International law in Australia [Third edition] 9780455228310, 0455228310

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International Law in Australia

Thomson Reuters (Professional) Australia Limited 19 Harris Street Pyrmont NSW 2009 Tel: (02) 8587 7000 Fax: (02) 8587 7100 [email protected] legal.thomsonreuters.com.au For all customer inquiries please ring 1300 304 195 (for calls within Australia only) INTERNATIONAL AGENTS & DISTRIBUTORS NORTH AMERICA Thomson Reuters Eagan United States of America

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International Law in Australia THIRD EDITION

Edited by

Donald R Rothwell Emily Crawford Published for

THE AUSTRALIAN INSTITUTE OF INTERNATIONAL AFFAIRS

LAWBOOK CO. 2017

Published in Sydney by: Thomson Reuters (Professional) Australia Limited ABN 64 058 914 668 19 Harris Street, Pyrmont, NSW First edition Second edition

1965 1984

National Library of Australia Cataloguing-in-Publication entry Title: International law in Australia / edited by Donald R Rothwell, Emily Crawford. Edition: Third edition. ISBN: 9780455228310 (paperback) Notes: Includes Index. Subjects: International law—Australia. Australia—Foreign relations—Treaties. Australia—Foreign relations. Other Creators/Contributors: Rothwell, Donald R, editor. Crawford, Emily Dr, editor. © Thomson Reuters (Professional) Australia Limited 2017 This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the Copyright Act 1968, no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission. Inquiries should be addressed to the publishers. Editor: Puddingburn Publishing Services Pty Ltd Product Developer: Karen Knowles Publisher: Robert Wilson Typeset in Granjon LT, 11/13 by Midland Typesetters, Australia Printed by Ligare Pty Ltd, Riverwood, NSW This book has been printed on paper certified by the Programme for the Endorsement of Forest Certification (PEFC). PEFC is committed to sustainable forest management through third party forest certification of responsibly managed forests. For more info: www.pefc.org

Foreword

CHIEF JUSTICE ROBERT S FRENCH AC High Court of Australia The first edition of International Law in Australia edited by the late Professor DP O’Connell, then Professor of International Law at the University of Adelaide, was published in 1965. Sir Garfield Barwick, in the second year of his term as Australia’s longest serving Chief Justice, wrote the Foreword. He focussed upon growing Australian nationalism and independence and the way in which international developments shaped domestic debates. His perspectives were no doubt informed by his recent experience as Commonwealth Minister for External Affairs, the office he occupied immediately before his appointment as Chief Justice. Ironically, given the recent referendum decision in the United Kingdom in favour of leaving the European Union, one of the events to which he referred as affecting Australian attitudes was the ‘attempt by Britain to enter the Common Market’. In supporting the publication of the first edition, Sir Garfield wrote of ‘a great need in Australia both for the provision of much accurate and objective information about external affairs and for opportunities for examination and for discussion of the views of those who have brought special training or given study to the various aspects of our foreign relationships and associated problems.’ The book as he described it then, not only provided basic material attractively presented but emphasised a degree of maturity in national affairs of which he suspected the average Australian to be unaware ‘but of which upon his being informed, he will no doubt feel some degree of national pride.’ In 1984, when he wrote the Foreword to the second edition edited by Justice Kevin Ryan of the Supreme Court of Queensland, Sir Garfield was no longer Chief Justice, having retired in 1981. He had, however, maintained his interest in matters international, being President of the Australian Institute of International Affairs. He found no occasion to ‘withdraw or qualify’ anything he had written in 1964 but acknowledged with masterful v

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understatement that ‘in the meantime there has been a great deal of activity on the international scene’. What he called ‘intervening occurrences’ included the Vietnam War, the annexation of East Timor, the invasion of Afghanistan and the opening of relations with China. He observed a wide-spread interest in Australia’s participation in international situations and the colouring of popular attitudes to Australia’s policies and actions in those areas by domestic considerations. Perhaps he had in mind the well-known observation of the former speaker of the United States House of Representatives ‘Tip’ O’Neill, that ‘all politics is local’. Sir Garfield, however, was concerned that it would be to Australia’s disadvantage in its international relationships if ‘due to entrenched political attitudes, domestic issues were allowed to cloud our vision and our judgment in foreign affairs.’ Objective assessment and discussion of the factors involved in international situations was indispensible and its results needed to be available to as wide an audience as possible. So he expressed his support for the second edition, whose publication he said ‘should serve the requirements to which I have called attention …’ Each of the first and second editions of this work is a valuable compendium of wide-ranging scholarship by leading academics and practitioners in the field of international law. One cannot help but be struck by the list of contributors to the earlier volumes, many of whom are still remembered, or continue to be known, as household names in the Australian legal academy. That fact and the particular points in the history of international law and relations in the 20th century in which the earlier editions were produced, are significant. They mean that the earlier editions are still of considerable value to any who wish to understand the historical perspective in which the current state of the international legal order in its interaction with Australian domestic law and Australia’s part in that order, can be viewed. This third edition therefore is not simply to be seen as an ‘update’ which authorises the library stamp ‘superseded’ on its predecessors. It brings its readers to the fast moving wavefront of international law and practice relevant to Australia today. Its opening chapters deal with the large topics of Australia’s international personality, the interaction between international law and Australian domestic law, Australian treaty practice and procedure, Australian jurisdiction and international law and Australia’s part in the United Nations and other international organisations. There follows a group of three chapters with a human rights theme, the first on human rights generally, then a chapter on international protection of indigenous rights, followed by a discussion of asylum and refugee protection. The next group of three chapters deals with international and trans-national criminal law and law and practice with respect to international terrorism. There is a separate chapter on defence and military operations then three related chapters on international trade law, international economic law and Australia’s resources policies and international law. Diplomatic and consular immunities and privileges is a topic of perennial importance, treated in a separate chapter.

FOREWORD    vii

That chapter is followed by discussions of Australia’s coastal and offshore jurisdiction, the law of the sea and international environmental law. Air and space law are covered as distinct topics, followed by a chapter on Australia’s external territories and international law. The final chapter on Australia and international dispute settlement deals with a topic which has much contemporary relevance in the context of increasingly numerous and complex bilateral and multilateral international trade arrangements. Many of the chapter headings echo the headings of the previous editions, but there are a number which reflect contemporary concerns particularly in the increased space given to human rights and related issues, criminal law, environmental law, space law and international dispute settlement. I congratulate the editors on this publication, which is a worthy successor to those which have gone before. It has been 32 years since the last edition of this work. The pace of change in international relations and the international legal order is such that it is unlikely that we will have to wait 32 years for the next edition.

Preface

In recent decades Australian governments – principally through their Foreign Ministers – have often asserted that Australia is a ‘good international citizen’. This assertion is often justified by referencing Australia’s commitments to the United Nations and its various institutions and agencies, regional institutions and bodies such as APEC and the East Asian Forum, and its support for a variety of global, regional, and sub-regional mechanisms and initiatives. An important component of this good international citizenship is international law, and as Australia’s standing and engagement in the international community during the UN era has grown so too has the depth of Australia’s engagement and commitments under international law. The publication in 1965 of the first edition of this work recognised this growing phenomena, and the second edition in 1984 reaffirmed those developments and reflected the increasing prominence of international law in many aspects of Australian law and increasingly within Australian society. In 2016 the significance of international law for Australia has grown even further still. Not only has it become embedded in Australian law in areas as diverse as the environment, employment and industrial relations, human rights, intellectual property, and national security but it has also become embedded in aspects of the national psyche. The High Court of Australia’s 1983 decision in the Tasmanian Dam case not only was a milestone in Australian constitutional law which paved the way for the Commonwealth government to rely upon the provisions of a treaty to enact legislation to protect the Tasmanian environment, but it also brought to the attention of citizens the extent of Australia’s treaty obligations and in particular the World Heritage Convention. Since that time properties listed under the World Heritage Convention for their natural or cultural significance have become sites of global significance including the Tasmanian Wilderness, Uluru, Kakadu National Park, and the Sydney Opera House. Other examples can be pointed to in order to illustrate the significance of international law for Australian commerce, law, politics, and society including ix

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Australia’s network of bilateral Free Trade Agreements, transnational criminal enforcement mechanisms, measures for the protection of human rights, and the rights and responsibilities granted to Australia over the adjacent maritime domain. International law now has a centrality in Australian public discourse and debate that could hardly have been imaged when Professor O’Connell embarked on preparing the first edition. Contributions at that time very much reflected an Australia that was finding its way in the post War world as the UN began to mature as an institution against the backdrop of the Cold War. Australia’s commitments in a range of international institutions such as the UN, GATT, ILO, and South Pacific Commission, were properly the focus of analysis. Consideration was likewise given to developments in international law which had potential significance for Australia such as the law of the sea, overseas territories, Antarctica, and extradition. By the time of the second edition some of these topics were overtaken in significance by Australia’s developing treaty practices in areas such as human rights, inter­ national criminal law, defence, trade, and resources, while the law of the sea had enhanced prominence following the conclusion of the 1982 United Nations Convention on the Law of the Sea. This edition was designed with both an eye to the tradition established by earlier editions, and a recognition of new areas of international law that have growing significance for Australia. Nevertheless, while the current edition seeks to identify the major areas of international law engagement and practice for Australia, it does not claim to comprehensively cover the field of international law in Australia which would be impossible to cover in a single work. In preparing their chapters contributors were asked to appropriately reflect upon previous editions and relevant chapters from those works, and an effort has been made to cross reference those chapters. Readers should be aware of this dimension and if a historical overview of certain topics is required, the first and second editions should also be consulted. In preparing this edition we benefitted from the advice of Mr Bill Campbell QC, Professor Hilary Charlesworth, Professor Stuart Kaye, and Professor Gillian Triggs, and were delighted they were able to prepare chapters for inclusion. Contributors include Professors Peter Bailey and Ivan Shearer, who were also contributors to the first edition. Likewise Mr Henry Burmester QC, Judge James Crawford, and Professor Ivan Shearer have been able to contribute to both the second and this edition. We thank them and also extend our thanks to all of the other chapter contributors. Dr Paul Muggleton sadly passed away in 2013 after being an active contributor to Chapter 12. We honour his contribution to this edition and acknowledge the efforts of his co-authors to complete that chapter in his memory. We also acknowledge the support for this project provided by Chief Justice Robert French who kindly agreed to prepare a Foreword. A significant partner in this publication has been the Australian Institute of International

PREFACE    xi

Affairs and its Director, Dr Melissa Conley Tyler, has been an enthusiastic promoter of the work thereby continuing the Institute’s engagement in earlier editions. The Editors also with to extend particular thanks to Ms Michelle Nichols, for her copyediting work on the manuscript, and Ms Genevieve Lai, an intern at the Australian Institute of International Affairs, for her contribution to production of the manuscript. The law is stated as at 1 January 2016, though in many instances it has been possible to take into account more recent developments. Canberra and Sydney 1 August 2016

DONALD R ROTHWELL EMILY CRAWFORD

Reflections on the Occasion of the Third Edition of ‘International Law in Australia’ James Crawford* and Ivan Shearer†

The first edition of this volume of essays, which appeared in 1965, bears an almost antiquated look to the eyes of today’s readers. Some of the topics treated there are no longer of great interest, and, of course, the law has evolved significantly since that time, facing new circumstances and new challenges. It is notable that among the topics absent in the first edition are human rights, Indigenous rights, resources law, and (except for a minor excursus in the chapter on extradition) asylum and refugee law – all matters of great concern today and all properly covered in the present edition. The relationship between international law and Australian law in the first edition was dealt with in a mere six pages. The choice of topics, and the very appearance of the volume, emerge as a picture of that time – a time when Australia was only just beginning to become aware of the importance of international law, not least in respect of its impact on Australian law. Shortly before the appearance of the first edition, in 1959, an Australian Branch of the International Law Association had been established under the patronage of the then Chief Justice of Australia, Sir Owen Dixon. The composition of the first Branch Council was notably broad, extending across the judiciary, the bar, academia and the public service. The inaugural president was Mr Justice Wallace of the Supreme Court of New South Wales. The Vice-Presidents included Sir Stanley Burbury, Chief Justice of Tasmania, and * AC, SC, FBA, FAAL; Judge of the International Court of Justice; formerly Whewell Professor of International Law, Cambridge University; Challis Professor of International Law, University of Sydney. † AM, RFD, FAAL; Emeritus Professor of Law, UNSW Australia and University of Sydney; Adjunct Professor of Law, University of South Australia. xiii

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Sir Kenneth Bailey, Solicitor-General of the Commonwealth.1 Only seven of the 25 inaugural Council members were academics, in contrast to the Australian and New Zealand Society of International Law, with a predominantly academic membership, which was established much later in 1992. One wonders why the judiciary and the public service were more prominent than the academics in taking the initial steps in stimulating an interest in international law in Australia. One reason had to do with sheer numbers. In 1965, there were relatively few full-time law teachers, and fewer still specialists in subjects such as international law. The teaching of international law in Australian universities had an uneven record; if offered at all, it was as an elective.2 It was a time too when Australian courts still deferred to the decisions of the English courts – not only to the Judicial Committee of the Privy Council, by which they were formally bound, but also to the House of Lords and even the English Court of Appeal. But those times were beginning to change, with Dixon CJ’s emphatic and emotional rejection in 1963 of the reasoning on criminal intent in the then recent English case of Director of Public Prosecutions v Smith.3 The essays of the first edition, as stated by the Chief Justice of the High Court of Australia, Sir Garfield Barwick, in his foreword, ‘emphasise a degree of maturity in national affairs of which I suspect the average Australian is unaware’. But Barwick’s foreword said virtually nothing about international law: indeed, the term did not appear in the preface at all. The initiative to assemble the first volume of these essays was taken by Professor D P O’Connell, at that time Professor of International Law at the University of Adelaide.4 It was sponsored by the Australian Institute of ­International Affairs. 1

2

3 4

For the story of Bailey’s repeated attempts to seek election to the ICJ, see J Crawford, ‘“Dreamers of the Day”: Australia and the International Court of Justice’ (2013) 14 Melbourne Journal of International Law 520. I A Shearer, ‘The Teaching of International Law in Australian Law Schools’ (1983) 9 Adelaide Law Review 61–78; J Crawford, ‘Teaching and Research in International Law in Australia’ (1985) 10 Australian Year Book of International Law 176–201. Parker v The Queen (1963) 111 CLR 610, not following DPP v Smith [1961] AC 290. 1924–79. Born in New Zealand, he took his doctorate in international law (the still classic text on state succession) at Cambridge University under the supervision of Hersch Lauterpacht. He taught at Adelaide from 1953 to 1972, when he was elected Chichele Professor of Public International Law at Oxford University. He was credited as having, as junior counsel in Trendtex Trading Corporation v Central Bank of Nigeria [1977] 1 QB 529, persuaded Lord Denning MR to the ‘incorporation’ view of the relationship between international law and English law. O’Connell taught both authors: Shearer in 1958 (jurisprudence; international law was not offered at the time) and Crawford in 1968 (international law and a segment on political theory in the jurisprudence class). See further [I A Shearer], obituary, (1981) 7 Australian Year Book of International Law xiii; J Crawford, ‘The Contribution of Professor D P O’Connell to the Discipline of International Law’ (1980) 51 British Yearbook of International Law 1.

REFLECTIONS ON THE OCCASION OF THE THIRD EDITION    xv

The second edition appeared in 1984 under the editorship of K W Ryan.5 The foreword was again written by Sir Garfield Barwick. Rather surprisingly, he concentrated on the external aspects of the relationship between Australia and international law, no doubt drawing on his political experience as Minister of Foreign Affairs (1961–64). This time, the term ‘international law’ did appear, in his acknowledgement of Australia’s ‘contribution to the formulation of various aspects of international law’.6 But Barwick did not take matters much further than that. His reticence notwithstanding, the content of the second edition reflected a growing concern with the influence of international law on both the content of national law and its sympathetic application in light of inter­national standards.7 The chapter on Australia and the international protection of human rights, by J G Starke, filled an important gap. No fewer than four chapters were devoted to Australia and the law of the sea, three of them by public servants closely involved in pursuing Australia’s interests at the Third United Nations Conference on the Law of the Sea (‘UNCLOS III’), which began in 1972 and concluded in 1982, just before the second edition appeared. Also in 1984, volume 2 of O’Connell’s major work on the law of the sea was published – posthumously edited by one of the contributors to this preface.8 So, Australia’s contribution, practical and scholarly, to the formulation of the modern law of the sea was well marked in that year. Two other developments of that time which continue to exercise their influence were the 4:3 decision of the High Court in the Tasmanian Dam Case9 and the enactment, in advance of any treaty on the subject, of the Foreign States Immunities Act 1985 (Cth). The former was the subject of some (but hurried) treatment in the second edition,10 whereas the 1985 Act came too 5

6

7

8

9

10

Kevin Ryan CBE had previously been Garrick Professor of Law at the University of Queensland, in which capacity he taught international law, among other subjects. He was the first Australian scholar to specialise in the GATT (as WTO law then was), as well as the first academic lawyer to be appointed to high judicial office, serving on the Supreme Court of Queensland from 1984 to 1994. G Barwick, ‘Foreword to the Second Edition’, in K W Ryan (ed), International Law in Australia (Law Book Co, 2nd ed, 1984) vii. See the chapter of two halves by J Crawford and W R Edeson: ‘International Law and Australian Law’, in K W Ryan (ed), International Law in Australia (Law Book Co, 2nd ed, 1984) 71. D P O’Connell, The International Law of the Sea (I A Shearer ed, 2 vols, 1982–84, Oxford University Press). Commonwealth v Tasmania (1983) 158 CLR 1 (‘Tasmanian Dam Case’). See G Sawer, ‘The External Affairs Power’ (1984) 14 Federal Law Review 199 for a contemporary assessment of the decision. The Tasmanian Dam Case is summarised by Ryan in K W Ryan (ed), International Law in Australia (Law Book Co, 2nd ed, 1984) 52 and is discussed in more detail by J Crawford and W R Edeson: ‘International Law and Australian Law’, in K W Ryan (ed), International Law in Australia (Law Book Co, 2nd ed, 1984) 71.

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late for inclusion and, in its absence, state immunity was not treated in the second edition at all. These developments were, in their own way, emblematic of the changes between successive editions of International Law in Australia. A few words will be offered about each, before turning to the question whether the three successive editions provide insight into generational change in the study and practice of the subject in one country. The narrow majority of the Tasmanian Dam Case should not be allowed to obscure its fundamental importance in establishing the external affairs power (s 51(xxix) of the Constitution) as a plenary power concerning treaty ­implementation.11 Within the broadest limits, it is for the Commonwealth executive to make treaties and for the Parliament of the Commonwealth to imple­ment them insofar as legislative action is necessary or desirable to give effect to the powers they confer and the obligations they impose. The plenitude of the treaty-implementing aspect of the external affairs power has become a given for the current generation of Australian public lawyers. The limits on it – notably the requirement of consistency between the treaty and the implementing legislation – are applied with reasonable firmness, as is appropriate in dealing with a power to implement. And, of course, what a treaty authorises or requires depends on the interpretation of the treaty, which is a matter of international law. But there is no a priori limit as to the subject matter of treaties – a point long appreciated by international lawyers. In one sense, much of this was foreshadowed decades earlier. In R v Burgess; Ex parte Henry,12 it was held that s 51(xxix) was ‘an independent express legislative power’,13 and a majority of the Court effectively denied that it ‘is limited to matters which in se concern external relations or to matters which may properly be the subject matter of international agreement … the possible subjects of international agreement are infinitely various’.14 But the Court was evidently feeling its way, and it took a series of majority (hence contentious) decisions to reach the point that effectively any treaty concluded by the Commonwealth enlivens the power, a proposition described as ‘extreme’ by Dixon J in Burgess,15 and resisted by Stephen J in his crucial, 11

12 13 14

15

This is not the place for an assessment of other aspects of the external affairs power, especially as concerns matters ‘geographically external’ to Australia. In its application to the continental shelf, this was uncontroversial in New South Wales v Commonwealth (1975) 135 CLR 337 (‘Seas and Submerged Lands case’), and it has been applied in a variety of contexts (for example, to war crimes in Polyukhovich v Commonwealth (1991) 172 CLR 501). But it imports its own difficulties, as is clear from XYZ v Commonwealth (2006) 227 CLR 532 and the recent decision concerning refugee processing in Nauru, Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 90 ALJR 297. (1936) 55 CLR 608. R v Burgess; Ex parte Henry (1936) 55 CLR 608, 639 (Latham CJ). R v Burgess; Ex parte Henry (1936) 55 CLR 608, 640 (Latham CJ, Evatt and McTiernan JJ concurring). R v Burgess; Ex parte Henry (1936) 55 CLR 608, 669 (Dixon J).

REFLECTIONS ON THE OCCASION OF THE THIRD EDITION    xvii

effectively casting, vote in Koowarta.16 It was only with the generous ‘reinterpretation’ of Stephen J’s position, adopted by the majority in the Tasmanian Dam Case, that the scope of constitutional authority on treaty implementation can be considered to have been settled – and settled in the broad sense expressed by Latham CJ in Burgess. Foreshadowed or not, we cannot resist an anecdote concerning the announcement of the Tasmanian Dam decision. The High Court handed down its decision while sitting on circuit in Brisbane. One of the authors happened to be passing the Queensland Supreme Court that morning (on the way to a consultation with Queensland government officials on the proposed state immunity legislation), only to observe a young man with long hair emerge suddenly from the Court and bound down the steps, shouting with enthusiasm ‘No dams, no dams!’ Perhaps fortunately – because the bounding was a significant aspect of the enthusiasm – the Court steps were fairly empty, but it was thus that the decision was made known to the non-legal world. The Tasmanian Dam Case has generated further practices of consultation, with the Parliament (through advance tabling of treaties and scrutiny by the Joint Standing Committee on Treaties), with the states and, to some extent, with the public. The practice of impact statements (referred to as national interest assessments) has been instituted. Regulation impact statements are sometimes also required. It would not be unfair to suggest that these have had only the limited impact that impact statements usually have. These developments are traced in further detail in chapter 3 of the present volume.17 But following the Tasmanian Dam Case, there can be no doubt that it is the Commonwealth that holds the whip hand in terms of decisional authority. The other unrehearsed event contemporary with the publication of the second edition was the Foreign States Immunities Act 1985. This was legislation enacted without any relevant treaty commitment: the United Nations Convention on Jurisdictional Immunities of States and Their Property18 was concluded 20 years after the Australian Law Reform Commission’s report on which the Australian Act was based.19 Somewhat surprisingly, the 1985 Act is not referred to in this volume, despite the fact that it was carefully prepared based on extant overseas legislation and that it contains 16 17

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Koowarta v Bjelke-Petersen (1982) 153 CLR 168, 211–21. For an account of current practices, see Tasmania, Department of Premier and Cabinet, Treaties: Policy & Procedures Manual (Hobart, 2014). United Nations Convention on Jurisdictional Immunities of States and Their Property, GA Res 59/38, Annex, UN Doc A/RES/59/38 (2 December 2004) (not yet in force). At the time of writing, 21 states had become parties to the 2004 convention; 30 are required in order for it to enter into force (see art 30). Australia is not a party. Australian Law Reform Commission, Foreign State Immunity, Report No 24 (1984). The Act was amended in 2009 to allow for immunity in the case of foreign states or their separate entities acting ‘for the purposes of preparing for, preventing or managing emergencies or disasters (whether natural or otherwise) in Australia’ (s 42A).

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some innovative provisions. In this volume, the only discussion of immunity occurs in chapter 8, concerning the immunity from criminal prosecution in Australia of foreign heads of state – a controversial issue which the 1986 Act expressly does not cover. Although Australia is not a major forum for civil litigation against foreign states, state immunity remains a valid limitation on forum court jurisdiction. Indeed, it is more – an important tool in preserving the essentially horizontal character of the state system, which remains the key feature of international law, and is a predicate for most international cooperation. Furthermore, cases have occurred since 1986. For example, in PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission, the High Court unanimously adopted a broad construction of ‘commercial transaction’, extending it to alleged anticompetitive arrangements or understandings between the state-owned agency Garuda and other airlines – contrary to the Trade Practices Act 1974 (Cth).20 In FG Hemisphere Associates LLC v Democratic Republic of Congo, the Court of Appeal of New South Wales allowed a claim by a ‘vulture fund’ to enforce an arbitral award against the Democratic Republic of Congo.21 By contrast, in Firebird Global Master Fund II Ltd v Republic of Nauru, the same court declined to allow enforcement of a Japanese court order for ¥1.3 billion (approximately A$31 million) on the twin grounds that first, proceedings to enforce a foreign judgment were not proceedings concerning a commercial transaction under s 11 of the Act, even if the underlying claim was a commercial transaction as defined, and second, that the New South Wales bank accounts sought to be garnisheed were not used or intended to be used for commercial purposes and were therefore immune in any event.22 And, in Habib v Commonwealth, the Full Federal Court considered key issues concerning the foreign act of state doctrine and (obiter) its relation to state immunity.23 *  *  * The successive editions of his work spanning 50 years (1965, 1984 and 2017) invite some comparisons. First, there is the changing cast of scholars and practitioners who produced the various chapters. The balance between university teachers and Canberra public servants (predominantly from the Attorney-General’s Department and the Department of Foreign Affairs and Trade24) has changed to some degree, although both groups continue to be well represented. This reflects the practice of annual meetings in Canberra at 20 21 22 23 24

(2012) 247 CLR 240. [2010] NSWSC 1394 (1 November 2010). (2014) 289 FLR 373. (2010) 183 FCR 62. The balance of international law responsibilities as between the Attorney General’s Department and DFAT has itself changed over time. Although a matter of administrative practice and institutional memory, its evolution could with advantage have been recorded in this volume.

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which the current agenda items of international law and government policy can be presented and discussed.25 As to the agenda items themselves, there has been both continuity and change. The first edition focused to some extent on the infrastructure of international law in Australia – a developing legal personality, diplomatic and consular relations, treaty-making and the classical law of the sea as reflected in the 1958 Geneva Conventions. The second edition coincided with the enormous codification effort of UNCLOS III, to which Australia made a major contribution. By the third edition, the ‘new’ law of the sea has been largely digested – notably following the presentation of Australia’s outer continental shelf claims and their substantial endorsement by the Commission on the Limits of the Continental Shelf (see chapters 17 and 18). International trade law has also undergone major change, though building on the old framework of the GATT (see chapter 13). Other changes in subject matter include the emphasis on international criminal law and the less optically prominent but at least equally important field of transnational criminal law and cooperation. These are rightly given separate and substantial treatment here (see chapters 9 and 10). Transnational cooperation in criminal matters is, of course, not new (though greatly expanded to cope with terrorist threats), whereas the field of international criminal law as applied by international courts and tribunals is almost completely new and (like UNCLOS III) has benefited substantially from Australian involvement. Mention should also be made of the expansion of international human rights (chapter 6) and Indigenous rights (chapter 7), in both of which Australia has demonstrated a certain vulnerability. The same can be said with regard to the treatment of refugees and asylum seekers (chapter 8). In common with many other states, Australia has been actively involved in international litigation (see chapter 23). This has included five outings in contentious cases before the International Court of Justice (Nuclear Tests,26 Phosphate Lands,27 East Timor,28 Whaling in the Antarctic,29 and Certain Documents30), twice as applicant and three times as respondent.31 It has also 25

26 27 28 29 30

31

We record with gratitude the initiative for such annual meetings, taken by Sir Elihu Lauterpacht QC in 1975 during his period of seconded service as legal adviser to the Department of Foreign Affairs (as it then was). Nuclear Tests (Australia v France) (Judgment) [1974] ICJ Rep 457. Certain Phosphate Lands in Nauru (Nauru v Australia) (Preliminary Objections) [1992] ICJ Rep 240. East Timor (Portugal v Australia) [1995] ICJ Rep 90. Whaling in the Antarctic (Australia v Japan: New Zealand Intervening) [2014] ICJ Rep 226. Questions Relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v Australia) (Provisional Orders) [2014] ICJ Rep 147. Australia also made submissions before the Court in the two Nuclear Weapons advisory opinions. This included an oral appearance in which Gavan Griffith SG explained that the question was effectively unanswerable (CR 95/22, 30 October 1995, 29–33) and Gareth Evans, then Minister for Foreign Affairs, gave the answer (at 36–60). For the outcome (if that is not too strong a term), see Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226.

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included various engagements before the Dispute Settlement Body of the World Trade Organization, plus sundry arbitrations. There has also been a steady stream of cases before Australian courts, notably the High Court, with somewhat uneven results.32 But, if the rule of law is to flourish internationally as well as domestically, the courts’ role will be vital. Above all, one is struck by the greatly increased scope of international law and of the corresponding demands made on Australian lawyers, whether within the universities, in government departments and the armed forces (see chapters 11 and 12), or elsewhere. Their capacity to meet these demands, as their predecessors did, is attested in the chapters that follow. James Crawford – The Hague Ivan Shearer – Adelaide

32

Cf J Crawford, ‘International Law in the House of Lords and the High Court of Australia 1996–2008: A Comparison’ (First Michael Kirby Lecture in International Law, Canberra, 27 June 2008) (2008) 28 Australian Year Book of International Law 1.

The Australian Institute of International Affairs (AIIA) is an independent, non-profit organisation fostering interest in and understanding of international affairs in Australia. It provides a forum for discussion and debate but does not develop or promote its own institutional views. Each year, the AIIA stages more than 150 public and specialist lectures, seminars and other events around Australia. It works with leaders in international affairs from across government, business, academia and the diplomatic corps to deepen the appreciation of global issues, with a particular focus on youth engagement. The institute also plays an important role in facilitating high-level inter­ national dialogues. Although the AIIA does not develop institutional views, it sponsors leading research and publications including the Australian Journal of International Affairs and the Australian Outlook blog. Established in 1924 in association with Chatham House, it is the only nationwide membershipbased organisation of its kind in Australia and is widely recognised as one of the leading think tanks in Southeast Asia. For further information, contact (02) 6282 2133 or visit www.internationalaffairs.org.au.

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Table of Contents

Forewordv Preface ix Reflections on the Occasion of the Third Edition of ‘International Law in Australia’xiii Australian Institute of International Affairsxxi Notes on Contributorsxxxv Table of Casesxlix Table of Statuteslix Table of Treatieslxix Abbreviationsxci

1 Australia’s International Personality: Historical, Legal and Policy Perspectives

1

Melissa Conley Tyler, Emily Crawford and Shirley V Scott I INTRODUCTION II THE EMERGENCE OF AUSTRALIA’S INTERNATIONAL PERSONALITY: THE LEGAL JOURNEY TO FULL POWERS A From Settlement to the First World War B Towards the Second World War and Full International Personality

1 2 2 5

III AUSTRALIA’S PLACE IN CONTEMPORARY INTERNATIONAL AFFAIRS 8 A Australia as a Top 20 Nation 8 B Australia as a Middle Power 9 C Australia’s Foreign Policy Goals: Security, Prosperity and Global Contribution 12 1 Bilateral Relationships13 2 Regionalism15 3 Multilateralism16 D Australia’s Global Ambitions  17 xxiii

xxiv    INTERNATIONAL LAW IN AUSTRALIA

E ‘Characterising Australia’s Engagement with International Law’, or ‘Is Australia a Good International Citizen?’ IV CONCLUDING THOUGHTS

2 International Law and Australian Law

18 22

23

Annemarie Devereux and Sarah McCosker I INTRODUCTION 23 II GENERAL RELATIONSHIP BETWEEN INTERNATIONAL LAW AND DOMESTIC LAW 23 A Movement towards Greater Complexity 23 B Theories Regarding the Relationship between International Law and Domestic Law 24 1 Monism and Dualism24 2 The Incorporation and Transformation Approaches25 C Constitutional Framework 26 III TREATY LAW AND AUSTRALIAN LAW 26 A Who Has the Power to Enter into Treaties? 26 B What Is the Effect of Treaties on Domestic Law? 27 C Implementation of Treaties 28 1 External Affairs Power29 IV CUSTOMARY INTERNATIONAL LAW AND AUSTRALIAN LAW A Historical Background B Extent of Australian Authority on Point

31 32 33

V INDIRECT EFFECT OF INTERNATIONAL LAW  A Influencing Development of the Common Law B Informing Presumptions of Statutory Interpretation C Interpretation of the Constitution D Affecting Exercise of Administrative Power and Executive Discretion

36 36 39 42 44

VI CONCLUSIONS, AND LOOKING TO THE FUTURE

46

3 Australian Treaty Practice

49

David Mason, Wendy Lacey and Elizabeth Toohey I INTRODUCTION II TREATIES AND THE CONSTITUTION A The Changing Role of Parliament in the Treaty-Making Process B The 1996 Reformed Treaty-Making Process: Towards More ‘Democratic’ Treaty-Making

49 50 52 53

III THE VIENNA CONVENTION ON THE LAW OF TREATIES A Reservations to Treaties B Interpretation of Treaties

57 59 61

IV DOCUMENTS OF LESS THAN TREATY STATUS V CONCLUSION

66 68

TABLE OF CONTENTS    xxv

4 Australian Jurisdiction and International Law

Camille Goodman and Donald R Rothwell I INTRODUCTION II CONTEMPORARY DEVELOPMENTS IN JURISDICTION III AUSTRALIAN STATE PRACTICE A Territorial Principle B Nationality Principle  C Passive Personality Principle  D Universality Principle E Protective Principle F Effects Doctrine

71 73 74 74 77 80 81 84 85

IV BARRIERS TO THE EXERCISE OF AUSTRALIAN JURISDICTION A Japanese Whaling in the Southern Ocean B Foreign Blocking Statutes/Antitrust Matters

87 87 89

V CONTEMPORARY ISSUES A Mutual Assistance/Law Enforcement B Australian Military Law: Re Colonel Aird C Amicus Curiae Briefs in Proceedings before US Courts

90 90 91 93

5 Australia and International Organisations

95

Alison Pert and Hitoshi Nasu I INTRODUCTION II AUSTRALIA AND THE LEAGUE OF NATIONS III AUSTRALIA AND THE UNITED NATIONS A 1945–1972 B 1972–1983: The Whitlam and Fraser Governments C 1983–1996: The Hawke and Keating Labor Governments D 1996–2007: The Howard Era E 2007–2013: The Rudd and Gillard Governments F 2013–2016: The Abbott and Turnbull Governments

95 96 99 99 103 105 109 112 114

IV CONCLUSION

115

6 Australia and the International Protection of Human Rights

71

117

Hilary Charlesworth and Gillian Triggs I INTRODUCTION II AUSTRALIA’S CONSTITUTIONAL AND COMMON LAW PROTECTION OF HUMAN RIGHTS III AUSTRALIA AND THE INTERNATIONAL HUMAN RIGHTS SYSTEM IV IMPLEMENTATION OF HUMAN RIGHTS TREATY COMMITMENTS IN AUSTRALIAN LAW V INTERNATIONAL SCRUTINY VI EMERGING HUMAN RIGHTS ISSUES FOR AUSTRALIA

117 118 121 128 131 136

xxvi    INTERNATIONAL LAW IN AUSTRALIA

7 Australia and the International Protection of Indigenous Rights

139

Mick Dodson, Asmi Wood and Peter Bailey I INTRODUCTION 139 II THE DESTRUCTIVE IMPACT OF THE DISCOVERY DOCTRINE 140 III RACIAL DISCRIMINATION 145 IV RIGHTS TO LAND AND WATERS 147 V COASTAL WATERS 151 A The Blue Mud Bay Case 152 B The Akiba Determination 154 1 Akiba Issue 1154 2 Akiba Issue 2155 3 Akiba Issue 3156 4 The High Court Decision157 VI SELF-DETERMINATION A Lack of International Recognition B Australian Developments C Towards Implementation of the DRIP

159 159 160 162

VII ISSUES FOR THE FUTURE

163

8 Nationality, Asylum and Refugee Law in Australia

Penelope Mathew I INTRODUCTION II NATIONALITY AS A SOURCE OF PROTECTION FOR THE HUMAN PERSON A Australian Citizenship Law B Diplomatic Protection of an Australian Citizen — the Case of David Hicks  III ASYLUM AND REFUGEES IN INTERNATIONAL LAW A The Legality of Migrating to Secure Protection B Refugee Status and Protection in Australia C Mandatory Detention: A Reaction to the Second Wave of Boat People D The Third (and Fourth?) Wave of Boat People: Switching Australia’s Protective Response Off, On and Off Again IV CONCLUSION

9 Australia and International Criminal Law

165 165 166 168 173 176 179 182 186 191 198

201

Andrew Byrnes I INTRODUCTION

201

TABLE OF CONTENTS    xxvii

II AUSTRALIA AND WAR CRIMES PROSECUTIONS IN THE AFTERMATH OF THE SECOND WORLD WAR III AUSTRALIA, THE GENEVA CONVENTIONS AND INTERNATIONAL HUMANITARIAN LAW A Alleged War Crimes Committed by Members of the Australian Defence Forces

203 206 210

IV RENEWED INTEREST IN THE PROSECUTION OF WAR CRIMINALS IN THE 1980s211 V AUSTRALIA AND THE INTERNATIONAL CRIMINAL TRIBUNALS 215 VI AUSTRALIA AND THE INTERNATIONAL CRIMINAL COURT 216 A The Negotiation of the Rome Statute and the Ratification Debate 216 B Implementation in Australian Law and Practice 218 C Subsequent Engagement with the ICC 219 D Communications to the ICC by Civil Society in Relation to Australian Nationals 221 VII THE CASE OF DAVID HICKS VIII INCORPORATION OF OTHER INTERNATIONAL CRIMES INTO AUSTRALIAN LAW IX IMMUNITY UNDER AUSTRALIAN LAW AND THE INVESTIGATION AND PROSECUTION OF INTERNATIONAL CRIMES A Efforts to Bring Proceedings against Visiting Leaders or Officials  X CONCLUSION

10 Transnational Criminal Law in Australia

223 227 228 230 231

233

Robin Warner and Marika McAdam I INTRODUCTION II INTERNATIONAL LAW FRAMEWORK FOR TRANSNATIONAL CRIMINAL LAW A United Nations Convention against Transnational Organized Crime B Trafficking in Persons Protocol C Smuggling of Migrants Protocol III AUSTRALIAN IMPLEMENTATION OF TRANSNATIONAL CRIMINAL LAW A Implementation of the United Nations Convention against Transnational Organized Crime B Implementation of the Trafficking Protocol C Implementation of the Migrant Smuggling Protocol

233 235 236 238 240 243 244 244 247

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IV AUSTRALIA’S CRIMINAL JUSTICE COOPERATION RELATIONSHIPS251 A Formal Cooperation Mechanisms: Extradition and Mutual Legal Assistance  252 B Informal Cooperation Mechanisms: Australia in Southeast Asia 255 V CONCLUSION

11 Australia and International Counter-Terrorism Law and Practice

257

261

Ben Saul I INTRODUCTION 261 II AUSTRALIA’S ROLE IN INTERNATIONAL LAW-MAKING AND IMPLEMENTATION263 A Anti-Terrorism Treaties 263 B UN General Assembly Resolutions 268 C UN Security Council Measures 274 1 Resolution 1267 (1999)274 2 Resolution 1373 (2001)275 3 Terrorist Financing Obligations275 4 Other Elements of Resolution 1373276 5 Nuclear, Biological and Chemical Weapons Controls281 6 Resolution 2178 (2014): ‘Foreign Fighters’282 7 Australia’s Membership of the Security Council 2013–14282 III AUSTRALIA AND REGIONAL COOPERATION IV BILATERAL AGREEMENTS V HUMAN RIGHTS VI CONCLUSION

12 The ADF and Military Operations

283 285 286 288

291

Dale Stephens, Rob McLaughlin and Paul Muggleton I INTRODUCTION II INTERNATIONAL AND DOMESTIC LEGAL INTERFACE A Treaties Signed, Ratified and Implemented B Treaties Signed, but Not Yet Ratified or Implemented C The Increasing Importance of Soft Law

291 293 294 296 297

III ADF LAW ENFORCEMENT OPERATIONS A Border Protection and the ADF B Executive Authority and ADF Operations  C Part IIIAAA of the Defence Act 

297 299 300 301

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IV THE ADF AND PEACE OPERATIONS 303 A East Timor: INTERFET 304 1 SC Resolution 1264: INTERFET305 2 INTERFET Land, Air and Maritime Operations306 B UN Operations and National Law  307 V THE ADF AND ARMED CONFLICT 308 A International Humanitarian Law and Operations: The General Structure and Process 308 B Legal Interoperability  309 1 International Humanitarian Law and International Human Rights Law 310 2 Weapons Reviews 315 VI CONCLUSION

13 Australia and International Trade Law

316

317

Andrew D Mitchell, Elizabeth Sheargold and Tania Voon I INTRODUCTION 317 II AUSTRALIA AND THE WORLD TRADE ORGANIZATION 318 A Australia in GATT and WTO Negotiations 318 B Australia’s Involvement in WTO Committees 321 C Australia in WTO Disputes 322 1 Overview322 2 Sanitary and Phytosanitary Disputes325 3 Disputes Involving Subsidies and Trade Remedies327 4 GATT Article XX: Korea – Various Measures on Beef331 D WTO Review of Australian Trade Law and Policy 332 III AUSTRALIA’S PREFERENTIAL TRADE AGREEMENTS IV CONCLUSION

14 Australia and International Commercial Law

335 340

343

Vivienne Bath I INTRODUCTION II INTERNATIONAL MONETARY LAW III INTERNATIONAL COMMERCIAL LAW IV HARMONISATION THROUGH CONVENTIONS: UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS V CARRIAGE OF GOODS BY SEA VI HARMONISATION THROUGH MODEL LAWS VII HARMONISATION THROUGH INTERNATIONAL PRACTICE AND GUIDELINES VIII CONCLUSION

343 345 351

354 357 361 362 363

xxx    INTERNATIONAL LAW IN AUSTRALIA

15 Australia’s Resources Policies and International Law

365

Donald R Rothwell and Susan Reye I INTRODUCTION II CONTEXT OF AUSTRALIAN RESOURCES POLICY AND INTERNATIONAL LAW III OFFSHORE MARINE LIVING RESOURCES A Straddling Fish Stocks and Highly Migratory Species B Regional Fisheries Management Organisations  C Enforcement Agreements D Australian Fisheries Law and Policy E Special Areas Exempted from the Australian Fishing Zone

366 367 368 369 371 373 376

IV OFFSHORE PETROLEUM RESOURCES V WATER RESOURCES VI URANIUM EXPORT POLICY AND INTERNATIONAL LAW VII CONCLUDING REMARKS

377 379 383 386

16 Diplomatic and Consular Immunities and Privileges in Australia

389



365

Katherine Cook I INTRODUCTION II PRIVILEGES AND IMMUNITIES A State Practice and Reciprocity 

389 390 390

III DIPLOMATIC PRIVILEGES AND IMMUNITIES  391 A The Vienna Convention on Diplomatic Relations 391 1 Obligations on Diplomatic Agents392 2 Implementation of the VCDR in Australian Law393 3 Immunities: Inviolability and Immunity from Search393 4 Inviolability of the Archives, Documents, Personal Papers and Property395 5 Immunity from Jurisdiction 396 6 Maintenance and Waiver of Immunity398 7 The Period of Immunities399 8 Privileges400 9 Immunities and Family Members401 IV CONSULAR IMMUNITIES AND PRIVILEGES A Immunities: Inviolability and Immunity from Search  B Immunity from Jurisdiction

402 404 405

V HONORARY CONSULS VI INTERNATIONAL ORGANISATIONS VII OVERSEAS MISSIONS VIII EMERGING ISSUES: DUAL CITIZENSHIP

406 407 408 409

TABLE OF CONTENTS    xxxi

17 Australia’s Coastal and Offshore Jurisdiction

Henry Burmester and Rachel Baird I BACKGROUND II THE OFFSHORE CONSTITUTIONAL SETTLEMENT III AUSTRALIA’S OFFSHORE ZONES A Internal Waters B Territorial Sea Limits and Baselines C Contiguous Zone D Exclusive Economic Zone E Continental Shelf

411 414 416 416 417 418 418 419

IV COMMONWEALTH–STATE DIVISION OF RESPONSIBILITIES V PARTICULAR ISSUES ARISING IN OFFSHORE AREAS A Crimes at Sea B Marine Parks and Reserves C Historic Wrecks and Underwater Heritage D Shipping E Marine Pollution F Offshore Enforcement G Offshore Native Title

419 420 420 421 423 423 425 428 429

VI CONCLUSION

430

18 Australia and the Law of the Sea

411

433

Stuart Kaye and Bill Campbell I INTRODUCTION II MARITIME ZONES A The Territorial Sea Baseline B Territorial Sea and Internal Waters C Contiguous Zone D Exclusive Economic Zone E Continental Shelf F Archipelagic Waters

433 434 435 436 437 437 438 440

III DELIMITATION OF MARITIME ZONES A Principles of Delimitation B Australian Maritime Delimitation

441 441 443

IV AREAS BEYOND NATIONAL JURISDICTION A High Seas B Deep Seabed C Maritime Enforcement on the High Seas

446 446 446 448

V TRANSIT PASSAGE THROUGH INTERNATIONAL STRAITS

449

xxxii    INTERNATIONAL LAW IN AUSTRALIA

VI MARINE SCIENTIFIC RESEARCH A Australian Practice

451 452

VII PROTECTION OF THE MARINE ENVIRONMENT VIII DISPUTE SETTLEMENT IX THE WAY FORWARD

452 455 455

19 Australia and International Environmental Law

457

Jacqueline Peel and Tim Stephens I INTRODUCTION 457 II AUSTRALIA’S ENGAGEMENT WITH INTERNATIONAL ENVIRONMENTAL LAW 458 III DEVELOPMENT OF INTERNATIONAL ENVIRONMENTAL LAW 459 A Foundational Principles  461 B World Heritage 462 C Hazardous Substances and Pollution 464 1 Trade and Disposal of Hazardous Wastes465 2 Chemicals Regulation467 D Biodiversity Conservation 469 1 Species Protection469 2 Conservation of Biological Diversity471 E Atmospheric Pollution 475 1 Ozone Depletion476 F Climate Change 477 1 1997 Kyoto Protocol478 2 2015 Paris Agreement479 3 Implementation of International Climate Change Law in Australia481 IV CONCLUSION

20 Australia and International Air Law

482

485

Ron Bartsch I INTRODUCTION II AIR LAW A Aviation Law 

485 486

B International Air Law  C International Treaty Law  D Sovereignty of Territorial Airspace

487 488 489 489

III THE CHICAGO CONVENTION A Freedoms of the Air B International Civil Aviation Organization

492 494 496

IV THE WARSAW CONVENTION V THE MONTREAL CONVENTION

497 499

TABLE OF CONTENTS    xxxiii

VI DIFFERENCES BETWEEN THE WARSAW AND MONTREAL CONVENTIONS502 A International Carriage by Air 503 B Interpreting International Air Conventions 505 VII CONCLUDING THOUGHTS: GLOBALISATION OF AVIATION

21 Australia and International Space Law

506

507

Steven Freeland I AUSTRALIA’S EARLY SPACE HERITAGE 507 II AN OVERVIEW OF THE INTERNATIONAL LAW OF OUTER SPACE 509 III INTERNATIONAL SPACE LAW IN AUSTRALIA: THE SPACE ACTIVITIES ACT 1998 513 A Incorporation of Australia’s International Obligations into National Law  515 1 An Interpretation of ‘National Activities’515 2 Restrictions on Certain Types of Weapons 516 3 Establishment of a Licensing Regime for Non-Governmental Entities517 4 Creation of (Criminal) Offences for Noncompliance with Licence Requirements518 5 Establishment of an Appropriate Government Body 519 6  Clarification of the ‘Geographical’ Ambit of the Legislation (‘What Is Outer Space’?)519 7  Establishment of a National Register and a Mechanism to Furnish Information for the United Nations Register521 8 A Requirement of ‘Direct Financial Responsibility’ for Third-Party Claims522 IV RECENT INITIATIVES AND DEVELOPMENTS A Senate Inquiry Report (2008) B Department of Defence White Paper (2009)  C Establishment of the Space Policy Unit (2009) D Release of ‘Principles for a National Space Industry Policy’ (2011) E Finalisation of Australia’s ‘Satellite Utilisation Policy’ (April 2013) F Review of the Space Activities Act 1998 (2015–16)

525 525 526 528 529 530 531

V CONCLUDING REMARKS

532

22 Australia’s External Territories and International Law 535

Rosemary Rayfuse I INTRODUCTION II THE EXTERNAL TERRITORIES AND THE ACQUISITION OF TERRITORIAL SOVEREIGNTY A Norfolk Island  B Ashmore and Cartier Islands

535 536 537 538

xxxiv    INTERNATIONAL LAW IN AUSTRALIA

C D E F G

The Australian Antarctic Territory Heard and McDonald Islands Cocos (Keeling) Islands Christmas Island The Coral Sea Islands

III THE LEGISLATIVE FRAMEWORK FOR THE EXERCISE OF SOVEREIGNTY OVER THE EXTERNAL TERRITORIES IV AUSTRALIA’S RIGHTS AND RESPONSIBILITIES IN RESPECT OF ITS EXTERNAL TERRITORIES A Responsibilities in the Uninhabited External Territories B Responsibilities in the Inhabited External Territories V THE AUSTRALIAN ANTARCTIC TERRITORY: ‘FROZEN’ IN TIME? VI CONCLUSION

23 Australia and International Dispute Settlement

539 539 540 541 542 543 545 548 550 555 560

561

Henry Burmester, Natalie Klein and Kate Miles I INTRODUCTION II NEGOTIATION AND CONSULTATION III MEDIATION AND CONCILIATION IV DISPUTE SETTLEMENT CLAUSES IN TREATIES V AUSTRALIA AT THE INTERNATIONAL COURT OF JUSTICE A Nuclear Tests  B Certain Phosphate Lands in Nauru C Case Concerning East Timor D Japanese Whaling E Seizure and Detention of Documents

561 561 563 564 569 569 571 573 574 576

VI DISPUTE SETTLEMENT THROUGH THE WTO VII DISPUTE SETTLEMENT UNDER THE LOSC A Southern Bluefin Tuna B Volga Prompt Release C Conciliation in Relation to Maritime Boundaries

577 580 580 583 584

VIII AUSTRALIA’S CONTRIBUTION TO ADVISORY OPINIONS IX AUSTRALIANS AS JUDGES AND ARBITRATORS X CONCLUSION

585 586 586

Index589

Notes on Contributors

EDITORS Dr Emily Crawford is a senior lecturer and Co-Director of the Sydney Centre for International Law (SCIL) at the Sydney Law School at the University of Sydney. Previously at the Law Faculty at the University of New South Wales, Emily completed her arts and law degrees before working as a researcher at the Australian Broadcasting Corporation, returning to UNSW to undertake her PhD. Her doctoral thesis on the disparate treatment of participants in armed conflicts was published by Oxford University Press in 2010. A member of the International Law Association’s (ILA) Committee on Non-State Actors, the ILA Working Group on Cyber-Terrorism, and the NSW Red Cross IHL Committee, Emily’s most recent research project examined major developments in the conduct of armed conflicts in the 21st century, such as cyber warfare, targeted killings, and the increasing presence of civilians directly participating in armed conflicts. The research project was published in 2015 by Oxford University Press as Identifying the Enemy: Civilian Participation in Armed Conflict. Professor Donald R Rothwell is Professor of International Law at the ANU College of Law, Australian National University where he has taught since July 2006. His research has a specific focus on law of the sea, law of the polar regions, and implementation of international law within Australia. Rothwell has authored, co-authored or edited 21 books including The International Law of the Sea (2nd ed, 2016) with Stephens, and Rothwell, Oude Elferink, Scott and Stephens (eds), The Oxford Handbook of the Law of the Sea (2015). Major career works include The Polar Regions and the Development of International Law (1996), and Rothwell, Kaye, Akhtarkhavari, and Davis, International Law: Cases and Materials with Australian Perspectives (2nd ed, 2014). He is also Co-Editor of the Australian Year Book of International Law and since 2012 has been Rapporteur of the International Law Association (ILA) Committee on ‘Baselines under the International Law of the Sea’. Rothwell was previously xxxv

xxxvi    INTERNATIONAL LAW IN AUSTRALIA

Challis Professor of International Law and Director of the Sydney Centre for International and Global Law, University of Sydney (2004–2006), where he had taught since 1988.

CHAPTER AUTHORS Peter H Bailey AM OBE is an Honorary Professor in the ANU College of Law, where he has taught since January 1987. He started in the Commonwealth Public Service in 1946 and worked in the Attorney-General’s Department, the Treasury, the Prime Minister’s Department and the Department of the Cabinet Office. His concern for Australian and Torres Strait Islanders was kindled when he was working for Prime Minister Holt in preparation for the 1950 referendum. It has strengthened and deepened since then. He was a member of the 1974 Royal Commission on Australian Government Administration and worked for the 1975 Fraser Government in establishing the first Human Rights Commission while also negotiating with the States to obtain their consent to ratification of the ICCPR. He was appointed CEO of the Human Rights Commission in 1981 with Dame Roma Mitchell as Chair. When his term of office expired in 1985, he joined the ANU Faculty (later College) of Law as a Visiting Fellow and fulltime teacher and researcher. His main teaching and research interests are in public law, human rights law – both international and domestic – and in discrimination law. He has authored several books on human rights. Dr Rachel Baird holds a Masters and PhD in environmental law. Her thesis examined the cooperative management of marine fisheries resources between coastal states, regional fisheries organisations and high seas fishing states. She has lectured and researched international and domestic environmental law since 2000 (at the Universities of Melbourne and Queensland) and has published many papers and books, including co-editing Australian Coastal and Marine Law. She was an Adjunct Associate Professor at QUT Law from 2011 to 2015. Rachel has been advising clients in environmental law since 1997 both in private practice and more recently within the resources sector. She is a non-executive director with 10 years of board-level experience across the government, corporate (sporting and educational) and academic sectors. Prior to specialising in environmental law, Rachel was a military lawyer within the Royal Australian Air Force where she worked as a Staff Officer within HQADF and as the Assistant to the Judge Advocate General (then Judge Tony North of the Federal Court). Dr Ron Bartsch is a presiding member with the Commonwealth Administrative Appeals Tribunal (AAT), having held this position on a part-time basis since his appointment in 2013. Ron is also a Senior Visiting Fellow at the Australian National University and the University of New South Wales and lectures in Business Law and Technology and International Air Law. Ron

NOTES ON CONTRIBUTORS    xxxvii

was admitted as a barrister in 1993 and then took up a senior management position with the Australian Civil Aviation Safety Authority and then later was appointed as Head of Safety and Regulatory Compliance for Qantas Airways Limited and held this position until 2009. In 2010 Ron established AvLaw Inter­national Pty Ltd of which he remains Chairman. In this role he has provided regulatory and legal services in conjunction with law firms across a range of commercial sectors with a specialisation in administrative, business and aviation law. Ron is an independent director of Regional Express Holdings Limited and Chair of the Board Safety and Risk Management Committee and a former Director of the Australia Association of Unmanned Systems. He is author of numerous publications including the best-selling Aviation Law in Australia (4th ed) and International Aviation Law. Professor Vivienne Bath is Professor of Chinese and International Business Law at Sydney Law School, Director of the Centre for Asian and Pacific Law and Director of Research of the China Studies Centre Research Committee at the University of Sydney. Her teaching and research interests are in international business and economic law, private international law and Chinese law. She has first class honours in Chinese and in law from the Australian National University, and an LLM from Harvard Law School. She has also studied in China and Germany and has extensive professional experience in Sydney, New York and Hong Kong, specialising in international commercial law, with a focus on foreign investment and commercial transactions in China and the Asian region. Representative publications include Burnett and Bath, Law of International Business in Australasia (2009), ‘Foreign investment, the national interest and national security – foreign direct investment in Australia and China’ (2012) 34 Sydney Law Review, and ‘China and inter­ national investment policy – the balance between domestic and international concerns’ in Toohey, Picker and Greenacre (eds) China in the International Economic Order: New Directions and Changing Paradigms (2015). Henry Burmester AO, QC was Chief General Counsel in the Australian Attorney-General’s Department and in the Australian Government Solicitor between 1995 and 2009. Before that he was the department’s Head of the Office of International Law. Henry has appeared for Australia in cases before the International Court of Justice and international tribunals. He has been an arbitrator under the Law of the Sea Convention, and has been involved in law of the sea negotiations, including in relation to maritime boundary disputes. Professor Andrew Byrnes is Professor of Law at the University of New South Wales, where he is also Chair of the Steering Committee of the Australian Human Rights Centre based in the UNSW Law School, and serves on the Board of the Diplomacy Training Program and on the Advisory Committee of the International Women’s Rights Action Watch Asia Pacific.

xxxviii    INTERNATIONAL LAW IN AUSTRALIA

He teaches and writes in the fields of public international law, human rights, and international criminal/humanitarian law. His work includes publications on gender and human rights, national human rights institutions, economic and social rights, peoples’ tribunals, and the incorporation of human rights in domestic law. He served as President of the Australian and New Zealand Society of International Law from 2009 to 2013. From November 2012 to September 2014 he was external legal adviser to the Australian Parliamentary Joint Committee on Human Rights. He is a member of the editorial boards of the Australian Year Book of International Law and the Australian Journal of Human Rights. Bill Campbell PSM QC is General Counsel (International Law), Office of International Law, Attorney-General’s Department. He has been an adviser to successive Australian Governments on international law. He graduated in law at the University of Sydney and completed an LLM at University College, London focussing on international law. He was Agent and Counsel for Australia in the Southern Bluefin Tuna, Volga and Sub-Regional Fisheries Commission Advisory Opinion Cases before the International Tribunal for the Law of the Sea and in the Whaling in the Antarctic Case before the Inter­ national Court of Justice. He was also a counsel for Australia in the Questions Relating to the Seizure and the Detention of Certain Documents and Data Case before the ICJ and in the Tobacco Plain Packaging Arbitration (Philip Morris (Asia) v Australia). He led the Australian delegation to the Commission on the Limits of the Continental Shelf. He was, for a period, Vice-President of the Australian and New Zealand Society of International Law. Professor Hilary Charlesworth is Laureate Professor at Melbourne Law School. She also holds an appointment as Distinguished Professor at the Regulatory Institutions Network at the Australian National University. Her research and teaching interests include international human rights law and the domestic application of international norms. She chaired the Consultative Committee on an ACT Bill of Rights, which led to the adoption of the ACT Human Rights Act 2004. She is an Associate Member of the Institut de Droit International and a member of the Permanent Court of Arbitration. Dr Melissa H Conley Tyler is the National Executive Director of the Austra­ lian Institute of International Affairs, appointed in 2006. She is a lawyer and specialist in conflict resolution, including negotiation, mediation and peace education. She was previously Senior Fellow of Melbourne Law School and Program Manager of the International Conflict Resolution Centre at the University of Melbourne. She has an international profile in conflict resolution including membership of the Editorial Board of the Conflict Resolution Quarterly. During her 10 years with the AIIA, she has edited more than 45 publications, organised more than 70 policy events, overseen dramatic growth in youth engagement and built stronger relations with other institutes of

NOTES ON CONTRIBUTORS    xxxix

international affairs worldwide. In 2016 the AIIA was ranked the Top Think Tank in Southeast Asia and the Pacific in the Global Go To Think Tanks Index produced by the University of Pennsylvania for the second year running. Katherine Cook is a principal legal officer at the Department of Foreign Affairs and Trade. She advises on a range of domestic and international law issues, including diplomatic and consular privileges and immunities. She holds a Bachelor of Laws and Masters of Laws (specialising in Government and Commercial Law) from the Australian National University, and a Masters of National Security Law from Georgetown University. She also holds a Bachelor of Science (Hons) from the University of Melbourne. Dr Annemarie Devereux is an international and constitutional lawyer. Within Australia, she has worked with the Office of International Law, Attorney-General’s Department. Internationally, she has worked extensively with the United Nations, including with three peacekeeping missions in Timor-Leste, the Security Council’s Counter Terrorism Committee Executive Directorate (CTED), the Office of the High Commissioner for Human Rights (OHCHR) in Nepal and Geneva, and with several International Commissions of Inquiry. Alongside her legal practice, she has continued to research and lecture in the fields of international law, constitutional law and human rights. Professor Mick Dodson AM is a member of the Yawuru peoples – the traditional owners of land and waters in the Broome area of the southern Kimberley region of Western Australia. He is Director of the National Centre for Indigenous Studies at the Australian National University and Professor of Law at the ANU College of Law. He completed a Bachelor of Jurisprudence and a Bachelor of Laws at Monash University; he also holds a number of honorary degrees in recognition of his contribution to human rights, social justice and Indigenous affairs in Australia and around the world. He is the current Chair of Council of the Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS), and is also a member of AIATSIS. He is a member of the New South Wales Judicial Commission, Chair of the ANU Reconciliation Action Plan (RAP) Committee and a member of the Board of the Lingiari Foundation. Mick participated in the crafting of the text of the Declaration on the Rights of Indigenous Peoples in the United Nations Working Group on Indigenous Populations (WGIP), and the Intersessional Working Group of the Human Rights Commission which was adopted overwhelmingly in 2007 by the United Nations General Assembly. In 2009, Mick Dodson was named Australian of the Year by the National Australia Day Council. Professor Steven Freeland is Professor of International Law at Western Sydney University, where he teaches in the fields of international criminal law, commercial aspects of space law, public international law and human rights law. He is a Visiting Professor at the University of Vienna, Permanent

xl    INTERNATIONAL LAW IN AUSTRALIA

Visiting Professor of the iCourts Centre of Excellence for International Courts, Denmark, a Member of Faculty of the London Institute of Space Policy and Law, and was a Marie Curie Fellow in 2013–2014. He has also been a Visiting Professional within the Appeals Chamber at the International Criminal Court (ICC), and a Special Advisor to the Danish Foreign Ministry in matters related to the ICC. Among other appointments, he is a Director of the Paris-based International Institute of Space Law, a foundational member of that Institute’s Directorate of Studies, and a member of the Space Law Committee of the International Law Association. He sits on the Editorial Board of a number of international journals, and has authored approximately 300 publications on various aspects of international law and has been invited to present over 800 expert commentaries by national and international media outlets worldwide on a wide range of legal and geopolitical issues. Camille Goodman has worked in the Office of International Law at the Attorney-General’s Department since 2005, providing advice to the Australian Government on the development, interpretation and implementation of a wide range of public international law issues, with a particular focus on law of the sea and international fisheries law. She has represented the Australian Government at international meetings and negotiations, served as in-house legal adviser on international fisheries at the Department of Agriculture, and been responsible for the management of international litigation before international courts and tribunals. In 2015, Camille commenced a PhD at the ANU College of Law, Australian National University, with support from the Sir Roland Wilson Foundation. Camille’s research concerns the nature and extent of coastal state jurisdiction over resources in the exclusive economic zone under contemporary international law.  Professor Stuart Kaye is Director and Professor of Law at the Australian National Centre for Ocean Resources and Security at the University of Wollongong. Prior to this appointment, he was Dean and Winthrop Professor of Law at the University of Western Australia between 2010 and 2013. He also previously held a Chair in Law at the University of Melbourne and was Dean of Law at the University of Wollongong between 2002 and 2006. He holds degrees in arts and law from the University of Sydney, winning the Law Graduates’ Association Medal, and a doctorate in law from Dalhousie University. He is a Barrister of the Supreme Court of New South Wales. He was appointed to the International Hydrographic Organization’s Panel of Experts on Maritime Boundary Delimitation in 1995 and in 2000 was appointed to the List of Arbitrators under the Environmental Protocol to the Antarctic Treaty. He was chair of the Australian International Humanitarian Law Committee from 2003 to 2009, for which he was awarded the Australian Red Cross Society Distinguished Service Medal. He was elected a Fellow of the Royal Geographical Society in 2007 and the Australian Academy of Law in 2011.

NOTES ON CONTRIBUTORS    xli

Professor Natalie Klein is Professor and Dean at Macquarie Law School, Macquarie University. She recently served as the Acting Head of the Department for Policing, Intelligence and Counter-Terrorism at Macquarie. Professor Klein teaches and researches in different areas of international law, with a focus on law of the sea and international dispute settlement. Professor Klein is the author of Dispute Settlement and the UN Convention on the Law of the Sea (2005); and Maritime Security and the Law of the Sea (2011). She provides advice, undertakes consultancies and interacts with the media on law of the sea issues. Prior to joining Macquarie, Professor Klein worked in the international litigation and arbitration practice of Debevoise & Plimpton LLP, served as counsel to the Government of Eritrea (1998–2002) and was a consultant in the Office of Legal Affairs at the United Nations. Her masters and doctorate in law were earned at Yale Law School and she is a Fellow of the Australian Academy of Law. Professor Wendy Lacey is the Dean and Head of the School of Law at the University of South Australia. She holds Honours degrees in arts and law and a PhD in law from the University of Tasmania. Her areas of expertise include human rights, constitutional law, administrative law, judicial power, judicial discretion and the rights of older persons. In these areas she had published widely, particularly on the subject of the legal nexus between international and domestic public law. In recent years her work has focussed on the rights of older persons and elder abuse. She is a member of the South Australian Government’s Advisory Committee on Safeguarding Older South Australians, is a member of the Australian Law Reform Commission’s Advisory Committee regarding the ALRC’s National Inquiry into Elder Abuse and she is a Board Member of the Maggie Beer Foundation. David Mason has for the past 10 years been the Executive Director of the Treaties Secretariat in the Department of Foreign Affairs and Trade and was formerly a Deputy Legal Adviser in that Department. He is a senior Australian diplomat with some 40 years of service including during extended posting assignments to Washington, Dhaka, Seoul, London and Kuala Lumpur. His most recent posting was to Vienna as the Deputy Australian Ambassador to Austria, Slovakia, Slovenia and Bosnia-Herzegovina. He holds Bachelor of Law and Arts (history and political science) degrees from the University of Melbourne and a Master of International Law degree from the Australian National University, where he is presently completing a PhD on the influence of civil society on treaty making in Australia. Professor Penelope Mathew is the Dean and Head of School at Griffith Law School (Brisbane and Gold Coast, Australia). Prior to her appointment she held the Freilich Foundation chair at the Australian National University. From 2008 to 2010, she was a visiting professor and interim Director of the Program in Refugee and Asylum Law at the University of Michigan Law School,

xlii    INTERNATIONAL LAW IN AUSTRALIA

where she convened the 5th Michigan Colloquium on Challenges in Inter­ national Refugee Law. From 2006 to 2008, she was a legal adviser to the ACT Human Rights Commission, where she conducted the human rights audit of the ACT’s Correctional Facilities. Professor Mathew has also taught at the ANU College of Law and Melbourne Law School, and she is a past editorin-chief of the Australian Year Book of International Law. Her main area of expertise is refugee law. Her most recent book, co-authored with Tristan Harley, is Refugees, Regionalism and Responsibility (2016). Dr Marika McAdam is an independent legal consultant and adviser on legislative and policy aspects of countering human trafficking and migrant smuggling. She has written several technical publications for the United Nations and other agencies, including the Office of the United Nations High Commissioner for Human Rights, the United Nations Office on Drugs and Crime, and the International Organisation for Migration (IOM). In her work on criminal justice and human rights based responses to transnational crime, she has carried out extensive research and consultations with state agencies and non-state actors throughout Asia, Africa, Europe, Latin America, the Middle East and the South Caucasus. Dr Sarah McCosker currently works as a Legal Adviser for the International Committee of the Red Cross. Previously, she served as an international lawyer for the Australian Government, in the Office of International Law in the Attorney-General’s Department. Her roles included Director of the International Security Section, Director of the International Human Rights and Anti-Discrimination Section and Acting Assistant Secretary of the International Human Rights and Anti-Discrimination Branch. Previous roles include working for the Law Commission of England and Wales, teaching international law on the Oxford Foreign Service Programme and for the Oxford Law Faculty, and working as an Associate to a Judge of the Supreme Court of Queensland. She also previously served as Director of Oxford Pro Bono Publico, the University of Oxford’s public interest law group. Sarah holds a Doctor of Philosophy, a Master of Philosophy and a Bachelor of Civil Laws from the University of Oxford, all specialising in international law. She also holds double First Class Honours degrees in law and arts from the University of Queensland. Associate Professor Rob McLaughlin has since 2011 been a member of academic staff at the ANU College of Law, Australian National University. During 2012–2014, he was also Head of the United Nations Office on Drugs and Crime’s (UNODC) Global Maritime Crime Program. Prior to taking up his appointment at ANU, Rob was a Warfare and Legal officer in the Royal Australian Navy, having served as the Chief of Maritime Operations for the Peacekeeping Force in East Timor (UNTAET), the Australian Fleet Legal Officer, the Strategic Legal Adviser in Defence HQ, Director of Operations

NOTES ON CONTRIBUTORS    xliii

and International Law for the Department of Defence, and Director of the Naval Legal Service. His operational deployments have included East Timor, Iraq, and Border Protection. Rob earned the degree of PhD from Cambridge in 2005, with a thesis examining the legal issues surrounding United Nationsmandated peace operations in the Territorial Sea. His research and teaching focusses generally within the fields of military operations law, maritime security and maritime law enforcement, the law applicable to UN peace operations, and international humanitarian law. Dr Kate Miles is a Fellow and Lecturer in Law at Gonville and Caius College, Cambridge. Prior to her appointment at Caius, she was a Senior Lecturer in International Law at the Faculty of Law, University of Sydney, specialising in international investment law and international environmental law. She is the author of The Origins of International Investment Law: Empire, Environment and the Safeguarding of Capital (2013). Dr Miles is a Fellow of the Lauterpacht Centre for International Law, a Fellow of the Cambridge Centre for Environment, Energy and Natural Resource Governance (C-EENRG), and a Research Fellow with the Centre for International Sustainable Development Law (CISDL), Montreal, Canada. Dr. Miles has served on the International Law Association’s Study Group on the Role of Soft Law Instruments in International Investment Law and coordinated the inter­ national investment law network for the Society of International Economic Law (SIEL), and acted as a consultant for APEC, UNCTAD, and the IDLO. Professor Andrew Mitchell is Professor at Melbourne Law School, Australian Research Council Future Fellow, Assistant Director Research at the Melbourne School of Government, Director of the Global Economic Law Network, a member of the Indicative List of Panelists to hear WTO disputes, and a member of the Energy Charter Roster of Panelists. He has previously practised law with Allens Arthur Robinson (now Allens Linklaters) and consults for states, international organisations and the private sector. Andrew has taught law in Australia, Canada and the US and is the recipient of four major current grants from the Australian Research Council and the Australian National Preventive Health Agency. He has published over 120 academic books and journal articles and is a Series Editor of the Oxford University Press International Economic Law Series, an Editorial Board Member of the Journal of International Economic Law and a General Editor on the Journal of International Dispute Settlement. He has law degrees from Melbourne, Harvard and Cambridge and is a Barrister and Solicitor of the Supreme Court of Victoria. Dr Thomas [Paul] Muggleton was a graduate of the Royal Military College, Duntroon, and was a Colonel in the Australian Army Legal Corps serving in a number of posts including the ADF Military Law Centre. He held a BA (Hons) from the University of New South Wales, an LLB from ANU,

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and a GDLP from QUT. In 2006 he completed an SJD from the University of Melbourne, writing a thesis titled The formulation of the international crime of aggression: the supreme international crime. He saw operational service in the Middle East, the Former Yugoslavia, and Iraq. He passed away in 2013. Asssociate Professor Hitoshi Nasu is an Associate Professor of Law and Co-Director, Centre for Military and Security Law, at the Australian National University, with expertise in public international law, particularly in the fields of international security law and the law of armed conflict. He holds Bachelor’s and Master’s degrees in Political Science from Aoyama Gakuin University and a Master’s degree and a PhD in Law from the University of Sydney. He is the author of International Law on Peacekeeping: A Study of Article 40 of the UN Charter (2009); and co-editor with Ben Saul of Human Rights in the Asia-Pacific Region: Towards Institution Building (2011), with Simon Butt and Luke Nottage Asia-Pacific Disaster Management: Comparative and Socio-legal Perspectives (2013), with Robert McLaughlin New Technologies and the Law of Armed Conflict (2014), and with Kim Rubenstein Legal Perspectives on Security Institutions (2015). Professor Jacqueline Peel is a Professor of Law at the Melbourne Law School, University of Melbourne where she has taught for the past 15 years. Professor Peel’s expertise lies in the areas of environmental law, climate change law and risk regulation. She has published widely on these topics including six books on The Precautionary Principle in Practice, Environmental Law: Scientific, Policy and Regulatory Dimensions (with L Godden), Science and Risk Regulation in International Law; Principles of International Environmental Law (3rd ed with P Sands), Australian Climate Law in Global Context (with A Zahar and L Godden), and Climate Change Litigation: Regulatory Pathways to a Cleaner Energy Future (with H Osofsky). During 2013–2015 Professor Peel was a Visiting Scholar with the Stanford Water in the West program working on topics related to climate change adaptation governance and law reform. Prior to taking up an academic position at the Melbourne Law School, Professor Peel served as an intern to Special Rapporteur James Crawford on the UN International Law Commission and practiced as an environmental and natural resources lawyer in Australia. She has a Bachelor of Science and Bachelor of Laws (Hon I) from the University of Queensland, a Master of Laws from New York University Law School and a PhD in Law from the University of Melbourne. Dr Alison Pert lectures at the University of Sydney in international law, with a special interest in the law on the use of armed force and international humanitarian law. She has practised as a lawyer in government and the private sector in the United Kingdom, Papua New Guinea and Australia, and has represented Australia at international organisations including Unidroit and UNCITRAL, and in treaty negotiations. Her interests in the

NOTES ON CONTRIBUTORS    xlv

convergence of politics, international law and international relations led to her PhD published as Australia as a Good International Citizen (2014). She is also the co-author with Emily Crawford of International Humanitarian Law (2015). Professor Rosemary Rayfuse is a Professor in the Faculty of Law at the University of New South Wales. She also holds appointments as Conjoint Professor at Lund University and Visiting Professor at the University of Gothenburg. Her research focusses on public international law in general and, in particular, on the law of the sea including protection of the marine environment in areas beyond national jurisdiction, and the normative effects of climate change on international law. She is a member of the IUCN Commission on Environmental Law and Chair’s nominee on the ILA Committee on Sea Level Rise and International Law. She holds the degrees of LLB from Queen’s University, LLM from the University of Cambridge, where she was awarded the Clive Parry Prize for International Law, PhD from the University of Utrecht, and a Doctor of Laws honoris causa from Lund University. Dr Susan Reye obtained her BA from the University of Queensland, her LLB from the Australian National University, and her Doctorat en droit inter­national public from Université de Paris II. Between 1977 and 2014 she worked as a legal adviser in the Australian Law Reform Commission, the Department of Foreign Affairs and Trade, the Attorney-General’s Department and the Australian Government Solicitor, and also at the Nuclear Energy Agency of the OECD. She specialised in public international law and particularly the intersection between international and national law. Professor Ben Saul is Challis Chair of International Law and an Australian Research Council Future Fellow at the University of Sydney. He is also the Whitlam and Fraser Chair of Australian Studies at Harvard University in 2017–2018 and an Associate Fellow of Chatham House. Ben has published 13 books and 90 refereed articles. Significant publications include Defining Terrorism in International Law (2006), the Oxford Commentary on the International Covenant on Economic, Social and Cultural Rights (2014) (awarded a Certificate of Merit by the American Society of International Law), and Indigenous Peoples and Human Rights (2016). Ben practises in international tribunals (including the ICTY, IACtHR, STL and ECCC) and was lead counsel in five security cases against Australia before the UN Human Rights Committee (FKAG (2013), MMM (2013), Leghaei (2015), Hicks (2016) and FJ (2016)). Ben has advised international bodies (including UNODC, UNHCR, UNESCO and OHCHR), governments and NGOs, and delivered technical assistance in developing countries. Professor Shirley Scott is a Professor in the Faculty of Arts and Social Sciences, the University of New South Wales. Shirley’s research and teaching

xlvi    INTERNATIONAL LAW IN AUSTRALIA

focus on international law as a dimension of global governance, demonstrating the complex interplay between power politics and international law. Shirley has published in leading journals of both international law and international relations on a range of subjects including the use of force, climate change, Antarctica, the nature of United States’ engagement with inter­ national law, and the implications for international law of the shifting global distribution of power. Her books include International Law, US Power: The United States’ Quest For Legal Security (2012); International Law In The Era of Climate Change (edited with Rosemary Rayfuse, 2012); Norm Antipreneurs and the Politics of Resistance to Global Normative Change (edited with Alan Bloomfield, 2016) and International Law in World Politics. An Introduction (3rd ed, 2017). Shirley is the Research Chair of the Australian Institute of International Affairs and a member of the Advisory Council of the Asian Society of International Law. Elizabeth Sheargold is a Research Fellow and PhD candidate with the Global Economic Law Network at Melbourne Law School (University of Melbourne). In addition, she is a Senior Fellow to the Melbourne Law Masters, and lectures in the undergraduate program at Melbourne Law School. Previously, she practised at the law firm Allens Arthur Robinson (now Allens Linklaters), and was Associate Director of the Center for Climate Change Law at Columbia University in New York. She completed her BA/LLB (Hons) at the University of Melbourne, and her LLM at Columbia University. Associate Professor Dale Stephens obtained his Law degree (LLB (Hons)) from Adelaide University in 1988. In 1989 he joined the Royal Australian Navy where he occupied numerous staff officer appointments throughout his 20-plus-year career, including Fleet Legal Officer, Director of Operational and International Law and Director of the Military Law Centre. In 2013 he took up a full time position as an Associate Professor at Adelaide University Law School. His operational deployments include East Timor in 1999 and 2000, and Iraq in 2005 and 2008. He has been awarded the Conspicuous Service Medal, the (US) Bronze Star and the (US) Meritorious Service Medal. In 2004, Dr Stephens completed an LLM at Harvard University Law School and taught at the US Naval War College in Newport, Rhode Island in 2004–2005. In 2014 he completed his SJD from Harvard Law School. Dr Stephens is currently Director of the Adelaide Research Unit on Military Law and Ethics (RUMLAE). He is also an active board member of the Australian Year Book of International Law, Chair of the South Australian Red Cross IHL Committee and Editor in Chief of the McGill Manual of ­International Law Applicable to Military Uses in Outer Space. Professor Tim Stephens is Professor of International Law and Australian Research Council Future Fellow at the Sydney Law School at the University of Sydney, and President of the Australian and New Zealand Society of

NOTES ON CONTRIBUTORS    xlvii

International Law. Tim teaches and researches in public international law, with his research focussing on the international law of the sea, international environmental law and international dispute settlement. In 2010 Tim was awarded the International Union for the Conservation of Nature (IUCN) Academy of Environmental Law Junior Scholarship Prize for ‘outstanding scholarship and contributions in the field of international environmental law’. His major works include International Courts and Environmental Protection (2009); and The International Law of the Sea (2nd ed, 2016 (co-authored with Donald R Rothwell)). Tim holds a PhD in law from the University of Sydney, an MPhil in geography from the University of Cambridge, and a BA (Hons) and LLB (Hons) from the University of Sydney. Elizabeth Toohey is currently an Assistant Director in the Trade Law Branch of the Department of Foreign Affairs and Trade. Her career in the Department has included a posting to Seoul, and legal advising roles in the Treaties Secretariat and in Corporate Legal Branch.  She holds Bachelor of Laws and Bachelor of Arts degrees (majoring in history) from the University of Melbourne. Emeritus Professor Gillian Triggs is the President of the Australian Human Rights Commission, with a five-year appointment. She was Dean of the Faculty of Law and Challis Professor of International Law at the University of Sydney from 2007 to 2012 and Director of the British Institute of International and Comparative Law from 2005 to 2007. She is a former barrister and a Governor of the College of Law. Professor Triggs has combined an academic career with international commercial legal practice and has advised the Australian and other governments and international organisations on international legal and trade disputes. Her focus at the Commission is on the implementation in Australian law of the human rights treaties to which Australia is a party, and to work with nations in the Asia Pacific region on practical approaches to human rights. Professor Triggs is the author of many books and papers on international law, including International Law, Contemporary Principles and Practices (2nd ed, 2011). Professor Tania Voon is Professor at Melbourne Law School and was Associate Dean (Research) from 2012 to 2014. She is a former Legal Officer of the WTO Appellate Body Secretariat and has previously practised law with King & Wood Mallesons and the Australian Government Solicitor and taught law at Georgetown University, the University of Western Ontario, the University of British Columbia, and several Australian universities. Tania undertook her LLM at Harvard Law School and her PhD at the University of Cambridge. She is the author of Cultural Products and the World Trade Organization (2007), editor of Trade Liberalisation and International Co-operation: A Legal Analysis of the Trans-Pacific Partnership Agreement (2013), and series editor of the International Economic Law Series of Oxford

xlviii    INTERNATIONAL LAW IN AUSTRALIA

University Press. Tania is a member of the Roster of Panelists for the Energy Charter Treaty and of the Indicative List of Governmental and NonGovernmental Panelists for resolving WTO disputes. She has provided expert advice and training to the Australian Department of Foreign Affairs and Trade, the WTO, the World Health Organization, Telstra, and the McCabe Centre for Law and Cancer. In 2014 she was Senior Emile Noël Fellow at the Jean Monnet Center, NYU Law. Professor Robin Warner is Professor at the Australian National Centre for Ocean Resources and Security (ANCORS), University of Wollongong and currently Interim Head of the School of Humanities and Social Inquiry. She was formerly the Assistant Secretary of the International Crime Branch in the Commonwealth Attorney General’s Department from 2002 to 2007 and Director of International Law for the Australian Defence Force from 1997 to 2001. Her research interests include law of the sea, oceans governance, marine environmental law, climate law and maritime regulation and enforcement. She is the author of Protecting the Oceans Beyond National Jurisdiction: Strengthening the International Law Framework (2009), editor (with Simon Marsden) of Transboundary Environmental Governance: Inland Coastal and Marine Perspectives (2012), editor (with Clive Schofield) of Climate Change and the Oceans: Gauging the Legal and Policy Currents in the Asia Pacific (2012) and editor (with Stuart Kaye) of the Routledge Handbook of Maritime Regulation and Enforcement (2015) as well as many journal articles, book chapters and consultancy reports on oceans law and policy. Associate Professor Asmi Wood teaches at the ANU College of Law. Asmi gained a Bachelor of Engineering/Science (BE) from the University of Melbourne and a Bachelor of Laws (LLB) with Honours from the Australian National University. He completed his PhD in 2011 writing a thesis titled The regulation of the use of force by non-State actors under international law. He is a practising barrister and solicitor in the ACT, and a member of the ARC-funded National Indigenous Research and Knowledges Network (NIRAKN). He was awarded the ANU Vice Chancellor’s teaching award in 2010 and received the National Teaching (Neville Bonner) Award in 2015.

Table of Cases

A A v Australia (560/1993) UN Doc CCPR/C/59/D/560/1993 (30 March 1997)..................................................................................................[3.70], [8.80] A Ahlström Osakeyhtiö v Commission of the European Communities (Wood Pulp Case)(89/85) [1988] ECR 5193............................................................... [4.90] A Raptis & Son v South Australia (1977) 138 CLR 346................................................ [17.30] A-G v Brown (1847) 1 Legge 312...................................................................................... [7.20] Ahmadi v The Queen (2011) 254 FLR 174.................................................................. [10.110] Ahmadou Sadio Diallo (Guinea v Democratic Republic of the Congo) (Preliminary Objections) [2007] ICJ Rep 582............................................................ [4.50] Airlines of New South Wales Pty Ltd v New South Wales [No 2] (1965) 113 CLR 54.......................................................................................................[2.90], [20.70] Akers (as a joint foreign representative of Saad Investments Company Ltd (in official liquidation)) v Deputy Commissioner of Taxation (2014) 223 FCR 8.................................................................................................................... [14.60] Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth (2013) 250 CLR 209............................................ [7.70], [7.110], [17.150] Akiba on behalf of the Torres Strait Regional Seas Claim Group v Queensland [No 2] (2010) 204 FCR 1 (‘Akiba v Queensland [No 2]’).................. [7.70], [7.80]–[7.100], [17.150] Al-Adsani v United Kingdom, App no 35763/97 [2001] ECHR 761......................... [9.130] Al Bahlul v United States, 767 F 3d 1 (DC Cir, 2014).................................................... [8.40] Al-Jedda v United Kingdom (European Court of Human Rights, Grand Chamber, Application No 27021/08, 7 July 2011).................................... [12.170] Al-Kateb v Godwin (2004) 219 CLR 562...................................[2.150], [2.160], [6.20], [8.80] Al-Skeini v Secretary of State for Defence (Consolidated Appeals) [2007] UKHL 26......................................................................................................[12.20], [12.170] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27.................................................................................................................. [2.150] Alqudsi v Commonwealth (2015) 91 NSWLR 93........................................................ [14.20] Amnesty International Canada v Chief of the Defence Staff for the Canadian Forces [2009] 4 FCR 149......................................................................... [12.20] Amodu Tijani v Secretary, Southern Nigeria [1921] 2 AC 399.............. [7.20], [7.40], [7.50] AMS v AIF (1999) 199 CLR 160..................................................................................... [2.160] Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225......... [2.150] xlix

l    INTERNATIONAL LAW IN AUSTRALIA

Arbitration under the Timor Sea Treaty (Timor-Leste v Australia), 23 April 2013, Permanent Court of Arbitration....................................................... [1.79] Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) [2005] ICJ Rep 168.................................................................... [12.170] Arnhem Land Aboriginal Land Trust v Northern Territory (2007) 157 FCR 255.......... [7.60] Arrest Warrant of 11 April 2000, Case Concerning the (Democratic Republic of the Congo v Belgium) (Judgment) [2002] ICJ Reps 3........................................ [9.130] Arrest Warrants Case (Belgium v Congo) [2002] ICJ Rep 63................ [4.20], [4.60], [4.70] Australian Communist Party v Commonwealth (1951) 83 CLR 1............................... [3.20] Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi Energia SRL [2014] FCA 5....................................................................................... [4.120] Australian Federation of Islamic Councils Inc v Westpac Banking Corporation (1988) 17 NSWLR 623............................................................................................... [16.90] Australian Knitting Mills Ltd v Grant (1933) 50 CLR 387......................................... [14.40] B Bakhtiyari v Australia UN Doc CCPR/C/79/D/1069/2002........................................... [8.80] Barcelona Traction, Light and Power Company Ltd (Belgium v Spain) (Second Phase) [1970] ICJ Rep 3................................................................................. [4.50] Baron Bernstein of Leigh v Skyviews & General Ltd [1978] 1 QB 479...................... [20.60] Barton v Commonwealth (1974) 131 CLR 477................................................................ [3.20] Bateman v Kavan (2014) 52 Fam LR 648......................................................................... [6.30] Bay of Bengal Maritime Boundary Arbitration, In the Matter of the (Bangladesh v India), Award of LOSC Annex VII Tribunal, 7 July 2014 (‘Bay of Bengal Arbitration’)................................................................................... [18.100] Berwick Ltd v Deputy Commission for Taxation (1976) 133 CLR 603................... [22.130] Bligh v Queensland [1996] HREOC 28............................................................................ [7.30] Bradley v Commonwealth (1973) 128 CLR 557.............................................................. [5.40] Bray v Hoffman-La Roche (2002) 118 FCR 1................................................................. [4.90] Bruch v Commonwealth [2002] FMCA 29...................................................................... [7.30] C C v Australia, UN Doc CCPR/C/76/D/900/1999............................................................ [8.80] ‘Camouco’ Case, The (Panama v France) (Prompt Release) (International Tribunal for the Law of the Sea, Case 8915-2013 (16 January 2014).................... [9.120] Case No 5 (7 February 2000).......................................................................................... [23.140] Castel Electronics Pty Ltd v Toshiba Singapore Pte Ltd (2011) 192 FCR 445 (‘Castel Electronics’)................................................................................................... [14.40] Certain Phosphate Lands in Nauru (Nauru v Australia) (Preliminary Objections) [1992] ICJ Rep 240..................[19.10], [22.10], [23.20], [23.70] Chapman Marine Pty Ltd v Wilhelmsen Lines A/S [1999] FCA 178........................ [14.50] Cherokee Nation v Georgia 30 US 1 (1831)..................................................................... [7.20] Cherokee Nation v Georgia (1831) 5 Pet 1..................................................................... [7.140] Chow Hung Ching v The King (1948) 77 CLR 449..................................................... [2.120] Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1................................................................................ [6.20] Chung Chi Cheung v The King [1939] AC 160............................................................ [2.120] Civilian Casualty Court Martial, Re (2011) 259 FLR 208.............................................. [9.40] Clarke v Nationwide News Pty Ltd (2012) 201 FCR 389.............................................. [6.30] Clipperton Island Case (France v Mexico) (1931) 2 RIAA 1105............................... [22.100] Coe v Commonwealth (1978) 52 ALJR 334................................................................... [7.140] Coe v Commonwealth (1979) 53 ALJR 403........................................................[7.20], [7.140] Coco v R (1994) 179 CLR 427............................................................................................ [6.20]

TABLE OF CASES    li

Colonel Aird, Re; Ex parte Alpert (2004) 220 CLR 308............................................... [4.150] Commonwealth v Akiba on behalf of the Torres Strait Regional Seas Claim Group (2010) 204 FCR 260......................................... [7.70], [7.110], [17.150] Commonwealth v Tasmania (1983) 158 CLR 1 (‘Tasmanian Dam Case’)..........[1.110], [2.90], [3.20], [6.10], [6.30], [19.50] Commonwealth v Yarmirr (2001) 208 CLR 1.........................[7.40], [7.50], [7.110], [17.150] Continental Shelf (Libyan Arab Jamahiriya v Malta) (Judgment) [1985] ICJ Rep 13 (‘Libya/Malta Case’) Cooper v Stuart (1889) 14 App Cas 286...............................................................[7.20], [7.140] CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514; 89 ALJR 207...............................................[2.150], [8.70], [18.50], [18.140] D Dampskibsselskabet Nordon A/S v Gladstone Civil Pty Ltd (2013) 216 FCR 469................................................................................................................ [14.50] David M Hicks v United States of America, CMCR 13-004, 18 February 2015...... [9.110] de Andrade, In the Marriage of (1984) 119 FLR 192.................................................... [16.90] Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal, Dispute Concerning the (Bangladesh/Myanmar) ITLOS Judgment of 14 March 2012 (‘Bangladesh/Myanmar Case’)................. [18.100] Dietrich v R (1992) 177 CLR 292..........................................................................[2.70], [2.140] DJL v The Central Authority (2000) 201 CLR 226........................................................ [2.90] Dow Jones v Gutnik (2002) 210 CLR 575...................................................................... [2.120] Downs Investments Pty Ltd (in liq) v Perwaja Steel SDN BHD [2002] 2 Qd R 462................................................................................................................... [14.40] Duff v The Queen (1979) 39 FLR 315............................................................................ [16.40] Dugan v Mirror Newspapers Ltd (1978) 142 CLR 583................................................ [2.140] E East Timor (Portugal v Australia) [1995] ICJ Rep 90...................................[18.190], [19.10], [23.80], [23.170] Eastern Air Lines Inc v Floyd, 499 US 530 (1991)...................................................... [20.130] Ellison v Karnchanit (2012) 48 Fam LR 33...................................................................... [6.30] Emery Air Freight Corporation v Nerine Nurseries Ltd [1997] 3 NZLR 723....... [20.130] Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477................................................................................................................ [2.140] F Fair Work Ombudsman v Pocomwell Ltd [No 2] (2013) 218 FCR 94........................ [4.40] Fejo v Northern Territory (1998) 195 CLR 96....................................... [7.40], [7.50], [7.110] Fryer Holdings Pty Ltd (in liq) v Liaoning MEC Group Co Ltd [2012] NSWSC 18.................................................................................................................. [14.40] G Gabčíkovo-Nagymaros Project (Hungary/Slovakia) [1997] ICJ Rep 7 (‘Gabčíkovo-Nagymaros Project Case’).......................................... [3.50], [19.30], [19.40] Gerhardy v Brown (1985) 159 CLR 70............................................................................. [7.30] ‘Grand Prince’ Case, The (Belize v France) (Prompt Release) (International Tribunal for the Law of the Sea Case No 8, 20 April 2001)....... [23.140] Great China Metal Industries Co Ltd v Malaysian International Shipping Corporation Berhad (1998) 196 CLR 161................................................................ [14.50] Greentree v Minister for the Environment and Heritage (2005) 223 ALR 679......... [19.110] Guengueng v Senegal, Communication No 181/2001, A/61/44.................................. [9.130]

lii    INTERNATIONAL LAW IN AUSTRALIA

Gulf Air Co GSC v Fattouh (2008) 230 FLR 311....................................................... [20.140] Gulf of Maine Area (Judgment) [1984] ICJ Rep 246 (‘Gulf of Maine Case’)........... [18.100] Gumana v Northern Territory (2007) 158 FCR 349............................ [7.50], [7.60], [17.150] H Habib v Commonwealth (2010) 183 FCR 62................. [3.10], [3.20], [8.40], [9.30], [11.140] Hamdan v Rumsfeld 548 US 557 (2006)........................................................................ [9.110] Hartford Fire Insurance v California, 509 US 764 (1993).............................................. [4.90] Hassan v United Kingdom (European Court of Human Rights, Grand Chamber, Application No 29750/09, 16 September 2014)..................................................... [12.170] Hi-Fert Pty Ltd v United Shipping Adriatic Inc (1998) 89 FCR 166........................ [14.50] Hicks v Australia, UN Doc CCPR/C/115/D/2005/2010...................................[8.40], [9.110] Hicks v Ruddock (2007) 156 FCR 574.......................... [3.10], [3.20], [8.40], [9.110], [11.140] Hicks v United States of America (CMCR 13-004, 18 February 2015)........................ [8.40] HM Advocate v Hall (1881) 4 Couper 438....................................................................... [4.40] Ho v The Queen (2011) 219 A Crim R 74...................................................................... [10.80] Horta v Commonwealth (1994) 181 CLR 183......................................................[2.90], [3.20] Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2004) 212 ALR 551................................................................................................................ [4.110] Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2005] FCA 664....................................................................................................................... [4.110] Humane Society International Inc v Kyodo Senpaku Kaishu Ltd (2006) 154 FCR 425.............................................................................................................. [17.100] Humane Society International Inc v Kyodo Senpaku Kaishu Ltd (2008) 165 FCR 510................................................................................................................ [4.110] Humane Society International Inc v Kyodo Senpaku Kaishu Ltd [2015] FCA 1275......................................................................................................[4.110], [17.100] Hunter v Western Australia [2009] FCA 654.................................................................. [7.40] I ICI Australia Operations Pty Ltd v Fraser (1992) 34 FCR 564................................... [2.150] Iron Rhine Arbitration (Belgium v Netherlands) (Judgment) (2005) Permanent Court of Arbitration Award Series [59].............................................. [19.40] Isayeva v Russia (European Court of Human Rights, Grand Chamber, Application Nos 57947/00, 57948/00 and 57950/00, 25 February 2005)............. [12.170] Island of Palmas Case (Netherlands v United States) (1928) 2 RIAA 829............... [22.100] J Jamie, Re (2013) 50 Fam LR 369....................................................................................... [6.30] Johnson v McIntosh 21 US (8 Wheat) 543 (1823)............................................................ [7.20] Joyce v DPP [1946] 1 All ER 186............................................................................[4.50], [4.80] Jumbunna Coal Mine No Liability v Victorian Coal Miners’ Association (1908) 6 CLR 309............................................................ [2.150], [4.40], [6.20] Jurisdictional Immunities of the State, Case Concerning the (Germany v Italy; Greece Intervening) (Judgment) [2012] ICJ Reps 99............. [9.130] K Kalejs v Minister for Justice and Customs (2001) 111 FCR 442.................................... [9.50] Karim v R (2013) 83 NSWLR 268.................................................................................... [6.30] Kartinyeri v Commonwealth (1998) 195 CLR 337...................[2.150], [2.160], [7.30], [7.40] Kirk v Industrial Court of New South Wales (2010) 239 CLR 531.............................. [3.90] Kola v Minister for Immigration and Multicultural Affairs (2002) 120 FCR 170.................................................................................................................. [8.70]

