingdom) entered Australia on a working holiday visa. Whilst in Australia, Addy accrued taxable income through casual work and was issued with a notice of assessment by the Commissioner of Taxation (Commissioner). Addy objected to that notice on the basis that it contravened Article 25(1) of the Australia-UK Double Tax Agreement (Australia-UK DTA). Article 25(1) provides that nationals of a Contracting State shall not be subject to ‘other or more burdensome’ taxation in the other Contracting State than is imposed on its own nationals ‘in the same circumstances’. The issue for the Court was whether the tax rates imposed on Addy were more burdensome than what would have been imposed on Australian nationals in the same circumstances.  

It is important to note that the Australia-UK DTA is not incorporated into statute in the same way as occurred in Zentai, Maloney and Adamas. Specifically, the text of the Australia-UK DTA does not form part of domestic statute. Rather, it is listed in the International Tax Agreements Act 1953 (Cth) as an agreement that has the force of law in Australia. Despite this, the Court acknowledged that the same principles applied to interpret the Australia-UK DTA, that is, VLCT Articles 31 and 32 (at [23]).  

Addy is interesting for two reasons. First, the Commissioner relied heavily on a New Zealand Court of Appeal (NZCA) decision, Commissioner of Inland Revenue v United Dominions Trust Ltd [1973] 2 NZLR 555, in which the NZCA interpreted a largely equivalent non-discrimination clause in the New Zealand-UK DTA. The High Court did not discuss the interpretative value of this decision, but simply noted that the Commissioner’s reliance on it was ‘misplaced’ and it was of ‘no assistance in the present case’ (at [27]). 

Secondly, the Court in Addy raised, but did not answer, the issue of whether commentaries that post-dated the Australia-UK DTA could be relied upon to interpret the agreement. Specifically, the Court queried whether a later version of Organisation for Economic Cooperation and Development (OECD) Model Tax Convention commentary could be used, presumably under VCLT Article 32. On this point, I note Gardiner’s view that a later commentary may be recognised as an aid to interpretation where it ‘shows clearly the collective intention of those who drew up the treaty’ (at 403).

Concluding remarks

Subject to any conflict with Australia’s division of powers, I propose that Australian courts should consider VCLT Articles 31(3)(a) and (b) materials in its interpretative exercise. This is for two reasons. First, recourse to subsequent agreement and practice ensures that courts interpret incorporated treaties consistently with the community of nations and Australia’s international obligations. If courts disregard VCLT Articles 31(3)(a) and (b) materials, they may interpret incorporated treaties inconsistently with Australia’s international obligations. As court decisions are ‘always attributable to the State’ (at p.138), such interpretations may trigger Australia’s international legal responsibility. Secondly, recourse to subsequent agreement and practice ensures incorporated treaties are interpreted in a certain and uniform manner. Certainty and uniformity are particularly important for incorporated treaties (such as double taxation agreements) whose object would be ‘frustrated if “they were to be interpreted in a manner which would permit or foster conflicting outcomes”‘ (at [148]). 

In 1997, the late Professor Ivan Shearer stated that the interpretation of incorporated treaties was an ‘important question’ that would ‘likely grow in importance’. He was right. Yet despite the passage of more than two decades, we are no closer to an answer on whether, and to what extent, subsequent agreement and practice may be used to interpret incorporated treaties. The only point that appears settled is that subsequent agreement and practice cannot be used to interpret an incorporated treaty where reliance on those materials would conflict with Australia’s division of powers.

All views are my own and do not necessarily reflect the views of past or present employers. I am grateful for the comments of Co-Editor-in-Chief, Josephine Dooley and Assistant Editor, Sarah Barrie. 

Samuel Saunders is a Legal Officer at the Attorney-General’s Department Office of International Law. The views expressed in this post do not necessarily represent the views of his past or present employers.

Ukraine and Russia: A summary of international legal issues – Christopher Ward SC

This piece was originally published on Substack and is reproduced with the author’s permission.

As Russia continues to wage a war of aggression it is appropriate to deal with the international law applicable to the situation.

Russia has historically laid claims to, and at times controlled, the territory that encompasses modern Ukraine.  Those historical positions are irrelevant.  Ukraine is a fully recognized independent State with full membership of the United Nations, and full international recognition as a State, including recognition from Russia following the dissolution of the USSR.