TABLE OF CASES    liii

Koowarta v Bjelke-Petersen (1982) 153 CLR 168................................. [1.110], [2.70], [3.20], [6.10], [6.30], [7.30] Kruger v Commonwealth (1997) 190 CLR 1................................................................. [2.150] Kubacz v Shah [1984] WAR 156................................................................................... [16.100] L LaGrand (Germany v United States of America) [2001] ICJ Rep 466......................... [3.50] Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea Intervening) (Judgment) [2002] ICJ Reports 303 (‘Cameroon/Nigeria Case’)...................................................................................... [18.100] Lange v Australian Broadcasting Corporation (1997) 189 CLR 520............................ [6.20] Legal Status of Eastern Greenland (Denmark v Norway) [1933] PCIJ (ser A/B) No 53 (‘Eastern Greenland’)................................................................... [22.100] Legality of the Threat of Use of Nuclear Weapons [1996] ICJ Rep 226.................... [19.40] Leonie’s Travel Pty Ltd v Qantas Airways Ltd (2010) 183 FCR 246......................... [14.30] Lethbridge v Homeswest [1997] HREOCA 3................................................................. [7.30] Li v Zhou (2014) 310 ALR 66.......................................................................................... [9.140] Li Chia Hsing v Rankin (1978) 141 CLR 182................................................................ [12.60] M Mabo v Queensland (1988) 166 CLR 186.................................................. [7.10], [7.20], [7.40] Mabo v Queensland [No 2] (1992) 175 CLR 1....................................... [2.140], [7.10], [7.40], [7.60], [12.170], [17.150] MacDonald v Levy (1833) 1 Legge 39; [1833] NSWSupC 47........................................ [7.20] McInnis v R (1979) 143 CLR 575..................................................................................... [2.140] Maclaine Watson & Co v Department of Trade and Industry [1988] 3 All ER 257................................................................................................................ [2.110] Macleod v Attorney-General (NSW) [1891] AC 455...................................................... [4.40] Madafferi v Australia UN Doc CCPR/C/81/D/1011/2011 (26 August 2004).............. [8.20] Magaming v The Queen (2013) 252 CLR 381............................................................... [10.90] Maloney v R (2013) 252 CLR 168.........................................................................[2.150], [6.30] Mannington Mills Inc v Congoleum Corp, 595 F 2d 1287 (3rd Cir, 1979).................. [4.90] Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain) (Judgment) [2001] ICJ Reports 40 (‘Qatar v Bahrain Case’)........................................................................................... [18.100] Maritime Delimitation in the Black Sea (Romania v Ukraine) (Judgment) [2009] ICJ Rep 61 (‘Black Sea Case’)...................................................................... [18.100] Maritime Dispute, Case Concerning (Peru v Chile) [2014] ICJ Rep 4 (‘Peru/Chile Case’).................................................................................................... [18.100] Maritime Union of Australia, Re; Ex p CSL Pacific Shipping Inc (2003) 214 CLR 397.................................................................................................................. [4.40] Meyer Heine Pty Ltd v China Navigation Co Ltd (1966) 115 CLR 10........................ [4.90] Michael Wilson & Partners Ltd v Nicholls (2008) 74 NSWLR 218............................ [4.120] Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141..............................................[7.20], [7.140] Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298 (‘Magno’).........................................................................................................[2.150], [16.70] Minister for Home Affairs of the Commonwealth v Zentai (2012) 246 CLR 213....................................................................................... [2.120], [2.150], [9.50] Minister for Immigration and Border Protection v WZARH (2015) 326 ALR 1...................................................................................................................... [6.40] Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273................. [3.40] Minister for Immigration and Multicultural Affairs v Applicant C (2001) 116 FCR 154.................................................................................................................. [8.70]

liv    INTERNATIONAL LAW IN AUSTRALIA

Minister for Immigration and Multicultural and Indigenous Affairs, Re; Ex parte Lam (2003) 214 CLR 1............................................... [2.150], [2.170], [6.40] Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54...................................................................................... [2.150] Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1.............................................................................. [3.70] Minister of Justice and Constitutional Development v Southern African Litigation Centre [2016] ZASCA 17........................................................................ [9.130] Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273...................................................[2.70], [2.140], [2.150], [2.170], [3.40], [6.40] Minogue v Williams (2000) 60 ALD 366.......................................................................... [2.70] ‘Monte Confurco’ Case, The (Seychelles v France) (Prompt Release) (International Tribunal for the Law of the Sea, Case No 6, 18 December 2000)................................................................................................... [23.140] Morrison v National Australia Bank, No 08-1191 (Brief filed 26 February 2010)............................................................................................[4.90], [4.160] MOX Plant Case (Ireland v United Kingdom) (Provisional Measures) (2002) 41 ILM 405....................................................................................................... [19.40] Mulligan v Virgin Australia Airlines Pty Ltd (2015) 234 FCR 207.............................. [6.30] Municipality of Randwick v Rutledge (1959) 102 CLR 54............................................ [7.20] N NAGV v Minister for Immigration, Multicultural and Indigenous Affairs (2005) 222 CLR 161....................................................................................................... [8.70] Naoum (Consul General for Lebanon in Sydney) v Dannawi [2011] NSWSC 23................................................................................................................ [16.160] Nationality Decrees in Tunis and Morocco (Advisory Opinion) [1923] PCIJ (ser B) No 4.......................................................................................................... [4.50] New South Wales v Commonwealth (1975) 135 CLR 337 (‘Seas and Submerged Lands case’)................................................................... [3.90], [17.10], [17.20] Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513........................ [2.160] Nexans SA RCS Paris 393 525 85 v Australian Competition and Consumer Commission [2014] FCA 255.................................................................................... [4.120] Norcast S.ár.L v Bradken Ltd [No 2] (2013) 219 FCR 14.............................................. [4.90] North Sea Continental Shelf Cases (Federal Republic of Germany v Denmark; Federal Republic of Germany v The Netherlands) (Judgment) [1969] ICJ Rep 3......................................................................[21.20], [21.100] Northern Territory v Arnhem Land Aboriginal Trust (2008) 236 CLR 24.....................................................................................................[7.60], [17.150] Nottebohm Case (Liechtenstein v Guatemala) (Second Phase) [1955] ICJ Rep 4.............................................................................................................[4.50], [8.20] Nuclear Tests (Australia v France) (Provisional Measures) [1973] ICJ Rep 99.................................................................................................................... [19.10] Nuclear Tests (Australia v France) (Judgment) [1974] ICJ Rep 457............[23.60], [23.170] Nuclear Tests (Australia v France) (Merits) [1974] ICJ Rep 253..................[18.190], [19.10] Nulyarimma v Thompson (1999) 96 FCR 153...................................................[2.120], [9.80] Nystrom v Australia UN Doc CCPR/C/102/D/1557/2007 (1 September 2011).......... [8.20] P Pape v Federal Commissioner of Taxation (2009) 238 CLR 1........... [2.90], [2.120], [14.20] Philip Morris Asia Ltd v Commonwealth of Australia (Notice of Arbitration) (Permanent Court of Arbitration, Case No 2012/12, 21 November 2011)...................................................................... [23.40]

TABLE OF CASES    lv

Philip Morris Asia Ltd v Commonwealth of Australia (Award on Jurisdiction and Admissibility) (Permanent Court of Arbitration, Case No 2012/12, 17 December).............................................................................................................. [23.40] Philip Morris Ltd v Prime Minister [2011] AATA 556................................................ [23.40] Philip Morris Products SA v Oriental Republic of Uruguay (Jurisdiction) (ICSID Arbitral Tribunal, Case No ARB/10/7, 19 February 2010)..................... [23.40] Plaintiff M47/2012 v Director General of Security (2012) 251 CLR 1.............[2.150], [8.80] Plaintiff M61/201E v Commonwealth (2010) 243 CLR 319.......................................... [8.70] Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 90 ALJR 297................................................................................ [6.20], [6.40], [8.90] Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144......................................................................................... [2.150], [8.70], [8.90] Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636.....................................................................................................[2.170], [6.40] Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.................... [3.10], [3.20], [3.90] Polites v Commonwealth (1945) 70 CLR 60.....................................................[2.120], [2.150] Polyukhovich v Commonwealth (1991) 172 CLR 501........................................[4.70], [9.50] Potter v Delta Air Lines Inc 98 F 3d 881 (5th Cir, 1996)............................................ [20.130] Povey v Qantas Airways Ltd & British Airways plc (2005) 223 CLR 189................ [20.140] Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355............ [2.150] Prosecutor v Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09............................... [9.130] Public Prosecutor v Orhan Olmez [1988] 1 MLJ 13................................................... [16.100] Pulp Mills on the River Uruguay, Case Concerning (Argentina v Uruguay) [2010] ICJ Rep 14 [101] (‘Pulp Mills Case’).................................................[19.30], [19.40] Q Queensland v Commonwealth (1989) 167 CLR 232..................................................... [19.50] Questions Relating to the Obligation to Prosecute or Extradite, Case Concerning (Belgium v Senegal) (Judgment) [2012] ICJ Reps 422...................... [9.130] Questions Relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v Australia) [2014] ICJ Pleadings 10................................. [4.40] Questions Relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v Australia) (Provisional Orders) [2014] ICJ Rep 147.................................................................................................[23.100], [23.170] R R v Australian Industrial Court; Ex parte CLM Holdings Pty Ltd (1977) 136 CLR 235.................................................................................................................. [2.90] R v Bonjon (Unreported, Supreme Court of New South Wales, Willis J, 16 September 1841)....................................................................................................... [7.20] R v Bow Street Metropolitan Stipendiary Magistrate; Ex p Pinochet Ugarte [No 3] [2000] 1 AC 147; [1999] 2 All ER 97 (‘Pinochet’)............... [2.110], [8.60], [9.130] R v Browning (1991) 103 FLR 425...................................................................[16.40], [16.100] R v Burgess (1936) 55 CLR 608......................................................................................... [2.70] R v Disun (2003) 27 WAR 146........................................................................................... [4.40] R v Hasanusi (Unreported, District Court of Western Australia, 1365/2009, Fenbury DCJ, 21 April 2010).................................................................................... [10.90] R v Jameson [1896] 2 QB 425............................................................................................. [4.40] R v Keyn (1876) LR 2 Ex D 63.......................................................................................... [4.40] R v Murrell (1836) 1 Legge 72........................................................................................... [7.20] R v Rasalingam (Unreported, District Court of New South Wales, 2 November 2007)....................................................................................................... [10.80] R v Roche (2005) 188 FLR 336......................................................................................... [9.120]

lvi    INTERNATIONAL LAW IN AUSTRALIA

R v Secretary of State for the Home Department; Ex p Hicks [2005] EWHC 2818................................................................................................................ [9.110] R v Stolpe (Unreported, District Court of NSW, Robson J, 17 October 1980)......... [16.40] R v Tang (2008) 237 CLR 1.................................................................................[9.120], [10.80] R v Tang (2009) 23 VR 332............................................................................................... [9.120] R v Turnbull; Ex p Petroff (1971) 17 FLR 438.............................................................. [16.70] R (Evans) v Secretary of State for Defence [2010] EWHC 1445................................. [12.20] Reparations for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Rep 174..................................................................... [1.10] Republic of the Philippines v People’s Republic of China (Permanent Court of Arbitration) Award (12 July 2016)............................................................................ [18.30] Richardson v Forestry Commission (1988) 164 CLR 261 (‘Lemonthyme Forests Case’)........................................................................................ [2.90], [3.20], [19.50] Rio Tinto PLC v Sarei, No 11-649 (Brief filed 28 December 2011)...................[4.40], [4.50] Risk v Northern Territory (2002) 210 CLR 392.............................................................. [7.60] Ruddock v Vadarlis (2001) 110 FCR 491 (‘Tampa’ case).................................[12.60], [12.70] S Sanko Steamship Co Ltd, The v Sumitomo Australia Ltd (1995) 63 FCR 227........ [14.50] Schooner Exchange, The v McFaddon, 11 US 116 (Marshall CJ) (1812).................. [16.40] Secretary of State for the Home Department v Hicks [2006] EWCA Civ 400......... [9.110] Secretary of State for the Home Department v JJ [2008] 1 AC 385.............................. [8.80] Sidhu v British Airways plc [1997] AC 430................................................................. [20.130] Smallmon v Transport Sales Ltd [2012] 2 NZLR 109.................................................. [14.40] Snedden v Minister for Justice [2015] HCATrans 120................................................... [9.50] Snedden v Minister for Justice for the Commonwealth (2014) 315 ALR 352..............................................................................................................[9.30], [9.50] Snedden (aka Vasiljkovic) v Minister for Justice of the Commonwealth (2013) 306 ALR 452...................................................................................................... [9.30] South Pacific Air Motive Pty Ltd v Magnus (1998) 87 FCR 301.............................. [20.130] Southern Bluefin Tuna (New Zealand v Japan; Australia v Japan) (Provisional Measures) (1999) 117 ILR 148............................................................. [19.10] Southern Bluefin Tuna Cases (New Zealand v Japan; Australia v Japan) ITLOS Reports 1999.................................................................................[18.180], [18.190] Southern Bluefin Tuna Cases (New Zealand v Japan, Australia v Japan) (Provisional Measures) (1999) 38 ILM 1624...........................................[23.130], [23.180] Southern Bluefin Tuna Cases (New Zealand v Japan; Australia v Japan) (Jurisdiction and Admissibility) (2000) 39 ILM 1359............................................. [23.20] Southern Bluefin Tuna (Jurisdiction) (2000) 119 ILR 508........................................... [19.10] Southern Rhodesia, Re [1919] AC 211.............................................................................. [7.20] Spratt v Hermes (1965) 114 CLR 226........................................................................... [22.100] SS Lotus, The [1927] PCIJ (ser A) No 10.................................................. [4.10], [4.20], [4.60] Stratis v Eastern Air Lines Inc 682 F 2d 406 (1982).....................................[20.100], [20.130] Sumner v United Kingdom [2000] SASC 91................................................................. [2.120] Sykes v Cleary [No 2] (1992) 176 CLR 77........................................................................ [8.30] SZSSJ v Minister for Immigration and Border Protection (2015) 326 ALR 641........ [6.40] T Tajjour v New South Wales (2014) 313 ALR 221........................................................... [2.70] Tasman Orient Line CV v New Zealand China Clays Ltd [2010] 3 NZLR 1.......... [14.50] Thomas v Mowbray (2007) 233 CLR 307......................................................................... [2.90] Thorpe v Kennett [1999] VSC 442.................................................................................. [2.120] Timberlane Lumber Co v Bank of America, 549 F 2d 597 (9th Cir, 1976)................. [4.90]

TABLE OF CASES    lvii

Trail Smelter Arbitration (United States v Canada) (1938 and 1941) 3 RIAA 1911 (‘Trail Smelter Case’).......................................................................... [19.30] Trendtex Trading Corporation v Central Bank of Nigeria (1977) 1 QB 529............ [2.110] U Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1........................ [17.20] United States v Aluminum Co of America, 148 F 2d 416 (1945).................................. [4.90] United States v Girouard 70 MJ 5 (CAAF 2011).......................................................... [12.20] United States Diplomatic and Consular Staff in Tehran (United States of America v Iran) [1980] ICJ Rep 3.................... [16.20], [16.70], [16.90] University of California Regents v Bakke 438 US 265 (1978)....................................... [7.30] Uranium Antitrust Litigation, Re, 617 F 2d 1248 (1980)..................................[4.90], [4.160] Ure v Commonwealth (2016) 236 FCR 458................................................................... [18.20] V Victoria v Commonwealth (1996) 187 CLR 416.............................................................. [2.90] Viro v R (1978) 141 CLR 88............................................................................................. [7.140] ‘Volga’ Case, The (Russian Federation v Australia) ITLOS Case No 11 (23 December 2002).......................................................................................[4.40], [18.130] ‘Volga’ Case, The (Russian Federation v Australia) (Judgment) (2002) ITLOS Reports 10.....................................................................................[22.110], [22.140] ‘Volga’ Case, The (Russian Federation v Australia) (Prompt Release) (International Tribunal for the Law of the Sea, Case No 11, 23 December 2002)................................................................................................... [22.140] Volga (Russian Federation v Australia) (Prompt Release) (2003) 42 ILM 159.......... [19.10] W Walker v Baird (1892) AC 491........................................................................................... [2.70] Ward v The Queen (1980) 142 CLR 308.......................................................................... [4.40] West Rand Central Gold Mining Company Ltd v The King (1905) 2 KB 391........ [2.120] Western Australia v Commonwealth (1995) 183 CLR 373..............................[2.140], [7.20], [7.40], [7.100] Western Australia v Ward (2002) 213 CLR 1............................[2.120], [2.150], [7.20], [7.40] Whaling in the Antarctic (Australia v Japan: New Zealand intervening) (Judgment) [2014] ICJ Rep 226 (‘Whaling in the Antarctic’)......... [3.70], [4.110], [18.110], [18.180], [19.10], [19.100], [22.140], [23.90], [23.170] Wik Peoples v Queensland (1996) 187 CLR 1................................................................. [7.40] Williams v A-G (NSW) (1913) 16 CLR 404.................................................................... [7.20] Wilson v Anderson (2002) 213 CLR 401.......................................................................... [7.40] Winata v Australia UN Doc CCPR/C/72/D/930/2000 (16 August 2001).................... [8.30] Worcester v Georgia 31 US (6 Pet) 515 (1832)................................................................. [7.20] X XYZ v Commonwealth (2006) 227 CLR 532........................................................[4.50], [4.60] Y Yanner v Eaton (1999) 201 CLR 351................................................................................. [7.40] Yorta Yorta v Victoria (2002) 214 CLR 422...........................................................[7.40], [7.80] Z Zhang v Zemin (2010) 243 FLR 299............................................................................... [9.140] Zicherman v Korean Air Lines, 116 S Ct 629 (1996).................................................. [20.130]

Table of Statutes

COMMONWEALTH

Air Navigation Act 1920 [20.40], [20.60], [20.80], [20.100]

Aboriginal and Torres Strait Islander Commission Act 1989 (‘ATSIC Act’) [7.140]

Antarctic Marine Living Resources Conservation Act 1981 [15.80]

Aboriginal and Torres Strait Islander Commission (Amendment) Act 2005 [7.150]

Antarctic Treaty (Environment Protection) Act 1980 s 19A [15.90] s 19B [15.90]

Aboriginal Land Rights (Northern Territory) Act 1976 (‘ALR (NT) Act’) s 3(1) [7.60] s 50(1) [7.60] s 70(1) [7.60]

Anti-Money Laundering and Counter-Terrorism Financing Act 2006 [14.20] Anti-Money Laundering and Counter-Terrorism Financing Rules Instrument 2007 (No 1) [14.20]

Acts Interpretation Act 1901 s 2B [4.40], [22.100] s 15AB [3.70] s 15AB(1) [2.150] s 15AB(2) [2.150] s 15B [4.40] s 15B(2) [22.100] s 15B(4) [4.40], [22.100] s 21(1) [4.40] s 21(1)(b) [12.170]

Anti-People Smuggling and Other Measures Act 2010 [10.90] Anti-Personnel Mines Convention Act 1998 s 7(3) [12.30] Ashmore and Cartier Islands Acceptance Act 1933 [22.40]

Admiralty Act 1988 [17.120] Age Discrimination Act 2004 [6.40]

Asia-Pacific Telecommunity (Privileges and Immunities) Regulations [16.180]

Agricultural and Veterinary Chemicals (Administration) Act 1992 [19.80]

Asian Development Bank Act 1966 [14.20]

Agricultural and Veterinary Chemicals (Administration) Regulations 1995 [19.80]

Australian Antarctic Territory Acceptance Act 1933 [22.50] Australian Antarctic Territory Act 1954 [22.100]

Air Accidents (Commonwealth Government Liability) Act 1963 [20.110]

Australian Border Force Act 2015 [6.50] lix

lx    INTERNATIONAL LAW IN AUSTRALIA

Australian Citizenship Act 1948 [8.30] Australian Citizenship Act 2007 [4.50] s 12 [8.30] s 12(1)(b) [8.30] s 13 [8.30] s 14 [8.30] s 15 [8.30] s 16 [8.30] s 17 [8.30] ss 19B–19D [8.30] s 21(2) [8.30] s 21(2)(d)–(f) [8.30] s 21(3)–(4) [8.30] s 21(7) [8.30] s 21(8) [8.30] s 22 [8.30] s 24(2) [8.30] s 33 [8.30] s 33AA [8.30] s 33AA(2) [8.30] s 33AA(7) [8.30] s 33AA(17) [8.30] s 33AA(17)(d) [8.30] s 35 [8.30] s 35(4)(c) [8.30] s 35(12) [8.30] s 35(12)(d) [8.30] s 35A [8.30] s 35A(1)(e)(iv) [8.30] Australian Citizenship Amendment (Allegiance to Australia) Act 2015 s 3 [8.30] Australian Human Rights Commission Act 1986 s 3 [6.30] s 11(1)(aa) [6.40] s 11(1)(f) [6.40] s 11(1)(f)(ii) [6.40] s 29 [6.40] s 31(b) [6.40] s 31(b)(ii) [6.40] s 35 [6.40] Australian Securities and Investments Commission Act 2001 [14.20] s 12AC(1) [4.90] Australian Security Intelligence Organisation Act 1979 s 4 [11.80] Australian Transaction Reports and Analysis Centre Industry Contribution Act 2011 [14.20]

Australian Transaction Reports and Analysis Centre Industry Contribution (Collection) Act 2011 [14.20] Banking (Foreign Exchange) Regulations 1959 [11.70] Biosecurity Act 2015 [17.130], [17.140] Border Protection (Validation and Enforcement) Act 2001 [12.70] Carbon Credits (Carbon Farming Initiative) Act 2011 [19.170] Carriage of Goods by Sea Act 1991 (‘COGSA’) s 11(1) [14.50] ss 11(2)–(3) [14.50] s 11(3) [14.50] Charter of the United Nations Act 1945 [11.40], [11.80], [12.80] Pt 4 [11.70] Charter of the United Nations (Anti-Terrorism Measures) Regulations 2001 [11.70] Charter of the United Nations (Terrorism and Dealings with Assets) Regulations 2002 [11.70] Christmas Island Act 1958 [22.80], [22.100] Civil Aviation Act 1988 [20.110] s 3(1) [20.60] Civil Aviation (Carriers’ Liability) Act 1959 [20.100]–[20.120] s 13 [20.130] Civil Aviation Legislation Amendment (1999 Montreal Convention and Other Measures) Act 2008 [20.110] Clean Energy Act 2011 [5.60], [19.170] Coastal Waters (State Powers) Act 1980 [17.20] s 3 [17.30] Coastal Waters (State Title) Act 1980 [17.20] Cocos (Keeling) Islands Act 1955 [22.70], [22.100] Commission for the Conservation for the Antarctic Marine Living Resources (Privileges and Immunities) Regulations 1983 reg 9A [16.180]

TABLE OF STATUTES    lxi

Commonwealth of Australia Constitution Act 1900 [2.90], [3.90], [6.60], [8.30], [12.70] s 44 [8.30] s 51 [4.10] s 51(i) [4.10], [15.100] s 51(v) [15.100] s 51(vi) [4.10] s 51(viii) [15.100] s 51(x) [4.10] s 51(xi) [15.100] s 51(xv) [15.100] s 51(xx) [4.10], [15.100] s 51(xxiv) [7.30], [7.40] s 51(xxvi) [7.120] s 51(xxix) [1.20], [2.50], [3.10], [3.30], [4.10], [6.20], [6.30], [7.30], [7.160], [14.20], [15.100], [17.10] s 51(xxx) [4.10] s 51(xxxi) [6.20] s 51(xxxix) [15.100] s 61 [2.50], [3.20]-[3.40], [6.20] s 75(i) [1.20] s 109 [3.40] s 122 [15.100], [22.20] s 127 [7.40], [7.120] s 128 [2.160] Competition and Consumer Act 2010 [4.10], [4.120] s 4E [4.90] s 5 [4.90] Consular Privileges and Immunities Act 1972 (‘CPI Act’) [9.130], [16.10], [16.70] s 5 [16.140] s 5(2)(d) [16.160] s 10A [16.120] s 12 [16.40] Coral Sea Islands Act 1969 [22.90] Corporations Act 2001 [7.150], [14.20] Crimes Act 1914 [11.80], [21.80] Pt IAB [10.70] Pt IACA [10.70] Pt IAD [10.70] Pt II [4.80] Pt IV [4.70], [12.80] Pt VII [4.80] Crimes at Sea Act 1979 [17.90]

Crimes at Sea Act 2000 s 6(1) [17.90] s 6(2) [4.50] s 6(2)–(3) [17.90] s 6(3) [4.40] s 6(4) [4.50], [17.90] s 6(5) [4.50] Crimes (Aviation) Act 1991 s 12 [11.20] Crimes (Currency) Act 1981 [4.80] Crimes (Foreign Incursions and Recruitment) Act 1978 [11.70], [11.80] Crimes (Hostages) Act 1989 s 8 [11.20] s 8(3)(b) [4.80] Crimes (Internationally Protected Persons) Act 1976 [9.120], [16.70] s 5 [11.20] Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection and Other Measures) Act 2013 Sch 5 [9.60] Crimes Legislation Amendment (Serious Organised Crime) Act (No 2) 2010 [10.70] Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Act 2013 s 270.1A [10.80] Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Act 2010 [9.120] Crimes (Overseas) Act 1964 [16.100] s 3A [4.50] Crimes (Ships and Fixed Platforms) Act 1992 s 18 [4.80] Crimes (Torture) Act 1988 [9.120] Criminal Code Act 1995 [9.30], [9.100], [10.60] Ch 2 [12.30] Ch 5 [4.80] Pt 7.6, Div 140 [10.70] Pt 7.8, Div 147 [10.70] Pt 9.9, Div 390 [10.70]

lxii    INTERNATIONAL LAW IN AUSTRALIA

Criminal Code Act 1995 continued Pt 10.2, Div 400 [10.70] Div 4 [12.30] Div 5 [12.30] Div 15 [4.40] Div 101 [4.70] Div 102 [4.70] Div 103 [4.70] Div 115 [4.60], [4.80] Div 268 [4.70], [9.80], [12.80], [12.180] Div 268, Sub-div D [9.30] Div 270 [4.70], [10.80] Div 271 [10.80] Div 272 [4.50] Div 274 [4.70], [9.120] s 3A [4.40] s 3B [4.40] s 10.4(2) [12.140] s 11.1 [9.120] s 11.2 [9.120] s 11.4 [9.120] s 14.1 [4.40] s 15 [4.50] s 16.1 [4.60], [4.70] s 72.4 [4.80], [11.20] s 73 [10.90] s 73.1 [10.90] s 80.1 [4.50] s 80.4 [4.50] s 115(6) [4.60] s 268.24 [12.30] s 268.31 [9.120] s 268.76 [9.120] s 268.121(1) [9.140] s 270(3) [10.80] s 270.3(1)(a) [9.120] s 271.1A [10.80] s 271.2(1B) [10.80] ss 471.10-471.13 [4.50] ss 471.16-471.26 [4.50] Sch 1 (‘Criminal Code’) [10.70], [11.20] Sch 1, s 10.4(3) [12.140] Sch 1, s 11 [11.20] Sch 1, s 100.1 [11.80] Sch 1, s 101 [11.80] Sch 1, s 102 [11.80] Sch 1, s 115 [11.80] Criminal Code Amendment (Cluster Munitions Prohibition) Act 2012 [2.80] Criminal Code Amendment (Suppression of Terrorist Bombings) Act 2002 [11.20]

Criminal Code Amendment (Terrorism) Act 2003 s 100.3 [11.80] Cross-Border Insolvency Act 2008 s 6 [14.60] Customs Act 1901 [11.80], [12.60], [17.140], [19.80] s 5C [4.40] s 59 [17.50] Customs Amendment Act 1981 s 12 [17.50] Customs (Prohibited Exports) Regulations 1958 [11.80], [19.80] Customs (Prohibited Imports) Regulations 1956 [19.80] Defence Act 1903 Pt IIIAAA [12.90] Div 2A [12.90] s 9(2) [12.140] s 51A [12.90] s 51AA [12.90] s 51AB [12.90] s 51B [12.90] s 51C [12.90] s 51CA [12.90] s 51D [12.90] s 51E [12.90] s 51I [12.90] s 51T [12.90] s 51Y [12.90] Defence Force Discipline Act 1982 [4.150], [9.40], [12.80], [12.150], [12.170] s 9 [4.50], [4.150] s 61 [4.150] Defence Legislation (Miscellaneous Amendments) Act 2009 [9.30] Deterring People Smuggling Act 2011 [10.90] Diplomatic Privileges and Immunities Act 1967 (‘DPI Act’) [9.130], [16.10], [16.90], [16.110] s 7 [16.60], [16.70] s 7(2)(c) [16.70] s 10B [16.120] s 12 [16.30] s 14 [16.40] s 15 [16.70]

TABLE OF STATUTES    lxiii

Disability Discrimination Act 1992 [6.40]

Fair Work Act 2009 s 33(1)(b) [4.40]

Electronic Transactions Act 1999 [14.60]

Family Law Act 1975 [16.90]

Energy Efficiency Opportunities Act 2006 [19.170]

Financial Transaction Reports Act 1988 [11.70], [14.20]

Environment Protection and Biodiversity Conservation Act 1999 (‘EPBC Act’) [15.70], [17.100], [17.130], [18.180], [19.50] Pt 13A [19.100] s 3(1)(b) [19.110] s 3(1)(c) [19.110] s 6 [15.70] s 16 [19.110] s 18 [19.110] s 18(1) [19.110] s 18A [19.110] s 20 [19.100] s 178 [19.110] s 224 [4.50] s 225 [4.110] s 229 [4.110] s 236 [4.40] s 266B [19.110] s 475 [19.110] s 487 [19.110] s 523 [19.110]

Fisheries Administration Act 1991 s 6 [15.70] s 6A [15.70] s 91 [15.70]

Environment Protection and Biodiversity Conservation Amendment (Heard Island and McDonald Islands) Proclamation 2014 [22.120] Environment Protection and Biodiversity Conservation (Heard Island and McDonald Islands Marine Reserve) Proclamation 2002 [22.120] Environment Protection (Sea Dumping) Act 1981 [17.130] Extradition Act 1988 [10.100], [11.20] s 5 [10.110] Extradition and Mutual Assistance in Criminal Matters Amendment Act 2012 [10.100] Extradition and Mutual Assistance in Criminal Matters Legislation Act 2012 Sch 2, Pt 3 [10.110] Sch 3, Pt 3 [10.110] Sch 3, Pt 4 [10.110]

Fisheries Amendment Act 1978 (Cth) [15.70] Fisheries Management Act 1991 [12.60], [17.140], [18.170] s 4 [15.70], [18.60] s 4(1) [4.40], [15.70] s 4(2) [15.70] s 7(1) [4.40] s 11 [15.80] s 12 [18.70] s 17 [15.70] s 34 [15.70] s 71 [15.70] s 71(5) [15.70] s 72 [15.70] s 72(2) [15.70] s 77 [15.70] s 87H [15.70] s 87HA [15.70] ss 105A–105EB [15.70] ss 105E–105EB [15.70] s 105F [4.50] s 105FA [15.70] s 105H–105J [15.70] s 168 [15.60] Fisheries Management (International Agreements) Regulations 2009 [15.60] Foreign Proceedings (Excess of Jurisdiction) Act 1984 [4.120] Foreign States Immunities Act 1985 [9.130] Gene Technology Act 2000 [19.110] Geneva Conventions Act 1938 [9.30] Geneva Conventions Act 1957 [9.80] Pt II [9.30] Pt IV [9.30] s 7 [9.30] Sch 5 [12.180]

lxiv    INTERNATIONAL LAW IN AUSTRALIA

Geneva Conventions Amendment Act 1991 s 5 [9.30]

International Monetary Agreements Act 1947 s 4 [14.20]

Great Barrier Reef Marine Park Act 1975 [17.20] Pt VAA, Div 2 [17.100]

International Organisations (Privileges and Immunities) Act 1963 (‘IOPI Act’) [5.40], [9.130], [16.10] Pt I [16.180] s 9C [9.90] s 12A [9.90] Sch 2 [16.180]

Hazardous Waste (Regulation of Exports and Imports) Act 1989 [19.70] Pt 4 [19.70] s 17(1)(a) [19.70] Hazardous Waste (Regulation of Exports and Imports) (Imports from East Timor) Regulations 2003 [19.70] Hazardous Waste (Regulation of Exports and Imports) (Waigani Convention) Regulations 1999 [19.70] Heard and McDonald Islands Act 1953 [22.100]

International Organisations (Privileges and Immunities) Amendment Act 2013 [9.90] International Organisations (Privileges and Immunities) (International Committee of the Red Cross) Regulation 2013 [9.90]

Historic Shipwrecks Act 1976 [17.110]

International Transfer of Prisoners Act 1997 [9.60]

Hong Kong Economic and Trade Office (Privileges and Immunities) Regulations 1996 [16.190]

International War Crimes Tribunals Act 1995 [9.60]

Human Rights and Equal Opportunity Commission Act 1986 [6.30], [12.170] Human Rights (Parliamentary Scrutiny) Act 2011 s 3 [6.30] Human Rights (Sexual Conduct) Act 1994 [6.50] Industrial Chemicals (Notification and Assessment) Act 1989 [19.80] International Arbitration Act 1974 [14.60] s 2C(b) [14.50] International Criminal Court Act 2002 [1.90], [9.80] s 12 [9.130] s 189 [9.90]

International War Crimes Tribunals Regulations 1995 [9.60], [9.80] Land Rights (Northern Territory) Act 1976 [17.150] Lemonthyme and Southern Forests (Commission of Inquiry) Act 1987 [19.50] Marine Safety (Domestic Commercial Vessel) National Law Act 2012 (‘National Law’) [17.120] Maritime Legislation Amendment Act 1994 [17.20]

International Development Association Act 1960 [14.20]

Maritime Powers Act 2013 [2.150] Pt 3 [17.140] s 8 [18.140] ss 12–14 [18.140] s 22A [18.140] s 41 [12.60], [17.140] s 41(1)(c) [17.50] s 41(1)(j) [18.140] s 42 [12.60] s 75A [8.70]

International Finance Corporation Act 1955 [14.20]

Maritime Powers Regulations 2014 reg 8 [17.50]

International Criminal Court (Consequential Amendments) Act 2002 (‘ICC (CA) Act’) [9.80] Sch 3 [9.30]

TABLE OF STATUTES    lxv

Measures to Combat Serious and Organised Crime Act 2001 s 15HB [10.70] Migration Act 1958 [1.90], [2.150], [2.170], [3.70], [6.20], [10.60], [12.60], [17.140] Pt 7AA [8.70] Pt 8C [8.80] s 5 [8.70] s 5AA [8.70] s 5J(1)(c) [8.70] s 5J(4) [8.70] s 5K [8.70] s 35A [8.70] s 36 [8.70] s 36(2) [6.40], [8.70] s 36(2A) [8.70] s 36(3) [8.70], [8.90] s 46A [8.70] ss 176–187 [6.60] s 189 [8.80] s 195A [8.70] s 196 [8.80] s 197AB [8.80] s 197AC(1) [8.80] s 197C [6.40] s 198 [6.40] s 198A [8.90] ss 198AA–198AH [8.90] s 228B [8.60], [10.90] s 232A [10.90], [10.110] s 233 [10.110] s 233(1)(a) [10.110] s 233A [10.110] s 233A(1) [10.90] s 233C [10.90], [10.110] s 233C(1) [10.90] s 236B(3)(c) [10.90] s 245B(1) [12.70] s 245F(8) [8.90] s 245F(9) [8.90], [12.70] s 473DB [8.70] s 501 [11.80] Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2013 [8.70] Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (‘Legacy Act’) [8.70] Migration Regulations 1994 Sch II, subclass 785 [8.70] Sch II, subclass 790 [8.70]

Multilateral Investment Guarantee Agency Act 1997 [14.20] Mutual Assistance in Criminal Matters Act 1987 [10.100], [10.110] s 12 [4.140] s 14 [4.140] s 15C [4.140] s 16 [4.140] s 28A [4.140] National Environment Protection Council Act 1994 Sch [19.30] National Greenhouse and Energy Reporting Act 2000 [19.170] National Security Legislation Amendment Act (No 1) 2014 [6.60] Nationality and Citizenship Act 1948 [8.30] Native Title Act 1993 (‘NTA’) [2.150], [7.10], [7.30], [7.70], [7.80], [7.100], [7.140], [17.150] s 3(a) [7.50] s 6 [17.150] s 223 [7.40] s 223(1) [17.150] s 223(1)(b) [7.40] Navigation Act 1912 [17.120] Navigation Act 2012 [4.40] s 9 [17.120] s 14 [17.120] Norfolk Island Act 1913 [22.30], [22.100] Norfolk Island Act 1979 [22.100], [22.130] Norfolk Island Legislation Amendment Act 2015 [22.100], [22.130] Northern Territory (Emergency Response) Act 2007 [7.30] Offshore Minerals Act 2003 [18.70] Offshore Petroleum and Greenhouse Gas Storage Act 2006 [17.130], [18.70] s 4 [15.90] s 7 [15.90] Overseas Missions (Privileges and Immunities) Act 1995 (‘OMPI Act’) [16.10] s 3 [16.190]

lxvi    INTERNATIONAL LAW IN AUSTRALIA

Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 [19.130] Passenger Movement Charge Amendment (Norfolk Island) Act 2016 [22.130] Pearl Shell Fisheries Act 1952 [18.70] Petroleum (Australia–Indonesia Zone of Cooperation) Act 1990 [23.80] Privacy Act 1988 [6.40] Proceeds of Crime Act 2002 [9.110], [10.70] Protection of the Sea (Civil Liability) Act 1981 [17.130] Protection of the Sea (Civil Liability for Bunker Oil Pollution Damage) Act 2008 [17.130] Protection of the Sea (Oil Pollution Compensation Funds) Act 1993 [17.130] Protection of the Sea (Prevention of Pollution from Ships) Act 1983 [17.130] Public Order (Protection of Persons and Property) Act 1971 (‘PO Act’) [16.150] s 4 [16.70] Public Service Act 1999 s 13(12) [16.100] Racial Discrimination Act 1975 (‘RDA’) [2.150], [6.30], [7.10], [7.140]–[7.160] s 8 [7.30] s 10 [7.40] Renewable Energy (Electricity) Act 2000 [19.170] Seas and Submerged Lands Act 1973 [7.100], [17.10], [17.20], [17.40], [17.50], [17.150], [18.30], [22.100] Pt II, Div 2 [18.70] s 3 [15.90] s 10B [7.90] s 11 [17.70] ss 11–13 [15.90] Security Legislation Amendment (Terrorism) Act 2002 [4.50], [11.80]

Sex Discrimination Act 1984 s 5 [6.40] Shipping Registration Act 1981 [4.50], [15.70], [17.120] Space Activities Act 1998 [21.50], [21.60], [21.190], [21.200] Part 1 [21.30] Part 2 [21.30] Part 3 [21.30] Part 4 [21.30] Part 5 [21.30], [21.110] Part 5A [21.30] Part 6 [21.30] Part 7 [21.30] s 3 [21.30] s 4 [21.30] s 8 [21.100], [21.120] s 11 [21.70] s 11(e)–(f) [21.80] s 12(a) [21.70] s 12(d)–(e) [21.80] s 13(f)–(g) [21.80] s 14(a)–(b) [21.70] s 14(d)–(e) [21.80] s 15 [21.70], [21.80] s 16 [21.70] s 18 [21.70] s 26(1) [21.70] s 26(2) [21.70] s 46 [21.70] s 47(2)(a)–(b) [21.120] s 48 [21.30] s 67 [21.120] s 68 [21.120] ss 80–83 [21.80] s 81(3)(a)–(b) [21.80] s 85 [21.90] s 86 [21.90] s 88 [21.90] Space Activities Regulations 2001 [21.70], [21.90] reg 4.01 [21.60] reg 4.01(2) [21.60] reg 4.03(4)(e) [21.60] reg 4.03(4)(f) [21.60] Specialized Agencies (Privileges and Immunities) Regulations 1986 [16.180] Statute of Westminster Adoption Act 1942 [1.30]

TABLE OF STATUTES    lxvii

Suppression of the Financing of Terrorism Act 2002 [11.70] Surveillance Devices Act 2004 [10.70] Taipei Economic and Cultural Office (Privileges and Immunities) Regulations 1998 [16.190]

New South Wales Crimes Act 1900 [16.70] s 33 [16.150] s 418 [12.140] Electronic Transactions Act 2000 [14.60]

Territories Law Reform Act 1992 [22.100]

Interpretation Act 1987 s 12(1) [4.40]

Territories Law Reform Act 2010 [22.130]

Ozone Protection Act 1989 [19.130]

Territories Legislation Amendment Act 2016 [22.130]

Sale of Goods (Vienna Convention) Act ss 5–6 [14.40]

Tobacco Plain Packaging Act 2011 [13.30], [23.40]

Sea-Carriage Documents Act 1997 [14.50]

Torres Strait Fisheries Act 1984 [15.80] s 8 [7.100] Trade Practices Act 1974 [4.120] United Nations (Privileges and Immunities) Regulations 1986 [16.180] Vulnerable Witness Act 2013 [10.70] War Crimes Act 1945 [4.20], [4.70] s 11(1) [9.20] s 21 [9.50] War Crimes Amendment Act 1988 [4.70], [9.50] Water Act 2007 Pt 1A [15.100] Pt 2 [15.100] s 4 [15.100] s 9 [15.100] s 20 [15.100] s 20(a) [15.100] s 21 [15.100] s 21(1) [15.100] s 21(2) [15.100] s 21(3) [15.100] Weapons of Mass Destruction (Prevention of Proliferation) Act 1995 [11.80] Witness Protection Act 1994 [10.70]

Australian Capital Territory

Northern Territory Criminal Code Act 2012 s 43BD(2)(b) [12.140] Fisheries Act s 53(1) [7.60] s 70(1) [7.60] s 73(1)(d) [7.60] Interpretation Act 1978 s 38 [4.40]

Queensland Acts Interpretation Act 1954 s 35 [4.40] Fisheries Act 1976 [7.100] Queensland Coast Islands Declaratory Act 1985 [7.40] Transport Operations (Marine Pollution) Act 1995 [17.130]

Tasmania Acts Interpretation Act 1931 s 27 [4.40] Criminal Code Act 1924 s 122(a) [6.50] s 122(c) [6.50] Criminal Code Amendment Act 1997 [6.50]

Victoria

Crimes Act 1900 [4.150]

Charter of Human Rights and Responsibilities Act 2006 [6.30], [6.50]

Human Rights Act 2004 [6.50] Pt 3A [6.30]

Electronic Transactions (Victoria) Act 2000 [14.60]

Legislation Act 2001 s 122 [4.40]

Interpretation of Legislation Act 1984 s 48 [4.40]

lxviii    INTERNATIONAL LAW IN AUSTRALIA

OVERSEAS STATUTES AND REGULATIONS UNITED KINGDOM

UNITED STATES Alien Tort Claims Act § 1350 [4.160]

British Nationality Act 1981 s 55 [9.110]

Continued Dumping and Subsidy Offset Act 2000 [23.110]

Human Rights Act 1998 [6.30], [8.50], [12.170]

International Transfer of Prisoners (Military Commission of the United States of America) Regulations 2007 Sch 1 [9.110]

Protection of Trading Interests Act 1980 [4.120] Territorial Waters Jurisdiction Act 1878 [18.40]

Military Commission Act of 2006 [9.110] § 950(25) [11.140] Uniform Code of Military Justice [9.110]

Table of Treaties

Additional Protocol No 4 to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air (1975) (‘Montreal Protocol No 4’)....................................................................................... [20.140] Additional Protocol to the SAARC Regional Convention on Suppression of Terrorism (2004)....................................................................................................... [11.120] Agreement between Australia and the Republic of Indonesia on the Framework for Security Cooperation, Australia–Indonesia (2006)...................... [1.70] Agreement between Australia and the Republic of Nauru for the Settlement of the Case in the International Court of Justice Concerning Certain Phosphate Lands in Nauru (1993)...............................................................[23.20], [23.70] Agreement between Australia and the United States on Cooperation in Science and Technology for Homeland/Domestic Security Matters (2005)............ [11.130] Agreement between Solomon Islands, Australia, New Zealand, Fiji, Papua New Guinea, Samoa and Tonga Concerning the Operations and Status of the Police and Armed Forces and Other Personnel Deployed to Solomon Islands to Assist in the Restoration of Law and Order and Security (2003)............................................................................................................... [5.50] Agreement between the Government of Australia and the European Space Agency for a Co-operative Space Vehicle Tracking Program (2011).................. [21.10] Agreement between the Government of Australia and the Government of India on Cooperation in the Peaceful Uses of Nuclear Energy (2014)........................ [15.110] Agreement between the Government of Australia and the Government of Japan for the Protection of Migratory Birds in Danger of Extinction and Their Environment (1974) (‘JAMBA’)................................................................... [15.100] Agreement between the Government of Australia and the Government of Solomon Islands Establishing Certain Sea and Seabed Boundaries (1988).............................................................................................................[18.110], [23.20] Agreement between the Government of Australia and the Government of the Argentine Republic on the Promotion and Protection of Investments (1995)...................................................................................................... [23.40] Agreement between the Government of Australia and the Government of the Democratic Republic of Timor-Leste Relating to the Unitisation of the Sunrise and Troubadour Fields (2003) (‘Sunrise Unitisation Agreement’).................................................................................... [15.90], [18.110], [23.20] art 21.............................................................................................................................. [18.180] lxix

lxx    INTERNATIONAL LAW IN AUSTRALIA

Agreement between the Government of Australia and the Government of the People’s Republic of China for Cooperation in the Peaceful Uses of Nuclear Energy (2006)......................................................................................... [15.110] Agreement between the Government of Australia and the Government of the People’s Republic of China for the Protection of Migratory Birds and Their Environment (1986) (‘CAMBA’)................................................................. [15.100] Agreement between the Government of Australia and the Government of the People’s Republic of China on the Transfer of Nuclear Material (2006)........... [15.110] Agreement between the Government of Australia and the Government of the Republic of India on the Promotion and Protection of Investments (1999)....... [23.40] Agreement between the Government of Australia and the Government of the Republic of Indonesia Establishing an Exclusive Economic Zone and Certain Seabed Boundaries (1997).......................................................................... [22.110] Agreement between the Government of Australia and the Government of the Republic of Korea on the Protection of Migratory Birds (2006) (‘ROKAMBA’).......................................................................................................... [15.100] Agreement between the Government of Australia and the Government of the Russian Federation on Cooperation in the Use of Nuclear Energy for Peaceful Purposes (2007) (‘Australia–Russia Nuclear Cooperation Agreement’) Preamble....................................................................................................................... [15.110] art I................................................................................................................................. [15.110] art II............................................................................................................................... [15.110] art VI............................................................................................................................. [15.110] art VII............................................................................................................................ [15.110] art X............................................................................................................................... [15.110] art XI............................................................................................................................. [15.110] art XIII.......................................................................................................................... [15.110] Agreement between the Government of Australia and the Government of the United States of America Concerning Peaceful Uses of Nuclear Energy (2010).......................................................................................................................... [15.110] Agreement between the Government of Hong Kong and the Government of Australia for the Promotion and Protection of Investments (1993)..................... [23.40] Agreement between the Government of Solomon Islands and the Government of Australia Establishing Certain Sea and Seabed Boundaries (1988)............... [22.110] Agreement between the Government of the Commonwealth of Australia and the Government of the Republic of Indonesia Establishing Certain Seabed Boundaries (1971)..............................................[18.110], [22.110], [23.20], [23.80] Agreement between the Government of the Commonwealth of Australia and the Government of the Republic of Indonesia Establishing Certain Seabed Boundaries in the Area of the Timor and Arafura Seas, supplementary to the Agreement of 18 May 1971 (1972)....................[18.110], [22.110], [23.20], [23.80] Agreement by the Government of the United Kingdom of Great Britain and Northern Ireland, the Government of the United States of America, the Provisional Government of the French Republic and the Government of the Union of Soviet Socialist Republics for the Prosecution and Punishment of the Major War Criminals of the European Axis (1945) (‘London Agreement’) art 1.................................................................................................................................... [9.20] art 2.................................................................................................................................... [9.20] art 14.................................................................................................................................. [9.20] Agreement Establishing the International Bauxite Association (1974)..................... [15.20] Agreement for the Establishment of the Indian Ocean Tuna Commission (1993)............................................................................................................................ [15.50]

TABLE OF TREATIES    lxxi

Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (1995) (‘Fish Stocks Agreement’)......... [15.70], [18.10], [18.120] Pt II.................................................................................................................................. [15.40] Pt III................................................................................................................................ [15.50] art 5.................................................................................................................................. [15.40] art 5(a).............................................................................................................................. [15.40] art 5(b).............................................................................................................................. [15.40] art 5(c).............................................................................................................................. [15.40] arts 5(d)–(g)..................................................................................................................... [15.40] art 5(h)............................................................................................................................. [15.40] art 5(j).............................................................................................................................. [15.40] art 5(l)............................................................................................................................... [15.40] art 6.................................................................................................................................. [15.40] art 6(1).............................................................................................................................. [15.40] art 7.................................................................................................................................. [15.40] art 8(1).............................................................................................................................. [15.50] art 8(3).............................................................................................................................. [15.50] art 8(4).............................................................................................................................. [15.50] arts 9–12.......................................................................................................................... [15.50] art 17................................................................................................................................ [15.50] Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (1979) (‘Moon Agreement’)........................................................... [21.20] Agreement on Consular Relations between Australia and the People’s Republic of China (1999)......................................................................................... [16.140] Agreement on Cooperative Enforcement of Fisheries Laws between the Government of Australia and the Government of the French Republic in the Maritime Areas Adjacent to the French Southern and Antarctic Territories, Heard Island and the McDonald Islands (2007)..................................................... [15.60] Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (‘Anti-Dumping Agreement’) art 18.1............................................................................................................................. [13.60] Agreement on Marine Delimitation between the Government of Australia and the Government of the French Republic (1982)............................................ [22.110] Agreement on Maritime Delimitation between the Government of Australia and the Government of the French Republic (1982)...............................[18.110], [23.20] Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (2009)......................................................... [15.60] Agreement on Strengthening Implementation of the Niue Treaty on Cooperation in Fisheries Surveillance and Law Enforcement in the South Pacific (2012).................................................................................................... [15.60] Agreement on Subsidies and Countervailing Measures (‘SCM Agreement’) art 3.................................................................................................................................. [13.60] art 3.1(a)........................................................................................................................... [13.60] art 4.7............................................................................................................................... [13.60] art 32.1............................................................................................................................. [13.60] Agreement on the Application of Sanitary and Phytosanitary Measures (‘SPS Agreement’) art 2.2............................................................................................................................... [13.50] art 5.1............................................................................................................................... [13.50] art 5.6............................................................................................................................... [13.50] art 13................................................................................................................................ [13.50]

lxxii    INTERNATIONAL LAW IN AUSTRALIA

Agreement on the Privileges and Immunities of the International Atomic Energy Agency (1959).................................................................................................. [5.50] Agreement on the Privileges and Immunities of the International Criminal Court (2002)................................................................................................................... [9.90] Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (1968) (‘Rescue Agreement’).................. [21.20] Agreement on Trade-Related Aspects of Intellectual Property Rights (‘TRIPS Agreement’) art 22.1............................................................................................................................. [13.20] Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982 (1994) (‘Part XI Implementation Agreement’)....................................................[18.10], [18.130] Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (1993) (‘Compliance Agreement’)........................................................................................ [15.70] Preamble......................................................................................................................... [15.60] American Convention on Human Rights (1969) art 22(7).............................................................................................................................. [8.50] Antarctic Treaty (1959)................................................. [1.80], [4.20], [4.110], [22.10], [22.100] art I................................................................................................................................. [22.140] art II............................................................................................................................... [22.140] art III............................................................................................................................. [22.140] art IV............................................................................................................................. [22.140] art 3................................................................................................................................ [18.170] art 8.................................................................................................................................... [4.50] Arbitration Rules of the United Nations Commission on International Trade Law (1976) (‘UNCITRAL Arbitration Rules’)........................................... [23.40] Arms Trade Treaty (2013).................................................................................................. [1.90] ASEAN Agreement on Transboundary Haze Pollution (2002)............................... [19.120] Australia–Indonesia Memorandum of Understanding regarding the Operations of Indonesian Traditional Fishermen in Areas of the Australian Fishing Zone and Continental Shelf (1974)....................................... [18.110] Australia–New Zealand Closer Economic Relations Trade Agreement (1983).................................................................................................................[1.70], [23.40] Australia–United States Free Trade Agreement (2004) annex I (Australia) 14.................................................................................................... [13.20] Balfour Declaration (1926)......................................................................................[1.10], [1.30] Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (1989) (‘Basel Convention’) art 1.................................................................................................................................. [19.70] art 4.................................................................................................................................. [19.70] art 4(2).............................................................................................................................. [19.70] annex I............................................................................................................................. [19.70] annex III.......................................................................................................................... [19.70] Basic Treaty of Friendship and Co-operation between Australia and Japan (1976)................................................................................................................. [23.40] Cartagena Protocol on Biosafety to the Convention on Biological Diversity of 5 June 1992 (2000) (‘Biosafety Protocol’)..............................................[19.20], [19.110] Charter of the International Military Tribunal............................................................... [9.20] Charter of the United Nations.................................... [1.110], [5.10], [5.40], [11.30], [11.110] Ch VII..........................................[5.30], [9.60], [11.40], [12.70], [12.100], [12.120]–[12.140] art 1.................................................................................................................................... [6.30] art 2(g).............................................................................................................................. [12.70]

TABLE OF TREATIES    lxxiii

art 2(7)................................................................................................................................ [5.30] art 7(2)................................................................................................................................ [5.50] art 25.............................................................................................................................. [12.100] art 33................................................................................................................................ [23.10] art 73.............................................................................................................................. [22.130] art 73(e).......................................................................................................................... [22.130] art 102................................................................................................................................ [3.80] art 103...............................................................................................................[11.50], [12.100] China–Australia Free Trade Agreement....................................................................... [13.90] Code of Conduct for Responsible Fisheries (1995) art V.2............................................................................................................................... [15.60] Comprehensive Nuclear Test Ban Treaty (1996)............................................................ [5.50] Constitution of the International Labour Organization (1919) art 19(6).............................................................................................................................. [6.30] art 19(7).............................................................................................................................. [6.30] Consular Agreement between Australia and the Socialist Republic of Vietnam (2003).......................................................................................................... [16.140] Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988) (‘Vienna Drugs Convention’)........................................[10.20], [10.60] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) (‘Convention against Torture’).............[2.80], [4.20], [5.60], [5.80], [6.30], [9.130], [23.40] art 1.................................................................................................................................... [8.60] art 4.................................................................................................................................... [8.80] art 7.................................................................................................................................. [9.120] art 8.................................................................................................................................. [9.120] Convention Concerning Indigenous and Tribal Peoples in Independent Countries (1989).......................................................................................................... [7.130] Convention Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-tribal Populations in Independent Countries (1967)........ [7.130] Convention Concerning the Protection of the World Cultural and Natural Heritage (1972) (‘World Heritage Convention’).........................[2.90], [19.110] Preamble......................................................................................................................... [19.50] art 4.................................................................................................................................. [19.50] art 5.................................................................................................................................. [19.50] art 11(4)............................................................................................................................ [19.50] Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field (1929) art 28.................................................................................................................................. [9.30] Convention for the Conservation of Southern Bluefin Tuna (1993) (‘CCSBT’).................................................................................................................... [15.50] art 8................................................................................................................................ [23.130] Convention for the Establishment of a European Space Agency (1975) (‘ESA Convention’).................................................................................................... [21.10] Convention for the Pacific Settlement of International Disputes (1899)................... [23.30] Convention for the Pacific Settlement of International Disputes (1907)................... [23.30] Convention for the Protection of the Natural Resources and Environment of the South Pacific Region (1986) art 4.................................................................................................................................. [23.40] annex art 1....................................................................................................................... [23.40] Convention for the Protection of the World Cultural and Natural Heritage (1972).......................................................................................................................... [15.100]

lxxiv    INTERNATIONAL LAW IN AUSTRALIA

Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (1988)...........................................................................[4.20], [12.10] art 6(2)................................................................................................................................ [4.60] Convention for the Suppression of Unlawful Seizure of Aircraft (1970).................... [4.20] Convention for the Unification of Certain Rules for International Carriage by Air (1999) (‘Montreal Convention’).................................... [20.100], [20.110], [20.140] Ch III............................................................................................................................. [20.120] art 4................................................................................................................................ [20.130] Convention for the Unification of Certain Rules Relating to International Carriage by Air (1929) (‘Warsaw Convention’).................................................... [20.110] art 1................................................................................................................................ [20.120] art 3................................................................................................................................ [20.100] art 17...............................................................................................................[20.130], [20.140] art 24.............................................................................................................................. [20.130] Convention on Biological Diversity (1992) (‘Biodiversity Convention’) (‘CBD’)............................................................... [3.70], [17.100], [18.180], [19.30], [19.180] art 1................................................................................................................................ [19.110] art 2................................................................................................................................ [19.110] art 3(g)............................................................................................................................ [19.110] art 5................................................................................................................................ [19.110] art 6................................................................................................................................ [19.110] art 7................................................................................................................................ [15.100] art 8.................................................................................................................[15.100], [19.110] art 8(g)............................................................................................................................ [19.110] art 8(h)........................................................................................................................... [19.110] art 8(j)............................................................................................................................ [19.110] art 9................................................................................................................................ [19.110] art 14.............................................................................................................................. [19.110] art 17.............................................................................................................................. [19.110] Convention on Choice of Court Agreements................................................................ [14.30] Convention on Cluster Munitions (2008) (‘Oslo Convention’)........... [2.80], [12.30], [12.40] Convention on Combating Bribery of Foreign Public Officials in Business Transactions (1997) (‘OECD Foreign Bribery Convention’)................[10.60], [10.130], [14.10], [14.30] art 4.................................................................................................................................... [4.50] art 10.................................................................................................................................. [4.50] Convention on Contracts for the Carriage of Goods Wholly or Partly by Sea (2008) (‘Rotterdam Rules’)............................................................................. [14.30] art 89................................................................................................................................ [14.50] art 94................................................................................................................................ [14.50] Convention on Fishing and Conservation of the Living Resources of the High Seas (1958)............................................................................................[17.10], [18.10] Convention on International Civil Aviation (1944) (‘Chicago Convention’).................................................................................................[20.10], [20.150] art 1.................................................................................................................................. [20.80] art 1(a).............................................................................................................................. [20.40] art 2.................................................................................................................................. [20.60] art 3(a).............................................................................................................................. [20.80] art 5(b).............................................................................................................................. [20.80] art 17.................................................................................................................................. [4.50] art 18.................................................................................................................................. [4.50] art 44................................................................................................................................ [20.90] annex 13........................................................................................................................... [20.70] annex 17........................................................................................................................... [20.70]

TABLE OF TREATIES    lxxv

Convention on International Interests in Mobile Equipment (2001)......................... [14.30] Convention on International Liability for Damage Caused by Space Objects (1972) (‘Liability Convention’).................................................................................. [21.20] art I(a)............................................................................................................................ [21.120] art I(d)............................................................................................................................ [21.100] art II............................................................................................................................... [21.120] art III............................................................................................................................. [21.120] art VI............................................................................................................................. [21.120] art VII............................................................................................................................ [21.120] art 1(c)............................................................................................................................ [21.120] art 47.............................................................................................................................. [21.120] Convention on International Trade in Endangered Species of Wild Fauna and Flora (1973) (‘CITES’)...........................................................................[3.70], [18.180] art 3................................................................................................................................ [19.100] Convention on Long-Range Transboundary Air Pollution (1979).......................... [19.120] Convention on Offences and Certain Other Acts Committed on Board Aircraft (1963) art 4.................................................................................................................................... [4.60] Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects (1980).................................................................................. [12.150] Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (1993) (‘Hague Convention on Intercountry Adoption’)...................................................................................................................... [8.30] Convention on Psychotropic Substances (1971) (‘Psychotropic Substances Convention’)...................................................................................................[10.20], [10.60] Convention on Registration of Objects Launched into Outer Space (1975) (‘Registration Convention’)..........................................................................[21.20], [21.30] art I(b)............................................................................................................................ [21.100] art II(1)........................................................................................................................... [21.110] art III(1)......................................................................................................................... [21.110] art IV............................................................................................................................... [21.10] art IV(1)......................................................................................................................... [21.110] Convention on the Carriage of Goods by Sea (1978) (‘Hamburg Rules’)........[14.30], [14.50] Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean (2009)........................................................... [15.50] Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (2000).............................. [15.50] Convention on the Conservation of Antarctic Marine Living Resources (1980) (‘CCAMLR’)........................................................[15.50], [15.80], [18.180], [22.140] art VII................................................................................................................................ [5.40] art XIII.............................................................................................................................. [5.40] Convention on the Conservation of Migratory Species of Wild Animals (1979) (‘Bonn Convention’)................................................................................................. [15.100] art I................................................................................................................................. [19.100] art II............................................................................................................................... [19.100] art III............................................................................................................................. [19.100] art IV............................................................................................................................. [19.100] Convention on the Continental Shelf (1958)..........................[17.10], [17.70], [18.10], [18.70] Convention on the Elimination of All Forms of Discrimination against Women (1979) (‘CEDAW’).....................................................[5.50], [6.30], [6.50], [23.40] art 1.................................................................................................................................... [6.40] Convention on the High Seas (1958)..................................................................[17.10], [18.10]

lxxvi    INTERNATIONAL LAW IN AUSTRALIA

Convention on the International Regulations for Preventing Collisions at Sea (1972) (‘COLREGS’)................................................................................................ [17.120] Convention on the International Trade in Endangered Species of Wild Fauna and Flora (1973)........................................................................................................ [17.100] Convention on the Marking of Plastic Explosives for the Purpose of Detection (1991) (‘Plastic Explosives Convention’).................................................................. [11.20] Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents (1973)....................................... [9.120] Convention on the Prevention and Punishment of the Crime of Genocide (1948) (‘Convention on Genocide’)................................................................ [2.60], [2.120], [6.30] Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (1972).................................................................................................. [17.130] Convention on the Privileges and Immunities of the Specialized Agencies (1947)..............................................................................................[5.50], [16.180] Convention on the Privileges and Immunities of the United Nations (1946)......... [16.180] Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxic Weapons and on Their Destruction (1972) (‘Biological Weapons Convention’)..........[11.20], [12.10], [12.150] Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction (1993) (‘Chemical Weapons Convention’)..................... [1.110], [5.50], [11.20], [12.10], [12.150] Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction (1997) (‘Ottawa Convention’).................................................................................[12.10], [12.150] Pt 1................................................................................................................................. [12.160] art 1.................................................................................................................................. [12.30] art 1(c)............................................................................................................................ [12.160] Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005)....................................................................................................... [13.20] Convention on the Protection of Underwater Cultural Heritage (2001)................. [17.110] Convention on the Reduction of Statelessness (1961)..................................................... [8.20] Convention on the Rights of Persons with Disabilities (2006) (‘CRPD’).........[6.30]–[6.50], [7.130], [23.40] Convention on the Rights of the Child (1989) (‘CRC’).......................... [2.170], [6.30], [6.40] art 7.................................................................................................................................... [8.20] art 8.................................................................................................................................... [8.20] Convention on the Settlement of Investment Disputes between States and Nationals of Other States (1965)....................................................................... [23.40] Convention on the Territorial Sea and the Contiguous Zone (1958)............[17.10], [18.10] Convention on Wetlands of International Importance Especially as Waterfowl Habitat (1971) (‘Ramsar Convention’)................................[17.100], [19.110] Preamble....................................................................................................................... [19.110] art 2.................................................................................................................[15.100], [19.110] art 3................................................................................................................................ [15.100] art 3(1)............................................................................................................................ [19.110] art 3(2)............................................................................................................................ [19.110] art 4(1)............................................................................................................................ [19.110] Convention Relating to the International Status of Refugees (1933) art 1.................................................................................................................................... [8.50] art 3.................................................................................................................................... [8.50] Convention Relating to the Regulation of Aerial Navigation (1919) (‘Paris Convention’).....................................................................................[20.80], [20.100] art 1....................................................................................................... [20.10], [20.40], [20.60]

TABLE OF TREATIES    lxxvii

Convention Relating to the Status of Refugees (1951) (‘Refugee Convention’).................................[1.90], [2.150], [6.40], [8.20], [10.90], [12.70] art 1A................................................................................................................................. [3.70] art 1A(2)............................................................................................................................ [8.50] art 1C................................................................................................................................. [3.70] art 1C(5)............................................................................................................................. [3.70] arts 2–36............................................................................................................................ [8.70] art 6B................................................................................................................................. [8.50] art 31........................................................................................................... [8.60], [8.80], [8.90] art 33.......................................................................................................................[8.50], [8.90] art 34.................................................................................................................................. [8.30] Convention Relating to the Status of Stateless Persons (1954) art 17.................................................................................................................................. [8.20] Convention Relative to the Treatment of Prisoners of War (1929).............................. [9.30] Convention to Ban the Importation into Forum Island Countries of Hazardous and Radioactive Wastes and to Control the Transboundary Movement and Management of Hazardous Wastes within the South Pacific Region (1989) (‘Waigani Convention’) art 4.................................................................................................................................. [19.70] Covenant of the League of Nations (1919) art 22.................................................................................................................................. [6.30] Draft Articles on Diplomatic Protection (2006) art 4.................................................................................................................................... [8.20] art 8.................................................................................................................................... [8.20] art 19.................................................................................................................................. [8.30] Draft Treaty of Mutual Assistance (1923)........................................................................ [5.20] European Convention on Human Rights and Fundamental Freedoms (1950) (‘ECHR’)........................................................................................................................ [8.50] art 1................................................................................................................................ [12.170] Exchange of Diplomatic Notes Constituting an Arrangement between the Government of Australia and the Government of the Republic of Indonesia Concerning the Status of the Multinational Force in East Timor (1999).......... [12.130] Exchange of Letters Constituting an Agreement between the Government of Australia and the Government of New Zealand Relating to Nauru (1994)....... [23.20] Exchange of Letters Constituting an Agreement between the Government of Australia and the Government of the United Kingdom of Great Britain and Northern Ireland Relating to Nauru (1994)........................................................... [23.20] Exchange of Notes Constituting an Agreement between the Government of Australia and the Government of the United Kingdom of Great Britain and Northern Ireland Concerning Maralinga and Other Sites in Australia (1993)............................................................................................................................ [23.20] Five Power Defence Arrangements, Australia–Malaysia, Australia–Singapore (1971).............................................................................................................................. [1.70] General Act for the Pacific Settlement of International Disputes (1928).........[23.30], [23.60] General Agreement on Tariffs and Trade 1947 (‘GATT’)...........................[13.10], [23.110] art I:1................................................................................................................................ [13.20] art III:4............................................................................................................................ [13.70] art XI:1............................................................................................................................ [13.20] art XX(a)............................................................................................................[13.20], [13.70] art XX(b)............................................................................................................[13.20], [13.70] art XX(d)......................................................................................................................... [13.70] art XXIV......................................................................................................................... [13.90] General Agreement on Trade in Services...................................................................... [13.80]

lxxviii    INTERNATIONAL LAW IN AUSTRALIA

Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (1949) (‘First Geneva Convention’)............................................[11.30], [12.30], [12.150], [18.10] art 1.................................................................................................................................. [9.110] art 3.................................................................................................................................. [9.110] art 49.................................................................................................................................. [9.30] Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (1949) (‘Second Geneva Convention’)........................................[11.30], [12.30], [12.150], [18.10] art 1.................................................................................................................................. [9.110] art 3.................................................................................................................................. [9.110] art 50.................................................................................................................................. [9.30] Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1949) (‘Fourth Geneva Convention’)................................[11.30], [12.30], [12.150], [12.170], [18.10] art 1.................................................................................................................................. [9.110] art 2.................................................................................................................................... [9.30] art 3.................................................................................................................................. [9.110] art 45.................................................................................................................................. [9.30] art 146................................................................................................................................ [9.30] art 147................................................................................................................................ [9.30] Geneva Convention Relative to the Treatment of Prisoners of War (1949) (‘Third Geneva Convention’)..........................................[11.30], [12.30], [12.150], [18.10] art 1.................................................................................................................................. [9.110] art 3.................................................................................................................................. [9.110] art 12.................................................................................................................................. [9.30] art 129................................................................................................................................ [9.30] Geneva Protocol for the Pacific Settlement of International Disputes 1924............... [5.20] Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws (1930) art 1.................................................................................................................................... [4.50] Hague–Visby Rules art 3 r 1............................................................................................................................. [14.50] art 3 r 2............................................................................................................................. [14.50] art 3 r 6............................................................................................................................. [14.50] art 4 r 1............................................................................................................................. [14.50] art 4 r 2............................................................................................................................. [14.50] art 4 r 2(a)........................................................................................................................ [14.50] art 4 r 5............................................................................................................................. [14.50] art 10................................................................................................................................ [14.50] arts 10(a)–(b)................................................................................................................... [14.50] Inter-Governmental Agreement on the Environment (1992) (‘IGAE’).................. [19.130] Sch 8, para 3.................................................................................................................... [19.50] Interim Agreement on International Civil Aviation (1944)........................................ [20.90] International Air Services Transit Agreement (1944) (‘Two Freedoms Agreement’ or ‘Transit Agreement’)........................................................[20.80], [20.100] International Convention against the Recruitment, Use, Financing and Training of Mercenaries (1989)............................................................................... [11.120] International Convention against the Taking of Hostages (1979) art 5.................................................................................................................................... [4.60] International Convention Concerning the Laws and Customs of War on Land [Hague IV] (1907)............................................................................................... [9.30] International Convention for the Control and Management of Ships’ Ballast Water and Sediments (2004)....................................................................... [17.130]

TABLE OF TREATIES    lxxix

International Convention for the Prevention of Pollution from Ships (1973) (‘MARPOL’)...............................................................................................[17.120], [17.130] International Convention for the Protection of All Persons from Enforced Disappearance (2006).................................................................................................... [6.30] International Convention for the Regulation of Whaling (1946) (‘ICRW’)............ [22.140] art VIII................................................................................................. [3.70], [19.100], [23.90] art VIII(1).......................................................................................................................... [3.70] Sch, para 7(b).................................................................................................................. [23.90] Sch, para 10(d)................................................................................................................ [23.90] Sch, para 10(e)................................................................................................................. [23.90] International Convention for the Safety of Life at Sea (1974) (‘SOLAS’)............... [17.120] International Convention for the Suppression of Terrorist Bombings (1998) (‘Terrorist Bombings Convention’).......................................................................... [11.20] art 6(2)................................................................................................................................ [4.60] art 6(4)................................................................................................................................ [4.70] International Convention for the Suppression of the Financing of Terrorism (1999) (‘Terrorist Financing Convention’)....................................................[4.20], [11.20] art 7(4)................................................................................................................................ [4.70] International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading (1924) (‘Brussels Convention’ or ‘Hague Rules’)........[14.30], [14.50] International Convention on the Elimination of All Forms of Racial Discrimination (1965)................................................................................................. [23.40] International Convention on Civil Liability for Bunker Oil Pollution Damage (2001).......................................................................................................... [17.130] International Convention on Civil Liability for Oil Pollution Damage (1969) (‘CLC’)....................................................................................................................... [17.130] International Convention on the Elimination of All Forms of Racial Discrimination (1965) (‘ICERD’)..................................................................[6.30], [7.160] Pt III.................................................................................................................................. [7.40] art 4.................................................................................................................................... [7.30] art 14.................................................................................................................................. [6.50] International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (1971) (‘Fund Convention’)............. [17.130] International Convention on the Rights of All Migrant Workers and Members of Their Families (1990)............................................................................................... [6.30] International Covenant on Civil and Political Rights (1966) (‘ICCPR’)....................................................... [1.110], [2.70], [2.150], [2.180], [6.30], [6.50], [7.130], [8.40], [9.110], [23.40] art 2.................................................................................................................................... [2.90] art 2(1)............................................................................................................................ [12.170] art 7.................................................................................................................................... [8.50] art 9.........................................................................................................................[3.70], [8.80] art 9(4)................................................................................................................................ [8.80] art 12(4)...................................................................................................................[8.20], [8.30] art 14(3)............................................................................................................................ [2.140] art 17........................................................................................................... [6.40], [8.20], [8.90] art 23.......................................................................................................................[8.20], [8.90] art 24.................................................................................................................................. [8.20] art 25.................................................................................................................................. [8.20] art 26.......................................................................................................................[2.90], [8.90] International Covenant on Economic, Social and Cultural Rights (1966) (‘ICESCR’)................................................................... [1.110], [2.90], [2.180], [6.30], [6.40] art 1.................................................................................................................................. [7.130]

lxxx    INTERNATIONAL LAW IN AUSTRALIA

International Regulations for Preventing Collisions at Sea (1972)........................... [17.120] Joint Declaration on Security Cooperation, India–Australia (2009)............................ [1.70] Joint Declaration on Security Cooperation, Japan–Australia (2007)............................ [1.70] Kyoto Protocol to the United Nations Framework Convention on Climate Change (1997) (‘Kyoto Protocol’)..................................................[5.50], [19.140] art 3(1)............................................................................................................................ [19.150] art 3(3)............................................................................................................................ [19.150] Marrakesh Agreement Establishing the World Trade Organization (1994) (‘General Agreement on Trade in Services’) (‘Agreement Establishing the WTO’)......................................................................................................[13.20], [13.70] art 21.3........................................................................................................................... [23.110] art 22.6........................................................................................................................... [23.110] annex 1A (‘Agreement on Agriculture’)..................................................................... [13.60] annex 1A (‘Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994’)............................................................... [13.60] annex 1A (‘Agreement on Subsidies and Countervailing Measures’)......[13.60], [23.110] annex 1A (‘Agreement on the Application of Sanitary and Phytosanitary Measures’)..................................................................................................[13.50], [23.110] annex 1C (‘Agreement on Trade-Related Aspects of Intellectual Property Rights’)...................................................................................................................... [13.20] annex 2 (‘Understanding on Rules and Procedures Governing the Settlement of Disputes’) (‘Dispute Settlement Understanding’)..........[13.40], [23.40] annex 4 (‘Agreement on Government Procurement’).............................................. [13.80] Memorandum of Understanding between the Government of the Independent State of Papua New Guinea of Certain Persons, and Related Issues (2013)..................................................................................................... [8.90] Memorandum of Understanding between the Government of the Kingdom of Cambodia and the Government of Australia, Relating to the Settlement of Refugees in Cambodia (2014)...................................................................................... [8.90] Memorandum of Understanding between the Governments of Australia and the Government of the Republic of Indonesia regarding the Operations of Indonesian Traditional Fishermen in Areas of the Australian Exclusive Fishing Zone and Continental Shelf (1974).......................................................... [22.120] Memorandum of Understanding between the Republic of Nauru and the Commonwealth of Australia, Relating to the Transfer to and Assessment of Persons in Nauru, and Related Issues (2013)........................................................ [8.90] Model Law on Cross-Border Insolvency (1997)...............................................[14.30], [14.60] Model Law on Electronic Transactions (1996).............................................................. [14.60] Model Law on International Commercial Arbitration (1985).......................[14.30], [14.60] Montreal Protocol on Substances That Deplete the Ozone Layer (1987) (‘Montreal Protocol’)........................................................ [19.30], [19.130], [20.100] Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from Their Utilization (2011) (‘Nagoya Protocol’)................................................................................................... [19.110] New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) (‘New York Convention’)................................................ [14.30] 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter of 29 December 1992 (1996) (‘London Convention Protocol’)............................................................................. [17.130] 1992 Protocol to Amend the 1971 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage of 18 December 1971 (1992)..................................................................... [17.130]

TABLE OF TREATIES    lxxxi

1992 Protocol to Amend the 1969 International Convention on Civil Liability for Oil Pollution Damage (1992)............................................................................ [17.130] Niue Treaty on Cooperation in Fisheries Surveillance and Law Enforcement in the South Pacific Region (1992) (‘Niue Treaty’)................................................. [15.60] Offshore Constitutional Settlement (‘OCS’).......................[17.20], [17.30], [17.80]–[17.100], [17.120], [17.130], [17.160] Optional Protocol to the Convention against Torture (2002) (‘OPCAT’).................... [6.50] Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment................................................. [8.80] Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (1999)...................................................................... [6.50] Optional Protocol to the Convention on the Rights of People with Disabilities (2006).............................................................................................................................. [6.50] Optional Protocol to the International Covenant on Civil and Political Rights (1966).............................................................................................................................. [6.50] Pacific Agreement on Closer Economic Relations (PACER) Plus............................... [1.70] Pan American Convention on Commercial Aviation (1928) (‘Havana (Pan American) Convention’).................................................................. [20.60] Paris Agreement on Climate Change (2016) (‘Paris Agreement’)...............[19.30], [19.180] art 2................................................................................................................................ [19.160] art 2.1............................................................................................................................. [19.160] art 2.1(a)......................................................................................................................... [19.160] art 3................................................................................................................................ [19.160] art 4(1)............................................................................................................................ [19.160] art 4(3)............................................................................................................................ [19.160] art 4(4)............................................................................................................................ [19.160] art 4.2............................................................................................................................. [19.160] art 14(1)–(2)................................................................................................................... [19.160] Proclamation Defining Terms for Japanese Surrender (1945) (‘Potsdam Declaration’)............................................................................................... [9.20] Protocol Additional to the Agreement between Australia and the International Atomic Energy Agency for the Application of Safeguards in Connection with the Treaty on the Non-Proliferation of Nuclear Weapons of 1 July 1968 (1997)................................................................................ [15.110] Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Adoption of an Additional Distinctive Emblem (2005) (‘Additional Protocol III’)................................... [9.30], [12.10], [12.150] Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (1977) (‘Additional Protocol I’).................................... [12.10], [12.30], [12.150] art 1(4)................................................................................................................................ [9.30] art 36.............................................................................................................................. [12.180] art 51(5)(b)....................................................................................................................... [12.90] art 56.............................................................................................................................. [12.160] art 85.................................................................................................................................. [9.30] Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (1977) (‘Additional Protocol II’).....................................[9.30], [12.10], [12.150], [12.160] Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunition (2001) (‘Firearms Trafficking Protocol’)................................................................[10.20], [11.20]

lxxxii    INTERNATIONAL LAW IN AUSTRALIA

Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organised Crime (2000) (‘People Smuggling Protocol’)............................................................................................ [4.20], [10.10]–[10.40], [10.60], [10.110], [10.130] art 1.................................................................................................................................. [10.50] art 2.................................................................................................................................. [10.50] art 3(a).............................................................................................................................. [10.50] art 5.......................................................................................................................[8.60], [10.50] art 6.................................................................................................................................. [10.50] art 6(1)(a)......................................................................................................................... [10.50] art 6(1)(b)......................................................................................................................... [10.50] art 6(1)(c)......................................................................................................................... [10.50] art 6(2).............................................................................................................................. [10.50] art 6(3).............................................................................................................................. [10.50] art 6(3)(a)......................................................................................................................... [10.90] art 6(3)(a), para 1(b)........................................................................................................ [10.90] art 7.................................................................................................................................. [10.50] art 8(1).............................................................................................................................. [10.50] art 8(3).............................................................................................................................. [10.50] art 8(4).............................................................................................................................. [10.50] art 8(6).............................................................................................................................. [10.50] art 9(1).............................................................................................................................. [10.50] art 10(2)............................................................................................................................ [10.50] art 11(1)............................................................................................................................ [10.50] art 11(3)............................................................................................................................ [10.50] art 12(a)............................................................................................................................ [10.50] art 12(b)............................................................................................................................ [10.50] art 14(1)............................................................................................................................ [10.50] art 14(2)............................................................................................................................ [10.50] art 15(1)............................................................................................................................ [10.50] art 15(2)............................................................................................................................ [10.50] art 15(3)............................................................................................................................ [10.50] art 16(1)............................................................................................................................ [10.50] art 16(3)............................................................................................................................ [10.50] art 16(4)............................................................................................................................ [10.50] art 16(5)............................................................................................................................ [10.50] art 18(1)............................................................................................................................ [10.50] art 18(3)............................................................................................................................ [10.50] art 18(4)............................................................................................................................ [10.50] art 18(5)............................................................................................................................ [10.50] art 19.................................................................................................................................. [8.60] Protocol Amending the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading (1979) (‘SDR Protocol’).............................................................................................[14.30], [14.50] Protocol on Environmental Protection to the Antarctic Treaty of 1 December 1959 (1991) (‘Madrid Protocol’).............[1.110], [17.130], [18.170], [18.180] art 7.................................................................................................................................. [15.90] Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices, as amended (‘Protocol II’)..................................................... [12.150] Protocol Relating to the Status of Refugees (1967)......................................................... [8.50] Protocol to Amend the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading (1968) (‘Visby Protocol’)............[14.30], [14.50]

TABLE OF TREATIES    lxxxiii

Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (2000) (‘Trafficking Protocol’).....................................................[10.10]–[10.30], [10.50], [10.60], [10.80], [10.110], [10.130] art 1.................................................................................................................................. [10.40] art 2.....................................................................................................................[10.40], [10.90] art 3.................................................................................................................................. [10.40] art 3(a).............................................................................................................................. [10.40] art 3(b).............................................................................................................................. [10.40] art 6(1).............................................................................................................................. [10.40] art 6(2).............................................................................................................................. [10.40] art 6(3).............................................................................................................................. [10.40] art 6(5).............................................................................................................................. [10.40] art 6(6).............................................................................................................................. [10.40] art 8.................................................................................................................................. [10.40] art 9(1).............................................................................................................................. [10.40] art 9(2).............................................................................................................................. [10.40] art 9(3).............................................................................................................................. [10.40] art 10(1)............................................................................................................................ [10.40] art 10(2)............................................................................................................................ [10.40] art 10(3)............................................................................................................................ [10.40] art 11(1)............................................................................................................................ [10.40] art 11(2)............................................................................................................................ [10.40] art 11(3)............................................................................................................................ [10.40] art 12(a)............................................................................................................................ [10.40] art 12(b)............................................................................................................................ [10.40] Provisional Fisheries Surveillance and Enforcement Arrangement (1981)............ [18.110] Rome Statute of the International Criminal Court (1998) (‘Rome Statute’)...............................................[1.110], [4.20], [9.30], [9.70], [9.90], [9.120], [10.20], [12.10], [12.150], [12.160], [23.40] Pt 9..................................................................................................................................... [9.80] art 7.................................................................................................................................. [9.100] art 8(2)(a)(i)...................................................................................................................... [12.30] art 27................................................................................................................................ [9.130] Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (1998) (‘PIC Convention’) art 7.................................................................................................................................. [19.80] art 8.................................................................................................................................. [19.80] annex III.......................................................................................................................... [19.80] Rules on Transparency in Treaty-based Investor-State Arbitration (2013)............... [23.40] SAARC Regional Convention on Suppression of Terrorism (1987)........................ [11.120] Security Treaty between Australia, New Zealand and the United States of America (1951) (‘ANZUS Treaty’)............................................................................. [5.30] art III................................................................................................................................. [1.70] art IV................................................................................................................................. [1.70] Singapore–Australia Free Trade Agreement (2003) art 16(2)............................................................................................................................ [23.40] Single Convention on Narcotic Drugs (1961) (‘Narcotic Drugs Convention’)...................................................................................................[10.20], [10.60] Sixth International Tin Agreement (1981).................................................................... [15.20] South Pacific Forum Fisheries Agency Convention (1979)......................................... [15.60]

lxxxiv    INTERNATIONAL LAW IN AUSTRALIA

South Pacific Nuclear Free Zone Treaty (1985).............................................................. [5.50] Southeast Asia Collective Defence Treaty (1954)............................................................ [5.30] Southern Indian Ocean Fisheries Agreement (2006) art 5.................................................................................................................................. [15.50] art 7.................................................................................................................................. [15.50] art 9.................................................................................................................................. [15.50] Statute of the International Atomic Energy Agency (1956)...................................... [15.110] Statute of the International Court of Justice (‘ICJ’)........................................................ [2.10] art 36(2).............................................................................................................[18.110], [23.50] art 38(1)............................................................................................................................ [21.20] art 53................................................................................................................................ [23.60] art 62................................................................................................................................ [23.60] art 63................................................................................................................................ [23.60] Statute of Westminster (1931).................................................................................[1.10], [1.30] Stockholm Convention on Persistent Organic Pollutants (2001) (‘POPs Convention’)................................................................................................. [19.180] art 8.................................................................................................................................. [19.80] art 8(9).............................................................................................................................. [19.80] Timor Sea Treaty between the Government of East Timor and the Government of Australia (2002) (‘Timor Sea Treaty’)............................[23.20], [23.100] art 4.................................................................................................................................. [15.90] art 8.................................................................................................................................. [23.40] art 8(b)............................................................................................................................ [18.110] art 10.............................................................................................................................. [18.180] Trans-Pacific Partnership Agreement (2016) (‘TPP’)..................... [13.20], [13.100], [23.40] art 30.4............................................................................................................................. [13.90] art 30.5............................................................................................................................. [13.90] Treaty between Australia and the Democratic Republic of Timor-Leste on Certain Maritime Arrangements in the Timor Sea (2006) (‘CMATS’)....................................................................................................[15.90], [18.110] art 8................................................................................................................................ [18.170] Treaty between Australia and the Independent State of Papua New Guinea Concerning Sovereignty and Maritime Boundaries in the Area between the Two Countries, Including the Area Known as Torres Strait and Related Matters (1978) (‘Torres Strait Treaty’)............................. [7.90], [17.40], [17.50], [18.110], [22.110], [23.20] Pt 5................................................................................................................................... [15.80] art 4(3)–(4)..................................................................................................................... [18.170] art 10................................................................................................................................ [15.80] art 13.............................................................................................................................. [18.180] art 14.............................................................................................................................. [18.180] art 15................................................................................................................................ [15.90] Treaty between Australia and the People’s Republic of China on Mutual Legal Assistance in Criminal Matters (2006)..................................................................... [4.140] Treaty between Australia and the Republic of Indonesia on the Zone of Cooperation in an Area between the Indonesian Province of East Timor and Northern Australia (1989) (‘Timor Gap Treaty’)........[2.90], [18.110], [23.80] Treaty between the Government of Australia and the Government of New Zealand Establishing Certain Exclusive Economic Zone and Continental Shelf Boundaries (2004)..................................................................... [22.110] Treaty between the Government of Australia and the Government of New Zealand Establishing Certain Exclusive Economic Zone Boundaries and Continental Shelf Boundaries (2004).................................................[18.110], [23.20]

TABLE OF TREATIES    lxxxv

Treaty between the Government of Australia and the Government of the French Republic on Cooperation in the Maritime Areas Adjacent to the French Southern and Antarctic Territories (TAAF), Heard Island and the McDonald Islands (2003)............................................................................. [15.60] Treaty between the Government of Australia and the Government of the Republic of Indonesia Establishing an Exclusive Economic Zone Boundary and Certain Seabed Boundaries (1997) (‘1997 Australia–Indonesia Maritime Delimitation Treaty’)................................................... [18.80], [18.110], [23.20] art 7................................................................................................................................ [18.180] art 7(i)............................................................................................................................. [18.170] Treaty of Peace between the Allied and Associated Powers and Germany and the Treaty between France and Great Britain (1919) (‘Treaty of Versailles’)...........................................................................................................[1.30], [3.30] art 1.................................................................................................................................... [5.20] art 22(6).............................................................................................................................. [5.20] art 387................................................................................................................................ [5.20] Treaty on Certain Maritime Arrangements in the Timor Sea (2006) (‘CMATS Treaty’)....................................................................................................... [23.20] art 4.................................................................................................................................. [23.40] art 11................................................................................................................................ [23.40] Treaty on Extradition between Australia and the Republic of Hungary (1995)......... [9.60] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (1967) (‘Outer Space Treaty’)...........................................................[21.10], [21.70] art I................................................................................................................................... [21.20] art II....................................................................................................................[20.60], [21.20] art IV............................................................................................................................... [21.60] art VI..................................................................................................................[21.20], [21.50] art VII............................................................................................................................ [21.120] art VIII...........................................................................................................[21.110], [21.150] Treaty on the Non-Proliferation of Nuclear Weapons (1968) (‘NPT’).............................................................................................. [1.110], [5.50], [15.110] Treaty on the Prevention of the Placement of Weapons in Outer Space, the Threat or Use of Force against Outer Space Objects (‘PPWT’).................... [21.60] art I(a)............................................................................................................................ [21.100] Understanding on Rules and Procedures Governing the Settlement of Disputes (‘DSU’) art 3.8............................................................................................................................... [13.60] art 3.10............................................................................................................................. [13.60] art 11...................................................................................................................[13.50], [13.60] art 16.4............................................................................................................................. [13.40] art 17.14........................................................................................................................... [13.40] art 19................................................................................................................................ [13.60] art 19.1............................................................................................................................. [13.60] art 21.5............................................................................................................................. [13.40] UNIDROIT Principles of International Commercial Contracts 2010.........[14.30], [14.70] United Nations Convention against Corruption (2003) (‘UNCAC’)...........[10.20], [10.30], [10.60] art 42.................................................................................................................................. [4.50] United Nations Convention against Transnational Organized Crime (2000) (‘UNTOC’).................................. [10.10], [10.20], [10.40], [10.60], [10.110] art 1(1).............................................................................................................................. [10.30] art 2(a).............................................................................................................................. [10.30]

lxxxvi    INTERNATIONAL LAW IN AUSTRALIA

United Nations Convention against Transnational Organized Crime (2000) (‘UNTOC’) continued art 2(b).................................................................................................................[10.30], [10.70] art 2(1).............................................................................................................................. [10.50] art 3.................................................................................................................................. [10.30] art 3(1).............................................................................................................................. [10.30] art 3(2).............................................................................................................................. [10.30] art 5.................................................................................................................................. [10.30] art 6.................................................................................................................................. [10.30] art 8.................................................................................................................................. [10.30] art 10................................................................................................................................ [10.30] art 11................................................................................................................................ [10.30] art 11(1)............................................................................................................................ [10.90] art 12................................................................................................................................ [10.30] art 15.....................................................................................................................[4.50], [10.30] art 16.................................................................................................................[10.30], [10.110] art 18.................................................................................................................[10.30], [10.110] art 20................................................................................................................................ [10.30] art 24................................................................................................................................ [10.30] art 25................................................................................................................................ [10.30] art 32(4).......................................................................................................................... [10.130] art 34(3)............................................................................................................................ [10.90] art 37................................................................................................................................ [10.30] United Nations Convention on Contracts for the International Sale of Goods (1980) (‘CISG’)...............................................................................[14.30], [14.50] art 4.................................................................................................................................. [14.40] art 6.................................................................................................................................. [14.40] art 7.................................................................................................................................. [14.40] art 7 (2)............................................................................................................................. [14.40] United Nations Convention on the Law of the Sea (1982) (‘LOSC’)...............[4.10], [4.20], [12.10], [15.60], [17.10], [17.20], [17.120], [18.10], [18.20], [19.10], [19.30], [23.30]–[23.50], [23.170], [23.180] Pt II s C............................................................................................................................ [18.40] Pt III.............................................................................................................................. [18.150] Pt V.......................................................................................................................[4.40], [18.60] Pt VI................................................................................................................................ [18.70] Pt X................................................................................................................................ [18.130] Pt XI.................................................................................................................[15.20], [18.130] Pt XII............................................................................................................................. [18.180] Pt XIII............................................................................................................[18.160], [18.170] Pt XV............................................................................................................................. [23.120] art 1...................................................................................................................[18.70], [18.180] art 2.......................................................................................................................[4.40], [18.40] art 3.................................................................................................................................. [20.60] art 5.................................................................................................................................. [18.30] arts 6–10.......................................................................................................................... [18.30] art 7.................................................................................................................................. [17.40] art 8.................................................................................................................................. [18.40] art 10................................................................................................................................ [17.40] art 11................................................................................................................................ [17.40] art 12................................................................................................................................ [17.40] art 13................................................................................................................................ [17.40]

TABLE OF TREATIES    lxxxvii

art 15.............................................................................................................................. [18.100] art 18................................................................................................................................ [18.40] art 19(g)............................................................................................................................ [12.70] art 20.............................................................................................................................. [18.150] art 21................................................................................................................................ [18.40] art 21(1)(f)...................................................................................................................... [18.180] art 25................................................................................................................................ [12.70] art 27................................................................................................................................ [18.40] art 33....................................................................................................... [4.40], [12.70], [18.50] art 35(c).......................................................................................................................... [18.150] art 36.............................................................................................................................. [18.150] art 37.............................................................................................................................. [18.150] art 38.............................................................................................................................. [18.150] art 39.1........................................................................................................................... [18.150] art 39.3........................................................................................................................... [18.150] art 44.............................................................................................................................. [18.150] art 46................................................................................................................................ [18.80] art 47................................................................................................................................ [18.80] art 48................................................................................................................................ [18.80] art 51.................................................................................................................................. [7.60] art 52................................................................................................................................ [18.80] art 53................................................................................................................................ [18.80] art 56....................................................................................................... [7.90], [15.30], [18.60] art 56(1)............................................................................................................................ [15.30] art 56(1)(b)(iii)............................................................................................................... [18.180] art 58.............................................................................................................................. [18.120] art 58(2)............................................................................................................................ [18.60] art 61.............................................................................................................................. [18.180] art 61(1)............................................................................................................................ [15.30] art 61(2)............................................................................................................................ [15.30] art 63................................................................................................................................ [15.40] art 64.................................................................................................................[15.40], [23.130] art 74.............................................................................................................................. [18.100] art 74(3).......................................................................................................................... [18.100] art 76..................................................................................................... [15.90], [17.70], [18.70] art 76(6)............................................................................................................................ [18.70] art 76(8)............................................................................................................................ [18.70] art 77(1)............................................................................................................................ [18.70] art 77(2)............................................................................................................................ [18.70] art 77(3)............................................................................................................................ [18.70] art 77(4)...............................................................................................................[15.90], [18.70] art 83.............................................................................................................................. [18.100] art 83(3).......................................................................................................................... [18.100] art 87.............................................................................................................................. [18.120] art 87(1)(f)...................................................................................................................... [18.160] art 91...................................................................................................................[4.50], [18.140] art 92.................................................................................................................................. [4.50] art 99.............................................................................................................................. [18.140] arts 100–107.................................................................................................................. [18.140] art 109............................................................................................................................ [18.140] art 110............................................................................................................................ [18.140] art 111...............................................................................................................[12.60], [18.140] arts 116–19.................................................................................................................... [23.130]

lxxxviii    INTERNATIONAL LAW IN AUSTRALIA

United Nations Convention on the Law of the Sea (1982) (‘LOSC’) continued art 117............................................................................................................................ [18.180] art 118............................................................................................................................ [18.180] art 119............................................................................................................................ [18.180] art 121...............................................................................................................[18.30], [22.110] art 143............................................................................................................................ [18.160] art 145............................................................................................................................ [18.180] art 192............................................................................................................................ [18.180] art 237............................................................................................................................ [18.180] art 245............................................................................................................................ [18.160] art 246............................................................................................................................ [18.160] art 246(5)........................................................................................................................ [18.160] art 281(1)........................................................................................................................ [23.130] art 287.............................................................................................................[23.120], [23.130] art 287(3)........................................................................................................................ [23.130] art 290............................................................................................................................ [23.130] art 292............................................................................................................................ [23.140] art 298.............................................................................................................[23.120], [23.150] art 298(1)(a)(i)................................................................................................................ [18.110] art 311(3)........................................................................................................................ [18.110] arts 312–16.................................................................................................................... [18.200] annex I...................................................................................[15.40], [15.50], [23.20], [23.130] annex II........................................................................................................................... [18.70] annex V......................................................................................................................... [23.150] annex VII...........................................................................................................[18.30], [23.20] United Nations Convention on the Use of Electronic Communications in International Contracts (2005).............................................................................. [14.60] United Nations Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa (1994)...............................................................................................[15.100], [19.110] United Nations Declaration on the Rights of Indigenous Peoples (1994) (‘DRIP’)...........................................................................................................[2.150], [7.130] art 1.................................................................................................................................. [7.150] art 2.................................................................................................................................. [7.150] arts 3–5............................................................................................................................ [7.150] art 8(2)................................................................................................................................ [7.60] art 10................................................................................................................................ [7.150] art 13................................................................................................................................ [7.150] art 14................................................................................................................................ [7.150] art 21................................................................................................................................ [7.150] art 25.....................................................................................................................[7.60], [7.150] art 26................................................................................................................................ [7.150] art 32(2).............................................................................................................................. [7.60] art 38................................................................................................................................ [7.150] United Nations Framework Convention on Climate Change (1992) (‘Climate Change Convention’) (‘UNFCCC’)......................... [15.100], [19.30], [19.180] art 2................................................................................................................................ [19.140] art 3(1)............................................................................................................................ [19.140] art 4(2)(a)–(b)................................................................................................................ [19.140] annex I........................................................................................................................... [19.140] Universal Declaration of Human Rights (1948) (‘UDHR’)................ [1.110], [6.30], [7.130] art 14.................................................................................................................................. [8.60] art 15.................................................................................................................................. [8.20] art 17.................................................................................................................................. [7.40]

TABLE OF TREATIES    lxxxix

Vienna Convention for the Protection of the Ozone Layer (1985).............[19.30], [19.130], [23.30] Vienna Convention on Consular Relations (1963) (‘VCCR’)..........................[8.40], [16.10], [16.20], [16.100] Ch III............................................................................................................................. [16.170] art 1................................................................................................................................ [16.140] art 5.................................................................................................................[16.140], [16.160] art 15.............................................................................................................................. [16.140] art 17.............................................................................................................................. [16.140] art 31.............................................................................................................................. [16.150] art 31(1).......................................................................................................................... [16.140] art 31(2).......................................................................................................................... [16.140] art 31(3).......................................................................................................................... [16.150] art 31(4).......................................................................................................................... [16.140] art 32.............................................................................................................................. [16.140] art 33...............................................................................................................[16.140], [16.150] art 35.............................................................................................................................. [16.140] art 39.............................................................................................................................. [16.140] art 40.............................................................................................................................. [16.150] art 41(1).......................................................................................................................... [16.140] art 41(2).......................................................................................................................... [16.140] art 43.............................................................................................................................. [16.160] arts 43–45...................................................................................................................... [16.140] art 44.............................................................................................................................. [16.160] arts 48–54...................................................................................................................... [16.140] art 55.............................................................................................................................. [16.140] art 55(2).......................................................................................................................... [16.140] art 55(3).......................................................................................................................... [16.140] art 57(2).......................................................................................................................... [16.140] art 58(1).......................................................................................................................... [16.140] art 58(2)...........................................................................................................[16.140], [16.170] art 58(3).......................................................................................................................... [16.140] art 59.............................................................................................................................. [16.170] arts 60–62...................................................................................................................... [16.140] art 61.............................................................................................................................. [16.170] art 63.............................................................................................................................. [16.170] art 66.............................................................................................................................. [16.140] art 67.............................................................................................................................. [16.140] art 70(1).......................................................................................................................... [16.140] art 70(2).......................................................................................................................... [16.140] art 70(4).......................................................................................................................... [16.140] art 71.............................................................................................................................. [16.140] Vienna Convention on Diplomatic Relations (1961) (‘VCDR’)......................[3.60], [16.10], [16.140]–[16.160] Preamble, para 4............................................................................................................. [16.20] art 1.....................................................................................................................[16.60], [16.70] art 4.................................................................................................................................. [16.40] art 7.................................................................................................................................. [16.40] art 8................................................................................................................................ [16.200] art 9................................................................................................................................ [16.100] art 22.................................................................................................................[16.70], [16.200] arts 22–24........................................................................................................................ [16.60] art 22(2)............................................................................................................................ [16.70]

xc    INTERNATIONAL LAW IN AUSTRALIA

Vienna Convention on Diplomatic Relations (1961) (‘VCDR’) continued art 23(1).......................................................................................................................... [16.120] art 23(2).......................................................................................................................... [16.120] art 24................................................................................................................................ [16.80] art 27................................................................................................................................ [16.80] arts 27–40........................................................................................................................ [16.60] art 27(3)............................................................................................................................ [16.80] art 29...................................................................................................................[16.70], [16.90] art 30................................................................................................................................ [16.70] art 31................................................................................................................................ [16.90] art 31(1)(c)....................................................................................................................... [16.90] art 31(2)............................................................................................................................ [16.90] art 31(4).......................................................................................................................... [16.100] art 32.............................................................................................................................. [16.100] art 32(3).......................................................................................................................... [16.100] art 32(4).......................................................................................................................... [16.100] art 33................................................................................................................................ [16.40] art 34.............................................................................................................................. [16.120] art 34(d)......................................................................................................................... [16.120] art 37(1).......................................................................................................................... [16.130] art 38.............................................................................................................................. [16.200] art 39(1).......................................................................................................................... [16.110] art 39(2).......................................................................................................................... [16.110] art 41(1)............................................................................................................................ [16.50] Vienna Convention on the Law of Treaties (1969) (‘VCLT’).......................[20.140], [23.30] Pt II.................................................................................................................................... [3.50] art 1.................................................................................................................................... [3.50] art 2.................................................................................................................................... [3.80] art 2(d)............................................................................................................................... [3.60] art 11.................................................................................................................................. [3.50] art 18.................................................................................................................................. [3.50] art 19.................................................................................................................................. [3.60] art 20.................................................................................................................................. [3.60] art 21.................................................................................................................................. [3.60] art 22.................................................................................................................................. [3.60] art 23.................................................................................................................................. [3.60] art 31......................................................................................................... [2.120], [3.50], [3.70] arts 31–33........................................................................................................................ [2.150] art 31(2).............................................................................................................................. [3.70] art 32.....................................................................................................................[2.120], [3.70] art 60-2............................................................................................................................... [3.50] Vienna Convention on the Law of Treaties between States and International Organisations or between International Organisations (1986)............................... [3.50]

Abbreviations

AAD AAPTIP AASB AAT ACCC ADF AFMA AFP AFZ AHRC ALR Act AMSA APEC API APII APLM ASEAN ASO ATSIC Act AUSTRAC AWB CAMBA

CAT CBD CCAMLR CCSBT CDPP CEDAW

Australian Antarctic Division Australia-Asia Program to Combat Trafficking in Persons Australian Accounting Standards Board Australian Antarctic Territory Australian Competition and Consumer Commission Australian Defence Force Australian Fisheries Management Authority Australian Federal Police Australian Fishing Zone Australian Human Rights Commission Aboriginal Land Rights (Northern Territory) Act Australian Maritime Safety Authority Asia-Pacific Economic Cooperation Additional Protocol I Additional Protocol II Anti-Personnel Land Mines Association of Southeast Asian Nations Australian Space Office Aboriginal and Torres Strait Islander Commission Act Australian Transaction Reports and Analysis Centre Australian Wheat Board Agreement between the Government of Australia and the Government of the People’s Republic of China for the Protection of Migratory Birds and Their Environment Convention against Torture Convention on Biological Diversity Convention on the Conservation of Antarctic Marine Living Resources Convention for the Conservation of Southern Bluefin Tuna Commonwealth Director of Public Prosecutions Convention on the Elimination of all Forms of Discrimination Against Women xci

xcii    INTERNATIONAL LAW IN AUSTRALIA

CERD Committee on the Elimination of Racial Discrimination CFC Chlorofluorocarbons CHR Commission on Human Rights CIL Customary International Law CISG United Nations Convention on Contracts for the International Sale of Goods CITES Convention on International Trade in Endangered Species CLC International Convention on Civil Liability for Oil Pollution Damage CMATS Treaty on Certain Maritime Arrangements in the Timor Sea COAG Council of Australian Governments COGSA Carriage of Goods by Sea Act COLREGS Convention on the International Regulations for Preventing Collisions at Sea COPUOS United Nations Committee on the Peaceful Uses of Outer Space CPI Act Consular Privileges and Immunities Act CRC Convention on the Rights of the Child CRPD Convention on the Rights of People with Disabilities CTC United Nations Counter-Terrorism Committee CTED Counter-Terrorism Executive Directorate DFAT Department of Foreign Affairs and Trade DPI Act Diplomatic Privileges and Immunities Act DRIP United Nations Declaration on the Rights of Indigenous Peoples DSB Dispute Settlement Body DSU Understanding on Rules and Procedures Governing the Settlement of Disputes DVT Deep Vein Thrombosis EC European Community ECCC Extraordinary Chambers in the Courts of Cambodia ECS Extended Continental Shelf ECtHR European Court of Human Rights EEZ Exclusive Economic Zone EFP Experimental Fishing Program ELDO European Launcher Development Organisation EPBC Act Environment Protection and Biodiversity Conservation Act ERF Emissions Reduction Fund ESA European Space Agency EU European Union FAO United Nations Food and Agriculture Association FATF Financial Action Task Force FSA Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks FSB Financial Stability Board G20 Group of Twenty

ABBREVIATIONS    xciii

GATT General Agreement on Tariffs and Trade GMO Genetically Modified Organism GST Goods and Services Tax HCFC Hydrochlorofluorocarbons HIMI Heard Island and McDonald Islands HMAS Her Majesty’s Australian Ship HREOC Human Rights and Equal Opportunity Commission HSI Humane Society International IAC International Armed Conflict IAEA International Atomic Energy Agency IATA International Air Transport Association ICAN International Commission for Air Navigation ICAO International Civil Aviation Organization ICC International Criminal Court ICC(CA) Act International Criminal Court (Consequential Amendments) Act ICCPR International Covenant on Civil and Political Rights ICERD International Convention on the Elimination of All Forms of Racial Discrimination ICESCR International Covenant on Economic, Social, and Cultural Rights ICJ International Court of Justice ICL International Criminal Law ICRC International Committee of the Red Cross ICRW International Convention for the Regulation of Whaling ICSID International Centre for Settlement of Investment Disputes ICTR International Criminal Tribunal for Rwanda ICTY International Criminal Tribunal for the Former Yugoslavia ICUN International Union for the Conservation of Nature IGAE Inter-Governmental Agreement on the Environment IHL International Humanitarian Law IHRL International Human Rights Law ILC International Law Commission ILO International Labor Organisation IMF International Monetary Fund IMO International Maritime Organisation IMT International Military Tribunal IMTFE International Military Tribunal for the Far East IntCC International Chamber of Commerce INTERFET International Force for East Timor IOM International Organisation for Migration IOPI Act International Organisations (Privileges and Immunities) Act IOT Indian Ocean Territories ISA International Seabed Authority ISDS Investor-State Dispute Settlement ISR Intelligence, Surveillance and Reconnaissance ITLOS International Tribunal for the Law of the Sea IUU Illegal, unregulated and unreported IWC International Whaling Commission

xciv    INTERNATIONAL LAW IN AUSTRALIA

JAMBA JARPA JPDA JSCNCET JSCOT LOAC LOSC MANPADS MARPOL MFN MICT MLA MOU MSR NAP NBN NDC NGO NIA NIAC NPT NTA OCS OECD OMPI Act OPCAT OTP PACER PCA PCIJ PIC Convention PICAO PJCHR PKF PNG PO Act POPs POW PPWT

Agreement between the Government of Australia and the Government of Japan for the Protection of Migratory Birds in Danger of Extinction and Their Environment Japanese Whale Research Program under Special Permit in the Antarctic Joint Petroleum Development Area Joint Standing Committee on the National Capital and External Territories Joint Standing Committee on Treaties Law of Armed Conflict United Nations Law of the Sea Convention (1982) Man-Portable Air Defence Systems International Convention for the Prevention of Pollution from Ships Most Favoured Nation Mechanism for International Criminal Tribunals Mutual Legal Assistance Memorandum of Understanding Marine Scientific Research National Human Rights Action Plan National Broadband Network Nationally Determined Contributions Non-Governmental Organisation National Interest Analysis Non-international Armed Conflict Treaty on the Non-Proliferation of Nuclear Weapons Native Title Act Offshore Constitutional Settlement Organisation for Economic Co-operation and Development Overseas Missions (Privileges and Immunities) Act Optional Protocol to the Convention against Torture Office of the Prosecutor Pacific Agreement on Closer Economic Relations Permanent Court of Arbitration Permanent Court of International Justice Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade Provision International Civil Aviation Organisation Parliamentary Joint Committee on Human Rights Peacekeeping Force Papua New Guinea Public Order (Protection of Persons and Property) Act Persistent Organic Pollutants Prisoner of War Draft Treaty on the Prevention of the Placement of Weapons in Outer Space, the Threat or Use of Force against Outer Space Objects

ABBREVIATIONS    xcv

PSI PTA RAMSAR    Convention RAMSI RDA RET RFMO RIA ROE ROKAMBA SARPS SAS SCM Agreement SCOT SDR SEATO SHERLOC SLASO SOFA SOLAS SPS SPU TBT TPRB TPVs TRIPS TTP UCP UDHR UK UN UNAMET UNCAC UNCITRAL UNCTAD UNEP UNESCO UNFCCC UNGA UNHCR UNICEF UNIDROIT

Proliferation Security Initiative Preferential Trade Agreement Convention on Wetlands of International Importance Especially as Waterfowl Habitat Regional Assistance Mission to the Solomon Islands Racial Discrimination Act Renewable Energy Target Regional Fisheries Management Organizations Relevant International Agreements Rules of Engagement Agreement between the Government of Australia and the Government of the Republic of Korea on the Protection of Migratory Birds Standards and Recommended Practices Special Air Service Agreement on Subsidies and Countervailing Measures Standing Committee on Treaties Special Drawing Rights Southeast Asia Treaty Organisation Sharing Electronic Resources and Laws on Crime Space Licensing and Safety Office Status of Forces Agreement International Convention for the Safety of Life at Sea Sanitary and Phytosanitary Space Policy Unit Committee on Technical Barriers to Trade Trade Policy Review Body Temporary Protection Visas Agreement on Trade-Related Aspects of Intellectual Property Rights Trans-Pacific Partnership Uniform Customs and Practices for Documentary Credits Universal Declaration of Human Rights United Kingdom United Nations United Nations Mission in East Timor United Nations Convention against Corruption United Nations Commission on International Trade Law United Nations Conference on Trade and Development United Nations Environment Program United Nations’ Educational, Scientific and Cultural Organization United Nations Framework Convention on Climate Change United Nations General Assembly United Nations High Commissioner for Refugees United Nations International Children’s Emergency Fund International Institute for the Unification of Private Law

xcvi    INTERNATIONAL LAW IN AUSTRALIA

UNODC UNTAET UNTOC UNTS UPR US VCCR VCDR VCLT WMD WTO

United Nations Office on Drugs and Crime United Nations Transitional Authority in East Timor United Nations Convention against Transnational Organised Crime United Nations Treaty Series Universal Periodic Review United States Vienna Convention on Consular Relations Vienna Convention on Diplomatic Relations Vienna Convention on the Law of Treaties Weapons of Mass Destruction World Trade Organisation

1 Australia’s International Personality: Historical, Legal and Policy Perspectives Melissa Conley Tyler, Emily Crawford and Shirley V Scott*

I INTRODUCTION [1.10]  Australia in the 21st century is an active and important figure on the international stage. Australia has recently served on the United Nations Security Council1 and has had nationals sit on the International Court of Justice.2 As noted by D P O’Connell in the 1966 first edition of International Law in Australia, Australia’s international personality, once acquired, brought Australia to ‘prominence in international affairs’,3 as well as leading to a ‘rapid accumulation of local experience in some of the major and most *

1

2

3

Melissa Conley Tyler would like to acknowledge the assistance of Elizabeth Abbott, Christian Dietrich, Victor Ferguson, Nina Gibson, Caitlin Longden and Michelle Parker; Shirley Scott would like to acknowledge the valuable research assistance of Orli Zahava. See United Nations Association of Australia, Australia’s 2013–2015 Seat on the UN Security Council (2015) . See James Crawford, ‘“Dreamers of the Day”: Australia and the International Court of Justice’ (2013) 14 Melbourne Journal of International Law 520. Australian judges on the International Court of Justice have included Sir Percy Spender and James Crawford (elected in 1958 and 2015 respectively) and Sir Garfield Barwick (elected ad hoc on Nuclear Tests (Australia v France) and Nuclear Tests (New Zealand v France)), Ninian Stephen (elected ad hoc on East Timor (Portugal v Australia)), Ian Callinan (elected ad hoc on Questions Relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v Australia)) and Hilary Charlesworth (elected ad hoc on Whaling in the Antarctic (Australia v Japan: New Zealand intervening)). D P O’Connell, ‘The Evolution of Australia’s International Personality’ in D P O’Connell (ed), International Law in Australia (Law Book Co, 1st ed, 1966) 1. 1

2    INTERNATIONAL LAW IN AUSTRALIA

controversial aspects of international law’.4 Notwithstanding how rapid Australia’s ascension to international legal prominence and expertise may have been, acquiring its international legal personality was a much slower process. Due to Australia’s status as a colony and then a dominion of the United Kingdom, its international personality emerged gradually, with historical events such as Federation and Australian involvement in the First and Second World Wars spurring the move to Australian independence in foreign relations matters. Legal turning points such as the Balfour Declaration of 1926 and the passing of the Statute of Westminster in 1931 also did much to further the emergence and development of Australia as a ‘subject of international law … capable of possessing international rights and duties’.5 This chapter examines the evolution and development of Australia’s international personality from a number of different perspectives — historical, legal and policy — and charts the manifold forces that have helped shape Australia into the fully fledged member of the international community that it is today. The past century has seen Australia advance from a non-independent entity to a top 20 nation on the world stage. The question of whether Australia engages in international law for its own national interests or as part of contributing to international order will be assessed. Australia may have grown up in its legal personality, but it still relies on a functioning system of international law to meet its national interests.

II  THE EMERGENCE OF AUSTRALIA’S INTERNATIONAL PERSONALITY: THE LEGAL JOURNEY TO FULL POWERS A  From Settlement to the First World War [1.20]  The emergence and development of Australia’s international legal personality is, in many ways, inextricably tied up with certain historical events — Australia’s emergence as a Federation in 1901 and its involvement in the World Wars of the 20th century being the most obvious examples.6 However, the legal groundwork for Australia’s international personality was being laid in the decades before Federation. From 1874, the Australian colonies began exercising essentially unfettered competence in one, albeit 4

5

6

D P O’Connell, ‘The Evolution of Australia’s International Personality’ in D P O’Connell (ed), International Law in Australia (Law Book Co, 1st ed, 1966) 1. This phrase, defining international personality as a concept under international law, is taken from Reparations for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Rep 174, 179. See further Brian Opeskin, ‘International Law and Federal States’ in Brian R Opeskin and Donald R Rothwell (eds), International Law and Australian Federalism (Melbourne University Press, 1997) 9. Donald R Rothwell, ‘Australia’ in David Sloss (ed), The Role of Domestic Courts in Treaty Enforcement: A Comparative Study (Cambridge University Press, 2009) 120.

Ch 1: AUSTRALIA’S INTERNATIONAL PERSONALITY   3

minor, area of international relations — specifically, in the conclusion of postal agreements with foreign states. In 1874, New South Wales negotiated a postal convention with the United States,7 with Queensland following suit in 1876,8 and Victoria and Tasmania concluding their own arrangements in 18789 and 188610 respectively. This move by the Australian colonies and the Imperial government mirrored similar steps being taken in other British colonies, such as Canada, which had themselves negotiated differential tariff agreements with the United States and France.11 Indeed, at the 1887 Colonial Conference, the general consensus was that such freedom of commercial negotiation should be encouraged, as it would ‘strengthen Imperial ties by eliminating a ground of disaffection’.12 This was particularly apposite for the Imperial government during the Colonial Conference, as such disaffection was at the time manifest, a result of a dispute between the Imperial government and the West Indies over sugar exports. The Imperial government had refused to assent to a tariff agreement negotiated between the West Indies and the United States that would have been beneficial to the West Indies, an economy heavily dependent on its sugar industry;13 Imperial refusal to agree to the arrangement had reportedly prompted some sugar planters to seek annexation by the United States.14 Despite the increased freedom of the colonies to negotiate trade agreements, the negotiation of political — that is, non-commercial — treaties remained solely the province of the Imperial government. It had been ‘generally agreed at the Colonial and Imperial Conferences … that colonial freedom in respect of “political” matters would strike at the roots of Imperial unity’.15 However, not all Australian colonial politicians were in agreement: Alfred Deakin, 7

8 9 10 11

12

13

14 15

14 Hertslet’s Commercial Treaties: A Complete Collection of the Treaties and Conventions, and Reciprocal Regulations, at Present Subsisting between Great Britain and Powers 1 (1880) 1234–8 (‘Hertslet’). 15 Hertslet 1 (1885) 460–3. 15 Hertslet 1 (1885) 471–4. 18 Hertslet 1 (1893) 1167–70. D P O’Connell and James Crawford, ‘The Evolution of Australia’s International Personality’ in K W Ryan, International Law in Australia (Law Book Co, 2nd ed, 1984) 4. D P O’Connell and James Crawford, ‘The Evolution of Australia’s International Personality’ in K W Ryan, International Law in Australia (Law Book Co, 2nd ed, 1984) 4; see further the report on the Colonial Conference of 1887: Great Britain, Proceedings of the Colonial Conference, Parl Papers, 56, C 5091-I (1887) 461ff. Indeed, the consensus was generally reflected in one practice of the Imperial government at the time of the Conference — that of ceasing to make commercial treaties negotiated by the Imperial government automatically applicable to the colonies; instead, colonies were given the opportunity to ‘opt-in’ to the treaty regime. See further O’Connell and Crawford, 5–7. See R W Beachey, The British West Indies Sugar Industry in the Late 19th Century (Basil Blackwell, 1957) 138–41. Great Britain, Proceedings of the Colonial Conference, Parl Papers, 56, C 5091-I (1887) 464. D P O’Connell and James Crawford, ‘The Evolution of Australia’s International Personality’ in K W Ryan, International Law in Australia (Law Book Co, 2nd ed, 1984) 4.

4    INTERNATIONAL LAW IN AUSTRALIA

head of the Victorian delegation to the Colonial Conference, was particularly dismayed that the Imperial government did not seem to take colonial foreign policy interests seriously. At the Conference, Deakin was highly critical of the Imperial government’s ‘natural vis inertia’16 regarding colonial interests, specifically Australian interests in New Guinea and the New Hebrides. He called for colonial interests to ‘be considered and felt to be Imperial interests’.17 While publicly cordial to the Australians, the Imperial government was disinclined to acquiesce to colonial demands — indeed, the Prime Minister, Lord Salisbury, considered the Australians: the most unreasonable people I have ever heard or dreamt of. They want us to incur all the bloodshed and the danger, and the stupendous cost of a war with France, of which almost the exclusive burden will fall on us, for a group of islands which to us are as valueless as the South Pole — and to which they are only attached by a debating-club sentiment.18 The colonies federated in January 1901, and the newly adopted Australian Constitution acknowledged the growing place of international law in domestic affairs. The Constitution gave power to the Australian federal legislature to ‘make laws for the peace, order, and good government of the Commonwealth with respect to … external affairs’.19 Furthermore, the High Court was given original jurisdiction to hear all matters ‘arising under any treaty’.20 However, this legislative power was limited, as was the original jurisdiction of the High Court. That is to say, the legislature of the new Commonwealth of Australia had the power to give domestic effect to its treaty obligations, and the High Court had the power to hear cases related to such treaty obligations, but the Commonwealth of Australia could not unilaterally enter into treaty obligations of its accord; only the Imperial government had the exclusive power to enter into treaties.21

16

17 18

19 20 21

John Edward Kendle, The Colonial and Imperial Conferences 1887–1911: A Study in Imperial Organisation (Longmans, 1967) 10. Great Britain, Proceedings of the Colonial Conference, Parl Papers, 56, C 5091-I (1887) 25. Letter from Lord Salisbury to Colonial Secretary Sir Henry Holland, 27 April 1887, quoted in John Edward Kendle, The Colonial and Imperial Conferences 1887–1911: A Study in Imperial Organisation (Longmans, 1967) 10–11. Australian Constitution s 51(xxix). Australian Constitution s 75(i). See further D P O’Connell and James Crawford, ‘The Evolution of Australia’s International Personality’ in K W Ryan, International Law in Australia (Law Book Co, 2nd ed, 1984) 9–17 for a more detailed discussion of whether pre-Federation colonial treaties continued to have force following Federation, and whether the obligations contained within those treaties signed by the colonies remained state obligations, or whether performance of the obligations became a Commonwealth responsibility.

Ch 1: AUSTRALIA’S INTERNATIONAL PERSONALITY   5

B Towards the Second World War and Full International Personality [1.30]  It was not until after the First World War that British dominions began to exercise independence in their foreign relations. Australia was a signatory in its own right to the Treaty of Versailles,22 and had its own delegation to the League of Nations.23 While this was a significant step towards international legal personality, it was still a particularly limited personality. As Crawford notes, while: the international status acquired by the Dominions in 1919 was considerable … neither separate Dominion signature of the Treaty of Versailles nor separate membership of the League of Nations was in itself quite unequivocal. The League Covenant allowed the admission of membership of any ‘fully self-Governing State, Dominion, or Colony’ … with the inference that Dominion status was something between that of ‘Colony’ and ‘State’.24 As such, it wasn’t until the next decade — the 1920s — that greater autonomy for Australia on the international plane truly emerged. Following Imperial Conferences in 1923 and 1926,25 Australia attained independent plenary treaty-making power26 and the right of legation.27 In the report on the 1923 Imperial Conference, it was noted that the ‘Conference is a conference of representatives of the several Governments of the Empire; its views and conclusions on foreign policy … are necessarily subject to the action of the Governments and Parliaments of the various portions of the Empire’.28 22

23

24

25

26

27

28

Treaty of Peace between the Allied and Associated Powers and Germany, opened for signature 28 June 1919, [1920] ATS 1 (entered into force 10 January 1920) (‘Treaty of Versailles’); protocol signed 10 January 1920; the Australian signatories were Prime Minister and Attorney-General William Hughes and Sir Joseph Cook, Minister for the Navy (reprinted in 1919 For Rel (Paris Peace Conference XIII) 55, 740, 743; Senate document 51, 66th Congress, 1st session). Anne Twomey, ‘Federal Parliament’s Changing Role in Treaty Making and External Affairs’ (Research Paper No 15, Parliamentary Library, Parliament of Australia, 2000) [97]. James Crawford, The Creation of States in International Law (Cambridge University Press, 2nd ed, 2006) 364. Furthermore, as Crawford notes, even the signatures to the Treaty of Versailles were ‘equivocal’ in that the dominion signatures were listed after those of the British delegation and under the heading ‘British Empire’. McNair discusses the relevant resolutions from the 1923 and 1926 Conferences in Lord McNair, The Law of Treaties (Oxford University Press, 1st ed, 1938) 67–75. See also James Crawford, The Creation of States in International Law (Cambridge University Press, 2nd ed, 2006) 238–46 on the devolution of states within the British Commonwealth. At the 1923 Conference: see further Robert McGregor Dawson, The Development of Dominion Status: 1900–1936 (Frank Cass, 1937) 84–5. At the 1926 Conference: see further Robert McGregor Dawson, The Development of Dominion Status: 1900–1936 (Frank Cass, 1937) 107. ‘Report of the Imperial Conference 1923’, Parliamentary Papers, 1923 Session, Cmd 1987, 13.

6    INTERNATIONAL LAW IN AUSTRALIA

The 1923 Conference then went on to recommend that the ‘Governments of the Empire’29 adopt established Imperial procedure in the ‘negotiation, signature, and ratification of international agreements’.30 However, it was the 1926 Imperial Conference that more comprehensively solidified this new autonomy of action — an autonomy that was encapsulated in the Balfour Declaration, which stated that the ‘group of self-governing communities’31 that is Great Britain and the dominions ‘are autonomous Communities within the British Empire, equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, though united by a common allegiance to the Crown, and freely associated as members of the British Commonwealth of Nations … every self-governing member of the Empire is now the master of its destiny’.32 What the 1926 Imperial Conference did was to confirm ‘previously evolving practice of the Commonwealth as to establish a firm constitutional basis for an important body of Dominion rights in international affairs’,33 rights which were now accepted as including: the right of a Dominion to open negotiations on any subject, technical or political, with any foreign Power; the right to establish direct diplomatic relations with foreign Powers, by setting up its own diplomatic missions in their capitals, and conversely by receiving diplomatic missions from them; the right to create its own consular services abroad, and to decide whether it will receive foreign consuls on its own territory; the right to be represented in international conferences of every kind by its own separate delegations; the right to be bound by no international obligation, active or passive, to which it has not itself specifically agreed; the right to appoint its own plenipotentiaries to negotiate international treaties on its behalf; the right to sign such treaties through its own plenipotentiaries, and to secure their ratification when it so desires.34 Thus, it can be said that following the Imperial Conference of 1926, Australia gained an almost unfettered ability to act on the international plane. 29

30

31 32

33

34

‘Report of the Imperial Conference 1923’, Parliamentary Papers, 1923 Session, Cmd 1987, 13. ‘Report of the Imperial Conference 1923’, Parliamentary Papers, 1923 Session, Cmd 1987, 13. See also Robert McGregor Dawson, The Development of Dominion Status: 1900–1936 (Frank Cass, 1937) 85. ‘Report of the Imperial Conference 1926’, Parliamentary Papers, 1926 Session, Cmd 2768, 14. ‘Report of the Imperial Conference 1926’, Parliamentary Papers, 1926 Session, Cmd 2768, 14. Indeed, Crawford considers the Balfour Declaration to be the ‘critical date of the independence of the Dominions’: James Crawford, The Creation of States in International Law (Cambridge University Press, 2nd ed, 2006) 245. Philip Noel-Baker, The Present Juridical Status of the British Dominions in International Law (Longmans, 1929) 204–5. Philip Noel-Baker, The Present Juridical Status of the British Dominions in International Law (Longmans, 1929) 204–5.

Ch 1: AUSTRALIA’S INTERNATIONAL PERSONALITY   7

The proviso ‘almost’ is significant, for two reasons. First, as a practical matter, Australia was notably slow to take advantage of this new capacity. While a Minister for External Affairs was appointed in 1932,35 and Australian diplomatic posts were established in Washington, Tokyo and Ottawa during the 1930s,36 Australia delayed adopting the 1931 Statute of Westminster, the UK act that finally ‘removed … the constitutional inhibitions on legislation that had derived from colonial days, and declared that no Act of the Imperial Parliament would henceforth extend to a Dominion without its legislative consent’.37 It was only during the Second World War that Australia finally adopted the Statute of Westminster, with retrospective application to 1939.38 Second, it was, for a time, accepted that within the Commonwealth, relations between the Commonwealth nations would not, generally speaking, be considered international — rather, according to the inter se doctrine:39 relations between the countries of the Commonwealth [are] … sui generis, being founded upon a common allegiance to the Crown; that in so far as these relations are governed by law it is Commonwealth constitutional law, and that international law is to a more or less extent inappropriate and perhaps even inapplicable.40 Whether this doctrine truly did exist in practice,41 by the outbreak of the Second World War, Australia was nonetheless acting with full, or near full, capacity at international law.42 Upon the declaration of war by Britain, the 35

36

37

38

39

40

41

42

Following the abolition of the Department for External Affairs by Prime Minister Hughes in 1916: see Gareth Evans and Bruce Grant, Australia’s Foreign Relations: In the World of the 1990s (Melbourne University Press, 2nd ed, 1991) 19. Richard Devetak, ‘An Australian Outlook on International Affairs? The Evolution of International Relations Theory in Australia’ (2009) 55(3) Australian Journal of Politics and History 335, 340. D P O’Connell and James Crawford, ‘The Evolution of Australia’s International Personality’ in K W Ryan, International Law in Australia (Law Book Co, 2nd ed, 1984) 17. Statute of Westminster 1931 (Imp) 22 & 23 Geo 5, c 4; Statute of Westminster Adoption Act 1942 (Cth). R Y Jennings, ‘The Commonwealth and International Law’ (1953) 30 British Yearbook of International Law 320, 320. See also Robert Wilson, ‘Some Questions of Legal Relations between Commonwealth Members’ (1957) 51 American Journal of International Law 611. R Y Jennings, ‘The Commonwealth and International Law’ (1953) 30 British Yearbook of International Law 320. Which Jennings seems to question: ‘Whatever may have been the doctrinal position, there has been no period when the inter se formula has been applied consistently in practice; its incidence has always varied very much from one subject-matter to another’: R Y Jennings, ‘The Commonwealth and International Law’ (1953) 30 British Yearbook of International Law 320. Jennings and Wilson both examine in more detail the areas of Commonwealth interrelations that remained cogent for the inter se doctrine during the post-war period: see further R Y Jennings, ‘The Commonwealth and International Law’ (1953) 30 British Yearbook of International Law 320; Robert Wilson, ‘Some Questions of Legal Relations between Commonwealth Members’ (1957) 51 American Journal of International Law 611, 611.

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Australian government declared itself at war also,43 and was particularly careful in its further declarations of war against Finland, Hungary, Romania and Japan. The Minister for External Affairs, Dr H V Evatt, made it known to the House of Representatives that the Australian government had ensured that the declarations of war were compatible with Australia’s: full status in every aspect of its external relationships, as well as in its internal affairs. It is a necessary consequence of that status that, in relation to Australia, the vital decision as to peace or war with any country should be determined exclusively by Commonwealth Ministers.44 Australia’s full international personality was thus on display when participating in the San Francisco Conference in 1945, and Australia further ‘demonstrated its commitment to the new international system by fully engaging with the developing United Nations and its institutions’.45 It is indisputable that, by the end of the Second World War, Australia had ‘arrived’ as a fully fledged and independent member of the international community. Australia’s position in the international community today — over 70 years since San Francisco — is examined in the next portion of this chapter.

III  AUSTRALIA’S PLACE IN CONTEMPORARY INTERNATIONAL AFFAIRS A  Australia as a Top 20 Nation [1.40] Given Australia’s long journey to international personhood, early politicians would be astounded by its footprint in international affairs today. In 2014, Australia served as an elected member of the United Nations Security Council, dealing with key security issues of the time, and held the presidency of the Group of Twenty (‘G20’), the premier body for managing the global economy. 43

44

45

Commonwealth, Parliamentary Debates, House of Representatives, 6 September 1939, 28–9 (Robert Menzies). Herbert Vere Evatt, Foreign Policy of Australia: Speeches (Angus and Robertson, 1945) 19. Indeed, even Robert Menzies, the staunchly British loyalist Prime Minister at the time of the Second World War, recognised Australia’s capacity to act as an independent nation (and the necessity thereof) at international law, stating that ‘[l]ittle given as I am to encouraging the exaggerated ideas of Dominion independence and separatism which exist in some minds, I have become convinced that, in the Pacific, Australia must regard herself as a principal providing herself with her own information and maintaining her own diplomatic contacts with foreign powers’: speech given on 26 April 1939, shortly after his election, reprinted in Neville Meaney (ed), Australia and the World: A Documentary History from the 1870s to the 1970s (Longman Cheshire, 1985) doc 233, 450. Donald R Rothwell, ‘Australia’ in David Sloss (ed), The Role of Domestic Courts in Treaty Enforcement: A Comparative Study (Cambridge University Press, 2009) 121.

Ch 1: AUSTRALIA’S INTERNATIONAL PERSONALITY   9

Minister for Foreign Affairs Julie Bishop has spoken of Australia as a ‘top 20 nation’,46 breaking with the tradition of seeing Australia as a middle power. There is evidence to back up Australia’s claim. Australia is not a small or inconsequential state in terms of geography or material attributes:47 its economy is the 12th largest in the world,48 its military spending is the 13th largest in the world49 and its aid budget was, until recently, the 15th largest among developed countries50 — all of which give it significance. There are also some negatives: Australia is a top 20 emitter.51 Australia is clearly a country of real significance. This is somewhat uncomfortable for a country that has always seen itself as ‘punching above its weight’. The long economic boom has had an impact on Australia’s weight and standing, and in recent years Australia’s economic performance gave it greater prominence after it sailed through the global financial crisis unscathed.52 In 1980, Australia was told that it was in danger of becoming the ‘poor white trash’ of Asia.53 But more than 20 years of growth has made Australia one of the richest countries per capita in the world.54 Its economic success has given Australia greater credibility and weight in international affairs.

B  Australia as a Middle Power [1.50]  In contrast to this newer formulation, Australia is often seen as a significant but not dominant actor in international affairs, often described as a ‘middle power’. Ungerer concludes that while the concept of Australia 46

47

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49

50

51

52

53

54

M Conley Tyler, ‘Julie Bishop’s First Six Months (and First 43 Speeches)’, The Interpreter, 28 March 2014, . Carl Ungerer, ‘The “Middle Power” Concept in Australian Foreign Policy’ (2007) 53(4) Australian Journal of Politics and History 538, 539. World Bank, Gross Domestic Product 2014 . Stockholm International Peace Research Institute, SIPRI Military Expenditure Database . AusAID, Summary of Australia’s Overseas Aid Program 2011–2012 . The Climate Institute, Australia: One of the World’s Biggest Polluters . Reserve Bank of Australia, ‘Feature Article: The Global Financial Crisis and Its Impact on Australia’, Australian Bureau of Statistics 1301.0 — Year Book Australia, 2009–10 (4 June 2010) . Graeme Dobell, ‘Lee Kuan Yew, Australia and “White Trash”’ (2015) 69(4) Australian Journal of International Affairs 363. See also John Kerin, ‘The Poor White Trash of Asia: A Phrase That Changed an Economy’, The Australian Financial Review (online), 24 March 2015, . World Bank, GDP per Capita, PPP (Current International $) .

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as a ‘middle power’ has been both inconsistent and malleable since 1945, the concept ‘has provided the one and perhaps only consistent framework for the conduct of Australian diplomacy’.55 The term ‘middle power’ can be used descriptively or normatively. Descriptively, Australia is demonstrably a middle power, as one of ‘a diverse group of states that are neither “great” nor failing, but which occupy a conceptual territory between these extremes’.56 Despite its top 20 rhetoric, Australia is far from being a dominant power anywhere except in parts of the Pacific. In the words of former Minister for Foreign Affairs Gareth Evans: As a middle power, not a great power, not a major power, we don’t have the clout militarily, economically or politically, to rely on anything other than our capacity to persuade.57 As well as describing Australia’s place in an imagined league table, the term ‘middle power’ can also be used normatively, as Evans does, to suggest how Australia should respond to its place in the international system. This includes strands of nationalism (constructing an independent foreign policy), activism (using diplomatic skills and energy in pursuit of national interests) and internationalism (employing multilateral diplomacy).58 A crucial part is a commitment to a system wider than, though encompassing, Australia’s national interest. Proponents of this normative view suggest that as a middle power Australia should engage in activist diplomacy, seeking niche opportunities and using its diplomatic and other assets to pursue these causes. This extends to activism about the international system itself: a key characteristic of middle powers is ‘their commitment to multilateral institutions, the rule of law and 55

56

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58

Carl Ungerer, ‘The “Middle Power” Concept in Australian Foreign Policy’ (2007) 53(4) Australian Journal of Politics and History 538, 551. Mark Beeson, ‘Can Australia Save the World? The Limits and Possibilities of Middle Power Diplomacy’ (2011) 65(5) Australian Journal of International Affairs 564. Defined by capability or capacity, other G20 countries that could be considered middle powers include Argentina, Canada, Indonesia, Mexico, Saudi Arabia, South Africa, South Korea and Turkey: James Cotton and John Ravenhill, ‘Middle Power Dreaming: Australian Foreign Policy during the Rudd–Gillard Governments’ in James Cotton and John Ravenhill (eds), Middle Power Dreaming: Australia in World Affairs 2006–2010 (Oxford University Press, 2011) 2. Gareth Evans, ‘Labor’s Foreign Policy’ (Address to the Rotary International World Understanding Month Dinner, Noble Park, 15 February 1996) . Carl Ungerer, ‘The “Middle Power” Concept in Australian Foreign Policy’ (2007) 53(4) Australian Journal of Politics and History 538, 541–3. See also Matthew Sussex, ‘The Impotence of Being Earnest? Avoiding the Pitfalls of “Creative Middle Power Diplomacy”’ (2011) 65(5) Australian Journal of International Affairs 545; Allan Patience, ‘Imagining Middle Powers’ (2014) 68(2) Australian Journal of International Affairs 210; Andrew Carr, ‘Is Australia a Middle Power?’ (2014) 68(1) Australian Journal of International Affairs 70.

Ch 1: AUSTRALIA’S INTERNATIONAL PERSONALITY   11

norms constraining the use of power’.59 According to then Shadow Minister for Foreign Affairs Kevin Rudd: More recently, the concept of middle power diplomacy has also been broadened to include moral leadership within the international system … The central characteristic of Australian middle power diplomacy has been coalition building with like-minded states in order to create the political momentum necessary to bring about multilateral diplomatic outcomes. This is because while Australia is not a super power, it is nonetheless a significant power, with a keen interest in shaping the strategic order.60 In the last few decades, the term ‘middle power’ has been more associated with the Labor side of politics due to its ‘liberal internationalist tones’,61 although it is worth noting that the concept was originally more bipartisan and used by Coalition figures such as Minister for Foreign Affairs Percy Spender.62 Julie Bishop is on record asking ‘middle of what? There are something like 186 countries, so that makes us the 90-something country’.63 Attempts by recent Coalition figures to formulate alternatives could be seen as similar in practice, if not in rhetoric, to the middle power idea: examples include Coalition Senator Russell Trood’s call for a foreign policy of ‘selective global activism’.64 There is a difference in emphasis between a Labor tradition that stresses multilateralism and a Coalition tradition that stresses bilateralism;65 however, when in government, both use multilateral and bilateral tools as needed to promote Australia’s national interest.66 59

60

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62

63

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66

Geoffrey Miller and Melissa Conley Tyler, Australia as a Middle Power (Manning Clark House and Australian Institute of International Affairs, 2007) 5. Kevin Rudd, ‘Leading, Not Following: The Renewal of Australian Middle Power Diplomacy’ (Speech delivered to the Sydney Institute, Melbourne, 19 September 2006). Carl Ungerer, ‘The “Middle Power” Concept in Australian Foreign Policy’ (2007) 53(4) Australian Journal of Politics and History 538, 549. Srdjan Vucetic, The Anglosphere: A Genealogy of a Racialized Identity in International Relations (Stanford University Press, 2011) 58. Peter Hartcher, ‘Julie Bishop: A Firm Gaze and Straight Talk from an Unflappable Foreign Minister’, The Sydney Morning Herald (online), 16 August 2014, . Russell Trood, The Emerging Global Order: Australian Foreign Policy in the 21st Century (Lowy Institute for International Policy, 2008) . Rachel Thomas, ‘Interpreting Australia’s National Interest: An Appraisal of Gareth Evans, Alexander Downer and the New Rudd Government’ in M Conley Tyler et al (eds), Emerging Scholars 2008–2009 (Australian Institute of International Affairs, 2009) 110. Allan Gyngell, ‘Ambition: The Emerging Foreign Policy of the Rudd Government’ (Lowy Institute for International Policy, 2008) .

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C Australia’s Foreign Policy Goals: Security, Prosperity and Global Contribution [1.60]  Despite rhetoric to the contrary, there has been broad continuity in how Australia’s national interest has been conceived over time and across party divides. There is no equivalent of Walter Russell Mead’s four schools of US foreign policy.67 This is perhaps not so surprising, since many of the givens of foreign policy relate to Australia’s size, location and enduring interests. Two key goals — security and prosperity — have been the focus of successive governments’ foreign policies and are likely to remain Australia’s key foreign policy goals.68 As a middle power, Australia’s security will necessarily depend on the decisions of more powerful states and the restraining effect of the international system. As a country with a population of less than 25 million69 dependent on external markets, Australia’s prosperity depends on the maintenance of open international trade. Allan Gyngell identifies Australia’s central foreign policy dilemma since the beginning of European settlement as how best to protect the security and economic interests of a small population occupying a rich yet isolated continent.70 Australia’s security and prosperity interests crucially rely on a functioning system of international law: from a commitment to refrain from threats to Australia’s territorial integrity, through to freedom of navigation and an open system of international trade. Along with security and prosperity, the Labor tradition usually adds a third aim for Australian foreign policy — variously titled ‘good international citizenship’,71 or ‘the building of a rules-based order’.72 While recent Coalition governments would disagree with these formulations, they have at times also focused on something additional to Australia’s security and prosperity — whether that is conducting foreign policy with ‘regard to the values of the 67

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Walter Russell Mead, Special Providence: American Foreign Policy and How It Changed the World (Routledge, 2002). See, eg, Department of Foreign Affairs and Trade (‘DFAT’), In the National Interest: Australia’s Foreign and Trade Policy White Paper (1997); DFAT, Advancing the National Interest: Australia’s Foreign and Trade Policy White Paper (2003); Australian Labor Party, ‘National Platform and Constitution 2007’ (44th National Conference, Sydney, 27–29 April 2007) [227]. Australian Bureau of Statistics, Population Clock . Allan Gyngell, Ambition: The Emerging Foreign Policy of the Rudd Government (Lowy Institute for International Policy, 2008) 3 . Gareth Evans and Bruce Grant, Australia’s Foreign Relations: In the World of the 1990s (Melbourne University Press, 2nd ed, 1991). Kevin Rudd, ‘The Australia We Can All Be Proud Of’ (Charteris Lecture, Australian Institute of International Affairs, 24 November 2011).

Ch 1: AUSTRALIA’S INTERNATIONAL PERSONALITY   13

Australian community’,73 or promoting ‘the values of tolerance, pluralism and a respect for human dignity’,74 or the overarching importance of a ‘rulesbased international order’.75 As a middle power, Australia has an interest and a stake in the international system that governs relations between states, and thus an incentive to look beyond its own immediate interests. This means that Australia actively pursues its national interests at a bilateral, regional and multilateral level. A common theme is order-building in the international system. 1  Bilateral Relationships [1.70] Bilateral relationships are crucial for Australia’s security and prosperity. Since the adoption of the ANZUS Treaty in 1951,76 Australia’s key bilateral security relationship has been with the United States. The ANZUS Treaty provides some measure of security through arts III and IV, stating that: Article III The Parties will consult together whenever in the opinion of any of them the territorial integrity, political independence or security of any of the Parties is threatened in the Pacific. Article IV Each Party recognizes that an armed attack in the Pacific Area on any of the Parties would be dangerous to its own peace and safety and declares that it would act to meet the common danger in accordance with its constitutional processes. While there has been some controversy over how these articles should be interpreted (for example, then Minister for Foreign Affairs Alexander Downer’s statement in 2004 that the treaty is ‘symbolic’),77 the ANZUS Treaty has generally been understood by Australians as a security guarantee. As part of its alliance relationship, Australia has followed the United States into conflicts far from Australia’s direct interests, including the Iraq War, which damaged the international rules-based system. 73

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DFAT, Advancing the National Interest: Australia’s Foreign and Trade Policy White Paper (2003) iv. Alexander Downer, ‘Australian Foreign Policy Today and Tomorrow’ (Inaugural Monash Asia Public Lecture, Melbourne, 22 August 2007) . Malcolm Turnbull, ‘Australia and the United States: New Responsibilities for an Enduring Partnership’ (Speech delivered at the Centre for Strategic and International Studies, Washington DC, 18 January 2016) . Security Treaty between Australia, New Zealand and the United States of America,  signed 1 September 1951, 131 UNTS 83 (entered into force 29 April 1952) (‘ANZUS Treaty’). ‘Downer Prepared to Stand against US over Taiwan’, ABC News: The World Today, 18 August 2004, .

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Australia has security agreements in place with the United States, the United Kingdom, Singapore and Malaysia (through the Five Power Defence Arrangement);78 is a member of the Five Eyes intelligence alliance with Canada, New Zealand, the United Kingdom and the United States; and has security cooperation agreements with Japan,79 India,80 South Korea81 and Indonesia.82 Bilateral relationships also matter to Australia’s economic prosperity. As of the end of 2015, Australia had bilateral preferential trade agreements with six countries (Chile, New Zealand, Singapore, South Korea, Thailand and the United States) and two regional groupings (the Association of Southeast Asian Nations (‘ASEAN’) and the Gulf Cooperation Council). Two new free trade agreements entered into force with Japan and China in 2016. In early 2016, a number of negotiations were underway, including with India (through the Australia–India Comprehensive Economic Cooperation Agreement), Indonesia (through the Indonesia–Australia Comprehensive Economic Partnership Agreement) and the European Union. Interestingly, Australia was willing to jeopardise its bilateral economic relationship with Japan over an international rules issue on whaling — and was successful in the International Court of Justice. Australia has been willing to take criticism in its vital economic relationship with China over inter­national order issues, including the Air Defence Identification Zone in the East China Sea and freedom of navigation in the South China Sea. In many of the bilateral relationships mentioned above, Australia is clearly the junior partner. This is not the case in the Pacific, where Australia has the greater weight and influence in important bilateral relationships — including through its significant international aid to Papua New Guinea, Timor-Leste and the Solomon Islands, to name a few. Australia had military commitments in Timor-Leste and the Solomon Islands in recent years, as well as defence cooperation with a number of Pacific nations. Australia is involved in the negotiations for the Pacific Agreement on Closer Economic Relations (PACER) Plus. But it is in the Pacific that Australia can most be challenged on its commitment to a rules-based international order. The espionage proceedings 78

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Five Power Defence Arrangements, Australia–Malaysia, Australia–Singapore, signed 1 December 1971, [1971] ATS 21 (retrospective entry into force 1 November 1971). Joint Declaration on Security Cooperation, Japan–Australia, signed 13 March 2007, . Joint Declaration on Security Cooperation, India–Australia, signed 12 December 2009, . Department of Defence, ‘Australia–Republic of Korea Foreign and Defence Ministers 2+2 Meeting’ (Joint Statement, 11 September 2015) . Agreement between Australia and the Republic of Indonesia on the Framework for Security Cooperation, Australia–Indonesia, signed 13 November 2006, [2008] ATS 3 (entered into force 7 February 2008).

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brought by Timor-Leste against Australia at the Permanent Court of Arbitration83 proved to be one such example: allegations of espionage were levelled at the Australian government and challenged Australia’s implementation of a rules-based order. Finally, Australia’s closest bilateral relationship remains that with New Zealand, where the Closer Economic Relations Trade Agreement signed in 1983 has enabled significant bilateral trade and economic growth.84 This has been so unproblematic that it is often taken for granted, but it is an example of mutually beneficial economic integration short of political or fiscal union that offers a potential model for others. Again, it shows a commitment to orderbuilding in the international system. 2  Regionalism [1.80]  Australia has a distinctive place in international affairs as a developed Western democracy located in the Asia-Pacific. Australia has seen the value in a regional focus at least as far back as R G Casey’s term as Minister for External Affairs in 1951–60.85 Much of this has focused on order-building — for example, Australia’s membership of the Southeast Asia Treaty Organisation (‘SEATO’), which situated Australia within regional security relations in the Asia-Pacific. Australia’s regional focus has been made clear by participation in key multilateral dialogues in the Asia-Pacific: both in the security realm as a founding member of the ASEAN Regional Forum in 1994, and economically as an active participant in the Asia-Pacific Economic Cooperation forum. More recently, the expanded East Asia Summit, now including the United States and Russia, provides the right membership for an overarching Asian regional forum. Australia is also represented in the ASEAN Defence Ministers Meeting (‘ADMM-Plus’). Australia is a part of various geographic regions — as many as four have been articulated by scholars.86 Its membership of a number of regional institutions — the Pacific Islands Forum,87 the Indian Ocean Rim Association,88 83

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Arbitration under the Timor Sea Treaty (Timor-Leste v Australia), 23 April 2013, Permanent Court of Arbitration (decision pending). Australia–New Zealand Closer Economic Relations Trade Agreement, signed 28 March 1983, [1983] ATS 2 (entered into force 1 January 1983); see also DFAT, Australia–New Zealand Closer Economic Relations Trade Agreement . Melissa Conley Tyler, John Robbins and Adrian March, R G Casey: Minister for External Affairs 1951–60 (Australian Institute of International Affairs, 2012). Graeme Dobell, ‘Many Codes: Australia’s Myriad Regional Homes’ in Melissa Conley Tyler and Wilhelm Hofmeister (eds), Going Global (Konrad Adenauer Stiftung, 2011) 17–32. Pacific Island Forum Secretariat, About Us . DFAT, Indian Ocean Rim Association .

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the Antarctic Treaty system89 and the East Asia Summit90 — is a paradigmatic case of subsuming national interests to regional order-building. In 2010, Australia formally joined the Asia–Europe Meeting, a forum that facilitates dialogue across two important regions. Australia also remains an active member of the Commonwealth — another cross-regional organisation — with this ongoing engagement illustrated by Australia hosting the 2011 Commonwealth Heads of Government meeting in Perth. Australia was the Chair of the Indian Ocean Rim Association from 2013 to 2015 and hosted the forum of the Indian Ocean Rim Association dialogue in 2015. On the economic front, Australia is a party to the Trans-Pacific Partnership and is part of negotiations for the Regional Comprehensive Economic Partnership. It is also part of the Asian Development Bank and the newly created Asian Infrastructure Investment Bank. The ongoing participation of Australia in a number of multilateral dialogues demonstrates its commitment to institution-building in its various regions. 3  Multilateralism [1.90]  Australia has a strong history of contribution to the United Nations, stretching back to H V Evatt and the founding of the organisation.91 Australia is also a member of all major multilateral regimes, including the International Labour Organization, UNESCO, the International Criminal Court, the Convention Relating to the Status of Refugees,92 and the World Meteoro­logical Organization.93 It is a member of the major multilateral economic regimes, such as the World Bank, the International Monetary Fund and the World Trade Organization. More recently, as mentioned above, Australia has served as an elected member of the United Nations Security Council94 and held the presidency of the G20.

89

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Antarctic Treaty, signed 1 December 1959, 402 UNTS 71 (entered into force 23 June 1961). For statements of East Asia Summit meetings, see . James Cotton and David Lee (eds), Australia and the United Nations (DFAT, 2013). Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954). International Labour Organization, The ILO in Australia ; DFAT, Australian National Commission for UNESCO ; International Criminal Court Act 2002 (Cth); Migration Act 1958 (Cth); Bureau of Meteorology, Australia’s Role in the WMO . Melissa Conley Tyler and Eleanor Pahlow, ‘Australia on the UN Security Council 2013–14: a Voice for Small and Medium Countries?’ (2014) 103(1) The Round Table: The Commonwealth Journal of International Affairs 95.

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Australia has also made a significant contribution to a global issue through its work on small arms in the development of the Arms Trade Treaty.95 These contributions follow on from Australia’s work on chemical weapons and non-proliferation.

D  Australia’s Global Ambitions [1.100]  Australia’s term on the United National Security Council and its role in the G20 are good examples of its growing global ambitions. Australia worked hard for its seat at the big table. Cotton and Ravenhill argue that ‘Rudd personally played a pivotal role in convincing George W Bush to elevate the G20 to the role of principal manager of the global economic system’.96 Australia’s ambitions for G20 had echoes of the Cairns Group coalition of agricultural exporting nations. Australia’s growing weight has, on the whole, been used for order-building. In the words of Julia Gillard: We are also working to secure Australia’s future through re-energised regional and global engagement. We are committed to building on the Labor tradition of active contribution to the world beyond our shores. And we are committed to an activist middle power diplomacy that delivers the best outcomes for Australia and Australians. This engagement is both about principles and the interests of our nation and its people. In our globalised world, we need our voice to be heard in global councils that are crafting the solutions to the challenges we face.97 Similarly, according to Kevin Rudd, ‘on a multilateral level, we continue to push for strong institutions and [a] rules-based approach to the inter­ national order’.98 Changes in the international system — in particular, the rising power of China, Russia and illiberal states as international players — mean that Australia may be called upon to stand up for its international order principles. As it becomes a stronger international actor, will Australia maintain its commitment to a rules-based order?

95

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Arms Trade Treaty, opened for signature 3 June 2013, [2014] ATS 42 (entered into force 24 December 2014). See DFAT, Conventional Weapons and Missiles . James Cotton and John Ravenhill, ‘Middle Power Dreaming: Australian Foreign Policy during the Rudd–Gillard Governments’ in James Cotton and John Ravenhill (eds), Middle Power Dreaming: Australia in World Affairs 2006–2010 (Oxford University Press, 2011) 6. Julia Gillard, ‘Strengthening Australia’ (Policy Statement, 2010). Kevin Rudd, ‘The Australia We Can All Be Proud Of’ (Charteris Lecture, Australian Institute of International Affairs, 24 November 2011).

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E ‘Characterising Australia’s Engagement with International Law’, or ‘Is Australia a Good International Citizen?’ [1.110] As this volume illustrates, Australia has over recent decades contributed actively to the expansion of international law, in terms of the creation of new instruments that add to the richness of existing regimes, such as international trade law and international humanitarian law, as well as its reach into new fields, including international criminal law. International law has also become more integral to the Australian domestic legal system. This raises the question as to whether there is anything distinctive about the nature of Australia’s engagement with international law and, if so, how that engagement might most appropriately be characterised. A term that has often been used in connection with Australia’s approach to foreign relations and international law is that of Australia being a ‘good international citizen’. This description of Australia’s approach is most strongly associated with Gareth Evans, foreign minister from 1988 to 1996. Indeed, Evans is generally credited with having coined the term,99 although Canadian Prime Minister Lester Pearson had earlier enunciated the concept of good international citizenship.100 In their co-authored 1991 book, Australia’s Foreign Relations,101 Gareth Evans and Bruce Grant referred to three foreign policy priorities for Australia, one of which was ‘being, and being seen to be, a good international citizen’.102 There are both legal and non-legal dimensions to Australia’s role as a good international citizen. So far as international law is concerned, crucial to its reputation has been its valuable contributions to multilateral treaty-making. Throughout its life as an independent legal entity, and particularly during periods of Labor government, Australia has contributed to the conclusion of important multilateral treaties and multilateral developments of inter­ national legal significance perceived as in the best interests of the international community as a whole. Examples include the Charter of the United Nations, the Universal Declaration of Human Rights,103 the Chemical Weapons Convention,104 99

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Richard Devetak, ‘In Fear of Refugees: The Politics of Border Protection in Australia’ (2007) 8(1) International Journal of Human Rights 101, 109 n 25. Peter Lawler, ‘The Core Assumptions and Presumptions of “Cooperative Security”’ in Stephanie Lawson (ed), The New Agenda for Global Security: Cooperating for Peace and Beyond (Allen & Unwin, 1995) 39, cited in Alison Pert, Australia as a Good International Citizen: From Barton to Howard: An International Law Perspective (PhD Thesis, University of Sydney, 2010) 5. Gareth Evans and Bruce Grant, Australia’s Foreign Relations: In the World of the 1990s (Melbourne University Press, 2nd ed, 1991). The others were geopolitical or strategic interests, and economic and trade interests: see Gareth Evans and Bruce Grant, Australia’s Foreign Relations: In the World of the 1990s (Melbourne University Press, 2nd ed, 1991) 33. Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948). Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, opened for signature 13 January 1993, 1974 UNTS 45 (entered into force 29 April 1997).

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and the 1995 indefinite extension of the Treaty on the Non-Proliferation of Nuclear Weapons.105 Australia has participated in two cases before the International Tribunal for the Law of the Sea and has been a party to five cases before the International Court of Justice. Reference to Australia as a ‘good’ international citizen alludes not only to how Australia has behaved, but also to how Australia should conduct its foreign relations — to the idea that there is or should be a moral dimension to its foreign and defence policies. From an international law perspective, this has in large part been manifested through Australia’s promotion of the international law of human rights and the environment. Certainly, in the late 1980s and early 1990s, Australia did assume a place at the forefront of global environmental diplomacy. Australia played a key role in bringing about the 1991 Protocol on Environmental Protection to the Antarctic Treaty106 and was at that time a ‘pro-active leader’ in the development of a multilateral response to climate change.107 Its reputation for environmental leadership was subsequently tarnished by its diplomacy at Kyoto, one critic of Australia’s behaviour in global environmental politics referring in 2005 to Australia having moved from a ‘paragon to a pariah’.108 Interestingly, Canada, a country to which writers on good international citizenship have often compared Australia,109 has in recent years also suffered in reputational terms from its reluctance to act decisively on climate change. Critics have used the term ‘good international citizen’ as a standard against which to criticise policies and approaches that weaken Australia’s profile in respect of the environment, human rights or support for multilateralism and international law more generally.110 Australia has, for example, varied over time in its domestic embrace of international human rights law. The Chifley Labor government, through Evatt, ratified or acceded to all then available human rights instruments, but its conservative successors adhered to none; the Hawke and Keating governments adhered to most available instruments and 105

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109

110

Treaty on the Non-Proliferation of Nuclear Weapons, opened for signature 1 July 1968, 729 UNTS 161 (entered into force 5 March 1970). Protocol on Environmental Protection to the Antarctic Treaty, opened for signature 4 October 1991, 30 ILM 1461 (entered into force 14 January 1998). Ros Taplin, ‘International Cooperation on Climate Change and Australia’s Role’ (1995) 26(1) Australian Geographer 16. Interview with Clive Hamilton (21 July 2005), quoted in Simon Lightfoot, ‘A Good International Citizen? Australia at the World Summit on Sustainable Development’ (2006) 60(3) Australian Journal of International Affairs 457, 457. Andrew Cooper, Richard Higgott and Kim Richard Nossal, Relocating Middle Powers: Australia and Canada in a Changing World Order (University of British Columbia Press, 1993). A notable example was the support of Lloyd Axworthy for an international ban on landmines and Canada’s significant contribution to international peacekeeping. Gareth Evans himself argued from 2001 on that Australia had ceased to be a good international citizen: Alison Pert, Australia as a Good International Citizen: From Barton to Howard: An International Law Perspective (PhD Thesis, University of Sydney, 2010) 8.

20    INTERNATIONAL LAW IN AUSTRALIA

withdrew most existing reservations, but, under Howard, Australia engaged in a ‘war’ with the United Nations human rights treaty bodies.111 The legal record clearly shows that Australia ratified the International Covenant on Economic, Cultural and Social Rights112 in 1975 and the International Covenant on Civil and Political Rights113 in 1980, but an examination of the historical record illuminates the ‘highly contingent, non-inevitable’ nature of the ratification process.114 Part of the challenge for a middle power pursuing an ethical foreign policy is in managing its relationship with its dominant ally where that ally may choose a different policy course. Assuming the role of a middle power, Australia’s contribution has often taken the form of engaging in ‘niche diplomacy’ and coalition building. Whereas great or major powers typically aim to assume a leading role in diplomacy on the full range of issues, middle powers can often use their available resources to better effect by focusing on a selected number of issues on which they can make a difference within the scope of alternatives acceptable to their more powerful allies. Australian leaders have demonstrated greater policy independence on some international law issues, and at some periods, than others. After a tortuous period of indecision, Australia in 2002 ratified the Rome Statute of the International Criminal Court,115 despite the corresponding period of indecision in the United States resulting in its ‘un-signing’ the statute. In contrast, Australia joined with the United States in its 2003 invasion of Iraq, a decision that many would regard as the low point in recent decades so far as Australia’s engagement with international law is concerned. Vocal domestic opposition to Australia’s involvement in hostilities against Iraq, including from members of the international law community in Australia,116 highlighted the extent to which international law has become integral to public discourse on Australia’s foreign relations. Criticism of Australian participation in the invasion was not made purely in terms of whether it was in Australia’s interests to engage in the hostilities, but rather as to whether use of force without explicit authorisation of the Security Council was lawful. The inclusion of an overt international law dimension 111

112

113

114

115

116

Alison Pert, Australia as a Good International Citizen: From Barton to Howard: An International Law Perspective (PhD Thesis, University of Sydney, 2010) 335. International Covenant on Economic, Cultural and Social Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976). International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976). Annemarie Devereux, Australia and the Birth of the International Bill of Human Rights 1946–1966 (Federation Press, 2005) 238. Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 3 (entered into force 1 July 2002). ‘Coalition of the Willing? Make That War Criminals’, The Sydney Morning Herald, 26 February 2003. This included a letter published as ‘A pre-emptive strike on Iraq would constitute a crime against humanity, write 43 experts on international law and human rights’.

Ch 1: AUSTRALIA’S INTERNATIONAL PERSONALITY   21

to Australian political debate had already been apparent at the time that the second edition of this volume was published in 1984. At that stage, public awareness of international law had recently increased due in particular to a couple of judicial decisions addressing the impact of international law on Australian constitutional law.117 In the years between publication of the second and third editions of International Law in Australia, the internationalisation of Australian life has continued, with the result that international law has featured in public debate to an increasing extent.118 One subject on which there has been an international law dimension to ongoing heated political debate in Australia has been that of border control and the treatment of those arriving by boat and seeking asylum. In 2001, 433 asylum seekers were rescued by the MV Tampa and prevented from having their claims processed on Australian territory. Assessing the actions of the Australian government during the Tampa ‘crisis’, as it became known in terms of the law of the sea, does not reflect well on Australia.119 While the Iraq and Tampa examples suggest a realist departure from the theme of good international citizenship, it should be borne in mind that the concept itself combines idealism with realism. Evans and Grant embedded the concept within realism, in proclaiming that: The starting point in making decisions about foreign policy is necessarily the concept of national interest. It is a truism that all foreign policy is, or should be, directed at the protection and advancement of the national interest. But the elements that make up the national interest, and our capacity to advance it, are not necessarily self-evident at all.120 Gareth Evans offered good international citizenship not as an alternative to, but rather as a component of, the pursuit of a realist foreign policy, one that could bring tangible benefits to the country practising the approach. The 2001 report of the International Commission on Intervention and State Sovereignty, of which Evans was co-chair, referred to the ‘reputational benefit’ of being a good international citizen: ‘my country’s assistance for you today in solving your neighbourhood refugee and terrorism problem, might reasonably lead you to be more willing to help solve my environmental or drugs problem tomorrow’.121 Evans’s important contribution here was in 117

118

119

120

121

Koowarta v Bjelke-Peterson (1982) 153 CLR 168; Commonwealth v Tasmania (1983) 158 CLR 1 (‘Tasmanian Dam Case’). Hilary Charlesworth et al, ‘Deep Anxieties: Australia and the International Legal Order’ (2003) 25(4) Sydney Law Review 423, 423. Donald R Rothwell, ‘The Law of the Sea and the MV Tampa Incident: Reconciling Maritime Principles with Coastal Sovereignty’ (2002) 13(2) Public Law Review 118, 127. Gareth Evans and Bruce Grant, Australia’s Foreign Relations: In the World of the 1990s (Melbourne University Press, 2nd ed, 1991) 33. International Commission on Intervention and State Sovereignty, The Responsibility to Protect (International Development Research Center, 2001) 72 [8.16] .

22    INTERNATIONAL LAW IN AUSTRALIA

articulating the important practical impact of international norms, values and persuasion, thus opening the door to appropriate recognition of the significance of international law to the conduct of an effective foreign policy. His more recent role as ‘one of the leading intellectual forces behind the doctrine of the “responsibility to protect”’122 can also be understood in this light. One challenge involved in characterising the nature of a country’s engagement with international law is that of distinguishing its attitude to international law from its attitude to specific issues. While international lawyers may tend to interpret failure to ratify a treaty as evidence of a lack of support for international law as a whole, it may be that the government of the day simply has strong views on the particular subject matter embodied in that treaty. And it is also the case that legal argument tends to be the preferred mode by which international lawyers critique policies with which they disagree; an act that comes under strident criticism for its alleged illegality may be that to which the public has taken greatest exception, as opposed to that whose legality is most in question. As the system of international law continues to grow in complexity, so is it reasonable to expect a greater degree of complexity in the nature of Australia’s engagement with international law. International law contains values more conservative as well as those more progressive than Australian law.123 And yet, it is fair to say that Australia has demonstrated consistent support for a far-reaching, functioning system of international law and has undoubtedly made a valuable contribution towards realising that ideal as a worthwhile end in itself.

IV  CONCLUDING THOUGHTS [1.120]  In 2016, Australia is a fully fledged international actor of historically unparalleled weight in the international system: a top 20 nation. However, on balance, Australia has tended to see its interests served through a rules-based international system, based on international law. The following chapters in this volume will explore Australia’s practice in a range of areas of international law. Despite issues on which Australia can be rightly criticised, its self-perception remains one of a country committed to a rules-based international order: in short, to being a good international citizen.

122

123

G John Ikenberry, ‘Responsibility to Protect: Ending Mass Atrocity Crimes Once and for All’ (2009) 88(3) Foreign Affairs 141, 141. Hilary Charlesworth et al, ‘Deep Anxieties: Australia and the International Legal Order’ (2003) 25(4) Sydney Law Review 423, 424.

2 International Law and Australian Law Annemarie Devereux and Sarah McCosker

I INTRODUCTION [2.10]  With the massive expansion of international law and the proliferation of international courts and tribunals has come an increased focus within Australian law on the relationship between Australian domestic law and international law. There are different kinds of relationships between international law and domestic law; for example, international law can be a source of law, an influence on the interpretation of domestic law, and an influence on executive decision-making. These relationships are affected by both Australia’s constitutional framework and the still-developing judicial engagement with international law. Understanding how the interface between international law and domestic law operates in Australia is critical because it sets the foundational theoretical framework for the chapters that follow in this book. Those chapters focus on the interpretation and implementation of specific fields of international law in Australia.1

II  GENERAL RELATIONSHIP BETWEEN INTERNATIONAL LAW AND DOMESTIC LAW A  Movement towards Greater Complexity [2.20]  In recent decades, the relationship between international and domestic law has become increasingly important, and arguably more complex. At least 1

This chapter focuses primarily on the relationship between domestic law and treaty law and customary international law, and does not examine the relationship between domestic law and general principles of international law, or subsidiary means for determining rules of international law referred to in the Statute of the International Court of Justice. 23

24    INTERNATIONAL LAW IN AUSTRALIA

four related factors have contributed to this. The first is that we now live in a globalised, interconnected world in which the delineation between domestic and international affairs is increasingly blurred. Perhaps no better illustration of this is the massive changes wrought by the evolution of the internet and digital technologies — a dramatic transformation since the last edition of this book in 1984. A second, related factor is the shrinking of the ‘reserved domain’ of issues previously regarded as exclusively within the competence of nation states — alternatively characterised as the increased reach of international law into the domestic arena. This trend has been especially obvious in the fields of international human rights law and international environmental law. Third, following the 20th century phase of rapid normative development, we are now in a period where international law has a greater focus on implementation, compliance and enforcement — and, accordingly, the role of domestic law in that process is increasingly important.2 A fourth, related factor is the increased awareness and understanding of international law generally and its use as a tool of domestic advocacy and policy-making in Australia. Together, these factors have contributed to an increased interest in the impact of international law on domestic law.

B  T  heories Regarding the Relationship between International Law and Domestic Law 1  Monism and Dualism [2.30]  There are, of course, important differences between international law and domestic law — for example, in their mode of creation, their subjects, their sources of legitimacy and their enforcement mechanisms. The two main theories traditionally used to explain the relationship between international law and domestic law are monism and dualism, which are closely linked to the concepts of ‘transformation’ and ‘incorporation’. The monist view, derived from natural law theories, is that international law and national law form part of the same universal normative order, and thus international law does not need to be translated into national law. Instead, the act of ratifying the international law immediately incorporates it into national law. The dualist view, informed by legal positivism, is that international law and national law are two separate legal orders, and that for international law to apply domestically, it must first be transformed into domestic law. Underlying this approach are two key principles: state consent as the basis for international law, and the separation of powers — in particular, the concern to protect the supremacy of the legislature.

2

Donald Rothwell et al, International Law: Cases and Materials with Australian Perspectives (Cambridge University Press, 2nd ed, 2014) 198.

Ch 2: INTERNATIONAL LAW AND AUSTRALIAN LAW   25

2  The Incorporation and Transformation Approaches [2.40]  Monism and dualism relate respectively to the incorporation and transformation approaches. Under the incorporation approach, international law is automatically incorporated as part of national law, to the extent that it does not conflict with domestic statutes or judicial precedents, while the transformation approach requires that international law first be ‘transformed’ or translated into domestic law by an act of that state, such as by enacting legislation.3 Monism and dualism might be described as theoretical approaches to understanding the relationship between international and domestic law as domains of law, while incorporation and transformation relate more to the manner in which international law actually becomes part of domestic law.4 In Australia, the dualist and transformation approaches — inherited from the United Kingdom — are predominant in relation to treaty obligations. Thus, treaties do not form part of Australian law unless those provisions have been validly incorporated into domestic law by statute. However, simply to state that Australia is a ‘dualist’ country is an oversimplification; as we will see in the discussion of customary international law below, the picture is more complex. While monism/dualism and incorporation/transformation are much discussed in academia, in practice they have received fairly little explicit discussion in Australian case law, leading some commentators to query the practical utility of the doctrinal discussion.5 The monism and dualism approaches have also been critiqued as artificial and outdated in an increasingly globalised world, 3

4

5

Sir Anthony Mason, ‘International Law as a Source of Domestic Law’ in Brian R Opeskin and Donald R Rothwell (eds), International Law and Australian Federalism (Melbourne University Press, 1997) 210, 212. Donald Rothwell et al, International Law: Cases and Materials with Australian Perspectives (Cambridge University Press, 2nd ed, 2014) 203. For further discussion on monism, dualism, incorporation and transformation, see Joseph G Starke, ‘Monism and Dualism in the Theory of International Law’ (1936) 17  British Yearbook of International Law 66 [70]–[74]; Hans Kelsen, Principles of International Law (2nd ed, 1967) 290, 551; James Crawford, Brownlie’s Principles of Public International Law (Oxford University Press, 8th ed, 2008) 48–50; Davíd Thór Björgvinsson, The Intersection of International Law and Domestic Law: A Theoretical and Practical Analysis (Edward Elgar Publishing, 2015) 5–9, 19–42. See, eg, Gillian D Triggs, International Law: Contemporary Principles and Practices (LexisNexis Butterworths, 2nd ed, 2011) 154–6; James Crawford, Brownlie’s Principles of Public International Law (Oxford University Press, 8th ed, 2008) 50. See also D P O’Connell, International Law (Law Book Co, 1st ed, 1965) vol 1, [42](c)(d); Myres S McDougal, ‘The Impact of International Law upon National Law: A Policy-Oriented Perspective’ (1959) 4 South Dakota Law Review 25, 27–32, 72–3; Armin von Bogdandy, ‘Pluralism, Direct Effect, and the Ultimate Say: On the Relationship between International and Domestic Constitutional Law’ (2008) 6(3–4) International Journal of Constitutional Law 397, 397–8, 400; Christian Tomuschat, ‘International Law: Ensuring the Survival of Mankind on the Eve of a New Century’ (1999) 281 Recueil des Cours 9, 363; Jordan J Paust, ‘Basic Forms of International Law and Monist, Dualist and Realist Perspectives’ in Marko Novakovic (ed), Basic Concepts of Public International Law — Monism and Dualism (Faculty of Law, University of Belgrade, 2013) 244–65.

26    INTERNATIONAL LAW IN AUSTRALIA

in which the conceptual boundaries between international and national are blurred.6 It has therefore been suggested that a clearer approach for an Australian court seeking to determine the application of an international rule in Australia is simply ‘to determine whether the necessary constitutional procedures have been met and the international rule has been implemented or is otherwise part of national law’.7 We will therefore now turn to a brief discussion of Australia’s constitutional framework, which sets the basic guidance for how international law applies in domestic law.

C  Constitutional Framework [2.50]  The Commonwealth of Australia was created in 1901 by the Common­ wealth of Australia Constitution Act 1900 (Imp). Under the Constitution, power is divided between the executive, legislature and judiciary. The executive government exercises the prerogative powers of the Crown under s 61 of the Constitution, including the power to negotiate and enter into treaties. Under s 51(xxix), the federal Parliament has the power to make laws with respect to ‘external affairs’, a power which covers, inter alia, the implementation of both treaties and customary international law. The Constitution is largely silent on the position of international law in the Australian legal system. This means that the relationship between international and domestic law in Australia is primarily determined by common law rules inherited from the United Kingdom.

III  TREATY LAW AND AUSTRALIAN LAW A  Who Has the Power to Enter into Treaties? [2.60]  The Commonwealth executive’s power to enter into treaties is a plenary one, permitting Australia to ratify or accede to treaties on any subject matter. There is no requirement of parliamentary approval before the executive can enter into a treaty arrangement. Historically, only in a few cases has the Commonwealth Parliament passed legislation explicitly approving Australia’s ratification prior to action being taken. One example is where legislation was introduced approving Australia’s ratification of the Convention on the Prevention and Punishment of the Crime of Genocide.8 However, as 6

7

8

See, eg, Gerald Fitzmaurice, ‘The General Principles of International Law Considered from the Standpoint of the Rule of Law’ (1957) 92 Hague Recueil 1, 71; Gillian D Triggs, International Law: Contemporary Principles and Practices (LexisNexis Butterworths, 2nd ed, 2011) 154–6. Gillian D Triggs, International Law: Contemporary Principles and Practices (LexisNexis Butterworths, 2nd ed, 2011) 155. Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature 10 December 1948, 78 UNTS 277 (entered into force 12 January 1951).

Ch 2: INTERNATIONAL LAW AND AUSTRALIAN LAW   27

Balkin has stated, ‘[a]s a general rule … parliamentary approval has neither been sought, nor is it required as a matter of constitutional practice’.9 The desirability of reforms to increase the engagement of the federal Parliament, state and territory authorities, and the community in the treatymaking process was underlined in the Senate Legal and Constitutional References Committee’s 1995 report entitled Trick or Treaty? Common­ wealth Power to Make and Implement Treaties. In response, in 1996, a series of reforms was introduced by the federal government, as detailed in chapter 3. Of particular importance has been the requirement for the tabling of treaties in Parliament before binding action is taken, accompanied by a National Interest Analysis, and the establishment of a Joint Standing Committee on Treaties to scrutinise potential treaty action.10

B  What Is the Effect of Treaties on Domestic Law? [2.70]  Provisions of a treaty to which Australia has become a party do not form a part of Australian law unless and until there has been a legislative act to incorporate them into Australian law.11 While there is a narrow exception for some treaties, such as treaties of peace, which are regarded as selfexecuting (having legal effect without any domestic act of incorporation),12 the general rule requiring an act of domestic implementation is firmly established. Mason CJ and Deane J in Minister for Immigration and Ethnic Affairs v Teoh13 explained the genesis of this rule in terms of the separation of powers between the executive and the Parliament: It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute. This principle has its foundation in the proposition that in our constitutional system, the making and ratification of treaties fall within the province of the Executive in the exercise of its prerogative power whereas the making and the alteration of the law fall within the province of Parliament, not the Executive. So, a treaty which has not 9

10

11

12

13

Rosalie Balkin, ‘International Law and Domestic Law’ in Sam Blay, Ryszard Piotrowicz and B Martin Tsamenyi (eds), Public International Law: An Australian Perspective (Oxford University Press, 1997) 128. For a description of current processes, see Department of Foreign Affairs and Trade, Treaty Making Process . R v Burgess (1936) 55 CLR 608, 644 (Latham CJ), citing Walker v Baird (1892) AC 491; recently restated by the High Court in Tajjour v New South Wales (2014) 313 ALR 221, 250 (Hayne J), 281 (Keane J). This narrow range of treaties includes treaties of peace and treaties affecting belligerent rights: see James Crawford and W R Edeson, ‘International Law and Australian Law’ in K Ryan (ed), International Law in Australia (Law Book Co, 2nd ed, 1984) 71, 94–7. Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273.

28    INTERNATIONAL LAW IN AUSTRALIA

been incorporated into our municipal law cannot operate as a direct source of individual rights and obligations under that law.14 Attempts to rely upon breaches of international treaty provisions to found a course of action have thus failed. In the case of Minogue v Williams,15 for example, the Federal Court rejected an argument by a prisoner alleging breaches of the International Covenant on Civil and Political Rights (‘ICCPR’),16 reaffirming the requirement that litigants must show a basis for the cause of action in Australian law and cannot directly rely upon provisions of inter­ national treaties.

C  Implementation of Treaties [2.80]  Most treaties explicitly or implicitly leave to the discretion of the state the means for implementing their treaty obligations. As Borchard has observed, ‘[t]he particular domestic instruments that the State employs to perform its international obligations are a matter of indifference to international law’.17 Having said that, some treaties do require Australia to take specific legislative action: for example, under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,18 state parties are obliged to legislate so as to criminalise torture. In Australia, the publicly stated policy of the government is to ensure that necessary legislation is enacted, either by the Commonwealth or by state/territory governments, before ratification of a treaty.19 An illustration of this policy is the legislation passed by federal Parliament on the topic of cluster munitions20 so that Australia could ratify the Convention on Cluster Munitions.21 14

15 16

17

18

19

20 21

Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 286–7. See also Dietrich v R (1992) 177 CLR 292, 305 (Mason CJ and McHugh J); Koowarta v Bjelke-Petersen (1982) 153 CLR 168, 193 (Gibbs CJ). Minogue v Williams (2000) 60 ALD 366, 371. International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (‘ICCPR’). Edwin M Borchard, ‘The Relation between International Law and Municipal Law’ (1940) Virginia Law Review 137, quoted in Donald K Anton, Penelope Mathew and Wayne Morgan, International Law: Cases and Materials (Oxford University Press, 2005) 393. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987). Department of Foreign Affairs and Trade, Treaty Making Process . Criminal Code Amendment (Cluster Munitions Prohibition) Act 2012 (Cth). Convention on Cluster Munitions, opened for signature 3 December 2008, 2688 UNTS 39 (entered into force 1 August 2010). Note, however, arguments that legislation has not in all cases been enacted: Anton, Mathew and Morgan, for instance, refer to Commonwealth action in enacting legislation in response to the Toonen communication as belying the stance that ICCPR rights and freedoms were already guaranteed in the common law and legislation: see Donald K Anton, Penelope Mathew and Wayne Morgan, International Law: Cases and Materials (Oxford University Press, 2005) 466.

Ch 2: INTERNATIONAL LAW AND AUSTRALIAN LAW   29

1  External Affairs Power [2.90]  Where the federal government does take legislative action to implement treaties, it is often relying on the power given under s 51(xxix) of the Constitution, the ‘external affairs power’. In order to enliven this legislative power: (i) the treaty provision(s) must be defined with sufficient specificity to direct the general course to be taken by the contracting party;22 and (ii) the legislation must reasonably be considered to be appropriate and adapted to fulfilling the treaty obligation.23 In relation to the former requirement, the High Court has indicated that there might be treaty provisions that are purely aspirational and so not sufficiently specific to attract the legislative power. In the context of examining international obligations with respect to terrorism (in particular, Security Council resolutions passed under the UN Charter) in the case of Thomas v Mowbray, Kirby J posited the question in terms of asking whether the obligation possessed the features of ‘specificity, particularity, definitions and express obligations’.24 To take another example, in the human rights field, the then Commonwealth Solicitor-General in a 2009 opinion expressed some doubt as to whether certain provisions of the International Covenant on Economic, Social and Cultural Rights (‘ICESCR’)25 would meet this test.26 The High Court, however, has relied in part upon other provisions of the ICESCR in finding Commonwealth legislative power under the external affairs power.27 The second limb of the test, whether a legislative provision is reasonably adapted and appropriate to implementing the treaty obligation, requires a close comparison between the nature of the obligation and the legislative 22 23

24

25

26

27

Victoria v Commonwealth (1996) 187 CLR 416, 486 (‘Industrial Relations Act Case’). Airlines of New South Wales Pty Ltd v New South Wales [No 2] (1965) 113 CLR 54, 87 (Barwick CJ); Commonwealth v Tasmania (1983) 158 CLR 1, 131 (Mason J), 259 (Deane J) (‘Tasmanian Dam Case’); Richardson v Forestry Commission (Tasmania) (1988) 164 CLR 261, 289 (Mason CJ and Brennan J), 303 (Wilson J). Thomas v Mowbray (2007) 233 CLR 307, 409. Note that in the case of Pape v Commissioner of Taxation (2009) 238 CLR 1, some judges in the minority considered the external affairs power and concluded that the proffered G20 Declaration and IMF and OECD recommendations were not of such a nature as to enliven the external affairs power. In addition to the generality of the clauses in the documents, however, it should also be noted that the documents were not binding agreements: (2009) 238 CLR 1, 127–8 (Kiefel and Hayne JJ), 162–8 (Heydon J). International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) (‘ICESCR’). See the Solicitor-General’s opinion, SG No 68 of 2009, published as an appendix to National Human Rights Consultation Committee, National Human Rights Consultation Report (2009) 437. See, eg, reference to the right to strike in the ICESCR in Victora v Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416, 542–9.

30    INTERNATIONAL LAW IN AUSTRALIA

provision introduced. In many cases, legislation will be more detailed than the original obligation — for example, discrimination-related legislation that not only outlines grounds of discrimination and fields of operation, but also provides for a detailed method of dispute resolution, in contrast to the relative simplicity of arts 2 and 26 of the ICCPR. The High Court has also accepted that legislation may be regarded as implementing a treaty where it facilitates Australia accepting benefits under a treaty as well as implementing direct obligations.28 In order to fulfil this test of being ‘appropriate and adapted’ to implementing a treaty, it is not necessary that the legislation picks up all aspects of a treaty.29 Nor is it necessary that the legislation use language identical to that employed in the convention. Kirby J in DJL v The Central Authority, for instance, accepted the permissibility of re-expressing ‘the substance of the treaty in terms considered clearer or more in harmony with the Australian style of statutory expression’.30 However, the subject matter must be sufficiently linked to performance of an obligation. Where legislation involves partial implementation, it must not, because of its selectiveness, have an impact inconsistent with the treaty. To return to the discrimination law example, one could not, for instance, introduce legislation that prohibited racial discrimination against all groups, except one particular ethnic group. The High Court has also established that the external affairs power supports the passage of legislation in anticipation of treaty action.31 However, Mason CJ in R v Australian Industrial Court; Ex parte CLM Holdings Pty Ltd 32 added a caveat that the provisions should not come into operation before the treaty itself becomes binding on Australia. Use of the external affairs power in implementing treaties has not been without controversy, particularly with respect to the effect on the division of power as between the Commonwealth and the states.33 The Tasmanian Dam Case is a prime example, where there was concern that Commonwealth action to prevent the damming of the Franklin River in Tasmania as part of its implementation of the World Heritage Convention34 unduly impinged upon state powers. Sir Anthony Mason, the former Chief Justice of the High Court, extra-curially rejected the criticism that the external 28 29 30 31 32 33

34

Commonwealth v Tasmania (1983) 158 CLR 1, 130 (Mason J) (‘Tasmanian Dam Case’). Commonwealth v Tasmania (1983) 158 CLR 1, 234 (Brennan J) (‘Tasmanian Dam Case’). DJL v The Central Authority (2000) 201 CLR 226, 275. Richardson v Forestry Commission (1988) 164 CLR 261, 295. R v Australian Industrial Court; Ex parte CLM Holdings Pty Ltd (1977) 136 CLR 235, 243. For a historic perspective on this issue vis-à-vis the negotiation of the international human rights treaties, see Annemarie Devereux, Australia and the Birth of the International Bill of Human Rights (Federation Press, 2005) 152–60. Convention Concerning the Protection of the World Cultural and Natural Heritage, opened for signature 16 November 1972, 1037 UNTS 151 (entered into force 17 December 1975).

Ch 2: INTERNATIONAL LAW AND AUSTRALIAN LAW   31

affairs power leads to a trampling on state powers, recognising that while the drafters of the Constitution may not have foreseen the breadth of topics covered by treaties, they intended the Commonwealth to have the legislative power of implementation and it was necessary to interpret the power generously ‘so that Australia is fully equipped to play its part on the international stage’.35 When arguments have been put that particular treaties are invalid as a matter of international law and thus insufficient to found Commonwealth legislation, the High Court has been unwilling to look behind the ‘treaty veil’. In Horta v Commonwealth,36 the Court was asked to invalidate legislation implementing the controversial 1989 Timor Gap Treaty37 between Australia and Indonesia, on the basis that the treaty contravened the Timorese right of self-determination and that Indonesia’s occupation of Timor was contrary to international law. In a joint judgment, the High Court stated that: even if the Treaty were void or unlawful under international law or if Australia’s entry into or performance of the Treaty involved a breach of Australia’s obligations under international law, the Act and the Consequential Act would not thereby be deprived of their character as laws with respect to ‘External affairs’ for the purposes of s 51(xxix).38

IV  CUSTOMARY INTERNATIONAL LAW AND AUSTRALIAN LAW [2.100]  The relationship between customary international law and domestic law in Australia remains unsettled. Part of this difficulty stems from the inherently more complex nature of customary international law — including the general difficulty of identifying the rule of customary law, and proving the required state practice and opinio juris.39 Also, the rationale of parliamentary supremacy and the separation of powers, which is put forward as the main reason for the transformation approach in relation to treaties, does not apply

35

36 37

38 39

Quoted in Donald R Rothwell, ‘International Law and Legislative Power’ in Brian R Opeskin and Donald R Rothwell (eds), International Law and Australian Federalism (Melbourne University Press, 1997) 104, 123–4. Horta v Commonwealth (1994) 181 CLR 183. Treaty between Australia and the Republic of Indonesia on the Zone of Cooperation in an Area between the Indonesian Province of East Timor and Northern Australia, Australia–Indonesia, opened for signature 11 December 1989, [1991] ATS 9 (entered into force 9 February 1991). Horta v Commonwealth (1994) 181 CLR 183, 195. Gillian D Triggs, International Law: Contemporary Principles and Practices (LexisNexis Butterworths, 2nd ed, 2011) 184.

32    INTERNATIONAL LAW IN AUSTRALIA

in the same way to the relationship between custom and domestic law.40 While some uncertainty remains, the basic position in Australia is that the courts seem to have rejected any automatic incorporation of customary international law into domestic law (generally favouring a transformation approach), but customary international law may still have a significant influence, particularly in relation to the development of Australian common law.41

A  Historical Background [2.110]  In the United Kingdom, the courts have historically adopted the doctrine of incorporation regarding customary law. However, the approach of the courts has been somewhat unsettled. Lord Denning’s judgment in the 1977 Trendtex Trading case is one of the clearest expositions of the distinction between the incorporation and transformation approaches.42 The case concerned the issue of sovereign immunity and its status in English law. In discussing the place of international law in English law, Lord Denning explained: One school of thought holds to the doctrine of incorporation. It says that the rules of international law are incorporated into English law automatically and considered to be part of English law unless they are in conflict with an Act of Parliament. The other school of thought holds to the doctrine of transformation. It says that the rules of international law are not to be considered as part of English law except in so far as they have already been adopted and made part of our law by the decisions of the judges, or by Act of Parliament, or long established custom.43 Lord Denning’s view was that ‘the doctrine of incorporation is correct’, and that changes to international law can effect changes to the common law.44 A decade later, the decision of the Court of Appeal in the International Tin Council cases reinforced the view that British courts tended to favour incorporation. There, Nourse LJ stated that the ‘rivalry’ between the doctrines of incorporation and transformation had been resolved by Lord Denning’s decision in Trendtex Trading.45 However, the 1999 majority decision of the House of Lords in Pinochet [No 3] seemed to move away from an incorporation 40

41

42

43 44 45

See, eg, Douglas Guilfoyle, ‘Nulyarimma v Thompson: Is Genocide a Crime at Common Law in Australia?’ (2001) 29(1) Federal Law Review 1, 9, 11. Gillian D Triggs, International Law: Contemporary Principles and Practices (LexisNexis Butterworths, 2nd ed, 2011) 189–90; Hilary Charlesworth et al, ‘Deep Anxieties: Australia and the International Legal Order’ (2003) 25(4) Sydney Law Review 423, 446. Donald Rothwell et al, International Law: Cases and Materials with Australian Perspectives (Cambridge University Press, 2nd ed, 2014) 206. Trendtex Trading Corporation v Central Bank of Nigeria [1977] QB 529, 553. Trendtex Trading Corporation v Central Bank of Nigeria [1977] QB 529, 554. Maclaine Watson & Co v Department of Trade and Industry [1988] 3 All ER 257, 324.

Ch 2: INTERNATIONAL LAW AND AUSTRALIAN LAW   33

approach to a transformation approach, suggesting that the doctrine of incorporation is not fully settled in British law.46 It has been suggested that ‘[t]he position in England is not that custom forms part of the common law …, but that it is a source of English law that the courts may draw upon as required’.47 As Crawford observes, ‘the relationship of custom and the common law is more nuanced than either the doctrines of incorporation or transformation would suggest’.48

B  Extent of Australian Authority on Point [2.120]  Interpreting Australian jurisprudence regarding customary international law is difficult, because there have been relatively few cases on this issue, the issue has never been raised directly before the High Court, and it is difficult to draw a clear, consistent position out of the existing cases. Australian courts seem to have moved towards adoption of the transformation approach. The first case in which an Australian court appears to have considered the relationship between customary international law and domestic law was Polites v Commonwealth.49 This concerned the validity of regulations purporting to conscript aliens. These regulations were challenged by two Greek nationals, on the grounds that they violated custom, which generally prohibited conscription of aliens. The High Court upheld the regulations, and stated that when custom ‘has been established to the satisfaction of the courts [it] is recognised and acted upon as part of English municipal law so far as it is not inconsistent with the rules enacted by statutes or finally declared by the courts’.50 Williams J’s approach in this case has been described as reflecting a version of the incorporation approach.51 The major case discussing whether customary international law can be a source of domestic law in Australia is Chow Hung Ching v The King.52 The case concerned two Chinese nationals who had been convicted of criminal offences against a local resident on Manus Island, then part of the Australian 46

47

48

49 50

51

52

R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte [No 3] [1999] 2 All ER 97. James Crawford, Brownlie’s Principles of Public International Law (Oxford University Press, 8th ed, 2008) 68, citing J L Brierly, ‘International Law in England’ (1935) 51 Law Quarterly Review 24, 31; R v Jones [2007] 1 AC 136, 155 (Lord Bingham). James Crawford, Brownlie’s Principles of Public International Law (Oxford University Press, 8th ed, 2008) 68, citing J L Brierly, ‘International Law in England’ (1935) 51 Law Quarterly Review 24, 31. Polites v Commonwealth (1945) 70 CLR 60. Polites v Commonwealth (1945) 70 CLR 60, 80–1 (Williams J), referring to Chung Chi Cheung v The King [1939] AC 160. Andrew D Mitchell, ‘Genocide, Human Rights Implementation and the Relationship between International and Domestic Law: Nulyarimma v Thompson’ (2000) 24(1) Melbourne University Law Review 15, 30. Chow Hung Ching v The King (1948) 77 CLR 449.

34    INTERNATIONAL LAW IN AUSTRALIA

Trust Territory of New Guinea. The issue for the High Court was whether the individuals enjoyed sovereign immunities under customary international law, which affords immunity to members of visiting armed forces. Dixon J’s judgment is regarded by the High Court as the foundation of the Australian approach to custom.53 Dixon J observed that the idea that international law is automatically incorporated in national law is ‘without foundation’.54 He proposed, however, that, while not a part of domestic law, international law is one of the sources of national law.55 Latham CJ stated that ‘[i]nternational law is not as such part of the law of Australia’,56 but that ‘a universally recognized principle of international law would be applied by our courts’57 — a more ambiguous statement.58 The difficulty here is in interpreting the Court’s references to ‘international law’ — that is, whether it was referring to treaty law, custom or both. Although three of the five judges found that Australian common law could contain customary international law rules, as Guilfoyle has noted ‘the question was whether this occurred automatically through a version of the incorporation approach (as Latham CJ and Starke J appeared to hold), or only when a judicial act created a new domestic rule’ relying on customary international law as the ‘source’ (as Dixon J appeared to find).59 These two early cases therefore left the question of the relationship between custom and domestic law unsettled.60 The issue of custom arose again in 1999, this time concerning the prohibition on genocide, in the Federal Court case of Nulyarimma v Thompson.61 The issue was whether the customary prohibition of genocide was automatically part of Australian law, in the absence of implementing legislation. The Court accepted that the prohibition was a jus cogens norm, and that the customary obligations regarding genocide exist independently62 of the Convention on the 53

54 55

56

57

58

59

60

61 62

I A Shearer, ‘The Relationship between International Law and Domestic Law’ in Brian R Opeskin and Donald R Rothwell (eds), International Law and Australian Federalism (Melbourne University Press, 1997) 34, 47–51. Chow Hung Ching v The King (1948) 77 CLR 449, 477. Chow Hung Ching v The King (1948) 77 CLR 449, citing J L Brierly, ‘International Law in England’ (1935) 51 Law Quarterly Review 24, and William S Holdsworth, ‘The Relation of English Law to International Law’ in A L Goodhart and H G Hanbury (eds), Essays in Law and History (Clarendon Press, 1946) 267. Chow Hung Ching v The King (1948) 77 CLR 449, 462, citing Chung Chi Cheung v The King [1939] AC 160 and Polites v Commmonwealth (1945) 70 CLR 60. Chow Hung Ching v The King (1948) 77 CLR 449, 462, citing West Rand Central Gold Mining Company Ltd v The King (1905) 2 KB 391, 406, 407. Gillian D Triggs, International Law: Contemporary Principles and Practices (LexisNexis Butterworths, 2nd ed, 2011) 189. Douglas Guilfoyle, ‘Nulyarimma v Thompson: Is Genocide a Crime at Common Law in Australia?’ (2001) 29(1) Federal Law Review 1, 17. See also Re Jane (1988) 94 FLR 1, 17, where Nicolson CJ rejected the incorporation doctrine. Nulyarimma v Thompson (1999) 96 FCR 153. Nulyarimma v Thompson (1999) 96 FCR 153, 161 (Wilcox J), 166 (Whitlam J), 176 (Merkel J).

Ch 2: INTERNATIONAL LAW AND AUSTRALIAN LAW   35

Prevention and Punishment of the Crime of Genocide.63 However, the majority of the Court found that without implementing legislation, the convention could have no effect on national law, and genocide was not yet recognised as a crime under Australian law. This case demonstrated that even in relation to a customary rule with jus cogens status, courts remain reluctant to recognise automatic incorporation. Wilcox J’s judgment endorsed the transformation approach to treaty law,64 but he indicated that ‘it is difficult to make a general statement covering all the diverse rules of international customary law’65 and stated that ‘domestic courts face a policy issue in deciding whether to recognise and enforce a rule of international law’.66 He further stated that ‘[i]f there is a policy issue, I have no doubt it should be resolved in a criminal case by declining, in the absence of legislation, to enforce the international norm’.67 It has been suggested that Wilcox J thus ‘avoided the notion of “automaticity” of custom’, and that his reference to it being a policy judgment leaves the issue on ‘an unsatisfactory, though flexible basis’.68 The dissenting judge, Merkel J, took a different view, and found that genocide was part of the common law of Australia.69 He was the only judge who considered in detail the general relationship between custom and domestic law, instead of discussing the more particular issue of the relationship between customary international criminal law and domestic law.70 He preferred the ‘source view’ or ‘common law adoption approach’ in describing Australia’s version of the transformation doctrine with regard to custom, and held that this approach ‘holds sway over the incorporation or legislative adoption approaches’.71 Merkel J proposed six steps or criteria that a court should consider to determine whether a customary rule should be adopted as part of the common law.72 It has been argued that ‘Merkel J’s formulation seems consistent with the incorporation approach, because judges have no discretion as to whether the rule of customary international law will become part of domestic law’.73 63

64 65 66 67 68

69 70

71 72 73

Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature 9 December 1948, 78 UNTS 277 (entered into force 12 January 1951). Nulyarimma v Thompson (1999) 96 FCR 153, 162. Nulyarimma v Thompson (1999) 96 FCR 153, 164. Nulyarimma v Thompson (1999) 96 FCR 153, 164. Nulyarimma v Thompson (1999) 96 FCR 153, 164. Gillian D Triggs, International Law: Contemporary Principles and Practices (LexisNexis Butterworths, 2nd ed, 2011) 191. Nulyarimma v Thompson (1999) 96 FCR 153, 205. Andrew D Mitchell, ‘Genocide, Human Rights Implementation and the Relationship between International and Domestic Law: Nulyarimma v Thompson’ (2000) 24(1) Melbourne University Law Review 15, 31. Nulyarimma v Thompson (1999) 96 FCR 153, 189. Nulyarimma v Thompson (1999) 96 FCR 153, 190–1. Andrew D Mitchell, ‘Genocide, Human Rights Implementation and the Relationship between International and Domestic Law: Nulyarimma v Thompson’ (2000) 24(1) Melbourne University Law Review 15, 32. See Nulyarimma v Thompson (1999) 96 FCR 153, 203 (Merkel J).

36    INTERNATIONAL LAW IN AUSTRALIA

The Nulyarimma case remains the most expansive current judgment of the Australian courts on the status of custom in Australian law.74 Although the majority decision seemed to have adopted more of a transformation approach, it is difficult to know the extent to which this decision is applicable more broadly to customary international law. First, the judges mostly did not specify which particular approach they were advocating, and second the majority decision may largely be attributable to the specific criminal context of the case. It may be, therefore, that if the courts were called upon to decide this question in relation to non-criminal matters, they might reach a different conclusion. Given that the Nulyarimma matter did not proceed to the High Court and that subsequent case law has continued to reflect inconsistent approaches,75 the matter of how customary international law operates in Australian law remains open.

V  INDIRECT EFFECT OF INTERNATIONAL LAW [2.130]  Apart from the direct effect that treaties may have on domestic law through legislative implementation, international law has important indirect impacts on domestic law. Four major types of indirect effect are discussed below.

A  Influencing Development of the Common Law [2.140]  Australian courts may use international law as a source for developing the common law. In the 1970s, the High Court’s Justice Murphy, in particular, had recourse to international human rights law in supporting his interpretation of the common law, often in a dissenting environment. ­ ewspapers Ltd, for instance, Murphy J drew upon the In Dugan v Mirror N 74

75

Donald Rothwell et al, International Law: Cases and Materials with Australian Perspectives (Cambridge University Press, 2nd ed, 2014) 224 n 1. The majority view in Nulyarimma was applied in Thorpe v Kennett [1999] VSC 442 (15 November 1999) [43]–[46] (Warren J) and followed in Sumner v United Kingdom [2000] SASC 91 (13 April 2000) [32] (Nyland J). The status of custom was referred to in the 2012 Zentai case; however, the High Court did not resolve the issue. French CJ commented that the rules of treaty interpretation in arts 31 and 32 of the Vienna Convention on the Law of Treaties ‘have been said to represent customary international law’, but stated that ‘[w]hether or not they are or have been adopted as part of the common law of Australia, those rules are generally consistent with the common law’, and simply cited Chow Hung Ching v The King (1948) 77 CLR 449 as authority for ‘the relationship between customary international law and the common law’: Minister for Home Affairs of the Commonwealth v Zentai (2012) 246 CLR 213, 223 (French CJ); Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1115 UNTS 331 (entered into force 27 January 1980). Hilary Charlesworth et al, ‘Deep Anxieties: Australia and the International Legal Order’ (2003) 25(4) Sydney Law Review 423, 457, contrasting the views of Callinan J in Western Australia v Ward (2002) 213 CLR 1, 389 with those of Kirby J in Dow Jones v Gutnik (2002) 210 CLR 575, 626.

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ICCPR’s articulation of equality before the law and the right of access to tribunals in ­ formulating his dissent in a case concerning whether the common law permitted a prisoner sentenced to death (whose sentence was commuted to life imprisonment) to maintain an action for a civil wrong.76 Similarly, in McInnis v R,77 Murphy J referred to provisions of the ICCPR dealing with a fair trial in his dissent in a case concerning whether a person charged with a serious criminal offence had the right to legal assistance at his trial (a matter which arose again in Dietrich, discussed below).78 The high water mark for the use of international law to influence the development of the common law has of course been the Mabo case.79 The High Court was asked to reconsider the common law doctrine of terra nullius — that is, the doctrine that Australia should be regarded as unoccupied at the time of European settlement. In 1992, the High Court was prepared to question previous orthodoxies and recognise the pre-existing nature of Aboriginal communities’ law and connection with their land. In what was to become the leading judgment of the case, Brennan J, as he then was, used international human rights law as part of his reasoning for departing from the previous orthodoxy. In particular, he referred to international law’s prohibition on racial discrimination in overturning the terra nullius doctrine, explaining: The opening up of the international remedies to individuals pursuant to Australia’s accession to the Optional Protocol to the Inter­ national Covenant on Civil and Political Rights brings to bear on the common law the powerful influence of the Covenant and the inter­ national standards it imports. The common law does not necessarily conform with international law, but inter­national law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights.80 There was a suggestion made in a subsequent case that the influence of treaties might be limited to cases where the common law was uncertain or ambiguous, with less ambitious usage of international law to ‘develop’ the common law. In Dietrich v R,81 the applicant’s counsel argued that art 14(3) of the ICCPR should be used to develop a common law right for an accused to be provided with legal aid in a serious criminal trial. The majority allowed the appeal against the original trial (in which the accused was unrepresented), 76 77 78

79 80 81

Dugan v Mirror Newspapers Ltd (1978) 142 CLR 583. McInnis v R (1979) 143 CLR 575. Kirby J in the Court of Appeal of New South Wales was also enthusiastic in his usage of international human rights law in this context: see Michael Kirby, ‘The Australian Use of International Human Rights Norms: From Bangalore to Balliol — A View from the Antipodes’ (1993) 16(2) University of New South Wales Law Journal 363. Mabo v Queensland [No 2] (1992) 175 CLR 1. Mabo v Queensland [No 2] (1992) 175 CLR 1, 42. Dietrich v R (1992) 177 CLR 292.