It follows unambiguously that Russia is engaged in a naked war of aggression.  That war breaches Article 2(4) of the United Nations Charter:

“All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”

Russian claims to be exercising a form of “protection” in the face of a Ukrainian “genocide” in breakaway provinces are factually ludicrous and are a pathetic, transparent, utterly craven misinformation device.  The international community has overwhelmingly and correctly rejected that pretext.

Ukraine is entitled to exercise a right of individual self defence.   That it is doing with grit and determination.

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Practice makes perfect – the High Court of Australia and Articles 31(3)(a) and (b) of the Vienna Convention on the Law of Treaties – Part 1

This post is the first of a two-part series discussing the High Court of Australia’s approach to the use of subsequent agreement and practice as a means of treaty interpretation pursuant to the Vienna Convention on the Law of Treaties 1969.

Due to the internationalisation of Australian domestic law, Australian courts are increasingly tasked with interpreting treaties that appear in domestic law (which I refer broadly to as ‘incorporated treaties’). The position in Australia appears to be that incorporated treaties are interpreted according to the Vienna Convention on the Law of Treaties 1969 (VCLT). Despite this clear position, there is a lack of clarity from the High Court on the use of subsequent agreement and practice under Articles 31(3)(a) and (b) of the VCLT to interpret incorporated treaties. 

This series suggests the High Court’s hesitance to refer to Articles 31(3)(a) and (b) materials may stem from concerns regarding Australia’s separation of powers.  Whilst these concerns are legitimate, I suggest that the Court should – absent any conflict with Australia’s separation of powers – consider subsequent agreement and practice to interpret incorporated treaties.

The beginning

The first High Court case to consider VCLT Articles 31(3)(a) and (b) materials to interpret an incorporated treaty was Minister for Home Affairs v Zentai (2012) 246 CLR 123 (Zentai). Zentai was alleged to have committed a war crime in Hungary in 1944. Following Hungary’s request for Zentai’s extradition, the Minister agreed that he be surrendered to Hungary. The subsequent dispute centered on the Treaty on Extradition between Australia and the Republic of Hungary (Extradition Treaty). The Extradition Treaty is annexed to the Extradition (Republic of Hungary) Regulations (Cth) which provides that the Extradition Act 1988 (Cth) (Extradition Act) operates subject to the Extradition Treaty. I note that bilateral extradition treaties are not strictly ‘incorporated’ into Australian statute because the Extradition Act applies ‘subject to’ a bilateral extradition treaty.  

Pursuant to Article 2(5)(a) of the Extradition Treaty, extradition may only be granted where ‘the offence in relation to which extradition is sought … was an offence in the Requesting State at the time of the acts or omissions constituting the offence’. This was relevant because Hungary only criminalised the offence of ‘war crimes’ in 1945, one year after Zentai’s alleged conduct.  

The Minister argued that Hungary’s request for Zentai’s extradition, and Australia’s accession to that request, amounted to subsequent practice under Article 31(3)(b) which confirmed that Article 2(5)(a) would not preclude Zentai’s extradition. In the alternative, the Minister argued that the decision to extradite Zentai constituted an Article 31(3)(a) subsequent agreement between Australia and Hungary.  

The Court rejected the Minister’s submissions on two bases. First, the majority (Gummow, Crennan, Kiefel and Bell JJ) held that Article 2(5)(a) of the incorporated treaty was ‘not susceptible of altered meaning reflecting some understanding reached by the Ministry of Justice of Hungary and the Executive branch of the Australian Government’ (at [65]). This was because the Executive required the ‘authority of statute to surrender a person for extradition’ (at [65]). Therefore, the Executive’s power to extradite Zentai could not derive from a subsequent agreement or practice between Australia and Hungary. Secondly, French CJ held that, for the purposes of domestic law, a treaty could only be interpreted by reference to extrinsic materials that existed at the time the treaty was incorporated into statute (at [36]). Therefore, the Minister could not rely on any agreement or practice that post-dated the incorporation of the extradition treaty into statute. 