38    INTERNATIONAL LAW IN AUSTRALIA

though with little reliance on international law. Mason CJ and McHugh J restated the position with respect to the separation of Australian law and treaty law, while acknowledging that English courts may have resorted to international obligations in order to help resolve uncertainty or ambiguity in the common law. In their reasoning, they showed some willingness to assume ‘without deciding, that Australian courts should adopt a similar, commonsense approach’.82 However, in the case at hand, they considered that they were not being asked to ‘resolve uncertainty or ambiguity in domestic law but to declare a right which has hitherto never been recognized should now be taken to exist’.83 Nevertheless, they concluded that the common law required representation to be provided in cases where it is essential to a fair trial. Toohey J noted UK authorities that permitted recourse to international instruments where there was a lacuna in domestic law.84 Brennan J (one of the dissenters) maintained that art 14(3) was a legitimate influence on the development of the common law but considered that the Court could not compel legal aid, seeing this as a matter for the legislature and executive.85 By the case of Environment Protection Authority v Caltex Refining Co Pty Ltd,86 Mason CJ (in a joint judgment with Toohey J) adopted the language of international law providing ‘an important influence on the development of Australian common law, particularly in relation to human rights’.87 The formulation has been repeated in later decisions but, with the exception of Teoh (discussed separately later), has not led to as radical shifts in the common law as seen in the Mabo decision. Indeed, in Western Australia v Commonwealth (a native title decision), the majority (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ) stated: ‘The common law may, it is true, find in international law concepts or values which may advantageously be used in the development of the common law, but the common law of native title is not developed in order to satisfy the obligations of a treaty’.88 Even within the Teoh decision, while the Court accepted international treaty law as a legitimate guide to developing the common law (filling a gap, or overriding earlier precedent), Mason CJ and Deane J issued a note of caution in this respect. They counselled that courts should act with due circumspection where Parliament has not seen fit to incorporate provisions of a treaty into domestic law: Judicial development of the common law must not be seen as a back door means of importing an unincorporated convention into Australian law. A cautious approach to the development of the common law by 82 83 84 85 86 87 88

Dietrich v R (1992) 177 CLR 292, 306. Dietrich v R (1992) 177 CLR 292, 306. Dietrich v R (1992) 177 CLR 292, 360. Dietrich v R (1992) 177 CLR 292, 321. Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477. Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477, 499. Western Australia v Commonwealth (1995) 183 CLR 373, 486.

Ch 2: INTERNATIONAL LAW AND AUSTRALIAN LAW   39

reference to international conventions would be consistent with the approach which the courts have hitherto adopted to the development of the common law by reference to statutory policy and statutory materials. Much will depend on the nature of the relevant provision, the extent to which it has been accepted by the international community, the purpose which it is intended to serve and its relationship to the existing principles of our domestic law.89

B  Informing Presumptions of Statutory Interpretation [2.150]  One of the accepted canons of statutory construction in Australia is the presumption that Parliament intends to give effect to Australia’s obligations under international law.90 The precise parameters of the presumption have been stated differently in different cases, leading one commentator to describe the High Court’s jurisprudence as ‘muddied’ though improving.91 The earliest statement of this presumption was in Jumbunna Coal Mine NL v Victorian Coal Miners’ Association, in which O’Connor J stated that ‘every Statute is to be so interpreted and applied as far as its language admits as not to be inconsistent with the comity of nations or with the established rules of international law’.92 In the case of Teoh, mentioned above, the High Court viewed this presumption as operating in instances where the statute or subordinate legislation is ambiguous, at least in cases ‘in which the legislation is enacted after, or in contemplation of, entry into, or ratification of, the relevant international instrument’.93 The Court suggested that there were strong reasons for rejecting a ‘narrow conception of ambiguity’.94 In its view: If the language of the legislation is susceptible of a construction which is consistent with the terms of the international instrument and the obligations which it imposes on Australia, then that construction should prevail.95 89

90

91

92 93

94 95

Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 288 (Mason CJ and Deane J). In Polites, it was accepted that a statute is to be interpreted and applied, so far as its language permits, so that it is in conformity, and not in conflict, with established rules of international law: Polites v Commonwealth (1945) 70 CLR 60, 68–9 (Latham CJ). K Walker, ‘Treaties and the Internationalisation of Australian Law’ in Cheryl Saunders (ed), Courts of Final Jurisdiction (Federation Press, 1996) 211. Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309, 363. Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 287. See too Gleeson CJ in Coleman v Power (2004) 220 CLR 1, 28 and Dawson J in Kruger v Commonwealth (1997) 190 CLR 1, 71. Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 287. Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 287–8. See also Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, 33 [100]; Kartinyeri v Commonwealth (1998) 195 CLR 337, 384 (Gummow and Hayne JJ); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 492 n 64 (Gleeson CJ), cited by Kiefel J in Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144, 234.

40    INTERNATIONAL LAW IN AUSTRALIA

The usage of this presumption, however, remains uneven. In the case of Western Australia v Ward, for instance, the Court was inter alia considering whether or not under the Native Title Act 1993 (Cth), native title encompassed the right to protect cultural knowledge of the area and the right to ‘speak for the land’. The majority decided that it did not. Despite hearing submissions in relation to international human rights law,96 no reference was made to these matters in the majority’s judgment. Kirby J, in his dissent, concluded that terms of the Native Title Act were ambiguous and that cultural knowledge was inherently related to the land according to Aboriginal beliefs. He felt supported in this conclusion by Australia’s ­ratification of international human rights instruments, including the ICCPR — also, interestingly, citing provisions of a non-binding instrument, the then draft United Nations Declaration on the Rights of Indigenous Peoples.97 Differences of approach have also been starkly apparent in the series of cases brought in relation to the construction of the Migration Act 1958 (Cth). In Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri,98 the full Federal Court took into consideration provisions of international human rights law in reaching a conclusion that the Migration Act should be read as subject to an implied limitation, such that it did not authorise the indefinite detention of a person in circumstances where it was not reasonably foreseeable that they could be removed to another country. By contrast, when this question arose before the High Court in Al-Kateb v Godwin,99 the majority of the High Court found there to be no ambiguity in the provisions of the Migration Act and that the Act mandated ongoing detention. McHugh J stated that the words of the sections were ‘too clear to read them as being subject to a purposive limitation or an intention not to affect fundamental rights’.100 In the more recent case of CPCF v Minister for Immigration and Border Protection, the Court rejected an argument that powers given to officials under the Maritime Powers Act 2013 (Cth) should be read as constrained by Australia’s non-refoulement obligations under international law.101 96

97

98 99 100

101

See Human Rights and Equal Opportunity Commission Submissions outlined in Western Australia v Ward (2002) 213 CLR 1, 29–30. Western Australia v Ward (2002) 213 CLR 1, 248. See Sub-Commission on Prevention of Discrimination and Protection of Minorities, Draft United Nations Declaration on the Rights of Indigenous Peoples, UN Doc E/CN.4/Sub.2/1994/ (26 August 1994). Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54. Al-Kateb v Godwin (2004) 219 CLR 562. Al-Kateb v Godwin (2004) 219 CLR 562, 581. See too Plaintiff M47/2012 v Director General of Security (2012) 251 CLR 1, in which the Court was invited to overrule Al-Kateb. A majority found it unnecessary to do so in this case, though Gummow and Bell JJ (at 61, 68 and 190–4 respectively) indicated their support for overruling Al-Kateb, while Heydon J wrote a lengthy support of the decision (130–44). CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514: see, eg, 528 [11] (French CJ), 643–4 [462] (Keane J).

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In addition to the common law rule of statutory interpretation, the Acts Interpretation Act 1901 (Cth) also contains specific reference to the use of international law as extrinsic material. Sections 15AB(1) and (2) of that Act authorises the use of ‘any treaty or other international agreement that is referred to in the Act’ in order to clarify a provision of the Act that is ‘ambiguous or obscure’, or that on its face is ‘manifestly absurd or is unreasonable’. The treaty may also be used to confirm ‘the ordinary meaning’ of the Act in the light of its context and its object and purpose. An example of the High Court’s usage of international law (in circumstances where the treaty is referred to in the legislation) is its decision in Plaintiff M70, in which the Court referred to the fact that the Migration Act was intended to implement the Refugee Convention102 and its protocol in giving meaning to particular sections of the Act.103 There are some indications that it is sufficient that the treaties have been referred to in the second reading speech (see the Magno case per Gummow J,104 and the ICI Australia case).105 The High Court has traditionally held that where courts are interpreting domestic statutes whose terms are drawn from international treaties, they should apply the rules of interpretation applicable to treaties (that is, arts 31–33 of the Vienna Convention on the Law of Treaties (‘VCLT’)),106 rather than the usual norms of statutory interpretation.107 However, a majority of judges in Zentai cast doubt upon this approach, with Gummow, Crennan, Kiefel and Bell JJ applying ‘ordinary principles of statutory interpretation’ to a regulation, notwithstanding the fact that its text reproduced provisions of a bilateral extradition treaty.108 This approach was endorsed by several members of the Court in 102

103

104 105 106

107

108

Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) (‘Refugee Convention’). See the joint judgment of Gummow, Hayne, Crennan and Bell JJ in Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144, 190, 192. The Court has frequently explained that the Migration Act does not translate into Australian domestic law all the provisions of the Refugee Convention, instead importing only parts: see most recently in the case of Plaintiff M47/2012 v Director-General of Security (2012) 251 CLR 1, 24 (French CJ). Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298, 305. ICI Australia Operations Pty Ltd v Fraser (1992) 34 FCR 564, 569–70. Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1115 UNTS 331 (entered into force 27 January 1980). Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225; see, in particular, 240 (Dawson J), 254 (McHugh J). See Minister for Home Affairs of the Commonwealth v Zentai (2012) 246 CLR 213, 238 (Gummow, Crennan, Kiefel and Bell JJ). Their Honours cited two cases supporting this proposal (Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 and Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27). However, both cases concerned the interpretation of provisions that were not drawn from a treaty. French CJ proceeded on the basis that the Vienna Convention rules should be applied to interpreting the provision, but concluded that any subsequent state practice establishing the parties’ agreement as to their intention could not postdate the enactment of the domestic provision: at 230.

42    INTERNATIONAL LAW IN AUSTRALIA

Maloney v The Queen (while recognising that one of these ‘ordinary principles’ is the presumption of consistency with international law). Other judges, however, continued to subscribe to the use of international rules of treaty interpretation in such cases.109

C  Interpretation of the Constitution [2.160]  To date, the readiness to use international law in statutory interpretation has not extended to interpretation of Australia’s Constitution. While the Constitution was originally passed as an ordinary law of the UK Parliament, this ‘fundamental law’ of Australia is regarded as being sui generis, and not attracting the ordinary rules of statutory interpretation. Only one justice of the High Court, Kirby J (now retired), has endorsed and used international law as a source for constitutional interpretation. Kirby J, a keen advocate of the Bangalore Principles,110 considered that where an uncertainty or ambiguity arose in relation to the interpretation of the constitutional provision, judges should prefer an interpretation consistent with international law (in particular, international human rights law) rather than one that departs from such standards. In the case of Newcrest Mining (WA) Ltd v Commonwealth, for instance, Kirby J, drawing inspiration from Brennan J’s statement in Mabo, stated: To the full extent that its text permits, Australia’s Constitution, as the fundamental law of government in this country, accommodates itself to international law, including insofar as that law expresses basic rights. The reason for this is that the Constitution not only speaks to the people of Australia who made it and accept it for their governance. 109

110

Maloney v The Queen (2013) 252 CLR 168, 198–9 (Hayne J), 221–2 (Crennan J), 234–5 (Kiefel J), adopting the ‘ordinary rules of statutory construction’ view, quoting Minister for Home Affairs of the Commonwealth v Zentai (2012) 246 CLR 213, while French CJ (181) and Bell J (255–6) followed the approach of Brennan CJ in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 in using rules applying to the interpretation of treaties, and Gageler J (292) implicitly accepted a similar approach. One of the issues in this case regarded the extent to which interpretation of the Racial Discrimination Act 1975 (Cth) should be affected by extraneous materials such as Committee on the Elimination of Racial Discrimination (‘CERD’) recommendations or ‘soft law’ human rights instruments relied upon to show a shift in the understanding of ‘special measures’ under the CERD to require either free, prior and informed consent or consultation with the affected community. A majority of the Court rejected this argument, concerned that it would involve rewriting the incorporated text. Hayne J took a particularly narrow approach, endorsing only the use of extrinsic material in existence at the time of the Act’s enactment (198–9 [61]), with French CJ also rejecting the use of subsequent practices to alter the terms of the Act (181–2 [15]). Gageler J, however, considered it important for consistency with contemporary international understandings of the CERD (at 293). The Bangalore Principles are published in (1988) 14 Commonwealth Law Bulletin 1196. See also Michael Kirby, ‘The Australian Use of International Human Rights Norms: From Bangalore to Balliol — A View from the Antipodes’ (1993) 16(2) University of New South Wales Law Journal 363.

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It also speaks to the international community as the basic law of the Australian nation which is a member of that community.111 Kirby J proceeded to apply this ‘interpretive principle’ in his dissent in Kartinyeri v Commonwealth, in which he had recourse to international law’s prohibition of racial discrimination in deciding that the ‘races power’ did not extend to making laws to the detriment of any race.112 While accepting that if the constitutional provision was clear, international law could not be used to alter its interpretation, in the case of ambiguity, favouring the interpretation consistent with international human rights was legitimate.113 It would not be an exaggeration to say that Kirby J remains ‘in splendid isolation’ in relation to this perspective. In the case of AMS v AIF, Gleeson CJ, McHugh and Gummow JJ explicitly rejected the construction of the Constitution according to any implication derived from international law.114 As Hovell and Williams have noted, while most judges have moved to the approach of taking into account political, social and economic developments since 1900 in interpreting the Constitution, there remains a ‘degree of anxiety, and even hostility [towards the use of international law], that extends beyond allegiance to a particular interpretive theory’.115 The most vociferous opponent of the use of international law in the context of constitutional interpretation has been McHugh J. In Al-Kateb, McHugh J described the use of international law in this arena as ‘heretical’116 and set out at length his objections. These included that the use of international law to influence construction was inconsistent with the means of amending the Constitution via public referendum (s 128);117 that international law rules are qualitatively different from taking into account political, social and economic developments; that international law tends to be vague; and that international law requires special expertise not readily to be assumed to be in the minds of those making laws, or judges interpreting law.118 Kirby J showed little evidence of being subdued by McHugh J’s objections, countering: [T]he complete isolation of constitutional law from the dynamic impact of international law is neither possible nor desirable today … 111 112 113 114 115

116 117 118

Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513, 657–8. Kartinyeri v Commonwealth (1998) 195 CLR 337, 417–18. Kartinyeri v Commonwealth (1998) 195 CLR 337, 418. AMS v AIF (1999) 199 CLR 160, 180. Devika Hovell and George Williams, ‘A Tale of Two Systems: The Use of International Law in Constitutional Interpretation in Australia and South Africa’ (2005) 29 Melbourne University Law Review 95, 97, citing Hilary Charlesworth et al, ‘Deep Anxieties: Australia and the International Legal Order’ (2003) 25(4) Sydney Law Review 423, 446–63. Al-Kateb v Godwin (2004) 219 CLR 562, 589. Al-Kateb v Godwin (2004) 219 CLR 562, 593. Al-Kateb v Godwin (2004) 219 CLR 562, 591–5.

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[W]ith every respect to those of a contrary view, opinions that seek to cut off contemporary Australian law (including constitutional law) from the persuasive force of international law are doomed to fail.119 Following Kirby J’s retirement, no member of the Court has taken up international law in this arena with such enthusiasm, leading the SolicitorGeneral to put forward what he has described as a ‘modest position’: that international law might be a permissible, though not mandatory, source for a court to take into account in elucidating the meaning of constitutional provisions.120

D Affecting Exercise of Administrative Power and Executive Discretion [2.170]  A fourth way in which international law may affect domestic Australian law indirectly is in relation to the exercise of administrative power. In a somewhat controversial development, the High Court accepted that if a decision-maker was proposing to make a decision contrary to international law, the applicant would have a right to be heard in relation to the matter. This purported right was first enunciated in the Teoh case: Mr Teoh was a Malaysian citizen who had been sentenced to a period of imprisonment in Western Australia for drug trafficking. He had several young Australian children, who were not able to be cared for by their mother, an Australian citizen. An order was made under the Migration Act to deport him for not fulfilling the requirement of good character. In issue was the relevance of the UN Convention on the Rights of the Child,121 which requires that, where decisions are made that affect children, the interests of the children must be a primary consideration. The decision-maker, in deciding to deport Teoh, had not made the best interests of the children a primary consideration. A majority of the High Court found that entry into a treaty by the Australian government generated a ‘legitimate expectation’ that administrative officials will act in conformity with treaty obligations accepted by Australia (even where the treaty obligations have not been incorporated into domestic law), absent any contrary legislative or executive indication.122 Where a decision-maker was proposing to act inconsistently with international obligations, the person affected was entitled to be given notice and an adequate opportunity to argue against this course. 119 120

121

122

Al-Kateb v Godwin (2004) 219 CLR 562, 624, 629. Justin Gleeson, ‘The Australian Constitution and International Law’ (2015) 40(3) Australian Bar Review 149, 171. Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990). Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 291 (Mason CJ and Deane J).

Ch 2: INTERNATIONAL LAW AND AUSTRALIAN LAW   45

The Teoh case and its doctrine of legitimate expectations have given rise to much controversy and discussion.123 In the years immediately following Teoh, successive Australian governments issued executive statements to attempt to override the decision,124 expressing concern about ‘the inevitable uncertainty flowing from the High Court decision’.125 A 1995 statement asserted that ‘entering into an international treaty is not reason for raising any expectation that government decision-makers will act in accordance with the treaty if the relevant provisions of that treaty have not been enacted into domestic Australian law’.126 Doubts have been cast, however, on the effect of such executive statements — for example, whether they could operative retrospectively. The High Court has never ruled on the matter. In addition, successive governments (both the Commonwealth and one state government (South Australia)) introduced Bills to restrict the impact of the Teoh decision, but all lapsed and were not passed. There are some indications that a future High Court would not necessarily follow the same approach as that taken in Teoh. In Re Minister for Immigration and Multicultural Affairs; Ex parte Lam, McHugh and Gummow JJ stated that ‘[i]f Teoh is to have continued significance at a general level for the principles which inform the relationship between international obligations and the domestic constitutional structure, then further attention will be required to the basis upon which Teoh rests’.127 In Plaintiff S10/2011 v Minister for Immigration and Citizenship, Gummow, Hayne, Crennan and Bell JJ said that the phrase ‘legitimate expectation’ itself ‘either adds nothing or poses more questions than it answers’, describing it as ‘an unfortunate expression which should be disregarded’.128 Therefore, while the Teoh decision still stands (as it has not been formally overruled), its status remains open to future challenge.

123

124

125

126

127 128

See, eg, Wendy Lacey, Implementing Human Rights Norms: Judicial Discretion and Use of Unincorporated Conventions (Presidian Legal Publications, 2008). Joint Statement by the Minister for Foreign Affairs, Senator Gareth Evans, and the Attorney-General, Michael Lavarch, ‘International Treaties and the High Court Decision in Teoh’ (10 May 1995); Joint Statement by the Minister for Foreign Affairs, Mr Downer, and the then Attorney-General, Mr Williams, Commonwealth of Australia Gazette, No S 69 (26 February 1997). Joint Statement by the Minister for Foreign Affairs, Senator Gareth Evans, and the Attorney-General, Michael Lavarch, ‘International Treaties and the High Court Decision in Teoh’ (10 May 1995). Joint Statement by the Minister for Foreign Affairs, Senator Gareth Evans, and the Attorney-General, Michael Lavarch, ‘International Treaties and the High Court Decision in Teoh’ (10 May 1995). Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1, 32. Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636, 658.

46    INTERNATIONAL LAW IN AUSTRALIA

VI  CONCLUSIONS, AND LOOKING TO THE FUTURE [2.180]  This chapter has discussed how international and domestic law interact, and what the rules and principles are for understanding their relationship in Australia. As practice and case law develop further, this complex relationship — which is really a series of relationships — will undoubtedly evolve further. The approach of Australian courts to international law remains somewhat uneven. While courts have been united in the fundamental rule that inter­national law does not form a ‘part’ of Australian law, they have been willing to resort to international law as an ‘influence’ on domestic law — particularly in the fields of statutory interpretation and development of the common law. International human rights law in particular appears to have been a stimulus to seeking greater harmonisation between the international and domestic levels. At the same time, international law is far from being universally employed. There remains an under-utilisation of international law — for example, in arguments based on customary international law for statutory interpretation or development of the common law. Courts appear more comfortable with the usage of treaty law but, even in this field, there is significant patchiness: in relation to the presumption of statutory interpretation in favour of compliance with international law, for instance, courts and advocates more commonly cite certain treaties over others (for example, the ICCPR is well-cited, but the ICESCR is cited very rarely). In part, this may relate to a lack of universal knowledge of the provisions of international law among legal practitioners (with international law not being compulsory at all Australian law schools), but it may also indicate attitudes of the bench as to the major provisions of international law.129 Kirby J has also observed: So far as domestic application of international law by the judges [in Australia] is concerned, Professor Hilary Charlesworth … has described the highest court [High Court] as being ‘very cautious in its embrace of international law; it has kept its gloves and hat on at all times’.130 If, occasionally, I have lifted my hat to pay passing respect to international law it is because my experience over twenty years has brought me into close familiarity with the operations of international law and international institutions …131 129

130

131

See, for example, Michael Kirby, ‘The Australian Use of International Human Rights Norms: From Bangalore to Balliol — A View from the Antipodes’ (1993) 16(2) University of New South Wales Law Journal 363, 364. Hilary Charlesworth, ‘Dangerous Liaisons: Globalisation and Australian Public Law’ (1998) 20 Adelaide Law Review 57, 66. Michael Kirby, ‘Globalising the Rule of Law? Global Challenges to the Traditional Ideal of the Rule of Law’ (Paper presented at the Vice-Chancellor’s Symposium, Griffith University Centre for Ethics, Law, Justice and Governance, 18 August 2000) 14 (footnote in original) .

Ch 2: INTERNATIONAL LAW AND AUSTRALIAN LAW   47

The cautiousness of Australian courts may also be, as Hilary Charlesworth has suggested, because the use of international norms ‘unsettles and challenges many of the rigidities and limitations of Australian law’.132 Gillian Triggs has suggested that with the growing interdependence of international and domestic law and the influence of international norms on domestic law, a monist view might be preferable.133 Change of this nature is, however, likely to take a long time due to the long tradition of a transfor­ mation approach in Australia. Instead, what might be anticipated is a greater ‘indirect’ impact of international law through the means discussed in this chapter. It may also be that certain areas of international law are picked up more quickly than others, with fields such as international human rights law and international environmental law lending themselves more easily to greater domestic recognition. In the short to medium term, there might also be an increased interest in what might be termed ‘comparative international law’ — that is, the way in which other jurisdictions have implemented and interpreted international law. There is a significant and growing interest in international law within Australian law schools, and an increased and more pervasive awareness and understanding of international law across the legal profession and within Australian courts. It is hoped that this much closer familiarity with international law on the part of Australian educational institutions, the Australian legal system and the government will mean that the question of the relationships between domestic and international law will grow in importance for Australian legal practitioners in years to come.

132

133

Hilary Charlesworth, ‘Dangerous Liaisons: Globalisation and Australian Public Law’ (1998) 20 Adelaide Law Review 57, 57. Gillian D Triggs, International Law: Contemporary Principles and Practices (LexisNexis Butterworths, 2nd ed, 2011) 155.

3 Australian Treaty Practice David Mason, Wendy Lacey and Elizabeth Toohey

I INTRODUCTION Australia’s experience of treaty-making has been fraught with uncertainty. At the outset its capacity to enter independently into treaty relations has been circumscribed by the hesitant evolution of Dominion status within the British Empire. The Australian Constitution, too, has provided little guidance on the exercise of executive and legislative powers in respect of treaty-making, particularly insofar as it effects relations between the federal and State governments.1 [3.10]  Writing in the second edition of International Law in Australia, K W Ryan could not have anticipated that the constitutional and political constraints of which he wrote in 1984 would be largely resolved within 12 years, either through judicial exposition of s 51(xxix) or the adoption of parliamentary reforms by the federal government in 1996. While the constitutional context in which the executive’s power to enter into treaties and the ways in which the legislature’s power to implement treaties are exercised may have changed, Ryan’s comments on the significance of the growth and evolution of treaties remain apposite for today. Treaties and instruments of less than treaty status form the principal means through which new obligations are created between states and between states and international organisations. Since 1984, Australian treaty practice has evolved in a number of important ways. The role of the states and territories in treaty negotiation is now formally outlined, federal Parliament plays a significant role in the consideration of proposed treaty actions through a joint standing committee, and transparency 1

N D Campbell, ‘Australian Treaty Practice and Procedure’ in K W Ryan (ed), International Law in Australia (Law Book Co, 2nd ed, 1984) 53. 49

50    INTERNATIONAL LAW IN AUSTRALIA

and accountability measures have been implemented through a raft of reforms. Whether the beneficial effects of those reforms are felt in form rather than substance, the fact is that treaty practice in Australia has considerably improved since 1984. In constitutional terms, the question is now not whether the federal executive or legislature has the power to enter into or implement treaties, but rather what the Constitution demands from the exercise of those powers. While the emerging case law indicates a renewed interest in constitutionalism and the rule of law, particularly in the judicial review of federal executive action,2 it remains to be seen how those legal developments will impact on treaty practice and foreign policy more generally.

II  TREATIES AND THE CONSTITUTION [3.20]  The power to enter into treaties is considered to be conferred upon the federal executive under s 61 of the Australian Constitution.3 While, textually, s 61 is less than illuminating on the nature and extent of federal executive power, High Court decisions have made clear that the section provides the constitutional basis upon which the federal government is able to manage foreign policy and Australia’s engagement with the international legal system.4 In the second edition of this book, Professor Geoffrey Sawer outlined the change in thinking on this matter between the first and second editions of the book — a shift from viewing the power to negotiate, make and ratify treaties as a power derived from the Commonwealth’s general legislative powers, to an acceptance in judicial decisions and commentary that s 61 extended to the prerogative powers of the Crown with respect to foreign policy. As a prerogative power, Sawer correctly observed that ‘it would be within the competence of the Commonwealth Parliament … to restrict the powers which the executive obtains from s 61 and the prerogative, for example by requiring legislative ratification of treaties, but no such action has been taken or strongly advocated’.5 That position remains the same today, although legislative reform was debated in the lead-up to the 1996 reforms (outlined below). Throughout the 1980s, the scope of the external affairs power became a focal point in High Court disputes between the Commonwealth and the 2

3

4 5

Plaintiff S157/2002 v Commonwealth (2003) 135 CLR 337; Hicks v Ruddock (2007) 156 FCR 574; Habib v Commonwealth (2010) 183 FCR 62. Section 61 provides as follows: ‘The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.’ See, eg, Barton v Commonwealth (1974) 131 CLR 477, 498–9 (Mason J). Geoffrey Sawer, ‘Australian Constitutional Law in Relation to International Relations and International Law’ in K W Ryan (ed), International Law in Australia (Law Book Co, 2nd ed, 1984) 37.

Ch 3: AUSTRALIAN TREATY PRACTICE   51

states — the latter concerned with the Commonwealth’s willingness and capacity to enter into fields previously considered outside the jurisdiction of the Commonwealth.6 However, in the 1990s, after it had become patently clear that very few ‘federal’ or other constitutional limits were going to be placed on the external affairs power, it was the so-called ‘democratic deficit’7 in the treaty-making process that emerged as the pre-eminent issue surrounding Australia’s engagement with the international legal system. Reforms to the treaty-making process have introduced measures for regulating the exercise of this aspect of the executive power; however, those measures are not mandated through legislation and the executive could still choose to bind Australia under international law without informing or engaging the Parliament at all. Nevertheless, as the previous chapter highlighted, various common law principles would operate to ensure that the domestic law was not formally changed as a consequence. In many respects, it seems unusual that federal Parliament would not exercise a role prior to formal binding action being taken in respect of a treaty, given that Parliament ultimately retains the constitutional authority to incorporate treaty provisions into the domestic law of Australia. However, as the discussion below highlights, Parliament has historically played a role in treaty-making that exceeds its formal constitutional position prior to the taking of binding treaty action by the executive. Furthermore, the involvement of the states and territories in treatymaking has also developed beyond their formal constitutional position. Despite having lost the constitutional battle over external affairs, the states were eventually able to negotiate a greater role in the treaty-making process through the Council of Australian Governments (‘COAG’), which adopted the Principles and Procedures on Commonwealth–State Consultation on Treaties (first developed in 1992 but revised as part of the 1996 reforms). The principles operate on the assumption that the involvement of the states and territories in treaty matters of particular relevance to them will facilitate the best possible outcome for Australia. Thus, while the federal executive is burdened with few formal limits on the exercise of its treaty-making powers, political imperatives have led to the adoption of processes that confer a greater role on other institutions within the federal system in the assumption of treaty obligations. However, more recent decisions of the High Court and other federal courts have revolved around the constitutional requirements that flow from the rule of law, as protected and assumed in our formal written Constitution. Building on the 6

7

See three key High Court cases: Koowarta v Bjelke-Petersen (1982) 153 CLR 168; Commonwealth v Tasmania (1983) 158 CLR 1 (‘Tasmanian Dam Case’); Richardson v Forestry Commission (1988) 164 CLR 261. See Sir Ninian Stephen’s characterisation of the ‘democratic deficit’ problem, outlined in section II(b) below.

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High Court’s decision in the Communist Party case in 1951,8 these cases firmly support the idea that executive power must always be exercised consistently with the federal Constitution.9 In 2003,10 the High Court held that the federal Parliament cannot remove the High Court’s entrenched power to review the legality of federal executive decisions and, in 2010, the Federal Court held that the Constitution could not be ‘crippled’ through attempts to prevent the judiciary from enforcing the ‘limits of s 61’.11 The full impact of this development in federal case law remains to be seen, but this judicial concern with constitutionalism and the exercise of federal executive power has witnessed an apparent relaxation of the rules surrounding the justiciability of executive decisions in the foreign policy context. While these decisions have not directly concerned treaty-making, they demonstrate an increasing judicial interest in the implications of a written Constitution for the exercise of federal executive power and provide further legal context against which the treaty-making power and the power to conduct foreign policy must now be pursued.

A  The Changing Role of Parliament in the Treaty-Making Process [3.30]  With the exception of treaties that involve the appropriation of funds, or that otherwise require legislation to give effect to their provisions, the Australian Parliament historically has played no formal constitutional role in the treaty-making process. However, it has long been the case that Parliament has had some less formal involvement with the process. There are a number of early precedents, for example, of treaties that are judged to be of political significance being embodied in parliamentary Bills that expressly seek the ‘approval’ of the Parliament to their terms (the Treaty of Versailles12 being one example). Indeed, Doeker has noted that between 1919 and 1963, parliamentary approval was sought before ratification in some 55 cases.13 Such approval procedures have not been uniformly applied to all treaties, nor have they ever been considered to have any practical effect. 8

9 10 11 12

13

Australian Communist Party v Commonwealth (1951) 83 CLR 1, where Dixon J famously noted that ‘the Constitution … is an instrument framed in accordance with many traditional conceptions, to some of which it gives effect, as, for example, in separating the judicial power from other functions of government, others of which are simply assumed. Among these I think that it may fairly be said that the rule of law forms an assumption’. See Hicks v Ruddock (2007) 156 FCR 574; Habib v Commonwealth (2010) 183 FCR 62. Plaintiff S157/2002 v Commonwealth (2003) 135 CLR 337. Habib v Commonwealth (2010) 183 FCR 62, 72–7 (Perram J). The Treaty of Peace between the Allied and Associated Powers and Germany and the Treaty between France and Great Britain, signed 28 June 1919 (‘Treaty of Versailles’). See further Anne Twomey, ‘Federal Parliament’s Changing Role in Treaty Making and External Affairs’ (Research Paper No 15, Parliamentary Library, Parliament of Australia, 2000) . Günther Doeker, The Treaty-Making Power in the Commonwealth of Australia (Martinus Nijhoff, 1st ed, 1966) 138, 257–61.

Ch 3: AUSTRALIAN TREATY PRACTICE   53

The absence of a formal parliamentary role in the treaty-making process has nevertheless been challenged from time to time. In the mid-1940s, the then Attorney-General and Minister for External Affairs, Dr Evatt, told Parliament that ‘the modern tendency is that Parliament should sanction what has been done by the Crown’,14 and in the 1930s a proposal to legislate for parliamentary oversight was considered by the then Attorney-General but not proceeded with. Moreover, though not formally required to do so, the Commonwealth Parliament was from its earliest days involved in giving approval to treaties.15 And, even as late as the 1950s, H S Nicholas (a former Chief Judge in Equity of the Supreme Court of New South Wales) felt it apposite to make the following comment on the practice of Parliament in relation to inter-governmental agreements and treaties: The practice is to present the agreement to Parliament as a schedule to an Act of which Parliament approves. The agreement is concluded in exercise of powers conferred on the Governor-General by section 61, as head of the Executive. It is approved by Parliament in exercise of the power conferred by section 51 (xxix). Among trade agreements of this character are those with Brazil, 1939; Greece, 1940; Southern Rhodesia, 1941; India, 1951; Western Germany, 1951 … Since the conclusion of the war, Parliament has approved of treaties with Italy, Romania, Finland, Bulgaria and Hungary.16 Indeed, even into the 1970s, it was still common practice to seek parliamentary approval where approval by the Commonwealth Parliament was necessary to implement the treaty. Approval was normally included in the statute that gave effect to the treaty, and the treaty would be ratified after the statute was enacted but before it came into force. By the late 1970s, however, this practice had lapsed, creating the conditions that prompted agitation for more genuinely ‘democratic’ forms of treaty-making.

B The 1996 Reformed Treaty-Making Process: Towards More ‘Democratic’ Treaty-Making [3.40]  Australia provides a successful example of efforts by some Westminster-style democracies17 in moving towards the adoption of so-called ‘democratic’ reforms in the process of treaty-making — in particular, by 14

15

16

17

Commonwealth, Parliamentary Debates, House of Representatives, 10 February 1944, 71 (Herbert Vere Evatt, Attorney-General and Minister for External Affairs). Anne Twomey, ‘Procedure and Practice of Implementing International Treaties’ (Research Service Background Paper No 27, Parliamentary Library, Parliament of Australia, 1995) 7. Anne Twomey, ‘Procedure and Practice of Implementing International Treaties’ (Research Service Background Paper No 27, Parliamentary Library, Parliament of Australia, 1995) 22. See a comparative review of the experiences in Canada, the United Kingdom and Australia in attempting to address their respective alleged democratic deficits in treatymaking, provided by Joanna Harrington in ‘Redressing the Democratic Deficit in Treaty Law Making: (Re-)Establishing a Role for Parliament’ (2005) 50 McGill Law Journal 465.

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more closely involving the legislature before treaties are brought into force. That development has occurred relatively recently and, in the Australian context, culminated with the introduction of a series of reforms announced in May 1996. The traditional view of the role of legislatures in treaty-making was well expressed by the eminent 18th century jurist Sir William Blackstone, who, in his Commentaries on the Laws of England, expressed with great conviction his opinion that legislative assemblies should never be involved in the conclusion of treaties: such activities should be left exclusively for the executive to manage.18 In 1924, however, the United Kingdom adopted a policy known as the Ponsonby Rule, involving a government practice whereby every treaty requiring ratification by the Crown would, after signature, be laid on the tables of both Houses of Parliament for a period of 21 days prior to ratification.19 Subsequently, in Australia in 1961, then Prime Minister Menzies followed the British lead by making a commitment that the text of treaties, which until then had not normally been brought to the attention of Parliament, would be tabled in both Houses of Parliament.20 Beginning in the 1980s, however, many parliamentarians and the wider community began expressing concerns that this bare tabling was an inadequate form of review and called for a better system.21 Criticism of the treaty-making process steadily grew, particularly among and within the states.22 In 1995, the Senate Legal and Constitutional References Committee conducted hearings into the treaty-making process, which ventilated criticisms of that process. In November that year, the Senate Committee recommended that legislation be enacted to establish a parliamentary committee which would, among other things, report on proposals by Australia to join a treaty.23 The recommendations sought to address what many considered to be a ‘democratic deficit’ in the way the executive branch 18

19

20

21

22

23

William Blackstone, Commentaries on the Laws of England (Clarendon Press, 1st ed, 1965–69) bk 1, ch 7 . For a history of the constitutional evolution of the Ponsonby Rule, see Ministry of Justice, The Governance of Britain — War Powers and Treaties: Limiting Executive Powers (Consultation Paper CP26/07, 2007) [122]–[130] . Commonwealth, Parliamentary Debates, House of Representatives, 10 May 1961 (Robert Menzies, Prime Minister). Brian R Opeskin, ‘The Role of Government in the Conduct of Australia’s Foreign Affairs’ (1994) 15 Australian Year Book of International Law 129, 138–9. See the Joint Submission of the Governments of the States and Territories of Australia, made to the Senate Legal and Constitutional References Committee 1995 inquiry into the Commonwealth’s treaty-making power and the external affairs power, cited in the report of that Committee: Senate Legal and Constitutional References Committee, Parliament of Australia, Trick or Treaty? Commonwealth Power to Make and Implement Treaties (1995) 212. Senate Legal and Constitutional References Committee, Parliament of Australia, Trick or Treaty? Commonwealth Power to Make and Implement Treaties (1995) 239–40 and chs 15–17.

Ch 3: AUSTRALIAN TREATY PRACTICE   55

exercised its exclusive responsibility for treaty-making — or, as the former High Court Justice (and, later, Australian Governor-General), Sir Ninian Stephen, characterised it: The problem consists of the likelihood of a democratic deficit. At the stage when adhesion to some treaty or convention is being decided upon, the deficit becomes very apparent in the case of Westminstertype governments because with them the process of treaty making is a purely executive act. This is why, with the continued move towards internationalisation, and necessary and beneficial as it may be in many ways, we must be alert to ensure true subsidiarity and must devise mechanisms to ensure that our democracy retains its meaning.24 These propositions did not go uncontested: the criticisms were countered by arguments that rested upon three key propositions. The first of these was that, unless treaties are implemented by legislation, they do not have legal force on the domestic plane in Australia for Australian citizens.25 That only occurs when laws — approved by Parliament or a delegate of Parliament — are in place to implement the obligations of a treaty. Second, it was noted that the Australian government’s policy was not to enter into a treaty unless and until that treaty was consistent with Australia’s state and territory legislation.26 Third, it was asserted that the implementation of a treaty — domestically — by legislation affords parliamentarians a chance to scrutinise that treaty. Thus, it was argued, Parliament already had an important say in the treaties that were applied domestically, so no further role for it was necessary. These arguments were of course lacking in some important respects, not least because a treaty may expand the legislative power of the federal Parliament with respect to external affairs and thereby confine the states’ exercise of their executive and legislative powers.27 Nor did they address the point that law-making by treaty does not always require the enactment of implementing legislation, particularly if the treaty obligation can be implied or carried through a pre-existing law, and thus Parliament may not in fact have this role. Moreover, once ratified, treaties are binding under international law and their legal character, along with the reciprocal nature of the international legal system, puts pressure on states’ domestic institutions to ensure compliance. Treaty law would thus have remained the purview of the executive branch and the courts were it not for a series of reforms introduced to varying degrees in Westminster-style countries in the latter part of the 20th century. 24 25

26

27

Sir Ninian Stephen, ‘Making Rules for the World’ (1995) 30(2) Australian Lawyer 13, 13–14. Anthony Aust, Modern Treaty Law and Practice (Cambridge University Press, 1st ed, 2000) 150–1. See also Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 286–7 (Mason CJ and Deane J). Brian R Opeskin, ‘The Role of Government in the Conduct of Australia’s Foreign Affairs’ (1994) 15 Australian Year Book of International Law 129, 131. Australian Constitution s 109.

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In Australia this involved a newly elected federal government introducing a range of treaty-making reforms, announced to the Parliament by the then Foreign Minister, Alexander Downer, on 2 May 1996.28 These implemented many of the reforms recommended by the Senate inquiry, introducing five key reforms to Australia’s treaty-making processes: „„ the tabling in Parliament of all treaty actions proposed by the government for at least 15 joint sitting days before binding treaty action is taken; „„ the preparation of a National Interest Analysis (‘NIA’) for each treaty, outlining information regarding the obligations contained in the treaty and the benefits for Australia of entering into the treaty — the NIA must be tabled in Parliament and published on the internet; „„ the establishment of the parliamentary Joint Standing Committee on Treaties (‘JSCOT’), comprising 16 members from government, opposition and minority parties, to inquire into and make recommendations in relation to Australia’s entry into treaties’ „„ the establishment of the Treaties Council, comprising the Prime Minister, Premiers and Chief Ministers and an enhanced role for the Commonwealth/state and territory Standing Committee on Treaties (‘SCOT’) to improve the quality of state and territory participation in the treatymaking process; and „„ the establishment of the Australian Treaties Library, providing online access to all Australian treaty texts. The stated aim of the government’s treaty process reform policy was to restore confidence in the process by eliminating the ‘democratic deficit’ inherent in it. Specifically, the new policy provided that the arrangements for parliamentary scrutiny of treaties, through tabling them in Parliament, would apply to all treaty actions, multilateral as well as bilateral, and extend not only to new treaties but to all actions to amend, terminate or withdraw from treaties. The effect of this policy — which has been reaffirmed by successive incoming Australian governments — is that parliamentarians make considered reports on proposed treaties before the government decides whether Australia should join them. Nonetheless, the government does not have to follow these reports; it can take treaty action even where JSCOT recommends against that. In other words, parliamentary approval is not formally required before the executive branch of government agrees to take treaty action. In this respect, the prerogative power of the executive under s 61 of the Constitution has been constrained through the adoption of the 1996 procedures, but has not been formally limited in scope. 28

Alexander Downer and Daryl Williams, ‘Government Announces Reform of Treaty-Making’ (Media Release, FA 29, 2 May 1996) .

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So, put simply, Australia’s treaty-making process normally29 means that before Australia ratifies a treaty, that treaty will be tabled in Parliament with an accompanying NIA. JSCOT considers the treaty, invites views from the general public, holds public hearings, and (because Australia is a federal state) also considers the views of the Australian states and territories. JSCOT then tables a report recommending whether (or not) the treaty should be ratified. The government then takes a decision whether to proceed with ratification of the treaty, but the government may still ratify a treaty even if JSCOT recommends against it. Commentators have questioned certain aspects of the JSCOT process, including the fact that, by virtue of the timing of its inquiries, the capacity of Parliament to influence the negotiation (and therefore the content) of treaties is limited.30 The Committee has rarely recommended against the taking of binding treaty action, frequently aligning itself with government policy, and, certainly in its early days, tended towards adopting a consensus approach to its reports.31 However, JSCOT has significantly increased transparency in the treaty-making process and the JSCOT process has rarely been averted following a decision of government that urgent action was necessary in order to protect important commercial, strategic or foreign policy interests. An instance where this did occur took place in 2002, when Australia lodged a new declaration under art 36(2) of the Statute of the International Court of Justice (‘ICJ’). The effect of the declaration was to limit Australia’s exposure to possible litigation in certain cases, including in maritime boundary disputes. Whether the declaration, considered objectively, was sensitive enough to warrant urgent action, the treaty reforms of 1996 at least ensured that the government was forced to subsequently substantiate its decision to Parliament.32

III  THE VIENNA CONVENTION ON THE LAW OF TREATIES [3.50]  The Vienna Convention on the Law of Treaties (1969) (‘VCLT’)33 codifies the law of treaties and is applicable to all treaties concluded by Australia since its entry into force in 1980, unless the treaty itself provides otherwise. The VCLT 29

30

31

32

33

Special arrangements can be made if a treaty is sensitive or requires urgent and immediate implementation. Madelaine Chiam, ‘Evaluating Australia’s Treaty-Making Process’ (2004) 15 Public Law Review 265, 266–8. Madelaine Chiam, ‘Evaluating Australia’s Treaty-Making Process’ (2004) 15 Public Law Review 265. See also Wendy Lacey, ‘The Law of Treaties’ in Sam Blay, Ryszard Piotrowicz and B Martin Tsamenyi (eds), Public International Law: An Australian Perspective (Oxford University Press, 2nd ed, 2005) 85, 111. Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980).

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is, however, limited in scope, and only applies to treaties entered into between states.34 It is the primary reference point for all procedural issues, such as the conclusion and entry into force of treaties, as well as substantive issues, such as the observance, application and interpretation of treaties. Following the treaty’s negotiation, the Australian delegate to the conference described the VCLT as having ‘almost constitutional significance’,35 and subsequent practice and decisions of the ICJ indicate that many of its substantive provisions are viewed as reflecting customary rules of international law.36 As at March 2016, there were 111 parties to the VCLT. Formalities relevant to the various stages in the development of a treaty from negotiation through to entry into force are contained in pt II of the VCLT. Negotiators are authorised to represent a state either by the presentation of credentials confirming their authority (usually required in the case of multilateral negotiations occurring at an international conference), or by virtue of circumstances evidencing representational authority (such as discussions at official levels or through diplomatic channels in the case of bilateral negotiations). A draft version of a treaty is often ‘adopted’ by the parties, to indicate its status as a working document and to be used by the parties for the purposes of their own consultations. A more definitive step of ‘authentication’ may then occur by which parties recognise a certain version as an agreed outcome of negotiations. In bilateral negotiations, this may be evidenced by the leaders of the negotiating delegations initialling the texts on each page. In multilateral negotiations, the agreed text is typically incorporated into the Final Act (a document that serves as a record of proceedings of the multilateral conference), which may then be signed by delegation leaders. ‘Adoption’ or ‘authentication’ does not require any specific authorisation by the person signing, nor does it create any formal legal obligations for the parties. Article 11 of the VCLT states that ‘[t]he consent of a State to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or accession or by any other means 34

35

36

Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980) art 1. Accordingly, the VCLT does not extend to treaties entered into between states and other subjects of international law, or to treaties entered into between other subjects of international law. The 1986 Vienna Convention on the Law of Treaties between States and International Organisations or between International Organisations, opened for signature 21 March 1986, 25 ILM 543 is not yet in force, but Australia acceded to that treaty in 1993. P Brazil, Statement by the Australian Representative upon Conclusion of the 1969 Vienna Convention on the Law of Treaties, GA Res 2166, UN Conference on the Law of Treaties, 2nd sess, 101st mtg, UN Doc A/CONF.39/11/Add.1 (23 April 1969) 317. Gabcˇíkovo-Nagymaros Project (Hungary/Slovakia) [1997] ICJ Rep 7 (where arts 60–2 of the VCLT were treated as custom); LaGrand (Germany v United States of America) [2001] ICJ Rep 466 (concerning art 31 of the VCLT). See also Wendy Lacey, ‘The Law of Treaties’ in Sam Blay, Ryszard Piotrowicz and B Martin Tsamenyi (eds), Public International Law: An Australian Perspective (Oxford University Press, 2nd ed, 2005) 85, 85–6.

Ch 3: AUSTRALIAN TREATY PRACTICE   59

if so agreed’. Thus, the terms of each treaty are determinative of whether signature itself constitutes binding treaty action or whether any further steps are required to bring the treaty into force. For Australia, the federal Executive Council must approve the text of each treaty prior to signature and, unless the Prime Minister or the Minister for Foreign Affairs is to sign, an instrument of full powers is to be issued authorising a particular person to sign on behalf of Australia. Following signature, Australia is under an obligation to refrain from any acts that would defeat the object and purpose of the treaty (art 18). In nearly all cases, signature alone does not bring a treaty into force for Australia. Bilateral treaties commonly provide that entry into force will occur a certain period after both parties have exchanged notes confirming the completion of their necessary domestic processes. Australian domestic processes consist of the treaty being subject to parliamentary scrutiny by JSCOT and the passage through Parliament of any required implementing legislation. Multilateral treaties commonly require an additional step of ratification, acceptance, approval or accession in order to enter into force for a particular party.

A  Reservations to Treaties [3.60]  A reservation is a means by which a state purports to exclude or modify the legal effect of a multilateral treaty that it finds unacceptable. Australia’s policy on the law of reservations to treaties is based on relevant provisions of the VCLT. According to art 2(d) of that convention, a reservation to a treaty is a unilateral statement, however phrased or named, made by a State when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State. The VCLT also addresses the formulation of reservations (art 19), acceptance of and objections to reservations (art 20), the legal effect of reservations and of objections to reservations (art 21), withdrawal of reservations (art 22) and the procedural mechanisms involved (art 23). The distinction between reservations and other devices — such as declarations, observations and interpretative statements — is a fine one. Although the test is expressed in art 2(d) to be whether or not the statement purports to exclude or modify the legal effect of certain provisions of the treaty, the VCLT offers little guidance on how to make an objective determination to that end. It has been suggested, for instance, that an interpretative statement is distinguishable from a reservation since it is simply a mechanism by which a state seeks ‘to interpret a treaty or part of it in a particular manner which thereby indicates its perception of its obligations under the treaty’.37 Yet, if it has the effect, nevertheless, of limiting or modifying the terms of a treaty, 37

D M McRae, ‘The Legal Effect of Interpretative Declarations’ (1978) 49 British Yearbook of International Law 155.

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a statement of this sort may equally be regarded as a reservation within the meaning of the VCLT. Further guidance on the distinction between ‘reservations’ and ‘interpretative declarations’ can be found in the International Law Commission’s Guide to Practice on Reservations to Treaties, the background to which is discussed below.38 ‘Interpretative declaration’ is there defined as a unilateral statement, however phrased or named, made by a state or an international organisation, whereby that state or that organisation purports to specify or clarify the meaning or scope of a treaty or of certain of its provisions. To determine whether a unilateral statement formulated by a state or an international organisation in respect of a treaty is a reservation or an interpretative declaration, the statement should be interpreted in good faith in accordance with the ordinary meaning to be given to its terms, with a view to identifying the intention of its author.39 The phrasing or name of a unilateral statement provides an indication of the purported legal effect, but is not determinative.40 In the final event, the legal significance of devices other than reservations will depend upon the form and content of the device, the time at which it was made, and the reaction of other parties to it. The infrequent use of reservations in Australian treaty-making practice reflects a policy preference for reaching an agreed text on the basis of consensus in order to achieve, so far as is possible, the universal application of the rights and obligations contained in the treaty. Reservations have been resorted to, however, in cases where it has not been possible for enabling legislation to be enacted, or for existing laws and policies to be modified to correspond with treaty obligations.41 In the case of reservations made by other parties, the situation is somewhat distinct; their effect is regarded as a derogation of the rights Australia would otherwise have under the treaty. Such reservations are generally brought to the attention of departments with primary responsibility for the substance of the treaty and, if considered appropriate, an objection may be lodged with the depositary.42 In the past, Australia has made objections to reservations made by other states in circumstances where it considers the reservation to be incompatible with the object and purpose of the relevant treaty and contrary to art 19 of the VCLT, or otherwise contrary to the law of treaties as set out in 38

39 40 41

42

See Alain Pellet, Seventeenth Report on Reservations to Treaties, UN GAOR, 63rd sess, UN Doc A/66/10 (26 May 2011). Guide to Practice cl 1.3.1. Guide to Practice cl 1.3.2. See Gareth Evans, ‘Media Release’ (Statement, Comm Rec 1984, 2536, 12 April 1984) as reported in Editors, ‘Treaties’ (1987) 16 Australian Year Book of International Law 498, 499. See Australia’s objections to the reservations made by several governments to the Vienna Convention on Diplomatic Relations [1968] ATS 3 (entered into force for Australia 25 February 1968).

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the VCLT or under customary international law.43 In these circumstances, the objecting state may also oppose the entry into force of the treaty as between itself and the reserving state. Australia makes this decision on a case-bycase basis having regard to all the circumstances, including the benefits of having limited treaty relations compared to having no treaty relations. Since an objection to a reservation is considered to involve only a restatement of Australia’s existing rights under a treaty, the approval of the federal Executive Council is not required. Since 1993, the International Law Commission (the UN body responsible for the progressive development of international law and its codification) has been examining the law and practice relating to reservations to treaties. In 2011, the Commission adopted its Guide to Practice on Reservations to Treaties, which consists of several guidelines and is intended to clarify particular gaps within the VCLT regime and be a practical tool for states in their treaty relations.44 The Commission submitted the Guide to Practice to the General Assembly with a recommendation that the Assembly take note of the Guide and take steps to ensure its widest possible dissemination. Australia engaged regularly with the Commission during the formulation of the Guide and provided comments on the draft guidelines. Australia has welcomed the Commission’s Guide to Practice, together with its commentaries, and believes that it will have an important and practical role for states in establishing and maintaining treaty relationships by clarifying one of the most difficult issues of treaty law — namely, the effects of a reservation and an acceptance or objection thereof.45 In General Assembly Resolution 68/111, adopted in December 2013, the successful completion of the Commission’s work was welcomed, the guidelines were endorsed, and their widest dissemination was encouraged.46

B  Interpretation of Treaties [3.70]  The ‘general rule’ of treaty interpretation is contained in art 31 of the VCLT, which states that a treaty is to be interpreted ‘in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’. ‘Context’ includes the preamble and annexes, along with: „„ any agreement relating to the treaty that was made between all the parties in connection with the conclusion of the treaty; and 43

44

45

46

See Australia’s objections to the reservations made by several governments to the Vienna Convention on Diplomatic Relations [1968] ATS 3 (entered into force for Australia 25 February 1968). See Alain Pellet, ‘The ILC Guide to Practice on Reservations to Treaties: A General Presentation by the Special Rapporteur’ (2013) 24 European Journal of International Law 1061, 1097. Alain Pellet, Seventeenth Report on Reservations to Treaties, UN GAOR, 63rd sess, UN Doc A/66/10 (26 May 2011). Reservations to Treaties, GA Res 68/111, UN GAOR, 6th Comm, 68th sess, 68th plen mtg, Agenda Item 81, Supp No 10, UN Doc A/RES/68/111 (19 December 2011).

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„„ any instrument that was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. Article 31(2) also stipulates that regard shall be had to any subsequent agreements between the parties regarding the interpretation of the treaty or the application of its provisions, any subsequent practice in the application of the treaty which established the agreement of the parties regarding its interpretation, and relevant rules of international law applicable in the relations between the parties. If the application of art 31 leaves the meaning of a treaty provision ambiguous or obscure, or leads to a result that is manifestly absurd or unreasonable, supplementary means of interpretation can be employed (art 32). In this context, the preparatory work of the treaty and the circumstances of its conclusion can be used to determine the meaning of the treaty. However, these supplementary means of interpretation can also be used to confirm the meaning of a treaty where art 31 does not lead to ambiguity, obscurity or an unreasonable or absurd result. Given the many compromises that inevitably are made in the course of negotiating a treaty and the often broad and general language used in treaty provisions, it is unsurprising that disagreements will emerge regarding the interpretation of a treaty or its provisions. In many cases, the issue can remain unresolved, in a legal sense, for many years. Unless the ICJ or some other tribunal is conferred power and called upon to determine disputes between parties regarding a treaty’s interpretation, the question can remain unresolved and left to be negotiated through political means. In other contexts where binding rulings are not readily available with regard to the meaning of a treaty provision (such as the ‘views’ of the United Nations Human Rights Committee in respect of the International Covenant on Civil and Political Rights (‘ICCPR’)),47 competing claims that different interpretations are of equal force or persuasion are likely to arise. Though one view (that of the Committee) might be considered authoritative, it is not strictly binding upon states. Indeed, Australia has, on a number of occasions, maintained its commitment to a different interpretation of the ICCPR than that which has been taken by the Committee.48 While some commentators on this issue have perceived Australia’s actions as being inconsistent with the spirit of the convention,49 the reality is that Australia has continued to engage 47

48

49

International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976). See Wendy Lacey, Implementing Human Rights Norms: Judicial Discretion and Use of Unincorporated Conventions (Presidian Legal Publications, 2008) 60. See Hilary Charlesworth et al, No Country Is an Island: Australia and International Law (UNSW Press, 1st ed, 2006) 82–91; Peter Bailey, The Human Rights Enterprise in Australia and Internationally (LexisNexis Butterworths, 1st ed, 2009).

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with, and formally respond to, the substantive views of the Committee and Australia is well within its right to adopt a different, yet reasoned, interpretation of what are often open-ended and contested matters.50 In other cases, the resolution of a dispute regarding a treaty’s i­ nterpretation may be considered a matter of such importance that states seek to have the issue resolved, in a final and binding sense, by an international tribunal. In 2010, Australia commenced proceedings in the ICJ against Japan with respect to its scientific whaling program. Australia’s case (ultimately successful)51 was that Japan, through its scientific whaling program, was in breach of its obligations under the International Convention for the Regulation of Whaling (‘ICRW’),52 the Convention on International Trade in Endangered Species of Wild Fauna and Flora53 and the Convention on Biological Diversity.54 Australia’s principal claims were that Japan’s scientific whaling program breached the International Whaling Commission (‘IWC’) moratorium on commercial whaling and the creation of the Southern Ocean Sanctuary. Since 1982, the IWC had adopted a moratorium on commercial whaling, implemented through an amendment to the schedule to the ICRW. Other changes included the creation of sanctuaries in the Indian and Southern Oceans. Although Japan initially objected to the moratorium, it withdrew its objection in 1987 but implemented the Japanese Whale Research Program under Special Permit in the Antarctic (‘JARPA’) in the same year. Despite the complete ban on commercial whaling, art VIII of the ICRW allows contracting states to authorise ‘special permit’ or ‘scientific’ whaling.55 The IWC had, however, issued several resolutions expressing concern about JARPA, including its consistency with the Southern Ocean Sanctuary, and Australia persistently objected to Japan’s scientific whaling program 50

51

52

53

54

55

An example of where Australia disagreed with the findings of the UN Human Rights Committee occurred in the case of A v Australia (560/1993) UN Doc CCPR/ C/59/D/560/1993 (30 March 1997). Mr A, a Cambodian citizen, had been detained at Port Hedland Detention Centre for more than four years without access to legal advice or judicial review of his detention. The length of Mr A’s detention led the Human Rights Committee to hold that Mr A’s freedom from arbitrary detention under art 9 of the ICCPR had been infringed, a finding that was rejected by the Howard Coalition government. Whaling in the Antarctic (Australia v Japan: New Zealand intervening) [2014] ICJ Rep 226 (‘Whaling in the Antarctic’). International Convention for the Regulation of Whaling, opened for signature 2 December 1946, 161 UNTS 72 (entered into force 10 November 1948). Convention on International Trade in Endangered Species of Wild Fauna and Flora, opened for signature 3 March 1973, 993 UNTS 243 (entered into force 1 July 1975). Convention on Biological Diversity, opened for signature 5 June 1992, 1760 UNTS 143 (entered into force 29 December 1993). That article provides as follows: ‘Any Contracting Government may grant to any of its nationals a special permit authorizing that national to kill, take and treat whales for purposes of scientific research … and the killing, taking and treating of whales in accordance with the provisions of this Article shall be exempt from the operation of this Convention.’

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under JARPA and JARPA II.56 The Australian case rested on arguments that Japan’s scientific whaling program could not be justified under art VIII of the ICRW, due to the program’s size, a lack of demonstrated relevance to the conservation and management of whale stocks, and the risks presented to the species. However, art VIII(1) allowed special permits for scientific whaling to be authorised subject to any conditions that the state party ‘thinks fit’. The Court ultimately found that the permits granted under JARPA II could not be justified as being for the purposes of scientific research under art VIII and, consequently, Japan was found to have breached its inter­ national legal obligations. Disputes between parties to a treaty, or between a state and an international body, are not the only contexts in which the question of treaty interpretation can arise and lead to vastly different conclusions. In domestic law, national courts are frequently called upon to consider and interpret treaties, most commonly where domestic statutes have referred to or directly incorporated the provisions of international conventions. In Australia, the courts have long accepted the relevance and applicability of the VCLT when undertaking this task, as well as the potential for their decisions to influence the interpretation of a treaty beyond the jurisdiction of Australia. A good example of such a case is the High Court decision in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004.57 In QAAH, the High Court was called upon to determine whether a person who had been accepted as a refugee and granted a temporary protection visa (‘TPV’) under the Migration Act 1958 (Cth) continued to be a person who was owed protection obligations under the Act at the expiry of the visa, notwithstanding benign changes in the conditions of the country from which he fled. A majority of the Court (Gummow ACJ, Callinan, Heydon and Crennan JJ; Kirby J dissenting) allowed an appeal from the Full Court of the Federal Court, where it had been held that the onus was on the Minister to prove that the respondent was no longer a ‘refugee’ in accordance with the cessation provision under art 1C of the Convention Relating to the Status of Refugees (‘Refugee Convention’).58 Of relevance was art 1C(5) of the Refugee Convention, which provided that the convention would cease to apply where a person ‘can no longer, because 56

57

58

See Donald R Rothwell, Australia v Japan: JARPA II Whaling Case before the International Court of Justice (2 July 2010) The Hague Justice Portal, 2 July 2010, ; Donald K Anton, Dispute Concerning Japan’s JARPA II Program of ‘Scientific Whaling’ (Australia v Japan) (2010) 14 American Society of International Law Insights 20 (8 July 2010) . Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1. Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954).

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the circumstances in connexion with which he has been recognised as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality’.59 The respondent had submitted in the High Court that once a person had been accepted by the appellant as being a refugee, the legal implication was that the person had either been accepted as such for all times and all purposes, or the appellant must assume a burden of showing that the basis for the well-founded fear of persecution no longer existed. This argument was rejected by the High Court, with Kirby J dissenting. Because the Migration Act had not incorporated the Refugee Convention in its entirety, s 15AB of the Acts Interpretation Act 1901 (Cth) (discussed in the previous chapter), together with other interpretive principles of the common law, governed the use that could be made of the Refugee Convention when interpreting the Migration Act. The majority described the correct approach to interpretation as follows: Australian courts will endeavour to adopt a construction of the Act and the Regulations, if that construction is available, which conforms to the Convention. And this court would seek to adopt, if it were available, a construction of the definition in Art 1A of the Convention that conformed with any generally accepted construction in other countries subscribing to the Convention, as it would with any provision of an international instrument to which Australia is a party and which has been received into its domestic law. The Convention will also be construed by reference to the principles stated in the Vienna Convention on the Law of Treaties (‘the Vienna Convention’), even though the Vienna Convention has not been enacted as part of the law of Australia.60 The Court then referred to arts 31 and 32 of the VCLT, adding that, despite the words of the convention, it was ultimately the words of the Migration Act that governed the matter. Interestingly, the majority’s approach was conditioned by certain assumptions about the Refugee Convention and the Migration Act: ‘The Act is to be read against the consistent refusal of nation states to accept, apart from any limitations imposed by treaties to which they are parties, any abridgement of their authority to determine for themselves whether or not a right of entry and of permanent settlement should be afforded to any individual or group of individuals.’61 Kirby J, on the other hand, described the relationship between the convention and the TPV regime as ‘uncomfortable’ and as raising ‘a question of construction that is made more difficult by the absence of settled State 59

60

61

According to art 1C(5), the paragraph would not apply, however, where there were ‘compelling reasons arising out of previous persecution for refusing to avail himself of the protection of his country of nationality’. Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 [34]. Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1, 5 [2].

66    INTERNATIONAL LAW IN AUSTRALIA

practice on the application of the provisions of the Convention’.62 In adopting the interpretation suggested in the written submissions of the United Nations High Commissioner for Refugees, appearing as amicus curiae, Kirby J accepted that refugee status determination and cessation procedures should be treated as separate and distinct processes.63 His Honour also adopted a stricter test regarding changes in country circumstances, requiring that such changes be ‘fundamental, stable and durable’, and that authorities — while not carrying a legal burden of proof with respect to changes — do carry a practical burden of furnishing affirmative evidence of a propounded change.64 Cases such as QAAH and Whaling in the Antarctic demonstrate the often complex and contested nature of treaty interpretation. As the opinions in QAAH attest, there are often multiple interpretations that can be given of treaty provisions and the broader context in which a treaty will be examined.

IV  DOCUMENTS OF LESS THAN TREATY STATUS [3.80]  Article 2 of the VCLT defines a treaty as ‘an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation’. Any written document between governments not meeting these criteria is a document of less than treaty status. Most commonly, such a document is known as a memorandum of understanding (‘MOU’). Other titles indicating similar status in Australian practice include arrangement, accord, joint statement, declaration of intent, and exchange of notes. However, as is the case with treaties, it is the intention of the parties rather than the descriptive title that will determine the status of a document. In many cases, and increasingly so as knowledge of its value is spread more broadly through the bureaucracy, an MOU expressly provides that it is not binding at international law and does not seek to create any legal obligations or rights between the parties. Where such a clear intention is not expressly stated, intention may be discerned from supplementary indicators such as the language used and what form, if any, of dispute settlement process is envisaged. This is discussed further below. Despite the fact that documents of less than treaty status are not legally binding, they are regarded as being politically and morally binding. This difference is for the most part semantic only. Parties that freely enter into such commitments should be prepared to meet them as if they were legally 62

63

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Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1, 20 [52]. Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1, 36 [101]–[103]. Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1, 42 [122], 43–4 [127]–[128], 48 [141].

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binding. However, their non-legally binding status allows parties to undertake commitments without the spectre of formal sanction or the possibility of third-party consideration and judgment. It is for the parties themselves to judge whether use of a non-enforceable instrument is fatally deficient, rather than being not preferred but nevertheless acceptable or positively advantageous in all the circumstances. While treaties are invariably concluded between states or international organisations, documents of less than treaty status may also be concluded between states but are more commonly concluded between specific agencies of states and relevant counterparts. Private sector organisations are free to enter into commercial agreements or contracts with such entities, which usually nominate a domestic jurisdiction should adjudication be required. Treaties and MOUs may be used as complementary tools where specific programs are undertaken under the auspices of an ‘umbrella’ agreement. For example, Australia’s aid projects and cultural programs are often implemented under the terms of an MOU, which in turn may refer to a head development cooperation or cultural cooperation agreement. Aside from the intention of the parties, the nature of the subject matter will be relevant to determining whether a treaty or other type of document is warranted. Treaties generally deal with matters of international significance, such as trade, civil aviation, defence, customs and human rights, or matters of domestic concern that have international implications, such as privileges and immunities of personnel, taxation and extradition. Documents of less than treaty status are more likely to be concerned with the practical implementation of programs or to provide for more specific cooperation. They can also be useful where the parties are not ready or do not have the resources to enter into formal negotiations about a matter, but nevertheless wish to record their intention to cooperate with each other. In assessing whether a treaty or less than treaty status document is appropriate for a particular purpose, several others factors may be relevant. In contrast to a treaty, a document of less than treaty status is not subject to a public scrutiny process, as it does not need to be approved by the GovernorGeneral in Council (Executive Council) or to be considered by Parliament. It can therefore be apposite for managing classified content. The content of a less than treaty document is confidential as between the parties, unless both parties agree to its release. Certain defence and military documents, which might otherwise be concluded as a treaty, can adopt this lesser status so as to preserve security as required. The fact of the existence of the government document itself is not necessarily an impediment to media coverage if desired, but the contents can remain protected unless otherwise agreed. Aside from security considerations, there can be other benefits to engaging in an alternative, less formal treaty process. Documents are able to be negotiated, finalised, signed and entered into effect in a vastly reduced timeframe. Agencies and organisations lacking in international legal personality are able

68    INTERNATIONAL LAW IN AUSTRALIA

to make and receive undertakings directly with their counterparts, and more readily customise the documents to their specific requirements. Amendments or supplementary documents can, if desired, be promptly realised. The relative ease of preparing documents of less than treaty status carries the risk that they may be hastily drafted and in reality be documents of convenience rather than substance. On the other hand, this may be one of the attractions of such documents. As their use proliferates, and given their non-public status, another potential shortcoming is the fact that there is no registration process or complete catalogue of documents. While treaties are required to be registered with the Secretary-General of the United Nations pursuant to art 102 of the Charter, there is no equivalent process for documents of less than treaty status. The most important element in drafting an MOU is to clarify the status of the document. This is preferably achieved by stating the parties’ intention that the document is not binding at international law. In the absence of this, or even in addition to this, the terminology of the document provides evidence of the parties’ expectation of its non-binding status. Australian practice is for documents of less than treaty status to be couched in non-mandatory language. Examples of this include avoiding the use of the words ‘agree’ and ‘shall’. Other ‘language practices’ by which non-treaty documents may be differentiated include the absence or simplicity of formal preamble statements; using ‘paragraph’ rather than ‘article’ to subdivide the document; expressing that the document ‘comes into effect’ rather than ‘enters into force’; and having the attestation clause read ‘signed’ rather than ‘done’. The construction of any dispute resolution provision can serve as a further indication of the intention of the parties. Documents of less than treaty status typically refer to amicable resolution of any differences between the parties, rather than refer to a vehicle for formal arbitration of disputes.

V CONCLUSION [3.90]  Australia’s capacity to engage with other states and international organisations by way of formal and informal agreement is supported by the presence of broad executive and legislative powers conferred under the federal Constitution. The prospect of Australia being an ‘international cripple, unable to participate fully in the emerging world order’, as cautioned by Murphy J in the Seas and Submerged Lands case,65 never eventuated, and the developments since 1992 around the exercise of the executive power to enter into treaties have quelled much of the controversy that culminated in the 1995 Senate Committee Report into treaty-making and implementation. Current areas of Australian treaty practice likely to promote discussion relate to matters that 65

New South Wales v Commonwealth (1975) 135 CLR 337, 503 (‘Seas and Submerged Lands case’).

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arise either well before or after an instrument’s adoption, including issues of what form an instrument should take, and subsequent questions of contested interpretation. Further issues that are also likely to influence government policy in the future may stem from the increasing concern of the High Court and other federal courts with constitutionalism and the rule of law, particularly following the recent acceptance of constitutionally entrenched forms of judicial review of executive action.66 How those developments at the national level might impact upon or shape both foreign policy and Australia’s approach to the drafting of treaties (and documents of less than treaty status) remains to be seen. Notwithstanding that Australia’s federal institutions have wide powers with respect to the acceptance and implementation of international instruments, domestic constitutional requirements will continue to be developed by the High Court in a way that is likely to impact (even if only subtly or indirectly) on the exercise of both executive and legislative power in this context.

66

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; Kirk v Industrial Court of New South Wales (2010) 239 CLR 531.

4 Australian Jurisdiction and International Law Camille Goodman and Donald R Rothwell

I INTRODUCTION [4.10]  Jurisdiction is central to the ability of a state to be able to function in the modern world. It is an integral attribute of state sovereignty,1 which throughout the past century has undergone significant expansion as both the theoretical and operational dimensions of jurisdiction have undergone revision.2 As the interests of the state have expanded in an increasingly globalised world, especially following the conclusion of the Second World War, the desire of the state to be able to assert more expansive jurisdiction has also grown. This is reflected in the expanded areas in which states assert the power to make laws (prescriptive jurisdiction) and the extent to which states seek to enforce those laws through executive or judicial action. This has extended to not only the interest of the state with respect to its nationals, but also its national interest — which increasingly has taken on a strong security dimension, particularly following the 2001 terrorist attacks on the United States. Australia has followed these trends, though there are two particular dimensions distinctive to Australia’s circumstances. The first is that post-war developments in the law of the sea have allowed Australia to assert a vast maritime domain,3 reflected in Australian law within the framework of the 1982 United Nations Convention on the Law of the Sea.4 Australia’s maritime 1

2

3 4

Crawford refers to this as ‘an aspect of sovereignty’: James Crawford, Brownlie’s Principles of Public International Law (Oxford University Press, 8th ed, 2012) 456. This is, for example, reflected by the manner in which the decision of the Permanent Court of International Justice in The SS Lotus [1927] PCIJ (ser A) No 10 has been assessed and revised since it was handed down. See the discussion of Australia’s maritime domain in chapter 17 of this volume. United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 UNTS 3 (entered into force 16 November 1994) (‘LOSC’). 71

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interests have particularly influenced a more assertive approach towards both prescriptive and enforcement jurisdiction dealing with matters ranging from illegal fishing in the sub-Antarctic to people smuggling in the Indian Ocean. The second is that Australia’s trade and economic circumstances mean that Australia’s economy is closely connected with major trading partners, the great majority of which are located some considerable distance from Australia. The result is that the offshore application of Australian law, particularly federal law, has become of increasing significance for the purposes of regulating the offshore activities of a variety of Australian actors, entities and interests. Australia’s circumstances as a federal state also raise particular issues which, while not unique, do highlight some of the complexities that arise with respect to jurisdiction and international law within a federation. To that end, it needs to be recalled that while the federal Parliament possesses expansive constitutional power with respect to external affairs under s 51(xxix) of the Commonwealth Constitution5 and many other powers under s 51 which can confer consistently with international law the capacity of Commonwealth law to operate extraterritorially,6 the Australian states also possess the constitutional capacity to enact laws and regulations that may have extraterritorial effect. In this realm, the maritime domain is illustrative of the capacity of the Australian states and territories to enact laws and regulations that can, under certain circumstances, have broad jurisdictional effect providing they do not conflict with parallel Commonwealth law.7 The expansion of Australian jurisdiction consistently with international law has also raised law enforcement issues that, in addition to creating challenges for relevant government agencies, have resulted in the need for appropriate enforcement mechanisms to be put in place both within Australia and abroad. One consequence of this has been the need for enhanced interagency cooperation between Australian government agencies and their foreign counterparts.8 To that end, it is essential to recall that for each expansion of Australian jurisdiction in reliance upon international law, it is critical to ensure that a law enforcement framework is also in place. 5

6

7 8

See generally Donald R Rothwell, ‘The High Court and the External Affairs Power: A Consideration of Its Outer and Inner Limits’ (1993) 15 Adelaide Law Review 209–40. Examples include ss 51(i) (trade and commerce), (vi) (defence), (x) (fisheries), (xx) (foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth) and (xxx) (the islands of the Pacific). For a recent analysis of how the Competition and Consumer Act 2010 (Cth) can operate extraterritorially, see Ian B Stewart, ‘Extraterritorial Application of Part IV of the Competition and Consumer Act’ (2014) 42 Australian Business Law Review 90. See generally Michael White, Australian Offshore Laws (Federation Press, 2009). This has particularly been the case with respect to transnational law enforcement where, in the wake of the 2002 Bali bombings, the Australian Federal Police developed close links with their Indonesian counterparts in dealing with terrorism and in developing counter-terrorism strategies.

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This chapter reviews these issues by first commencing with a brief discussion of the contemporary developments in jurisdiction, before undertaking a review of Australian state practice, barriers to the exercise of Australian jurisdiction, and contemporary issues.

II  CONTEMPORARY DEVELOPMENTS IN JURISDICTION [4.20]  International law with respect to jurisdiction developed in various phases during the 20th century through the decisions of international courts and tribunals,9 through treaties10 and through customary international law.11 The post-Second World War period in particular could be characterised as one in which state jurisdiction expanded as a result of developments in the international law of human rights; the law of armed conflict, which evolved into international humanitarian law; the law of the sea; international criminal law; and transnational criminal law. Australia, as an active participant in the development of all these areas of international law, was therefore poised to respond. The developments in international criminal law have been particularly striking in that regard, ranging from the manner in which universal jurisdiction was exercised in the Nuremberg and Tokyo Tribunals, to Australian War Crimes Courts that sat from 1945 to 1951 in Australia and also in Tokyo, Singapore and Hong Kong.12 Adoption in 1998 of the Rome Statute of the International Criminal Court,13 in the negotiation of which Australia had also been an active participant, proved ultimately to be one of the most signifi­ cant post-Federation drivers for the expansion of Australian jurisdiction with respect to both nationals and non-nationals.14 Related developments with respect to the recognition of state jurisdiction over other criminal offences with transboundary dimensions — for example, the hijacking of aircraft15 9 10

11

12

13

14 15

See, eg, The SS Lotus [1927] PCIJ (ser A) No 10. See, eg, LOSC; Antarctic Treaty, opened for signature 1 December 1959, 402 UNTS 71 (entered into force 23 June 1961); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1485 UNTS 85 (entered into force 26 June 1987). See, eg, Arrest Warrants Case (Belgium v Congo) [2002] ICJ Rep 63 discussing state practice with respect to passive personality jurisdiction. Dominique F J J De Stoop, ‘Australia and International Criminal Law’ in K W Ryan (ed), International Law in Australia (Law Book Co, 2nd ed, 1984) 155, 158–9, discussing the role of the War Crimes Act 1945 (Cth). Rome Statute of the International Criminal Court, opened for signature 17 July 1998, [2002] ATS 15 (entered into force 1 July 2002). See the discussion in chapter 9. Convention for the Suppression of Unlawful Seizure of Aircraft, opened for signature 16 December 1970, [1972] ATS 16 (entered into force 14 October 1971).

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and ships,16 terrorism, including the financing of terrorist acts,17 and transnational crimes such as people smuggling18 — have, since 2001 in particular, resulted in the expansion of Australian criminal jurisdiction relating to Australian citizens and nationals, but also to the acts of foreigners beyond Australian territorial limits or within the limits of Australia’s expanded jurisdictional scope. In that regard, Australia has acted in tandem with its major international partners in responding to a range of new national and international security threats by the exercise of expanded jurisdiction.

III  AUSTRALIAN STATE PRACTICE [4.30]  In order for a state to exercise prescriptive or enforcement jurisdiction with respect to persons, activities or events, there must be a sufficiently close connection between the subject matter and the forum state.19 There are five principles (territorial, nationality, passive personality, universality and protective) that are generally accepted as providing evidence of such a connection (although the exact scope of the latter three principles is uncertain).20 A sixth principle (the ‘effects’ doctrine) has found some acceptance in state practice, but its application remains controversial.21

A  Territorial Principle [4.40]  The territorial principle is the primary basis for jurisdiction under international law.22 It is the corollary of territorial sovereignty, which is 16

17

18

19

20

21

22

Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, opened for signature 10 March 1988, [1993] ATS 10 (entered into force 1 March 1992). International Convention for the Suppression of the Financing of Terrorism, opened for signature 9 December 1999, [2002] ATS 23 (entered into force 1 April 2002). Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organised Crime, opened for signature 15 November 2000, [2004] ATS 11 (entered into force 28 January 2004). Sir Robert Jennings and Sir Arthur Watts (eds), Oppenheim’s International Law (Oxford University Press, 9th ed, 2008) 457–8. See, eg, Dame Rosalyn Higgins, ‘International Trade Law and the Avoidance, Containment and Resolution of Disputes’ (1991) 230 Recueil des Cours 89, 89–90; Christopher Staker, ‘Jurisdiction’ in Malcolm Evans (ed), International Law (Oxford University Press, 4th ed, 2014) 309, 316–23; Harvard Research on International Law, ‘Draft Convention on Jurisdiction with Respect to Crime’ (1935) 29 American Journal of International Law 439, 445. James Crawford, Brownlie’s Principles of Public International Law (Oxford University Press, 8th ed, 2012) 462–3. Harvard Research on International Law, ‘Draft Convention on Jurisdiction with Respect to Crime’ (1935) 29 American Journal of International Law 439. For Australia, see Governments of Australia and the United Kingdom, ‘Brief of the Governments of Australia and the United Kingdom of Great Britain and Northern Ireland as Amici Curiae in Support of the Petitioners on Certain Questions in Their Petition for a Writ of Certiorari’, Submission to the Supreme Court of the United States in Rio Tinto PLC v Sarei, No 11-649 (Brief filed 28 December 2011), 14.

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viewed by Australia as ‘the basis of States’ jurisdiction and the source of their freedom to prescribe, adjudicate and enforce laws within their territory and with respect to persons therein’.23 Within its territory, a state may apply and enforce its law with respect to both nationals and non-nationals on the basis of the territorial principle. Consistent with the common law approach (pursuant to which jurisdiction was exercised on a strictly territorial basis and did not extend to non-nationals outside the territory of the forum state),24 Australia’s approach to jurisdiction has traditionally been dominated by the territorial principle.25 This is clearly reflected in the common law presumption that (unless a contrary intention appears) legislation should not be construed to operate extraterritorially.26 The presumption against extraterritoriality has also been given specific legislative effect in Australia through the Acts Interpretation Act 1901 (Cth) and related state and territory legislation.27 Australia also exercises territorial jurisdiction as a coastal state. Under the law of the sea, Australia’s territorial sovereignty extends beyond land to encompass its ports, internal waters and 12 nautical mile territorial sea (including the seabed below and airspace above).28 Accordingly, all Commonwealth legislation is expressed to have effect in the ‘coastal sea’ of Australia in the same way as it does on land.29 As a port state, Australia generally adopts the position that, as a matter of comity, the internal affairs of a foreign ship visiting an Australian port are a matter for the flag state.30 However, there are some issues with respect to which Australia employs its port state jurisdiction to impose conditions on the entry into port of foreign vessels.31 Beyond 23

24

25 26

27

28 29

30

31

‘Counter-Memorial of Australia’, Questions Relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v Australia) [2014] ICJ Pleadings 10. See, eg, R v Jameson [1896] 2 QB 425; HM Advocate v Hall (1881) 4 Couper 438; R v Keyn (1876) LR 2 Ex D 63. Macleod v Attorney-General (NSW) [1891] AC 455, 457–9. Adopted by the High Court in Jumbunna Coal Mine No Liability v Victorian Coal Miners’ Association (1908) 6 CLR 309, 363–4 Acts Interpretation Act 1901 (Cth) s 21(1); Interpretation Act 1987 (NSW) s 12(1); Interpretation of Legislation Act 1984 (Vic) s 48; Acts Interpretation Act 1931 (Tas) s 27; Acts Interpretation Act 1954 (Qld) s 35; Legislation Act 2001 (ACT) s 122; Interpretation Act 1978 (NT) s 38. LOSC art 2. See also R v Disun (2003) 27 WAR 146. Acts Interpretation Act 1901 (Cth) s 15B. The ‘coastal sea of Australia’ is defined in s 15B(4) to mean the territorial sea, and any waters which are landward of the territorial sea but not within the limits of a state or territory, together with the seabed below and airspace above. See Re Maritime Union of Australia; Ex parte CSL Pacific Shipping Inc (2003) 214 CLR 397, 417–18. See, eg, Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 236 (requiring written permission from the Environment Minister before foreign whaling vessels can enter port); Australian Maritime Safety Authority, ‘Bridge Resource Management (BRM) and Torres Strait Pilotage’, Marine Notice 7/2009 (advising that if a foreign vessel fails to comply with Australia’s system of pilotage in the Torres Strait under the Navigation Act 2012 (Cth), the owner/operator and master may face penalties under Australian law if the vessel subsequently enters an Australian port).

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the territorial sea, Australia exercises a more limited form of territorial jurisdiction with respect to customs, fiscal, sanitary and immigration matters in the contiguous zone,32 and economic activities relating to the living and non-living resources of the exclusive economic zone (‘EEZ’).33 In this regard, resource installations and fixed platforms in Australia’s offshore areas are also taken to be part of the territory of Australia for certain purposes, such as customs, criminal law and industrial relations.34 There is a complex set of laws by which Australia’s jurisdiction extends to its external territories, comprising a mixture of Commonwealth and state legislation.35 Unless the contrary intention appears, any geographic reference to ‘Australia’ in Commonwealth legislation is taken to include the external territories of Christmas Island and the Cocos (Keeling) Islands, but does not generally include any other external territories.36 However, a number of laws are specifically expressed to extend to every external territory of Australia.37 In addition, Australia’s offshore jurisdiction extends to the vast maritime zones generated by its external territories.38 This has been particularly important in relation to fisheries, and a number of foreign fishing vessels have been arrested and prosecuted for engaging in illegal, unreported and unregulated fishing in the area of EEZ adjacent to the Heard and Macdonald Islands.39 The application of the territorial principle is not always straightforward. In particular, it is often difficult to determine exactly where an offence took place, since its constituent elements may be committed in more than one country. The classic example is the situation in which a shot fired on one side of a border causes harm on the other side of the border.40 Accordingly, the territorial principle has been interpreted flexibly so as to encompass both ‘subjective territorial jurisdiction’ (where the crime is commenced within the territory of one state and completed in another) and ‘objective territorial jurisdiction’ (where any constituent element of a crime commenced abroad is completed in the territory of the forum state).41 Both these forms 32 33 34

35 36

37 38 39 40 41

LOSC art 33. LOSC pt V. See, eg, Customs Act 1901 (Cth) s 5C; Criminal Code Act 1995 (Cth) s 3B; Fair Work Act 2009 (Cth) s 33(1)(b). However, there is some question about the type of installations and platforms to which such legislation applies (see Fair Work Ombudsman v Pocomwell Ltd [No 2] (2013) 218 FCR 94, in which Barker J held that drilling rigs in Australia’s EEZ did not fall within the definition of ‘fixed platforms’ in the Fair Work Act 2009 (Cth)). See, eg, Michael White, Australian Offshore Laws (Federation Press, 2009) 292–319. Acts Interpretation Act 1901 (Cth) s 2B. State and territory laws generally apply in relation to the other external territories. See, eg, Criminal Code Act 1995 (Cth) s 3A. See, eg, Fisheries Management Act 1991 (Cth) ss 4(1), 7(1). See, eg, The ‘Volga’ Case (Russian Federation v Australia) ITLOS Case No 11 (23 December 2002). Ward v The Queen (1980) 142 CLR 308. James Crawford, Brownlie’s Principles of Public International Law (Oxford University Press, 8th ed, 2012) 458.

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of jurisdiction have been adopted in Australia, as reflected in the Criminal Code Act 1995 (Cth), which provides that the ‘standard geographical jurisdiction’ for criminal offences includes both subjective and objective territorial jurisdiction.42 While both subjective and objective territorial jurisdiction still rely on the territorial approach that Australia has traditionally favoured, contemporary Australian practice reveals an increasing trend towards the adoption of other, non-territorial bases for the exercise of jurisdiction. This is observable, for instance, in the four categories of ‘extended geographical jurisdiction’ established in the Criminal Code Act, in relation to which there is no requirement for any territorial link to Australia.43 These categories range from applying to Australian citizens for what they do anywhere in the world (category A), to Australian citizens and residents for what they do anywhere in the world (category B), and finally to anyone, anywhere, regardless of citizenship or residence, both provided it is also unlawful in the other place (category C) and regardless of whether or not it is lawful elsewhere (category D). In order to understand the basis on which jurisdiction may be exercised in such extraterritorial circumstances, it is necessary to examine the ‘relevant connections’ that may be found in the other recognised bases of jurisdiction. As Crawford points out, however, these bases of jurisdiction do not reflect ‘categories of jurisdiction specifically recognised by international law’, but simply provide evidence of a reasonable connection between the state and the conduct in question.44 Accordingly, there are strong similarities between several of these principles — particularly where the underlying rationale relates to protection or security of the state or its citizens — and they may apply cumulatively or alternatively to the same factual situations.

B  Nationality Principle [4.50]  Nationality is a universally recognised basis for the exercise of jurisdiction.45 As the name suggests, the nationality principle — also described 42

43 44

45

Criminal Code Act 1995 (Cth) s 14.1. Another example of objective territorial jurisdiction is s 6(3) of the Crimes at Sea Act 2001 (Cth), which provides for Australian jurisdiction in relation to a crime committed on a foreign ship, if the first country at which the ship calls, or the person lands, after the criminal act is Australia or an external territory of Australia. Criminal Code Act 1995 (Cth) div 15. James Crawford, Brownlie’s Principles of Public International Law (Oxford University Press, 8th ed, 2012) 477. James Crawford, Brownlie’s Principles of Public International Law (Oxford University Press, 8th ed, 2012) 459. For Australia, see Governments of Australia and the United Kingdom, ‘Brief of the Governments of Australia and the United Kingdom of Great Britain and Northern Ireland as Amici Curiae in Support of the Petitioners on Certain Questions in Their Petition for a Writ of Certiorari’, Submission to the Supreme Court of the United States in Rio Tinto PLC v Sarei, No 11-649 (Brief filed 28 December 2011) 14.

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as the ‘active personality’ principle — provides a basis for a person’s state of nationality to assert jurisdiction with respect to the activities of that person wherever they may be. This reflects the importance of the reciprocal relationship of allegiance and protection between a state and its nationals.46 However, the extent to which states seek to assert jurisdiction over their nationals abroad varies markedly, depending on the traditions, municipal laws and criminal procedures of the state in question. Historically, Australia (like other common law jurisdictions) has made limited use of the nationality principle, which has its origins in the civil law tradition of continental Europe.47 Accordingly, Australian examples of nationality-based jurisdiction have related principally to important issues of allegiance or obligation between the state and its citizens, such as taxation, treason and the conduct of Australians serving abroad in an official capacity.48 However, while the nationality principle remains the exception rather than the rule, there has been an increasing trend towards using it as the basis for jurisdiction, particularly in relation to serious crimes that are committed overseas by Australian nationals but not prosecuted in the country in which they were committed, such as sexual offences against children.49 The High Court of Australia specifically upheld the validity of such jurisdiction as a matter of Australian law in the case of XYZ v Commonwealth, in which the appellant, an Australian citizen committed for trial in Victoria in relation to child sex offences committed in Thailand, challenged the ability of the Commonwealth to exercise extraterritorial jurisdiction with respect to offences occurring outside Australia.50 The appeal was dismissed by the High Court, which recognised that sovereignty includes ‘the right to regulate, by legislation, the conduct outside Australia of Australian citizens or residents’ and endorsed the nationality principle.51 Australia is also party to a number of modern multilateral conventions that employ nationality as a basis for jurisdiction in relation to issues of common international concern, such as bribery, corruption and transnational crime. 46

47 48

49 50 51

Bruno Simma and Andreas Müller, ‘Exercise and Limits of Jurisdiction’ in James Crawford and Martti Koskenniemi (eds), The Cambridge Companion to International Law (Cambridge University Press, 2012) 134, 142. Cedric Ryngaert, Jurisdiction in International Law (Oxford University Press, 2008) 43. See, eg, Joyce v DPP [1946] 1 All ER 186; Defence Force Discipline Act 1982 (Cth) s 9; Crimes (Overseas) Act 1964 (Cth) s 3A. However, the approach to some of these traditional categories of allegiance appears to have been modified in recent years to apply in situations that do not require the link of nationality. For example, following amendments introduced by the Security Legislation Amendment (Terrorism) Act 2002 (Cth), there is no longer a nationality requirement in relation to the crime of treason (see Criminal Code Act 1995 (Cth), ss 80.1, 80.4). Similarly, in some instances taxation jurisdiction has been extended to the activities of foreign nationals outside Australia. Criminal Code Act 1995 (Cth) div 272. XYZ v Commonwealth (2006) 227 CLR 532. XYZ v Commonwealth (2006) 227 CLR 532, 540–1 [13] (Gleeson CJ).

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These conventions not only provide for nationality jurisdiction to be exercised on a discretionary basis in relation to offences committed in the territory of other states parties, but also oblige parties to either prosecute or extradite their nationals for such offences.52 In addition, Australia relies on the nationality principle to underpin categories A and B of extended geographical jurisdiction under the Criminal Code Act,53 and to establish jurisdiction over Australian nationals in relation to a range of offences at sea.54 Importantly, these assertions of jurisdiction do not seek to undermine or remove the jurisdiction of the territorial state, but operate concurrently with it. Accordingly, their exercise may require discussion and resolution with one or more other states.55 The only circumstance in which nationality is the exclusive basis for jurisdiction arises in Antarctica, where, due to the importance and complexity of the jurisdictional arrangements in place, the Antarctic Treaty provides that nationality is the only basis upon which jurisdiction may be exercised.56 In order to exercise nationality jurisdiction, it is necessary to determine who (or what) is considered a national of the state. While each state may establish its own requirements for the grant of nationality,57 the acceptance by one state of a claim of nationality by another state is ultimately a question of international law.58 In this regard, contentions as to which state or states can exercise jurisdiction on the basis of nationality are most likely to arise in relation to dual citizens, since while multiple states may concurrently assert prescriptive jurisdiction over an individual, only one can exercise enforcement jurisdiction. However, the only relevant guidance that can be derived from international law is that there must be a ‘genuine connection’ 52

53

54

55

56

57

58

See, eg, Convention on Combating Bribery of Foreign Public Officials in Business Transactions, opened for signature 17 December 1997, [1999] ATS 21 (entered into force 15 February 1999) arts 4, 10; United Nations Convention against Corruption, opened for signature 31 October 2003, 2349 UNTS 41 (entered into force 14 December 2005) art 42; United Nations Convention against Transnational Organized Crime, opened for signature 15 November 2000, 2225 UNTS 209 (entered into force 29 September 2003) art 15. Criminal Code Act 1995 (Cth) s 15. Categories A and B jurisdiction apply to a range of potentially transnational offences, such as the use of the postal service (ss 471.10– 471.13) and documents relating to people smuggling (ss 471.16–471.26). See, eg, Crimes at Sea Act 2000 (Cth) s 6(2); Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 224; Fisheries Management Act 1991 (Cth) s 105F. This has been formalised in the Crimes at Sea Act 2000 (Cth) through a requirement that the Attorney-General give his or her consent, taking into account any views expressed by a government of a state that may have concurrent jurisdiction, before any prosecution can proceed (ss 6(4), (5)). Antarctic Treaty, opened for signature 1 December 1959, 402 UNTS 71 (entered into force 23 June 1961) art 8. Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws, opened for signature 4 December 1930, 179 LNTS 89 (entered into force 7 January 1937) art 1. Nationality Decrees in Tunis and Morocco (Advisory Opinion) [1923] PCIJ (ser B) No 4, 23–4.

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between a state and its national in order for the state to exercise the right of diplomatic protection on behalf of that person.59 In Australia, the grant, revocation and renunciation of nationality are regulated by the Australian Citizenship Act 2007 (Cth), which does not place any restrictions on a person holding dual citizenship. The concept of nationality at international law extends to ships and aircraft, which are subject to the regulation of their state of registration.60 As a matter of international law, dual nationality is specifically prohibited with respect to ships and aircraft.61 However, it is once again left to the discretion of the state to set the conditions upon which registration is granted (although, in the case of ships, international law requires that there be a genuine ‘link’ with the state of registration).62 The nationality of corporations is also determined, as a matter of international law, by reference to the state of registration or incorporation.63

C  Passive Personality Principle [4.60]  The relationship of nationality also underpins the passive personality principle, according to which jurisdiction is exercised by reference to the nationality of the victim of an offence.64 This principle has been widely criticised, and has even been asserted not to be a legitimate basis for the exercise of jurisdiction at all.65 However, it has gained increasing acceptance in certain contexts,66 principally through its incorporation as a ground for jurisdiction in multilateral conventions on issues of common concern, such

59 60

61 62

63

64

65

66

Nottebohm Case (Liechtenstein v Guatemala) (Second Phase) [1955] ICJ Rep 4. LOSC art 91; Convention on International Civil Aviation, opened for signature 12 July 1944, 15 UNTS 295 (entered into force 4 April 1947) art 17 (‘Chicago Convention’). LOSC art 92; Chicago Convention art 18. LOSC art 91. See further Donald R Rothwell and Tim Stephens, The International Law of the Sea (Bloomsbury, 2nd ed, 2016) 168. In Australia, this is given effect through the Shipping Registration Act 1981 (Cth). Barcelona Traction, Light and Power Company Ltd (Belgium v Spain) (Second Phase) [1970] ICJ Rep 3, 42. See also Ahmadou Sadio Diallo (Guinea v Democratic Republic of the Congo) (Preliminary Objections) [2007] ICJ Rep 582 [94]. James Crawford, Brownlie’s Principles of Public International Law (Oxford University Press, 8th ed, 2012) 461. The passive personality principle was specifically rejected by Judge Moore in The SS Lotus [1927] PCIJ (ser A) No 10 and was not included in the 1935 Draft Convention on Jurisdiction with Respect to Crime prepared by Harvard Research on International Law, ‘Draft Convention on Jurisdiction with Respect to Crime’ (1935) 29 American Journal of International Law 439. In their joint separate opinion in the Arrest Warrants Case, Judges Higgins, Kooijmans and Buergenthal noted that passive personality ‘today meets with relatively little opposition, at least so far as a certain category of offences is involved’: Arrest Warrants Case (Belgium v Congo) [2002] ICJ Rep 63 [48].

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as hostage-taking and terrorism offences.67 Over time, a general consensus appears to have emerged on the use of the passive personality principle as a basis for jurisdiction in relation to acts of terrorism, which may permit its use beyond the framework of such multilateral treaties.68 Australian practice has followed this trend; Australia accepts the legitimacy of the passive personality principle as a matter of international law,69 but has employed the principle in very few instances. The only instance in which the passive personality principle is explicitly used in Australia to provide a basis for jurisdiction is div 115 of the Criminal Code Act, which makes it an offence to murder, commit manslaughter or intentionally or recklessly cause serious harm to an Australian citizen overseas. This division was inserted after the October 2002 terrorist attacks in Bali, in which many Australians were killed or injured, and is specifically intended to deal with overseas terrorist acts against Australians.70 Given the broad way in which the offences are framed, they could be applied in a range of circumstances not necessarily involving terrorism. However, the potential for excessive assertions of jurisdiction should be mitigated by the requirement that the Attorney-General’s consent be obtained before proceedings are commenced.71

D  Universality Principle [4.70]  Universal jurisdiction is based on the principle that some crimes are so abhorrent that they constitute offences against the international community as a whole and are thus subject to the jurisdiction of any state having custody 67

68

69 70

71

See, eg, International Convention against the Taking of Hostages, opened for signature 17 December 1979, 1316 UNTS 205 (entered into force 9 June 1983) art 5; Convention on Offences and Certain Other Acts Committed on Board Aircraft, opened for signature 14 September 1963, 1248 UNTS 451 (entered into force 4 April 1969) art 4; Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, opened for signature 10 March 1988, [1993] ATS 10 (entered into force 1 March 1992) art 6(2); International Convention for the Suppression of Terrorist Bombings, opened for signature 15 December 1997, 2149 UNTS 256 (entered into force 12 March 2002) art 6(2). Christopher Staker, ‘Jurisdiction’ in Malcolm Evans (ed), International Law (Oxford University Press, 4th ed, 2014) 309, 327; James Crawford, Brownlie’s Principles of Public International Law (Oxford University Press, 8th ed, 2012) 461; Dame Rosalyn Higgins, ‘International Trade Law and the Avoidance, Containment and Resolution of Disputes’ (1991) 230 Recueil des Cours 89, 66. XYZ v Commonwealth (2006) 227 CLR 532, 535–6 [4] (Gleeson CJ). Explanatory Memorandum, Criminal Code Amendment (Offences Against Australians) Bill 2002 (Cth); Commonwealth, Parliamentary Debates, House of Representatives, 12 November 2002, 8797 (Daryl Williams, Attorney-General). Criminal Code Act 1995 (Cth) s 115(6). The requirement to obtain the Attorney-General’s consent also applies to any prosecution involving a foreign national in relation to an offence that occurred wholly outside Australia, whether subject to standard or extended geographical jurisdiction (s 16.1).

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of the offender.72 Accordingly, in contrast to the other bases of jurisdiction, universal jurisdiction is determined not by connection to the state, but by reference to the character of the activity in question.73 The original crime of universal jurisdiction was piracy, in relation to which all states shared the important interest of ensuring good order on the high seas.74 Over time, the range of offences subject to universal jurisdiction has increased, and while there is still some uncertainty about the extent of the principle it is now generally accepted that slavery, war crimes, genocide, crimes against humanity, and torture attract universal jurisdiction.75 While the universality principle enables states to exercise prescriptive jurisdiction with respect to these crimes in the absence of any other connection, any exercise of enforcement jurisdiction in relation to these offences still requires the presence of the accused in the territory of the state concerned. Accordingly, universal jurisdiction cannot be exercised in absentia.76 Australia recognises universal jurisdiction as a ‘well-established principle of international law’, which ‘vests in every State the competence to exercise criminal jurisdiction over those individuals responsible for the most serious crimes of international concern regardless of where the conduct occurs’.77 Australia recognises that piracy, genocide, war crimes, crimes against humanity, slavery and torture are universal crimes, and has established prescriptive universal jurisdiction over them.78 Under the Crimes Act 1914 (Cth), Australian jurisdiction extends to acts of piracy committed by any person not only in the coastal sea of Australia but also on the high seas beyond.79 In addition, the offences of slavery, war crimes, genocide, crimes against humanity, and torture (together with inchoate offences relating to 72

73

74

75

76

77

78

79

Sir Robert Jennings and Sir Arthur Watts (eds), Oppenheim’s International Law (Oxford University Press, 9th ed, 2008) 469; Dame Rosalyn Higgins, ‘International Trade Law and the Avoidance, Containment and Resolution of Disputes’ (1991) 230 Recueil des Cours 89, 92. James Crawford, Brownlie’s Principles of Public International Law (Oxford University Press, 8th ed, 2012) 467. James Crawford, Brownlie’s Principles of Public International Law (Oxford University Press, 8th ed, 2012) 468. James Crawford, Brownlie’s Principles of Public International Law (Oxford University Press, 8th ed, 2012) 468 ; Dame Rosalyn Higgins, ‘International Trade Law and the Avoidance, Containment and Resolution of Disputes’ (1991) 230 Recueil des Cours 89, 92–6. See, eg, Arrest Warrants Case (Belgium v Congo) [2002] ICJ Rep 35 [9] (Judge Guillaume). See further Roger O’Keefe, ‘Universal Jurisdiction: Clarifying the Basic Concept’ (2004) 2 Journal of International Criminal Justice 735, 747–9. ‘Australian Views on the Scope and Application of the Principle of Universal Jurisdiction’ . ‘Australian Views on the Scope and Application of the Principle of Universal Jurisdiction’ . Crimes Act 1914 (Cth) pt IV.

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these crimes, such as attempt, incitement, complicity, aiding and abetting) are criminalised under the Criminal Code Act.80 These offences are subject to unrestricted category D extended geographical jurisdiction, which applies regardless of whether or not the conduct took place or had any result inside or outside Australia; involved an Australian citizen, resident or corporation; or constituted an offence under the law of the foreign country.81 Australia has also taken steps to exercise universal jurisdiction with respect to war crimes committed during the Second World War, by extending the application of the War Crimes Act 1945 (Cth) to people who did not have any connection to Australia at the time of the offence but subsequently became Australian citizens or residents.82 The legitimacy of these amendments was tested in the High Court of Australia in Polyukhovich v Commonwealth.83 The plaintiff, who had been charged with committing war crimes in the Ukraine during the Second World War, prior to becoming an Australian citizen, sought to invalidate the War Crimes Act on the basis that it was not a law with respect to external affairs. The majority of the High Court disagreed, finding that the legislation was a valid exercise of the external affairs power because it related to conduct that took place outside Australia and was therefore ‘external’ to Australia. In addition, two judges specifically endorsed the concept that universal jurisdiction could be conferred on an Australian court as an aspect of the external affairs power.84 Beyond these generally recognised categories of universal jurisdiction, the universality principle has also been invoked in the context of terrorism. While there is no general international convention establishing universal jurisdiction with respect to terrorism — or even a universally accepted definition of terrorism — a number of United Nations Security Council Resolutions require states to exercise jurisdiction over terrorist activities.85 In addition, the universality principle has been included in the jurisdictional framework of a wide range of multilateral conventions in relation to terrorism and related offences.86 The jurisdictional provisions relating to terrorism generally take the form of an obligation to either extradite or 80

81 82 83 84 85

86

Criminal Code Act 1995 (Cth) divs 268 (slavery), 270 (war crimes, genocide and crimes against humanity), 274 (torture). Criminal Code Act 1995 (Cth) s 16.1. War Crimes Amendment Act 1988 (Cth). Polyukhovich v Commonwealth (1991) 172 CLR 501. Polyukhovich v Commonwealth (1991) 172 CLR 501, 562–3 (Brennan J), 661 (Toohey J). See, eg, SC Res 1269, UN SCOR, 4053rd mtg, UN Doc S/Res/1269 (19 October 1999); SC Res 1373, UN SCOR, 4385th mtg, UN Doc S/Res/1373 (28 September 2001); SC Res 1624, UN SCOR, 5261st mtg, UN Doc S/Res/1624 (14 September 2005). See, eg, International Convention for the Suppression of Terrorist Bombings, opened for signature 15 December 1997, 2149 UNTS 256 (entered into force 12 March 2002) art 6(4); International Convention for the Suppression of the Financing of Terrorism, opened for signature 9 December 1999, [2002] ATS 23 (entered into force 1 April 2002) art 7(4).

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prosecute an offender found within the territory of a state party (aut dedere aut judicare). However, since these obligations only apply as between the parties to the treaty, this is not really an example of universal jurisdiction, but one of ‘obligatory territorial jurisdiction over persons, albeit in relation to acts committed elsewhere’.87 In Australia, most terrorism and related offences are subject to extended geographical jurisdiction category D under the Criminal Code Act, which, as noted above, does not require any connection with Australia.88 Accordingly, these provisions could be considered to be an exercise of prescriptive universal jurisdiction. However, this does not mean that the prosecution of such offences would necessarily be an exercise of universal jurisdiction, since enforcement jurisdiction with respect to terrorist offences could also potentially be exercised on one of the other bases of extraterritorial jurisdiction, such as passive personality or the protective principle. As Brierly has observed, it is not always possible to ‘infer from the practice adopted by a State the theory upon which it bases its assumption of jurisdiction’.89 In practice, the jurisdictional basis (or bases) relied upon to prosecute an offence will depend on the nature and circumstances of the ‘connection’ between the state and the relevant conduct.

E  Protective Principle [4.80]  The protective principle relates to offences against the territorial, economic and political security of the state, and reflects the intrinsic right and responsibility of a state to exercise jurisdiction in relation to acts committed abroad that threaten its vital interests.90 In contrast to the passive personality principle, the protective principle applies to offences against the state itself and not against its nationals. It has long been accepted as a basis for the exercise of extraterritorial jurisdiction over foreigners,91 but only in respect of issues that have the potential to threaten the security of the state, such as espionage or treason, counterfeiting of currency or official documents, and attacks on 87

88

89

90

91

Arrest Warrants Case (Belgium v Congo) [2002] ICJ Rep 63 [41] (Judges Higgins, Kooijmans and Buergenthal). See also James Crawford, Brownlie’s Principles of Public International Law (Oxford University Press, 8th ed, 2012) 471. Cf Roger O’Keefe, ‘Universal Jurisdiction: Clarifying the Basic Concept’ (2004) 2 Journal of International Criminal Justice 735, 746–7. See, eg, Criminal Code Act 1995 (Cth) divs 101 (terrorism offences), 102 (terrorism organisations), 103 (terrorist financing). J Brierley, ‘Criminal Competence of States in Respect of Offences Committed Outside Their Territory’, Committee of Experts for the Progressive Codification of International Law (1926) 7 Publications of the League of Nations 2. Sir Robert Jennings and Sir Arthur Watts (eds), Oppenheim’s International Law (Oxford University Press, 9th ed, 2008) 470–1; Christopher Staker, ‘Jurisdiction’ in Malcolm Evans (ed), International Law (Oxford University Press, 4th ed, 2014) 309, 321. Harvard Research on International Law, ‘Draft Convention on Jurisdiction with Respect to Crime’ (1935) 29 American Journal of International Law 439, 543.

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embassies or consulates.92 While the range of issues that may give rise to an exercise of protective jurisdiction is not closed, the potential for expansion of the doctrine is necessarily limited by its underlying rationale: the protection of vital interests.93 While the protective principle has not been widely used by common law countries, its validity was endorsed by the House of Lords in Joyce v Director of Public Prosecutions with regard to the crime of treason, in relation to which Lord Howitt observed that: No principle of comity demands that a state should ignore the crime of treason committed against it outside its territory. On the contrary a proper regard for its own security requires that all those who commit that crime, whether they commit it within or without the realm should be amenable to its laws.94 The protective principle is used in Australian law in relation to the counterfeiting of currency95 and the use of criminal or terrorist conduct to compel the Commonwealth to act (or refrain from acting) in a particular way.96 Beyond this, since the underlying rationale of security and protection overlaps significantly with other jurisdictional principles, while Australia has a range of legislation that could be invoked as an exercise of protective jurisdiction, most of these offences could equally be enforced on other grounds.97 For example, the crime of treason in Joyce v Director of Public Prosecutions is often cited as an example of passive personality jurisdiction, and the legislative scheme in div 115 of the Criminal Code Act relating to offences against Australians (which is often described as being based on passive personality jurisdiction) can equally be conceived as an exercise of protective jurisdiction.

F  Effects Doctrine [4.90]  In contrast to the high threshold of ‘national interest’ that underlies the protective principle, the effects doctrine is asserted to provide jurisdiction over extraterritorial conduct having ‘effects’ within the state.98 92

93

94 95 96

97

98

D W Bowett, ‘Jurisdiction: Changing Patterns of Authority over Activities and Resources’ (1963) 53 British Yearbook of International Law 237, 247. Christopher Staker, ‘Jurisdiction’ in Malcolm Evans (ed), International Law (Oxford University Press, 4th ed, 2014) 309, 321. Joyce v Director of Public Prosecutions [1946] 1 All ER 186, 372. Crimes (Currency) Act 1981 (Cth). See, eg, Crimes (Hostages) Act 1989 (Cth) s 8(3)(b); Crimes (Ships and Fixed Platforms) Act 1992 (Cth) s 18; Criminal Code Act 1995 (Cth) s 72.4. See, eg, Crimes Act 1914 (Cth) pts II (offences against the government), VII (official secrets and unlawful soundings); Criminal Code Act 1995 (Cth) ch 5 (the security of the Commonwealth). See Christopher Staker, ‘Jurisdiction’ in Malcolm Evans (ed), International Law (Oxford University Press, 4th ed, 2014) 309, 318; Bruno Simma and Andreas Müller, ‘Exercise and Limits of Jurisdiction’ in James Crawford and Martti Koskenniemi (eds), The Cambridge Companion to International Law (Cambridge University Press, 2012) 134, 140.

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This doctrine was developed largely by the United States in the context of competition law, where it has been relied upon to provide jurisdiction over the conduct of foreign nationals occurring wholly outside the United States but producing an economic effect within its territory.99 Pursuant to the effects doctrine, US competition law has been held to apply where foreign conduct ‘was meant to produce and did in fact produce some substantial effect in the United States’.100 Although the scope and application of this doctrine remain controversial and subject to criticism,101 it is increasingly cited as a basis for jurisdiction outside the United States, particularly in the European Union.102 For example, in the Wood Pulp Case, price-fixing agreements made outside the European Union that affected markets within the European Union were held to be subject to EU competition law.103 However, many of the non-US examples can also be argued to involve some element of objective territoriality, such as the implementation of a cartel scheme or physical damage caused by environmental pollution within the territory of the forum.104 Consistent with its predominantly territorial approach to jurisdiction, the effects doctrine is not generally applied in Australia.105 Australia’s competition laws only apply in relation to markets ‘in Australia’, and only extend to extraterritorial conduct by persons or corporations that are incorporated in, carrying on business in, citizens of, or ordinarily resident in Australia.106 Australia’s securities legislation has the same restriction.107 Australia has acknowledged that the effects doctrine ‘may allow a state to assert prescriptive jurisdiction over events that have a clear effect in its territory, even if all

99

100 101

102

103

104

105

106

107

See, eg, United States v Aluminum Co of America, 148 F 2d 416 (1945); Timberlane Lumber Co v Bank of America, 549 F 2d 597 (9th Cir, 1976); Mannington Mills Inc v Congoleum Corp, 595 F 2d 1287 (3rd Cir, 1979). Hartford Fire Insurance v California, 509 US 764, 796 (1993). See, eg, James Crawford, Brownlie’s Principles of Public International Law (Oxford University Press, 8th ed, 2012) 463; Sir Robert Jennings and Sir Arthur Watts (eds), Oppenheim’s International Law (Oxford University Press, 9th ed, 2008) 473. James Crawford, Brownlie’s Principles of Public International Law (Oxford University Press, 8th ed, 2012) 464. A Ahlström Osakeyhtiö v Commission of the European Communities (89/85) [1988] ECR 5193 (‘Wood Pulp Case’). However, the European Court of Justice characterised this as an application of the ‘territoriality principle as universally recognized in public international law’: at [18]. Christopher Staker, ‘Jurisdiction’ in Malcolm Evans (ed), International Law (Oxford University Press, 4th ed, 2014) 309, 318. See, eg, Meyer Heine Pty Ltd v China Navigation Co Ltd (1966) 115 CLR 10; Bray v HoffmanLa Roche (2002) 118 FCR 1; Norcast S.ár.L v Bradken Ltd [No 2] (2013) 219 FCR 14. Competition and Consumer Act 2010 (Cth) ss 4E, 5. The Australian government has specifically rejected a recommendation that this restriction be removed (see Commonwealth, Australian Government Response to the Competition Policy Review (2015) 22). Australian Securities and Investments Commission Act 2001 (Cth) s 12AC(1).

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planning and execution took place elsewhere’,108 but has expressed concern about the potential for excessive assertions of extraterritorial jurisdiction on this basis.109

IV  BARRIERS TO THE EXERCISE OF AUSTRALIAN JURISDICTION [4.100]  Notwithstanding the extent and sweep of Australian practice in the exercise of jurisdiction, there are some barriers to the effective exercise of Australian jurisdiction. One prominent example arises with respect to Antarctica, where Australian sovereignty is not recognised outside of a small group of other territorial claimants;110 the other instance is where the application of Australian law has been barred by foreign law.

A  Japanese Whaling in the Southern Ocean [4.110]  Australia has in recent decades adopted a strong conservation position with respect to whales, and this has been reflected in Australia’s position with respect to Japanese whaling in the Southern Ocean highlighted by the commencement of proceedings before the International Court of Justice111 and by the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (‘EPBC Act’), which declares an ‘Australian Whale Sanctuary’.112 In this respect, a feature of the EPBC Act is the application of Australian law offshore the Australian Antarctic Territory (‘AAT’), with the effect that any whaling activity within the Australian Whale Sanctuary offshore the AAT has been prohibited. However, in contrast to the general approach that laws in Antarctica are only applied to nationals,113 the EPBC Act purports to apply not only to Australian nationals and Australian flagged vessels, but to all persons and vessels, highlighting the importance that Australia places on these issues.114 108

109

110

111 112 113

114

Australian Government, ‘Brief of the Government of Australia as Amicus Curiae in Support of the Defendants-Appellees’, Submission to the Supreme Court of the United States in Morrison v National Australia Bank, No 08-1191 (Brief filed 26 February 2010) 24–5. Australian Government, ‘Amicus Curiae Memorandum’, Submission to the United States Court of Appeals for the Second Circuit in In Re Uranium Antitrust Litigation, 617 F 2d 1248 (1980), quoted in ‘Jurisdiction. The Extra-Territorial Application of United States Antitrust Laws. The Westinghouse Uranium Antitrust Proceedings’ (1983) 8 Australian Year Book of International Law 287, 292–5. Australia, France, New Zealand and the United Kingdom each reciprocally recognises their claims on the Antarctic continent. Whaling in the Antarctic (Australia v Japan; New Zealand intervening) [2014] ICJ Reps 226. Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 225. See generally the discussion in James Crawford and Donald R Rothwell, ‘Legal Issues Confronting Australia’s Antarctica’ (1992) 13 Australian Year Book of International Law 53. Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 229.

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In 2004, a non-governmental organisation, Humane Society International (‘HSI’), commenced proceedings in the Federal Court of Australia arguing that Japanese whaling activity within the Australian Whale Sanctuary offshore the AAT was contrary to the EPBC Act. In a series of proceedings before the Federal Court from 2004 to 2008,115 declaratory and injunctive relief was sought concerning whaling alleged to have been carried out by Kyodo Senpaku Kaisha, a corporation holding a licence from the Japanese government to conduct ‘special permit’ whaling in the Australian Whale Sanctuary offshore the AAT. Following a series of legal proceedings,116 the Federal Court in January 2008 delivered its final judgment in this phase of the matter.117 Satisfied that a ‘significant number of the whales were taken inside the Australian Whale Sanctuary’,118 the Court concluded that Kyodo had contravened a number of relevant provisions of the EPBC Act in relation to both minke whales and fin whales and issued orders that it be restrained from engaging in any such further acts.119 HSI arranged for the Federal Court’s judgment to be served upon Kyodo in Japan in late January 2008;120 however, Kyodo continued its whaling activities. In 2015, this matter was returned to the Federal Court, where HSI sought additional declarations and orders against Kyodo. Orders for contempt of court were issued against Kyodo with respect to four whaling seasons from 2008/9 to 2012/13, with a total fine of $1 million being imposed.121 The HSI cases are significant for a number of perspectives with respect to Australian jurisdiction. First, in the initial proceedings before Allsop J at trial, submissions were made by the Commonwealth Attorney-General as to the international law issues associated with Australia’s EEZ claim and the enforcement of Australian law. In those submissions, a number of matters were highlighted — including that any attempt by Australia to enforce Australian law against Japanese vessels and nationals within the EEZ offshore the AAT would be viewed by Japan as a violation of international law, and that any such action would also prompt an adverse reaction from other Antarctic Treaty parties. Allsop J concluded on this point that: 115

116

117 118

119

120

121

Commencing with Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2004) 212 ALR 551. See the discussion in Tim Stephens and Donald R Rothwell, ‘Japanese Whaling in Antarctica: Humane Society International Inc v Kyodo Senpaku Kaisha Ltd’ (2007) 16 Review of European Community and International Environmental Law 243. Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2008) 165 FCR 510. Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2008) 165 FCR 510, 521–2 [39]. Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2008) 165 FCR 510, 525–6 [55]. Peter Alford, ‘Aussie Judgment Served on Whalers’, The Australian (Sydney), 24 January 2008, 7; the circumstances of service against Kyodo are discussed in Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2015) 238 FCR 209, [13]–[16]. Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2015) 238 FCR 209.

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[I]t appears that the Commonwealth has not sought to intercept, board or arrest Japanese vessels engaged in whaling activities adjacent to the Antarctic Territory and in the Antarctic EEZ.122 Second, Kyodo has not at any point in time appeared before the Federal Court to respond to any of the proceedings brought against it by HSI. Third, the enforcement of the 2008 Federal Court orders and injunction and the 2015 fines against Kyodo have faced, and will continue to face, challenges because Kyodo has no jurisdictional presence within Australia other than when it conducts its whaling operations within the Australian Whale Sanctuary.

B  Foreign Blocking Statutes/Antitrust Matters [4.120]  With the rise in antitrust law, various states have adopted mechanisms to place a bar on foreign states applying their law to achieve trade or competition policy objectives, or to enforce judgments against foreign corporations operating within their markets. Such ‘blocking statutes’ typically seek to block the effects of orders from foreign courts regarding the giving of evidence, production of documents, enforcement of judgments, or seizure of assets. The Protection of Trading Interests Act 1980 (UK) is an example of such a foreign statute,123 of which the Australian counterpart is the Foreign Proceedings (Excess of Jurisdiction) Act 1984 (Cth). The Foreign Proceedings (Excess of Jurisdiction) Act: … protects Australian laws, policies and interests against the extraterritorial application of foreign laws … so that Australia will have available a comprehensive arsenal of defences if faced with a challenge to its sovereignty or national interests by the extraterritorial application of foreign laws.124 The Act enables the Attorney-General to make orders prohibiting the production of evidence to a foreign court or tribunal, blocking foreign anti-trust judgments, and preventing Australian nationals and companies from complying with non-monetary judgments from foreign courts requiring the performance of an act in Australia that would be contrary to the national interest.125 122

123

124

125

Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2005] FCA 664 (27 May 2005) [15]. See the discussion in A V Lowe, ‘Blocking Extraterritorial Jurisdiction: The British Protection of Trading Interests Act, 1980’ (1981) 75 American Journal of International Law 257. Explanatory Memorandum, Foreign Proceedings (Excess of Jurisdiction) Bill 1983 (Cth) [1]. See generally Deborah Senz and Hilary Charlesworth, ‘Building Blocks: Australia’s Response to Foreign Extraterritorial Legislation’ (2001) 2 Melbourne Journal of International Law 69.

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However, the application of blocking statutes works in both directions. As Australian competition and consumer law has developed in recent decades,126 and the Australian Competition and Consumer Commission (‘ACCC’) has taken a proactive role in dealing with anti-competitive behaviour and cartels, the potential for Australian law and Australian courts to run afoul of foreign blocking statutes has increased. Nevertheless, whether a foreign blocking statute has the capacity to bar the application of Australian law is a matter of controversy, and whether a foreign blocking statute applies will very much depend upon where a foreign corporation is operating and the relevant law of the forum. Recently, the Australian courts have denied the application of foreign blocking statutes. In 2008, in Michael Wilson & Partners Ltd v Nicholls,127 the New South Wales Supreme Court held that a Kazakhstan blocking statute did not bar the application of Australian law, as the law of the forum, with respect to an order for the production of discovered documents. In 2014, the Federal Court of Australia in Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi Energia SRL128 dismissed an application by a French corporation to be exempt from a discovery order sought by the ACCC while undertaking investigations into contravention of the Trade Practices Act 1974 (Cth). It was argued that giving effect to the ACCC request would be in contravention of a French blocking statute; however, the Federal Court rejected that argument and exercised a discretion in favour of the Australian discovery order.129

V  CONTEMPORARY ISSUES [4.130] To conclude, this chapter will briefly address some contemporary issues arising with respect to the exercise of Australian jurisdiction and international law.

A  Mutual Assistance/Law Enforcement [4.140]  Through the combined impact of the 2001 terrorist attacks on the United States and the 2002 Bali bombings, Australia began to take a more proactive position regarding mutual assistance with partner states 126

127 128

129

Competition and Consumer Act 2010 (Cth); see generally Alex Bruce, Australian Competition Law (LexisNexis, 2nd ed, 2013). Michael Wilson & Partners Ltd v Nicholls (2008) 74 NSWLR 218. Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi Energia SRL [2014] FCA 5 (17 January 2014). Australian Competition and Consumer Commission v Prysmian Cavi E Sistemi Energia SRL [2014] FCA 5, [42] (Besanko J); approach upheld in Nexans SA RCS Paris 393 525 85 v Australian Competition and Consumer Commission [2014] FCA 255 (20 March 2014).

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with respect to criminal investigations relating to all aspects of terrorism and transnational crimes. While the principal Commonwealth legislative framework, the Mutual Assistance in Criminal Matters Act 1987 (Cth), predated these events, the Act was amended on 20 occasions between 2002 and 2015 in order to enhance Australia’s mutual assistance capacity. The legislative framework is underpinned by bilateral and multilateral treaties, including 29 bilateral treaties with countries such as China, Indonesia, Malaysia, the Philippines and Thailand.130 The Act facilitates requests by Australia for assistance in multiple areas of criminal investigation and law enforcement, including the taking of evidence131 and related forensic procedures,132 search and seizure,133 requests by Australia for a surveillance device,134 and the removal of certain persons to Australia to give assistance to an investigation.135 These mechanisms highlight the contemporary jurisdictional reach of Australian law enforcement authorities, in particular the Australian Federal Police, into multiple partner states around the world.

B  Australian Military Law: Re Colonel Aird [4.150]  Australian military forces have been engaged in multiple deployments around the world in recent decades, highlighted by significant engagements in East Timor, Afghanistan and Iraq. This, in turn, has raised issues with respect to the application of certain aspects of Australian law to Australian service personnel while overseas. In the case of Re Colonel Aird; Ex parte Alpert,136 the High Court of Australia was asked to consider the application of the Defence Force Discipline Act 1982 (Cth) in a case involving an Australian military officer who was subject to proceedings before an Australian military tribunal for an act of rape that was alleged to have taken place in Thailand while the officer was on leave.137 The Court by a majority upheld the validity of the Act with respect to its extraterritorial operation and constitutionality.138 A critical issue for the Court was whether 130

131 132 133 134 135 136 137

138

Attorney-General’s Department, Australia’s Bilateral Mutual Assistance Arrangements ; see, eg, Treaty between Australia and the People’s Republic of China on Mutual Legal Assistance in Criminal Matters, opened for signature 3 April 2006, [2007] ATS 21 (entered into force 28 March 2007). Mutual Assistance in Criminal Matters Act 1987 (Cth) s 12. Mutual Assistance in Criminal Matters Act 1987 (Cth) s 28A. Mutual Assistance in Criminal Matters Act 1987 (Cth) s 14. Mutual Assistance in Criminal Matters Act 1987 (Cth) s 15C. Mutual Assistance in Criminal Matters Act 1987 (Cth) s 16. Re Colonel Aird; Ex parte Alpert (2004) 220 CLR 308. See the discussion in Richard Tracey, ‘The Constitution and Military Justice’ (2005) 28 University of New South Wales Law Journal 426; Rain Liivoja, ‘Service Jurisdiction under International Law’ (2010) 11 Melbourne Journal of International Law 309. Gleeson CJ, McHugh, Gummow and Hayne JJ; contra Kirby, Callinan and Heydon JJ.

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a distinction should be made between the status of a service member while on duty, including all associated ancillary aspects of such service, and when the service member was on a period of leave within a state other than Australia. A further factor for consideration in this instance was that under the terms of the Act at the time charges were laid in February 2003, the applicable criminal law regime for the offence was that of the Crimes Act 1900 (ACT). Hayne J, in the leading majority judgment, assessed a range of factors in addition to the constitutional validity of the Act, placing emphasis upon the need to maintain discipline within the Australian Defence Force, and the implications for the Defence Force if service members were not subject to Australian law for such a serious offence while in a foreign country. It was concluded that: Accordingly, the standard of conduct imposed by the legislation of the Australian Capital Territory in respect of the offence of sexual intercourse without consent ‘can reasonably be regarded as substantially serving the purpose of maintaining or enforcing service discipline’.139 As such, it was concluded that insofar as ss 9 and 61 of the Defence Force Discipline Act made ‘it an offence for a soldier, while on stand down leave in a foreign country, to commit non-consensual sexual intercourse, they are valid enactments of the federal Parliament’.140 Kirby J, in dissent, was the only member of the Court to consider the issues in the case from an international law perspective. After having assessed the nationality and territorial principles of jurisdiction, Kirby J made the following observations with respect to the potential competing jurisdictional interests of a number of states: One does not ‘trump’ the other. They are concurrent. Thus, in the present case, by international law, Thailand (under the territorial principle) and Australia (under the active nationality principle) … could exercise jurisdiction over [Aird]. To conform with international law, there is no need for any of the … states to obtain the permission of the others, or to have in place a relevant treaty agreeing to such a course. Any rule against infringement of state sovereignty would not apply in the present case because Australia is not seeking to exercise jurisdiction in the territory of Thailand.141 Justice Kirby concluded that the application of Australian law to the events on a beach in Thailand were consistent with international law.

139 140 141

Re Colonel Aird; Ex parte Alpert (2004) 220 CLR 308, 324 [43]. Re Colonel Aird; Ex parte Alpert (2004) 220 CLR 308, 324 [43]. Re Colonel Aird; Ex parte Alpert (2004) 220 CLR 308, 347–8 [124] (footnotes omitted).

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C  Amicus Curiae Briefs in Proceedings before US Courts [4.160]  Australia has consistently expressed its concern about excessive assertions of extraterritorial jurisdiction by the United States through submissions amicus curiae in proceedings before the US courts. The first of these related to excessive assertions of ‘effects’ jurisdiction in the Westinghouse litigation,142 in which the American company Westinghouse sought damages from a cartel of foreign uranium producers (including four Australian companies) on the basis that by causing a dramatic rise in the price of uranium, the foreign producers bore responsibility for Westinghouse’s inability to fulfil its supply contracts. In amicus briefs to the Court of Appeals and the District Court, Australia noted its view that the United States’ assertion of extra­ territorial jurisdiction in respect of its antitrust laws was not consistent with recognised principles of international law.143 More recently, Australia submitted an amicus brief to the Supreme Court of the United States in Morrison v National Australia Bank, a securities case brought in the United States by Australian citizens who had purchased Australian shares in an Australian company based on allegedly false and misleading statements made by that company in Australia.144 The brief noted the ‘broader and recurring concern of the Australian Government and other governments about overly broad assertions of extraterritorial jurisdiction sometimes undertaken by US courts’,145 and argued that the strength of the nexus with respect to both territory and nationality clearly brought the case within the proper scope of Australia’s legal and regulatory regimes in relation to securities.146 Australia has also made amicus submissions regarding the reasonable extent of extraterritorial jurisdiction under the Alien Tort Claims Act,147 an old but controversial US law that has been the basis for civil actions by foreign litigants against foreign corporations in relation to a range of conduct outside the United States alleged to be ‘in violation of the law of nations’. 142 143

144 145

146

147

In re Uranium Antitrust Litigation, 617 F 2d 1248 (1980). Australian Government, ‘Amicus Curiae Memorandum’, Submission to the United States Court of Appeals for the Second Circuit in In Re Uranium Antitrust Litigation, 617 F 2d 1248 (1980), quoted in ‘Jurisdiction. The Extra-Territorial Application of United States Antitrust Laws. The Westinghouse Uranium Antitrust Proceedings’ (1983) 8 Australian Year Book of International Law 287, 292–5. Morrison v National Australia Bank 561 US 247 (2010). Australian Government, ‘Brief of the Government of Australia as Amicus Curiae in Support of the Defendants-Appellees’, Submission to the Supreme Court of the United States in Morrison v National Australia Bank, No 08-1191 (Brief filed 26 February 2010) 3. Australian Government, ‘Brief of the Government of Australia as Amicus Curiae in Support of the Defendants-Appellees’, Submission to the Supreme Court of the United States in Morrison v National Australia Bank, No 08-1191 (Brief filed 26 February 2010) 28. 28 USC § 1350.

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These briefs have reiterated Australia’s concerns about the failure of US courts to take account of constraints under international law, and about the exercise of extraterritorial jurisdiction in civil cases over persons and events without sufficient connection to the United States.148

148

See, eg, Governments of Australia, Switzerland and the United Kingdom, ‘Brief of the Governments of the Commonwealth of Australia, the Swiss Confederation and the United Kingdom of Great Britain and Northern Ireland as Amici Curiae in Support of the Petitioner’, Submission in Sosa v Alvarez-Machain, 542 US 692 (2004) (Brief filed 23 January 2004) (No 03-339), 2004 US S Ct Briefs LEXIS 910; Governments of Australia and the United Kingdom, ‘Brief of the Governments of the United Kingdom of Great Britain and Northern Ireland and the Commonwealth of Australia as Amici Curiae in Support of the Defendants-Appellees/Cross-Appellants’, Submission in Sarei v Rio Tinto, PLC, 2011 US App LEXIS 21515 (9th Cir, 25 October 2011).

5 Australia and International Organisations Alison Pert and Hitoshi Nasu

I INTRODUCTION [5.10]  Australia’s engagement with international organisations has increasingly been influenced by the fluctuation in foreign policies of the time along major political party lines.1 Liberal internationalism and support for the United Nations have been cardinal tenets of Labor’s foreign policy, particularly since H V Evatt as Minister for External Affairs played a prominent role at the formative stage of the United Nations.2 Conservative governments, on the other hand, have tended to respect and strengthen bilateral relationships with major powers such as the United Kingdom and the United States, with very little emphasis on the UN in their foreign policy.3 Australia’s level of engagement with international organisations has varied accordingly. 1

2

3

Contemporary commentators in the middle decades of the 20th century suggest that there was not in fact a great difference in attitude between Labor and the conservatives — more a difference in emphasis. See, eg, Norman Harper and David Sissons, Australia and the United Nations (Manhattan Publishing Company, 1959) 290. See, eg, H V Evatt, ‘Address by Evatt’ (Speech delivered at the United Nations General Assembly, New York, 18 September 1947) ; W J Hudson, ‘The United Nations’ in Gordon Greenwood and Norman Harper (eds), Australia in World Affairs 1966–1970 (Cheshire, 1974) 206; David Lee, ‘The Curtin and Chifley Governments: Liberal Internationalism and World Organisation’ in David Lee and Christopher Waters (eds), Evatt to Evans: the Labor Tradition in Australian Foreign Policy (Allen & Unwin, 1997) 55. See, eg, W J Hudson, ‘The United Nations’ in Gordon Greenwood and Norman Harper (eds), Australia in World Affairs 1966–1970 (Cheshire, 1974) 206; Alan Watt, The Evolution of Australian Foreign Policy 1938–1965 (Cambridge University Press, 1967) 113. 95

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During the League of Nations period, a prevailing concern was the influence of international organisations on Australia’s domestic issues, a concern which continued in the early years of the UN.4 In the 1970s, Australia’s relationship with the UN stabilised, but new agendas emerged with the focus on regional organisations such as the South Pacific Forum.5 In more recent years, the international organisations with which Australia has engaged have become more diversified and, in some respects, more intrusive — as a result of which the issue of Australia’s sovereignty in relation to the activities of international organisations resurged, particularly during the Howard era.6 This chapter illuminates the dynamic relationship Australia has developed, first and foremost with the League of Nations and the UN, but also increasingly with other international organisations, with a particular focus on the contrasting foreign policies of the major political parties and their influence on Australia’s engagement with international organisations. The chapter traces the development in chronological order and distinguishes seven different periods: (1) the League of Nations; (2) the formative stage of the UN in 1945–72; (3) the sea-change period under the Whitlam and Fraser governments; (4) active engagement under the Hawke and Keating governments; (5) the era of withdrawal under the Howard government; (6) renewed multilateralism under the Rudd and Gillard governments; and (7) the emergence of new pragmatism married with traditional conservatism under the Abbott and Turnbull governments.

II  AUSTRALIA AND THE LEAGUE OF NATIONS [5.20]  Australian involvement in international organisations dates back to the 19th century, when individual Australian colonies took part in the work of technical organisations such as the Universal Postal Union.7 But the League 4

5

6

7

Thus, the first edition of O’Connell’s International Law in Australia devoted a chapter to Australia’s commitments under the Charter of the United Nations, elaborating on several legal obligations imposed upon Australia by the Charter: see R L Harry, ‘Australia’s Commitments under the United Nations Charter’ in D P O’Connell (ed), International Law in Australia (Law Book Co, 1st ed, 1965) 65–86. See also A C Castles, ‘The United Nations and Australia’s Overseas Territories’ in D P O’Connell (ed), International Law in Australia (Law Book Co, 1st ed, 1965) 368–400 (in relation to Australia’s legal obligations on trusteeship matters). Thus, the second edition of International Law in Australia included a chapter by Robin Burnett, ‘Australia and Regional Non-Military Arrangements’ in K W Ryan (ed), International Law in Australia (Law Book Co, 2nd ed, 1984) 250–76. Many of the international legal issues during the Howard era are discussed in ‘The Howard Government and International Law’, a special themed volume of the Australian Year Book of International Law: see, eg, Jeff Waincymer, ‘The Howard Government’s Legacy in International Trade and Investment’ (2008) 27 Australian Year Book of International Law 165. Robert B Stewart, Treaty Relations of the British Commonwealth of Nations (Macmillan, 1st ed, 1939) 117–19.

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of Nations was the first major international political organisation to be created, and Australia was an original member of the League despite its imperfect international legal personality at that stage.8 Australia played a significant role in the 1919 Paris negotiations that led to the creation of the League, mainly due to the force of personality of the leader of the Australian delegation, Prime Minister William Morris (Billy) Hughes.9 He managed to persuade the Allied countries to impose punitive reparations upon defeated Germany, secured a ‘C’ class mandate over the former German colony of New Guinea,10 and launched a successful campaign against the ‘racial equality’ clause proposed by Japan for inclusion in the League’s covenant.11 Notwithstanding the high profile of Hughes at the 1919 Paris Peace Conference, Australian governments in the ensuing two decades were preoccupied with domestic matters and took little real interest in the League’s affairs,12 although Australia was represented at every Assembly meeting.13 Never a warm supporter of efforts to strengthen the League through compulsory dispute settlement and collective security, Australia opposed the 1923 Draft Treaty of Mutual Assistance, which would have required parties to provide military and financial aid for a party subject to aggressive war (labelled an ‘international crime’) in certain circumstances.14 It similarly opposed the 1924 Geneva Protocol for the Pacific Settlement of International Disputes, which attempted to effectively outlaw aggressive war by requiring parties to submit disputes to arbitration or judicial settlement (and to accept 8

9

10

11

12

13 14

Treaty of Peace between the Allied and Associated Powers and Germany, opened for signature 28 June 1919, [1920] ATS 1 (entered into force 10 January 1920) arts 1, 22(6), 387, annex to art 1 (‘Treaty of Versailles’). There are different theories as to exactly when Australia is considered to have attained full international legal personality. For a detailed analysis, see chapter 1 of this volume. See, eg, Laurence Frederic Fitzhardinge, The Little Digger 1914–1952: William Morris Hughes, A Political Biography Volume 2 (Angus and Robertson, 1979) 370–418. Laurence Frederic Fitzhardinge, The Little Digger 1914–1952: William Morris Hughes, A Political Biography Volume 2 (Angus and Robertson, 1979) 378–407. A ‘C’ class mandate applied to those territories — such as South-West Africa and some Pacific Islands — which, because of their small size, sparse population or remoteness, or their contiguity to the mandatory state, were to be administered as integral parts of that state and under its laws: Treaty of Versailles art 22(6). Hughes’s preoccupation was the safeguarding of the White Australia policy, a ‘corner stone of the national edifice’: Hughes’s memorandum to US diplomat Edward House dated 5 May 1919, quoted in Laurence Frederic Fitzhardinge, The Little Digger 1914–1952: William Morris Hughes, A Political Biography Volume 2 (Angus and Robertson, 1979) 398. See generally Naoko Shimazu, Japan, Race and Equality: The Racial Equality Proposal of 1919 (Nissan Institute, 1st ed, 1998) 25, 403, 405. W J Hudson, Australia and the League of Nations (Sydney University Press, 1980) 4, 188 and 189 discussing why foreign policy was not a significant electoral issue before 1963. W J Hudson, Australia and the League of Nations (Sydney University Press, 1980) app 1. W J Hudson, Australia and the League of Nations (Sydney University Press, 1980) 43–7.

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the compulsory jurisdiction of the Permanent Court of International Justice).15 Australia was generally in favour of disarmament and outlawing war, but not of compulsory arbitration because of the fear that matters of domestic jurisdiction — above all the White Australia policy — might be subjected to international adjudication or deliberation.16 In the 1920s, Australia was ‘no more than a conscientious, responsible but distant member of the League’.17 Australia’s contribution to the League generally was summarised as ‘not … entirely unworthy’,18 but like the other dominions, the nature of its participation has been characterised as ‘rather observers than actors’.19 Nevertheless, in the 1930s Australia was more active and made a significant contribution in the economic and social fields through Stanley Bruce, Australian delegate to the League from 1932 to 1938.20 In 1935 he championed a new approach to solving the dual problems of breaking the cycle of unemployment, wage reductions and falling prices, and of widespread malnutrition, by stimulating production, particularly of food.21 This led to a 1937 report on the relation of nutrition to health, agriculture and economic policy.22 An even greater achievement was the 1939 Bruce report,23 which was later praised as ‘the summing-up of the first 15

16

17 18

19

20

21

22

23

The text of the draft protocol is printed in American Society of International Law, ‘Protocol for the Pacific Settlement of International Disputes’ (1925) 19(1) American Journal of International Law Supplement: Official Documents 9, 9. The protocol was adopted unanimously by the League Assembly (the Australian delegate ignoring instructions to abstain) but did not come into force: W J Hudson, Australia and the League of Nations (Sydney University Press, 1980) 54, 57. W J Hudson, Australia and the League of Nations (Sydney University Press, 1980) 51. Article 5 of the protocol provided that matters of domestic jurisdiction were excluded from compulsory arbitration but could still be considered by the League Council or Assembly. W J Hudson, Australia and the League of Nations (Sydney University Press, 1980) 6. Harold Lark Harris, Australia’s Interests and National Policy (Melbourne University Press, 2nd ed, 1938) 130. A B Keith, The Constitutional Law of the British Dominions (Macmillan, 1933) 404 (referring particularly to the role of the dominions in the formulation of foreign policy in the League). Bruce was Prime Minister from 1923 to 1929 and in 1931 was appointed High Commissioner to London and served on the League Council in 1933–36: Geoffrey Sawer, Australian Federal Politics and Law 1929–1949 (Melbourne University Press, 1963) 44; W J Hudson, Australia and the League of Nations (Sydney University Press, 1980) 173, 195–6. League of Nations, The Relation of Nutrition to Health, Agriculture and Economic Policy, LN Doc A/13.1937.II.A; F P Walters, A History of the League of Nations (Greenwood Press, 1st ed, 1952) 753. F P Walters, A History of the League of Nations (Greenwood Press, 1st ed, 1952) 753–4; W J Hudson, Australia and the League of Nations (Sydney University Press, 1980) 176–8. League of Nations, The Development of International Co-operation in Economic and Social Affairs: Report of the Special Committee (1939). The report was issued on 22 August 1939: F P Walters, A History of the League of Nations (Greenwood Press, 1st ed, 1952) 761–2.

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great attempt to organize the social and economic interests of the world as a whole’.24 Its principal recommendation was the creation of a Central Committee for Economic and Social Questions, which would supervise and coordinate the work of all League bodies dealing with economic and social issues.25 Although the Bruce report was stillborn in that it was issued only a few days before war was declared, its legacy was in fact enduring: the United Nations Economic and Social Council was closely based on the system and structures proposed by the report.26

III  AUSTRALIA AND THE UNITED NATIONS A 1945–1972 [5.30]  Australia had some influence on the drafting of the Charter of the United Nations due to H V Evatt’s frenetic activity at the San Francisco conference in 1945.27 In the work of the numerous committees and subcommittees to which Australia was appointed,28 Evatt applied his extraordinary energy to pursuing Australia’s policy towards the future international organisation, which he had outlined in September 1944: [T]he settlement of international disputes should [not] be left entirely to the arbitrary decision of the suggested Security Council. … 24

25

26

27

28

F P Walters, A History of the League of Nations (Greenwood Press, 1st ed, 1952) 761–2. This was the product of the Special Committee on the Development of International Co-operation in Economic and Social Affairs, comprising leading economists and politicians and chaired by Bruce. W J Hudson, Australia and the League of Nations (Sydney University Press, 1980) 178; F P Walters, A History of the League of Nations (Greenwood Press, 1st ed, 1952) 761. F P Walters, A History of the League of Nations (Greenwood Press, 1st ed, 1952) 762. Walters described the plan as possibly ‘one of the chief landmarks in the history of international affairs’: at 761. See, eg, Paul Hasluck, ‘Australia and the Formation of the United Nations’ (1954) XL(III) Royal Australian Historical Society Journal and Proceedings 133. Paul Hasluck, ‘Australia and the Formation of the United Nations’ (1954) XL(III) Royal Australian Historical Society Journal and Proceedings 171. Hasluck observes that Australia was appointed to so many subcommittees, as well as being a member of the Executive Committee and Co-ordinating Committee, ‘because of the energetic way in which the Australian delegation performed and the diversity of its interests … and thus the Ministers and officials were committed to constant meetings, morning, afternoon and night, and to constant labour in preparing material and drafting resolutions in readiness for them’. Hudson notes that Evatt was in his element in these committees while Deputy Prime Minister Francis Forde was not, and that Forde took Bruce’s advice that he should restrict his contributions to generalities and leave matters of detail to Evatt: W J Hudson, Australia and the New World Order: Evatt at San Francisco, 1945 (Australian Foreign Policy Publications Program, 1993) 70, 44; diary note of Bruce, 2 April 1945, Department of Foreign Affairs and Trade, Documents on Australian Foreign Policy 1937–1949 (1975–2001) vol 8 doc 64.

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[T]he General Assembly should be given powers and functions which would enable it to be in practice the central body of the world organization. Far more attention … should be given to the welfare side of the world organization, ie the side dealing with social, economic and humanitarian problems. Representation on the Security Council should allow places for at least eight Powers other than the Big Four. Member nations should be required to declare the principles they were prepared to uphold and to enter into specific undertakings regarding their duties as members.29 Although unsuccessful in his campaign to confine the Great Powers’ right of veto in the Security Council to decisions under ch VII of the Charter,30 Evatt did succeed in gaining greater power for the General Assembly and therefore for the smaller powers.31 He was also instrumental in ensuring that under art 2(7) of the Charter, the power of the UN to intervene in the domestic affairs of its members was confined to situations where enforcement measures were applied by the Security Council under ch VII of the Charter.32 Australia won election as a non-permanent member of the Security Council in 1946–47, where Evatt and his delegates applied his international 29

30

31

32

Parliament of the Commonwealth of Australia, United Nations Conference on I­nternational Organization, Report by the Australian Delegates (1945) 8, para 8. See also H V Evatt, ‘Ministerial Statement’ (Statement to the House of Representatives, 8 September 1944) in H V Evatt, Foreign Policy of Australia (Angus and Robertson, 1945) 209. Parliament of the Commonwealth of Australia, United Nations Conference on International Organization, Report by the Australian Delegates (1945) 16–18 paras 55–72; Geoffrey Sawer, ‘The United Nations’ in Gordon Greenwood and Norman Harper (eds), Australia in World Affairs 1950–1955 (Cheshire, 1957) 96. At the final meeting of the conference Steering Committee, for example, the Peruvian delegate moved a special vote of thanks, carried ‘amid cheering’, to Evatt as ‘the greatest champion of the small powers’: Paul Hasluck, ‘Australia and the Formation of the United Nations’ (1954) XL(III) Royal Australian Historical Society Journal and Proceedings 174. Evatt was the only delegate singled out for such regard: W J Hudson, Australia and the New World Order: Evatt at San Francisco, 1945 (Australian Foreign Policy Publications Program, 1993) 152. Charter of the United Nations art 2(7); United Nations Conference on International Organization (1945) vol 6, 436–40. Article 2(7) reads: ‘Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.’ Evatt played a major role in its drafting, primarily to ensure that the White Australia policy remained beyond the purview of the UN, but was inconsistent in advocating its application in different circumstances: W J Hudson, Australia and the New World Order: Evatt at San Francisco, 1945 (Australian Foreign Policy Publications Program, 1993) 111–21; Alan Watt, The Evolution of Australian Foreign Policy 1938–1965 (Cambridge University Press, 1967) 89–91; Norman Harper and David Sissons, Australia and the United Nations (Manhattan Publishing Company, 1959) 155, 165, 176–8, 279–80; Geoffrey Sawer, ‘The United Nations’ in Gordon Greenwood and Norman Harper (eds), Australia in World Affairs 1950–1955 (Cheshire, 1957) 98–9, 106.

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idealism and generally strict legal interpretation of the Charter — especially the domestic jurisdiction clause, art 2(7). In relation to the 1946 Spanish question concerning the existence and activities of the Franco regime before the Security Council, for example, Evatt offered a legal formula for determining whether the situation was a matter of domestic jurisdiction protected by art 2(7) by reference to ‘first, the nature of the situation; secondly, the action proposed; and thirdly, the objective to be obtained by that action’.33 Australia’s active and vigorous policy at the UN was also pursued by Evatt as President of the General Assembly in 1948 — for example, in proposing and participating in a conciliation mission on the Balkan disputes, although the attempt was doomed to failure due to Cold War politics.34 Evatt’s idealism was not shared by many of his Labor colleagues, nor by the conservative government that took office under Robert Menzies in 1949.35 The attitude to the UN of his successors, Spender and Casey, was less enthusiastic, their view being that the organisation’s activities should be restricted and Australian participation more selective.36 Nevertheless, Australia took an active part in UN missions, such as those in Korea that oversaw (or, in the case of the North, attempted to oversee) elections and monitored military activities along the 38th parallel in the Korean Peninsula.37 It also played a useful role in the development of peacekeeping through the deployment of military observers, most notably in Indonesia, during this formative period of the UN.38 Spender and Casey more frequently invoked art 2(7) of the Charter, voting against any resolutions on what they considered domestic matters.39 On this basis, Australia voted against General Assembly resolutions condemning 33 34

35

36

37

38

39

UN SCOR, 1st Year, 1st Series, 44th mtg, UN Doc S/PV.44 (6 June 1946) 318–19. See, eg, Amikam Nachmani, International Intervention in the Greek Civil War: The United Nations Special Committee on the Balkans, 1947–52 (Praeger, 1990) 23–5; H V Evatt, The Task of Nations (Duell, Sloan and Pearce, 1949) 63–72. Norman Harper and David Sissons, Australia and the United Nations (Manhattan Publishing Company, 1959) 289–90. Geoffrey Sawer, ‘The United Nations’ in Gordon Greenwood and Norman Harper (eds), Australia in World Affairs 1950–1955 (Cheshire, 1957) 115–16. Percy Spender was Minister for External Affairs from 1949 to 1951, Richard Casey from 1951 to 1960. The missions were UNTCOK (UN Temporary Commission on Korea, established by the General Assembly: GA Res 112 (II), 14 November 1947), UNCOK (UN Commission on Korea: GA Res 195 (III), 12 December 1948) and UNCURK (UN Commission for the Unification and Rehabilitation of Korea: GA Res 376 (V), 7 October 1950). Peter Londey, ‘Inventing Peacekeeping’ in David Horner, Peter Londey and Jean Bou (eds), Australian Peacekeeping: Sixty Years in the Field (Cambridge University Press, 2009) 11, 18–24. Geoffrey Sawer, ‘The United Nations’ in Gordon Greenwood and Norman Harper (eds), Australia in World Affairs 1950–1955 (Cheshire, 1957) 116. Spender made his views on the proper interpretation of art 2(7) known very soon after assuming the External Affairs portfolio: Alan Watt, The Evolution of Australian Foreign Policy 1938–1965 (Cambridge University Press, 1967) 116.

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South Africa’s racial policies not because Australia supported those policies, but because Australia insisted that they were a matter of domestic concern.40 Until modifying its stance in 1960 following the Sharpeville massacre, ‘Australia had found herself in shrinking and embarrassing diplomatic company’.41 Successive Coalition governments placed greater emphasis on Australia’s relations with the United Kingdom and the United States,42 as illustrated by the instigation of the 1951 ANZUS Treaty,43 and joining the Southeast Asia Collective Defence Treaty in 1954.44 When Anglo-French and Israeli forces invaded Egypt in response to Egypt’s nationalisation of the Suez Canal Company in 1956, Menzies demonstrated unwavering support of Britain by abstaining from or voting against UN General Assembly resolutions demanding the withdrawal of troops.45 Australia’s support for the British ‘naked aggression … [in] flagrant violation of the United Nations Charter’46 antagonised the United States, left Australia isolated in the UN, and undermined years of diplomacy in Asia.47 40

41

42

43

44

45

46

47

See, eg, R G Neale, ‘India’ in Gordon Greenwood and Norman Harper (eds), Australia in World Affairs 1950–1955 (Cheshire, 1957) 263–5. Geoffrey Sawer and W J Hudson, ‘The United Nations’ in Gordon Greenwood and Norman Harper (eds), Australia in World Affairs 1961–1965 (Cheshire, 1968) 238. Geoffrey Sawer, ‘The United Nations’ in Gordon Greenwood and Norman Harper (eds), Australia in World Affairs 1950–1955 (Cheshire, 1957) 113–14; Alan Watt, The Evolution of Australian Foreign Policy 1938–1965 (Cambridge University Press, 1967) 113–16. Security Treaty between Australia, New Zealand and the United States of America, opened for signature 1 September 1951, [1952] ATS 2 (entered into force 29 April 1952) (‘ANZUS Treaty’). Southeast Asia Collective Defense Treaty, opened for signature 8 September 1954, [1955] ATS 3 (entered into force 19 February 1955). Australia voted against General Assembly Resolutions 997 (ES-I) of 2 November 1956 and 999 (ES-I) of 4 November 1956 (see UN Doc A/PV.562 at 34; UN Doc A/PV.563 at 71), and abstained in Resolutions 998 (ES-I) of 4 November 1956, 1000 (ES-I) of 5 November 1956, and 1002 (ES-I) of 7 November 1956 (see respectively UN Doc A/ PV.563 at 71; UN Doc A/PV.565 at 89; UN Doc A/PV.567). The Anglo-French action was supported by Menzies but criticised by the Australian public and some members of Cabinet, including Casey: Norman Harper, ‘Australia and Suez’ in Gordon Greenwood and Norman Harper (eds), Australia in World Affairs 1950–1955 (Cheshire, 1957) 347–54; Geoffrey Sawer, ‘The United Nations’ in Gordon Greenwood and Norman Harper (eds), Australia in World Affairs 1956–1960 (Cheshire, 1963) 146, 149; Alan Watt, The Evolution of Australian Foreign Policy 1938–1965 (Cambridge University Press, 1967) 303–4. Jawaharlal Nehru of India, quoted in Norman Harper, ‘Australia and Suez’ in Gordon Greenwood and Norman Harper (eds), Australia in World Affairs 1950–1955 (Cheshire, 1957) 351. Norman Harper, ‘Australia and Suez’ in Gordon Greenwood and Norman Harper (eds), Australia in World Affairs 1950–1955 (Cheshire, 1957) 350–1; Alan Watt, The Evolution of Australian Foreign Policy 1938–1965 (Cambridge University Press, 1967) 303–4.

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Australia’s interest in the UN continued to wane in the 1960s due to a number of factors, including the major increase in UN membership, which made it hard for some older members to take the organisation seriously when micro-states such as the Maldives were on the same formal footing as the superpowers; the failure to deal effectively with the confrontation between Indonesia and Malaysia and the Vietnam conflict, two regional issues of direct concern to Australia; and the organisation’s financial difficulties.48 Having had a seat on the Security Council in 1946–47 and 1956–57, Australia chose not to seek election in the 1960s.49

B  1972–1983: The Whitlam and Fraser Governments [5.40]  Towards the end of its life, the Liberal–Country Party government had slowly begun to take a more positive view of the UN, but when the Labor Party assumed power under Gough Whitlam there was an immediate and marked change.50 The new government’s attitude towards the organisation is summed up in the first Commonwealth Year Book published after the election: Australia’s commitment to the United Nations ideal is based on the belief that only through such a body can there be concerted inter­national efforts for the maintenance of a stable and harmonious world order.51 The radical changes extended to voting. Whereas under the Coalition government Australia had abstained on many issues — including decolonisation and racial discrimination — as late as November 1972, within a week of the election: To reflect the new Australian Government’s more positive support for regional initiatives, and its determination to condemn colonialism and racial discrimination, Australia changed its voting policy on nine politically significant resolutions in the last (1972) session of the United Nations General Assembly. The changes in policy are especially noticeable in the case of southern African issues. Australia can in future be expected to support resolutions calling for self-determination, decolonisation, and an end to racial discrimination especially in Africa. It recently voted for 48

49

50

51

Geoffrey Sawer and W J Hudson, ‘The United Nations’ in Gordon Greenwood and Norman Harper (eds), Australia in World Affairs 1961–1965 (Cheshire, 1968) 234–5. See, eg, cable from Shaw in New York to Secretary of Department of Foreign Affairs and Trade, dated 10 May 1967, National Archives Australia Series A1838 Control Symbol 907/5 Part 1 barcode 1608942, 112. Claire Clark, ‘The United Nations’ in W J Hudson (ed), Australia in World Affairs 1971–1975 (George Allen & Unwin, 1980) 126–7. Commonwealth of Australia, Year Book Australia (1973) 117.

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increased sanctions against Rhodesia and the consideration by the Security Council of similar action against South Africa and Portugal because of their refusal to apply the sanctions imposed by the Security Council. At the same time, Australia has been careful neither to encourage nor to support calls for the use of force to change the racial policies applied in southern Africa.52 Australia refused to recognise the minority government in Rhodesia and imposed the sanctions mandated by the Security Council,53 although implementation in the form of suspension of postal and telephone services to the Rhodesian Information Centre in Sydney was hampered because, inter alia, the UN Charter had not been ‘carried into effect within Australia by appropriate legislation’.54 The reawakening of Australian interest in the UN coincided with its election to the Security Council for 1973–74,55 and Australia’s practical support for the UN under the Labor government was also evident in the almost threefold increase in its financial contribution to the organisation from 1972–73 to 1975–76,56 and a renewed interest in contributing to peacekeeping operations.57 The Liberal–Country Party policy platform for the 1975 election gave qualified support to the UN but, in practice, despite devoting fewer resources to the organisation, the new government did not take radically different positions on UN matters than had Whitlam.58 Andrew Peacock was Minister for Foreign Affairs until 1980 and attended the General Assembly each year; in 1977, he described the UN as being, despite its 52 53

54 55

56

57

58

Commonwealth of Australia, Year Book Australia (1973) 117. SC Res 277, UNSC (18 March 1970). See also (1974–75) 6 Australian Year Book of International Law 352. Bradley v Commonwealth (1973) 128 CLR 557, 583 (Barwick CJ and Gibbs J). Claire Clark, ‘The United Nations’ in W J Hudson (ed), Australia in World Affairs 1971–1975 (George Allen & Unwin, 1980) 126; letter from McIntyre to Secretary of Department of Foreign Affairs and Trade, 5 October 1971, National Archives Australia Series A1838 Control Symbol 907/5 Part 1 barcode 1608942, 112. McIntyre concluded: ‘The Security Council, for all its indifferent record of achievement, is still the prestigious forum. In 1972 it will be Australia’s turn to stand for election to a seat on it; there is likely to be some pressure on us to do so and some incomprehension if we decline.’ Claire Clark, ‘The United Nations’ in W J Hudson (ed), Australia in World Affairs 1971–1975 (George Allen & Unwin, 1980) 159. The increase was from approximately $10.6 million to $24.5 million, peaking at $26.4 million in 1974–75. Peter Londey, ‘Inventing Peacekeeping’ in David Horner, Peter Londey and Jean Bou (eds), Australian Peacekeeping: Sixty Years in the Field (Cambridge University Press, 2009) 26 (observing that the renewed interest was partly due to the perceived need for overseas training of military personnel). Liberal Party and National Country Party, The New Government Policies (1975) 37; Ralph Harry, ‘Australian Multilateral Diplomacy’ in P J Boyce and J R Angel (eds), Australia in World Affairs 1976–1980 (George Allen & Unwin, 1983) 81.

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imperfections, an indispensable meeting place to which the international community should remain firmly committed.59 The government also supported the idea of a ‘Pacific community’ contingent upon its broad acceptance throughout the region.60 Australia hosted a conference in Canberra in May 1980 at which the Convention on the Conservation of Antarctic Marine Living Resources was concluded.61 The convention established the Commission for the Conservation of Antarctic Marine Living Resources with its headquarters in Hobart — the first international organisation to be based in Australia.62 The convention provided for accession by regional economic integration organisations as well as interested states, prompting an amendment to the International Organizations (Privileges and Immunities) Act 1963 (Cth) so as to extend the necessary privileges and immunities to delegates of prescribed overseas organisations, such as the European Communities.63

C  1983–1996: The Hawke and Keating Labor Governments [5.50]  The Hawke and Keating governments continued this trend by acceding to the Convention on the Privileges and Immunities of the Specialized Agencies and accepting the Agreement on the Privileges and Immunities of the International Atomic Energy Agency in 1986 without reservation.64 More generally, they maintained the Labor tradition of support for the UN and other international organisations. The end of the Cold War brought the UN a fresh lease of life and coincided with the start of Gareth Evans’s tenure as Minister for Foreign Affairs. His conceptual approach to foreign policy was evident in his proposals to improve the UN’s work on collective

59

60

61

62

63

64

Ralph Harry, ‘Australian Multilateral Diplomacy’ in P J Boyce and J R Angel (eds), Australia in World Affairs 1976–1980 (George Allen & Unwin, 1983) 85. Minister representing the Minister for Foreign Affairs, Commonwealth Senate, 14 November 1979, reported in (1978–80) 8 Australian Year Book of International Law 421–2. Convention on the Conservation of Antarctic Marine Living Resources, opened for signature 1 August 1980, [1982] ATS 9 (entered into force 7 April 1982). Convention on the Conservation of Antarctic Marine Living Resources, opened for signature 1 August 1980, [1982] ATS 9 (entered into force 7 April 1982) arts VII, XIII. International Organizations (Privileges and Immunities) Amendment Act 1982 (Cth); Commonwealth, Parliamentary Debates, House of Representatives, 29 October 1981, 2739 (Minister for Foreign Affairs). Convention on the Privileges and Immunities of the Specialized Agencies, opened for signature 21 November 1947, 33 UNTS 261 (entered into force 2 December 1948); Agreement on the Privileges and Immunities of the International Atomic Energy Agency, opened for signature 1 July 1959, 374 UNTS 148 (entered into force 29 July 1960). Earlier Australian reservations to these agreements, in 1962 and 1972 respectively, had been rejected: Minister for Foreign Affairs, Statement on 9 May 1986, cited in (1984–87) 11 Australian Year Book of International Law 533.

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security with the emphasis on preventive diplomacy,65 and it was consistently one of the stated objectives of his department.66 With global focus sharpened by events in Somalia, Rwanda and the disintegrating Yugoslavia, Australia drafted a resolution in late 1994 on enhancing the UN’s capacity for peace-building and preventive diplomacy,67 and was invited to coordinate a sub-group on preventive diplomacy and peace-making. Australia also actively supported the establishment of the proposed International Criminal Court as part of the UN system and as a subsidiary judicial organ under art 7(2) of the UN Charter.68 The Labor governments during this period were notably active in the field of disarmament and arms control, particularly in relation to chemical and nuclear weapons.69 The 1983 appointment of an Ambassador for Disarmament raised Australia’s profile in the UN Conference on Disarmament and related General Assembly debates, and in 1985 Australia signed the South Pacific Nuclear Free Zone Treaty.70 Australia was especially active in negotiations towards the prohibition of chemical weapons (made the more relevant by their use in the Iran–Iraq war of 1981–89), in 1985 establishing the Australia Group of industrialised, chemical-exporting nations.71 Australia took the lead in bringing governments together to limit the spread of chemical weapons through the harmonisation of export controls over certain chemicals and equipment. This led to Australia hosting in 1989 the Government–Industry Conference against Chemical Weapons, attended by nearly 70 states, which was an important step in maintaining the momentum between the Paris Conference on Chemical Weapons earlier that year and the conclusion of 65

66 67

68

69

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71

See, eg, Gareth Evans, ‘The UN and the Resolution of Conflict: Peace-Making, PeaceKeeping and Disarmament’ (Speech delivered to the United Nations General Assembly, New York, 5 October 1989) . For a more conceptual and theoretical expression of his ideas, see Gareth Evans, Cooperating for Peace: The Global Agenda for the 1990s and Beyond (Allen and Unwin, 1993). Department of Foreign Affairs and Trade, Annual Report 1994–95 (1995) s 1.7. Department of Foreign Affairs and Trade, Annual Report 1994–95 (1995) s 1.7. The draft resolution became Declaration on the Enhancement of Cooperation between the United Nations and Regional Arrangements or Agencies in the Maintenance of International Peace and Security, GA Res 49/57, UN GAOR, 49th sess, 84th plen mtg, Agenda Item 140, UN Doc A/RES/49/57 (17 February 1995). Commonwealth of Australia, Observations of Governments on the report of the Working Groups on a draft statute for an International Criminal Court, UN Doc A/CN.4/458 (16 February 1994) 25. James L Richardson, The Foreign Policy of the Hawke–Keating Governments: An Interim Review (Working Paper No 1997/4, Department of International Relations, Australian National University) 5–6. See, eg, P J Boyce, ‘Introduction’ in P J Boyce and J R Angel (eds), Diplomacy in the Marketplace: Australia in World Affairs 1981–90 (Longman Cheshire, 1992) 10; South Pacific Nuclear Free Zone Treaty, opened for signature 6 August 1985, [1986] ATS 32 (entered into force 11 December 1986). The Australia Group, The Origins of the Australia Group (2007) .

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the Chemical Weapons Convention in 1993,72 after two decades of negotiations.73 Those negotiations were given impetus in 1992 when Evans tabled a complete revised draft of the convention, proposing compromises on the contentious issues and thereby producing ‘a crucial shift from fruitless issueby-issue wrangling to a comprehensive effort to complete the negotiations’.74 In the words of the Iranian delegate, ‘it is clear that the Australian paper, supported by most of the Western countries, later formed the backbone of what turned out to be the final draft of the Convention’.75 Australia played a similar role in the negotiations for the Comprehensive Nuclear Test Ban Treaty,76 again tabling a revised draft and leading a group of 127 states in sponsoring a 1996 General Assembly resolution adopting the treaty.77 It was equally active in supporting the permanent operation of the Treaty on the Non-Proliferation of Nuclear Weapons78 to replace the previous five-yearly extensions,79 and convened the Canberra Commission on the Elimination of Nuclear Weapons, a high-powered, independent body of experts established in 1995 ‘to propose practical steps towards a nuclear weapon free world’.80 72

73

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75

76

77

78

79

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Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, opened for signature 13 January 1993, [1997] UNTS 3 (entered into force 29 April 1997). P J Boyce, ‘Introduction’ in P J Boyce and J R Angel (eds), Diplomacy in the Marketplace: Australia in World Affairs 1981–90 (Longman Cheshire, 1992) 10; Richard A Clarke, ‘Address to Government–Industry Conference against Chemical Weapons’ (1989) 89(2152) US Department of State Bulletin 45–7. James L Richardson, The Foreign Policy of the Hawke–Keating Governments: An Interim Review (Working Paper No 1997/4, Department of International Relations, Australian National University) 9; Evans, quoted in Graeme Cheeseman, ‘Australia, Disarmament and Arms Control’ in James Cotton and John Ravenhill (eds), Seeking Asian Engagement: Australia in World Affairs, 1991–1995 (Oxford University Press, 1997) 81. Hassan Mashhadi, ‘How the Negotiations Ended’ (1992) (17) Chemical Weapons Convention Bulletin 28. Comprehensive Nuclear Test Ban Treaty, opened for signature 10 September 1996 (not yet in force). However, much of this occurred after Labor lost office. The forum for negotiations was the Conference on Disarmament which required consensus for the adoption of any treaty. Once it became evident that no consensus was possible, the draft was forwarded to the General Assembly where it was adopted by 158 in favour, three against, and five abstentions: Comprehensive Nuclear Test Ban Treaty, GA Res 50/245, UN GAOR, 50th sess, 125th plen mtg, Agenda Item 65, UN Doc A/RES/50/245 (10 September 1996). Treaty on the Non-Proliferation of Nuclear Weapons, opened for signature 1 July 1968, 729 UNTS 161 (entered into force 5 March 1970). James L Richardson, The Foreign Policy of the Hawke–Keating Governments: An Interim Review (Working Paper No 1997/4, Department of International Relations, Australian National University) 9–10; Department of Foreign Affairs and Trade, Annual Report 1994–95 (1995) ch 1.7.3. Canberra Commission, Report of the Canberra Commission on the Elimination of Nuclear Weapons (August 1996) 3.

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Australia’s closer engagement with the UN under Labor was also evident in its efforts to resolve the impasse in the Cambodian peace process. It was, as one commentator observed, ‘a sustained policy effort, from the early 1980s to the early 1990s, which has come to be seen as one of [Labor’s] key achievements in its contribution to Australian foreign policy between 1983 and 1996’.81 First suggested by Bob Hawke, the possibility of a dialogue towards a peaceful settlement in Cambodia was enthusiastically pursued by Hayden, but his efforts met with resistance from some Association of Southeast Asian Nations (‘ASEAN’) states and were abandoned in 1985.82 As the international climate improved — notably, the advent of Gorbachev in the Soviet Union — and regional attitudes softened, negotiations began again in late 1987, but stalled at the Paris peace conference in August 1989 when the parties could not agree on the composition of a transitional administration and other key issues.83 It was Gareth Evans who proposed that the UN itself play a direct role in administering the country and supervising the election of a new government.84 The idea was received warmly and the Australian government prepared a series of options papers, later known as the Red Book, for presentation to the relevant parties in early 1990.85 After further negotiations, the UN Transitional Authority in Cambodia was established in 1992 and operated until an elected government was formed in September 1993.86 Evans described Australia’s role as ‘crucial …, in particular through producing and selling diplomatically the so-called “Red Book” in January 1990 which broke the deadlock, shaped the final settlement, and created conditions for peace’.87

81

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Frank Frost, ‘Labor and Cambodia’ in David Lee and Christopher Waters (eds), Evatt to Evans: the Labor Tradition in Australian Foreign Policy (Allen & Unwin, 1997) 196. Frank Frost, ‘Labor and Cambodia’ in David Lee and Christopher Waters (eds), Evatt to Evans: the Labor Tradition in Australian Foreign Policy (Allen & Unwin, 1997) 202–4. Frank Frost, ‘Labor and Cambodia’ in David Lee and Christopher Waters (eds), Evatt to Evans: the Labor Tradition in Australian Foreign Policy (Allen & Unwin, 1997) 205–6. Frank Frost, ‘Labor and Cambodia’ in David Lee and Christopher Waters (eds), Evatt to Evans: the Labor Tradition in Australian Foreign Policy (Allen & Unwin, 1997) 206. Department of Foreign Affairs and Trade, ‘Cambodia: An Australian Peace Proposal’ (Working Papers prepared for the Informal Meeting on Cambodia, Jakarta, 26–28 February 1990); Frank Frost, ‘Labor and Cambodia’ in David Lee and Christopher Waters (eds), Evatt to Evans: the Labor Tradition in Australian Foreign Policy (Allen & Unwin, 1997) 207. Frank Frost, ‘Labor and Cambodia’ in David Lee and Christopher Waters (eds), Evatt to Evans: the Labor Tradition in Australian Foreign Policy (Allen & Unwin, 1997) 208–12; SC Res 745, UNSC, 3057th mtg, 28 February 1992. Gareth Evans, ‘Labor’s Foreign Policy’ (Speech to the Rotary International World Understanding Month Dinner, Noble Park, 15 February 1996) ; Frank Frost, ‘Labor and Cambodia’ in David Lee and Christopher Waters (eds), Evatt to Evans: the Labor Tradition in Australian Foreign Policy (Allen & Unwin, 1997) 208, 216, 218.

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D  1996–2007: The Howard Era [5.60]  The Howard government’s engagement with the UN and other international institutions was inevitably influenced by the move away from multilateralism in its foreign policy: emphasis was to be on the national interest, on bilateral relationships to further that interest, and on ‘a more selective approach to … multilateral issues, concentrating on areas where Australia’s national interests are closely engaged’.88 While lukewarm towards the UN, the Howard government maintained Australian involvement with regional groupings and institutions such as the Cairns group, Asia-Pacific Economic Cooperation (‘APEC’), the ASEAN Regional Forum, and the Indian Ocean Rim Association for Regional Co-operation for defence and security arrangements.89 In the field of human rights, and through its Human Rights and Equal Opportunity Commission, Australia took the initiative for establishing the Asia-Pacific Forum of National Human Rights Institutions to facilitate mutual support and cooperation among national human rights monitoring institutions and to improve their effectiveness.90 The Howard government’s relationship with the UN soon came under strain. In 1996, it suffered the ‘diplomatic debacle’ of failing to gain a seat on the Security Council.91 Having had such a seat almost every decade since 1946, it was again Australia’s ‘turn’ within the informal Canada, Australia and New Zealand electoral group to contest the seat for 1997–98. No official explanation was issued as to why the bid failed,92 but the election was held 88

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Alexander Downer and Tim Fischer, ‘Foreign and Trade Policy White Paper’ (Joint Media Statement, Canberra, 28 August 1997) ; Commonwealth of Australia, In the National Interest: Australia’s Foreign and Trade Policy White Paper (1997) iii, 49; David Goldsworthy, ‘An Overview’ in James Cotton and John Ravenhill (eds), The National Interest in a Global Era: Australia in World Affairs 1996–2000 (Oxford University Press, 2002) 12. David Goldsworthy, ‘An Overview’ in James Cotton and John Ravenhill (eds), The National Interest in a Global Era: Australia in World Affairs 1996–2000 (Oxford University Press, 2002) 13; Colin Brown, ‘Issues in Australian Foreign Policy January to June 1996’ (1996) 42 Australian Journal of Politics and History 3, 338; Malcolm Roberts, ‘Issues in Australian Foreign Policy July to December 1996’ (1997) 43 Australian Journal of Politics and History 2, 119. See generally Andrew Byrnes, Andrea Durbach and Catherine Renshaw, ‘Joining the Club: The Asia Pacific Forum of National Human Rights Institutions, the Paris Principles, and the Advancement of Human Rights Protection in the Region’ (2008) 14(1) Australian Journal of Human Rights 63; Asia-Pacific Human Rights Network, ‘Establishing a Regional Human Rights Mechanism for the Asia-Pacific Region’ (2003) 4(2) Asia-Pacific Journal of Human Rights and the Law 82. Tom Hyland, ‘Timor Not Decisive in Australia’s UN Debacle’, AAP (Melbourne), 22 October 1996. The Department of Foreign Affairs and Trade conducted an internal inquiry; JSCOT (the Commonwealth Parliament’s Joint Standing Committee on Treaties) received a confidential briefing, but the results were not made public: Commonwealth, ­Parliamentary Debates, House of Representatives, 18 March 1997, 2364 (Alexander Downer).

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at the height of the storm following Pauline Hanson’s maiden speech. According to at least one commentator, ‘[t]he whole zenophobic [sic] debate in Australia, without a strong response from the (federal) government, raised serious concerns in African and Asian countries about Australia’.93 The overt pro-American stance adopted by the Howard government since its election earlier in the year was also blamed, because of the resentment by some states of the US domination of the Council.94 The Howard government developed a deep hostility to the UN human rights treaty bodies, engendered through a combination of an increasing number of findings critical of Australia and the unpleasant experience of the Minister for Immigration and Multicultural Affairs when he appeared personally before the Committee on the Elimination of Racial Discrimination in 2000.95 The government decided to review Australia’s participation in all UN treaty committees — which, in the government’s view, gave too little weight to the views of democratically elected governments and went beyond their mandates — and in August 2000 announced that there would be a more selective engagement with those bodies; that Australia’s reporting to and representation at the committees would also be reconsidered; and that committee visits would be allowed only for compelling reasons.96 Another product of the review was the announcement that Australia would not be signing or ratifying the optional protocol to the Convention on the Elimination of All Forms of Discrimination against Women (‘CEDAW’).97 This period also witnessed the expansion of Australia’s military engagement within and beyond the Asia-Pacific region. When violence 93

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José Ramos-Horta, quoted in Tom Hyland, ‘Timor Not Decisive in Australia’s UN Debacle’, AAP (Melbourne), 22 October 1996. José Ramos-Horta, quoted in Tom Hyland, ‘Timor Not Decisive in Australia’s UN Debacle’, AAP (Melbourne), 22 October 1996. See, eg, David Kinley and Penny Martin, ‘International Human Rights Law at Home: Addressing the Politics of Denial’ (2002) 26(2) Melbourne University Law Review 466; Spencer Zifcak, Mr Ruddock Goes to Geneva (UNSW Press, 2003) 14–17. Alexander Downer, ‘Government to Review UN Treaty Committees’ (Media Release, FA24, 30 March 2000) , extracts in (2001) 21 Australian Year Book of International Law 274; David Goldsworthy, ‘Issues in Australian Foreign Policy’ (2001) 47(2) Australian Journal of Politics and History 242–3; John Howard, ‘Speech to UN2K Summit’ (Media Statement at the UN Millennium Summit, New York, 6 September 2000), extracts in (2001) 21 Australian Year Book of International Law 272; Alexander Downer, Daryl Williams and Philip Ruddock, ‘Improving the Effectiveness of United Nations Committees’ (Joint Media Release, FA97, 29 August 2000) , extracts in (2001) 21 Australian Year Book of International Law 274–6. Alexander Downer, Daryl Williams and Philip Ruddock, ‘Improving the Effectiveness of United Nations Committees’ (Joint Media Release, FA97, 29 August 2000) , extracts in (2001) 21 Australian Year Book of International Law 274–6.

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broke out following a referendum on the future of East Timor, John Howard acceded to a request from the UN Secretary-General that Australia lead a multinational force, the International Force for East Timor (‘INTERFET’).98 The 1999 intervention in East Timor was Australia’s most important military commitment since the Vietnam War, and the first time Australia had led a UN operation.99 INTERFET quickly restored order with minimal casualties and came to an end when its functions were assumed by a peacekeeping force as part of the UN Transitional Authority in East Timor (‘UNTAET’), in which Australia was again a major participant.100 Similarly, Australia engaged with the Pacific Islands Forum when it decided to lead the Regional Assistance Mission to the Solomon Islands (‘RAMSI’) in June 2003, to assist in the provision of security and safety and also in the maintenance of law and order in the Solomon Islands. The deployment was legally based on a multilateral agreement between the Solomon Islands government and the contributing Forum member states.101 Beyond the Asia-Pacific region, Australia committed troops to the US-led military operations in Afghanistan and Iraq, which were not channelled through the UN collective enforcement mechanisms.102 Another low point in Australia’s record of engagement with international organisations was the Australian Wheat Board (‘AWB’) scandal in 2004. This concerned the Oil-for-Food Programme, which was established by the Security Council in the aftermath of the 1990–91 Gulf Crisis to mitigate the effects of sanctions on the Iraqi population by permitting the tightly regulated export of Iraqi oil to finance the purchase of humanitarian supplies.103 The Hussein regime exploited this program by awarding contracts to foreign companies providing humanitarian supplies, including most prominently the AWB, in exchange 98

99

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102 103

Roger Bell, ‘Reassessed: Australia’s Relationship with the United States’, in James Cotton and John Ravenhill (eds), Seeking Asian Engagement: Australia in World Affairs, 1991–1995 (Oxford University Press, 1997) 207, 223; Paul Kelly, The March of Patriots (Melbourne Unviersity Press, 2009) 504–10. Paul Kelly, The March of Patriots (Melbourne Unviersity Press, 2009) 481. INTERFET was established in September 1999, under Australian command, with a ch VII mandate to use ‘all necessary measures’ to restore peace and security in East Timor: SC Res 1264, UNSC (15 September 1999). David Goldsworthy, ‘An Overview’ in James Cotton and John Ravenhill (eds), The National Interest in a Global Era: Australia in World Affairs 1996–2000 (Oxford University Press, 2002) 12; Senate Standing Committee on Foreign Affairs, Defence and Trade, Australia’s Involvement in Peacekeeping Operations (2008) 8. UNTAET was established by SC Res 1272, UNSC (25 October 1999). Agreement between Solomon Islands, Australia, New Zealand, Fiji, Papua New Guinea, Samoa and Tonga Concerning the Operations and Status of the Police and Armed Forces and Other Personnel Deployed to Solomon Islands to Assist in the Restoration of Law and Order and Security, opened for signature 24 July 2003, [2003] ATS 17 (entered into force 24 July 2003). For details, see chapter 12 in this volume. SC Res 706, UNSC (15 August 1991); SC Res 986, UNSC (14 April 1995).

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for illegal side payments.104 A Royal Commission found no evidence of any knowledge on the part of Australian Ministers and officials of the relevant activities of the AWB,105 but the scandal was damaging enough to undermine the government’s credibility.106

E  2007–2013: The Rudd and Gillard Governments [5.70]  The Labor Party platform gave prominence to multilateralism and the UN system in particular. The reinstatement of membership of the UN as one of the three pillars of Australian foreign policy, in the Labor tradition,107 illustrated the importance attached to multilateral institutions by the Rudd government.108 This was reinforced by the decision to seek a seat for Australia on the Security Council in 2013–14 — the first such seat for Australia in almost 30 years. The fundamental change in attitude to the UN from the Howard government was also evident in many speeches and statements of senior ministers, and of Kevin Rudd himself, on the need to re-engage with the UN and multilateralism generally. As was noted in relation to Rudd’s visit to the UN in 2008, ‘[i]n New York … the return of multilateralism to the vocabulary of Australian diplomacy drew warm applause’.109 The commitment of the Rudd government, and of Rudd personally, to seeking multilateral action in addressing climate change was evident in 104

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The Volcker report resulting from the Independent Inquiry Committee established by the UN Secretary-General found that the AWB had paid a total of US$221.7 million in side payments to the Iraqi regime, which was more than 14 per cent of all the funds illicitly collected by the regime’s abuse of the program. See UN Independent Inquiry Committee into the UN Oil-for-Food Programme, Report on the Manipulation of the Oil-forFood Programme (2005) vol 1, 314. Commonwealth of Australia, The Inquiry into Certain Australian Companies in relation to the UN Oil-for-Food Programme: Final Report (2006) vol 1, xii. Judith Brett, ‘Exit Right: The Unravelling of John Howard’ (2007) 28 Quarterly Essay 1, 37–8. Membership of the UN was the first of the three ‘fundamental pillars’ of Labor’s national security policy in the 2004, 2007 and 2009 party platforms: Australian Labor Party, National Platform and Constitution (2004) 232 para 4; Australian Labor Party, National Platform and Constitution (2007) 227 para 1; Australian Labor Party, National Platform and Constitution (2009) ch 10 para 14. ‘Multilateral diplomacy’ as the best way to achieve ‘global economic and social development, human rights, environmental protection and international security’ appears in the 2000 platform: Australian Labor Party, Platform and Constitution (2000) ch 15 para 27; 2004 platform, ch 15, 234 para 21; 2007 platform, ch 14, 231 para 27; 2009 platform, para 32. For example, the Department of Foreign Affairs and Trade annual report for 2008–09 is replete with references to the government’s ‘renewed focus on multilateralism’, its ‘renewed emphasis on engaging the multilateral system and seeking global solutions to global challenges’, and its ‘commitment to revitalising Australia’s engagement with the United Nations, which lies at the core of the multilateral system’: Department of Foreign Affairs and Trade, Annual Report 2008–09 (2009) 4, 116. Richard Leaver, ‘Issues in Australian Foreign Policy January to June 2008’ (2008) 54(4) Australian Journal of Politics and History 597, 605.

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the attendance by Rudd and five of his Ministers at the UN Conference of Parties on Climate Change held in Bali in December 2007. Rudd also led a large delegation to the ill-fated Copenhagen summit in December 2009, where, despite the efforts of Rudd and many other heads of government, the hoped-for successor to the Kyoto Protocol110 was not forthcoming.111 On his return from Copenhagen, Rudd was heavily criticised for the spectacular failure of the talks, in large part because he had set such store by them and was now seen as making a political mistake in insisting that Australia take drastic (as some perceived) action to adopt a carbon trading scheme.112 In relation to regional engagement, brief mention should be made of Rudd’s proposal, albeit unsuccessful, for an Asian-Pacific Community ‘to enhance the positive dimensions of growing regional interconnectedness’.113 In June 2008, Rudd announced that Australia would lead negotiations for the establishment of such a community as ‘an endeavour to create a greater profile for Australia’s regional diplomacy’ and to guard against Australia’s potential marginalisation from the region.114 Some states objected to the lack of prior consultation about the proposal and to the threat it posed to ASEAN’s leading role in the region, and it was not pursued at the time.115 Australia’s engagement with international and regional institutions continued following the replacement of Rudd as Prime Minister by Julia Gillard in June 2010 (with Rudd becoming Foreign Minister). Despite criticism of the cost of Australia’s Security Council election campaign, the Gillard government did not withdraw the bid and, indeed, engagement with the UN intensified in the lead-up to the 2012 election, where Australia 110

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Kyoto Protocol to the United Nations Framework Convention on Climate Change, opened for signature 11 December 1997, [2008] ATS 2 (entered into force 16 February 2005). Andrew Charlton, ‘What We Learned in Copenhagen’, The Monthly (online), 28 November 2011, . Andrew O’Neil, ‘Regional, Alliance and Global Priorities of the Rudd–Gillard Governments’ in James Cotton and John Ravenhill (eds), Middle Power Dreaming: Australia in World Affairs 2006–2010 (Oxford University Press, 2011) 273, 286–7; Lorraine Elliott, ‘Plus Ca Change? The Coalition, Labor and the Challenges of Environmental Foreign Policy’ in James Cotton and John Ravenhill (eds), Middle Power Dreaming: Australia in World Affairs 2006–2010 (Oxford University Press, 2011) 208, 215–16; Maryanne Kelton and Richard Leaver, ‘Issues in Australian Foreign Policy July to December 2008’ (2009) 55(2) Australian Journal of Politics and History 248, 257. Kevin Rudd, ‘It’s Time to Build an Asia-Pacific Community’ (Speech delivered to the Asia Society AustralAsia Centre, Sydney, 4 June 2008) . Andrew O’Neil, ‘Regional, Alliance and Global Priorities of the Rudd–Gillard Governments’ in James Cotton and John Ravenhill (eds), Middle Power Dreaming: Australia in World Affairs 2006–2010 (Oxford University Press, 2011) 276. Andrew O’Neil, ‘Regional, Alliance and Global Priorities of the Rudd–Gillard Governments’ in James Cotton and John Ravenhill (eds), Middle Power Dreaming: Australia in World Affairs 2006–2010 (Oxford University Press, 2011) 276–7.

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was elected with unexpected ease in the first round of voting. Australia’s key priorities for its term on the Council were stated to be the situations in Afghanistan, Syria, Iran and North Korea; improving the effectiveness of sanctions; and providing a voice for small and medium-sized nations.116 In its election campaign, the Labor government also emphasised the problems posed by climate change, especially for small island developing states and least developed countries,117 and the Gillard government established some credentials in this area by finally passing legislation to implement a carbon emissions trading scheme, with effect from 1 July 2012.118

F  2013–2016: The Abbott and Turnbull Governments [5.80]  While many of the new policies introduced under the previous Labor government were reversed when Tony Abbott came to power on 18 September 2013, the non-permanent seat on the Security Council won by the previous government meant that the conservative government had no choice but to engage with multilateral diplomacy in the UN from the outset. Under the stewardship of Foreign Minister Julie Bishop, Australia took the initiative at the Security Council in many areas, including counter-terrorism, sanctions monitoring, and the regulation of small arms and light weapons. Particularly notable is Australia’s leadership in the Security Council’s response to the downing of Malaysian Airlines MH17 over embattled eastern Ukraine, with a speedy adoption of Resolution 2166 on 21 July 2014 — only four days after the incident — setting out the legal framework for cooperation between the parties concerned.119 In other areas, such as human rights and climate change, however, there was a conscious shift away from multilateralism, especially under the Abbott government, prioritising the national interest over cooperation with international organisations.120 Tony Abbott reportedly stated that Australians were ‘sick of being lectured to by the United Nations’,121 when UN Special 116

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118 119 120

121

Julia Gillard and Bob Carr, ‘Australia Secures a Seat on the United Nations Security Council’ (Joint Media Release, 19 October 2012) . See, eg, Security Council Report, Special Research Report: Security Council Elections 2012 (25 September 2012) 3 . Clean Energy Act 2011 (Cth) and 25 associated Acts. SC Res 2166, UNSC, 7221st mtg (21 July 2014). See, eg, Sophie Morris, ‘Tony Abbott’s Global Retreat’, The Saturday Paper (online), 7 June 2014, . See, eg, Lisa Cox, ‘Tony Abbott: Australians “Sick of Being Lectured to” by the United Nations, after Report Finds Anti-Torture Breach’, The Sydney Morning Herald (online), 10 March 2015, .

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Rapporteur Juan Méndez found that Australia had failed to comply with its obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment122 in relation to various aspects of its asylum seeker detention policies.123 However, there are indications that pragmatism started to prevail within the Liberal Party. Indeed, soon after Malcolm Turnbull took over the prime ministership in September 2015, the government announced its intention to seek election to the UN Human Rights Council for the 2018–20 term and to the Security Council for the 2029–30 term.124 It remains to be seen how the Liberal government is going to further develop pragmatic approaches to multilateral engagement through international organisations while maintaining traditional bilateralism at the core of its foreign policy.

IV CONCLUSION [5.90]  Australia’s engagement with international organisations has been dynamic: often reflective of the foreign policies of the time along major political party lines, but sometimes due to the force of personality of particular individuals, and increasingly through greater involvement of various Australian agencies and companies. The same observation can be made of Australia’s engagement with international law in general, but this chapter has shown that these factors also influence how Australia determines its relationship with international organisations. While Australia’s engagement with international organisations in its foreign policy has tended to ebb and flow over time, Australia has been consistently concerned with the interference by international organisations in its domestic affairs. Thus, under Hughes’s leadership, Australia fended off the insertion of a racial equality clause into the League covenant, lest it open Australia’s immigration policy to international scrutiny. For the same reason, even the enthusiastic internationalist Evatt strongly advocated limiting the UN’s power to intervene in the domestic affairs of its members. More recently, the Howard government’s hostility towards human rights treaty bodies could be explained from the same general perspective. No such sensitivity to international scrutiny of Australian domestic affairs has, however, been evident in post-1949 Labor governments. 122

123

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Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987). Juan E Méndez, Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN Doc A/HRC/28/68/Add.1 (5 March 2015) 7–9. Julie Bishop, ‘United Nations Security Council & Human Rights Council’ (Media Release, 29 September 2015) .

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From time to time, Australia has engaged with international organisations in dealing with regional affairs — for example, Evans’s proposal for a direct UN role in the administration of Cambodia, and Australia’s military deployment in East Timor under a UN mandate. However, its engagement with regional organisations such as ASEAN and the Pacific Islands Forum has become increasingly significant in managing regional affairs. Australia’s visionary ideas — such as Rudd’s ‘Asia-Pacific Community’ — recognise the clear need for a regional or sub-regional institutional framework through which to engage in regional affairs. In more recent years, Australia has continued to be involved in various regional institutions — both old and new — including APEC, ASEAN, the ASEAN Regional Forum, the East Asian Summit and the Indian Ocean Rim Association for Regional Co-operation, engaging in regional dialogues to deal with a range of contemporary issues of transnational nature such as climate change, disaster management, and cyber security. Through the UN Security Council or outside, Australia has much to offer with respect to the operation and development of various inter­national organisations. Its expertise and past successes include peace-building, the responsibility to protect, nuclear non-proliferation and disarmament. Australia’s leadership, whether Labor or Liberal, will continue to be tested in engaging with international and regional organisations to address new challenges such as climate change and people smuggling.

6 Australia and the International Protection of Human Rights Hilary Charlesworth and Gillian Triggs*

I INTRODUCTION [6.10]  Australia’s relationship with the international human rights regime has changed profoundly since the last edition of this book, published in 1984. J G Starke’s chapter recorded various phases in Australia’s inter­ actions with the international human rights system: its engagement with the fledgling normative standards developed by international institutions in the wake of the First World War; its participation in the creation of the United Nations system of human rights protection after the Second World War; selective interactions in the 1950s and 60s; the renaissance of interest in global human rights standards with the election of the Whitlam government in 1972; and the Australian translation of some of these standards by the Fraser government after 1975, particularly through the creation of the Human Rights Commission in 1981. Starke’s chapter ended optimistically, noting a range of recent measures to deepen the protection of human rights in Australia, including the introduction of the Commonwealth’s Sex Discrimination Bill in 1983, Australia’s support for a Working Group on Indigenous Peoples at the UN Commission on Human Rights, and decisions of the High Court of Australia that acknowledged an extensive Commonwealth power to legislate to implement inter­ national human rights instruments. On the strength of the High Court cases,1 Starke concluded that ‘it may be expected that Australia’s national *

1

We thank Sam Rutherford and Mala Wadhera for their helpful research assistance and Emma Larking for her valuable comments on this chapter. Koowarta v Bjelke-Petersen (1982) 153 CLR 168; Commonwealth v Tasmania (1983) 158 CLR 1 (‘Tasmanian Dam Case’). 117

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role in upholding the international protection of human rights will grow in importance and in results’.2 Over 30 years later, Starke’s prediction has not been realised. While there have been significant legislative developments in human rights protection at the Commonwealth, state and territory levels, these have tended to be piecemeal, advancing specific rights in limited ways. Indeed, a certain hostility to international standards and scrutiny has developed, with the construction of an Australian self-image as a ‘gold-plated democracy’ and human rights-respecting paragon. Australia tends to engage with the inter­ national human rights system mainly as a vehicle to express concern about the behaviour of other countries. There has been a revival of interest in the idea of ‘home-grown’ or common law rights as a counterpoint to more suspect international standards.3 Having the advantage of a longer perspective than Professor Starke, we can see that Australia’s relationship with the international human rights system has not been one of increasing accommodation of international standards. It has moved rather in fits and starts, occasionally foundering and going backwards. Interest in international human rights standards in Australia has been driven by an expert coterie of individuals and groups and appears to have shallow roots in Australia’s legal and cultural soil. Overall, Australia has adopted a Janus-faced approach to the protection of human rights. One face, looking to the international sphere, champions human rights principles. The other face, looking internally, resists the application of these principles to the Australian domestic order.4 In this chapter, after describing Australia’s constitutional and common law position with respect to human rights, we outline the history of Australia’s relationship with the international human rights system. We then consider how Australia has implemented its treaty commitments in this area and how the international community has assessed this implementation. We conclude by identifying emerging human rights issues for Australia.

II  AUSTRALIA’S CONSTITUTIONAL AND COMMON LAW PROTECTION OF HUMAN RIGHTS [6.20]  Unlike every common law country and most civil law countries — including comparable jurisdictions such as Canada, New Zealand, the 2

3

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J G Starke, ‘Australia and Human Rights’ in K W Ryan (ed), International Law in Australia (Law Book Company, 2nd ed, 1984) 136, 153–4. See, eg, the Commonwealth Attorney-General’s reference to the Australian Law Reform Commission: George Brandis, Terms of Reference: Review of Commonwealth Laws for Consistency with Traditional Rights, Freedoms and Privileges (13 August 2014) Australian Law Reform Commission . See Hilary Charlesworth et al, No Country Is an Island: Australia and International Law (UNSW Press, 2006) 65.

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United Kingdom, the United States, South Africa and Europe — Australia has few constitutional protections for human rights. The Australian Constitution establishes representative government and an independent judiciary, but expressly protects only the right to compensation for unjust acquisition of property5 and freedom of religion.6 Protection of other freedoms depends upon a patchwork of legal mechanisms. Australian courts have sometimes developed rights principles. The High Court of Australia, for example, implied a right of political communication in the Constitution, a right that does not fully equate to the common law or international law right to freedom of speech.7 It might be expected that the Australian common law would provide a reliable safety net for protecting human rights. Under the common law, Parliament is presumed to have intended to comply with international law and the principle of legality.8 Nevertheless, common law freedoms, such as the rights not to be detained arbitrarily and to freedom of speech, can be overridden by clear legislative limitations, undermining the capacity of the common law to support human rights. The reluctance of Australian courts to rely on common law freedoms is well illustrated in the context of Australia’s asylum seeker policies. In 2004, a four-member majority of the High Court of Australia concluded that the mandatory detention of asylum seekers, provided for in the Migration Act 1958 (Cth), was constitutionally valid.9 The plaintiff was a stateless Palestinian man whose claim to refugee status had been rejected by the Australian government, the Refugee Review Tribunal and the Federal Court. No other country would accept him, with the result that Mr Al-Kateb was detained for five years by the Australian government without charge or trial.10 Gleeson CJ, in dissent, cited the general and well-accepted principle that Australian courts ‘do not impute to the legislature an intention to abrogate or curtail certain human rights or freedoms (of which personal liberty is the most basic) unless such an intention is clearly manifested by unambiguous language’.11 In his application of this principle, Gleeson CJ found that 5

6

7 8

9 10

11

This right is implied by the Commonwealth’s power to acquire property on just terms: Australian Constitution s 51(xxxi). Australian Constitution s 116: ‘The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.’ Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 560. Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309, 363 (O’Connor J); Coco v The Queen (1994) 179 CLR 427, 437 (Mason CJ, Brennan, Gaudron and McHugh JJ). Al-Kateb v Godwin (2004) 219 CLR 562. Ultimately, Al-Kateb was released by the Minister for Immigration using her discretionary powers under the Migration Act 1958 (Cth). Al-Kateb v Godwin (2004) 219 CLR 562, 577 [19].

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there was no such intention to oust fundamental freedoms. While Hayne J, forming part of the majority, cited the same principle, he found that the relevant provision requiring mandatory detention was so clear as to deny any implication of a time limit on detention, as would have been consistent with the right to liberty.12 Another illustration of the weakness of the Australian common law as a protector of human rights is a 2016 decision of the High Court in Plaintiff M68/2015 v Minister for Immigration and Border Protection.13 The plaintiff, a Bangladeshi asylum seeker and ‘unauthorised maritime arrival’ under the Migration Act, sought a declaration that the Commonwealth and the Minister acted beyond their executive powers under s 61 of the Constitution by enforcing her detention at a Regional Processing Centre in Nauru under a memorandum of agreement with that country. The focus of the case was on the capacity of the Commonwealth government ‘to procure or enforce a deprivation of liberty’ in another country.14 Gageler J, a member of the majority, cited with approval the majority view in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs15 that: Under the common law of Australia … an alien who is within this country, whether lawfully or unlawfully, is not an outlaw. Neither public official nor private person can lawfully detain him or her or deal with his or her property except under and in accordance with some positive authority conferred by the law.16 Gageler J confirmed that state imprisonment could ‘occur only if and to the extent permitted by statute’.17 The issues for the High Court were, accordingly, whether s 198AHA of the Migration Act, relating to the Commonwealth’s arrangements with another country for regional refugee processing, was a valid exercise of the Commonwealth government’s legislative power over external affairs under s 51(xxix) of the Constitution. The six-to-one majority answered both questions affirmatively. While the decision endorsed the validity of the detention of a person for third-country processing under Australian law, the Court did not assess the compliance of this law with international law or the law of the country in question. The decision of the High Court in Plaintiff M68/2015 demonstrates Australia’s essentially parliamentary and administrative approach to the 12 13 14

15

16

17

Al-Kateb v Godwin (2004) 219 CLR 562, 643 [241]. Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 90 ALJR 297. Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 90 ALJR 297, 327 [146]. Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1. Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, 19 (Brennan, Deane and Dawson JJ). Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 90 ALJR 297, 328 [156].