The great divide 

Shortly after the Court decided Zentai, the High Court was presented with another opportunity to consider extrinsic materials in Maloney v The Queen (2013) 252 CLR 168 (Maloney). In this case, the High Court was divided on whether certain international materials could be used to interpret section 8(1) of the Racial Discrimination Act 1975 (Cth) (RDA) which incorporated the term ‘special measures’ from the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). It is worth noting that the materials in dispute were pronouncements of treaty bodies and not statements of the treaty parties themselves (specifically, the Court considered General Recommendations of the Committee on the Elimination of Racial Discrimination and an Advice of the Expert Mechanism on the Rights of Indigenous Peoples, among others). I note that pronouncements of treaty bodies are not Article 31(3)(a) or (b) materials of themselves, but ‘may give rise to, or refer to, a subsequent agreement or subsequent practice’. 

Their Honours adopted varied positions on the use of these materials.  Hayne and Crennan JJ adopted the most restrictive position. Hayne J held that recourse may only be had to extrinsic materials that ‘existed at the time the RDA was enacted’, although later materials ‘may usefully direct attention to possible’ construction arguments (at [61]). Crennan J similarly held that later materials could not be elevated over the language of the treaty, but may guide State parties as to their reporting obligations (at [134]). 

Conversely, French CJ and Kiefel J adopted a qualified position. French CJ held that whilst Article 31(3) materials could ‘illuminate’ an interpretation (at [23]), they could not ‘authorise a court to alter the meaning of a domestic law implementing a provision of a treaty’ (at [16]). Kiefel J similarly opined that courts may have regard to views expressed in extraneous materials ‘provided that they are well founded and can be accommodated in the process of construing the domestic statute, which is the task at hand’ (at [175]). It is unclear what Kiefel J meant by ‘accommodated’. Perry J suggested in Tech Mahindra Limited v Commissioner of Taxation [2015] FCA 1082  that Kiefel J was contemplating a situation where extrinsic materials may disrupt Australia’s division of powers, as occurred in Zentai (at [61]). 

Bell and Gageler JJ were the most receptive to extrinsic materials. Bell J held, without qualification, that the meaning of ‘special measures’ may be ascertained by reference to VCLT Article 31(3) (at [235]). However, her Honour considered that the specific materials were not materials of that kind (at [235]), a finding consistent with the International Law Commission’s (ILC) codification of subsequent agreements and practice (ILC Draft conclusions on subsequent agreements and subsequent practice in relation to the interpretation of treaties, Conclusion 13). Without referring to the VCLT, Gageler J stated that the RDA was to be ‘constructed to give effect to those obligations’ under CERD to the ‘maximum extent that its terms permit’ (at [326]). His Honour suggested that what is required by those obligations will turn on the ‘content attributed to them by the community of nations’ (at [326]).  

The common thread amongst these judgments is an acceptance that, at the very least, subsequent agreement and practice may ‘illuminate’ an interpretation of an incorporated treaty. French CJ was the only judge to provide a principled reason for this restricted use of VCLT Article 31(3) materials, averring that ‘[o]bligations imposed by international instruments on States do not necessarily take account of the division of functions between their branches of government’ (at [15]). The Chief Justice’s reasoning was clearly influenced by Zentai, which raised identical concerns about VCLT Article 31(3) materials and Australia’s division of powers.

The reprise

A few months after Maloney, the High Court decided Commonwealth Minister for Justice v Adamas (2013) 253 CLR 43 (Adamas). Adamas was tried and sentenced to life imprisonment for corruption in an Indonesian court in absentia. Following Indonesia’s extradition request, the Minister agreed to surrender Adamas. A dispute ensued regarding the interpretation of Article 9(2)(b) of the Extradition Treaty between Australia and the Republic of Indonesia (incorporated through the Extradition (Republic of Indonesia) Regulation 1994 (Cth)) which provides that extradition may be refused where it would be ‘unjust, oppressive or incompatible with humanitarian considerations’.  

The Court issued a unanimous judgment holding that Article 9(2)(b) ‘could not be affected by any subsequent agreement or practice of Australia and the Republic of Indonesia’ (at [31]). Their Honours cited the majority judgment in Zentai in reaching this conclusion and, perhaps cognisant of the inconsistency with the VCLT, made a ‘cf’ (i.e., compare) reference to Articles 31(3)(a) and (b). 

It is interesting that the Court referred to subsequent agreement and practice in their judgment. Neither party had relied on VCLT Article 31(3) materials and the Minister appeared to accept (in a footnote to their written submissions) that a court may not rely on them. On one view, the Court may have been attempting to clarify its position on VCLT Article 31(3) materials following the division in Maloney. However, it is equally possible that the Court was re-affirming the specific rule in Zentai that an incorporated treaty cannot be altered by subsequent agreement or practice where this would conflict with Australia’s division of powers. 