Ch 6: AUSTRALIA AND THE INTERNATIONAL PROTECTION OF HUMAN RIGHTS   121

protection of human rights and freedoms.18 The common law right not to be detained arbitrarily is of ancient lineage from at least the time of the Magna Carta in 1215. However, the High Court has accepted that the Australian Parliament can authorise detention by the executive government so long as that detention is not punitive (an exclusive judicial power) and the duration of that detention is reasonably necessary and capable of objective determina­ tion by a court. The Plaintiff M68/2015 decision, then, confirms that the key c­ haracteristic of Australia’s approach to human rights is that Parliament has almost unlimited powers to authorise activities inconsistent with fundamental rights and freedoms. In such a flimsy constitutional and common law context, inter­ national human rights norms have particular potential in Australia.

III  AUSTRALIA AND THE INTERNATIONAL HUMAN RIGHTS SYSTEM [6.30]  Australia first encountered international systems for protecting human rights through the International Labour Organization (‘ILO’) and the League of Nations, both of which it joined as a founding member in 1919 and 1920 respectively. These encounters illustrated two features of Australia’s relationship with the international human rights order that have persisted into the 21st century: concern that protection of human rights disturbs the federal balance; and tension between adherence to human rights and Australia’s immigration policies. Australia was active in the drafting of ILO conventions, but slow to ratify them. The ILO Constitution contained a ‘federal’ clause which provided that, in the case of a federal state whose power to enter into conventions was limited, its government could treat a convention to which such limitations applied as a recommendation, thus becoming subject only to an obligation to consider it ‘with a view to’ placing it before the constituent states for implementa­ tion.19 Initially, Australia took full advantage of the federal clause and would not ratify any convention unless it had express legislative power over the subject matter of the treaty.20 In 1929, however, Australia undertook to ratify conventions whose subject matter was not expressly assigned to the Common­ wealth if the Australian states gave an assurance that they had taken legislative action to implement the convention and that they would not alter the law to be 18

19

20

See George Williams, ‘The High Court, the Constitution and Human Rights’ (2015) 21(1) Australian Journal of Human Rights 1. International Labour Organization, Constitution of the International Labour Organization (adopted 1 April 1919, entered into force 28 June 1919) art 19(6). This provision has since been amended: see art 19(7). Kenneth Bailey, ‘Australia and the International Labour Conventions’ (1946) 54 International Labour Review 285, 288.

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inconsistent with the convention without consultation.21 This change in policy produced poor results: by 1946, Australia had ratified only 12 out of 68 ILO conventions.22 Australia’s Minister for External Affairs, Dr H V Evatt, blamed this on the recalcitrance of the states and their poor coordination.23 It was also due to the Commonwealth taking a timid view of its capacity to implement treaties under the external affairs power, despite the High Court’s relatively expansive approach to the issue in R v Burgess; Ex parte Henry.24 Australia was appointed as a mandatory power for New Guinea under art 22 of the Covenant of the League of Nations,25 and also administered Nauru for the British Empire as formal mandate holder. In this role, Australia’s actions were to be guided by the principle that ‘the well-being and development of [the] … peoples [living in these territories] form a sacred trust of civilisation’. This was understood as a rather limited obligation, with Australia resisting recognition of a principle of racial equality in the covenant. At Versailles, Prime Minister Hughes argued against a provision allowing free entry of nationals of members of the League into the territories of other League members, worrying that: Our White Australia Policy would be a pricked bladder. Our control of immigration laws would be so much waste paper. When I first heard of it I could not believe that the [covenant-drafting] committee would dream of even toying with such a proposal.26 A quarter of a century later, as Minister for External Affairs, Dr Evatt played a significant role in drafting the Charter of the United Nations (‘UN Charter’),27 adopted in 1945, which contains one of the first international uses of the term ‘human rights’. The UN Charter provides that a primary purpose of the United Nations is ‘to achieve international co-operation … in promoting and encouraging respect for human rights and for fundamental freedoms for all’.28 Dr Evatt was particularly interested in the protection of labour standards through the United Nations and the ILO, as well as the welfare of the peoples of colonial territories. 21

22

23

24 25

26

27

28

Kenneth Bailey, ‘Australia and the International Labour Conventions’ (1946) 54 International Labour Review 285, 288–9. Kenneth Bailey, ‘Australia and the International Labour Conventions’ (1946) 54 International Labour Review 285, 290. Kenneth Bailey, ‘Australia and the International Labour Conventions’ (1946) 54 International Labour Review 285, 290. R v Burgess; Ex parte Henry (1936) 55 CLR 608. Covenant of the League of Nations, opened for signature 28 April 1919, [1920] ATS 1/ [1920] ATS 3 (entered into force 10 January 1920). W M Hughes, Policies and Potentates (1950), quoted in J G Starke, ‘Australia and Human Rights’ in K W Ryan (ed), International Law in Australia (Law Book Company, 2nd ed, 1984) 140. Charter of the United Nations, opened for signature 26 June 1945, 1 UNTS xvi (entered into force 24 October 1945) (‘UN Charter’). UN Charter art 1.

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Dr Evatt was a strong supporter of the Universal Declaration of Human Rights (‘UDHR’),29 adopted by the General Assembly of the United Nations on 10 December 1948 while Evatt was President of the General Assembly. He also presided over the adoption of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (‘Convention on Genocide’).30 Australia led a campaign for an International Court of Human Rights.31 The early Australian interest in the design of international human rights standards was, however, tinged by ambivalence. Like Billy Hughes at Versailles, Dr Evatt was particularly chary of any international statements on the right to racial equality, concerned that this might affect Australia’s restrictive immigration policies.32 Australia also was involved in the drafting of later treaties that translate the commitments of the UDHR into binding obligations. Against the urgings of the United States and the United Kingdom, it initially argued for the legal protection of economic and social rights in a single human rights treaty, later reluctantly accepting the separation of civil and political rights from economic and social rights, and different implementation regimes, in the International Covenant on Civil and Political Rights (‘ICCPR’)33 and the International Covenant on Economic, Social and Cultural Rights (‘ICESCR’),34 both adopted in 1966.35 While Australia ratified some human rights treaties in the post-Second World War period, such as the Convention on Genocide, from the late 1950s until the early 1970s its interest in the international human rights system waned.36 For example, it signed, but did not ratify, the International Convention on the Elimination of All Forms of Racial Discrimination (‘ICERD’) of 1966,37 and did not sign either the ICCPR or the ICESCR. This inactivity continued to be explained as the product of the Australian federal system in which the 29

30

31

32

33

34

35

36

37

Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948) (‘UDHR’). Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature 10 December 1948, 78 UNTS 277 (entered into force 12 January 1951) (‘Convention on Genocide’). See Annemarie Devereux, Australia and the Birth of the International Bill of Rights 1946–1966 (Federation Press, 2005) 180–8. See Annemarie Devereux, Australia and the Birth of the International Bill of Rights 1946–1966 (Federation Press, 2005) 180–8. International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (‘ICCPR’). International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) (‘ICESCR’). Dominique F J J De Stoop, ‘Australia’s Approach to International Treaties on Human Rights’ (1970–73) Australian Year Book of International Law 27, 28. Annemarie Devereux, Australia and the Birth of the International Bill of Rights 1946–1966 (Federation Press, 2005) offers a detailed account of this period. International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969) (‘ICERD’).

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Australian states rather than the Commonwealth had legislative power over many issues dealt with in human rights treaties.38 Despite this concern, the Labor government led by Gough Whitlam, elected in 1972, moved to accept a number of international human rights treaties, enacting the Racial Discrimination Act 1975 (Cth), which approved ratification of, and implemented, ICERD in 1975. It also signed the two covenants, but did not move to ratify them on the cautious basis that they were not yet in force internationally. The Fraser Coalition government ratified the covenants in 1976 (for the ICESCR) and 1980 (for the ICCPR). Whitlam’s bold approach to the international human rights system was vindicated by the High Court’s 1982 decision in Koowarta v Bjelke-Petersen,39 which upheld the validity of the Racial Discrimination Act in the face of a challenge by Queensland. That decision affirmed that the constitutionality of federal human rights legislation depends largely on the Commonwealth’s power to legislate with respect to ‘external affairs’.40 In 1983, the High Court reinforced the power of the Commonwealth to override state legislation to ensure that Australia complied with its inter­national obligations in the Tasmanian Dam Case.41 In this sense, the Australian protection of human rights is dependent on the scope of the international legal system. Australia has now accepted seven of the nine ‘core’ international human rights treaties adopted by the United Nations.42 It has not signed the International Convention on the Rights of All Migrant Workers and Members of Their Families43 or the Inter­ national Convention for the Protection of All Persons from Enforced Disappearance.44 38

39 40 41 42

43

44

Dominique F J J De Stoop, ‘Australia’s Approach to International Treaties on Human Rights’ (1970–73) Australian Year Book of International Law 27, 29–30. Koowarta v Bjelke-Petersen (1982) 153 CLR 168. Australian Constitution s 51(xxix). Commonwealth v Tasmania (1983) 158 CLR 1 (‘Tasmanian Dam Case’). International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (ratified by Australia 13 August 1980) (‘ICCPR’); International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) (ratified by Australia 10 December 1975) (‘ICESCR’); International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969) (ratified by Australia 30 September 1975) (‘ICERD’); Convention on the Elimination of All Forms of Discrimination against Women, opened for signature 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981) (ratified by Australia 28 July 1983); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) (ratified by Australia 8 August 1989); Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) (ratified by Australia 17 December 1990) (‘CRC’); Convention on the Rights of Persons with Disabilities, opened for signature 13 December 2006, 2515 UNTS 3 (entered into force 3 May 2008) (ratified by Australia 17 July 2008). International Convention on the Rights of All Migrant Workers and Members of Their Families, opened for signature 18 December 1990, 2220 UNTS 3 (entered into force 1 July 2003). International Convention for the Protection of All Persons from Enforced Disappearance, opened for signature 20 December 2006, 2176 UNTS 3 (entered into force 23 December 2010).

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Despite the High Court’s endorsement of a broad Commonwealth power to implement human rights treaties, the federal government has been wary about exploiting the power, regularly deferring to the states. As we discuss below, it has been restrained in its translation of the international human rights treaties that Australia has accepted. For example, while the federal government has enacted laws dealing specifically with race, sex and disability discrimination, based on the relevant international instruments, it has not implemented broader catalogues of rights, such as those contained in the ICESCR, the ICCPR and the Convention on the Rights of the Child (‘CRC’).45 There have been various attempts over the past four decades to adopt an Australian Bill of Rights based on international standards, but all have failed because of intense political opposition, based both on preservation of state legislative powers and on a faith in Parliament’s capacity to protect human rights. In 1973, the Attorney-General, Lionel Murphy, introduced a Human Rights Bill into the Australian Parliament as a precursor to constitu­ tional change. The draft legislation was based on the ICCPR and would have bound both federal and state governments. Federal laws inconsistent with the Human Rights Bill were deemed to be inoperative unless they expressly declared that they would operate in spite of the legislation. State laws incon­ sistent with the Human Rights Bill would be automatically invalid. The Bill drew storms of protest, most particularly based on the claim that it would diminish states’ rights. Eventually, the Bill was allowed to lapse. In 1981, the Fraser government passed the Human Rights Commission Act 1981 (Cth), which provided administrative remedies for violations of some internationally recognised rights by the Commonwealth government. The legislation created a Human Rights Commission and authorised it to examine federal laws for consistency with international human rights standards. The Commission could also receive complaints, but its ultimate sanction was to report the result of its investigations to the Commonwealth Parliament. The rationale for this modest protective system was that the most effective protection of human rights rested on drawing the legislature’s attention to breaches. A further legislative attempt to enact a Bill of Rights was made in 1984 by Labor Attorney-General Senator Gareth Evans. He proposed a weaker version of the Murphy Human Rights Bill providing for judicial interpreta­ tion to favour constructions of laws that promoted human rights as defined in international instruments. The legislation did not allow any direct challenge to laws by a person affected by them, although it was possible to seek a declaration that a particular law was inconsistent with the Bill of Rights. A strong attack was made on the proposals mainly because the law would 45

Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) (‘CRC’).

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diminish state legislative power. The controversy meant that, in the end, the draft law was not introduced into Parliament. In 1985, Labor Attorney-General Lionel Bowen introduced into Parliament yet another version of an Australian Bill of Rights, again relying on international standards. The draft legislation was narrower still than the Evans Bill. It applied only to federal laws and excluded all state laws from its scope. Despite its modest form, the Bill attracted such intense opposition from politicians from all political parties that it was allowed to lapse.46 The following year, the Commonwealth Parliament enacted the Human Rights and Equal Opportunity Commission Act 1986 (Cth). This created a new institution, the Human Rights and Equal Opportunity Commission (‘HREOC’), to replace the Human Rights Commission whose legislation automatically expired after five years. The HREOC was renamed the Australian Human Rights Commission (‘AHRC’) in 2008. The Australian Human Rights Commission Act 1986 (Cth) depends on international law to define human rights as ‘the rights and freedoms recognised in the [ICCPR], declared by [the Declaration on the Rights of the Child, the Declaration on the Rights of Mentally Retarded Persons, and the Declaration on the Rights of Disabled Persons] or recognised or declared by any relevant international instrument’.47 The rights set out in the legislation are implemented, however, in a tenuous way. The AHRC has jurisdiction only in relation to Commonwealth laws. Apart from its specific role under the four Commonwealth anti-­ discrimination laws, discussed below, its functions are to examine legislation for consistency with human rights standards and to report its findings to the Attorney-General. The AHRC may also attempt to conciliate human rights issues. Its power, with leave of the court, to intervene in judicial proceedings where there is a human rights issue has been used with some effect.48 Perhaps its most important contribution to the implementation of international human rights standards has been the AHRC’s major reports on topics from mental health, to the stolen generation of Indigenous children, to workplace equality and to the treatment of children in immigration detention. Over the last 30 years, the AHRC has been supported by successive Commonwealth governments as an independent agency and has been 46

47 48

In 1988, the Hawke Labor government held a referendum to introduce a small number of rights into the Constitution, a proposal that was overwhelmingly defeated. For discussion, see Brian Galligan and Emma Larking, ‘Rights Protection: The Bill of Rights Debate and Rights Protection in Australia’s States and Territories’ (2007) 28 Adelaide Law Review 1, 8. Australian Human Rights Commission Act 1986 (Cth) s 3. See Clarke v Nationwide News Pty Ltd (2012) 201 FCR 389; Ellison v Karnchanit (2012) 48 Fam LR 33; Re Jamie (2013) 50 Fam LR 369; Karim v The Queen (2013) 83 NSWLR 268; Maloney v The Queen (2013) 252 CLR 168; Bateman v Kavan (2014) 52 Fam LR 648; Mulligan v Virgin Australia Airlines Pty Ltd (2015) 234 FCR 207.

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accorded ‘A’ status as a national human rights institution under the UN’s Paris Principles.49 International human rights law has had a direct impact at state and territory level through the adoption of the Human Rights Act 2004 (ACT) and the Charter of Human Rights and Responsibilities Act 2006 (Vic). These legislative Bills of Rights largely implement the rights contained in the ICCPR. The ACT Human Rights Act has been amended to include also some rights protected by the ICESCR.50 Perhaps prompted by developments in the Australian Capital Territory and Victoria, in 2008 the Rudd Labor government established a National Human Rights Consultation Committee, chaired by Frank Brennan. The Committee’s main recommendation was that the Commonwealth adopt a Human Rights Act to protect a range of rights drawn from inter­ national human rights treaties. The major mode of protection was a statutory requirement that legislation introduced into the Commonwealth Parliament be compatible with the designated rights.51 The Brennan report recommended that the High Court be empowered to declare existing legislation incompatible with the Human Rights Act and Parliament would then be obliged to consider amendment of the legislation. The Labor government effectively rejected this proposal in a 2010 document, Australia’s Human Rights Framework, although it promised to revisit the issue in 2014 (by which time it had lost office).52 The Rudd government did, however, accept the recommendation for a Parliamentary Joint Committee on Human Rights, and this was established in 2011. This Committee scrutinises the compatibility of Commonwealth legislation with the seven core international human rights treaties to which Australia is a party.53 The Committee has usually produced consensus reports, despite the different party affiliations of its parliamentary members. The Committee’s reports have provided rigorous assessments of legislation, although they have had mixed success in eliciting the amendment of laws that have been found to breach human rights. 49

50 51

52

53

International Coordinating Committee of National Institutions for the Protection and Promotion of Human Rights, ICC Sub-Committee on Accreditation (2014) ; National institutions for the promotion and protection of human rights, GA Res 48/134, UN GAOR, 48th sess, 85th plen mtg, Agenda Item 114(b), UN Doc A/RES/48/134 (20 December 1993) annex (‘Principles relating to the status of national institutions’). See Human Rights Act 2004 (ACT) pt 3A. This mechanism, similar to that of the United Kingdom’s Human Rights Act 1998, is employed in the two Australian state and territorial Bills of Rights: the ACT Human Rights Act 2004 (ACT) and the Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic). By 2014, a Labor government had been replaced by a Coalition government, which discontinued the Australian Human Rights Framework as a cost-savings measure. See Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) s 3.

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Australia’s relationship with the international human rights system over the past century indicates some general differences between the approaches of Labor and Liberal–National Coalition governments. The Labor party has been more open to government engagement in the protection of rights, while the Liberal party has emphasised the concept of freedoms and individual duties.54 With respect to federalism, Labor governments have been willing to contemplate Commonwealth implementation of human rights, while Liberal governments have been more deferential to states’ concerns about their legislative powers.55 These political differences should not be overstated, however; both sides of politics have typically been anxious about the impact of human rights guarantees in the Australian legal system. Engagement with the international system has been dependent above all on the interest and energy of particular individuals.

IV  IMPLEMENTATION OF HUMAN RIGHTS TREATY COMMITMENTS IN AUSTRALIAN LAW [6.40]  The deficits in Australia’s constitutional and common law pro­ tection of human rights noted above would not be so significant had the Commonwealth Parliament legislated to implement the core human rights treaties to which Australia is a party. While Australian governments have generally been willing to accept international human rights obligations, they have been less active in implementing these obligations into Australian law. This reluctance has created a legacy of exceptionalism and isolation from global human rights jurisprudence. Australia has enacted national laws to give effect to three treaties dealing with discrimination on the grounds of race, sex and disability. These laws typically implement the non-discrimination provisions of each treaty as it relates to employment, education, accommodation, delivery of services and public access. It is notable, however, that not all elements of these treaties are given domestic effect. The Sex Discrimination Act 1984 (Cth), for example, defines discrimination more narrowly than does the Convention on the Elimination of All Forms of Discrimination against Women (‘CEDAW’).56 While the convention refers to women’s enjoyment of human rights on an equal footing to men,57 the Australian legislation defines 54

55

56

57

Annemarie Devereux, Australia and the Birth of the International Bill of Rights 1946–1966 (Federation Press, 2005) 235. Annemarie Devereux, Australia and the Birth of the International Bill of Rights 1946–1966 (Federation Press, 2005) 235. Convention on the Elimination of All Forms of Discrimination against Women, opened for signature 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981). Convention on the Elimination of All Forms of Discrimination against Women, opened for signature 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981) art 1.

Ch 6: AUSTRALIA AND THE INTERNATIONAL PROTECTION OF HUMAN RIGHTS   129

discrimination by reference to less favourable treatment on the basis of a person’s sex.58 Despite its reluctance to translate Australia’s international human rights obligations into national law, the Commonwealth government has been a leader in enacting discrimination laws prior to agreement by the international community to develop a treaty on the issue. The Disability Discrimination Act 1992 (Cth) was, for example, adopted by Australia prior to negotiation of the Convention on the Rights of Persons with Disabilities (‘CPRD’).59 Indeed, this legislation gave Australia an influential role in diplomatic negotiations and drafting of the subsequent international treaty. The Commonwealth has also adopted the Age Discrimination Act 2004 (Cth), despite there being, as yet, no inter­national agreement on this subject. The ICESCR, the ICCPR and the CRC, among others, have not been implemented as part of national law. Australian governments have argued that formal implementation is unnecessary because the rights are already protected through existing Commonwealth and state laws or, alternatively, that any apparent breaches are the responsibility of the states and territories and beyond Commonwealth jurisdiction.60 Existing rights provisions, however, at best form a partial and porous system. For example, the Privacy Act 1988 (Cth) gives effect to art 17 of the ICCPR requiring states parties to respect the right to privacy, but most ICCPR rights have not attracted specific protection. As noted above, the AHRC plays a central role in the Australian human rights system. The powers of the Commission are to hold the government and private sector to account for compliance with human rights instruments, even though these treaties are not part of Australian law. The Commission is thus in the curious position of drawing attention to breaches of human rights obligations before courts, politicians and the community, despite the fact that these laws do not have direct application under national law. Fundamental to the work of the Commission is the complaints function. Each year, the Commission considers about 20,000 inquiries

58 59

60

Sex Discrimination Act 1984 (Cth) s 5. Convention on the Rights of Persons with Disabilities, opened for signature 13 December 2006, 2515 UNTS 3 (entered into force 3 May 2008). See, eg, Australian Government, Consideration of Reports Submitted by States Parties under Article 19 of the Convention Pursuant to the Optional Reporting Procedure: Fourth and Fifth Periodic Reports of States Parties due in 2012: Australia, CAT/C/AUS/4-5 (9 January 2014) [12], [18], [64]–[72]; Australian Government, Consideration of Reports Submitted by States Parties under Articles 16 and 17 of the International Covenant on Economic, Social and Cultural Rights: Fifth Periodic Reports of States Parties Due in December 2014, E/C.12/AUS/5 (16 February 2016) [24]–[27]; Australian Government, Consideration of Reports Submitted by States Parties under Article 4 of the Convention: Fourth Periodic Report of States Parties Due in 2007, CRC/C/AUS/4 (14 June 2011) [13]–[17].

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and 2300 complaints.61 The Commission has statutory powers to consider complaints of breaches of the four anti-discrimination laws on race, disability, age and sex, including sexual orientation, gender identity and intersex status. The Commission also considers complaints into breaches of equal opportunity in employment on other grounds, such as criminal record or religious discrimination; and complaints of breaches of human rights by the Commonwealth or those acting on its behalf.62 Where an inquiry crys­ tallises into a formal complaint, it is investigated and efforts are made to conciliate the matter. Over 70 per cent of such complaints are successfully resolved, providing a cost-free service to thousands of Australians.63 Where a complaint of unlawful discrimination under the four anti-discrimination laws cannot be conciliated, the complainant has the option of bringing suit in the Federal Court to gain a legally binding judgment. In this way, Australia’s anti-discrimination laws have been effective in protecting human rights, particularly in the context of employment and the delivery of goods and services. By contrast with matters arising under the four anti-discrimination laws, the mechanisms for breaches of human rights obligations, and other breaches of equal opportunity in employment, are weak. If a complaint is founded in one of the human rights treaties that has not been implemented in Australian law, the Commission is confined to attempting concili­ ation. If this conciliation fails, the Commission can report its findings and recommendations to Parliament through the Attorney-General.64 While over a hundred such reports have been made to Parliament over the last 30 years, very few recommendations have been accepted by the Commonwealth. The government has the power to appeal to the Adminis­ trative Appeals Tribunal against the findings and recommendations of the Commission, but it has never done so — apparently preferring inaction to direct disagreement. Australian governments have become increasingly willing to delete key international obligations from domestic laws. Some references to the Convention Relating to the Status of Refugees,65 for example, have been removed from the Migration Act and replaced with the government’s own interpreta­ tions of its international obligations towards refugees.66 The Minister’s exercise of discretion in respect of asylum seekers may, on occasion, be inconsistent 61

62 63 64 65

66

In 2014–15, the Commission received 20,020 enquiries and 2388 complaints: Australian Human Rights Commission, Annual Report 2014–2015 (2015) 136. Australian Human Rights Commission Act 1986 (Cth) ss 11(1)(aa), 31(b), 11(1)(f). Australian Human Rights Commission, Annual Report 2014–2015 (2015) 136. Australian Human Rights Commission Act 1986 (Cth) ss 11(1)(f)(ii), 29, 31(b)(ii), 35. Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) (ratified by Australia 22 January 1954). See, eg, s 36(2) of the Migration Act 1958 (Cth), which sets out criteria for a protection visa.

Ch 6: AUSTRALIA AND THE INTERNATIONAL PROTECTION OF HUMAN RIGHTS   131

with Australia’s obligations under the convention. For example, amendments to the Migration Act stipulate that Australian’s non-refoulement obligations are irrelevant to removals enacted under s 198, which provides for the removal of unlawful non-citizens in Australia.67 Generally, Australian courts have been hesitant to take into account international human rights commitments undertaken by Australia when interpreting and applying legislation. The exception has been in Minister for Immigration and Ethnic Affairs v Teoh,68 where the High Court in 1995 recognised a ‘legitimate expectation’ that government decision-makers will take into account the human rights obligations accepted by Australia. While Teoh represented the pinnacle of judicial recognition of human rights in administrative decision-making, subsequent decisions, notably the High Court’s decision in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam, have rejected the idea of a legitimate expectation that administrative decisions would advert to international human rights commitments, preferring instead to rely upon common law concepts such as ‘procedural fairness’.69 Thus, in the 2016 decision in Plaintiff M68/2015, noted above, no member of the High Court considered the inter­ national obligations Australia had accepted that would limit its powers of mandatory and indefinite detention of asylum seekers under the CRC or the ICCPR to be relevant.

V  INTERNATIONAL SCRUTINY [6.50]  The international human rights system provides a range of mech­ anisms to monitor the implementation by states of their treaty obligations. These include periodic reports by states to expert monitoring bodies respon­ sible for particular treaties; individual complaints mechanisms; and the UN Human Rights Council’s Universal Periodic Review (‘UPR’). How have these mechanisms assessed Australia’s human rights record? Australia’s periodic reports to human rights treaty bodies have prompted a consistent catalogue of concerns in the treaty bodies’ Concluding ­Observations. These include the disadvantaged situation of Australia’s Indigenous peoples, the treatment of asylum seekers, the reach of counter-terrorism legislation, excessive use of force by police, the rights of prisoners, and high rates of

67 68 69

Migration Act 1958 (Cth) s 197C; see the discussion of these matters in chapter 8. Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; SZSSJ v Minister for Immigration and Border Protection (2015) 326 ALR 641; Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636, 658 [65] (Gummow, Hayne, Crennan and Bell JJ); Minister for Immigration and Border Protection v WZARH (2015) 326 ALR 1, 13 [58].

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homelessness.70 The reporting mechanism has not, however proved a strong form of regulation of Australia’s human rights performance. On one occasion, indeed, it led to a rupture in Australia’s relationship with the international human rights system. In 2000, the Concluding Observations of the Committee on the Elimination of Racial Discrimination on Australia’s report lauded many legislative and policy measures designed to reduce the incidence of racial discrimination in Australia, but they also expressed concern about a range of forms of discrimination against Aboriginal and Torres Strait Islander peoples.71 The Commonwealth government rejected the Committee’s views, calling them ‘an unbalanced and wide-ranging attack that intrudes unreasonably into Australia’s domestic affairs’. The AttorneyGeneral, the Minister for Foreign Affairs and the Minister for Immigration issued a joint statement: We are seriously disappointed about the Committee’s comments on race relations in Australia. The Committee has apparently failed to grapple with the unique and complex history of race relations in Australia. It has paid scant regard to the Government’s input and has relied almost exclusively on information provided by non-government organisations. This is a serious indictment of the Committee’s work. It is unacceptable that Australia, which is a model member of the UN, is being criticised in this way for its human rights record.72 As a result of this incident, the government decided to reduce its engagement with the human rights treaty bodies. While there has since been some rapprochement between Australia and the UN treaty bodies, their Concluding Observations have had little impact on Australian policy and law. Unlike the system of periodic reports, which applies to all treaty parties, states have an option to accept the possibility of the treaty bodies considering 70

71

72

See, eg, Human Rights Committee, Consideration of Reports Submitted by States Parties under Article 40 of the Covenant: Concluding Observations of the Human Rights Committee (Australia), 95th sess, UN Doc CCPR/C/AUS/CO/5 (7 May 2009); Committee on the Elimination of Racial Discrimination, Consideration of Reports Submitted by States Parties under Article 9 of the Convention: Concluding Observations of the Committee on the Elimination of Racial Discrimination, 77th sess, UN Doc CERD/C/AUS/CO/15-17 (13 September 2010); Committee on the Elimination of Discrimination Against Women, Concluding Observations of the Committee on the Elimination of Discrimination Against Women: Australia, 46th sess, UN Doc CEDAW/C/AUS/ CO/7 (30 July 2010); Human Rights Committee, Report of the Special Rapporteur for Follow-up on Concluding Observations of the Human Rights Committee, 104th sess, UN Doc CCPR/C/104/2 (27 April 2012); Committee Against Torture, Concluding Observations on the Combined Fourth and Fifth Periodic Reports of Australia, 53rd sess, UN Doc CAT/C/AUS/CO/4-5 (23 December 2014). Committee on the Elimination of Racial Discrimination, Consideration of Reports Submitted by States Parties under Article 9 of the Convention, 56th sess, UN Doc CERD/C/304/Add 101 (19 April 2000). Daryl Williams (Attorney-General), ‘CERD Report Unbalanced’ (Media Release, 26 March 2000). See also Alexander Downer (Minister for Foreign Affairs), quoted in ‘United Nations: Reform: Human Rights Treaty Bodies’ (2001) 21 Australian Year Book of International Law 274.

Ch 6: AUSTRALIA AND THE INTERNATIONAL PROTECTION OF HUMAN RIGHTS   133

complaints from individuals alleging that the state has breached the terms of the treaty, if all local remedies have been exhausted. Australia has agreed to such mechanisms in relation to some of the human rights treaties to which it is a party: the ICCPR,73 ICERD,74 CEDAW75 and the CRPD.76 This has led to a number of international decisions on Australia’s human rights record. The first, and perhaps best known, was that of the UN Human Rights Committee in 1992 declaring Tasmanian laws that criminalised male homosexuality to be inconsistent with human rights.77 The Common­ wealth government then legislated to override the relevant provision of the Criminal Code Act 1924 (Tas).78 This first case is, so far, the high-water mark of Australia’s engagement with the views of the UN treaty bodies. As at March 2016, the UN Human Rights Committee has considered 75 claims concerning Australia, 31 of which were upheld by the Committee.79 Australia’s violations of human rights have been found to include the mistreatment of children in immigration detention, the inhumane treatment of prisoners, the denial of the right to family life, and undue trial delay. A standard Australian response to the views of the human rights treaty bodies is to note first that the Committees are not courts and that their views are non-binding, and to then simply reject the relevant Committee’s views on the application of the law. Sometimes Australia will explicitly invoke its sovereignty as a reason to reject Committee findings. This combative approach is at odds with Australia’s formal recognition of the competence of the treaty bodies to consider communications through its acceptance of the relevant mechanisms. It is striking that Australia does not publish or publicise adverse views of the human rights treaty bodies.80 Australia’s stance towards other forms of international human rights scrutiny is mixed. It signed the Optional Protocol to the Convention against 73

74

75

76

77

78

79 80

Optional Protocol to the International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (Australia acceded 25 September 1991). Australia made a declaration under art 14 of ICERD on 28 January 1993: see (1994) 15 Australian Year Book of International Law 583. Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, opened for signature 6 October 1999, 2131 UNTS 83 (entered into force 22 December 2000) (Australia acceded 4 December 2008). Optional Protocol to the Convention on the Rights of People with Disabilities, opened for signature 13 December 2006, UN Doc A/Res/61/106 (entered into force 3 May 2008) (Australia acceded 21 August 2009). Human Rights Committee, Decision: Communication No 488/1992, 50th sess, UN Doc CCPR/C/50/D/488/1992 (31 March 1994) (‘Toonen v Australia’). Relevant provisions of the Tasmanian Act were ss 122(a) and (c), which were overridden by the Human Rights (Sexual Conduct) Act 1994 (Cth). Tasmania subsequently amended its laws to comply with those of the Commonwealth (Criminal Code Amendment Act 1997 (Tas) (No 12 of 1997)). Twenty-nine of the claims were held inadmissible. For a listing of human rights treaty body cases, see the website of Remedy Australia .

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Torture (‘OPCAT’),81 which would allow inspection of places of detention by the UN Subcommittee on the Prevention of Torture, in 2009, but has not yet ratified it. In 2008, Australia issued a standing invitation to the thematic Special Procedures of the UN Human Rights Council. Several Special Rapporteurs have visited Australia and made extensive reports on gaps in human rights protection. In the case of a planned visit by the Special Rapporteur for Migration in 2015, the Australian government refused to facilitate access to the asylum seeker detention centres on Nauru and Manus Island and would not guarantee that individuals who provided information about the centres to the Special Rapporteur would be protected from prosecution under the Australian Border Force Act 2015 (Cth). In light of this stance, the Special Rapporteur, François Crépeau, cancelled his visit.82 The UPR, established by a resolution of the UN Human Rights Council in 2006, monitors compliance by states with their human rights obligations. The UPR is a voluntary peer-to-peer review of a UN member state’s imple­ mentation of its human rights commitments occurring every four and half years, creating a record against which progress can be assessed. The process also allows states to express their concerns about specific breaches of human rights by individual states, providing an opportunity for international exposure of systemic failures and for diplomatic and political persuasion to achieve improvements. Australia first appeared before the Working Group on the UPR process in 2011, when 53 countries made 145 recommendations calling on Australia to improve its treatment of asylum seekers and Aboriginal and Torres Strait Islander peoples, and raising concerns about multiculturalism and racism.83 Australia accepted over 90 per cent of the recommendations in full or in part. Australia also made a number of voluntary commitments, including funding for the Asia Pacific Forum of National Human Rights Institutions, the estab­ lishment of a full-time Race Discrimination Commissioner, and a process for reviewing Australia’s reservations to human rights treaties. Following the first cycle of the UPR, Australia developed a Baseline Study on Human Rights and began a consultation to develop a National Human Rights Action Plan (‘NAP’). The final version of the NAP was released on 10 December 2012 and served as the interim report on implementation of the UPR to the Human Rights Council. Australia’s largely positive response to the UPR process was undermined when the government changed in 2013 and the new

81

82

83

Optional Protocol to the Convention against Torture, opened for signature 18 December 2002, 2375 UNTS 237 (entered into force 22 June 2006) (‘OPCAT’). United Nations Human Rights, Office of the High Commissioner, Migrants/Human Rights: Official Visit to Australia Postponed Due to Protection Concerns (25 September 2015) . Human Rights Council, Report of the Working Group on the Universal Periodic Review: Australia, 17th sess, UN Doc A/HRC/17/10 (24 March 2011).

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Attorney-General indicated that the NAP was no longer government policy.84 No alternative policy approach to human rights protection in Australia has since been adopted. Australia’s appearance before the second cycle of the UPR in November 2015 provided the first opportunity to benchmark Australia’s human rights compliance against the recommendations made four years earlier. It is not possible to be precise when calculating the extent to which Australia complied with the recommendations it had accepted in 2011, as the UPR recommenda­ tions were often vague. It is, nonetheless, clear that fewer than 10 per cent of the recommendations had been complied with fully. Rather than challenging this failure directly, 104 states used the second cycle to make a further 290 recommendations, repeating many of the concerns they had raised in the first cycle. About 20 per cent of the recommendations related to Australia’s asylum seeker policies, especially offshore processing. Seventeen per cent of the recommendations urged ratification of OPCAT and other human rights treaties and 15 per cent concerned the rights of Aboriginal and Torres Strait Islander peoples.85 Again, Australia accepted some recommendations and made some important voluntary commitments. It agreed to a referendum on constitutional recognition of Indigenous peoples and to increase funding for family violence and the Syrian humanitarian crisis. Advocacy for abolition of the death penalty was to be strengthened and the rights of older persons promoted. The government also agreed to work cooperatively with the AHRC to monitor Australia’s progress in implementing the UPR recom­ mendations, to create a standing national mechanism for reporting on human rights to the UN, and to consultations on a National Action Plan on Business and Human Rights. It remains to be seen whether Australia’s response to the second cycle UPR will prove to be any more effective than its response to the first cycle. It is notable, for example, that Australia responded to the second cycle by asserting, without analysis or evidence, that its laws and policies currently comply with about half the recommendations. It is, however, encouraging that the Australian government committed to annual monitoring of its human rights compliance and to greater engagement with civil society and the AHRC. The efficacy of scrutiny by the international human rights system depends to a large extent on an active civil society, as well as the willingness of committed individuals to drive the process. Many Australians have played significant roles in the international human rights system. For example, over the past 30 years, 84

85

Penny Wright, Estimates: Questioning AG Brandis in L&CA Committee (29 May 2014) . Human Rights Council, Report of the Working Group on the Universal Periodic Review: Australia, 31st sess, UN Doc A/HRC/31/14 (13 January 2016).

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four Australians have been elected as members of the human rights treaty bodies: Philip Alston (Committee on Economic, Social and Cultural Rights, 1990–98, also serving as the UN Human Rights Council’s Special Rapporteur on extrajudicial, summary or arbitrary executions, 2004–10, and as of 2014 the Special Rapporteur on extreme poverty and human rights), Elizabeth Evatt (Committee on the Elimination of Discrimination Against Women, 1985–92, and the Human Rights Committee, 1993–2000), Ivan Shearer (Human Rights Committee, 2001–08) and Ron McCallum (Committee on the Rights of Persons with a Disability, 2010–14). In addition, a major feature of Australia’s relationship to the international system since the last edition of this volume has been the growth of a sophisticated network of human rights organisations, including non-­government organi­ sations and state, territory and Commonwealth human rights commissions. These groups have, for example, developed ‘shadow reports’ for submission to the UN treaty bodies considering Australia’s official reports, drafted individual complaints, and participated in Australia’s UPR sessions. The unpopularity of such groups with successive Australian governments, manifested for example in reductions in government funding, is a measure of their success.

VI  EMERGING HUMAN RIGHTS ISSUES FOR AUSTRALIA [6.60]  Professor Starke’s chapter in the last edition of the volume implied, optimistically, that Australia was on a pathway to the implementation of its international human rights obligations in its domestic laws by relying on the Commonwealth’s external affairs power in the Constitution. In fact, it has been in the state of Victoria and in the Australian Capital Territory that these obligations have been recognised by legislation.86 It may be that human rights will be more fully implemented at the state and territory rather than the federal level over the next decade. Indeed, the Queensland government established a parliamentary inquiry into a Bill of Rights in 2015.87 A challenge for the protection of human rights in Australia is the expansion of executive discretion and the diminution of judicial independ­ ence. Over recent years, successive Australian Parliaments have granted the executive wide discretionary powers that encroach upon fundamental rights and freedoms. These include administrative powers to detain indefinitely various classes of persons, including refugees and asylum seekers,88 those who have received adverse security assessments,89 and those with cognitive 86 87

88 89

Charter of Human Rights and Responsibilities Act 2006 (Vic); Human Rights Act 2004 (ACT). Queensland Parliament, Human Rights Inquiry (2016) . See, eg, Migration Act 1958 (Cth) ss 176–187. See Ben Saul, ‘“Fair Shake of the Sauce Bottle”: Fairer ASIO Security Assessments of Refugees’ (2012) 37(4) Alternative Law Journal 221.

Ch 6: AUSTRALIA AND THE INTERNATIONAL PROTECTION OF HUMAN RIGHTS   137

disabilities or who are found unfit to plead (Indigenous Australians are ­overrepresented in the two latter groups).90 Counter-terrorism laws have been extended to permit administrative detention without trial or supervision by an independent judicial body. Control orders, for example, restrict liberty in the absence of a criminal conviction or charge.91 New secrecy laws impose prison sentences for the disclosure of certain information relating to intelli­ gence operations.92 Such laws have a direct impact on freedom of expression, especially for human rights defenders and journalists. Viewed together, these examples suggest an overreach of power within the executive branch of government, a declining willingness of Parliaments to defend core freedoms, and the exclusion of judges from interpreting laws according to common law principles or the presumption that Parliament intends to comply with international law. A more positive indication of Australia’s future commitment to human rights has been the decision to seek election to the UN Human Rights Council for the period 2018–20. Australia has announced a ‘principled and pragmatic approach’ to human rights based on five pillars: gender equality, good governance, freedom of expression, the rights of Indigenous peoples, and a strong national human rights institution. While Australia’s campaign to join the Council has an international focus, particularly on improving human rights in the Indo-Pacific region, the bid will inevitably attract scrutiny of Australia’s own human rights record. Were Australia to be elected to the Council, it may provide an impetus to improve Australia’s engagement with the international human rights regime and to translate its treaty obligations into enforceable national laws.

90

91

92

See Australian Human Rights Commission, Submission No 6 to Senate Community Affairs References Committee, Parliament of Australia, Inquiry into the Indefinite Detention of People with Cognitive and Psychiatric Impairment in Australia (31 March 2016). See Nicola McGarrity, ‘From Terrorism to Bikies: Control Orders in Australia’ (2012) 37(3) Alternative Law Journal 166. National Security Legislation Amendment Act (No 1) 2014 (Cth).

7 Australia and the International Protection of Indigenous Rights Mick Dodson, Asmi Wood and Peter Bailey*

I INTRODUCTION [7.10]  The theme in this chapter is that the 19th century international law doctrine of ‘discovery’ became so deeply embedded in Australian law that its malign and distorted influence continues to be dominant in holding back full opportunities for Aboriginal and Torres Strait Islander peoples. Part II of the chapter traces the doctrine’s negative impact and shows how, unlike the pattern elsewhere in this book, international law has not directly benefited Aboriginal and Torres Strait Islander peoples. Although domestic law has made important contributions — through, for example, the Mabo cases1 and the Native Title Act 1993 (Cth) (‘NTA’) — even it too has often failed to be of substantial benefit to Aboriginal and Torres Strait Islander peoples. Part III illustrates how the Racial Discrimination Act 1975 (Cth) (‘RDA’), potentially one of the most influential and relevant internationally derived legal instruments in the field, was suspended in the Northern Territory and still operates only to a degree. Part IV shows how neither the Mabo cases nor international law have provided any genuine form of legal protection for Aboriginal and Torres Strait Islander peoples. Parts V and VI illustrate how the negativity of the discovery doctrine adversely affects Indigenous rights relating to self-determination, land, and *

1

The chapter has been written collegially, although primary responsibility for parts II and III rests with Mick Dodson, part IV with Asmi Wood, and parts V and VI with Peter Bailey. For cultural reasons in many parts of Australia, use of the name of a deceased person is by convention avoided, and this convention has been noted and followed where possible. Mabo v Queensland (1988) 166 CLR 186; Mabo v Queensland [No 2] (1992) 175 CLR 1. 139

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social and cultural issues. International law, while sometimes providing a means for justifying action already taken, has rarely prompted or enabled progressive Australian governmental measures. Part VII identifies some issues needing positive action.

II  THE DESTRUCTIVE IMPACT OF THE DISCOVERY DOCTRINE [7.20]  No discussion about Indigenous peoples and international law can commence without an examination of the European doctrine of discovery. When Europeans first set out for the ‘New World’ over 500 years ago, they did not regard Indigenous peoples as being competent to rule themselves. Also, according to European law, small populations could not claim ownership of vast territories.2 Francisco de Vitoria3 was a notable exception to the European view. Another exception was James Douglas, President of the Royal Society, who advised James Cook that: [Indigenous peoples] are the natural, and in the strictest sense of the word, the legal possessors of the several regions they inhabit. No European Nation has a right to occupy any part of their country, or settle among them without their voluntary consent. Conquest over such people can give no just title.4 Mostly, little respect was shown for the societal arrangements, laws and customs, and governmental structures that had been put in place by the Indigenous peoples who were the occupants and possessors of those lands. The attitude of the Europeans towards Indigenous peoples was, and is still, steeped in the discovery doctrine, sometimes referred to as the ‘doctrine of Christian discovery’.5 The inter caetera6 papal bull issued by Pope Alexander VI on 4 May 1493 exemplifies this attitude. The Pope purported to grant to Spain all the lands to the west and south of a pole-to-pole line 100 leagues west and south of any of the islands of the Azores or the Cape Verde Islands.7 2

3

4

5

6 7

Emmerich de Vattel, The Law of Nations or the Principles of Natural Law in Four Books (1758), Book 1: Of Nations Considered in Themselves, ch VII: ‘Of the Cultivation of the Soil’, 57 [78]–[81]. Translated into English by Joseph Chitty (1833), electronic edition, Lonang Institute. 1483–1546, a noted Catholic scholar; see T E Woods, How the Catholic Church Built Western Civilisation (Regnery, 2012) 5–6. J C Beaglehole (ed), The Journals of Captain Cook on His Voyages of Discovery (Cambridge University Press, 1955–74) 1:514, cited in Stuart Banner, Possessing the Pacific: Land, Settlers, and Indigenous People from Australia to Alaska (Harvard University Press, 2009) 14. For example, Steven T Newcomb, Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery (Fulcrum Publishing, 2008). Meaning ‘among other [things]’. Frances Gardiner Davenport (ed), European Treaties Bearing on the History of the United States and Its Dependencies to 1648 (Carnegie Institution of Washington, 1917) 75–8.

Ch 7: AUSTRALIA AND INTERNATIONAL PROTECTION OF INDIGENOUS RIGHTS   141

It was this mixing of law, politics, religion and theory that enabled the Europeans to render Indigenous peoples inferior, and thereby claim superiority over them and their lands and resources. In Australia, the newcomers considered the way they used their land to be superior. The land and other social and political resources were organised accordingly. The prevailing approach was seen as entitling the early Christian princes to ‘discover’ ‘new’ lands that were inhabited by heathens, savages, brutes or non-believers, and so obtain the ultimate dominion over not just the peoples but also their land and resources. The factual circumstances of the possession of these ‘new’ lands by Indigenous peoples were in most cases simply ignored. By the late 18th century, the European Christian states had in place inter­ national conventions that formalised the way in which those states might lay claim to, or challenge, new territories.8 In Australia, Aborigines and Torres Strait Islanders were dispossessed of their lands because they were not Christians and did not till the soil. The British perceived them as being more primitive than any other peoples they had encountered. They wore no clothes, built rudimentary dwelling structures, and failed to practise agriculture. The British perceived the country as scantily inhabited, despite the fact that at the time of their arrival it was in the possession of possibly several millions of people and had been so for a very long time. To circumvent the fact of ‘settlement’,9 the British considered it not settled but rather as terra nullius.10 The Crown accordingly acquired full beneficial ownership, ignoring long-established practice in North America11 of purchase of occupied land from the natives. Further, a literal and convenient elaboration of de Vattel allowed the British to require that, to be regarded as being inhabited,12 the land had to be cultivated. This had the effect of extending terra nullius to cover Indigenous country. This approach assists in explaining the attitude of the Parliamentary Select Committee in its 1837 report to the House of Commons that the state of Australian Aborigines was ‘barbarous’ and ‘so entirely destitute … of 8

9

10

11

12

See the discussion in Martin Kintzinger, ‘From the Late Middle Ages to the Peace of Westphalia’ in Bardo Fassbender and Anne Peters (eds), The Oxford Handbook of the History of International Law (Oxford University Press, 2012) 607. In international law, ‘settlement’ would mean that any sovereign title would be subject to pre-existing rights and interests. For a useful definition of the term, see Sven Lindqvist, Terra Nullius (Granta Books, 2007) 3–4, 16. John Borrows, ‘Wampum at Niagara: The Royal Proclamation, Canadian Legal History, and Self-Government’ in Michael Asch (ed), Aboriginal and Treaty Rights in Canada: Essays on Law, Equality, and Respect for Difference (University of British Columbia Press, 1997) 155–72. Alex C Castles, An Australian Legal History (Law Book Co, 1982) 16.

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the rudest forms of civil polity, that their claims, whether as sovereigns or proprietors of the soil, have been utterly disregarded’.13 In short, the British colonisers of Australia, disregarding practices in North America and elsewhere, invoked the ‘scale of organisation test’14 and ‘settlement’ approaches. This was evidenced in the 1889 Privy Council decision in Cooper v Stuart to assert, without any supporting evidence, that at the time of the establishment of the penal colony of New South Wales, it ‘consisted of a tract of territory practically unoccupied, without settled inhabitants or settled law’.15 The differences between lands that were settled and those that were conquered had been spelt out by Sir William Blackstone in 1865 in his Commentaries on the Laws of England: Plantations or colonies in distant countries, are either such where the lands are claimed by right of occupancy only, by finding them desert and uncultivated, and peopling them from the mother country; or where, when already cultivated, they have been either gained by conquest, or ceded to us by treaties. And both these rights are founded upon the law of nature, or at least upon that of nations … But in conquered or ceded countries, that have already laws of their own, the king may indeed alter and change those laws; but, till he does actually change them, the ancient laws of the country remain, unless such as are against the law of God, as in the case of an infidel country. Our American plantations are principally of this latter sort, being obtained in the last century either by right of conquest and driving out the natives (with what natural justice I shall not at present enquire) or by treaties.16 Early 19th century cases illustrate the use of the false premise that the continent was sparsely populated. Thus, in R v Murrell, Burton J said: [A]lthough it might be granted that on the first taking of possession of the Colony the aborigines were entitled to be recognised as a free and independent people, yet they were not in such a position with regard to strength as to be considered free and independent tribes. They had no sovereignty.17 The charge was that Murrell had murdered Definger, another Aboriginal. The Court held that it had jurisdiction, but then allowed the demurrer on 13

14

15 16

17

Parliamentary Select Committee on Aboriginal Tribes, House of Commons, Great Britain, Report of the Parliamentary Select Committee on Aboriginal Tribes (British Settlements) (1837) 125. Lisa Strelein, ‘From Mabo to Yorta Yorta: Native Title Law in Australia’ (2005) 19 Washington University Journal of Law & Policy 225, 238. Cooper v Stuart (1889) 14 App Cas 286, 291. William Blackstone, Commentaries on the Laws of England (Clarendon Press, 5th ed, 1773) vol 1, sec 4, 106–8, reproduced in George Williams, Sean Brennan and Andrew Lynch, Blackshield and Williams Australian Constitutional Law and Theory: Commentary & Materials (Federation Press, 6th ed, 2014) 91. R v Murrell (1836) 1 Legge 72, 73.

Ch 7: AUSTRALIA AND INTERNATIONAL PROTECTION OF INDIGENOUS RIGHTS   143

the ground of Australia not being ‘originally desert’. No reasons were given, and Burton J commented that ‘[i]f the offence had been committed on a white, he would be answerable’.18 For some decades, the same basic doctrine was applied. Thus, in R v Bon Jon, Willis J said that ‘the natives … had made little progress in the arts, their canoes were wretchedly formed, their huts were very slight and incommodious’ and there was ‘not the least appearance of cultivation in any part of this vast region’.19 Essentially, the approach of Blackstone and Vattel was also followed in MacDonald20 and Brown.21 The earliest 20th century reported decision of an Australian court directly dealing with the merits of an Aboriginal claim to particular traditional tribal or communal lands is Milirrpum v Nabalco Pty Ltd.22 The case was heard by Blackburn J, who noted: The evidence shows a subtle and elaborate system highly adapted to the country in which the people led their lives, which provided a stable order of society and was remarkably free from the vagaries of personal whim or influence. If ever a system could be called ‘a government of laws, and not of men’, it is that shown in the evidence before me.23 However, faced with previous decisions such as those of the Privy Council in Cooper, Blackburn J held that the issue was to be determined as a question of law, not of fact. The general tenor of the Australian cases was to rely on a legalistic approach that bore little resemblance to the factual situation. By 1921, the Privy Council had adopted a very different approach to the rights and interests of the Indigenous inhabitants of a settled territory:24 There is a tendency, operating at times unconsciously, to render that title conceptually in terms which are appropriate only to systems which have grown up under English law.25 Two decades after Milirrpum, Brennan J, in his path-breaking judgment in Mabo v Queensland [No 2],26 reviewed the issues: When British colonists went out to other inhabited parts of the world, including New South Wales, and settled there under the protection 18 19

20 21 22 23 24

25 26

R v Murrell (1836) 1 Legge 72, 73. R v Bonjon (Unreported, Supreme Court of New South Wales, Willis J, 16 September 1841). MacDonald v Levy (1833) 1 Legge 39; [1833] NSWSupC 47. A-G v Brown (1847) 1 Legge 312, 317. Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 (‘Gove Land Rights Case’). Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141, 267 (‘Gove Land Rights Case’). See, eg, Williams v A-G (NSW) (1913) 16 CLR 404; Re Southern Rhodesia [1919] AC 211, 233–4; Municipality of Randwick v Rutledge (1959) 102 CLR 54, 88–9. See also Lisa Strelein, ‘From Mabo to Yorta Yorta: Native Title Law in Australia’ (2005) 19 Washington University Journal of Law & Policy 225. Amodu Tijani v Secretary, Southern Nigeria [1921] 2 AC 399, 403. Mabo v Queensland [No 2] (1992) 175 CLR 1.

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of the forces of the Crown, so that the Crown acquired sovereignty recognized by the European family of nations under the enlarged notion of terra nullius, it was necessary for the common law to prescribe a doctrine relating to the law to be applied in such colonies, for sovereignty imports supreme internal legal authority. The view was taken that, when sovereignty of a territory could be acquired under the enlarged notion of terra nullius, for the purposes of the municipal law that territory (though inhabited) could be treated as a ‘desert uninhabited’ country. The hypothesis being that there was no local law already in existence in the territory, the law of England became the law of the territory … Colonies of this kind were called ‘settled colonies’. Ex hypothesi, the indigenous inhabitants of a settled colony had no recognized sovereign, else the territory could have been acquired only by conquest or cession. The indigenous people of a settled colony were thus taken to be without laws, without a sovereign and primitive in their social organization.27 In later cases, the doctrine of extinguishment developed in Western Australia v Ward28 has played a significant role by limiting the recognitions and protections of the interests of Indigenous peoples. The assertions of sovereignty, first legitimised by political theory, natural law theory and international law, were finally excluded by municipal courts.29 On the question of sovereignty, the question arises: why did Blackburn J in Milirrpum reject the claim of the Yolngu? The basic answer lies in the ruling in Cooper.30 In summary, he said that the Yolngu idea of property was different from that of Europeans. The Yolngu litigants were unable to establish a proprietary interest in the soil, thus perpetuating the fiction of terra nullius. The judicial thinking was governed by the law, as adjudged in a case heard over 80 years earlier. Blackburn J observed that ‘historical fact may give place to legal fiction’. Once the legal characterisation of the colony of New South Wales had been established and the law had become settled, it was ‘not to be questioned upon a reconsideration of the historical facts’.31 In Coe v Commonwealth,32 Gibbs J refused to accept the proposition that Aboriginal nations exercised sovereignty over Australia, and that Australia’s status as ‘settled’ was not justiciable in a municipal court. The status was said to have been determined historically that ‘by European standards (of the time) the territory had no civilized inhabitants or settled law’.33 It seems unlikely that Australian courts will ever fully, or even to 27 28 29

30 31 32 33

Mabo v Queensland [No 2] (1992) 175 CLR 1, 36 (footnotes omitted). Western Australia v Ward (2002) 213 CLR 1. Lisa Strelein, ‘From Mabo to Yorta Yorta: Native Title Law in Australia’ (2005) 19 Washington University Journal of Law & Policy 225. Cooper v Stuart (1889) 14 App Cas 286. Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141, 202–3 (‘Gove Land Rights Case’). Coe v Commonwealth (1979) 53 ALJR 403. Coe v Commonwealth (1979) 53 ALJR 403, 408.

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some degree, acknowledge Aboriginal law as common law,34 as has the United States Supreme Court in establishing the doctrine of ‘domestic dependent nations’.35 This follows the Milirrpum dictum that the ‘doctrine of communal native title … did not form, and never had formed, part of the law of any part of Australia’.36 Strelein comments that ‘the classification of the colony as settled was considered sufficient to deny a sphere of operation for Aboriginal law or a right to possession of their lands even as a private interest’.37 Australian courts had, by late in the 20th century, effectively rendered the Aborigines of Australia the only people on the planet incapable of owning land.

III  RACIAL DISCRIMINATION [7.30]  The International Convention on the Elimination of All Forms of Racial Discrimination (‘ICERD’)38 was implemented in Australia by the RDA. Hesitation about ICERD was exemplified by Australia’s initial declaration and reservation: The Government of Australia … declares that Australia is not at present in a position specifically to treat as offences all the matters covered by article 4(a) of the Convention. Acts of the kind there mentioned are punishable only to the extent provided by the existing criminal law dealing with such matters as the maintenance of public order, public mischief, assault, riot, criminal libel, conspiracy and attempts. It is the intention of the Australian Government, at the first suitable moment, to seek from Parliament legislation specifically implementing the terms of article 4(a).39 34

35

36 37

38

39

Western Australia v Commonwealth (1995) 183 CLR 373; see especially 484–5 (unanimous court of seven judges). See, eg, Johnson v McIntosh 21 US (8 Wheat) 543 (1823); Cherokee Nation v Georgia 30 US 1 (1831); Worcester v Georgia 31 US (6 Pet) 515 (1832) — sometimes described as the ‘Marshall Trilogy’. Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141, 143 (‘Gove Land Rights Case’). Lisa Strelein, ‘From Mabo to Yorta Yorta: Native Title Law in Australia’ (2005) 19 Washington University Journal of Law & Policy 225, 241. International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969) (‘ICERD’). ICERD art 4 provides that ‘States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination’ and (in para (a)) ‘[s]hall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination …’. The Human Rights and Equal Opportunity Commission called for removal of the qualifications: Human Rights and Equal Opportunity Commission, Report of the National Inquiry into Racist Violence in Australia (1991) 296.

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ICERD establishes a Committee on the Elimination of Racial Discrimination (‘CERD’). To reduce the scope of any exemptions from the peremptory rule prohibiting racial discrimination, s 8 of the RDA allows for ‘special [beneficial] measures’. These must: „„ provide benefit40 for the people concerned; „„ have, as their sole purpose,41 securing the advancement and full enjoyment of human rights of those people; be „„ necessary (proportionate)42 for that purpose; and „„ cease43 when the purpose is achieved (they cannot become permanent). In Koowarta v Bjelke-Petersen,44 the High Court upheld the constitutional validity of the RDA under the external affairs power,45 but interestingly not under the races power.46 Perhaps the biggest blow for the Aboriginal people of the Northern Territory (where Aboriginal and Torres Strait Islanders form the majority) has been the initial suspension of the RDA in the Northern Territory, to avoid the special measures provisions. Accomplished by the Northern Territory (Emergency Response) Act 2007 (Cth), there has been a failure to fully repeal it afterwards. The action included powerful measures against any substantive form of self-determination, and an effective reiteration of the terra nullius dogma. What has emerged as a problem domestically for Aboriginal and Torres Strait Islanders has not been the RDA or the ICERD, but the constitutional capacity of the federal government to suspend or ‘dis-apply’ the RDA to suit politically motivated public policy purposes. The ‘validation’ of existing titles required suspension of the operation of the RDA and the NTA. Internationally, Indigenous peoples worldwide have been agitating to compel nation states through UN systems and procedures to honour their international treaty obligations under all human right instruments, and particularly ICERD. Australia has been criticised on many occasions by international bodies.47 Insufficient heed has been paid to the observations 40

41 42 43

44 45

46 47

Examples are Bruch v Commonwealth [2002] FMCA 29 (13 March 2002) and Bligh v Queensland [1996] HREOC 28 (24 September 1996). Lethbridge v Homeswest [1997] HREOCA 3 (28 January 1997). See University of California Regents v Bakke 438 US 265 (1978) (Blackmun J). Gerhardy v Brown (1985) 159 CLR 70. A useful article is Wojciech Sadurski, ‘Gerhardy v Brown v The Concept of Discrimination: Reflections on the Landmark Case That Wasn’t’ (1986) 11 Sydney Law Review 5. Koowarta v Bjelke-Petersen (1982) 153 CLR 168. Constitution s 51(xxix); see also Kartinyeri v Commonwealth (1998) 195 CLR 337 (‘Hindmarsh Island Bridge Case’). Constitution s 51(xxvi). Extensively noted in the Australian Human Rights Commission’s submission to ICERD: Australian Human Rights Commission, Information Concerning Australia and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), Submission to the ICERD Committee, 8 July 2010.

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and recommendations of the CERD and the Human Rights Council, and to successive Special Rapporteur observations.48 Relevantly, the Australian Human Rights Commission, in its 2010 report to CERD, observed that ‘[t]here is currently no clear mechanism operating in Australia to consider, coordinate or enact the recommendations or the Concluding Observations of the ICERD Committee’.49 The new Universal Periodic Review system adopted by the revamped UN Human Rights Council does not yet, regrettably, appear to have generated much in the way of positive response. The Australian Human Rights Commission has also made many constructive proposals to various parts of government.50

IV  RIGHTS TO LAND AND WATERS [7.40]  This part of the chapter reviews the nature of the High Court’s recognition of the survival of native title by focusing on three key events: the 1967 referendum; Mabo [No 2] and the NTA. Coper argues that Mabo was the culmination of a series of cases, noting that ‘much of the groundwork was done in Milirrpum … some 20 years earlier’.51 Taking first the 1967 referendum, the majority supported the ‘yes’ proposition.52 At the time, however, the effective denial of Indigenous access to university education meant that in 1967 there were no Indigenous lawyers. This made legal debate between and among Indigenous peoples difficult in a technical sense. Ironically, the popular conception, contrary to the legal 48

49

50

51

52

The careful and lengthy report to the Human Rights Council of Special Rapporteur James Anaya on The Situation of Aboriginal and Torres Strait Islanders in Australia followed wide consultation with relevant parties, including the government and Aboriginal and Torres Strait Islander peoples: UN Doc A/HRC/15/2010. Earlier critical and more specific comments were made in 2009 by the Committee on Economic, Social and Cultural Rights in its concluding report in 2009 on language; by the Special Rapporteur in 2007 on the Northern Territory Emergency Response (violence against women and contemporary forms of racism); and by CERD in 2005 in its concluding observations on native title. Australian Human Rights Commission, Information Concerning Australia and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), Submission to the ICERD Committee, 8 July 2010, [4.1]. For example, Inquiry into the Optional Protocol to the Convention against Torture (2008); Inquiry into the Welfare Reform and Reinstatement of Racial Discrimination Act Bill 2009 and Other Bills (2009); Submission to the Senate Committee on Legal and Constitutional Affairs on Human Rights (Parliamentary Scrutiny) Bill (2010). Each has relevance in the international law sphere for indigenous peoples. Michael Coper, ‘Concern about Judicial Method’ (2006) 17 Melbourne University Law Review 554, 568. The referendum approved deletion of the ‘exclusion clauses’ from Constitution s 51(xxvi) (which deleted the words ‘other than the aboriginal race in any State’) and s 127 (‘aboriginal natives’ not to be counted in the census); see Tony Blackshield and George Williams, Australian Constitutional Law and Theory: Commentary & Materials (Federation Press, 3rd ed, 2002) 1306.

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position later determined in the Hindmarsh Island Bridge Case,53 is the notion that the referendum permitted the government to act only in the best interests of Indigenous peoples, and that this outcome had already been achieved in 1967.54 It was only Gaudron J in Hindmarsh who suggested that there would need to be special circumstances if an exemption on racial grounds might be appropriate for Indigenous people.55 The only more broadly expressed possible concession to native title was the recognition by the plurality in Western Australia v Ward that native title interests are a ‘bundle of rights’ that may be extinguished separately.56 Following the 1967 referendum, there had been an even greater focus on Indigenous rights through improving access to education for Indigenous people. Justice French, writing extra-curially on the races power, indirectly supports this assertion when he notes that ‘[t]he tension between the values that gave birth to the power and those which amended it finds expression in constitutional questions which have been much agitated in recent years’.57 That agitation has arguably become possible by a greater focus by Indigenous peoples on their rights under the law and the consequent development of the law. Despite growing curial and legislative action, the discriminatory provisions established at Federation were neither entirely expunged from the Constitution in 1967 nor remedied by subsequent legislative and judicial action. Unfinished business remains. It appears that the Northern Territory Intervention was not considered to meet any form of manifest abuse of Indigenous people, as otherwise the High Court’s supervisory jurisdiction should have been triggered. In Mabo v Queensland, the plurality58 identified property as a human right under art 17 of the Universal Declaration on Human Rights.59 It observed that the right was not to be subject to arbitrary deprivation, although ‘not itself necessarily a legal right … the enjoyment of which is peculiarly dependent upon … municipal law’. However, applying RDA s 10, the plurality had considered the Queensland legislation60 to be ‘undone’.61 53 54

55

56

57

58 59

60 61

Kartinyeri v Commonwealth (1998) 195 CLR 337 (‘Hindmarsh Island Bridge Case’). Justice Robert French, ‘The Race Power: A Constitutional Chimera’ in H P Lee and George Winterton (eds), Australian Constitutional Landmarks (Cambridge University Press, 2003) 180. Kartinyeri v Commonwealth (1998) 195 CLR 337, 365–7 [40]–[43] (‘Hindmarsh Island Bridge Case’). Western Australia v Ward (2002) 213 CLR 1, 89 [76], 95 [95] (Gleeson CJ, Gaudron, Gummow and Hayne JJ; Kirby J concurring). Justice Robert French, ‘The Race Power: A Constitutional Chimera’ in H P Lee and George Winterton (eds), Australian Constitutional Landmarks (Cambridge University Press, 2003) 180–3, and especially 205–8. Mabo v Queensland (1988) 166 CLR 186, 217–18. Universal Declaration of Human Rights, adopted 10 December 1948, GA Res 217A (III), UN Doc A/810 at 71 (1948) (‘UDHR’). Queensland Coast Islands Declaratory Act 1985 (Qld). Mabo v Queensland (1988) 166 CLR 186, 219.

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Quickly following Mabo [No 2],62 the government took the opportunity to enact the NTA, which attempted to capture and codify the essence of the Court’s decision with respect to native title. But the amendments in 1998 weakened Indigenous gains, and were met with a degree of frustration by most Indigenous peoples.63 The outcome was partial, limited and contingent on the practical dictates and interests of ‘the majority’, including the preservation of its values, its law and its ‘skeleton’.64 Even after its ‘rectification’ of many historical slights, much remains undone — the declaration of the continent as terra nullius; the denigration of Indigenous culture, law and spirituality; and the doubts about Indigenous humanity. The Court’s language of preservation of the ‘skeleton’, as opposed to preservation of the ‘entire corpus’, demonstrated a compromise accommodation of Indigenous interests, which continued the subjection of Indigenous interests in land to a subservient status. From a practical perspective of maintaining stability, this is not entirely unreasonable. However, this ‘stability’ in practice privileges ‘whiteness’,65 and in so doing is contrary to the ICERD.66 The challenge for both white and black in this context is to move further along the trajectory of recognition and reconciliation and to consider this historic but limited response as unfinished business, a work in progress, until a fairer and more equitable ‘equilibrium’ with respect to the rights of all Australians, black and white, is reached. In relation to the NTA, there has, since 1992, been a significant accretion of common law, through the Federal Court and also the National Native Title Tribunal.67 Section 223 of the NTA defines native title comprehensively and as a property right for purposes of the RDA.68 The Court also, later, described Indigenous title, in a series of cases, as a ‘bundle of rights’69 that 62 63

64 65

66 67

68 69

Mabo v Queensland [No 2] (1992) 175 CLR 1. Angus Frith with Ally Foat, The 2007 Amendments to the Native Title Act 1993 (Cth): Technical Amendments or Disturbing the Balance of Rights? (Native Title Research Monograph No 3/2008, AIATSIS, Canberra, November 2008). Mabo v Queensland [No 2] (1992) 175 CLR 1, 30 (Brennan J). Aileen Moreton-Robinson, Talkin’ up to the White Woman: Indigenous Women and Feminism (University of Queensland Press, 2000); see also R v Murrell (1863) 1 Legge 72 and R v Bonjon (Unreported, Supreme Court of New South Wales, Willis J, 16 September 1841). ICERD pt III. See, eg, Lisa Strelein, Compromised Jurisdiction: Native Title Cases since Mabo (Aboriginal Studies Press, 2nd ed, 2001). Western Australia v Commonwealth (1995) 183 CLR 373, 434–7. Western Australia v Ward (2002) 213 CLR 1, 89 [76], 95 [95] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). The case was the first opportunity after the 1998 amendments (see Angus Frith with Ally Foat, The 2007 Amendments to the Native Title Act 1993 (Cth): Technical Amendments or Disturbing the Balance of Rights? (Native Title Research Monograph No 3/2008, AIATSIS, Canberra, November 2008)) for the High Court to consider the issues. The Court’s review of the Federal Court determinations seems to have provided for a more resilient form of native title, which can survive partial extinguishment — that is, extinguishment of some threads of the ‘bundle’.

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extends over the Australian landmass70 and territorial waters to 12 miles,71 although it is permanently extinguished by a freehold grant in fee simple.72 However, the power of the Crown is not unlimited. The High Court held that Western Australia’s effort to exercise concurrent power to extinguish native title was inconsistent with the RDA and consequently invalid.73 It had also held in Western Australia v Ward and Wik Peoples v Queensland that native title and pastoral leases could co-exist,74 although some pastoral leases, which conferred exclusive possession, would extinguish native title.75 State attempts to extinguish native title could fail.76 In a prescient passage in Mabo [No 2],77 Dean and Gaudron JJ, following Amodu Tijani v Secretary, Southern Nigeria,78 had observed that the common law concept of estates in land or proprietary rights is not to be confused with native title, which is a communal right other than in rare cases when it might entitle individuals to occupy and use.79 The law around native title on the land and in its territorial waters is now fairly settled. It has mainly preserved the status quo of privileging non-Indigenous people. The alarmist predictions80 of the end of white civil­ isation have not come to pass. The lives of the non-Indigenous community have been largely unaffected by the legislation.81 The fear campaign has largely been debunked, but the naysayers have now found new ogres to demonise. Nonetheless, native title has delivered some measure of justice to those, paradoxically, who escaped the worst excesses of the colonial experiment and did manage to maintain and prove some connection, an onerous evidential burden,82 with their ancestral lands. The irony is that those who suffered the most — the most disadvantaged, those forced to assimilate, those for whom the tests for connections with the land and culture are the hardest to establish83 — are yet to receive any full measure of justice. 70

71 72 73 74 75 76 77

78 79 80

81 82 83

Western Australia v Ward (2002) 213 CLR 1, 88 [73]–[75]. The fact that native title had survived the British claim of sovereignty, though subject to lawful extinguishment, necessarily means prima facie that native title survives over the area in which the Crown in right of the Commonwealth claims sovereignty. Commonwealth v Yarmirr (2001) 208 CLR 1. Fejo v Northern Territory (1998) 195 CLR 96. Western Australia v Commonwealth (1995) 183 CLR 373, 434–42. See Wik Peoples v Queensland (1996) 187 CLR 1. See, eg, Wilson v Anderson (2002) 213 CLR 401. Yanner v Eaton (1999) 201 CLR 351. Mabo v Queensland [No 2] (1992) 175 CLR 1, 84 (Deane and Gaudron JJ), and quoting Amodu Tijani v Secretary, Southern Nigeria [1921] 2 AC 399, 403. Amodu Tijani v Secretary, Southern Nigeria [1921] 2 AC 399. Mabo v Queensland [No 2] (1992) 175 CLR 1, 85 (Deane and Gaudron JJ). ABC TV, ‘Judgment Day’, Four Corners, 10 May 2012, . Native Title Act 1993 (Cth) s 223(1)(b). Hunter v Western Australia [2009] FCA 654 (11 June 2009) [22] (North J). Yorta Yorta v Victoria (2002) 214 CLR 422.

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V  COASTAL WATERS [7.50]  This part of the chapter shows how international law, combined with positive legislative and judicial action, has enabled a limited extension of native title to cover to a degree areas of the coastal seas,84 despite common law covering only territorial seas.85 The way was paved through the significant decisions of the High Court in Commonwealth v Yarmirr86 and the Federal Court in Gumana v Northern Territory (‘Blue Mud Bay Case’).87 The High Court plurality in Yarmirr,88 building on Ward, observed that one of the objects of the NTA had been to provide ‘for the recognition and protection of native title’, so significantly supplementing the common law.89 The plurality observed that ‘[d]isputes of the present type’ (relating to native title) required examination of ‘the way in which two radically different social and legal systems intersect’.90 Yarmirr significantly extended the concept of native title through its focus on non-exclusivity, noting that native title and the common law are not necessarily consistent: [T]here is a fundamental inconsistency between the asserted native title rights and interests and the common law public rights of navigation and fishing, as well as the right of innocent passage. The two sets of rights cannot stand together and it is not sufficient to attempt to reconcile them by providing that exercise of the native title rights and interests is to be subject to the other public and inter­ national rights. … [T]he inconsistency lies not just in the competing claims to control who may enter the area but in the expression of that control by the sovereign authority in a way that is antithetical to the continued existence of the asserted exclusive rights.91 In practical terms, this means that while, in the ‘waters’ area, the common law extends only as far as the territorial sea, for native title ‘attention 84 85

86 87 88

89 90

91

The coastal seas surround Croker Island, north of Arnhem Land, and in the Torres Strait. For a detailed account, see Samantha Hepburn, ‘Native Title in Coastal and Marine Waters’ in Rachel Baird and Donald Rothwell (eds), Australian Coastal and Marine Law (Federation Press, 2011) 296–321. Commonwealth v Yarmirr (2001) 208 CLR 1. Gumana v Northern Territory (2007) 158 FCR 349 (‘Blue Mud Bay Case’). Commonwealth v Yarmirr (2001) 208 CLR 1, 37 (Gleeson CJ, Gaudron, Gummow and Hayne JJ). Native Title Act 1993 (Cth) s 3(a). Commonwealth v Yarmirr (2001) 208 CLR 1, 37 [10] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). The plurality at 37 [10] quoted and qualified Fejo v Northern Territory (1998) 195 CLR 96, 128 [46], and at 37 [11] quoted Viscount Haldane in Amodu Tijani v Secretary, Southern Nigeria [1921] 2 AC 399, 404; see also Lisa Strelein, ‘From Mabo to Yorta Yorta: Native Title Law in Australia’ (2005) 19 Washington University Journal of Law & Policy 225. Commonwealth v Yarmirr (2001) 208 CLR 1, 68 [98], [100].

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must be directed to the nature and extent of the inconsistency between the asserted native title rights and interests and the relevant common law principles’.92 On exclusivity, Kirby J invoked international law and saw potential for a degree of native title control of fisheries over limited areas without violation of the rights to free navigation or public fishing.93 McHugh J, in dissent, considered that in areas beyond the reach of the common law, ‘the territorial sea and sea-bed is the province of the Parliament’.94 In the Blue Mud Bay Case and the Akiba cases, three significant native title decisions were handed down. These and their associated cases have evolved to illustrate that international law has played a facilitating role in the extension of native title in both coastal and international waters, though not yet extinguishing the discovery doctrine itself.

A  The Blue Mud Bay Case [7.60]  In Gumana v Northern Territory,95 the Yolngu people and the Northern Land Council sought, and obtained at first instance, a declaration of the Council’s power to exclude others from their land and waters in a substantial part of Blue Mud Bay (to the west of the Croker Island seas). The declaration was overturned on appeal to the Full Federal Court,96 a decision that the High Court in its turn overruled97 in key aspects. It held that the freehold title conferred by the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (‘ALR (NT) Act’) prevailed over the Fisheries Act (NT). While abrogating the common law right to fish, the latter Act could not authorise interference with the freehold rights conferred by the ALR (NT) Act.98 With the common law and the Fisheries Act (NT) not being directly applicable to prevent native title freehold regulation of fishing the tidal waters in Blue Mud Bay, the other issue the High Court addressed was navigation rights. Did the grant of fee simple under the ALR (NT) Act include a right to exclude in relation to navigation of the coastal waters 92

93

94 95 96 97

98

Commonwealth v Yarmirr (2001) 208 CLR 1, 68 [97] (Gleeson CJ, Gaudron, Gummow and Hayne JJ). Commonwealth v Yarmirr (2001) 208 CLR 1, 127–30 [285]–[292] (Kirby J); see also Commonwealth v Yarmirr (1999) 101 FCR 171 at 328, 338 (Merkel J). Commonwealth v Yarmirr (2001) 208 CLR 1, 91 [179] (McHugh J). At first instance Gumana v Northern Territory (2005) 141 FCR 457. Arnhem Land Aboriginal Land Trust v Northern Territory (2007) 157 FCR 255. Northern Territory v Arnhem Land Aboriginal Land Trust (2008) 236 CLR 24. The plurality, at 65–6, clarified the plurality view in Risk v Northern Territory (2002) 210 CLR 392 that ‘land’ in the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) did not include seabed in ss 50(1) and 3(1), which had meant that it was not open for native title claims. Northern Territory v Arnhem Land Aboriginal Land Trust (2008) 236 CLR 24, 28–39, 60–1 (Gleeson CJ, Gummow, Hayne and Crennan JJ).

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outside the freehold (Blue Mud Bay) tidal areas? The views expressed in the judgments left the matter somewhat open. The plurality, with Kirby J concurring, addressed the import of s 70(1) of the ALR (NT) Act.99 Noting the fee simple holding under that Act, which prescribes a penalty for entering the area without authority for so doing, it endorsed the Trust’s power to exclude. In relation to s 53(1) of the Fisheries Act (NT), the plurality noted that it in any case specifically protects Aboriginal use, and reframed the nature of that Act by indicating that it does not specify where a person may fish, but rather only ‘provides for where persons may not fish’.100 The title area covers both the land below101 and the water above the land within the boundaries of the grant.102 But it is a right to regulate, not exclude, movements over the waters. It is disappointing that, although the United Nations Convention on the Law of the Sea103 (‘LOSC’) was referred to cursorily, it makes little reference to the key issue of native title. Indeed, the main concern of the LOSC is about sovereignty issues among states, with art 51 providing, almost as an afterthought: Without prejudice to article 49, an archipelagic State shall respect existing agreements with other States and shall recognize traditional fishing rights and other legitimate activities … Detailed definitive references to seas and waters in the United Nations Declaration on the Rights of Indigenous Peoples (‘DRIP’)104 are also somewhat lacking.105 In light of the situation in Australian law described above, the DRIP should, when moving towards convention status, be drafted to contain more detailed protection of indigenous rights over seas and waters.

99

100

101 102

103

104

105

Northern Territory v Arnhem Land Aboriginal Land Trust (2008) 236 CLR 24, 51–5 (Gleeson CJ, Gummow, Hayne and Crennan JJ). Northern Territory v Arnhem Land Aboriginal Land Trust (2008) 236 CLR 24, 60 (Gleeson CJ, Gummow, Hayne and Crennan JJ). Fisheries Act (NT) ss 70(1), 73(1)(d). Mabo v Queensland [No 2] (1992) 175 CLR 1, 60–2, 65–6 (Brennan J); seabed was the subject of native title claims in the inter-tidal zone and the freehold status would allow the holders to regulate fishing and navigation; the application of Risk v Northern Territory (2002) 210 CLR 392 was also seen as supporting this conclusion United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 UNTS 397 (entered into force 16 November 1994) (‘LOSC’). United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN GAOR, 61st sess, 107th plen mtg, Supp No 49, UN Doc A/RES/61/295 (13 September 2007) (‘DRIP’). DRIP arts 8(2), 25, 32(2).

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B  The Akiba Determination [7.70]  The case106 was heard in three stages. The initial claim, made in 2001, was heard by Finn J with the decision released in 2010. Finn J’s thorough and exhaustive assessment had by that stage reached over 1000 paragraphs. The second stage was an appeal by the Commonwealth to the Full Federal Court.107 The Full Court overruled parts of Finn J’s determination. However, its decision focused largely on issues relating to the complex statutory provisions of Papua New Guinea and the Commonwealth. The third stage was an appeal to the High Court.108 In the two separate judgments,109 it reached a decision that in large part endorsed Finn J’s determination and added comment on three main issues. Turning to substance, the core of the claim was under the NTA, though also associated significantly with relevant international law. It was made by four ‘cluster’ groupings of Torres Strait Islanders.110 The claimants sought a native title determination from Finn J under the NTA relating to waters in an area between Papua New Guinea and Australia.111 Finn J’s determination is portentous. It was path-breaking, took some three years to complete, and is something of a tour de force. For the purposes of this chapter, the main focus is on the determination by Finn J, and its endorsement in large part by the High Court, because Finn J focused on the nature of the communities, the role of international law and the native title to waters — the central concerns of this chapter. The three issues reviewed below identify the effect on Indigenous native title of international law, and of the associated claims community. 1  Akiba Issue 1 [7.80]  The somewhat loose associations of the ‘cluster’ groups presented initial difficulties for Finn J, because the claimant groups did not have strong connections with land — the core element in the NTA. For Akiba, the focus in 106

107

108

109

110

111

Akiba on behalf of the Torres Strait Regional Seas Claim Group v Queensland [No 2] (2010) 204 FCR 1 (Finn J); the Commonwealth and Queensland were joined, as were a number of individuals and companies collectively described as the Commercial Fishing Parties. Commonwealth v Akiba on behalf of the Torres Strait Regional Seas Claim Group (2012) 204 FCR 260; the joint judgment contains much of the chronological information about the early stages of Finn J’s determination. Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth (2013) 250 CLR 209; the High Court largely supported the Finn determinations, including in relation to ‘reciprocal rights’. Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth (2013) 250 CLR 209 (French CJ and Crennan J, and Hayne, Kiefel and Bell JJ). It seems that some 3800 persons, each related to three or four islands, were involved in the final claim (there had earlier been 22 separate claims). In light of the decisions in Commonwealth v Yarmirr (2001) 208 CLR 1 and Northern Territory v Arnhem Land Aboriginal Land Trust (2008) 236 CLR 24, their claim to exclusive use was dropped.

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the claims was on the waters, and in rem, rather than on the land and specific land-based traditions, such as in Mabo [No 2]. Drawing on Yorta,112 Finn J observed: Unlike mainland Aboriginal cases, there is little in the laws and customs relied upon that has any informing spiritual dimension at all … Much appears simply utilitarian; much seems prosaic … Yet, it needs to be recognised that normative beliefs can be held about ordinary behaviour …113 The relationship among Islander groups, even in the same cluster, was not close. Nevertheless, Finn J was satisfied that there was a real communal focus on the sea and on exclusive ‘occupation’ of particular seas.114 He considered the longstanding ‘society’ concept compatible with the land-based NTA decisions.115 2  Akiba Issue 2 [7.90]  Finn J raised matters concerning the relationship between inter­ national and domestic law, including: „„ the Torres Strait Treaty;116 „„ the LOSC; and „„ the Seas and Submerged Lands Act 1973 (Cth).117 The 1994 Australian proclamation of the exclusive economic zone (‘EEZ’) under s 10B of the Seas and Submerged Lands Act set the same sea boundary limits as the Torres Strait Treaty, thereby extending the outer limits to Australia’s rights over the EEZ.118 Yarmirr established the principle that the common law will not recognise native title if it is inconsistent with international law. A main issue for Akiba was whether native title could extend beyond the territorial seas to include the EEZ. Finn J quotes Attard as suggesting that the drafters of the EEZ regime have ‘created a delicate, intricate, and sometimes ambiguous mechanism’ and concludes that ‘the native title rights and interests which I have found are for presently relevant purposes, rights to access and

112 113

114

115

116

117 118

Yorta Yorta v Victoria (2002) 214 CLR 422. Akiba on behalf of the Torres Strait Regional Seas Claim Group v Queensland [No 2] (2010) 204 FCR 1, 56–7 [172]. Akiba on behalf of the Torres Strait Regional Seas Claim Group v Queensland [No 2] (2010) 204 FCR 1, 58 [178], noting that Queensland and the Commonwealth accepted these conclusions. Akiba on behalf of the Torres Strait Regional Seas Claim Group v Queensland [No 2] (2010) 204 FCR 1, 33–4 [64]–[70], 126 [488]. Treaty between Australia and the Independent State of Papua New Guinea Concerning Sovereignty and Maritime Boundaries in the Area between the Two Countries, Including the Area Known as Torres Strait and Related Matters, opened for signature 18 December 1978, [1985] ATS 5 (entered into force 15 February 1985) (‘Torres Strait Treaty’). See the discussion in chapter 17. Akiba on behalf of the Torres Strait Regional Seas Claim Group v Queensland [No 2] (2010) 204 FCR 1, 173–82 [688]–[725].

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take marine resources’.119 The finding was that native title could extend to the EEZ, as the EEZ is consistent with the LOSC. However, the EEZ does not confer exclusive sovereignty, only such rights as are ‘necessary for and connected with’ exploitation of the natural resources.120 3  Akiba Issue 3 [7.100]  Finn J then addressed the issue whether the native title rights of claimant groups operate only in ‘their own marine areas’ and are subject to common law and legislation, as are all would-be users.121 Finn J, setting a significant precedent, held that native title may be exploited for trading and commercial purposes: … at least in relation to the sea — and particularly in waters with the abundant resources Torres Strait has — it is by no means apparent, absent a legislative regime to the contrary, why marine resources may not be exploited by those who care to do so [including native title holders] for trading and commercial purposes …122 He saw no reason to presuppose a right to exclusive possession.123 Finn J considered also the question of ‘reciprocity’. He indicated that the dealings between individuals on a reciprocal basis, although a practice, were not a matter covered by native title.124 Finn J addressed a further question about whether the changes in sovereignty since 1872, when the islands were transferred to Queensland, had an adverse effect on native title.125 He noted that both the Commonwealth and Queensland have had fisheries laws for many years,126 and that these have been of a regulatory rather than exclusionary nature, except in relation to particular species.127 He observed that ‘[a]t common law, a change in sovereignty over 119

120

121

122

123

124

125

126

127

Akiba on behalf of the Torres Strait Regional Seas Claim Group v Queensland [No 2] (2010) 204 FCR 1, 180–1 [719]–[721]. Akiba on behalf of the Torres Strait Regional Seas Claim Group v Queensland [No 2] (2010) 204 FCR 1, 180 [717], 182 [723]–[727]; see LOSC art 56. Akiba on behalf of the Torres Strait Regional Seas Claim Group v Queensland [No 2] (2010) 204 FCR 1, 186 [749]. Akiba on behalf of the Torres Strait Regional Seas Claim Group v Queensland [No 2] (2010) 204 FCR 1, 187 [752]. Akiba on behalf of the Torres Strait Regional Seas Claim Group v Queensland [No 2] (2010) 204 FCR 1, 194–6 [779]–[784]. Akiba on behalf of the Torres Strait Regional Seas Claim Group v Queensland [No 2] (2010) 204 FCR 1, 59–61 [185]–[194], 119 [452], 127–8 [492]–[494], 129–31 [503]–[509]. Akiba on behalf of the Torres Strait Regional Seas Claim Group v Queensland [No 2] (2010) 204 FCR 1, 178–85 [707]–[742]. Akiba on behalf of the Torres Strait Regional Seas Claim Group v Queensland [No 2] (2010) 204 FCR 1, 194–203 [779]–[814]; Queensland since 1877, especially the Fisheries Act 1976 (Qld); and the Commonwealth since the 1950s, especially the Torres Strait Fisheries Act 1984 (Cth) s 8. Akiba on behalf of the Torres Strait Regional Seas Claim Group v Queensland [No 2] (2010) 204 FCR 1, 201 [802].

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a territory does not for that reason alone necessarily extinguish pre-existing rights and interests in land and waters in that territory’.128 He considered that the same should apply where native title is involved,129 absent any ‘clear and plain intent to extinguish native title’.130 Native title applying to the territorial seas outside common law limits has also to be taken into account, though subject to international law, and supports a view that the international right to freedom of navigation under the law of the sea would not allow exclusive native title rights.131 The Akiba case opened up many situations in which native title over both seas and waters can be either retained or even extended. In part, extension has been through international law, although this has mostly been merged with provisions of Australian municipal law, as in the Seas and Submerged Lands Act. Extension under the NTA has also been possible where there is no proprietary common law. The determination in Akiba has, in essence, withstood the challenges, although it has not led to the kind of security in law that native title deserves. 4  The High Court Decision [7.110]  At the end of the long saga, the High Court, setting aside the first paragraph of the order of the Full Federal Court,132 held unanimously that Finn J’s determination was valid in all relevant aspects. There were two judgments,133 with both focusing on two key issues, commercial fishing and extinguishment, including in the latter the issue of reciprocity. French CJ and Crennan J, addressing the potentially broad scope of native title, observed: A native title right or interest defines a relationship between the native title holders and the land or waters to which the right or interest relates. The right is one thing; the exercise of it for a particular purpose is another. That proposition does not exclude the possibility that a native title right or interest arising under a particular set of traditional laws and customs might be defined by reference to its exercise for a limited purpose … 128

129

130

131

132

133

Akiba on behalf of the Torres Strait Regional Seas Claim Group v Queensland [No 2] (2010) 204 FCR 1, 185 [743]; Finn J refers to Western Australia v Commonwealth (1995) 183 CLR 373, 422. Akiba on behalf of the Torres Strait Regional Seas Claim Group v Queensland [No 2] (2010) 204 FCR 1, 178 [710]. Akiba on behalf of the Torres Strait Regional Seas Claim Group v Queensland [No 2] (2010) 204 FCR 1, 210–12 [844]–[850]. Akiba on behalf of the Torres Strait Regional Seas Claim Group v Queensland [No 2] (2010) 204 FCR 1, 178 [710]. Commonwealth v Akiba on behalf of the Torres Strait Regional Seas Claim Group (2012) 204 FCR 260, para 1 related to the finding that the government licensing schemes did not extinguish native title fishing for commercial purposes. Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth (2013) 250 CLR 209 (French CJ and Crennan J, and Hayne, Kiefel and Bell JJ).

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[Quoting Finn J:] ‘[T]he legislative regimes of the State since 1877, and of the Commonwealth since 1952 … do not, severally or together evince a clear and plain intention to extinguish native title rights to take fish for commercial purposes.’134 Reflecting on ‘extinguishment’ of a native title right and the doctrine of ‘inconsistency’, French CJ and Crennan J cited Western Australia v Commonwealth and Yarmirr and commented: Put shortly, when a statute purporting to affect the exercise of a native title right or interest for a particular purpose or in a particular way can be construed as doing no more than that, and not as extinguishing an underlying right, or an incident thereof, it should be so construed. That approach derives support from frequently repeated observations in this Court about the construction of statutes said to extinguish native title rights and interests. … The identification of a statute’s purpose may aid in its construction. That identification may be done by reference to the apparent legal effect and operation of the statute, express statements of its objectives and extrinsic materials identifying the mischief to which it is directed.135 The plurality (Hayne, Kiefel and Bell JJ) essentially agreed with their colleagues in the outcome.136 They endorsed Finn J’s view in agreeing that reciprocal rights were not NTA rights.137 Drawing on Ward, they indicated that ‘a “clear and plain intention” to extinguish native title must be demonstrated’,138 while observing: The extinguishment question is to be answered by deciding whether the legislation is inconsistent with the relevant native title right or interest; it is not determined by observing only that there is legislation which governs or affects the exercise of the right.139

134

135

136

137

138

139

Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth (2013) 250 CLR 209, 225 [21]–[22]. Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth (2013) 250 CLR 209, 229 [29], [31] (French CJ and Crennan J). They went on to refer to many cases reviewed earlier in this chapter, such as Fejo and Yarmirr. Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth (2013) 250 CLR 209, 235 [47], 244–5 [75]–[76]. Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth (2013) 250 CLR 209, 239 [59]–[60]. Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth (2013) 250 CLR 209, 240 [62]. Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth (2013) 250 CLR 209, 242 [68].

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VI SELF-DETERMINATION [7.120]  The Aboriginal and Torres Strait Islander peoples have never abandoned belief in their separate status. But the European invaders never accepted it. The European approach was grotesquely reflected a century and a half later in ss 127 and 51(xxvi) of the Constitution.140 There was little concern for, or awareness of, their independent peoplehood.

A  Lack of International Recognition [7.130]  After the Second World War, there was growing support in the UN General Assembly for the human right to self-determination.141 The focus was on post-colonial liberation. Even by the 1960s, the only possible UN declaration on self-determination contained no recognition of indigenous peoples.142 International law, for its purposes, did not recognise indigenous groups as ‘peoples’. The only recognition was in the patronising title and provision of International Labour Organization (‘ILO’) Convention No 107.143 The conquest (terra nullius) ethos had prevailed. It was only in 1976 that the Geneva-based Commission on Human Rights (‘CHR’) established a Working Group on Indigenous Populations. The pathbreaking inquiry by José Martínez Cobo, the CHR’s Special Rapporteur,144 listed relevant features of indigenous peoples, but ILO Convention 169 art 1 left it to ‘independent countries’ to determine the peoples’ (sovereign) status.145 Tired of waiting, the world’s indigenous peoples began to look for more substantive recognition at home, rather than in international law. Their international struggle was to take three decades before the DRIP was 140

141

142

143

144

145

Constitution s 127 provided that ‘[i]n reckoning the numbers of people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted’; s 51(xxvi) excluded ‘the aboriginal race’ from the legislative power of the Commonwealth. International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) art 1; International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976). The UDHR does not have a parallel provision. Declaration on the Granting of Independence to Colonial Territories and Peoples, 1960, UNGA Res 1514 of 14 December 1960, GAOR 15th sess, Supp 16, 66. Convention Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-tribal Populations in Independent Countries (ILO Convention No 107), opened for signature 26 June 1967, 328 UNTS 247 (entered into force 2 June 1959), but never ratified by Australia. José Martínez Cobo, Special Rapporteur (UN Sub-Commission on the Prevention of Discrimination and the Protection of Minorities), Study of the problem of discrimination against indigenous peoples, UN Doc E/CN.4/Sub.2/1986/7 (1986). Convention Concerning Indigenous and Tribal Peoples in Independent Countries (ILO Convention No 169), opened for signature 27 June 1989, 1650 UNTS 383 (entered into force 5 September 1991). This convention has not been ratified by Australia or by any Asian country with the exception of Nepal.

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endorsed in 2007. Simultaneous work in the disability field had resulted in a convention.146 So, once again, international law had failed to give a lead.

B  Australian Developments [7.140]  In Australia, there were some hesitant steps forward after the 1967 referendum, with the appointment by the executive, without Aboriginal representation, of the Council for Aboriginal Affairs. A decade later, there was still no recognised national Aboriginal and Torres Strait Islander organisation, although in 1973 the Council was superseded by the Department of Aboriginal Affairs. A significant step was the adoption by Commonwealth executive action in the mid-1970s of individual self-determination for Indigenous peoples. The decision was that it was not by ‘race’ but by whether the individual wished to be identified as part of an Indigenous group, and the relevant community was willing to recognise the person as a member. In form (but often not in substance), the racist caste system was abolished. International law, except possibly through the RDA, was not invoked. A bold legal challenge based on sovereignty was mounted in Coe v Commonwealth.147 But it was not assisted by international law. Paul Coe challenged the legality of the proclamation of sovereignty by Captain Cook in 1770, and the British possession and occupation in 1788. He claimed prior existence of an Aboriginal nation and referred to the terra nullius doctrine. Coe’s claim was held not justiciable. Gibbs and Aickin JJ rejected the claims.148 The dissenters, Jacobs and Murphy JJ,149 would have allowed its amendment.150 The claim of ‘sovereignty’ has not since been pursued. During the 1970s and 1980s, attention was focused on domestic matters.151 International law was not drawn on. The struggle related to wages and mining, with the leaders including Rob Riley and Pat Dodson. However, in 1989, under the influence of the then Minister for Aboriginal Affairs, Gerry Hand, a new vision of the relationship between Aboriginal and Torres Strait Islander peoples and government opened up. Although still working within the prevailing (discovery) legal framework, the Aboriginal and Torres 146

147 148

149

150

151

Convention on the Rights of Persons with Disabilities, opened for signature 13 December 2006, 2515 UNTS 3 (entered into force 3 May 2008). Coe v Commonwealth (1979) 53 ALJR 403. Coe v Commonwealth (1979) 53 ALJR 403, 404–9, 412; Gibbs J at 408 refers to Cherokee Nation v State of Georgia (1831) 5 Pet 1. The CLR has never reported the case. Mason J (the hearing justice in Coe v Commonwealth (1978) 52 ALJR 334) was included in the majority, having dismissed the claims as untenable. Both refer to Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 (‘Gove Land Rights Case’) and Cooper v Stuart (1889) 14 App Cas 286; Murphy J also refers to Viro v The Queen (1978) 141 CLR 88. A brief account of institutional measures to promote self-determination is included in Peter H Bailey, The Human Rights Enterprise in Australia and Internationally (LexisNexis, 2009) 752–60.

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Strait Islander Commission Act 1989 (Cth) (‘ATSIC Act’) established the first legislated national representative body: The structure I have described — regional councils, zone councils and, at the national level, the Commission — will ensure that the views of Aboriginal and Islander people can flow from the grass roots to the centre of government and be reflected in action, in each of its programs and activities. … The proposals I have outlined [for an Aboriginal and Torres Strait Islander Commission] break new ground in terms of reflecting the progressive commitment by Government and all Australians to recognise the rights of Aboriginal and Islander people.152 Although the Minister’s references to self-determination were, to say the least, elliptic, their significance was quite quickly recognised.153 International law was not invoked by the 1990s Royal Commission into Aboriginal Deaths in Custody,154 which proposed a holistic domestic view of measures designed to promote self-determination. However, from about that time, and particularly with the establishment in 1993 within the Human Rights and Equal Opportunity Commission (‘HREOC’) of the Aboriginal and Torres Strait Islander Social Justice Commissioner, participation in international indigenous activities was able to progress, assisted by increasingly creative international contact. The ATSIC Act was amended in 1994 to provide more secure funding in the land acquisition area and to recognise the separate situation of Torres Strait Islanders. And then followed perhaps the most influential ‘outside’ recommendations relating to self-determination, through HREOC’s 1995 report Bringing Them Home.155 The Commission recommended ‘national legislation establishing a framework for negotiations at community and regional levels for the implementation of self-determination …’156 Although originating in the inquiry into children, the Commission saw its recommendation as applying to all Aboriginal and Torres Strait Islanders and was in effect the first official recognition of their international status. 152

153

154

155

156

Commonwealth, Parliamentary Debates, House of Representatives, 10 December 1987, 3153–4 (Gerry Hand, Minister for Aboriginal Affairs). See, eg, Robert Tickner’s reference to ‘a proud Labor reform’ and recognition by ATSIC ‘of the important shift to self-determination’ in Robert Tickner, Taking a Stand: Land Rights to Reconciliation (Allen & Unwin, 2001) 50; Tim Rowse, Indigenous Futures (UNSW Press, 2002) 1. Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991). Human Rights and Equal Opportunity Commission, Bringing Them Home: National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (1997); the President at the time was former High Court Justice Ronald Wilson. Human Rights and Equal Opportunity Commission, Bringing Them Home: National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (1997), Recommendation 43a.