Part two in this series will consider the High Court’s approach to subsequent agreement and practice in Macoun v Commissioner of Taxation (2015) 257 CLR 519 and Addy v Commissioner of Taxation [2021] HCA 34, and will propose how the High Court might approach subsequent agreement and practice in the future.

Samuel Saunders is a Legal Officer at the Attorney-General’s Department Office of International Law. The views expressed in this post do not necessarily represent the views of his past or present employers.

Accessing Airport Asylum Procedures Before and During the COVID-19 Pandemic

The widespread use of entry restrictions and border closures during the COVID-19 pandemic highlights an increasing trend in which States rely upon securitised borders as a default response to public health and humanitarian emergencies. This post examines the practical significance of the use of border closure exemptions for asylum seekers arriving by air in countries such as Canada, Germany, and the United States, in contrast to the lack of such exemptions in countries such as Australia, Costa Rica, and Uganda. Noting that Australia’s failure to provide humanitarian exemptions to pandemic border closures raises questions regarding its commitment to the international refugee law and human rights regimes, whether there is any appreciable difference between the Australian approach and the approach adopted by  States like Germany, Canada, and the United States bears further examination. 

Throughout the course of the COVID-19 pandemic, scholars have pointed to the ways in which State restrictions on movement across international borders have made it more difficult for asylum seekers to access refugee status determination (RSD) procedures. States such as Australia have cited health grounds to adopt measures ranging from entry restriction to outright border closure, regardless of whether the affected individuals hold a valid visa. The impact on international travel has been extensive and well-documented, ensnaring many from the Global North in restrictive and increasingly securitised travel regimes typically reserved for those in the Global South. 

When Australia closed its international border to all but Australian citizens and Permanent Residents (with limited exceptions) on 20 March 2020, it became one of the few liberal democratic countries to instate the closure without providing an exemption for people seeking asylum. In a recent Policy Brief, the Kaldor Centre for International Refugee Law examined how Australia’s full border closure resembled the closures of countries such as Costa Rica and Uganda, while diverging from others. Though countries including Canada, Germany, and the United States adopted border restrictions and closures, they also explicitly exempted asylum seekers from those closures in recognition that despite the pandemic, people facing persecution, conflict, disasters and violence were forced to seek safety in other countries. 

However, does the existence in Canada, Germany and the United States of exemptions to pandemic-related border closures for asylum seekers who arrive in a country by air have any practical effect for those subject to border closures who also lack a visa allowing for travel? Although pre-existing restrictive visa regimes in those States may render border closure exemptions for asylum seekers without visas meaningless, the Australian approach provides an extreme example of restrictions that have also prevented scores of humanitarian visa holders from travelling to the country. The Australian example appears to reflect an approach to refugees and asylum seekers that expands upon an already troubling trend among States in the Global North to prevent people from travelling by air who might seek asylum, despite their protection obligations under international law.  

In international law, every person ‘has the right to seek and to enjoy in other countries asylum from persecution’ (Universal Declaration of Human Rights Article 14). Various regional instruments affirm this fundamental right, including the African Charter on Human and Peoples’ Rights, the American Convention on Human Rights, and the Charter of Fundamental Rights of the European Union. Under international refugee and human rights law, States cannot return a person to any country where they are likely to face persecution or other serious harm. Although States have at times insisted that they have the ability to restrict access to asylum for individuals travelling by air, those claims have no legal basis in international law, which requires States to protect individuals from refoulement who are within their ‘territory and subject to [their] jurisdiction.’ 

Even prior to the pandemic, scholars documented Australia’s increasing use of law enforcement and security-focused practices and rhetoric to immobilise and confine asylum seekers to the Global South. Australia’s universal visa system presented the first barrier to entry for asylum seekers, as the country does not issue visas for the purpose of seeking asylum. Therefore, a person would have to qualify for a different type of visa in order to travel to Australia by air. Once the person landed at an Australian airport and requested asylum, they would typically be subject to an entry screening process to determine whether they would be allowed to formally lodge an asylum application. Yet, Australia’s pandemic border closure upended that system and broadly prevented non-citizens, from travelling to the country without exempting those who might seek asylum, including humanitarian entrants with valid Australian visas.  

Although countries like Germany, Canada, and the United States provided exceptions to broad aerial border closures for the purpose of seeking asylum, it is unlikely that those exemptions have enabled potential asylum seekers to travel by air without the existence of some other purpose for travel. Like Australia, neither Germany, Canada, nor the United States issue visas for the purpose of seeking asylum. In fact, each of those States has in place airport arrival procedures that use ‘entry fictions’ to prevent the ‘legal’ entry of a person physically present in the country and similar legal measures to provide a basis for cancelling the visa of a person who raises an asylum claim. This is often accomplished by examining a person’s purpose for travel and evaluating whether that purpose matches the visa held. Therefore, any potential asylum seeker would need to qualify for a visa on grounds other than the asylum claim, such as for study or work, in order to board a flight. Furthermore, it appears that any potential asylum seeker would also then need to qualify for an exemption to COVID-19 border closures on the same grounds as the underlying visa, such as an exempted worker or student, in order to travel to those countries. There does not appear to be any occasion for an asylum seeker who does not already possess (or cannot obtain) a valid visa to travel to Germany, Canada, or the United States and enjoy the formal pandemic border closure exemptions for asylum seekers. 

Though the existence of exemptions to these border closures may prevent airport border officials from removing an asylum seeker on health grounds once they have arrived in those countries – something that Australian policy does not do – the practical effect of the securitisation of air travel and development of visa regimes and other obstacles raises questions about whether humanitarian exemptions to COVID-19 related border closures go far enough. If anything, pandemic-related border restrictions have shone further light on the existence of increasingly restrictive border regimes which practically provide almost no relief to humanitarian entrants in the face of persecution, conflict, disasters, and violence that has continued to compel movement across international borders. While Australia’s failure to provide humanitarian exemptions to pandemic border closures provides further evidence of its outlier status in the international refugee law and human rights regimes, the question of whether there is any appreciable difference with States like Germany, Canada, and the United States bears further examination. 

Regina Jefferies is an Assistant Professor at Western Washington University, a Scientia PhD Scholar at the University of New South Wales and an affiliate of the Andrew & Renata Kaldor Centre for International Refugee Law. 

Ensuring access to lawyers (and courts) – A reflection on Australia’s asylum policies in the wake of the Djokovic affair

This post examines Australia’s policies on legal assistance for asylum seekers and refugees in the wake of tennis World No 1 Novak Djokovic’s much-publicised visa saga. 

With Rafael Nadal’s victory over Daniil Medvedev, the 2022 Australian Open drew to an end – a competition that may be remembered more for its off-court dramas than its on-court triumphs. Most sensationally, the Open saw the arrival, visa cancellation, detention, and ultimately deportation of World No 1 tennis player Novak Djokovic. The litigation accompanying the affair provoked enormous public interest. While Djokovic was successful in having the initial visa cancellation quashed on the basis that he was denied procedural fairness, the Minister for Immigration responded by exercising his so-called ‘God Power’ under section 133C(3) of the Migration Act to cancel the re-instated visa – a decision that ultimately survived a judicial review challenge in the Full Federal Court. 

The Djokovic affair piqued interest in Australia’s general treatment of asylum seekers and refugees – some of whom were detained, along with Djokovic, at the Park Hotel in Melbourne. Commentators sought to unpick Australia’s detention policy – how it is that a recognised refugee like Mehdi, who arrived in Australia in 2013 as an unaccompanied child, could be held in a hotel room nine years later. Ben Doherty, who has consistently reported on the parlous conditions of those caught by Australia’s refugee policies, noted the ‘absurdist turn’ that a world No 1 tennis player could refocus attention on a situation that had endured for years. Even the Prime Minister seemed, at best, unaware that 25 of the 32 detainees at the Park Hotel had been formally recognised as refugees.  

Although Djokovic’s challenge was ultimately unsuccessful, the affair highlights the importance of access to lawyers and the courts. When challenging each visa cancellation, Djokovic had the resources to assemble an effective legal team. In contrast, asylum seekers and refugees often face significant hurdles in accessing lawyers and the courts to safeguard their rights. Australia’s policies have the effect of exacerbating, rather than easing, these barriers to access. 