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During the following decade, the cause of self-determination suffered severe setbacks through the Coalition government’s 1998 ‘10-point plan’ reductions in the protection of native title land accorded by the NTA. Despite the perceptive findings of the ministerially appointed high level Hannaford review,157 ATSIC was abolished in 2005, without consultation with ATSIC and without a satisfactory substitute.158

C  Towards Implementation of the DRIP [7.150]  Following election of the Rudd government in 2007, the Coalition government’s refusal in 2007 to support DRIP was reversed. To some degree, the ‘Sorry Statement’ of 13 February 2008 undid the destructive effects of the application of the doctrines of ‘protection’ and ‘discovery’ that had led to the Bringing Them Home report. Ironically, as with the HREOC report, the focus of the Sorry Statement was on children, but it envisaged much broader redemptive efforts, and was graciously received by Aboriginal and Torres Strait Islander peoples. In an effort to restore consultative and participatory action, the Commonwealth, in late 2008, requested Aboriginal and Torres Strait Islander Social Justice Commissioner Tom Calma to convene an independent steering committee of Indigenous people to develop a model national representative body. The outcome was the proposal for the National Congress of Australia’s First Peoples.159 But it was again not based on any international law precepts. The proposal was accepted by the government, and the Congress was incorporated as an independent body under the Corporations Act 2001 (Cth). Based largely on trust and government good will, it is designed to have: „„ independence from government; „„ no service functions; „„ an initial five-year guarantee of Commonwealth funding; 157

158

159

Angela Pratt and Scott Bennett, ‘The End of ATSIC and the Future Administration of Indigenous Affairs’ (Current Issues Brief No 4, Immigration and Research Services, Parliamentary Library, 2004) 10; see also Senate Select Committee on the Administration of Indigenous Affairs, Parliament of Australia, After ATSIC: Life in the Mainstream (2005) 24–5. The vehicle was the Aboriginal and Torres Strait Islander Commission (Amendment) Act 2005 (Cth), which in effect abolished the 1989 Act and included scarcely believable preambles referring to providing ‘rectification’ of past abuses; ensuring ‘maximum participation’ in formulating and implementing programs; and ‘recognising’ international standards for the universal protection of human rights. Australian Human Rights Commission, Our Future in Our Hands: Creating a Sustainable Representative Body for Aboriginal and Torres Strait Islander Peoples (2009) . See also Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2005 (Report No 3/2005, 2005) ch 3.

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„„ a guarantee of consultation about, and participation in, Aboriginal and Torres Strait Islander matters; and „„ a recognised ability to fulfil its advocacy function. The negative aspects of the suspension of the RDA in the Northern Territory have still not been entirely removed and little has as yet been achieved towards legislation based on the DRIP. The DRIP as a whole can, and should, be read as providing for the undoing of the discovery doctrine. Many of its provisions are linked strongly to autonomy for indigenous communities and individuals, although neither ILO Convention 107 nor ILO Convention 169 has been ratified by Australia. Nor have the key provisions in DRIP been reflected in Australian law.160 It is now up to all levels of government to pursue the lead that the United Nations, DRIP and the international community have at last provided — although without full international law status.

VII  ISSUES FOR THE FUTURE [7.160]  This chapter has attempted to identify the failure of international law to establish a firm legal basis in Australia for the human rights of Indigenous peoples and, as its core theme, has highlighted the effect of the pervasive and continuing negative influence of the discovery doctrine. We raise a number of urgent challenges. International law has generated ideas, and has enabled Indigenous people and their supporters, drawing on it, to put pressure on governments. But it has not been adequately deployed by those governments to play a satisfactory part in achieving overall Indigenous welfare and recognition. The existence of a federal system has led to inequalities in state and territory management of their Indigenous populations within their powers, and the Commonwealth itself has been unduly hesitant in setting firm standards based on international law standards. Examples of the Commonwealth itself — despite having unique authority through the external affairs power in s 51(xxix) of the Constitution — are that it has failed to implement fully the ICERD in its RDA; its legislation has not been consistent in all states and territories; and it has failed to use its external affairs power to reinforce international law policies on land and over relevant coastal and sea areas. It has not listened sufficiently to the anxieties of Indigenous people and their leaders in its planning for some kind of recognition through a referendum. Nor has it supported adequately the promising but still evolving national representative body for Aboriginal and Torres Strait Islanders. 160

See, eg, the rights in DRIP art 1 (full enjoyment of all human right); art 2 (freedom from any form of discrimination); arts 3–5 (self-determination); arts 10, 25, 26 (land ownership and control); art 13 (revitalise history and cultures); art 14 (establish and control their education systems); art 21 (improve economic and social conditions); art 38 (appropriate consultation measures to achieve the DRIP’s objectives).

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We hope that this chapter will be a challenge and a positive influence in promoting the real acceptance of, and support for, the unique role that Indigenous peoples, as original inhabitants, have in Australia. Indigenous peoples should be sensitively and supportively recognised as being in a significant and clearly different category from the rest of the population, and should in no way be confused with immigrants and refugees.

8 Nationality, Asylum and Refugee Law in Australia Penelope Mathew*

I INTRODUCTION [8.10]  This chapter explores some key aspects of nationality, asylum and refugee law in Australia. The concept that links nationality and refugee status, making it appropriate to deal with them in one chapter, is state protection — in particular, the safety of calling a country ‘home’, whether permanently or temporarily. As will be seen, this protection is enabling but also limiting. Through the documented identification of an individual with a particular state in the form of the passport1 and other travel documents, the movement of that individual across international boundaries is both facilitated and constrained. The chapter begins with a discussion of nationality as the original source of protection for the human person in international law, commenting on the way in which international human rights law has supplemented or supplanted nationality as a source of protection. It briefly outlines the current bases for attaining and losing Australian citizenship. It also considers a high profile Australian case — that of David Hicks, which highlighted interesting interactions between the law relating to diplomatic protection of nationals injured abroad and international human rights law. The chapter then turns to consider international refugee law, focusing on how Australia implements (or evades) its obligations towards refugees through legislation. The chapter *

1

The author would like to thank Sian McGee and Max McClellan for reading and commenting on the chapter in draft, and Emi Christensen for assisting with the preparation of the final manuscript. See John Torpey, The Invention of the Passport: Surveillance, Citizenship and the State (Cambridge University Press, 2000). 165

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looks at two controversial examples of Australian state practice — mandatory detention of unauthorised asylum seekers and ‘processing’ or ‘protection’ of asylum seekers offshore or elsewhere. In conclusion, the chapter highlights the complementary yet oppositional relationship between citizenship, which denotes membership of a state, and refugee status, which denotes protection granted by a foreign state as a response to the absence of protection by the ‘home’ state.

II  NATIONALITY AS A SOURCE OF PROTECTION FOR THE HUMAN PERSON [8.20]  Before commencing our examination of the concept of nationality, it is useful to note that the term ‘nationality’ refers to the idea that a person is linked to a state for international legal purposes, while ‘citizenship’ refers to the relationship between the state and an individual as a matter of domestic law.2 The terms are used interchangeably in this chapter, however, as it is generally the case that one looks first to domestic citizenship laws in order to determine whether a person is regarded as a national as a matter of international law.3 Powers relating to nationality are an important aspect of state sovereignty, as population and territory are two of the traditional criteria for statehood. Generally, international law has left states with a large measure of discretion to define which people have the right to remain on their territory, with nationals being the most obvious holders of the right to reside within state territory. Nationality has also provided the traditional link between an individual and the international legal order. In particular, nationality provides an avenue to complain about treatment in a foreign state,4 although the claim is presented as an injury to the state of nationality, rather than the individual. An injury to a citizen abroad provides the basis for a state’s claim for diplomatic protection, including the right to make a claim before an international tribunal. Despite its importance for individuals, international law has traditionally placed few restraints on the power of states to confer (and thus deny) their nationality. Although there must be a genuine and effective link 2

3

4

P Weis, Nationality and Statelessness in International Law (Sijthoff & Noordhoff, 2nd ed, 1979) 3–7. Cf Alfred M Boll, Multiple Nationality and International Law (Martinus Nijhoff, 2007) 58. For example, International Law Commission, Draft Articles on Diplomatic Protection, UN GAOR, 61st sess, Supp No 10, UN Doc A/61/10 (2006) art 4 defines ‘State of nationality’ for the purposes of diplomatic protection as ‘a State whose nationality that person has acquired, in accordance with the law of that State, by birth, descent, naturalization, succession of States, or in any other manner, not inconsistent with international law’. The Draft Articles on Diplomatic Protection also provide that a state may exercise the right of diplomatic protection on behalf of refugees and stateless persons lawfully habitually resident within the state: International Law Commission, Draft Articles on Diplomatic Protection, UN GAOR, 61st sess, Supp No 10, UN Doc A/61/10 (2006) art 8.

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between an individual and the state in order for other states to recognise an individual as a state’s national,5 the basis upon which nationality or citizenship is conferred is regulated by states’ domestic laws. States have been free to regulate nationality on the basis of the principles of jus soli (by which a person obtains nationality through birth on state territory) and jus sanguinis (by which a person obtains nationality through descent — that is, because the person’s parents or, sometimes, more distant ancestors were nationals), or a mix of these principles. Consequently, it is still possible for many persons to remain stateless. International law has provided little by way of a human right to a nationality. Article 15 of the Universal Declaration of Human Rights (‘UDHR’)6 provides that everyone has the right to a nationality, but does not impose obligations upon states to confer their nationality on particular bases. It does say that no-one shall be ‘arbitrarily deprived’ of nationality, meaning that there is protection against loss of nationality. Article 24 of the International Covenant on Civil and Political Rights (‘ICCPR’)7 guarantees the right of the child to ‘acquire’ a nationality, as does art 7 of the Convention on the Rights of the Child (‘CRC’),8 and art 8 of the CRC protects the child’s right to ‘preserve’ his or her identity, including nationality. Australia is party to both the ICCPR and the CRC. There are also two universal treaties relating to statelessness to which Australia is party without reservation. The first is the 1954 Convention Relating to the Status of Stateless Persons.9 Drafting of this convention commenced at the same time as the 1951 Convention Relating to the Status of Refugees (‘Refugee Convention’).10 Its provisions largely mirror those of the Refugee Convention and it guarantees certain rights to stateless persons, such as the right to engage in wage-earning employment. This particular right is limited to stateless persons lawfully staying in state territory and is not protected in accordance with an absolute standard but, at best, ‘treatment as favourable as possible’.11 Many of the rights in the treaty are similarly relative, rather than absolute, rights. Protection is contingent on a level of attachment to state territory 5 6

7

8

9

10

11

Nottebohm (Liechtenstein v Guatemala) (Second Phase) [1955] ICJ Rep 4. Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948) (‘UDHR’). International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (‘ICCPR’). Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) (‘CRC’). Convention Relating to the Status of Stateless Persons, opened for signature 28 September 1954, 360 UNTS 117 (entered into force 6 June 1960). Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) (‘Refugee Convention’). Convention Relating to the Status of Stateless Persons, opened for signature 28 September 1954, 360 UNTS 117 (entered into force 6 June 1960) art 17.

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and comparable to other categories of foreigners. The 1961 Convention on the Reduction of Statelessness12 makes provision for stateless people to gain nationality in certain circumstances, including where the stateless person was born on state territory, although states can require the person to apply for citizenship and can impose certain additional requirements as outlined in the convention. The convention has only 65 parties, although there have been a significant and promising number of new accessions in recent years. Distinctions between citizens and foreigners are somewhat less important than they once were given the advent of international human rights law,13 which defines standards of protection owed to all individuals — citizens and aliens — within the territory or jurisdiction of a state. Frequently, human rights law gives individuals standing at the international level to complain about states responsible for violating their human rights, and this includes the state of citizenship. However, nationality is still an important concept, even in the context of human rights. Key political rights, such as the right to vote, apply only to citizens (see art 25 of the ICCPR). Further, while art 12(4) of the ICCPR recognises the right of a person to return to his or her ‘own country’, the UN Human Rights Committee has on occasion permitted the deportation of long-term foreign residents convicted of serious crimes, finding no violation of art 12(4) of the ICCPR.14 In Nystrom v Australia,15 the particular circumstances of the case moved the Committee to find that there had been a violation of art 12(4).16 The right to family life (arts 17 and 23 of the ICCPR) may also provide a basis for remaining in the country, as was the case in Madafferi v Australia.17 It remains the case, though, that citizenship is still the safest guarantee of a place to call home.

A  Australian Citizenship Law [8.30]  Australia developed rules regarding Australian citizenship rather late in its history, with the adoption of the Australian Citizenship Act in 1948.18 Prior to this enactment, Australia relied on the concept of a British subject 12

13 14

15

16

17

18

Convention on the Reduction of Statelessness, opened for signature 30 August 1961, 980 UNTS 175 (entered into force 13 December 1975). See further chapter 6 of this volume on human rights in Australia. See, eg, Human Rights Committee, Views: Communication No 538/1993, 58th Sess, UN Doc CCPR/C/50/D/538/1993 (18 March 1994) (‘Stewart v Canada’). Human Rights Committee, Views: Communication No 1557/2007, 102nd Sess, UN Doc CCPR/C/102/D/1557/2007 (1 September 2011) (‘Nystrom v Australia’). Human Rights Committee, Views: Communication No 1557/2007, 102nd Sess, UN Doc CCPR/C/102/D/1557/2007 (1 September 2011) [7.4]–[7.6] (‘Nystrom v Australia’). Human Rights Committee, Views: Communication No 1011/2001, 81st Sess, UN Doc CCPR/C/81/D/1011/2011 (26 August 2004) (‘Madafferi v Australia’). First enacted as the Nationality and Citizenship Act 1948 (Cth), the Australian Citizenship Act 1948 (Cth) was repealed and replaced by the Australian Citizenship Act 2007 (Cth). For an extensive analysis of this history, see Kim Rubenstein, Australian Citizenship Law in Context (Law Book Co, 2002) 79.

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to define who belonged in Australia.19 Despite federating in 1901, the new states of Australia still regarded themselves as part of the British Empire. There are few references to the concepts of treaties and no express references to citizenship in the Australian Constitution, both of which are concepts associated with independent statehood. Traditionally, the common law world has defined citizenship through the principle of jus soli. Since 1986, however, Australian citizenship has rested not solely on jus soli but also on jus sanguinis. Thus, under the Australian Citizenship Act 2007 (Cth),20 a person acquires Australian citizenship automatically by birth in Australia to an Australian citizen or permanent resident.21 An abandoned child found in Australia is an Australian citizen ‘unless and until the contrary is proved’,22 and adoption of a child by an Australian citizen residing in Australia also results in Australian citizenship.23 Should a new territory be incorporated into Australia, the Minister for Immigration and Border Control may determine that certain people in that territory have acquired citizenship as a result of their connection with the territory.24 The case of Susan Walsh, a woman from Papua New Guinea (‘PNG’) who lost her Australian nationality upon PNG’s independence, despite the fact that her father was born in Australia and an Australian citizen, led to a special provision for Papuans in her position to apply for citizenship by descent.25 By contrast, those who only satisfy one of the requisite ties to Australia (birth or residence in Australia and descent) must apply for Australian citizenship or wait for it to accrue, and the Minister may (and in some cases must) deny citizenship. For example, adoption by an Australian citizen under the Hague Convention on Intercountry Adoption26 is not an automatic guarantee of Australian citizenship for the adopted person.27 Persons born outside Australia to an Australian citizen may be eligible for Australian citizenship by descent,28 and parents are able to apply on behalf of 19

20

21 22 23 24 25

26

27 28

See Helen Irving, ‘Still Call Australia Home: The Constitution and the Citizen’s Right of Abode’ (2008) 30 Sydney Law Review 131, 131; Kim Rubenstein, Australian Citizenship Law in Context (Law Book Co, 2002) 79. A full description of the bases upon which persons may be Australian citizens is not possible in this chapter. Australian Citizenship Act 2007 (Cth) s 12. Australian Citizenship Act 2007 (Cth) s 14. Australian Citizenship Act 2007 (Cth) s 13. Australian Citizenship Act 2007 (Cth) s 15. Australian Citizenship Act 2007 (Cth) s 21(7). See further Kim Rubenstein, ‘The Lottery of Citizenship: The Changing Significance of Birthplace, Territory and Residence to the Australian Membership Prize’ (2005) 22(2) Law in Context 45. Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, opened for signature 29 May 1993, 1870 UNTS 167 (entered into force 1 May 1995) (‘Hague Convention on Intercountry Adoption’). Australian Citizenship Act 2007 (Cth) ss 19B–19D. Australian Citizenship Act 2007 (Cth) s 16.

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such minor children. If a person is born in Australia to non-citizen parents, he or she acquires citizenship if ordinarily resident in Australia for 10 years after his or her birth.29 Citizenship is automatically acquired on the child’s 10th birthday in these cases. This was the situation in Winata v Australia,30 a case in which Australia threatened to deport two non-citizens whose presence in Australia had become unlawful as a matter of domestic immigration law, but who had a 13-year-old child who was born in Australia and who had been present in Australia ever since his birth. Persons born in Australia who are not and have never been citizens of other countries and are ineligible for citizenship elsewhere may apply for Australian citizenship.31 It is also possible for migrants to apply for Australian citizenship,32 subject to certain residence requirements,33 ministerial discretion34 and, in most cases, a pass in the citizenship test.35 The test is meant to show that the person understands the nature of the citizenship application, possesses a basic knowledge of the English language, and has an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship.36 Although a ‘test’ or interview of some sort has been in place since 1948, a true citizenship test was first introduced by the Howard government in 2007 and provoked controversy. ‘Knowledge of Australia’ was a new element, and some information in the test resources booklet — for example, material concerning the feats of Don Bradman, the famous Australian cricketer — was widely viewed as trivial37 and demonstrative of a particular and narrow sense of Australianness.38 The citizenship test was adopted in a context in which the government seemed to require a commitment to a monolithic Australian identity.39 The government of the day did not maintain the multiculturalism policies of 29 30

31 32 33 34 35 36 37

38

39

Australian Citizenship Act 2007 (Cth) s 12(1)(b). Human Rights Committee, Views: Communication No 930/2000, 72nd Sess, UN Doc CCPR/ C/72/D/930/2000 (16 August 2001) (‘Winata v Australia’). Australian Citizenship Act 2007 (Cth) s 21(8). Australian Citizenship Act 2007 (Cth) s 21(2). Australian Citizenship Act 2007 (Cth) s 22. Australian Citizenship Act 2007 (Cth) s 24(2). For the exceptions to sitting the test, see Australian Citizenship Act 2007 (Cth) s 21(3)–(4). These eligibility criteria are set out in the Australian Citizenship Act 2007 (Cth) s 21(2)(d)–(f). Australian Citizenship Test Review Committee, Moving Forward: Improving Pathways to Citizenship — A Report by the Australian Citizenship Test Review Committee (August 2008) 24. Non-testable information about Don Bradman is also contained in the current citizenship booklet. See Department of Immigration and Border Protection, Australian Citizenship: Our Current Bond (2014) 44 . Australian Citizenship Test Review Committee, Moving Forward: Improving Pathways to Citizenship — A Report by the Australian Citizenship Test Review Committee (August 2008) 12. See the analysis in Mark Nolan and Kim Rubenstein, ‘Citizenship and Identity in Diverse Societies’ (2009) 15(1) Humanities Research Journal 29.

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preceding and subsequent governments, which signal a welcoming attitude on the part of the existing Australian community towards those seeking to join it. Furthermore, while knowledge of English and a commitment to certain values such as equality might be viewed as good things, these were necessarily imposed on a selective basis. There is no provision for persons who are born Australian citizens to espouse equality or risk the cessation of their citizenship, for example, and nor should there be. In practice, the test operated to exclude more applicants from the refugee and humanitarian stream and the family stream of Australia’s migration program than from the skilled migrants stream, in part because the test and resources booklet were written in English well above the ‘basic’ level to be demonstrated by citizenship applicants.40 Citizenship is most valuable to refugees who have been denied the effective protection of their countries of origin, and while the Refugee Convention does not impose an obligation to confer citizenship, it does impose an obligation in art 34 to ‘facilitate’ the ‘naturalization’ of refugees. An independent review of the citizenship test recommended changes, a number of which have been implemented.41 As Nolan and Rubenstein comment, the requirement of commitment to an overarching Australianness does not sit well with the legal recognition of multiple citizenship in Australia.42 In the past, dual or multiple citizenship has been controversial in Australia, as in many other countries. Citizenship was viewed as a form of allegiance — indeed, migrants to Australia must still pledge their loyalty to Australia and its people — and the possibility of multiple allegiances was viewed as a threat. More recently, dual citizenship — whether, for example, as a result of migrating to Australia and acquiring Australian citizenship in addition to the citizenship of the country of origin, or migrating from Australia to another country and obtaining its nationality — has been permitted.43 This recognises the validity of multiple senses of belonging. Of course, when it comes to high political office or public service, many countries still insist on the loyalty or commitment perceived to accompany 40

41

42

43

Australian Citizenship Test Review Committee, Moving Forward: Improving Pathways to Citizenship — A Report by the Australian Citizenship Test Review Committee (August 2008) 18–20. For the committee’s report, see Australian Citizenship Test Review Committee, Moving Forward: Improving Pathways to Citizenship — A Report by the Australian Citizenship Test Review Committee (August 2008). For the government’s formal response and implementation of accepted recommendations, see the description of the changes to the citizenship test and application process: Australian Government, Department of Immigration and Citizenship, Changes to the Citizenship Test and Application Process . Mark Nolan and Kim Rubenstein, ‘Citizenship and Identity in Diverse Societies’ (2009) 15(1) Humanities Research Journal 29. The final move to permit dual citizenship occurred in 2002, when s 17 of the Australian Citizenship Act 1948 (Cth) was repealed. For discussion, see Mark Nolan and Kim Rubenstein, ‘Citizenship and Identity in Diverse Societies’ (2009) 15(1) Humanities Research Journal 29, 35–6.

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citizenship. It is formally necessary to hold solely Australian citizenship in order to serve in Parliament by virtue of s 44 of the Australian Constitution. In practice, a person can only be required to attempt to discard citizenships other than his or her Australian citizenship (Sykes v Cleary [No 2]),44 for although international law recognises the right to change one’s nationality, this is generally not a decision that can be made unilaterally by the individual. The country of origin’s domestic law determines whether or not dual citizenship will be recognised by the state, as well as the terms for renunciation of its citizenship.45 Australia has also enacted legislation that revokes the Australian citizenship of dual citizens who act ‘inconsistently with their allegiance to Australia’46 by engaging in certain terrorist or terrorist-related activities.47 In addition, dual citizens will cease to be Australian citizens if they serve in the armed forces of a country at war with Australia or fight for, or are ‘in the service of’, a declared terrorist organisation.48 In each case, the Minister for Immigration and Border Protection49 has a non-compellable power to exempt people from the operation of the legislation. When exercising this power, the Minister must consider several factors, including the severity of the matters, the degree of threat posed by the person concerned to the Australian community, the person’s age, and the person’s connection to the other country of citizenship.50 If the person concerned is a child, the best interests of the child must be a primary consideration.51 Similarly, where a dual citizen has been convicted of terrorism or certain other offences and the person has been sentenced to a period or periods of imprisonment for at least six years, the Minister may determine that the person’s citizenship has ceased because the Minister is satisfied that the conduct demonstrates that the person has ‘repudiated their allegiance to Australia’, and is also satisfied 44 45

46

47

48

49

50 51

Sykes v Cleary [No 2] (1992) 176 CLR 77, 107 (Mason CJ, Toohey and McHugh JJ). See, eg, Australian Citizenship Act 2007 (Cth) s 33, which requires the Minister to approve or refuse to approve the renunciation of Australian citizenship in accordance with criteria established in that section. Australian Citizenship Act 2007 (Cth) s 33AA, introduced by Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (Cth) s 3. See Australian Citizenship Act 2007 (Cth) s 33AA(2) for the list of activities. Note that the person must be outside Australia when the activities are carried out or the person must have left Australia after engaging in the conduct and not, at the time he or she left, have been tried for any relevant offence at s 33AA(7). Australian Citizenship Act 2007 (Cth) s 35. A person is not in the service of a declared terrorist organisation where the person’s actions are unintentional, the person acts under duress or force, or the person provides ‘neutral and independent humanitarian assistance’: Australian Citizenship Act 2007 (Cth) s 35(4)(c). It should be noted that the nomenclature for both the Minister and the relevant department has changed many times over the years. In this chapter, the terminology used in particular cases or at particular times will be adopted. Australian Citizenship Act 2007 (Cth) ss 33AA(17), 35(12). Australian Citizenship Act 2007 (Cth) ss 33AA(17)(d), 35(12)(d).

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that it is not in the public interest for the person to remain an Australian citizen in light of factors including the severity of the conduct, the degree of threat posed by the person concerned to the Australian community, the person’s age, and the person’s connection to the other country of citizenship.52 If the person concerned is a child, the best interests of the child must be a primary consideration.53 The Act is discriminatory and impinges on the right of a person to ‘enter his or her own country’, protected by art 12(4) of the ICCPR. Further, while the notion of allegiance may have populist appeal in this context, the wisdom of stripping citizenship from a person who is guilty of terrorism instead of imprisoning that person is highly questionable.

B Diplomatic Protection of an Australian Citizen — the Case of David Hicks [8.40]  Nationals abroad may request the assistance of their home state through consular services. Consular assistance may extend as far as evacuation from conflict zones or natural disaster areas, or negotiation for the release of citizens taken hostage, and may pose significant dilemmas, not to mention resource expenditure, for the government.54 Foreign prisoners must be allowed consular access.55 If their rights are violated, and they have exhausted local remedies in the foreign state, the state of nationality may exercise its right of diplomatic protection. However, the right to diplomatic protection is still regarded as a right of the state, rather than a right of the citizen concerned.56 The plight of foreigners detained and mistreated as terrorist suspects at Guantánamo Bay in Cuba, dubbed a ‘legal black hole’,57 has highlighted the role of diplomatic protection in securing human rights. Two Australian citizens detained at Guantánamo Bay — David Hicks and Mamdouh Habib — initiated litigation that resulted in some Australian case law supportive of the position that Australia must consider whether to seek 52 53 54

55

56

57

Australian Citizenship Act 2007 (Cth) s 35A. Australian Citizenship Act 2007 (Cth) s 35A(1)(e)(iv). Hugh White, ‘Looking after Australians Overseas’ (Policy Brief, Lowy Institute for Inter­ national Policy, October 2007) . Vienna Convention on Consular Relations, opened for signature 24 April 1963, 596 UNTS 261 (entered into force 19 March 1967) art 36(1)(b). The Draft Articles on Diplomatic Protection do, however, provide in art 19 that states ‘give due consideration to the possibility of exercising diplomatic protection, especially when a significant injury has occurred’ and transfer any reparations, making reasonable deductions: International Law Commission, Draft Articles on Diplomatic Protection, UN GAOR, 61st sess, Supp No 10, UN Doc A/61/10 (2006) art 19. Lord Johan Steyn, ‘Guantánamo Bay: The Legal Black Hole’ (2004) 53(1) International and Comparative Law Quarterly 1.

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the return of an Australian prisoner from another country.58 The litigation left open the possibility that Australian officials might be found to be liable for aiding and abetting torture by foreign officials if they have knowledge of, but do nothing to prevent, the torture of Australian prisoners.59 The case of David Hicks caused particular controversy because the Australian government, although it did make representations on his behalf, appeared to accept the validity of Hicks’s trial under the US Military Commissions established solely for the purpose of trying persons detained in connection with the ‘war on terror’.60 This contrasted with the stance adopted by the United Kingdom, which protested about the treatment of its citizens and successfully secured their release.61 Hicks had fought on the side of the Taliban against the Northern Alliance in Afghanistan and was captured, apparently, as he fled from the battlefield and attempted to enter Pakistan. He eventually entered a plea bargain with US authorities, pleading guilty to the charge of ‘providing material support for terrorism’ so as to receive a reduced sentence. Hicks was then transferred to Australia under a bilateral prisoner transfer agreement between the United States and Australia that was specifically entered into and implemented under Australian law in order to ensure the transfer of Australians convicted by the US Military Commissions. Under the plea agreement, Hicks, among other things, waived his right of appeal or to collateral attack on his conviction, including under Australian law. In 2010, Hicks lodged a communication with the UN Human Rights Committee alleging violations of the ICCPR by Australia (albeit through vicarious acts, including what was argued to be the effective adoption of the US conviction through the prisoner transfer agreement).62 The alleged violations included the prohibition on retrospective punishment, arbitrary 58

59

60

61

62

Hicks v Ruddock (2007) 156 FCR 574. See the discussion in Natalie Klein, ‘David Hicks, Stern Hu, Scott Rush, Jock Palfreeman and the Legal Parameters of Australia’s Protection of Its Citizens Abroad’ (2011) 35 Melbourne University Law Review 135, 142–3, 160. The case became moot when Hicks was returned to Australia. Habib v Commonwealth (2010) 183 FCR 62. The Court held that the act of state doctrine, under which the acts of foreign officials overseas are not to be ruled upon, did not preclude Habib’s action in Australian courts against Australian officials for their actions. See Natalie Klein, ‘David Hicks, Stern Hu, Scott Rush, Jock Palfreeman and the Legal Parameters of Australia’s Protection of Its Citizens Abroad’ (2011) 35 Melbourne University Law Review 135, 160. The case was eventually settled. Natalie Klein, ‘David Hicks, Stern Hu, Scott Rush, Jock Palfreeman and the Legal Parameters of Australia’s Protection of Its Citizens Abroad’ (2011) 35 Melbourne University Law Review 135, 140. Natalie Klein, ‘David Hicks, Stern Hu, Scott Rush, Jock Palfreeman and the Legal Parameters of Australia’s Protection of Its Citizens Abroad’ (2011) 35 Melbourne University Law Review 135, 140. David Hicks, ‘Communication to the UN Human Rights Committee’, communication in Hicks v Australia (20 September 2010) .

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detention, the right to a fair trial, and freedom from torture and other illtreatment. In February 2016, the Human Rights Committee released its views.63 Finding that Hicks was not within the effective power or control of Australia while detained in the United States, the Committee could not rule on matters such as the allegations of torture.64 However, it found that Australia had effectively endorsed the US legal proceedings through the transfer agreement.65 The Committee stated that Australia had not showed that ‘it did everything possible to ensure that the terms of the transfer arrangement that had been negotiated within the United States did not cause it to violate the Covenant’.66 Consequently, by detaining Hicks in Australia on the strength of the trial in the United States, Australia had violated art 9 of the Covenant.67 The year before, the US Court of Military Commission Review had found that Hicks’s waiver of appeal was invalid and that his conviction could not stand.68 The Court applied the precedent of Al Bahlul, in which the Court of Appeals for the District of Columbia Circuit held that ‘it was a plain ex post facto violation’ to try Al Bahlul for providing material support to terrorism.69 There were two strong dissents to the views of the Human Rights Committee in the Hicks communication.70 Of particular note is the dissenting opinion of Sir Nigel Rodley, who pointed out that diplomatic protection is a matter of discretion for the state of nationality, that the Committee failed to show what more Australia could have done to alter Hicks’s position, and that the viability of transfer arrangements and the benefits for prisoners could be undermined.71

63

64

65

66

67

68 69 70

71

Human Rights Committee, Views: Communication No 2005/2010, 115th Sess, UN Doc CCPR/C/115/D/2005/2010 (26 January 2015) (‘Hicks v Australia’). Human Rights Committee, Views: Communication No 2005/2010, 115th Sess, UN Doc CCPR/C/115/D/2005/2010 (26 January 2015) [4.6] (‘Hicks v Australia’). Human Rights Committee, Views: Communication No 2005/2010, 115th Sess, UN Doc CCPR/C/115/D/2005/2010 (26 January 2015) [4.9] (‘Hicks v Australia’). Human Rights Committee, Views: Communication No 2005/2010, 115th Sess, UN Doc CCPR/C/115/D/2005/2010 (26 January 2015) [4.10] (‘Hicks v Australia’). Human Rights Committee, Views: Communication No 2005/2010, 115th Sess, UN Doc CCPR/C/115/D/2005/2010 (26 January 2015) [4.10] (‘Hicks v Australia’). Hicks v United States of America (CMCR 13-004, 18 February 2015). Al Bahlul v United States, 767 F 3d 1, 29 (DC Cir, 2014). Human Rights Committee, Views: Communication No 2005/2010, 115th Sess, UN Doc CCPR/ C/115/D/2005/2010, Appendix I, individual opinion of Committee member Sir Nigel Rodley (dissenting); Appendix II, individual opinion of Committee member Dheerujlall Seetulsingh (dissenting) (‘Hicks v Australia’). Human Rights Committee, Views: Communication No 2005/2010, 115th Sess, UN Doc CCPR/C/115/D/2005/2010, Appendix I, individual opinion of Sir Nigel Rodley at [1] (point regarding diplomatic protection), [2] (point regarding Australia’s inability to affect the ultimate result), [3] (point regarding the value of transfer agreements) (‘Hicks v Australia’).

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III  ASYLUM AND REFUGEES IN INTERNATIONAL LAW [8.50]  While diplomatic protection of a citizen abroad involves the state reaching out to protect its citizens abroad, the concepts of asylum and refugee status relate to a non-citizen’s claim for protection by a foreign state in lieu of protection by the state of citizenship or habitual residence. Asylum has a venerable history in international law. Grotius, himself an exile, wrote in De jure belli ac pacis that ‘a place of settlement is not to be denied to foreigners who are expelled from their own country; provided that they submit to the constitutional government, and such other regulations as are required to avoid confusion’.72 However, as Vattel wrote, the right of asylum ‘is only an imperfect one relative to each individual country; for … every Nation has the right to refuse to admit an alien into its territory when to do so would expose it to evident danger or cause it serious trouble’.73 Indeed, grant of asylum came to be viewed in many parts of the world,74 especially the Anglophone common law world, as a right of the state, the main significance being that exercise of this right was not to be viewed as harmful to friendly relations with other states. Furthermore, in certain forms — such as the refugee ‘depots’ in France and the internment camps after the Second World War — some writers have discerned a tendency for asylum to be as much a device for protection of the state and its citizens from refugees as a place of safety for refugees.75 Australia’s practices of immigration detention for unauthorised arrivals and offshore processing are a variation on this theme. Diplomatic asylum (as opposed to territorial asylum) is also traditionally discretionary. It has been argued that diplomatic and consular personnel have obligations to asylum seekers under the Refugee Convention76 and/or human

72

73

74

75

76

Grotius on the Rights of War and Peace (William Whewell abridged trans, John W Parker, 1853) 75 (bk II ch II s XVI) [trans of: De jure belli ac pacis libri tres (first published 1625)]. E de Vattel, The Law of Nations or the Principles of Natural Law Applied to the Conduct and to the Affairs of Nations and of Sovereigns (Charles G Fenwick trans, Oceana Publications, 1964) bk I ch XIX [230] [trans of: Le droit des gens: ou Principes de la loi naturelle appliqués a la conduit et aux affaires des nations et des soverains (first published 1758)]. Latin America is a notable exception. See, eg, American Convention on Human Rights, adopted 22 November 1969, OAS Treaty Series No 36, (1970) 9 ILM 99 (entered into force 18 July 1978) art 22(7). Greg Burgess, Refuge in the Land of Liberty: France and Its Refugees, from the Revolution to the End of Asylum, 1787–1939 (Palgrave Macmillan, 2008) 213. See also Ranjana Khanna, ‘Asylum’ (2006) 41(3) Texas International Law Journal 471. Sir Elihu Lauterpacht and Daniel Bethlehem, ‘The Scope and Content of the Principle of Non-refoulement: Opinion’, in Erika Feller, Volker Turk and Frances Nicholson (eds), Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection (Cambridge University Press, 2003) 87 [114].

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rights treaties.77 However, a case brought by two asylum seekers who had escaped the now defunct Woomera detention centre and claimed protection from the British consulate in Melbourne pursuant to the Human Rights Act 1998 (UK) was unsuccessful.78 Although the English Court of Appeal found that the Act applied and that the asylum seekers had come within ‘jurisdiction’, the threat of indefinite detention was held not to be sufficient ‘to justify under international law, or require under the [European] Human Rights Convention, the grant of diplomatic asylum’,79 and it was decided that any mistreatment could be the subject of redress under Australian law.80 The decision may be open to criticism, given the documented link between indefinite detention and the development of mental illnesses resulting in violations of art 7 of the ICCPR.81 This is particularly true given the fact that both asylum seekers were children at the time. The UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment has opined that ‘within the context of administrative immigration enforcement, it is now clear that the deprivation of liberty of children based on their or their parents’ migration status is never in the best interests of the child, exceeds the requirement of necessity, becomes grossly disproportionate and may constitute cruel, inhuman or degrading treatment of migrant children’.82 While grant of asylum came to be regarded as discretionary, the events of the mid-20th century demanded a response to refugees that involved legally binding obligations. The term ‘refugee’ comes from the word refugie, adopted by the Protestant Huguenots when they fled France in 1685 after the revocation of the edict of Nantes (which had recognised substantial religious liberty).83 However, it was not until the 20th century that inter­national legal definitions of a refugee were agreed, because it was only in the early part of that century that 77

78 79 80 81

82

83

While disputing the claim by by Lauterpacht and Bethlehem (Sir Elihu Lauterpacht and Daniel Bethlehem, ‘The Scope and Content of the Principle of Non-refoulement: Opinion’, in Erika Feller, Volker Turk and Frances Nicholson (eds), Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection (Cambridge University Press, 2003)) that the Refugee Convention applies, Noll argues that the European Convention on Human Rights may impose obligations on embassies to grant a visa: Gregor Noll, ‘Seeking Asylum at Embassies: A Right to Entry under International Law?’ (2005) 17(3) International Journal of Refugee Law 542; European Convention on Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953). R (B) v Secretary of State for the Foreign and Commonwealth Office [2005] QB 643. R (B) v Secretary of State for the Foreign and Commonwealth Office [2005] QB 643, 676 [95]. R (B) v Secretary of State for the Foreign and Commonwealth Office [2005] QB 643, 676 [95]. Human Rights Committee, Views: Communication No 900/1999, 76th Sess, UN Doc CCPR/ C/76/D/900/1999 (28 October 2002) (‘C v Australia’). Juan E Méndez, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, UN Doc A/HRC/28/68 (5 March 2015) [80]. Saskia Sassen, Guests and Aliens (New Press, 1999) 35.

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control over national borders began to tighten.84 The cardinal legal obligation owed to a refugee — the obligation of non-refoulement or non-return to a place of persecution — is a partial exception to immigration controls. In 1933, the League of Nations enshrined a limited obligation of nonrefoulement — an obligation not to remove resident refugees — in art 3 of the Convention Relating to the International Status of Refugees.85 This convention applied to ‘Russian, Armenian and assimilated refugees, as defined by the Arrangements of May 12th, 1926, and June 30th, 1928’.86 During and after the Second World War, the world had to deal with millions of displaced persons. The International Refugee Organization was established in 1946 and replaced in 1950 by the United Nations High Commissioner for Refugees (‘UNHCR’), the statute for which contained a new definition of a refugee.87 The definition adopted in the UNHCR statute is almost identical to that contained in the 1951 Convention Relating to the Status of Refugees. In the Refugee Convention, as modified by the 1967 Protocol Relating to the Status of Refugees,88 a refugee is defined as a person outside his or her country of origin (more specifically, the country of nationality or, if the person is stateless, the country of habitual residence) owing to a well-founded fear of being persecuted for reasons of race, religion, nationality or membership of a particular social group or political opinion, who is unable, or unwilling, owing to the person’s fear, to return to or avail himself or herself of the protection of that country.89 The definition responds to a form of de facto statelessness — the denial of a state’s protection to a person on the basis of a characteristic that the person either cannot or should not be required to change.90 The Refugee Convention enshrines a Bill of Rights for refugees, imposing obligations of protection in the state of refuge. UNHCR also has a mandate to 84

85

86

87

88

89

90

Claudena Skran, ‘Historical Development of International Refugee Law’ in Andreas Zimmermann (ed), The 1951 Convention Relating to the Status of Refugees and Its 1967 Protocol: A Commentary (Oxford University Press, 2011) 3, 6. Convention Relating to the International Status of Refugees, adopted 28 October 1933, 159 LNTS 3663 (entered into force 13 June 1935). Convention Relating to the International Status of Refugees, adopted 28 October 1933, 159 LNTS 3663 (entered into force 13 June 1935) art 1. Statute of the Office of the United Nations High Commissioner for Refugees, GA Res 428(V) annex, UN GAOR, 5th session, 325th plen mtg, Supp No 20, UN Doc A/RES/428(V) (14 December 1950). Protocol Relating to the Status of Refugees, opened for accession 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967). Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) art 1A(2). Note that UNHCR’s statute does not include the ground ‘membership in a particular social group’, although it uses this category in practice. The UNHCR statute definition is also unfettered by temporal and geographical restrictions as art 6B of the statute does not include the dateline of 1 January 1951, UNHCR’s mandate is now effectively permanent, and UNHCR was always to have universal geographical scope of operation. James C Hathaway, The Law of Refugee Status (Butterworths, 1991) 160–1.

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protect refugees, as defined in its statute. However, it is reliant on donations in order to fund humanitarian assistance to refugees in emergency situations. Furthermore, its legal protection functions are necessarily limited. Unlike states, UNHCR does not have a territory upon which it may house refugees, so its protection functions focus upon the observance by states of refugee rights, much as an ambassador or consul seeks to protect the rights of citizens abroad. UNHCR tries to ensure that states parties to the Refugee Convention observe the rights of refugees set out in that document and it attempts to secure at least temporary refuge in non-party states. It also negotiates ‘durable solutions’ for refugees. There are three durable solutions towards which UNHCR works. In recent times, the most favoured durable solution has been voluntary repatriation to the country of origin, which assumes that refugee status is in fact no longer necessary. Local integration in a country of first asylum and permanent resettlement in a third country are the other two durable solutions. Resettle­ ment, which was most favoured in the period from the adoption of the Refugee Convention until the end of the Cold War, is again receiving emphasis as a solution in certain circumstances. Refugee status is conceptualised in the Refugee Convention and in the UNHCR statute as an inherently temporary (though indefinite) status and both instruments provide for the cessation of refugee status in certain circumstances. Refugee status exists only so long as there is a need for protection. For those states that are party to the Refugee Convention, protection of refugees means the observance of non-refoulement (contained in art 33), along with various other rights. These rights are frequently framed not in absolute terms, but on the basis of a deepening attachment between a refugee and the country of asylum, and also on the basis of the protection owed to other categories of foreigners (aliens generally, or most favoured foreigners, for example). Many of the gaps in protection for refugees resulting from the contingent standards of protection in the Refugee Convention are filled by general human rights law. Refugee status is therefore best envisaged as a stage in a process of migration which ends in a durable solution, and which may or may not involve citizenship of a new country.

A  The Legality of Migrating to Secure Protection [8.60]  The Refugee Convention is silent on the question of entry to state territory. This may be explained by the fact that, at the time of drafting, refugees were already admitted in many of the countries concerned, and also the states negotiating the treaty did not want to give up sovereign control over immigration. It is, however, difficult for those seeking to migrate in search of protection to do so in accordance with national immigration laws. This is one of the great and awful paradoxes of refugee law. The definition of a refugee may be conceptualised as requiring a person to migrate in order

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to seek protection, because one must already have crossed an international border in order to be a refugee. However, migration remains largely a matter of sovereign prerogative, meaning that it is frequently very difficult for refugees to seek the protection of another state without infringing domestic immigration laws. Refugees and migrants who cross national borders without the necessary paperwork (visas and so on) are often labelled in public discourse as ‘illegal’. They may have landed in a country of first asylum that is not a party to the Refugee Convention and that may therefore only tolerate refugees, treating them as unlawful immigrants and subjecting them to all the forms of discrimination that this entails. If they then move on to a country that is a party to the convention, they may still have to do so in contravention of national immigration laws and may be labelled as both ‘illegal’ and ‘economic’ migrants who have moved on for reasons of economic advancement rather than to secure protection. This has certainly been an observable trend in Australia. However, the reality is that national domestic laws do not provide sufficient legal mechanisms for refugee migration. For example, the process of applying for resettlement from a country of first asylum is not an option for many people. The world offers resettlement places for around 1 per cent of the global refugee population.91 Use of other lawful migration streams may also be difficult, as illustrated by Australian practice. Australia’s quota of places in its refugee and humanitarian migration program currently stands at 13,750 persons, which encompasses both those who have arrived spontaneously (with or without a visa) and those resettled from overseas. During 2017–18, there are to be 16,250 places, and in 2018–19, there are to be 18,750 places.92 In late 2015, the government announced that it would resettle an additional 12,000 Syrians and Iraqis.93 Applications for visas outside the refugee and humanitarian stream (for example, a tourist visa) will be scrutinised very closely. This is highlighted by the tragic case of a refugee father in Australia who lost his wife in childbirth and who wished to have his parents-in-law travel to Australia in order to meet their seriously ill grandchild. Their visas were refused because the Department of Immigration and Citizenship thought the Afghan Hazara couple might not return to their home in Quetta, Pakistan. According to the Department:

91

92

93

UNHCR, Global Trends 2011: A Year of Crises (UNHCR, 2012) 17; UNHCR, Resettlement: A New Beginning in a Third Country . Working Group on the Universal Periodic Review, Australian National Report, UN Doc A/ HRC/WG.6/23/AUST/1 (7 August 2015) [123]. Department of Immigration and Border Protection, Australian Government, Australia’s Response to the Syrian and Iraqi Humanitarian Crisis .

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The security situation in Baluchistan, particularly Quetta, is generally poor. The Hazaran community is specifically affected by sectarian killings … Since the year 2003, more than 260 people belonging to the Hazaran community in Quetta have been killed in targeted shootings and more than 1,000 injured. There’ve been no convictions for these killings so far.94 It is readily apparent that to require that a person migrate in order to seek protection but then to criminalise the process of migration would be to set up an unbearable contradiction. Analogously to the Pinochet case,95 where the House of Lords refused to recognise immunity for a former head of state accused of torture, given the requirement of official involvement in the definition of torture in the Convention against Torture,96 asylum seeking cannot be criminalised. Nor should international law merely tolerate it. To seek asylum is a lawful act. This is true even if it is pursued by means that may involve the technical breach of domestic immigration law, and even if it involves the use of services that have been criminalised by the international community — such as the services of people smugglers, who have played an increasingly controversial role in refugee journeys. Several international instruments confirm this reading of international law. To begin with, art 14 of the UDHR protects the right to seek asylum. Although formally non-binding, this document now provides one basis for Universal Periodic Review (‘UPR’) by the UN Human Rights Council — a process that covers every UN member state. The provision against penalties for unlawful entry or presence in art 31 of the Refugee Convention also confirms that entry in contravention of domestic immigration laws must not be penalised and that only necessary restrictions on movement may be imposed in such cases. Article 31 does contain some limitations — asylum seekers must have come ‘directly’ from a place of persecution and must ‘show good cause’ for their irregular presence. However, when it is considered that few of the states lying between refugee-generating countries and Australia are party to the convention, it is relatively easy to present the case that many unauthorised asylum seekers in Australia should not be penalised. Finally, the UN Protocol against the Smuggling of Migrants by Land, Sea and Air

94

95

96

Australian Broadcasting Corporation, ‘A Tragic Tale’, 7.30, 26 May 2011 (Sally Sara) . R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte (Amnesty International Intervening) [No 3] (1999) 2 All ER 97. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted 10 December 1984, 1465 UNTS 113 (entered into force 26 June 1987) art 1 (‘Convention against Torture’).

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(‘People Smuggling Protocol’)97 provides that smuggled migrants are not to be prosecuted for being smuggled (art 5) and that the Refugee Convention’s protections remain in place (art 19). However, the paradox at the heart of refugee law has not been openly confronted and, even if people have a right to migrate in search of protection that generates immunity from prosecution, this does not necessarily extend to people smugglers, whose activities have been defined as illegal under the People Smuggling Protocol. When an accused people smuggler attempted to argue that the reference in the Migration Act 1958 (Cth) to persons who have ‘no lawful right to come to Australia’ did not include asylum seekers, Parliament quickly passed amendments to ensure retrospectively that this interpretation would not stand.98

B  Refugee Status and Protection in Australia [8.70]  Australia participated in the drafting of the Refugee Convention and Australia’s accession, being the necessary sixth ratification, triggered the convention’s entry into force. However, it participated mainly as a country of resettlement, and it was not until the arrival of Vietnamese ‘boat people’ following the fall of Saigon (Ho Chi Minh City) that Australia adopted a proper refugee status determination system. Around 2000 boat people arrived directly by boat in Australia between 1976 and 1981. Australia also participated in a regional plan for refugees, the Comprehensive Plan of Action for Indochinese Refugees,99 by resettling Indochinese refugees. Section 36 of the Migration Act provides for ‘protection visas’. Section 36(2) states that it is a criterion for a protection visa that the applicant is ‘a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee’ or a person, also in Australia, who is a member of the same family unit of a person holding a protection visa. Protection visas are also available for cases requiring ‘complementary protection’ — namely, persons at real risk of ‘significant harm’, defined in s 36(2A) as arbitrary deprivation of life, the death penalty, torture and related forms of ill-treatment. Grant of a protection visa entails a procedure to determine who meets the criteria — a subject on which the Refugee Convention itself is silent. The accepted view is that national determination processes are simply declaratory 97

98 99

Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime, opened for signature 15 November 2000, 2241 UNTS 507 (entered into force 28 January 2004) (‘People Smuggling Protocol’). Migration Act 1958 (Cth) s 228B. Office of the United Nations High Commissioner for Refugees, International Conference on Indo-Chinese Refugees: Report of the Secretary-General, UN GAOR, 44th Sess, Provisional Agenda Item 111(c), UN Doc A/44/523 (22 September 1989).

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of refugee status rather than constitutive: that is, they recognise the fact that someone is a refugee, rather than making the person a refugee.100 Since the early 2000s, the process of applying for recognition as a refugee in Australia has been complicated by the policy of ‘excision’. Under this policy, certain territories, including Christmas Island, were not treated as part of Australia’s ‘migration zone’.101 Eventually, the entire country was effectively excised by creating a category of persons — ‘unauthorised maritime arrivals’ — who were treated in the same way as those arriving in the excised areas.102 As a result, unauthorised boat arrivals cannot apply for a visa as of right and have to rely on the Minister for Immigration and Border Protection to exercise his or her discretion in order to be permitted to apply for a protection visa.103 Authorised arrivals may apply for a protection visa as of right and may then have their applications reviewed de novo by the Refugee Review Tribunal. Until late 2011, unauthorised arrivals were subjected to a different ‘non statutory’ system which mimicked the procedure for authorised arrivals, but which generated some alarmingly low acceptance rates.104 Following the decisions of the High Court in Plaintiff M61/2010E v Commonwealth,105 which confirmed access to judicial review and procedural fairness, and Plaintiff M70/2011 v Minister for Immigration and Citizenship106 (described below), the Gillard government abandoned the dual system in late 2011. However, in 2014, in order to deal with the large backlog of undecided claims by unauthorised boat arrivals that had been created by various shifting governmental policies, a ‘fast-track’ system of review was introduced, which applies to unauthorised maritime arrivals who arrived in Australia on or after 13 August 2012 and before 1 January 2014.107 Under this fast-track system, the new Immigration Assessment Authority — which is within the Refugee and Migration Division of the Administrative Appeals Tribunal, but which is comprised of public servants — sits on appeals, which are generally not conducted via an interview with the applicant for protection, but by reviewing the documentation available from the first-instance decision-maker (an official from the Department of Immigration and Border Protection).108 100

101 102

103

104 105 106 107 108

United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1961 Protocol Relating to the Status of Refugees, HCR/IP/4/Eng/Rev.1 (2nd ed, UNHCR, Geneva 1992) [28]. See the definition of ‘excised offshore place’, Migration Act 1958 (Cth) s 5. Migration Act 1958 (Cth) s 5AA, inserted by the Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2013 (Cth). See Migration Act 1958 (Cth) s 46A and the power in s 195A, which enables the Minister to issue a visa to an immigration detainee even if an application has not been made. Paul Maley, ‘Successful Asylum Claims Plummet’, The Australian (Sydney), 21 July 2010, 3. Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319. Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144. See Migration Act 1958 (Cth) pt 7AA. Migration Act 1958 (Cth) s 473DB.

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The excision policy was initially designed to permit ‘processing’ of refugee claims outside Australian territory in countries that agreed to house refugees. Australia hoped to secure the resettlement of these refugees in other countries. (See the discussion of the arrival of the Tampa and the adoption of the ‘Pacific Solution’ below.) The maintenance of a dual system within Australian territory makes little sense given that the inquiry — whether the person is a refugee — is the same in all cases, regardless of the mode of arrival, and it is important to reach a consistently sound answer given the consequences for the persons involved. Although it gives the power to grant a visa, the Migration Act has never in so many words implemented the obligations of the Refugee Convention (nonrefoulement and other rights contained in arts 2 through 36 of the convention). Providing the refugee obtains a permanent protection visa, the refugee stands in almost the same position as citizens with respect to the protection of rights. This is, on the whole, rather more desirable than being subjected to the qualifications in the Refugee Convention regarding attachment to territory, or relative standards of treatment as compared with certain foreigners.109 However, at various times, Australia has afforded only temporary protection to some refugees. Presently, unauthorised maritime arrivals are only entitled to temporary protection visas.110 Since 1999, the Act has included provisions regarding persons to whom Australia does not owe protection obligations. In particular, s 36(3) says that ‘Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national’.111 109

110

111

It is, however, undesirable that nobody within the territory or jurisdiction of Australia may rely on the protections granted by a national Bill of Rights, as Australia does not have one. Migration Act 1958 (Cth) s 35A; Migration Regulations 1994 (Cth) sch II, subclasses 785 (temporary protection), 790 (safe haven enterprise). The courts have interpreted the Migration Act 1958 (Cth) s 36(3) to mean a legally enforceable right. See Minister for Immigration and Multicultural Affairs v Applicant C (2001) 116 FCR 154; Kola v Minister for Immigration and Multicultural Affairs (2002) 120 FCR 170. Lower court jurisprudence concerning the meaning of ‘protection obligations’ in s 36(2), which had been interpreted so as to incorporate the safe third-country practice, was overruled by the High Court in NAGV v Minister for Immigration, Multicultural and Indigenous Affairs (2005) 222 CLR 161. For discussion, see Mary Crock and Laurie Berg, Immigration Refugees and Forced Migration (Federation Press, 2011) 414–19; Andrea Hadaway, ‘Safe Third Countries in Australian Refugee Law: NAGV v Minister for Immigration, Multicultural and Indigenous Affairs’ (2005) 27(4) Sydney Law Review 727. See also the analysis of the jurisprudence prior to the High Court’s ruling in Penelope Mathew, ‘Safe for Whom? The Safe Third Country Finds a Home in Australia’ in Susan Kneebone (ed), The Refugees Convention 50 Years On: Globalisation and International Law (Ashgate, 2003) 133.

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The addition of s 36(3) to the Act draws attention to a common perception that Australia’s isolation should shelter it from refugees, as well as a perception that as a wealthy liberal democracy, Australia may be a ‘magnet’ for persons who should, it is argued by many politicians and members of the public, seek shelter elsewhere. Unauthorised boat arrivals have provoked a particularly hostile reaction. This occurred to some extent during the Vietnamese ‘wave’112 of boat people,113 but perhaps even more so with the arrival of the second wave of boat people in the late 1980s — when the policy of mandatory detention for unauthorised arrivals by sea was first introduced — and the third and fourth waves of the late 1990s and late 2000s. Controversially, the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (‘Legacy Act’) removed most of the references to the Refugee Convention and protocol and instead attempted to establish a statutory definition of a refugee. Building on previous amendments — which had altered such things as the Australian understandings of ‘particular social group’114 and the relationship between persecution and the convention grounds of race, religion, nationality, membership of a particular social group, and political opinion115 — the Legacy Act made further changes, such as altering the understanding of when a refugee could be required to relocate within the country of origin.116 Furthermore, the Legacy Act amended the Maritime Powers Act 2013 (Cth) in order to ensure that removal by Australian officials of persons found on vessels to other places can occur without regard to Australia’s international obligations.117 This was a pre-emptive response to a High Court challenge concerning an intercepted boatload of Sri Lankan asylum seekers whom the Australian government wished to return to India.118 The deliberate attempt to distance Australian law from developments in international law occurring through foreign jurisprudence or decisions by international bodies such as the UN Human Rights Committee may, depending on what the courts make of the legislation, simply add to the 112

113

114 115

116 117 118

I use the term ‘wave’ because it is the commonly used terminology. Some commentators argue that the term connotes a deluge; however, I think it should be understood as connoting the unfortunate but natural ebb and flow that accompanies calamities around the world. See Nancy Viviani, The Long Journey: Vietnamese Migration and Settlement in Australia (Melbourne University Press, 1984). Now found in the Migration Act 1958 (Cth) s 5K. The Act has for some years required that a convention ground must be ‘the essential and significant reason’ for the persecution. See now Migration Act 1958 (Cth) s 5J(4). See Migration Act 1958 (Cth) s 5J(1)(c). Maritime Powers Act 2013 (Cth) s 75A. For the High Court’s ruling that the detention at sea of this group of asylum seekers was lawful as a matter of Australian law, see CPCF v Minister for Immigration and Border Protection (2015) 89 ALJR 207.

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phenomenon of the ‘asylum lottery’,119 where different decisions concerning similar refugee cases are made in different parts of the world, and even by different decision-makers within one country. This lottery effect contributes to the unauthorised movement of refugees as they seek a more understanding forum for their claims for protection. A country that was truly concerned with the loss of life that eventuates from dangerous journeys would seek to harmonise its jurisprudence with that of other countries and international bodies and would apply the Refugee Convention in the way that all human rights instruments should be applied — pro homine — that is, reflecting the most protective position for human beings, as opposed to the most narrow and ungenerous position. However, while much of the rhetoric of Australian politicians concerning boat arrivals has focused on saving lives at sea, the deliberate distancing of Australian law from international law makes it abundantly clear that these politicians are mostly concerned with ­unauthorised arrivals to Australia, as opposed to saving lives wherever they may be at risk.

C Mandatory Detention: A Reaction to the Second Wave of Boat People [8.80]  As at the time of writing, the mandatory detention policy is still in place, although it has changed a little since it was first enacted. The key legislative provisions underpinning the policy today are ss 189 and 196 of the Migration Act, which together provide that unlawful non-citizens within, or seeking to enter, the migration zone must be detained until deported, removed or granted a visa. It is possible to gain release from detention on a bridging visa in certain circumstances, and since 2005 another discretionary option for release from immigration detention has been in place. Under s 197AB of the Migration Act, the Minister may determine on the basis of the public interest that an unauthorised arrival may reside in a place other than immigration detention. However, this is known as ‘community detention’ and s 197AC(1) provides that the Migration Act and regulations apply ‘as if the person were being kept in immigration detention’. In fact, community detention involves few restrictions on the liberty of those persons residing there,120 bringing into question 119

120

On the lottery-like nature of decision-making, see Jaya Ramji-Nogales, Andrew I  Schoenholtz and Philip G Schrag, Refugee Roulette: Disparities in Asylum Adjudication and Proposals for Reform (New York University Press, 2009). The main restriction on people’s liberty in a negative sense is that they must reside at a specified address and report to the authorities. If a person wishes to stay overnight somewhere else or have a friend stay with him or her, the person must notify the authorities. Joint Standing Committee on Migration, Parliament of Australia, Immigration Detention in Australia, Community-Based Alternatives to Detention, Second Report into Immigration Detention in Australia (2009) 22–3.

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its characterisation as an alternative form of ‘detention’, as opposed to an alternative to detention.121 Residents in community detention may move about the community freely without being accompanied by an official. However, community detention has not been activated quickly upon the arrival of asylum seekers, a fact consistently criticised by the Australian Human Rights Commission over the period of 2009–11. One of the issues facing the government is the chronic shortage of housing generally in Australia, a state of affairs that has itself been criticised, in particular by the UN Special Rapporteur on Housing.122 The mandatory detention policy has been very controversial. Article 31 of the Refugee Convention prohibits unnecessary restrictions on freedom of movement on refugees who have arrived in contravention of domestic immigration law, or who are now present unlawfully (because their visa has lapsed, for example). The right to liberty is also protected by art 9 of the ICCPR, which prohibits ‘arbitrary detention’. The UN Human Rights Committee has found Australia to be in violation of art 9 on a number of occasions. One early successful communication concerning art 9 of the ICCPR, A v Australia,123 concerned a Cambodian man held in detention for four years as he negotiated the asylum system. Mr A was eventually permitted to stay in Australia. The crucial passage of the Committee’s views is as follows: The Committee observes … that every decision to keep a person in detention should be open to review periodically so that the grounds justifying the detention can be assessed. In any event, detention should not continue beyond the period for which the State can provide appropriate justification. For example, the fact of illegal entry may indicate a need for investigation and there may be other factors 121

122

123

The legal term of art is not ‘detention’ but ‘deprivation of liberty’, which is fact-specific, as illustrated by case law involving control orders placed on terrorist suspects in the United Kingdom, some of which amounted to house arrest, and which required the judiciary to consider many different factors and the overall impact on the person concerned: Secretary of State for the Home Department v JJ [2008] 1 AC 385. Under art 4 of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, a place of detention is a place where a person is deprived of his or her liberty, and a deprivation of liberty is described as ‘any form of detention or imprisonment or the placement of a person in a public or private custodial setting which that person is not permitted to leave at will by order of any judicial, administrative or other authority’ (emphasis added): Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 4 February 2003, 2375 UNTS 237 (entered into force 22 June 2006). At the time of writing, the protocol had 80 parties, and Australia had signed, but not yet ratified, it. Miloon Kothari, Report of the Special Rapporteur on Adequate Housing as a Component of the Right to an Adequate Standard of Living, Mission to Australia, UN Doc A/HRC/4/18/Add.2 (11 May 2007). Human Rights Committee, Views: Communication No 560/1993, 59th Sess, UN Doc CCPR/ C/59/D/560/1993 (30 April 1997) (‘A v Australia’).

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particular to the individual, such as the likelihood of absconding and lack of cooperation, which may justify detention for a period. Without such factors detention may be considered arbitrary, even if entry was illegal. In the instant case, the State party has not advanced any grounds particular to the author’s case, which would justify his continued detention for a period of four years, during which he was shifted around between different detention centres. The Committee therefore concludes that the author’s detention for a period of over four years was arbitrary within the meaning of article 9, paragraph 1.124 During the years of the Howard government (1996–2007), the official Australian response to A v Australia and the many subsequent decisions of the Human Rights Committee involving the mandatory detention policy was that the Human Rights Committee was wrong.125 The approach of the (Labor) governments from 2007 to 2013 was to point out the ways in which Australia is compliant with the ruling in A v Australia. For example, in a statement to the UN Human Rights Council following the visit in 2011 of the UN High Commissioner for Human Rights, the Australian government defended the mandatory detention policy as follows: In Australia, mandatory detention is based on a person’s unauthorised arrival, not on seeking asylum. Of the current caseload of approximately 15,300 asylum seekers whose status is yet to be determined, more than 70 per cent remain in the community. The length and conditions of detention are subject to constant and regular review. The UN Human Rights Committee’s Final Views in A v Australia (Communication No 560/1993) states — and I quote — ‘there [is] no basis for the claim that it is per se arbitrary to detain individuals requesting asylum … nor [is] there a rule of customary international law which would render all such detention arbitrary’.126 Similar statements were made in Australia’s official response to the process of UPR in 2011.127 These statements suggest that a mandatory detention 124

125

126

127

Human Rights Committee, Views: Communication No 560/1993, 59th Sess, UN Doc CCPR/ C/59/D/560/1993 (30 April 1997) [9.4] (‘A v Australia’). Report of the Human Rights Committee, UN GAOR, 53rd sess, Supp No 40, UN Doc CCPR/A/53/40, vol 1 (1998) [491]. Update by the High Commissioner, Statement by Australia, Human Rights Council, 17th sess (30 May 2011) . Report of the Working Group on the Universal Periodic Review, Australia, Addendum, Views on Conclusions and/or Recommendations, Voluntary Commitments and Replies by the State under Review, UN Doc A/HRC/17/10/Add.1 (31 May 2011) 9 (recommendation 127). Australia’s national report for the purposes of UPR in 2015 simply notes the possibility of judicial review, without acknowledging that such review will only confirm the legality of detention under Australian law, and various efforts to reduce the number of children in detention. See Working Group on the Universal Periodic Review, Draft Report: Australia, UN Doc A/HRC/WG.6/23/AUS/L.11 (11 November 2015) [135]–[138]. It is notable that many states asked critical questions concerning Australia’s performance with regard to the treatment of refugees and asylum seekers during the 2015 UPR.

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policy for unauthorised arrivals is not arbitrary per se, and that the introduction of review by the Department of Immigration and the Commonwealth Ombudsman has been sufficient to deal with the concerns of the Committee about indefinite or prolonged detention.128 However, art 9(4) of the ICCPR provides for review of the legality of detention by a court, and the Human Rights Committee has interpreted that to mean review as a check on arbitrary detention in the international legal sense. Any person who seeks review by the Australian judiciary will meet with the obstacles posed by ss 189 and 196 of the Migration Act. Review in these circumstances is meaningless, because the court is only empowered to confirm that an unauthorised arrival is being detained under domestic law. Meaningful review requires a basis upon which the courts may order release from detention for any particular individual. This Australia does not have.129 What Australia does have are various exceptions to mandatory detention, such as bridging visas and community detention, which have been limited in their application to unauthorised boat arrivals in recent years. Australia’s statements to the UN in 2011 placed far too much emphasis on the acknowledgement in A v Australia that detention of asylum seekers is not arbitrary per se. Of course, it may be possible to detain an asylum seeker initially if he or she arrives without a visa: in Bakhtiyari v Australia,130 the initial period of detention was found to be not arbitrary, only ‘undesirable’. As acknowledged in A v Australia, there may be a need to investigate the circumstances and, if there are circumstances particular to the individual — such as likelihood of absconding — then detention can be justified.131 Australia is required to consider whether there are less restrictive means of achieving the government’s aims. In C v Australia,132 for example, the Committee expressly mentioned reporting obligations, sureties or other conditions. In a communication involving 31 Sri Lankans and one Rohingyan asylum seeker who had all been given adverse security assessments by the 128

129

130

131

132

Migration Act 1958 (Cth) pt 8C enshrines the procedure concerning review by the Ombudsman where a person has been detained for two years or more. In addition, the Department of Immigration and Border Protection has a non-statutory review function every three months, while the Ombudsman has a non-statutory six-monthly review function. The High Court confirmed that a stateless Palestinian could be held indefinitely in Al-Kateb v Godwin (2004) 219 CLR 562. In Plaintiff M47/2012 v Director-General of Security (2012) 251 CLR 1, the majority judges did not have to decide whether this case should be overturned. Human Rights Committee, Views: Communication No 1069/2002, 79th Sess, UN Doc CCPR/C/79/D/1069/2002 (6 November 2003) (‘Bakhtiyari v Australia’). Human Rights Committee, Views: Communication No 560/1993, 59th Sess, UN Doc CCPR/C/59/D/560/1993 (30 April 1997) [9.4] (‘A v Australia’) . Human Rights Committee, Views: Communication No 900/1999, 76th Sess, UN Doc CCPR/C/76/D/900/1999 (28 October 2002) (‘C v Australia’). For discussion of these and other cases, see Matthew Stubbs, ‘Arbitrary Detention in Australia: Detention of Unlawful Non-Citizens under the Migration Act 1958 (Cth)’ (2006) 25 Australian Year Book of International Law 273.

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Australian Security Intelligence Organisation, the details of which were not, for security reasons, shared with the asylum seekers or their lawyers, the Human Rights Committee ruled that both the initial detention pursuant to Australia’s mandatory detention policy and the continued detention following the adverse but confidential security assessments were arbitrary.133 The Committee underlined that detention for an ‘initial brief period in order to document their entry, record their claims and determine their identity if it is in doubt’ is permissible.134 Beyond that, however, ‘particular reasons specific to the individual, such as an individualised likelihood of absconding, danger of crimes against others, or risk of acts against national security’ were necessary.135 There must be a case-by-case assessment, less invasive means of achieving the state’s goals must be considered, and periodic re-evaluation and judicial review must be available.136 Alternatives to detention can and should be considered at the point of arrival, not just after detention has commenced. There is now a small body of research showing that alternatives to the detention of unauthorised arrivals are workable in practice.137 While the Labor government did introduce a Bill to limit the use of mandatory detention,138 it lapsed with the federal election in 2010, and in 2011 the Senate Legal and Constitutional Committee recommended against the adoption of a private senator’s Bill introduced by Greens senator Sarah Hanson-Young, which sought to change from the mandatory immigration detention system to a system of judicially monitored immigration detention.139 At the time of writing, Australia still had not ratified the Optional Protocol to the Convention against Torture,140 which would enable visits to all places of detention under Australia’s jurisdiction and control by 133

134

135

136

137

138 139

140

Human Rights Committee, Views: Communication No 2094/2011, 108th Sess, UN Doc CCPR/C/108/D/2094/2011 (28 October 2013). Human Rights Committee, Views: Communication No 2094/2011, 108th Sess, UN Doc CCPR/C/108/D/2094/2011 (28 October 2013) [9.3]. Human Rights Committee, Views: Communication No 2094/2011, 108th Sess, UN Doc CCPR/C/108/D/2094/2011 (28 October 2013) [9.3]. Human Rights Committee, Views: Communication No 2094/2011, 108th Sess, UN Doc CCPR/C/108/D/2094/2011 (28 October 2013) [9.3]. Alice Edwards, ‘Back to Basics: The Right to Liberty and Security of the Person and “Alternatives to Detention” of Refugees, Asylum-Seekers, Stateless Persons and Other Migrants’ (Legal and Protection Policy Research Series, PPLA/2011/01.Rev.1, UNHCR, April 2011); International Detention Coalition, There Are Alternatives: A Handbook for Preventing Unnecessary Immigration Detention (International Detention Coalition, 2011). Migration Amendment (Immigration Detention Reform) Bill 2009 (Cth). Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Migration Amendment (Detention Reform and Procedural Fairness) Bill 2010 (2011) . Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 4 February 2003, 2375 UNTS 237 (entered into force 22 June 2006).

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the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

D The Third (and Fourth?) Wave of Boat People: Switching Australia’s Protective Response Off, On and Off Again [8.90]  The year 1999 marked another turbulent point in Australia’s refugee policies as a new wave of boat people began to arrive — this time emanating from Iraq and Afghanistan. Protection visas were made a temporary class of visa for unauthorised arrivals. This may be viewed as a form of penalisation for the mode of arrival, in contravention of art 31 of the Refugee Convention, as well as a violation of the right to equal protection in art 26 of the ICCPR. While refugee protection is inherently temporary, it is also inherently indefinite. Temporary protection visas, or ‘TPVs’, are problematic because they do not empower people to get on with their lives in Australia. In particular, the temporary nature of the visa means that refugees cannot apply to have their families come to live with them in Australia. This could constitute a violation of arts 17 and 23 of the ICCPR, which protect the right to family life. The policy may also have prompted some families to attempt to join their relatives using the services of people smugglers.141 The role of people smugglers has been a focus of Australian policymaking since the late 1990s, as ‘boat people’ came from outside the immediate South-East Asian region, entering several transit countries such as Pakistan, Malaysia and Indonesia because of relatively porous borders, and then making the final leg of the journey to Australia by boat. The government attempted to deal with the phenomenon through a new set of amendments to the Migration Act entitled ‘amendments to prevent forum-shopping’. They included s 36(3) of the Migration Act (discussed above) and were accompanied by interception powers designed to enable the extraterritorial enforcement of Australia’s immigration law, particularly with respect to ‘mother ships’, which remained outside Australian waters and offloaded passengers on small boats that would then enter Australian waters.142 However, once within Australian territorial waters, asylum seekers could not in fact be sent ‘back to where they came from’.143 ‘Chain 141

142

143

Former Minister for Immigration Senator Chris Evans, and numerous refugee advocates, have made this argument. See Janet Phillips and Harriet Spinks, ‘Boat Arrivals in Australia since 1976’ (Background Note, Parliamentary Library, Parliament of Australia, 2011) . For discussion, see Penelope Mathew, ‘Safe for Whom? The Safe Third Country Finds a Home in Australia’ in Susan Kneebone (ed), The Refugees Convention 50 Years On: Globalisation and International Law (Ashgate, 2003) 133. The commonly used expression ‘Go back to where you came from’ famously became the title of a reality-television style program aired by SBS in which six Australians made typical refugee journeys in reverse: SBS, Go Back to Where You Came From . There have since been two further programs in this series.

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refoulement’ — that is, return to a place of persecution by returning someone to a country of transit, which then returns the person to his or her country of origin — is prohibited by art 33 of the Refugee Convention, and most transit countries are not party to the Refugee Convention, will not accept asylum seekers back, and have no legal obligation to do so. Research has shown that it is precisely the uncertainty of finding meaningful protection in transit countries that has prompted the journeys of asylum seekers to Australia in the first place.144 In 2001, the arrival of the Tampa provoked a new set of amendments. The Tampa was a Norwegian freighter that rescued 433 boat people from the Indian Ocean on 26 August 2001. Prime Minister Howard refused to bow to the realities of the situation and allow the Tampa asylum seekers to set foot on Australian soil, declaring that ‘we decide who comes into [Australia] and the circumstances in which they come’.145 New amendments to the Migration Act were introduced that permitted not only interception but also transfer of persons to other countries,146 and financial incentives were offered to Nauru and PNG in order to ensure that people were taken to somewhere other than Australia where their claims would be heard while Australia attempted to negotiate final destinations in third countries. These arrangements were known as the ‘Pacific Solution’.147 While it is theoretically possible to hear the claims of asylum seekers in any place, the practice of offshore processing raises many legal and practical problems. By removing persons to another country, Australia divested them of rights to the standard of refugee status determination available in Australia — namely, access to independent merits review by the Refugee Review Tribunal and access to judicial review. It was thought appropriate to offer the same standard of refugee status determination as UNHCR would be able to offer, which does include merits review but, of course, only by another UNHCR officer. (Indeed, UNHCR took responsibility for some of the initial processing under the Pacific Solution.) The problem with offering only what is perceived as the bare minimum of process is that if mistakes are made and a person who meets the definition of a refugee is sent home, Australia has violated the Refugee Convention. The Edmund Rice Centre documented

144

145

146

147

Human Rights Watch, By Invitation Only: Australian Asylum Policy, vol 14, no 10(C) (December 2002). This was Prime Minister Howard’s slogan in the 2001 Australian election. See Michael Gordon, ‘Another Case of Truth Overboard?’, The Age (online), 15 November 2003, . These were introduced originally as s 198A of the Migration Act 1958 (Cth) — see the discussion of offshore processing and amendments following a High Court challenge later in this chapter — and s 245F(8) and (9). For a discussion of the amendments, see Penelope Mathew, ‘Australian Refugee Protection in the Wake of the Tampa’ (2002) 96 American Journal of International Law 661.

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such cases.148 Moreover, access to lawyers, and even to officials of the Department of Immigration, was difficult.149 Another important issue is liberty. Just as unauthorised asylum seekers have been detained within Australian territory, asylum seekers were held in detention on Nauru and in PNG. Nauru eventually permitted asylum seekers to move around the island, subject to a curfew — a situation that could still constitute an undue restriction on liberty. Those determined to be refugees remained in limbo because Australia initially refused to resettle them. At the end of the day, around 61 per cent of those resettled under the Pacific Solution (itself a figure of around 70 per cent of all persons detained under the Pacific Solution) were resettled in Australia.150 Australia cannot escape liability as a matter of international law for arbitrary detention of asylum seekers and refugees under the Pacific Solution.151 It may be argued either that these asylum seekers remained within the jurisdiction of Australia152 or, at the very least, that Australian funding for the detention meant that Australia retained some responsibility as a matter of international law.153 Either way, the governing principle is that a state cannot use another state in order to do what it cannot do on its own territory. The failure to offer ‘resettlement’ to refugees caught up in the Pacific Solution exploits silences and express limitations within the Refugee 148

149

150

151

152

153

Edmund Rice Centre, Deported to Danger II: The Continuing Study of Australia’s Treatment of Rejected Asylum Seekers (September 2006). For a full account of problems such as lack of independent legal advice, poor attitudes on the part of decision-makers, and the impact of detention, see Susan Metcalfe, The Pacific Solution (Australian Scholarly Publishing, 2010). C Evans (Minister for Immigration and Citizenship), ‘Last Refugees Leave Nauru’ (Media Release, 8 February 2008) . The situation with respect to Australian domestic law is, however, different. A challenge to detention in Nauru before the High Court of Australia failed: Plaintiff M68-2015 v Minister for Immigration and Border Protection (2016) 90 ALJR 297. This analysis is adopted by Savitri Taylor: Savitri Taylor, ‘The Pacific Solution or a Pacific Nightmare? The Difference between Burden Shifting and Responsibility Sharing’ (2005) 6(1) Asian-Pacific Law and Policy Journal 1. See also Mary Crock, ‘Australia’s Tampa Incident: The Convergence of International and Domestic Refugee and Maritime Law in the Pacific Rim’ (2003) 12 Pacific Rim Law and Policy Journal 49; Angus Francis, ‘Bringing Protection Home: Healing the Schism between International Obligations and National Safeguards Created by Extraterritorial Processing’ (2008) 20(2) International Journal of Refugee Law 273. See Penelope Mathew, ‘Legal Issues Concerning Interception’ (2003) 17 Georgetown Immigration Law Journal 221, 244–8. The Parliamentary Joint Committee on Human Rights found that Australia could be liable either because it exercised effective control, or on another basis of state responsibility, whether by aiding or abetting or through the joint supervisory arrangements with respect to the agreements. See Parliamentary Joint Committee on Human Rights, Examination of Legislation in Accordance with the Human Rights (Parliamentary Scrutiny) Act 2011: Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 and Related Legislation, 9th report of 2013 (June 2013) 2.55–2.58.

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Convention — namely, the lack of an express right of entry under the Refugee Convention; the fact that, unlike general human rights instruments, the Refugee Convention often requires a certain level of attachment to state territory before rights apply; and the fact that durable solutions are not formally enshrined in the Refugee Convention. However, it is doubtful that the drafters of the convention intended the lack of a right to entry or the various levels of attachment to state territory (simple presence, lawful presence, lawful stay and so on) to create a second-class category of refugees who could be ‘warehoused’, to use the modern term for containment of refugees in camps and other unresolved situations. In any event, the Refugee Convention relates to the status and protection of refugees, not enforced lack of status and minimal protection, and a reading of the convention in good faith would allow refugees to gradually acquire the rights envisaged for them as they remain on state territory. It is not a good faith reading of the convention to keep refugees outside the territory of the state, but within the state’s control, in order to deny refugees the possibility of acquiring the relevant attachment to state territory. The first iteration of the Pacific Solution was formally wound up in 2007, having cost Australian taxpayers $1 billion and having caused significant psychological distress to many asylum seekers.154 However, an increase in boat arrivals during 2009–10 resulted in various new or recycled proposals for the transfer of refugees, either for processing or on a permanent basis, and, finally, the revival of the Pacific Solution itself. In the lead-up to the federal election in 2010, Prime Minister Gillard suggested that a regional processing centre should be established, probably on Timor-Leste. Timor-Leste did not agree to host the centre. The government also considered reopening the centre on Manus Island in PNG. The opposition suggested that a centre on Nauru be re-established, but the Gillard government resisted this, citing Nauru’s status at the time as a non-party to the Refugee Convention and protocol. To complicate the picture, in June 2011, Nauru became a party to the convention and protocol. PNG is a party to the convention and protocol, but it has significant reservations — in particular, relating to liberty — though in 2008 it became party to the ICCPR with no reservations. Being a party to the convention was apparently not a prerequisite when the Gillard government suggested that 800 unauthorised asylum seekers would be taken to Malaysia, while 4000 UNHCR-recognised refugees in Malaysia would be accepted for resettlement in Australia.155 Legally, these options raise similar problems, including questions regarding standards of refugee status determination and refugee protection and access to durable solutions. The Malaysia plan involved the possibility of 154

155

Kazimierz Bem et al, A Price Too High: The Cost of Australia’s Approach to Asylum Seekers (Oxfam and A Just Australia, 2007). For more discussion of this period, see Penelope Mathew, ‘Anywhere but Here: Australia and Boat People’ (2011) 1 Migration Australia 20.

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sending asylum seekers to a country that normally treats asylum seekers as illegal immigrants; where they cannot work legally; and where they may be detained and caned for violations of immigration law. As with other cases in which torture or inhuman or degrading treatment or punishment is alleged, reliance on diplomatic assurances that this ill-treatment will not occur is highly controversial;156 however, the government entered into a memorandum of understanding with Malaysia157 concerning the return of the 800, according to which Malaysia would grant certain protections. These were not adequate in the view of many,158 and the memorandum of understanding was expressly acknowledged by its own terms as a non-binding arrangement.159 On the basis of this non-binding arrangement, the Minister for Immigration and Citizenship declared Malaysia as a safe third country to which people could be sent under former s 198A of the Migration Act, the same provision that had been used in respect of Nauru and PNG during the Pacific Solution. Unlike the declarations underpinning the Pacific Solution, the Minister’s declaration with respect to Malaysia was challenged in the High Court. At the time of the High Court’s decision, s 198A of the Migration Act provided that the Minister could declare in writing that a particular country: (i) provides access, for persons seeking asylum, to effective procedures for assessing their need for protection; (ii) provides protection for persons seeking asylum, pending determination of their refugee status; (iii) provides protection to persons who are given refugee status, pending their voluntary repatriation to their country of origin or resettlement in another country; and (iv) meets relevant human rights standards in providing that protection. 156

157

158

159

For a discussion of authorities in a case subsequent to the High Court’s decision in Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144, in which a memorandum of understanding containing such assurances has been viewed as acceptable by the European Court of Human Rights (although the final result was that the applicant could not be deported), see Othman v United Kingdom (European Court of Human Rights, Fourth Section, Application No 8139/09, 17 January 2012). Arrangement between the Government of Australia and the Government of Malaysia on Transfer and Resettlement (25 July 2011) reprinted at . See also the Operational Guidelines to Support Transfers and Resettlement, in annex A to the MOU . Michelle Foster and Jason Pobjoy, ‘A Failed Case of Legal Exceptionalism? Refugee Status Determination in Australia’s “Excised” Territory’ (2011) 23 International Journal of Refugee Law 583, 625–30; Australian Refugee Law Academics, Submission No 25 to Senate Legal and Constitutional Committee, Parliament of Australia, Australia’s Agreement with Malaysia in Relation to Asylum Seekers, 15 September 2011. Arrangement between the Government of Australia and the Government of Malaysia on Transfer and Resettlement (25 July 2011) cl 16, reprinted at .

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By a majority of six to one, the Court found that legally binding obligations on the part of the putative safe third country, under inter­ national law or domestic law, were essential in order for the Minister to make the declaration.160 As Malaysia is not a party to the Refugee Convention or protocol and has no domestic asylum procedures of its own, this essential element was not satisfied. The question as to whether a majority would also examine the facts on the ground — that is, whether the laws operated in practice to guarantee the necessary protection — was not decided, although it is clear that two judges, French CJ and Kiefel J, were concerned by the lack of effective protection in fact.161 As far as judicial review is concerned, it is far easier for an Australian court to establish the lack of international and foreign laws as a matter of fact than it is to establish what the situation is on the ground and the joint majority opinion authored by Gummow, Hayne, Crennan and Bell JJ simply did not need to examine that matter in order to decide the case.162 Upon receipt of advice from the Solicitor-General that it would not presently be possible to proceed with offshore options involving Malaysia or PNG or Nauru,163 the government attempted to amend the Migration Act — but without success, as the opposition had committed itself to Nauru as the appropriate offshore option. As a result, the government decided that it would return to the pre-Tampa situation, where all asylum seekers had access to the Refugee Review Tribunal and the courts, and that bridging visas would be used in order to allow some asylum seekers to have their claims heard while living in the community.164 As boats continued to arrive and the opposition continued to blame the Labor government’s changes in policy for the arrivals, and some boats sank and asylum seekers drowned, Prime Minister Gillard tasked an ‘expert panel’ to advise ‘how best to prevent asylum seekers risking their lives by travelling to Australia by boat’.165 The panel recommended a return to offshore processing and that offshore processing countries be identified through a legislative instrument that would be disallowable by either House 160

161

162

163

164

165

Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144, 181–3 [61]–[66] (French CJ); 195–9 [116]–[126], 201–2 [135]–[136] (Gummow, Hayne, Crennan and Bell JJ); 232–3 [240]–[244] (Kiefel J). Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144, 183 [67] (French CJ); 233–4 [245] (Kiefel J). Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144, 195 [113]–[114] (Gummow, Hayne, Crennan and Bell JJ). In the Matter of the Implications of Plaintiff M70/2011 v Minister for Immigration and Citizenship for Offshore Processing of Asylum Seekers under the Migration Act 1958 (Cth) Opinion SG No 21 of 2001, reprinted at . Chris Bowen (Minister for Immigration and Citizenship), ‘Bridging Visas to Be Issued for Boat Arrivals’ (Media Release, 25 November 2012). Australian Government, Report of the Expert Panel on Asylum Seekers (August 2012) 9.

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of Parliament.166 This enabled passage of amendments to the Migration Act as it was possible for the major parties to agree to offshore processing, while reserving the right to object to any particular country, and the Act was duly amended.167 In 2013, the government negotiated two ‘regional resettlement arrangements’ with Nauru and PNG,168 which would ensure that refugees were not just held for processing but were ‘resettled’ on a permanent basis. Following the election that year, the Coalition government negotiated another such agreement with Cambodia.169 Resettlement in each of these countries is likely to be very difficult, and allegations of rape have been made by two refugees living in Nauru.170 It clear that these arrangements are intended as deterrents, and the memoranda of understandings with both PNG and Nauru expressly state this.171 However, this objective is not consistent with the underlying philosophy of human rights law. Underpinning the legal questions of human rights and refugee protection, which clearly exercised the High Court judges in Plaintiff M70, is a deeper question concerning the ethos of human rights. It is surely anathema to treat some people in a particular way solely to act as a deterrent to others. 166 167 168

169

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Australian Government, Report of the Expert Panel on Asylum Seekers (August 2012) 141. See Migration Act 1958 (Cth) ss 198AA–198AH. For the versions current at the time of writing, see Memorandum of Understanding between the Republic of Nauru and the Commonwealth of Australia, Relating to the Transfer to and Assessment of Persons in Nauru, and Related Issues (signed and entered into force 3 August 2013); Memorandum of Understanding between the Government of the Independent State of Papua New Guinea and the Government of Australia, relating to the transfer to, and assessment and settlement in, Papua New Guinea of Certain Persons, and Related Issues (signed and entered into force 6 August 2013). Memorandum of Understanding between the Government of the Kingdom of Cambodia and the Government of Australia, Relating to the Settlement of Refugees in Cambodia (signed and entered into force 26 September 2014). Timna Jacks, ‘Two Refugees Allege They Were Raped on Nauru’, The Sydney Morning Herald (online), 29 September 2015, . For further criticism of the regional resettlement arrangements, see Andrea Babon, ‘What Life Can a Resettled Refugee Expect in PNG?’, The Conversation (online), 23 July 2013, ; Human Rights Watch, ‘Australia: Reconsider Nauru Refugee Transfers to Cambodia’, Human Rights Watch (online), 20 November 2014, . Memorandum of Understanding between the Republic of Nauru and the Commonwealth of Australia, Relating to the Transfer to and Assessment of Persons in Nauru, and Related Issues (signed and entered into force 3 August 2013) [1]; Memorandum of Understanding between the Government of the Independent State of Papua New Guinea and the Government of Australia, relating to the transfer to, and assessment and settlement in, Papua New Guinea of Certain Persons, and Related Issues (signed and entered into force 6 August 2013) [1]. In April 2016, the Papua New Guinea Supreme Court held unanimously that the detention of asylum seekers on Manus Island in Papua New Guinea was unconstitutional: Namah v Pato [2016] PGSC 13; SC1497 (26 April 2016).

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Yet the justifications for the various offshore options were put fairly baldly as deterrents,172 though supposedly ‘humane’ deterrents. The dangers of boat journeys to asylum seekers, as evidenced by a number of boats sinking with the loss of many lives, including those of small children, have been a supporting argument for offshore processing.173 The argument based on deterrence is open to challenge on the basis that the effectiveness of deterrence measures is debatable, while the ‘humanitarian’ aspect of the argument ignores the fact that if deterrence is successful, the result for asylum seekers is simply a different form of human rights violation taking place elsewhere. Any journey to Australia prevented by a deterrent mechanism means that asylum seekers stay where they are, subject to the risks of refoulement; detention on the basis of unlawful status; relegation to jobs that are dirty, dangerous and demeaning, including risks of sexual exploitation; homelessness, with all the potential for violence and the deterioration of mental health that this entails; lack of education; and hopelessness. Alternatively, the smugglers might temporarily change their itineraries, meaning that dangerous journeys continue, though to another destination, resulting in bodies washed up on some other country’s shores, until Australia turns away from deterrence and back to protection. It is important to remember that while life is indeed the most fundamental of human rights, the right without which there can be no other rights, to live a life in dignity requires all human rights to be respected. Refugee protection should ensure a life lived in dignity.

IV CONCLUSION [8.100]  Nationality and its temporary de facto substitute, refugee status, are important tools for the protection of human beings. They may come into play in the international arena when international boundaries are crossed. People cross borders in order to seek protection as refugees, or they travel and are harmed, raising the possibility of diplomatic protection. When boundaries themselves change, issues of nationality and de jure statelessness arise. 172

173

The report of the expert panel refers to ‘disincentives’: Australian Government, Report of the Expert Panel on Asylum Seekers (August 2012) 12 and throughout the report. Similarly, in her speech to the Lowy Institute announcing the proposal for a centre in Timor, the Prime Minister said that it would prevent people from getting ‘an inside track’: Julia Gillard, ‘Respecting Fears, Moving Forward with the Facts’ (Speech delivered at the Lowy Institute, Sydney, 6 July 2010) . The expert panel’s terms of reference frame the argument in favour of offshore processing as primarily about concern for the lives of asylum seekers. See also the comments by ‘government sources’ referred to in Matthew Franklin, ‘Greens Lashed by Chris Bowen on Onshore Solution’, The Australian (online), 21 December 2011, .

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There are deep connections and tensions between the sense of safety and belonging that citizenship may entail and the rejection and insecurity involved in refugee flows. Individuals must rely on states to protect human rights. Yet states are often the primary violators of human rights or incapable of protecting individuals from the actions of other non-state actors. Refugees flee because their state has failed them. However, refugees are often not welcome in other countries. International law fails to positively recognise a right of migration for persons seeking protection from human rights violations, and this may compound the failure of protection within their home countries. It is apparent that the state plays an intriguing role in constituting citizen and refugee and the protection owed to each. Perhaps Australia’s practice with respect to unauthorised asylum seekers arriving by boat illustrates an ambivalence engendered by an international legal order that rests on states as the primary actors. The institution of asylum is Janus-like in the way that it bridges the gulf between citizen and refugee: literally a receptacle for refugees, asylum enshrines and constrains state hospitality.

9 Australia and International Criminal Law Andrew Byrnes*

I INTRODUCTION [9.10]  The term ‘international criminal law’ has been variously understood:1 some definitions have identified two essential components, namely the international aspects of municipal criminal law and the criminal aspects of international law. The former includes topics such as extradition, mutual legal assistance in criminal matters, the transfer of sentenced persons, and cooperation in law enforcement. The latter includes the definition and characterisation of certain acts as international crimes, duties under customary international law or treaties to criminalise particular acts under national law and to prosecute or extradite offenders, and the jurisdiction and procedures of international or hybrid criminal tribunals.2 Other definitions distinguish between ‘international’ criminal law and ‘transnational’ criminal law, the latter referring to ‘those parts of a State’s domestic criminal law which deal with transnational crimes, that is to say, crimes with actual or potential transborder effects’.3 As Boister notes, while transnational criminal law can be seen as part of international criminal law, it can be distinguished from international criminal law stricto sensu.4 The *

1

2

3

4

My thanks to Jessie Ingle, who provided helpful research assistance in the early stages of the preparation of this chapter. All URL references were current as of 30 September 2016. Claus Kreß, ‘International Criminal Law’, Max Planck Encyclopedia of International Law, March 2009 (online); Robert Cryer et al, An Introduction to International Criminal Law and Procedure (Cambridge University Press, 3rd ed, 2014) 4. William A Schabas and Nadia Bernaz, ‘Introduction’ in William A Schabas and Nadia Bernaz (eds), Routledge Handbook of International Criminal Law (Routledge, 2011, paperback ed 2013) 1. Robert Cryer et al, An Introduction to International Criminal Law and Procedure (Cambridge University Press, 3rd ed, 2014) 5–6. See generally Neil Boister, Introduction to Transnational Criminal Law (Oxford University Press, 2012). See also chapter 10 of this volume. Neil Boister, Introduction to Transnational Criminal Law (Oxford University Press, 2012) [2.4]. 201

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difference lies in the fact that the ‘core’ international crimes (genocide, war crimes, crimes against humanity, and aggression) involve ‘a direct customary international law obligation on individuals regardless of the position in national law’,5 while the prohibition in relation to transnational crimes such as drug trafficking ‘may find its original normative source in international law, but the actual criminal prohibition on individuals is entirely national’.6 Other approaches simply define the subject matter of international criminal law as including international crimes (those offences ‘over which international courts or tribunals have been given jurisdiction under general international law … crimes of genocide, crimes against humanity, war crimes and the crime of aggression’),7 and also the principles and procedures governing the inter­national investigation and prosecution of those crimes and various international aspects of their domestic investigation and prosecution.8 This approach excludes crimes such as piracy, slavery and torture — all considered to be international crimes by many writers — as well as terrorism, drug trafficking and many crimes contained in international ‘suppression conventions’.9 This chapter focuses on the core international crimes, the international and national law governing Australia’s relations with international criminal tribunals, the incorporation of international criminal law ‘core’ crimes into domestic law, the investigation and prosecution of offences, and Australia’s participation in and contribution to the development of international criminal law. The rapid expansion of the field, especially since the 1990s, has meant that the full range of issues falling under broader definitions of the field cannot be dealt with in this chapter.10

5 6 7

8

9

10

Neil Boister, Introduction to Transnational Criminal Law (Oxford University Press, 2012) [2.4]. Neil Boister, Introduction to Transnational Criminal Law (Oxford University Press, 2012) [2.4]. Robert Cryer et al, An Introduction to International Criminal Law and Procedure (Cambridge University Press, 3rd ed, 2014) 4. Robert Cryer et al, An Introduction to International Criminal Law and Procedure (Cambridge University Press, 3rd ed, 2014) 5. See also Antonio Cassese et al, Cassese’s International Criminal Law (Oxford University Press, 3rd ed, 2013) 3. Robert Cryer et al, An Introduction to International Criminal Law and Procedure (Cambridge University Press, 3rd ed, 2014) 5. The first edition of this book did not contain a chapter on international criminal law generally, though it did include a chapter on extradition law and practice: Ivan A Shearer, ‘Extradition and Asylum in Australia’ in D P O’Connell (ed), International Law in Australia (Law Book Co, 1st ed, 1965) 558. The index contains no reference to the Nuremberg or Tokyo tribunals, or to crimes against humanity. The one reference in the index to ‘genocide’ is to the requirement not to characterise genocide as a political offence for the purposes of extradition: at 591. There is no discussion of the 1949 Geneva Conventions or international humanitarian law in general — a somewhat surprising omission, given the Australian involvement in war crimes trials following the Second World War. The second edition of this book included a chapter on the subject, which discussed the ‘core’ international crimes, as well as a range of other transnational offences: D F J J de Stoop, ‘Australia and International Criminal Law’ in K W Ryan (ed), International Law in Australia (Law Book Co, 2nd ed, 1984) 155.

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II  AUSTRALIA AND WAR CRIMES PROSECUTIONS IN THE AFTERMATH OF THE SECOND WORLD WAR [9.20]  After the Second World War, Australian military authorities undertook the prosecution of hundreds of alleged Japanese war criminals11 under the War Crimes Act 1945 (Cth).12 This empowered the GovernorGeneral to convene military courts to put on trial persons accused of war crimes ‘committed, at any place whatsoever, whether within or beyond Australia, against any person who was at any time resident in Australia’. The military courts were empowered to conduct proceedings both inside and outside Australia and to impose sentences of death or imprisonment.13 The Regulations for the Trial of War Criminals provided the detailed rules for the conduct of the Australian war crimes trials that took place from 1946 to 1951.14 Suspected war criminals were categorised according to their relative culpability: Class A, those who had ‘planned, initiated, and waged aggressive wars in violation of international treaties’; Class B, those who ‘violated the laws and customs of wars’; and Class C, those who ‘carried out torture and murder on orders of their superiors’.15 Class A accused (major war crimes suspects) were to be tried before international tribunals, while Class B and C suspects (minor war crimes suspects) were to be tried by national military courts or tribunals. Australia carried out 296 trials in eight locations;16 924 enemy nationals were tried (in fact 814 persons, as some accused were defendants in more than 11

12 13 14 15

16

See D C S Sissons, The Australian War Crimes Trials and Investigations (1942–51) . The Act commenced operation on 11 October 1945. War Crimes Act 1945 (Cth) s 11(1). SR No 164 of 1945. Howard Ball, Prosecuting War Crimes and Genocide: The Twentieth-Century Experience (University Press of Kansas, 1999) 73. National Archives of Australia, World War II Crimes — Fact Sheet 61 . See Emmi Okada, ‘The Australian Trials of Class B and C Japanese War Crimes Suspects, 1945–51’ (2009) 16 Australian International Law Journal 47; Georgina Fitzpatrick, ‘War Crimes Trials, “Victor’s Justice” and Australian Military Justice in the Aftermath of the Second World War’ in Kevin Heller and Gerry Simpson (eds), The Hidden Histories of War Crimes Trials (Oxford University Press, 2013) 327; Narrelle Morris, ‘Justice for “Asian” Victims: The Australian War Crimes Trials of the Japanese, 1945–51’ in Kevin Heller and Gerry Simpson (eds), The Hidden Histories of War Crimes Trials (Oxford University Press, 2013) 348; Michael Carrel, ‘Australia’s Prosecution of Japanese War Criminals: Stimuli and Constraints’ in David A Blumenthal and Timothy L H McCormack (eds), The Legacy of Nuremberg: Civilising Influence or Institutionalised Vengeance? (Martinus Nijhoff, 2008) 239. See also Australian Pacific Military Law Centre, Australia’s Post-World War II War Crimes Trials .