For those who travel by boat, Australia’s policy of ‘turnbacks’ and ‘takebacks’ under Operation Sovereign Borders clearly hinders access to lawyers. Dastyari and Ghezelbash note that asylum seekers turned back to Indonesia are not given the opportunity to make a protection claim at all, while those returned to Sri Lanka and Vietnam first undergo ‘enhanced screening’ at sea to determine if they should be granted access to the full refugee status determination process (only two people had apparently been ‘screened-in’ through this process as of 2020 – see p 22). The Human Rights Committee has raised concerns that these assessments – made ‘without access to counsel or an effective possibility to legally challenge the decision’ – do not guarantee full protection against non-refoulement ([33]). Similar concerns were raised by the Special Rapporteur on torture and other cruel, inhuman or degrading treatment ([30]).  

Accessing legal advice is also difficult for those who arrive by plane and seek asylum at the airport before being ‘immigration cleared’. Jefferies, Ghezelbash and Hirsch shine a much-needed light on the complex airport entry-screening procedure, which they consider to be ‘designed in a way to limit avenues available for reviewing adverse determinations’ (p 183). In a Policy Brief, the authors recommend that ‘screened-out’ applicants be entitled to a review by an independent decision-maker before removal from Australia, and that all applicants be given access to ‘legal advice, competent interpreters and officials from UNHCR during both the preliminary decision and review stages’ (p 16). Jefferies also suggests the creation of an ‘on-call’ legal assistance program at airports to advise asylum seekers (p 21). 

Asylum seekers who arrived in Australia by boat between 13 August 2012 and 1 January 2014 – the so-called ‘Legacy Caseload’ – also faced significant issues securing legal assistance.  In March 2014, the government dramatically reduced access to the Immigration Advice and Application Assistance Scheme (IAAAS), which provides free immigration advice and application assistance to eligible asylum seekers. This left asylum seekers who arrived without a valid visa largely ineligible for government assistance (a small proportion could access the Primary Application Information Service (PAIS) scheme). The Australian Human Rights Commission (AHRC) reports that free legal services were unable fully to fill the gap left by the withdrawal of IAAAS assistance (p 33). The Justice Project found that the decision to cut access to the IAAAS left many asylum seekers to navigate ‘complex legal systems alone and without access to essential legal assistance’, with consequences including the risk of refoulement and ‘increased burdens on decision-making officials and the courts’ (pp 22–23). Both the AHRC (p 15) and The Justice Project (p 40) recommend that the government reinstate access to IAAAS to all asylum seekers who require it. The Special Rapporteur on the human rights of migrants also referred to Australia’s need for sufficient publicly funded legal assistance ([91] and [126]).  

Australia’s policies of offshore processing and detention only increase the difficulties in accessing legal assistance and the courts. For example, the Refugee Advice & Casework Service (RACS) has reported that assisting clients in detention is often frustrated by their inconsistent access to the internet and phone, and by the Australian Border Force’s practice of moving people between detention centres without notice (p 11).  

As a State party to the 1951 Refugee Convention, Australia has an obligation not to return a refugee to harm (article 33), or to penalise a refugee for entering the country illegally (article 31). These obligations entail the need for a fair status determination process to determine whether a person seeking asylum is in fact a refugee. In addition, Australia is obliged to grant refugees – and, arguably, asylum seekers (see eg Hathaway, p 915) – free access to courts under article 16 of the 1951 Refugee Convention. Article 16 should be interpreted in a way that ensures that effective access to courts is available. This requires the State to take positive measures on a case-by-case basis, such as providing legal aid and interpretation services where necessary. Article 16 is an important complement to Australia’s obligations under articles 13 and 14 of the International Covenant on Civil and Political Rights (the latter of which has been interpreted as not applying to the review of a failed asylum application – see e.g. Chadzjian v Netherlands, [8.4]). In a recent speech, Dr Jacoba Brasch QC, the 2021 President of the Law Council of Australia, reflected that ‘[t]he very factors that drive people to seek asylum are likely to render refugees and asylum seekers incapable of affording private legal assistance’ (p 11). Facilitating access to lawyers is critical to ensuring that asylum seekers can effectively make a protection application and to safeguarding their rights. A failure to do so risks breaching Australia’s international obligations towards asylum seekers. 

Emma Dunlop is a PhD candidate at UNSW Sydney. 

Events and Opportunities – February 2022

Jobs

Research Officer, Law Council of Australia 

The International Division of the Law Council is seeking a research officer to monitor developments in international law, jurisprudence and legal practice. Applications close 11 February 2022. More information available here.

Associate Legal Officer, International Court of Justice 

The International Court of Justice wishes to appoint a number of Law Clerks, each of whom will provide research and other legal assistance to one of the judges of the Court. Applications close 22 March 2022. More information available here.  

Junior Professional Associate, World Bank 

The Junior Professional Associate program is an opportunity to gain entry-level professional experience and first-hand exposure to the challenges and rewards of international development. Applications are accepted on a rolling basis. More information available here.

Internships

Global Policy Department Internship, International Chamber of Commerce 

The International Chamber of Commerce (ICC) is seeking a full-time intern to support the work of the Global Policy Department, as of 11 April 2022 for a period of 6 months. Applications close 18 February 2022. More information available here.  

International Bar Association Internships, London 

Applications for the July-September 2022 internship period close on 25 February 2022. More information available here.  

Programme, United Nations Assistance to the Khmer Rouge Trials 

Applications for internships run from July–September 2022 close 28 February 2022. More information available here.  

International Criminal Court, Prosecution Division 

Applications close 31 March 2022. More information available here.  

Internship Programme, International Trade Centre 

Application deadlines vary, depending on the unit. More information available here.   

Internship Programme, UNCITRAL Asia-Pacific 

Applications close 13 February 2022. More information available here

Various UN departments and agencies, various locations  

A variety of UN internship positions are currently open. Please see the following links for legal internship positions with application deadlines in February 2022:  

https://careers.un.org/lbw/jobdetail.aspx?id=173752&Lang=en-US

https://careers.un.org/lbw/jobdetail.aspx?id=170734&Lang=en-US

https://careers.un.org/lbw/jobdetail.aspx?id=170590&Lang=en-US

https://careers.un.org/lbw/jobdetail.aspx?id=149131&Lang=en-US

Opportunities

Junior Professional Officers Program – United Nations Placement Opportunity, Australian Government 

The Junior Professionals Officers Program offers young APS employees the opportunity to gain hands-on experience in multilateral technical cooperation and international development. The deadline for applications is 13 February 2022. More information available here

Call for Papers, 29th Annual Conference of the Australian and New Zealand Society of International Law 

Call for papers on international law and global inter-connectedness. The deadline for papers is 21 February 2022. More information available here.  

Judicial Fellowship Programme, International Court of Justice  

The International Court of Justice (ICJ) invites applications from eligible universities around the world for the 2022-2023 Judicial Fellowship Programme (formerly known as the University Traineeship Programme). Universities must nominate candidates for the program, the Court does not accept applications from individuals. The deadline for applications is 13 February 2022. More information available here.  

60th Graduate Study Programme, United Nations 

The UN Graduate Study Programme is a two-week long summer seminar which provides an opportunity for participants to deepen their understanding of the United Nations and International Geneva through first-hand observations, lectures, research, and visits to Geneva-based institutions. The deadline for applications is 11 March 2022. More information available here

Events

Launch of the International Review of the Red Cross: Counterterrorism, Sanctions and War 

On 24 February 2022, the Australian Red Cross and the International Committee of the Red Cross are launching the latest edition of the International Review of the Red Cross, ‘Counterterrorism, Sanctions and War’. Guest speakers include Dr Helen Durham AO, Professor Ben Saul and Adrian Prouse. See here for more information and to register. 

Australian and New Zealand Perspectives on the Negotiations at UNCLOS III 

On 24 February 2022, the ANU Centre for International and Public Law will host an event the negotiations at the Third United Nations Conference on the Law of the Sea and of subsequent fisheries, boundary and marine environmental protection treaties, to the challenges of domestic implementation and the settlement of law of the sea disputes through international courts and tribunals. Guest speakers are Mr Henry Burmester AO QC, Mr Bill Mansfield, Dr Penny Ridings MNZM and Mr Richard Rowe PSM. See here for more information and to register. 

Sydney Centre for International Law Year in Review Conference 

On 25 February 2022, the Sydney Centre for International Law’s annual ‘year in review’ conference brings together expert speakers from around the world to give participants insight into the latest developments in international law over the preceding year, especially those most salient for Australia. The conference will include a keynote address by Professor Megan Davis, Pro Vice-Chancellor Indigenous at UNSW, on the topic ‘Public International Law and the Uluru Statement from the Heart’ and the launch of Non-Binding Norms in International Humanitarian Law with author, Associate Professor Emily Crawford, Sydney Law School. See here for more information and to register.