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one trial).17 Of these, 148 were sentenced to death and executed, while a further 496 were sentenced to imprisonment; 280 were acquitted. Those sentenced to imprisonment served their sentences at various locations until they were transferred to Japan in the period 1951 to 1953. A system of remissions and early release was introduced and, on 4 July 1957, the last remaining prisoners were released.18 Parallel to these developments were moves at the international level for the establishment of international tribunals to put on trial the major war criminals of the Axis powers, as foreshadowed in the Potsdam Declaration of 26 July 1945.19 On 8 August 1945, the United States, the United Kingdom, the Soviet Union and France signed the London Agreement,20 which provided for the establishment of ‘an International Military Tribunal for the trial of war criminals whose offenses have no particular geographical location whether they be accused individually or in their capacity as members of organizations or groups or in both capacities’.21 The Charter of the International Military Tribunal annexed to the London Agreement provided for the establishment of a tribunal to carry out ‘the just and prompt trial and punishment of the major war criminals of the European Axis’ on charges of crimes against peace, war crimes, and crimes against humanity. Nineteen other states adhered to the London Agreement; Australia did so on 5 October 1945. However, the Inter­national Military Tribunal was largely run by the four Occupying Powers, with the Tribunal consisting of judges and alternate judges and a Chief Prosecutor appointed by each Occupying Power.22 Australia was more closely involved in the work of the International Military Tribunal for the Far East (‘IMTFE’, or ‘Tokyo Tribunal’). This Tribunal was established by Proclamation of the Supreme Allied

17

18

19

20

21 22

David Sissons, ‘Sources on Australian Investigations into Japanese War Crimes in the Pacific’ (2007) 30 Journal of the Australian War Memorial . D C S Sissons, The Australian War Crimes Trials and Investigations (1942–51), 53 . Proclamation Defining Terms for Japanese Surrender, issued at Potsdam, 26 July 1945 (‘Potsdam Declaration’). Agreement by the Government of the United Kingdom of Great Britain and Northern Ireland, the Government of the United States of America, the Provisional Government of the French Republic and the Government of the Union of Soviet Socialist Republics for the Prosecution and Punishment of the Major War Criminals of the European Axis, 8 August 1945, 82 UNTS 279 (entered into force 8 August 1945; entered into force for Australia 5 October 1945) (‘London Agreement’). London Agreement art 1. London Agreement arts 2, 14.

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Commander in the Pacific, US General Douglas MacArthur.23 However, each country that been the victim of Japanese aggression — or, in the case of colonial territories that had not become independent, the colonising power — appointed a judge to the Tribunal and also an associate prosecutor (though the Chief Prosecutor was a US national and the prosecution was largely US-dominated). The prosecution strategy adopted in the Asia and Pacific region followed that adopted in the European war crimes trials. Class A war crimes suspects were to be put on trial before the IMTFE — 80 were held in custody, but only 28 were brought to trial. Class B and Class C war crimes suspects were put on trial before national military tribunals. Some 5600 persons were put on trial and around 4000 were convicted, of whom 1000 were sentenced to death.24 The Tokyo Tribunal was attended by concerns about the retrospectivity of the crime of aggression and crimes against humanity similar to those raised in relation to the Nuremberg proceedings; the fairness of its procedures was also criticised.25 Compared with the Nuremberg Tribunal, it received little attention for many decades after the war — something not helped by the fact that the full judgment of the Tribunal was not published until 197726 and was difficult to obtain.27 In recent years, it has received renewed attention.28

23

24

25

26

27

28

Proclamation by the Supreme Commander for the Allied Powers, 19 January 1946, , reproduced in Neil Boister and Robert Cryer (eds), Documents on the Tokyo International Military Tribunal: Charter, Indictment and Judgments: A Reappraisal (Oxford University Press, 2008) 5. Howard S Levie, ‘War Crimes Programs — Far East’ in Howard S Levie, Terrorism in War — The Law of War Crimes (Oceana Publications, 1993) 179–84 (‘Statistics’). See Richard H Minear, Victors’ Justice: The Tokyo War Crimes Trial (Princeton University Press, 1971); Neil Boister and Robert Cryer, ‘Introduction’ in Neil Boister and Robert Cryer (eds), Documents on the Tokyo International Military Tribunal: Charter, Indictment and Judgments (Oxford University Press, 2008) xxxiii–lxxxiv; Neil Boister, ‘The Tokyo Trial’ in William A Schabas and Nadia Bernaz (eds), Routledge Handbook of International Criminal Law (Routledge, 2nd ed, 2013) 17. B V A Röling and C F Rüter (eds), The Tokyo Judgment: The International Military Tribunal for the Far East (IMTFE) 29 April 1946 – 12 November 1948 (APA–University Press, 1977). J D Heydon, ‘Japanese War Crimes, Retroactive Laws and Mr Justice Pal’ (2011) 85 Australian Law Journal 627, 629–30. See, eg, Neil Boister and Robert Cryer, The Tokyo International Military Tribunal: A Reappraisal (Oxford University Press, 2008); Yuki Tanaka, Timothy L H McCormack and Gerry Simpson (eds), Beyond Victor’s Justice? The Tokyo War Crimes Trial Revisited (Martinus Nijhoff, 2011).

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III  AUSTRALIA, THE GENEVA CONVENTIONS AND INTERNATIONAL HUMANITARIAN LAW [9.30]  Australia signed the four Geneva Conventions of 194929 on 4 January 1950 and ratified them on 14 October 1958; they entered into force for Australia on 14 April 1959.30 Under those conventions, states parties are obliged to take steps to criminalise the conduct identified as grave breaches under each treaty and to search for, investigate and either prosecute or extradite persons alleged to have committed such offences.31 Australia ratified the two Additional Protocols of 1977 on 21 June 1991 and they entered into force for Australia on 21 December 1991.32 It ratified the Third Additional Protocol in 2009.33 29

30

31

32

33

Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, opened for signature 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950) (‘First Geneva Convention’); Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, opened for signature 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950) (‘Second Geneva Convention’); Geneva Convention Relative to the Treatment of Prisoners of War, opened for signature 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950) (‘Third Geneva Convention’); Geneva Convention Relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) (‘Fourth Geneva Convention’). Australia had also ratified the earlier Geneva Conventions: Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, opened for signature 27 July 1929, 118 LNTS 303 (entered into force 19 June 1931; entered into force for Australia 23 December 1931) (art 28 of which relating to the Red Cross emblem was given effect to by the Geneva Conventions Act 1938 (Cth)) and the Convention Relative to the Treatment of Prisoners of War, opened for signature 27 July 1929, 118 LNTS 343 (entered into force 19 June 1931; entered into force for Australia 23 December 1931). On 27 December 1909, the United Kingdom had ratified and extended to Australia the International Convention Concerning the Laws and Customs of War on Land [Hague IV], 18 October 1907, [1910] ATS 8 (entered into force generally and for Australia 26 January 1910), as well as other Hague Conventions. Articles 49, 50, 129 and 146, respectively, of the First, Second, Third and Fourth Geneva Conventions. See the discussion of the various articles in International Committee of the Red Cross, Commentary of 2016 ; Paola Gaeta, ‘Grave Breaches of the Geneva Conventions’ in Andrew Clapham, Paola Gaeta and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary (Oxford University Press, 2015) 615–46; International Law Commission, The Obligation to Extradite or Prosecute (aut dedere aut judicare): Final Report of the International Law Commission (2014). Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, opened for signature 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978; entered into force for Australia 21 December 1991) (‘Additional Protocol I’); Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, opened for signature 8 June 1977, 1125 UNTS 609 (entered into force 7 December 1978; entered into force for Australia 21 December 1991) (‘Additional Protocol II’). Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Adoption of an Additional Distinctive Emblem, opened for signature 8 December 2005, 75 UNTS 31 (entered into force 14 January 2007; entered into force for Australia 15 January 2010) (‘Additional Protocol III’) implemented by the Defence Legislation (Miscellaneous Amendments) Act 2009 (Cth).

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Australia incorporated the grave breaches provisions of the 1949 Geneva Conventions as domestic offences by means of the Geneva Conventions Act 1957 (Cth).34 The Act also set out procedures for the trial of protected prisoners of war or internees for criminal offences, and contained provisions prohibiting the misuse of the Red Cross emblem and other protected emblems.35 The grave breaches provisions under Additional Protocol I36 were given effect domestically in 1991.37 With Australia’s ratification of the Rome Statute of the International Criminal Court in 2002,38 the grave breaches offences were transferred to the Criminal Code 1995 (Cth), along with other war crimes and crimes against humanity, in terms based on the Rome Statute formulation.39 There do not appear to be any instances in which persons have been prosecuted before Australian courts for grave breaches of the Geneva Conventions or Additional Protocol I. However, in an inquest held by the Coroner’s Court of New South Wales in 2007 into the death of an Australian journalist killed along with four other journalists at Balibo during the 1975 Indonesian invasion of East Timor, the Coroner considered whether the deaths had involved violations of the Geneva Conventions.40 The Coroner concluded that ‘war crimes may have been committed’ and referred the matter to the Commonwealth Attorney-General for further investigation.41 The Australian Federal Police (‘AFP’) commenced an investigation in 2009 and terminated it in 2014. The AFP Commissioner explained that the investigation had been closed because, in addition to the challenges of prosecuting offences committed abroad and the lack of interest in cooperating on the Indonesian side, the available evidence did not ‘satisfy the required legal elements of the appropriate Australian offence that was available in 1975’.42 The relevant offence ‘requires, as one of its key elements, proof that the territory of Balibo was occupied by Indonesian forces at the time that the 34 35 36 37 38

39

40

41

42

Part II. Parts II and IV respectively. See Additional Protocol I art 85. Geneva Conventions Amendment Act 1991 (Cth) s 5. Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002; entered into force for Australia 1 September 2002). International Criminal Court (Consequential Amendments) Act 2002 (Cth) sch 3. This Act inserted a new sub-div D in div 268 of the Criminal Code Act 1995 (Cth), which contains the grave breaches provisions. Inquest into the death of Brian Raymond Peters, Coroner’s Court of New South Wales, Report, Decision of the Coroner, Magistrate Dorelle Pinch (16 November 2007) . Inquest into the death of Brian Raymond Peters, Coroner’s Court of New South Wales, Report, Decision of the Coroner, Magistrate Dorelle Pinch (16 November 2007) . Commonwealth, Parliamentary Debates, Senate Constitutional and Legal Affairs Legislation Committee, Estimates, 20 November 2014, 176.

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men were killed’.43 The Commissioner stated that the investigation had not been ‘able to uncover sufficient evidence to prove beyond reasonable doubt this state of occupation under the Geneva Conventions’.44 The concern appears to have been whether the deaths occurred during an international armed conflict or during a ‘partial or total occupation of the territory’ of a state party to the Fourth Geneva Convention.45 The Coroner concluded that the conflict could reasonably be regarded as an international conflict,46 although she did not consider whether there was an occupation. The AFP’s conclusion that there was not enough evidence to establish the application of the Fourth Geneva Convention to the killings seems excessively cautious.47 There appear to have been few other Australian court cases in which compliance with the Geneva Conventions has been an issue,48 although some cases have considered such issues in deciding whether persons should be excluded from refugee status.49 However, there has been public debate about 43

44

45

46

47

48

49

Commonwealth, Parliamentary Debates, Senate Constitutional and Legal Affairs Legislation Committee, Estimates, 20 November 2014, 176. The relevant offence was a grave breach of ‘wilful killing’ of a protected civilian: Geneva Conventions Act 1957 (Cth) s 7 (incorporating art 147 of the Fourth Geneva Convention). Commonwealth, Parliamentary Debates, Senate Constitutional and Legal Affairs Legislation Committee, Estimates, 20 November 2014, 177. Fourth Geneva Convention art 2. As the alleged offences occurred in 1975, it was not possible to rely on Additional Protocol I, which extended the grave breaches regime to ‘armed conflicts in which peoples are fighting against colonial domination and alien occupation … in the exercise of their right of self-determination’: Additional Protocol I art 1(4) and see art 85. The protocol applies only prospectively, as did the Australian implementing legislation. Inquest into the death of Brian Raymond Peters, Coroner’s Court of New South Wales, Report, Decision of the Coroner, Magistrate Dorelle Pinch (16 November 2007), 123 . See Suzannah Linton, ‘Prosecuting Atrocities at the District Court of Dili’ (2001) 2 Melbourne Journal of International Law 414, 438–41; Ben Saul, ‘Prosecuting War Crimes at Balibo under Australian Law: The Killing of Five Journalists in East Timor by Indonesia’ (2009) 31(1) Sydney Law Review 83, 87–99. See Habib v Commonwealth (2010) 183 FCR 62 (claim of misfeasance in public office, the misfeasance involved being the alleged complicity of Australian officials in grave breaches of the Geneva Conventions committed by US officials; the case settled). Another case is Snedden (aka Vasiljkovic) v Minister for Justice of the Commonwealth (2013) 306 ALR 452 and Snedden v Minister for Justice for the Commonwealth (2014) 315 ALR 352, in which the Federal Court and the Full Federal Court of Australia considered whether art 129 of the Third Geneva Convention and/or Australian law required a request for the extradition of a person for war crimes to be supported by evidence establishing a prima facie case. They also examined whether the Australian courts were bound to consider whether the fugitive was entitled to prisoner of war status and whether any related rights would be breached by Croatia if Snedden were surrendered. Neither the first instance nor the appellate court found it necessary to rule on the Geneva Convention issues. See generally Alison Duxbury, ‘Excluding the Undesirable: Interpreting Article 1F(a) of the Refugee Convention in Australia’ in David A Blumenthal and Timothy L H McCormack (eds), The Legacy of Nuremberg: Civilising Influence or Institutionalised Vengeance? (Martinus Nijhoff, 2008) 259.

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the compatibility of Australian actions during the hostilities in Afghanistan starting in 2001 and in the Iraq war of 2003 and subsequent occupation. This has focused in particular on arrangements entered into by Australia with the United States and the United Kingdom in relation to prisoners of war and civilian detainees, and the possible liability of Australia in relation to the mistreatment of certain detainees.50 The Australian military had not planned on setting up facilities to deal with any persons captured during hostilities in Afghanistan or Iraq. Rather, the military had assumed that it would be able to rely on the United States or the United Kingdom to take responsibility for such detainees. However, it became clear that there was a divergence in views between the United States and Australia as to whether Al Qaida and Taliban captives were entitled to POW status or other rights under the Geneva Conventions. As a result, if Australian troops captured any persons entitled to protection under the Third and Fourth Geneva Conventions, they might not be able to transfer them lawfully to US forces.51 Australia sought to avoid this dilemma by arranging that wherever possible there would be one US soldier present during Australian operations and that this person would formally be the Detaining Power for any persons captured by the Australian forces. Where that was not possible, Australia would retain custody of any such captives and the Australian government would then decide on what was to be done with them.52 A similar approach was initially taken in Iraq, and there were a number of incidents in the early days of that conflict in which Australian forces took captives who were transferred to US forces on the basis that the US soldier present had formally detained the captives.53 The fictional nature of that practice is underlined by an incident in which 20 Australian SAS soldiers, accompanied by an embedded US service member, captured a group of 66 men in Iraq. The men were held for 10 hours, during which time the SAS soldiers questioned, searched and fed the detainees. The detainees were then handed over to UK forces, who transported them by helicopter to a US-run detention centre (one detainee died en route). While Defence Department media statements not unreasonably stated 50

51

52

53

See generally Public Interest Advocacy Centre (‘PIAC’), Military Detention: Uncovering the Truth . Third Geneva Convention art 12; Fourth Geneva Convention art 45. See Keiichiro Okimoto, ‘Evacuation and Transfer of Prisoners of War’ in Andrew Clapham, Paola Gaeta and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary (Oxford University Press, 2015) 968–9. PIAC, Military Detention: Uncovering the Truth, Story 1 — Australia’s Detention, Custody and Transfer Policy in Afghanistan and Iraq (1 July 2011) . PIAC, Military Detention: Uncovering the Truth, Story 1 — Australia’s Detention, Custody and Transfer Policy in Afghanistan and Iraq (1 July 2011), 11–12 .

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that Australian troops had captured this group, the formal position of the government was that the single US service member had formally effected the detention.54 Although Defence originally had some doubts as to whether the practice fully complied with Australia’s international legal obligations, it appears that subsequent reassuring legal advice was provided by the Attorney-General’s Department. Although that advice has not been made available publicly, it seems difficult to conclude that the practice adopted by Australia is consistent with the text and spirit of the Geneva Conventions.55 Shortly after the hostilities in Iraq commenced, Australia entered into a trilateral agreement relating to the transfer of prisoners of war, civilians and civilian internees. The agreement set out conditions for the transfer of these categories of detainees that were in accordance with the relevant provisions of the Geneva Conventions.56 However, it appears that the arrangement was not relied on, but rather the practice adopted in Afghanistan was followed.

A Alleged War Crimes Committed by Members of the Australian Defence Forces [9.40]  It is difficult to assess whether there have been many violations of international humanitarian law committed by Australian forces, and whether they have been appropriately investigated and punished. There have been occasional press reports, sometimes based on memoirs or witnesses speaking out long after the events in question.57 54

55

56

57

PIAC, Military Detention: Uncovering the Truth, Story 2 — Australia’s Role in Capturing 66 Detainees in Iraq on 11 April 2003 and the Death in UK Custody of a Detainee . PIAC, Military Detention: Uncovering the Truth, Story 2 — Australia’s Role in Capturing 66 Detainees in Iraq on 11 April 2003 and the Death in UK Custody of a Detainee, pt 5 (‘Legal fiction — Australia did not “detain” the 66 detainees’) . See also PIAC, Military Detention: Uncovering the Truth, Story 1 — Australia’s Detention, Custody and Transfer Policy in Afghanistan and Iraq (1 July 2011), 19–20 ; ‘Article 12’ in Commentary to Convention (III) Relative to the Treatment of Prisoners of War, Geneva, 12 August 1949 (International Committee of the Red Cross, 1960) 128. An Arrangement for the Transfer of Prisoners of War, Civilian Internees, and Civilian Detainees between the Forces of the United States of America, the United Kingdom of Great Britain and Northern Ireland, and Australia (23 March 2003) . Matthew Benns, ‘Australian Federal Police May Investigate Claims Diggers Committed Atrocities during the Vietnam War’, news.com.au, 30 December 2013, ; Michael Brissenden, ‘Australian Special Forces Troops under Investigation for Cutting off Hands of Dead Afghan Insurgent’, ABC News (online), 30 August 2013, .

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Some prosecutions have been brought as a result of incidents in recent military operations, but these have been prosecuted as service offences under the Defence Force Discipline Act 1982 (Cth) rather than as war crimes. For example, the Director of Military Prosecutions brought charges in 2010 against three soldiers arising out of a compound clearance operation in Afghanistan in 2009 in which a number of civilians were killed.58 The soldiers were charged with service offences, including manslaughter, dangerous conduct, failing to comply with a lawful general order, and prejudicial conduct. The charges were controversial — including on legal grounds — because the soldiers were not charged with violations of the law of armed conflict in relation to acts carried out during a military operation. The manslaughter charges against two of the defendants were dismissed at a pre-trial hearing on the basis that there was no duty of care owed by the soldiers to the civilians in a combat zone.59 The charges against all three soldiers were subsequently dropped.

IV  RENEWED INTEREST IN THE PROSECUTION OF WAR CRIMINALS IN THE 1980s [9.50]  Australia’s status as an immigrant nation, along with its openness to receiving refugees and other immigrants over the last 70 years (with some notable exceptions), has seen many victims of serious human rights or international humanitarian law violations, as well as the alleged perpetrators of such violations, migrating to Australia to escape conflicts or in their aftermath.60 The momentum for the prosecution of war criminals in the wake of the Second World War dissipated with the advent of the Cold War, public concern about the drawn-out trials, and the desire of many to get on with post-war rebuilding. National war crimes trials were completed by the early 1950s, with Australia being among the last countries to conclude its trials. Many suspected Nazi war criminals had escaped and found safe haven, often under new names, in other countries; some suspects had even been protected by governments and recruited into intelligence services, or otherwise granted 58

59

60

Paul Brereton, ‘The Director of Military Prosecutions, the Afghanistan Charges and the Rule of Law’ (Paper presented at the Rule of Law in Australia Conference, Sydney, 6 November 2010). See also ABC TV, ‘Into the Fog of War’, Australian Story, 23 and 30 May 2016, . Re Civilian Casualty Court Martial (2011) 259 FLR 208; Joshua Kelly, ‘Re Civilian Casualty Court Martial: Prosecuting Breaches of International Humanitarian Law Using the Australian Military Justice System’ (2013) 37 Melbourne University Law Review 342; ‘Correspondents’ Reports: Australia’ (2011) 14 Yearbook of International Humanitarian Law; Emily Crawford, ‘International Humanitarian Law in the Courts of Australia’ in Derek Jinks, Jackson N Maogoto and Solon Solomon (eds), Applying International Humanitarian Law in Judicial and Quasi-Judicial Bodies: International and Domestic Aspects (TMC Asser Press, 2014) 335, 351. See Monash University, War Criminals in Australia Project: Chronology .

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immunity from prosecution because of information that they were able to provide. With some exceptions, such as the Eichmann trial in 1960, there were few additional war crimes trials until the 1980s, when new demands emerged in a number of countries to bring to justice alleged war criminals.61 There were also few war crimes trials undertaken in relation to the allegations of war crimes by all parties in the armed conflicts that took place in the following decades, including the Korean and Vietnam Wars. Between 1979 and 1985, the United States, Canada and the United Kingdom undertook initiatives to investigate and bring to trial alleged war criminals living in those countries. In Australia, the issue gained public attention in the mid-1980s as the result of media coverage, including a number of TV programs which claimed that ‘significant numbers of Nazi war criminals had entered Australia after the war’.62 The Australian government commissioned an inquiry (the Menzies review), which found that it was ‘more likely than not’ that there was a significant number of persons who had entered Australia and who were suspected of having committed war crimes, and made a number of recommendations to address those cases.63 The government accepted the findings of the report and established a war crimes unit (the Special Investigations Unit) to investigate the cases and to undertake war crimes prosecutions in appropriate cases. It was cautious about ‘making special arrangements to extradite persons to countries with markedly different judicial systems’,64 and underlined that there should not be ‘any reduction in our normal standards of justice when dealing with such cases, or in the safeguards now available under Australian law to persons accused of serious crimes’.65 The government amended the War Crimes Act 1945 (Cth) to permit the prosecution of Australian citizens or residents who had committed certain serious war-related crimes in Europe between 1939 and 1945.66 61

62

63

64

65

66

See Joseph Powderly, ‘The Trials of Eichmann, Barbie and Finta’ in William A Schabas and Nadia Bernaz (eds), Routledge Handbook of International Criminal Law (Routledge, 2nd ed, 2013) 33. Gillian Triggs, ‘Australia’s War Crimes Trials: A Moral Necessity or Legal Minefield?’ (1987) 16 Melbourne University Law Review 382, 383. See also Mark Aarons, Sanctuary! Nazi Fugitives in Australia (William Heinemann, 1989); Mark Aarons, War Criminals Welcome: Australia, a Sanctuary for Fugitive War Criminals since 1945 (Black Inc, 2001) 460–4. A C Menzies, Review of Material Relating to the Entry of Suspected War Criminals into Australia (Australian Government Publishing Service, 1987). See the statement by then Attorney-General Lionel Bowen QC in the House of Representatives, 24 February 1987: ‘Use of Force — War — War Criminals — Review of Material Relating to the Entry of Suspected War Criminals into Australia’ (1984–87) 11 Australian Year Book of International Law 648, 651–4. Statement by Attorney-General Lionel Bowen QC in the House of Representatives, 24 February 1987: ‘Use of Force — War — War Criminals — Review of Material Relating to the Entry of Suspected War Criminals into Australia’ (1984–87) 11 Australian Year Book of International Law 648, 652. War Crimes Amendment Act 1988 (Cth) (commenced 25 January 1989).

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Three prosecutions were undertaken, all against persons accused of having committed war crimes in Ukraine.67 None of these prosecutions resulted in a conviction. The first case was a prosecution brought against Ivan Polyukhovich,68 who challenged the constitutional validity of the amended Act in the High Court on a number of grounds, including that it involved retrospective criminal liability. A majority of the High Court rejected the challenge to the Act69 and the trial proceeded, but, following the exclusion of a number of significant pieces of prosecution evidence, the jury acquitted the defendant. The second case, brought against Mikolay Berezovsky, did not proceed beyond a committal hearing.70 The third case, against Heinrich Wagner, proceeded beyond a committal but was discontinued by the Commonwealth Director of Public Prosecutions on the ground of Wagner’s medical condition.71 During the prosecutions, political support for the trials waned, and the government decided that the Special Investigations Unit would be wound up in mid-1992.72 A fourth potential case involving an alleged mass killer of Latvian origin, Kārlis Ozols, had been identified by the Special Investigations Unit as deserving of prosecution and the preparation of a prosecution was well advanced.73 However, in 1992 the case was, controversially, not proceeded with;74 Latvia commenced an investigation in 2000 and subsequent extradition proceedings seeking Ozols’s return to Latvia to face trial were discontinued when he died in 2001.75 In 2000, Latvia requested the extradition of one of Ozols’s subordinates, Konrāds Kalējs, to face one charge each of war crimes and genocide crimes against humanity. A magistrate ruled that 67

68

69 70

71

72

73

74

75

Gillian Triggs, ‘Australia’s War Crimes Trials: All Pity Choked’ in Timothy L H McCormack and Gerry J Simpson (eds), The Law of War Crimes: National and International Approaches (Kluwer Law International, 1997) 123; Gideon Boas, ‘War Crimes Prosecution in Australia and Other Common Law Countries: Some Observations’ (2010) 21 Criminal Law Forum 313. David Bevan, A Case to Answer: The Story of Australia’s First European War Crimes Prosecution (Wakefield Press, 1994); Mark Aarons, War Criminals Welcome: Australia, a Sanctuary for Fugitive War Criminals since 1945 (Black Inc, 2001) 475–81. Polyukhovich v Commonwealth (1991) 172 CLR 501. Mark Aarons, War Criminals Welcome: Australia, a Sanctuary for Fugitive War Criminals since 1945 (Black Inc, 2001) 509. Mark Aarons, War Criminals Welcome: Australia, a Sanctuary for Fugitive War Criminals since 1945 (Black Inc, 2001) 509–13. Mark Aarons, War Criminals Welcome: Australia, a Sanctuary for Fugitive War Criminals since 1945 (Black Inc, 2001) 481–4. Mark Aarons, War Criminals Welcome: Australia, a Sanctuary for Fugitive War Criminals since 1945 (Black Inc, 2001) ch 3, 485–509. Mark Aarons, War Criminals Welcome: Australia, a Sanctuary for Fugitive War Criminals since 1945 (Black Inc, 2001) 485–509. Mark Aarons, War Criminals Welcome: Australia, a Sanctuary for Fugitive War Criminals since 1945 (Black Inc, 2001) 485–509.

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he was eligible for surrender in May 2001. Kalējs sought review of the order but died in November 2001; this brought the proceedings to an end.76 Successive Australian governments since that time have been criticised for not having a special war crimes unit and taking little action in relation to alleged war criminals living in Australia other than responding extradition requests from countries where war crimes were alleged to have been committed.77 The record has been mixed, with extradition proceedings often prolonged over periods of years and not always resulting in the return of the offender to the requesting country or, alternatively, trial in Australia. A prominent example is the request made by Croatia in 2006 for the return of Daniel Snedden (also known as Dragan Vasiljković) to face trial for alleged war crimes committed in 1991 and 1993 against prisoners of war and civilians when he was commander of a group of Serbian paramilitary forces. A protracted series of court actions78 eventually led to Snedden’s return to Croatia in 2015. A similarly lengthy case with a different outcome is the Zentai case, which lasted more than seven years before the High Court held that the offence involved was not an extraditable offence.79 Hungary had requested the extradition of Zentai to face trial for the commission of a war crime — namely, the killing of a young Jewish man in Budapest in 1944. The offence of ‘war crime’ had been introduced into Hungarian law only in 1945. Zentai argued that he could not be extradited since the Australia–Hungary extradition treaty80 provided that extradition could only be granted in respect of a specific offence if that offence had been a crime under Hungarian law at the time of the commission of the alleged offence, and that this had not been the case. A majority of the High Court agreed.81

76 77

78

79 80

81

Kalejs v Minister for Justice and Customs (2001) 111 FCR 442. Fergus Hanson, Confronting Reality: Responding to War Criminals Living in Australia (Lowy Institute, 2009); Mark Aarons, ‘Hideout’, The Monthly, March 2009, 14; Gideon Boas, ‘Australia Left Wanting when Allegations of War Crimes Arise’, The Sydney Morning Herald, 4 April 2011, . Significant screening also takes place in the context of persons applying to come to Australia: Monash University, War Criminals in Australia Project: Chronology . The War Crimes Act 1945 (Cth) s 21 requires the Attorney-General to present a report annually on the operation of the Act, including how many suspected offences are under investigation. The history is set out in Snedden v Minister for Justice (2014) 315 ALR 352. The High Court refused special leave to appeal from this decision: [2015] HCATrans 120 (15 May 2015). Minister for Home Affairs of the Commonwealth v Zentai (2012) 246 CLR 213. Treaty on Extradition between Australia and the Republic of Hungary, signed 25 October 1995, [1995] ATS 13 (entered into force 25 April 1997). Matthew Stubbs, ‘Zentai and the Troubles of Extradition’ (2013) 39(3) Monash University Law Review 894.

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V  AUSTRALIA AND THE INTERNATIONAL CRIMINAL TRIBUNALS [9.60]  In May 1993, the United Nations Security Council, acting under ch VII of the Charter of the United Nations, established the International Criminal Tribunal for the former Yugoslavia (‘ICTY’). The Council decided that all member states ‘shall cooperate fully’ with the Tribunal and ‘shall take any measures necessary under their domestic law to implement the provisions of the present resolution and the Statute’, including the obligation to provide assistance to the Tribunal.82 The Council resolution establishing the International Criminal Tribunal for Rwanda (‘ICTR’) in November 1994 imposed a similar obligation.83 In February 1994, the government introduced the International War Crimes Tribunals Bill 1994 (Cth) and the International War Crimes Tribunals (Consequential Amendments) Bill 1994 (Cth) to give effect to its obligations under Resolution 827. The Bills were to enable the arrest and surrender of persons to the ICTY; the provision of other assistance to the Tribunal; search, seizure and arrest powers; and other matters. The Bills were passed by the Senate in early May 1994 and then came before the House of Representatives, where they were referred to the Standing Committee on Legal and Constitutional Affairs. The Committee was concerned about a number of issues, including ensuring that there were proper opportunities for a person to seek review of any decision to surrender them to the Tribunal.84 The government accepted most of the recommendations made by the Committee.85 The Parliament accordingly amended the Bills, and also extended their operation to the ICTR, which had been established by the Security Council in the meantime. The substantive provisions of the legislation entered into force on 28 August 1995.86 Subsequently, the Parliament enacted the International Transfer of Prisoners Act 1997 (Cth), which permitted persons convicted of an offence by the ICTY or the ICTR to be transferred to Australia to serve their sentences. There do not appear to have been any such cases. In 2010, the Security Council established the Mechanism for International Criminal Tribunals (‘MICT’) to carry out a number of functions after the 82

83

84

85

86

SC Res 827, UN SCOR, 48th sess, 3217th mtg, para 4, UN Doc S/RES/827 (25 May 1993). SC Res 955, UN SCOR, 49th sess, 3453rd mtg, para 2, UN Doc S/RES/955 (8 November 1994). House of Representatives Standing Committee on Legal and Constitutional Affairs, Advisory Report on the International War Crimes Tribunal Bill 1994 and the International War Crimes Tribunal (Consequential Amendments) Bill 1994 (1994) 64–7. Government Response to House of Representatives Standing Committee on Legal and Constitutional Affairs, International War Crimes Tribunal Bill 1994 and War Crimes Tribunal (Consequential Amendments) Bill 1994, Parl Paper No 126 (1994). See also International War Crimes Tribunals Regulations 1995 (Cth).

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ICTY and ICTR completed their work.87 These functions include the capture and prosecution of a small number of remaining fugitives; the hearing of appeals, retrials and reviews of final judgments after specified cut-off dates; ensuring the protection of victims and witnesses; the supervision of the enforcement of sentences; the provision of assistance to national jurisdictions; and the preservation and management of the Tribunal and MICT archives.88 In 2013, the International War Crimes Tribunals Act 1995 (Cth) and other legislation were amended to reflect the role of the MICT and to facilitate Australia’s cooperation with it.89 The impact of the work of the tribunals on Australia appears to have been relatively minor (though many Australians have served in different capacities at the tribunals).90

VI  AUSTRALIA AND THE INTERNATIONAL CRIMINAL COURT A The Negotiation of the Rome Statute and the Ratification Debate [9.70]  Australia was strongly supportive of the establishment of a permanent international criminal tribunal throughout the process leading to the adoption of the Rome Statute of the International Criminal Court in 1998.91 It was a member of, and for a time (1998–2002) chaired, the Like-Minded Group of States, which were advocates of an effective statute.92 The Attorney-General 87

88

89

90

91

92

SC Resolution 1966, UN SCOR, 65th sess, 6463rd mtg, S/RES/1966 (22 December 2010). The ICTR completed its work in December 2015; as of mid-2106, the ICTY still has a number of ongoing cases. United Nations Mechanism for International Criminal Tribunals, About the MICT . Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection and Other Measures) Act 2013 (Cth) sch 5 (Assisting the International Residual Mechanism for Criminal Tribunals). This Act also amended the International Transfer of Prisoners Act 1997 (Cth) to permit persons serving sentences imposed or confirmed by the Residual Mechanism to be served in Australia. According to the annual reports of the Attorney-General’s Department from 2008–09 to 2013–14, Australia received in total 14 requests for assistance from the ICTY and apparently none from the ICTR. There appear to have been more requests earlier. Further details of the nature of the requests are not provided. There appear to have been no court cases relating to the powers under the International War Crimes Tribunals Act 1995 (Cth). Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002; entered into force for Australia 1 September 2002). See Hilary Charlesworth et al, No Country Is an Island: Australia and International Law (UNSW Press, 2006) 72. Joint Standing Committee on Treaties, Parliament of Australia, Report 45: The Statute of the International Criminal Court (2002) app C, 109–10. See Richard Rowe, ­‘International Law and Diplomacy: The Art of the Possible’ (2014) 15(2) Melbourne Journal of International Law 1, 5–11.

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and the Minister for Foreign Affairs each made statements underlining the importance that Australia placed on the establishment of a credible and effective court.93 Australia signed the Rome Statute on 9 December 1998. However, when the time came to decide on ratification of the treaty, there was considerable division of opinion among politicians (though not along party lines) and in the community.94 The Rome Statute and accompanying National Interest Analysis95 were tabled in the Parliament on 10 October 2000. The Parliament’s Joint Standing Committee on Treaties (‘JSCOT’) decided that a detailed examination of the treaty was required.96 Exposure drafts of the implementing legislation were released on 30 August 2001 and referred to JSCOT for consideration as part of its review. In its May 2002 report, JSCOT recommended the ratification of the Rome Statute,97 making a number of recommendations as to declarations or statements that the government should make when it ratified the treaty and as to amendments that should be made to the Bills. The political debate continued into June 2002, with the government needing both to agree on ratification and to ensure the passage of the implementing legislation through the Parliament prior to the deposit of Australia’s instrument of ratification.98 Among the concerns were the limitations on sovereignty, the possibility of a maverick prosecutor and a court that might develop its own jurisprudence in an unpredictable way by interpreting crimes not familiar in Australia domestic law, and concern about the implications for Australia military forces abroad.99 The debate was fiercely contested and for a time it was not clear whether Australia would ratify at all or, if it did, whether it would do so by the time the Rome Statute was to enter into force (1 July 2002) so that 93

94

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96

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98

99

See Statute of the International Criminal Court, done at Rome on 17 July 1998 — National Interest Analysis [2000] ATNIA 24. See generally Hilary Charlesworth et al, No Country Is an Island: Australia and International Law (UNSW Press, 2006) 71–82. Statute of the International Criminal Court, done at Rome on 17 July 1998 — National Interest Analysis [2000] ATNIA 24. Joint Standing Committee on Treaties, Parliament of Australia, Report 45: The Statute of the International Criminal Court (2002) app B, 97–8. Joint Standing Committee on Treaties, Parliament of Australia, Report 45: The Statute of the International Criminal Court (2002) app B, 97–8. The formal government response to the report was tabled on 12 February 2004: Government Response to the Report of the Joint Standing Committee on Treaties Inquiry into the Statute of the International Criminal Court . See generally Hilary Charlesworth et al, No Country Is an Island: Australia and International Law (UNSW Press, 2006) 76–8. David Blumenthal, ‘Australian Implementation of the Rome Statute of the International Criminal Court’ in David A Blumenthal and Timothy L H McCormack (eds), The Legacy of Nuremberg: Civilising Influence or Institutionalised Vengeance? (Martinus Nijhoff, 2008) 283, 286–311; Mary Dean, ‘Sovereignty and the International Criminal Court: An Analysis of the Submissions Opposed to Australia’s Ratification’ (2002) 6 Southern Cross University Law Review 249.

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it could participate in the first meeting of the Assembly of States Parties and thus in the election of the Court’s first judges. However, the government finally ratified the Rome Statute on 1 July 2002 with a declaration that sought to address some of the concerns that had been raised in the domestic debate.100 It noted that arrests or orders of surrender to the International Criminal Court (‘ICC’) would require the approval of the Attorney-General and included in its ratification an ‘understanding’ that the crimes in arts 6 to 8 of the statute would be ‘interpreted and applied in a way that accords with the way they are implemented in Australian domestic law’. Although described by Australia as ‘not a reservation’, the ‘declaration’ does appear to have the potential to limit Australia’s obligations under the Rome Statute.101

B  Implementation in Australian Law and Practice [9.80]  In order to permit ratification of the Rome Statute, the Australian Parliament enacted two statutes.102 The first was the International Criminal Court Act 2002 (Cth), the purpose of which was to authorise and facilitate the surrender of suspects to the ICC and to provide for other forms of assistance as required under pt 9 of the Rome Statute (this was similar in a number of respects to the International War Crimes Tribunals Act 1995 (Cth)). The second statute, the International Criminal Court (Consequential Amendments) Act 2002 (Cth) (‘ICC (CA) Act’), permitted Australia to take advantage of the complementarity provisions of the Rome Statute. Not all of the offences that fall within the jurisdiction of the Court were criminal offences under Australian law prior to Australia’s ratification of the statute. Genocide was one such omission,103 as well as a number of the newly formulated crimes such as forced pregnancy. In order for Australia to be able to invoke the principle of complementarity — under which it is entitled to investigate and try a case before the ICC may do so — it must be possible to prosecute relevant offences under Australian law. Incorporation of the offences under the Rome Statute was considered the most effective way of ensuring this. The ICC (CA) Act inserted a new div 268 into the Commonwealth Criminal Code which 100

101

102

103

United Nations Treaty Collection, Multilateral Treaties Deposited with the Secretary-General, ch XVIII.10 . See Pauline Collins, ‘What Is Good for the Goose Should Be Good for the Gander: The Operation of the Rome Statute in the Australian Context’ (2009) 32(1) University of New South Wales Law Journal 106. Gillian Triggs, ‘Implementation of the Rome Statute for the International Criminal Court: A Quiet Revolution in Australian Law’ (2003) 25(4) Sydney Law Review 507; Gideon Boas ‘An Overview of Implementation by Australia of the Statute of the International Criminal Court’ (2004) 2 Journal of International Criminal Justice 179. See Nulyarimma v Thompson (1999) 96 FCR 153 (genocide not a crime under Australian law). See Shirley Scott, ‘Why Wasn’t Genocide a Crime in Australia? Accounting for the Half-century Delay in Australia Implementing the Genocide Convention’ (2004) 10(2) Australian Journal of Human Rights 22.

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incorporated into Australian law the crimes covered by the Rome Statute, largely following the language of the statute and Elements of Crimes.104 While the new provisions permit the prosecution of persons for crimes for which they might be brought before the ICC, the crimes are not limited to such circumstances but are of general application. The offences are also extraterritorial in operation and universal jurisdiction may be exercised over alleged perpetrators who are found in Australia. As noted earlier, the grave breaches offences contained in the Geneva Conventions Act were also transferred to the Criminal Code when the Rome Statute was ratified.

C  Subsequent Engagement with the ICC [9.90]  Given concerns that the ICC might ‘begin to develop its own particular brand of jurisprudence which many not in all cases be appropriate to application under the Australian legal system’,105 JSCOT recommended that the government monitor the operation of the ICC and submit an annual report to Parliament, to be considered by JSCOT.106 A reporting requirement was included in the International Criminal Court Act.107 These reports, annexes to the annual reports of the Attorney-General’s Department, provide an overview of the ICC regime, situations under investigation, cases instituted, the results of decided cases, the activities of the Assembly of States Parties, and other developments (such as the amendments to the Rome Statute at the 2010 Review Conference),108 as well as details of Australia’s financial support (until 2011).109 So far as impact on the Australian legal system is concerned, 104

105

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107 108

109

For concerns about the translation of some crimes, see Jeremy Gans, Australia’s Reckless Enactment of the War Crime of Wilful Killing (1 May 2003) ; Robert McLaughlin and Bruce Oswald, ‘“Wilful Killing” during Armed Conflict: Is There a Defence of Proportionality in Australia?’ (2007) 18 Criminal Law Forum 1; David Blumenthal, ‘Australian Implementation of the Rome Statute of the International Criminal Court’ in David A Blumenthal and Timothy L H McCormack (eds), The Legacy of Nuremberg: Civilising Influence or Institutionalised Vengeance? (Martinus Nijhoff, 2008) 316–24. Joint Standing Committee on Treaties, Parliament of Australia, Report 45: The Statute of the International Criminal Court (2002) [3.56]. Joint Standing Committee on Treaties, Parliament of Australia, Report 45: The Statute of the International Criminal Court (2002) [3.56]. International Criminal Court Act 2002 (Cth) s 189. Australia pays assessed contributions and has also made voluntary contributions to the Trust Fund for Victims, the Trust Fund for Least Developed Countries, and the Internships and Visiting Professionals Program. It has also financially supported the work of the NGO Coalition for the International Criminal Court and has supported a range of other civil society activities related to the Court. Australia has also provided support to other tribunals, including in-kind and other support to the Serious Crimes Panel of the Dili District Court in Timor-Leste and significant financial support to the Extraordinary Chambers in the Courts of Cambodia. Details of the financial support provided to the ICC and related activities now appear to be available only in the Attorney-General’s Department Portfolio Budget Statements. See, eg, ‘Program 1.7: National Security and Criminal Justice’, Portfolio Budget Statements 2014–15 .

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the reports have regularly stated that ‘the operations of the ICC [have] had no discernible impact on Australia’s legal system’.110 Only a small number of requests for assistance have been received from the ICC. As of 30 September 2016, Australia had not yet ratified the amendments to the Rome Statute adopted at the Kampala Review Conference in 2010.111 In February 2016, the government indicated that it was considering the issue, but gave no further details as to the priority or progress of that process.112 Nor, as of 30 September 2016, had Australia become party to the Agreement on the Privileges and Immunities of the International Criminal Court.113 This was despite the fact that the primary legislation to give effect to the agreement had commenced operation in November 2013.114 The Explanatory Memorandum to the Bill had indicated that the legislation would pave the way for Australia’s accession to the agreement.115 The legislation authorises the making of regulations conferring the standard privileges and immunities on the Court and its officials, as well as certain privileges and immunities on victims participating in ICC proceedings.116 The Act also provides for the conferral of juridical personality and legal capacities on the Court.117 As of 4 April 2016, such regulations do not appear to have been made, and the delay in acceding to the agreement was presumably for this reason. Regulations in relation to the International Committee of the Red Cross, the other organisation covered by the 2013 amendments, were made in 2013.118 Australia was among the many countries approached by the United States in 2002 to enter into a bilateral immunity agreement barring the surrender of nationals to the ICC. While comments by the Foreign Minister, 110

111

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113 114

115

116 117 118

Attorney-General’s Department, Annual Report 2014–15, app 6 (‘The International Criminal Court’), 188. Amendments on the crime of aggression to the Rome Statute of the International Criminal Court, Resolution RC/Res.6 of the Review Conference of the Rome Statute, 11 June 2010 (not yet in force); Amendment to article 8 of the Rome Statute of the International Criminal Court, Resolution RC/Res.5 of the Review Conference of the Rome Statute, 10 June 2010 (entered into force 26 September 2012). Nor has Australia adhered to the Amendment to article 124 of the Rome Statute of the International Criminal Court, Resolution ICC-ASP/14/Res.2, adopted by the Assembly of States Parties to the Rome Statute 26 November 2015 (not yet in force). Report of the Working Group on the Universal Periodic Review: Australia, Addendum: Views on conclusions and/or recommendations, voluntary commitments and replies presented by the State under review, UN Human Rights Council, 31st sess, Agenda Item 6, UN Doc A/HRC/31/14/ Add.1 (29 February 2016) [6]. Signed 9 September 2002, 2271 UNTS 3 (entered into force 22 July 2004). International Organisations (Privileges and Immunities) Amendment Act 2013 (Cth) (inserting a new s 9C, commencing operation on 8 November 2013). Explanatory Memorandum, International Organisations (Privileges and Immunities) Amendment Bill 2013 (Cth) 2. International Organisations (Privileges and Immunities) Act 1963 (Cth) s 12A. International Organisations (Privileges and Immunities) Act 1963 (Cth) s 12A. International Organisations (Privileges and Immunities) (International Committee of the Red Cross) Regulation 2013 (Cth), SLI 2007 No 237.

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Alexander Downer, initially suggested that Australia was sympathetic to such a request,119 subsequent comments by Australian officials diplomatically stressed the country’s commitment to the ICC regime, while noting that states held different views about the Court.120 Australia entered into discussions with the United States during which each side maintained its position, but never concluded an art 98 agreement with the United States. Had it done so, there are strong arguments that this would have put Australia in violation of its obligations under the Rome Statute.121

D Communications to the ICC by Civil Society in Relation to Australian Nationals [9.100]  Although attempts have been made to bring cases involving Australians before the Court, to date no Australian nationals have been charged with crimes by the ICC. Communications were submitted to the Office of the Prosecutor (‘OTP’) against Australian leaders (in particular, the then Prime Minister, John Howard), as well as other leaders of the ‘Coalition of the Willing’, in relation to the 2003 Iraq war. These allegations tended to focus on the claimed illegality of the initiation of hostilities against Iraq.122 Even if the invasion was unlawful, it is not clear that it would amount to the crime of aggression — a crime which in any event was not prosecutable before the Court at the time of the war. The then Prosecutor decided not to seek authorisation to open a formal investigation, though indicated that communications would be kept on file and any further relevant material would also be considered.123 In 2014, the current Prosecutor, having received 119

120

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122

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Coalition for the International Criminal Court, Summary of News on So-Called ‘Article 98’ Agreements (13 November 2002) (referring to comments made in August 2002) . See Government References to So-Called Article 98 Agreements September–October 2002, UN GAOR, 57th sess, 6th comm (15 October 2002) 1 (reference to statement to the Sixth Committee by Mr Richard Rowe, adviser to Australian delegation, 15 October 2002) . See James Crawford, Philippe Sands and Ralph Wilde, In the matter of the Statute of the International Criminal Court and in the matter of bilateral agreements sought by the United States under Article 98(2) of the Statute — Joint opinion (5 June 2003) . The group ICCACTION has sent a number of communications to the Court claiming not just the illegal use of force, but also the commission of war crimes. Brief of evidence from Glenn Floyd to Fatou Bensouda, 12 October 2014, . See also Letter to the ICC from SEARCH, 3 September 2013, . This latter com­ plaint is poorly drafted, and its drafters appear not to understand that the Court has no jurisdiction in relation to the claimed violations of the jus ad bellum. The drafters provide no substantial material relating to crimes that do fall within the jurisdiction of the Court. Luis Moreno-Ocampo, OTP response to communications received concerning Iraq (9 February 2006) International Criminal Court .

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additional information in relation to the war as regards the actions of UK forces, decided to reopen the OTP preliminary examination into the situation in Iraq, at least in relation to UK actions and nationals.124 Efforts have also been made to engage the Court’s jurisdiction in relation to Australia’s offshore detention policies on Nauru and Manus Island. The Prosecutor has been requested to conduct an investigation into these policies and practices on the ground that they may involve crimes against humanity within art 7 of the Rome Statute.125 The government has rejected the suggestion that there is any violation of international law involved.126 While the OTP has formally acknowledged the communications, it does not appear that the Office has yet reached a decision on whether to conduct a preliminary examination. Another case involving a more tangential connection with Australia was a communication to the OTP relating to the role of a dual Australian–Sri Lankan national, Dr Palitha Kohona, during the Sri Lankan civil war. Kohona was a former official of the Australian Department of Foreign Affairs and former Head of the United Nations Treaties Division; at the relevant time, he was serving as Secretary of Sri Lanka’s External Affairs Ministry and was later the Sri Lankan Permanent Representative to the United Nations in New York. Allegations submitted to the Office of the Prosecutor by two Tamil groups claimed that, in the final stages of the civil war in Sri Lanka, Kohona had been involved in encouraging the surrender of a number of Tamil leaders, who were killed upon their surrender.127 As Sri Lanka is not a party to the Rome Statute, the argument was made that the Court had jurisdiction over this particular incident because of Kohona’s Australian nationality. The charges would have faced some significant legal 124

125

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International Criminal Court, Iraq (13 May 2014) . See Andrew Wilkie, Communiqué for the Office of the Prosecutor regarding Mr Andrew Wilkie MP’s application relating to crimes against humanity in Australia (23 January 2015) ; Letter from Andrew Wilkie to Fatou Bensouda, 10 February 2016, . For further documents, see Andrew Wilkie, Asylum Seekers — International Criminal Court . See also Refugee Action Collective (Victoria), Communiqué for the Office of the Prosecutor regarding the application to the International Criminal Court by Refugee Action Collective (Victoria) (15 October 2015) . Amy Maguire, ‘Will the International Criminal Court Prosecute Australia for Crimes against Humanity?’, The Conversation, 27 October 2014, . Swiss Council of Eelam Tamils and Tamils against Genocide, Article 15 Request to Initiate War Crime Investigations leading to the issuance of an Article 58 Warrant of Arrest of Dual Australian-Sri-Lankan National, Palitha Kohona (17 January 2011) .

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and evidentiary difficulties.128 As of September 2016, there appeared to have been no response by the Prosecutor to the representations, and no mention of the submission appeared on the Court’s website. Australia would also have jurisdiction to investigate and prosecute Kohona under the Criminal Code; Australian political leaders approached in relation to the matter stated that the investigation of such crimes was a matter for the AFP.129 The AFP acknowledged receipt of relevant material in March 2012,130 but there appears to have made no public statement on the matter since then.

VII  THE CASE OF DAVID HICKS [9.110]  The detention and trial of Australian national David Hicks131 before a US military commission at the US naval base in Guantánamo Bay was a high profile and controversial case in Australia.132 Hicks had been captured in Afghanistan and handed to US forces in December 2001. He was held at Guantánamo Bay from January 2002 until May 2007 and complained that he had been subjected to torture and other forms of inhumane treatment during his detention.133 Hicks was held without charge until June 2004, when he was charged with a number of offences triable by military commission, including (a) conspiring to attack civilians and civilian objects, to commit murder and to destroy property as an unprivileged belligerent, and to engage in terrorism; (b) attempted murder by an unprivileged belligerent; and (c) aiding the enemy in the context of and associated with an armed conflict.134 The military commissions did not comply with the requirements of common art 3 of the Geneva Conventions (incorporated into US law by the 128

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Gideon Boas, ‘Australia Left Wanting when Allegations of War Crimes Arise’, The Sydney Morning Herald, 4 April 2011, . Letter from Jason Clare to Michelle Rowland, 7 March 2012, . Letter from the Deputy Commissioner of the Australian Federal Police to the Australian Federation of Tamil Associations, 22 March 2012 (acknowledging receipt of information via the Minister for Home Affairs, Jason Clare), . See Leigh Sales, Detainee 002: The Case of David Hicks (Melbourne University Press, 2007); Michael Mori, In the Company of Cowards: Bush, Howard and injustice at Guantánamo (Viking, 2014); Timothy L H McCormack, ‘David Hicks and the Charade of Guantánamo’ (2007) 8(2) Melbourne Journal of International Law 273. See, eg, the work of the Law Council of Australia, David Hicks . David Hicks, ‘The David Hicks Affidavit’, The Sydney Morning Herald, 5 August 2004, . US Department of Defense, Charge sheet, June 2004, in Leigh Sales, Detainee 002: The Case of David Hicks (Melbourne University Press, 2007) app II, 256.

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Uniform Code of Military Justice). This prohibits, in the context of noninternational armed conflicts, the ‘passing of sentences … without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples’. Further, the charges were not ones known to the law of war and, in the case of the charge of aiding the enemy, inapt to Hicks as an Australian national. The Australian government did not take a public position on the legality of the proceedings, preferring to stress the alleged criminality of those who were held at Guantánamo Bay and expressing political support for the US efforts to respond to terrorism. During Hicks’s detention, the Australian government provided consular assistance to him but did not apply pressure to the US government to repatriate Hicks — as had a number of other Western governments, above all the United Kingdom.135 Australia’s publicly and privately expressed views to the United States were that Hicks should be tried before a military commission, as there was no offence under Australian law for which he could be tried. Its political efforts, particularly as time passed, were directed to expediting the proceedings. On 29 June 2006, before Hicks’s trial could proceed, the US Supreme Court ruled in Hamdan v Rumsfeld that the system of military commissions was unlawful under US and international law.136 In particular, it held that the system of military commissions did not comply with the requirement of a fair hearing before a properly constituted court guaranteed by common art 3.137 In October 2006, the US Congress enacted the Military Commission Act of 2006, which sought to address the deficiencies identified in Hamdan. Hicks remained in custody without charge, and the matter by then had become a 135

136 137

In September 2005, after discovering that he was entitled to UK citizenship through his mother, Hicks lodged an application under the British Nationality Act 1981 (UK). He successfully challenged the initial refusal of his application. See R v Secretary of State for the Home Department; Ex parte Hicks [2005] EWHC 2818 (Admin) and Secretary of State for the Home Department v Hicks [2006] EWCA Civ 400. The UK government granted Hicks citizenship in July 2006 and then revoked it on the same day under s 55 of the Act, on the ground that he posed a threat to the national security of the United Kingdom and that to deprive him of his citizenship was ‘conducive to the public good’. Vikram Dodd, ‘Reid Revoked Citizenship of Guantánamo Detainee’, The Guardian, 12 January 2007, . Hicks’s subsequent action to force the Australian government to take steps did not reach final resolution: Hicks v Ruddock (2007) 156 FCR 574. Hamdan v Rumsfeld 548 US 557 (2006). International Committee of the Red Cross, Geneva Convention (I) on Wounded and Sick in Armed Forces in the Field,1949, Commentary of 2016: Conflicts Not of An International Character Article 3 [328]–[332] ; Louise Doswald-Beck, ‘Judicial Guarantees under Common Article 3’ in Andrew Clapham, Paola Gaeta and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary (Oxford University Press, 2015) 469.

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political irritant for the Australian government, with a federal election due in 2007. The then Prime Minister, John Howard, wished to remove ‘barnacles’ that were getting in the way of the government’s focusing on major issues. The delay in the Hicks case, together with the growing public support for Hicks, was one such ‘barnacle’.138 Australia made representations at the highest political levels to put pressure on the United States to bring Hicks to trial.139 In February 2007, Hicks was charged with the offences of providing material support for terrorism and attempted murder.140 Neither offence was known to the law of war and, to the extent that the material support charge was based on US law, it was retrospective and therefore invalid.141 The attempted murder charge was eventually dropped. Criticism continued to be voiced that, despite the changes from the earlier commissions, the new military commissions still fell short of the international standards. The government’s position was that the essential safeguards for a fair trial were in place.142 On 26 March 2007, Hicks pleaded guilty, following the conclusion of a plea bargain. He received a sentence of seven years, of which six years and three months were suspended, with seven months to be to be served in an Australian prison. The agreement imposed a range of other conditions, including a ban on speaking to the media for 12 months. Hicks returned to Australia in May 2007143 and spent seven months in prison in Adelaide, being released on 29 December 2007. On his release, he was subject to a control order, effective for 12 months, which imposed reporting and curfew conditions. 138 139

140

141

142

143

John Howard, Lazarus Rising (HarperCollins, 2011) 635. Howard had raised the matter with President Bush at an Asia-Pacific Economic Cooperation meeting in November 2006 and did so again with Vice President Cheney during his visit to Australia in February 2007, when, Howard writes, ‘I pressed him hard on Hicks’, to which Cheney responded that Hicks was ‘at the head of the queue’. Howard concluded that the Americans ‘had got the message’. John Howard, Lazarus Rising (HarperCollins, 2011) 635. US Department of Defense, ‘Sworn Charges: Providing Material Support for Terrorism; and Attempted Murder in Violation of the Law of War, Military Commissions: David M. Hicks’, 1 March 2007, in Leigh Sales, Detainee 002: The Case of David Hicks (Melbourne University Press, 2007) app III, 261. See Peter Vickery QC et al, Advice — In the Matter of the Legality of the Charge against David Hicks (8 March 2007) . This position was subsequently confirmed in Al Bahlul v United States, 767 F 3d 1 (DC Cir 2014) (en banc). See, eg, Philip Ruddock, ‘Why He Can’t Return’, The Age (Melbourne), 7 January 2007, . See ‘Arrangement between the Government of Australia and the Government of the United States of America on the Transfer of Prisoners Sentenced by United States Military Commissions Established Pursuant to the Military Commissions Act of 2006 and the United States Code and on Cooperation in the Enforcement of Sentences Imposed by those Military Commissions’, International Transfer of Prisoners (Military Commission of the United States of America) Regulations 2007, SLI 2007 No 79, sch 1.

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On 19 July 2011, the Commonwealth Director of Public Prosecutions (‘CDPP’) instituted proceedings against Hicks under the Proceeds of Crime Act 2002 (Cth)144 in relation to the publication by Hicks of his version of events.145 The CDPP sought a restraining order and a literary proceeds order, stating that the proceedings were based on documentary evidence, including the evidence of Hicks’s conviction, the transcript of proceedings before the military commission, and other military commission documents.146 Hicks challenged the admissibility of these documents on the basis of the circumstances in which he had made the admissions relied on and the fact that his conviction was the result of an ‘Alford plea’, a type of plea not known to the Australian criminal justice system. On 24 July 2012, the CDPP discontinued the proceedings, having concluded that his Office ‘was not in a position to discharge the onus placed upon it to satisfy the Court that the admissions should be relied upon’.147 By so doing, the CDPP (and the government) avoided what would no doubt have been a collateral attack on the legality of the military commission proceedings and the role that the Australian government had played in supporting the conduct of those proceedings. On 5 November 2013, Hicks appealed against his conviction and sentence to the US Court of Military Commission Review. In February 2015, the Court upheld Hicks’s appeal, setting aside his conviction and vacating the sentence.148 The Court held that the offence to which Hicks had pleaded guilty had not existed at the time he committed the acts allegedly constituting the crime. This point had been made by many involved in the case, as well as by a range of professional bodies and expert commentators.149 It is not clear whether the Australian government was so advised by its own legal advisers and whether the government simply ignored legal advice to this effect in a desire not to alienate the United States while seeking to expedite the proceedings against Hicks in order to avoid its own political embarrassment. 144

145 146

147

148

149

See Lucas Bastin, ‘David Hicks and Australian Proceeds of Crime Legislation: Can He Sell His Story?’ (2009) 37(2) Federal Law Review 315. David Hicks, Guantánamo: My Journey (William Heinemann, 2010). Commonwealth Director of Public Prosecutions, ‘Statement in the Matter of David Hicks’ (Media Release, 24 July 2012) . Commonwealth Director of Public Prosecutions, ‘Statement in the Matter of David Hicks’ (Media Release, 24 July 2012) . David M Hicks v United States of America, CMCR 13-004, 18 February 2015, . Communication to the United Nations Human Rights Committee on behalf of David Hicks, August 2010, .

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In September 2010, Hicks had also submitted a communication to the UN Human Rights Committee, claiming that Australia’s actions and inaction involved multiple violations of the International Covenant on Civil and Political Rights.150 While the Committee rejected most of Hicks’s claims, it held that his detention in Australia pursuant to the transfer agreement with the United States involved a violation of his right not to be arbitrarily detained.151 For a state party to the Geneva Conventions to advocate and support, indeed press for, a trial as insistently as Australia did, where that trial would be in violation of common art 3, arguably amounts to a violation by that state party of its obligations under common art 1 ‘to respect and to ensure respect for the present Convention in all circumstances’. This obligation has an ‘external compliance dimension’ that is in relation to the actions of other states parties.152 There is also the possibility that the advocacy of such a trial could give rise to individual criminal responsibility under Australian153 and international law.

VIII  INCORPORATION OF OTHER INTERNATIONAL CRIMES INTO AUSTRALIAN LAW [9.120]  The enactment into Australian law of Rome Statute-based crimes was a major change to Australian law. Other international crimes have also been incorporated in different ways. For example, the crime of torture, which Australia is obliged to criminalise under domestic law and to make provision for extraterritorial jurisdiction and extradition,154 was initially implemented by the Crimes (Torture) Act 1988 (Cth). However, in 2010 that offence was transferred to the Criminal Code.155 Other offences, such as crimes against 150

151

152

153

154

155

International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976). Hicks v Australia, Communication 20005/2010, views of 5 November 2015, CCPR/ C/115/D/2005/2010 (19 February 2016). See Sarah Joseph, Australia Found to Have Breached the Human Rights of David Hicks (22 February 2016) . Stuart Casey-Maslen, ‘The Obligation to Respect and to Ensure Respect for the Conventions’ in Andrew Clapham, Paola Gaeta and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary (Oxford University Press, 2015) 111, 120–32. Under ss 11.1, 11.2, 11.4 and 268.76, alternatively s 268.31, of the Australian Criminal Code Act 1995 (Cth). See Law Council of Australia and Peter Vickery, ‘Military Commissions Act 2006 — Compliance with Common Article 3 of the Geneva Conventions, the Hamdan Decision and Australian Law’ (9 November 2006) [110] . Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987; entered into force for Australia 7 September 1989) arts 7 and 8 (‘Convention against Torture’). The Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Act 2010 (Cth) inserted a new div 274 (‘Torture’) into the Criminal Code.

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internationally protected persons,156 have been incorporated by means of specific statutes.157 There have been few discussions in other Australia cases of international crimes other than war crimes. One of these, R v Tang,158 concerned a prosecution for possession and use of a slave, pursuant to s 270.3(1)(a) of the Criminal Code. There have also been prosecutions for crimes against internationally protected persons.159 There has been at least one request to Australia for the extradition of a person for aggravated kidnapping and crimes against humanity during the Pinochet era, made by Chile in early 2014.160 As of mid-2016, this had not proceeded to the Australian courts, nor did it appear that the request had been refused.

IX  IMMUNITY UNDER AUSTRALIAN LAW AND THE INVESTIGATION AND PROSECUTION OF INTERNATIONAL CRIMES [9.130]  The issue of whether immunity exists against national criminal prosecutions for international crimes alleged to have been committed by officials of foreign states (including both serving and former high officials), diplomatic and consular representatives, and serving and former officials of international organisations has been a contentious one. The weight of international decisions and state practice is that customary international law does not recognise a general ‘human rights exception’ to state or other forms of immunity. Thus, criminal cases cannot be brought against serving high officials or diplomatic representatives (who enjoy immunity ratione personae while they hold that office),161 or against serving and former consular officials 156

157 158

159 160

161

Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, 14 December 1973, 1035 UNTS 167 (entered into force 20 February 1977; entered into force for Australia 20 July 1977). Crimes (Internationally Protected Persons) Act 1976 (Cth). R v Tang (2008) 237 CLR 1 and R v Tang (2009) 23 VR 332. For other examples, see Andreas Schloenhardt, Genevieve Beirne and Toby Corsbie, ‘Trafficking in Persons in Australia: Myths and Realities’ (2009) 10(3) Global Crime 224, 237–41; Andreas ­Schloenhardt and Jarrod M Jolly, Trafficking in Persons in Australia: Myths and Realities (LexisNexis Butterworths, 2013). See, eg, R v Roche (2005) 188 FLR 336. Decision of the Supreme Court of Chile, Case 8915-2013 (16 January 2014) . See Martin McKenzieMurray, ‘Accused from Pinochet’s Chile Still in Australia’, The Saturday Paper, 20 June 2015, . See Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Judgment) [2002] ICJ Reps 3 (immunity from criminal process of serving high-level official). See also Case Concerning the Jurisdictional Immunities of the State (Germany v Italy; Greece Intervening) (Judgment) [2012] ICJ Reps 99.

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and former diplomats in relation to acts performed in their official capacity (immunity ratione materiae). Nor can civil cases be brought against a state or officials of a state.162 Nonetheless, there is authority163 for the existence of a limited exception to immunity ratione materiae where a former high state official (and by analogy former diplomat, or serving or former consular official) is alleged to have committed torture as defined in the Convention against Torture.164 The Australian legislative position embodies the traditional view;165 indeed, it does not appear that, had the Pinochet case arisen in Australia, the result would have been the same. The state of the law was the subject of dialogue between the government and the Parliamentary Joint Committee on Human Rights (‘PJCHR’) in the context of the International Organisations (Privileges and Immunities) Amendment Bill 2013 (Cth) and regulations made under it. The PJCHR referred to the Pinochet case, and to case law of the UN Committee Against Torture and the International Court of Justice, as support for the position that there was no immunity in such cases. The government responded that the law was ‘unsettled’, there was ‘limited jurisprudence’, the case law was ‘not determinative’, and it would be ‘premature’ to legislate on this matter.166 Of course, there is no such immunity for a person before an international criminal tribunal such as the ICC.167 Whether such a person would have immunity from national proceedings to bring about that person’s surrender by a state to the ICC is less clear. Under customary international law, such immunity may exist,168 but in the case of states parties, subject to art 98, there would appear to be an obligation to surrender, and immunity from national proceedings to bring that about would appear inconsistent with that obligation. Where a national of a non-state party is involved, then the 162

163

164

165

166

167 168

See also Al-Adsani v United Kingdom, App no 35763/97 [2001] ECHR 761 (21 November 2001). R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte [No 3] [2000] 1 AC 147 (‘Pinochet’); UN Committee Against Torture, Guengueng v Senegal, Communication No 181/2001, A/61/44, at 160 (2006); International Court of Justice, Case Concerning Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal) (Judgment) [2012] ICJ Reps 422. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987; entered into force for Australia 7 September 1989). See the Foreign States Immunities Act 1985 (Cth), the Diplomatic Privileges and Immunities Act 1967 (Cth) and the Consular Privileges and Immunities Act 1972 (Cth). See also the International Organisation (Privileges and Immunities) Act 1963 (Cth) and regulations made under that Act. See also chapter 16 of this volume on immunities in Australia. For a summary of the exchanges, see Leah Ferris, International Organisations (Privileges and Immunities) Amendment Bill 2013, No 134 of 2012–13, 12 June 2013, 9–11. Rome Statute art 27. Minister of Justice and Constitutional Development v Southern African Litigation Centre [2016] ZASCA 17.

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relevant Security Council resolution referring the matter to the Court would arguably provide the basis under international law for removing immunity in national proceedings.169 The Australian legislation implementing the Rome Statute does not address this issue directly. However, the International Criminal Court Act provides for consultations with the ICC and the country concerned if cooperation requested by the ICC may ‘raise problems relating to Australia’s international obligations to a foreign country’.170

A Efforts to Bring Proceedings against Visiting Leaders or Officials [9.140]  Civil society groups have on a number of occasions mooted the bringing of prosecutions against visiting foreign leaders or officials, or have actually initiated such proceedings. These proceedings have generally been short-lived, in view of the executive control of such proceedings — whether in the form of the Attorney-General’s power to take over and discontinue criminal proceedings initiated by private parties, or the requirement that prosecutions for a number of such crimes can only be commenced with the consent of the Attorney-General. One such example is the proceedings instituted by a private citizen against the President of Sri Lanka, Mahinda Rajapaksa, when he visited Australia in 2011 for the Commonwealth Heads of Government meeting. The case was quickly brought to an end when the Commonwealth AttorneyGeneral made it clear that his consent, required under the Criminal Code, for the institution of such proceedings171 would not be forthcoming because the institution of such proceedings would be in violation of Australian law and Australia’s international obligations to afford a visiting head of state immunity from criminal proceedings.172 There has also been a number of cases in which civil proceedings have been instituted against foreign heads 169

170 171 172

Minister of Justice and Constitutional Development v Southern African Litigation Centre [2016] ZASCA 17 and the decisions to similar effect by the ICC in relation to President Al Bashir: Prosecutor v Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09 . International Criminal Court Act 2002 (Cth) s 12. See also chapter 16 of this volume. Criminal Code s 268.121(1). Aja Styles, ‘Sri Lankan PM Will Not Answer War Crimes Claims’, The Sydney Morning Herald (online), 26 October 2011, . Further, internal documents including briefing notes to the Attorney-General . See Anna Hood and Monique Cormier, ‘Prosecuting International Crimes in Australia: The Case of the Sri Lankan President’ (2012) 13(1) Melbourne Journal of International Law 235; Emily Crawford, ‘International Humanitarian Law in the Courts of Australia’ in Derek Jinks, Jackson N Maogoto and Solon Solomon (eds), Applying International Humanitarian Law in Judicial and Quasi-Judicial Bodies: International and Domestic Aspects (TMC Asser Press, 2014) , 335, 342–3.

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of state/government and officials, alleging conduct that would constitute international crimes such as torture. These have been unsuccessful, foundering on the immunity of foreign officials.173

X CONCLUSION [9.150]  Australia has been an active participant in the development and application of international criminal law since the time when it began to emerge as an independent actor on the international plane. In the last few decades, Australia has been a reliable supporter and funder of initiatives and institutions of international criminal justice. When it comes to the domestic enforcement of international criminal law, Australia has a reasonably good track record of implementing international and transnational crimes into domestic law (though the delay in enacting genocide as a domestic criminal offence is a striking exception). Its track record in prosecutions has been much more mixed. Apart from the Australian war crimes trials of Japanese accused after the Second World War and the efforts to prosecute alleged European war criminals in the late 1980s and early 1990s that ended in failure amid a loss of political support, Australia has had little appetite for investigating and prosecuting persons alleged to have committed serious international crimes committed in armed conflicts or other contexts overseas. The approach adopted has been to respond to extradition requests from interested states and to deal with such issues through immigration law screening, both of those claiming refugee status and others seeking entry to Australia. As in many other countries, Australian courts have been a largely unavailable forum for the prosecution of alleged international crimes committed by foreign officials or Australian officials, with access barred by the requirement of the consent of the Attorney-General to such prosecutions and the barriers of state immunity.

173

See, eg, Li v Zhou (2014) 310 ALR 66; Zhang v Zemin (2010) 243 FLR 299.

10 Transnational Criminal Law in Australia Robin Warner and Marika McAdam

I INTRODUCTION [10.10]  Accelerating globalisation has resulted in complex movements of goods and people around the world. While much of this activity occurs through legitimate channels, organised crime groups profit from illicit markets by capitalising on opportunities to supply to demand. The capabilities of transnational crime groups are as diverse as the crimes that they perpetrate, ranging from drug and firearms trafficking to migrant smuggling, trafficking in persons and human organs, cybercrime, terrorism, wildlife trafficking and illegal fishing. Smaller, low-capacity groups may consist of networks of opportunistic individuals who operate on an ad hoc basis. At the other end of the spectrum are sophisticated and well-funded ventures that are highly professional and have the benefit of legal and financial advice that allows them to operate across several countries with relative impunity.1 The resilience and adaptability of such groups and their continual formation of new alliances and identification of new markets, routes and modus operandi underscores the need for criminal justice responses to be as proactive, dynamic and cooperative in their efforts to combat them.2 Over the past three decades, the international community has negotiated a range of international legal instruments with the objective of combating rising 1

2

Australian Crime Commission, Organised Crime in Australia 2015 (2015) 8 . Ensuring effective implementation of the United Nations Convention against Transnational Organized Crime and the Protocols thereto, 7th sess, UN Doc CTOC/COP/2014/2 (4 July 2014) [3]–[4]. 233

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transnational criminal activity. The imperative to cooperate in preventing such crimes and denying safe havens to perpetrators has led to an increase in crime suppression treaties in which states agree to criminalise particular crimes of global concern and to cooperate in bringing offenders to justice. The obligations negotiated in such treaties are primarily implemented at the national level, although states are obligated to cooperate through mechanisms such as mutual legal assistance and extradition. Boister terms this hybrid phenomenon ‘transnational criminal law’, distinguishing it from both international criminal law, where the most serious crimes are defined at the global level and may be investigated and prosecuted by international tribunals, and national criminal law, which relates primarily to criminal activities occurring within national territory with no transnational elements.3 In essence, transnational criminal law employs international legal agreements as a catalyst for states to be more proactive at the national level and in cooperation with other states in confronting particular crimes. Despite Australia’s remote geographical location, its interests have not been immune from the impact of transnational crime; serious and organised crime has been conservatively estimated to cost Australia $15 billion annually.4 The far-reaching and multifaceted impact of evolving organised crime across borders has prompted strong engagement in global, regional and domestic law-making and policy processes in response. This chapter will explore the evolution of the international law framework on transnational crime, focusing particularly on the objectives and obligations of the central instrument, the United Nations Convention against Transnational Organized Crime (‘UNTOC’), and its supplementary protocols on trafficking in persons and the smuggling of migrants.5 The chapter will then discuss Australian practice in incorporating these transnational criminal law instruments into its domestic law. Finally, the chapter will examine the international criminal justice relationships that Australia has cultivated to cooperatively confront these crime types.

3

4

5

Neil Boister, ‘Transnational Criminal Law?’ (2003) 14(5) European Journal of International Law 953, 953–4. Attorney-General’s Department, National Organised Crime Response Plan 2015–2018 (2015) 1 . United Nations Convention against Transnational Organized Crime, opened for signature 15 December 2000, 2237 UNTS 209 (entered into force 29 September 2003) (‘UNTOC’); Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, opened for signature 15 November 2000, 2237 UNTS 319 (entered into force 25 December 2003) (‘Trafficking Protocol’); Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime, GA Res 55/25, UN GAOR, UN Doc A/45/49 annex II (‘Smuggling Protocol’).

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II  INTERNATIONAL LAW FRAMEWORK FOR TRANSNATIONAL CRIMINAL LAW [10.20]  The objective of transnational criminal law is to strengthen transnational and national law frameworks for combating criminal activities that have transboundary effects and threaten the interests of individuals, communities and states. This objective has been partially implemented through the negotiation of international law instruments. In general, these conventions oblige states parties to criminalise particular criminal activities in their domestic legislation and to cooperate in preventing, investigating and prosecuting those crimes, and in protecting and assisting victims of such crimes. They rely principally on national criminal justice systems to investigate and prosecute transnational crimes, rather than establishing international investigative bodies and criminal tribunals to deal with alleged offenders. In this respect, they can be distinguished from instruments such as the Rome Statute of the International Criminal Court, which provides a complementary jurisdiction and institutional infrastructure at the global level to deal with the most serious international crimes where states are unable or unwilling to do so.6 A series of transnational crime conventions has been negotiated, mostly under the auspices of the United Nations Office on Drugs and Crime (‘UNODC’). The three drug-suppression conventions are some of the earliest examples of these types of conventions in the modern era.7 In 1998, United Nations General Assembly (‘UNGA’) Resolution 53/111 established an Ad Hoc Committee to negotiate a more comprehensive instrument addressing transnational organised crime. UNTOC was adopted by the UNGA in 2000, after two years of negotiation. It is supplemented by three protocols on trafficking in persons, migrant smuggling and firearms trafficking.8 The United Nations Convention against Corruption (‘UNCAC’) was adopted in 2003 6

7

8

Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 3 (entered into force 1 July 2002) (‘Rome Statute’). Single Convention on Narcotic Drugs, opened for signature 30 March 1961, 520 UNTS 151 (entered into force 13 December 1964) (‘Narcotic Drugs Convention’); Convention on Psychotropic Substances, opened for signature 21 February 1971, 1019 UNTS 175 (entered into force 16 August 1976) (‘Psychotropic Substances Convention’); Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, opened for signature 20 December 1988, 1582 UNTS 95 (entered into force 11 November 1990) (‘Vienna Drugs Convention’). Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, opened for signature 15 November 2000, 2237 UNTS 319 (entered into force 25 December 2003) (‘Trafficking Protocol’); Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime, GA Res 55/25, UN GAOR, UN Doc A/45/49 annex II (‘Smuggling Protocol’); Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunition, opened for signature 31 May 2001, 2326 UNTS 208 (entered into force 3 July 2005) (‘Firearms Trafficking Protocol’). Australia has signed but not ratified this protocol.

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and is designed to augment the provisions of UNTOC on corruption.9 The 13 United Nations terrorism conventions have similar characteristics to the crime suppression treaties, including criminalisation obligations and criminal justice cooperation provisions.10 This chapter focuses on UNTOC and two of the protocols thereto, concerning trafficking in persons and smuggling of migrants.

A United Nations Convention against Transnational Organized Crime [10.30]  UNTOC, adopted by UNGA Resolution 55/25 of 15 November 2000, along with its supplementary protocols, applies to the prevention, investigation and prosecution of participation in an organised criminal group, money laundering, corruption, obstruction of justice, and other serious crimes where the offence is transnational in nature and involves an organised criminal group.11 ‘Serious crime’ is defined in art 2(b) as ‘conduct constituting an offence punishable by a maximum deprivation of liberty of at least four years or a more serious penalty’. An offence is transnational where it is: „„ committed in more than one state; „„ committed in one state but a substantial part of its preparation, planning, direction or control takes place in another state; „„ committed in one state but involves an organised criminal group that engages in criminal activities in more than one state; or „„ committed in one state but has substantial effects in another state.12 Accordingly, the threshold of what constitutes a ‘transnational’ offence can be seen to be relatively low, requiring involvement of a minimum of two states. Similarly, the meaning of ‘organised criminal group’ is also construed broadly, not requiring that a group be formally organised with a hierarchical structure, but merely that it is: a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in accordance with this Convention, in order to obtain, directly or indirectly, a financial or other material benefit.13 Here it is important to note that the purpose of the activities must be direct or indirect ‘financial or other material benefit’, raising questions as 9

10

11 12 13

United Nations Convention against Corruption, opened for signature 31 October 2003, 2349 UNTS 41 (entered into force 14 December 2005) (‘UNCAC’). The text and status of these conventions can be found at United Nations Treaty Collection, Text and Status of the United Nations Conventions on Terrorism . UNTOC art 3(1). UNTOC art 3(2). UNTOC art 2(a).

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to what is captured by such a definition and what is excluded. In principle, some terrorist groups may not be included where their goals are political or social rather than material, though UNTOC may still apply to some crimes committed by them.14 The travaux préparatoires further explain that ‘financial or other material benefit’ should be interpreted broadly — for instance, to include sexual gratification, so as to capture organisations that traffic people for sexual and not monetary reasons.15 The broad purpose of UNTOC, as stated in art 1(1), is to promote cooperation to prevent and combat transnational organised crime. In practice, states parties to UNTOC are impelled to harmonise their national laws so that there can be no uncertainty that a crime in one country is a crime in another. This is known as ‘dual criminality’ and is a critical prerequisite for criminal justice cooperation processes, such as extradition between countries, and usually for provision of mutual legal assistance, and removes safe havens for criminals. Under UNTOC, states parties are mandatorily required to enact laws that criminalise: „„ participation in an organised criminal group (art 5); „„ laundering of proceeds of crime (art 6); „„ corruption (art 8); and „„ obstruction of justice (art 3). In addition to these changes to substantive criminal law, states parties are mandatorily required to make necessary procedural and other legislative changes to ensure the effective criminalisation of these offences at the domestic level. Such measures include: „„ establishing liability of legal persons — for instance, where corporations are involved in organised crimes (art 10); „„ establishing sanctions that reflect the gravity of offences (art 11); „„ enabling confiscation of proceeds of crime and property (art 12); „„ establishing jurisdiction over offences (art 15); „„ applying special investigative techniques (controlled delivery, electronic surveillance and undercover operations) (art 20); „„ protecting witnesses (art 24); and „„ protecting and assisting victims, including by providing access to compensation or restitution (art 25). UNTOC contains provisions on criminal justice cooperation for the offences covered by the convention and can form the basis of an extradition 14

15

United Nations Office on Drugs and Crime, Legislative Guides for the Implementation of the United Nations Convention against Transnational Organized Crime and the Protocols Thereto (2004) 13 . Interpretative notes for the official records (travaux préparatoires) of the negotiation of the United Nations Convention against Transnational Organized Crime and the Protocols thereto, UN GAOR, 55th sess, Agenda Item 105, UN Doc A/55/383/Add.1 (3 November 2000) [3].

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and mutual legal assistance relationship, even where the states parties do not have an existing bilateral relationship.16 Article 37 of UNTOC and the first provision of each protocol establish the relationship between UNTOC, as the ‘parent’ instrument, and its three supplementary protocols. Together, these provisions confirm that states must be party to the convention in order to become party to any of the protocols; that the convention and protocols must be interpreted together; that all the general provisions of the convention are applicable in any cases arising under a protocol; and that offences established in accordance with any protocol, are also to be regarded as offences established in accordance with UNTOC.17 The following sections of this chapter will discuss two of those three protocols, being the Trafficking in Persons Protocol (‘Trafficking Protocol’)18 and the Smuggling of Migrants Protocol (‘Smuggling Protocol’).19

B  Trafficking in Persons Protocol [10.40]  Arguably, the most well-known of the three protocols to UNTOC, and certainly the most ratified, the Trafficking Protocol has 169 states parties as at 2016, compared to 142 states parties to the Smuggling Protocol. ‘Trafficking in persons’ is defined in art 3(a) as: [T]he recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs …20 The consent of an adult victim to the intended exploitation is irrelevant where any of the means set out in art 3(a) have been used.21 In cases involving child victims of trafficking, art 3(b) provides that the recruitment, 16 17

18

19

20 21

UNTOC arts 16, 18. UNTOC art 37. See also United Nations Office on Drugs and Crime 2004, Legislative Guides for the Implementation of the United Nations Convention against Transnational Organized Crime and the Protocols Thereto (2004) 253–5, 329–31, 407–9 . Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, opened for signature 15 November 2000, 2237 UNTS 319 (entered into force 25 December 2003) (‘Trafficking Protocol’). Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime, GA Res 55/25, UN GAOR, UN Doc A/45/49 annex II (‘Smuggling Protocol’). Trafficking Protocol art 3. Trafficking Protocol art 3(b).

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transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered ‘trafficking in persons’, even if this does not involve any of the ‘means’ set out in art 3(a). Unlike migrant smuggling, the elements of the offence of trafficking in persons do not involve illegal entry of a person into a state; all the constituent elements of the trafficking offence can occur within the borders of one state.22 In the domestic application of UNTOC, trafficking in persons offences should be applicable even where neither transnationality nor involvement of an organised crime group can be established.23 Further, it is not necessary to criminalise individual elements of the definition at the domestic level; all that is required is that trafficking in persons be criminalised as a combination of constituent elements of listed ‘actions’, ‘means’ and ‘exploitative purposes’. In this context, UNTOC and its supplementary protocols set out a minimum standard that states are encouraged to exceed in implementing provisions domestically. For instance, the forms of exploitation provided in the definition prescribe a minimum, but some states — including Australia — have opted to stipulate exploitative purposes in their legislation that they encounter in practice, in addition to those included in the protocol.24 The exploitative purpose element is the mens rea of the criminal offence, meaning that it is not necessary for exploitation to have actually occurred; it is sufficient that the actus reus (being an act and a means) are proved to be perpetrated ‘for the purpose of’ exploitation. Article 2 of the Trafficking Protocol states that its three purposes are: „„ the prevention and combating of trafficking in persons, paying particular attention to women and children; „„ the protection and assistance of the victims of such trafficking; and „„ the promotion of cooperation among states parties to these ends. Under each of these purposes, there are mandatory requirements that states parties to the Trafficking Protocol must fulfil. In relation to prevention, these are: „„ establishing prevention programs to prevent and combat trafficking and protect victims from re-victimisation (art 9(1)); „„ endeavouring to undertake measures (such as media campaigns and socio-economic initiatives) to prevent and combat trafficking, including by cooperating with non-government organisations (arts 9(2) and (3)); „„ strengthening border controls (art 11(1)); 22 23

24

Smuggling Protocol art 3(a). United Nations Office on Drugs and Crime, Legislative Guides for the Implementation of the United Nations Convention against Transnational Organized Crime and the Protocols Thereto (2004) 259, 275–6 . See, eg, United Nations Office on Drugs and Crime, Issue Paper: The Concept of ‘Exploitation’ in the Trafficking in Persons Protocol (2015) 27, 48–78 .

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„„ taking or strengthening measures to prevent commercial carriers from being used to commit trafficking offences and requiring commercial transportation carriers to ascertain that passengers have required travel documents (arts 11(2) and (3)); „„ ensuring that travel and identity documents are of high enough quality that they cannot be altered or misused (art 12(a)); and „„ preventing unlawful issuance of a state party’s travel documents (art 12(b)). In relation to protection and assistance, the requirements are: „„ protecting the privacy and identity of victims of trafficking (art 6(1)); „„ ensuring that victims receive information on court proceedings and have an opportunity to present their views (art 6(2)); „„ considering implementing measures to provide for physical, psychological and social recovery of victims of trafficking (art 6(3)); „„ endeavouring to provide for the physical safety of victims in their territory (art 6(5)); „„ ensuring that measures allow victims to seek compensation for damages (art 6(6)); and „„ facilitating and accepting the safe return of victims who are nationals or permanent residents (art 8). Finally, in relation to cooperation, in addition to those mandatory prevention and protection requirements that necessitate cooperation (such as with respect to return and repatriation), mandatory provisions include: „„ exchanging information on means and methods of traffickers (art 10(1)); „„ providing or strengthening training for law enforcement, immigration and other relevant officials (art 10(2)); and „„ complying with restrictions placed on information received from another state party (art 10(3)). The extradition and mutual legal assistance provisions in UNTOC apply between states parties to the protocol in relation to trafficking offences.25

C  Smuggling of Migrants Protocol [10.50]  Smuggling of migrants is defined in art 3(a) of the Smuggling Protocol as: the procurement, in order to obtain directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident. Although the definition of smuggling of migrants differs markedly from that of trafficking in persons, the two terms are often erroneously used interchangeably. This confusion is the result of several factors, such as the 25

Trafficking Protocol art 1.

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fact that many victims of trafficking begin as smuggled migrants, and that smuggled migrants are highly vulnerable to human trafficking and exploitation. Accordingly, some preventative measures that may be taken for one of these crime types may be effective for both. Trafficking in persons is often explained as being a crime perpetrated against individuals, whereas smuggling is a crime committed against states. However, nuances of the crime blur this distinction in practice. For instance, the presence of consent may only be of limited use in differentiating the crime types, given that many victims of trafficking consent to their exploitation, and many smuggled migrants consent to being smuggled, but not to the conditions that they subsequently endure. The presence or absence of exploitation is also not necessarily decisive; trafficking is ideally identified and can be established before exploitation has taken place, and exploitation is included in the Smuggling Protocol as an aggravating circumstance of migrant smuggling.26 Ultimately, it is important for lawmakers and criminal justice practitioners at the domestic level to understand how the constituent elements of smuggling of migrants differ from those of trafficking. Smuggling of migrants requires criminalisation of: „„ conduct constituting smuggling of migrants, being procurement, for financial or material gain, of illegal entry of a person into a state party where the person is not a national or permanent resident (art 6(1)(a)); „„ producing, procuring, providing or possessing fraudulent travel or identity documents for the purpose of enabling migrant smuggling (art 6(1)(b)); „„ enabling, by illegal means, a person to remain in a country where the person is not a citizen or legal resident without complying with requirements for legally remaining (art 6(1)(c)); „„ organising or directing, attempting to commit or participating as an accomplice in any of the above crimes (art 6(2)); and „„ establishing as aggravating circumstances conduct that is likely to endanger, or does endanger, the migrants concerned or that subjects them to inhuman or degrading treatment, including exploitation (art 6(3)). The ‘financial or other material benefit’ requirement introduced in art 2(1) of UNTOC is restated in art 6 of the Smuggling Protocol to clarify the intended application of that instrument, which does not require states to criminalise smuggling of migrants for humanitarian, familial or other non-profit reasons, and was not intended to apply to migrants themselves. Indeed, art 5 explicitly states that the migrants who are objects of smuggling are not liable under the protocol for the fact of having been smuggled. The mens rea of the crime of migrant smuggling is twofold: there must be the primary intention 26

Marika McAdam, ‘What’s in a Name? Victim Naming and Blaming in Rights-Based Distinctions between Human Trafficking and Migrant Smuggling’ (2015) 4 International Human Rights Law Review 6–20.

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to procure illegal entry for another person, and the secondary intention to obtain financial or other material benefit.27 As with the Trafficking Protocol, the purposes of the Smuggling Protocol are prevention, protection and cooperation to those ends.28 States parties are required to implement mandatory provisions in pursuit of these three purposes. In relation to prevention, states parties are required to: „„ strengthen border controls (art 11(1)); „„ adopt measures to require commercial transportation carriers to ascertain that passengers have required travel documents (art 11(3)); „„ ensure that travel and identity documents are of such quality that they cannot be altered or misused (art 12(a)); „„ ensure the security of states parties’ travel documents so that they are not unlawfully issued (art 12(b)); „„ provide or strengthen training to prevent smuggling and ensure humane treatment of smuggled persons (art 14(1)); „„ provide or strengthen public information campaigns (arts 15(1) and (2)); and „„ provide or strengthen development programs to combat the root causes of smuggling (art 15(3)). In relation to assistance to and protection of smuggled migrants (and persons whose residence has been illegally procured), states parties are required to take measures to: „„ protect smuggled migrants from death, torture or other cruel, inhuman or degrading treatment or punishment (art 16(1)); „„ provide appropriate assistance to persons endangered by smugglers, taking into account the special needs of women and children (arts 16(3) and (4)); „„ inform persons of the notification and communication obligations under the Vienna Convention on Consular Relations (art 16(5)); „„ accept and facilitate without delay the return of smuggled persons who are nationals or residents (art 18(1)); „„ verify whether a smuggled person is a national or permanent resident, and issue travel documents required for re-entry (arts 18(3) and (4)); „„ carry out the return in an orderly manner with due regard for safety and dignity of the person being returned (art 18(5)); and „„ ensure the safety and humane treatment of passengers when carrying out measures on board vessels (art 9(1)). 27

28

United Nations Office on Drugs and Crime, Legislative Guides for the Implementation of the United Nations Convention against Transnational Organized Crime and the Protocols Thereto (2004) 342 . Smuggling Protocol art 2.

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In relation to cooperation, several mandatory provisions relate to cooperation at sea, requiring states parties to: „„ cooperate to the extent possible to prevent smuggling by sea (art 7); „„ render assistance to a state party that has the right to board a vessel flying its state flag (art 8(1)); „„ inform the flag state if it has boarded its vessel (art 8(3)); „„ respond expeditiously to a request for determination if a vessel is entitled to claim that state as the state of its registry (art 8(4)); and „„ respond expeditiously to a request for authorisation to board, search and take other measures with respect to a vessel flying its flag (art 8(6)). More generally towards strengthening cooperation, states parties are required to: „„ comply with conditions imposed by states sending information (art 10(2)); „„ provide or strengthen specialised training to prevent migrant smuggling, and in treating smuggled migrants humanely while respecting their rights (art 14(1)); and „„ cooperate with each other and competent international organisations and non-governmental organisations to ensure adequate training to prevent and eradicate the smuggling of migrants (art 14(2)). Also in relation to cooperation, as with the Trafficking Protocol, the extradition and mutual legal assistance provisions in UNTOC apply between states parties to the protocol in relation to migrant smuggling offences.29

III  AUSTRALIAN IMPLEMENTATION OF TRANSNATIONAL CRIMINAL LAW [10.60]  Australia has ratified all the key transnational criminal law instruments, including UNTOC and the Trafficking Protocol and Smuggling Protocol.30 Accordingly, it has implemented a series of legislative amendments to existing domestic criminal law instruments to criminalise offences in Australian law, including (but not limited to) the Criminal Code Act 1995 (Cth) and the Migration Act 1958 (Cth). This section will examine Australia’s legislative implementation of the protocols on trafficking in persons and smuggling of migrants, and their parent instrument, UNTOC.

29 30

Smuggling Protocol art 1. Additionally, Australia is also a state party to UNCAC, the Narcotic Drugs Convention, the Psychotropic Substances Convention, the Vienna Drugs Convention and the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, opened for signature 17 December 1997, [1999] ATS 21 (entered into force 15 February 1999) (‘OECD Foreign Bribery Convention’).

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A Implementation of the United Nations Convention against Transnational Organized Crime [10.70]  Australia signed UNTOC on 13 December 2000 and ratified it on 27 May 2004. In the years that followed, measures were taken to strengthen its legal framework with a series of legislative amendments. Criminalisation of key offences has been achieved in Australian domestic legislation through the Criminal Code Act and amendments introduced by several amendment Acts, including the Crimes Legislation Amendment (Serious Organised Crime) Act (No 2) 2010 (Cth). The Criminal Code Act sch 1 (‘Criminal Code’) criminalises participation in an organised crime group (pt 9.9 div 390), money laundering (pt 10.2 div 400), corruption (pt 7.6 div 140) and obstruction of justice (pt 7.8 div 147). The more procedural requirements for implementing UNTOC are achieved through other legislation, including the Proceeds of Crime Act 2002 (Cth), which governs the confiscation of assets; the Crimes Act 1914 (Cth), which allows for controlled delivery operations (pt IAB); and the Surveillance Devices Act 2004 (Cth), which covers electronic surveillance. In relation to the protection of witnesses and vulnerable persons, pts IACA and IAD of the Crimes Act provide a framework, along with the Witness Protection Act 1994 (Cth). Further to these instruments, the Vulnerable Witness Act 2013 (Cth) was enacted to allow for greater protection of victims and witnesses during court proceedings — including, for instance, through the involvement of support persons, identity protection measures, and giving evidence by closed-circuit television, video link or video recording. The Measures to Combat Serious and Organised Crime Act 2001 (Cth) offers a definition of ‘serious Commonwealth offence’ in s 15HB, including several offences such as money laundering; perverting the course of justice; bribery or corruption of, or by, an officer of the Commonwealth, an officer of a state or an officer of a territory; and people smuggling. Interestingly, while people smuggling is explicitly included as a serious offence, trafficking in persons is not — though related offences, including ‘the organisation, financing or perpetration of sexual servitude or child sex tourism, dealings in child pornography or material depicting child abuse’ are included. The definition is not exhaustive but extends to other ‘matters of the same general nature as one or more of the foregoing or that is of any other prescribed kind’, such that human trafficking may be implicitly included. A ‘serious Commonwealth offence’ is punishable on conviction by imprisonment for three years or more, lowering the four-year threshold prescribed by art 2(b) of UNTOC.

B  Implementation of the Trafficking Protocol [10.80]  Australia signed the Trafficking Protocol on 11 December 2002 and ratified it on 14 September 2005. Prior to doing so, the government introduced a framework for complying with the protocol, including

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measures to strengthen legislation. The most notable legislative amendment in recent years was through the Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Act 2013 (Cth). The Act introduced new offences into the Criminal Code, including stand-alone offences of forced labour and organ trafficking; widened the definition of exploitation to add slavery-like practices; extended deceptive recruiting to all forms of servitude, including non-sexual forms; and increased penalties for debt bondage offences. Australian anti-trafficking legislation differs from the approach set out in the Trafficking Protocol, essentially by providing a basic trafficking offence supplemented by stand-alone offences of exploitation that, in practice, are added to that base offence. The base penalty for trafficking in persons is imprisonment for 12 years, or 20 years where the offence is aggravated. In contrast to the elements provided for in the protocol definition, the ‘acts’ provided for in Australian legislation include organising, facilitating or receiving, and the ‘means’ provided for include coercion, threat or deception. While some means provided for in the Trafficking Protocol are not explicitly captured in anti-trafficking provisions, 2013 amendments expand the definition of ‘coercion’ to capture more subtle means, including psychological oppression, abuse of power, and taking advantage of a person’s vulnerability.31 The term ‘exploitation’ is defined by s 271.1A of the Criminal Code: [E]xploitation, of one person (the victim) by another person, occurs if the other person’s conduct causes the victim to enter into any of the following conditions: (a) slavery, or a condition similar to slavery (b) servitude (c) forced labour (d) forced marriage (e) debt bondage. In contrast to exploitative forms included in the Trafficking Protocol, Australian legislation does not explicitly include ‘exploitation of the prostitution of others or other forms of sexual exploitation’ in its definition of exploitation, but captures those forms of sexual exploitation within other forms, such as servitude or forced labour, or under stand-alone sexual servitude offences. Removal of organs is also not provided for as an exploitative purpose, although there is a specific provision on organ trafficking. Australian legislation adds ‘forced marriage’ as a form of exploitation that is not included in the Trafficking Protocol, though no cases have been brought as yet. In addition to the trafficking offence, div 270 of the Criminal 31

Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Act 2013 (Cth) s 270.1A ‘Definitions for Division 270’.

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Code includes ‘slavery and slavery-like offences’. In short, while Australia’s legislative approach differs from that offered by the Trafficking Protocol, the forms of exploitation to which it applies are broader than those envisaged in the protocol, allowing criminal justice practitioners a wide range of options to draw from in confronting trafficking and related offences.32 Since the enactment of divs 270 and 271 of the Criminal Code, the Commonwealth Director of Public Prosecutions (‘CDPP’) has convicted 16 people of trafficking and slavery-related offences following prosecutions. These prosecutions have been primarily in relation to the exploitation of women working in the sex industry, despite the fact that non-sexual forms of exploitation are increasingly being identified in other sectors such as agriculture, construction and hospitality.33 Most cases are prosecuted as slavery, sexual servitude, and trafficking in persons reckless as to exploitation, with no cases of stand-alone forced labour or forced marriage brought as yet.34 There have, however, been trafficking cases brought in labour contexts, including the case of Yogalingam Rasalingam. In that case, the victim was promised employment in the defendant’s Indian restaurants in Australia, and subsequently worked long hours and was not allowed any days off. The defendant took the victim’s passport, ticket and other documents, and did not pay him for his work. He was charged with several offences, including organising or facilitating the entry or receipt of a person into Australia being reckless as to whether that person would be exploited there, contrary to s 271.2(1B) of the Criminal Code. A jury subsequently found him not guilty of the trafficking offence, finding insufficient evidence that there had been ‘forced labour’, though it did find him guilty of a lesser offence of misleading a Commonwealth official in an immigration process, resulting in his imprisonment for four months, to be released upon payment of $5000.35 While the 2013 amendments do not explicitly make a victim’s consent ‘irrelevant’ in accordance with the Trafficking Protocol, they confirm that a victim’s consent to (or acquiescence in) conduct constituting an element 32

33

34

35

United Nations Office on Drugs and Crime, Issue Paper: The Concept of ‘Exploitation’ in the Trafficking in Persons Protocol (2015) 93–4 . Commonwealth Director of Public Prosecutions, Annual Report 2014–2015 (2015) 64–5 . Commonwealth Director of Public Prosecutions, Human Trafficking and Slavery . See also United Nations Office on Drugs and Crime, Issue Paper: The Concept of ‘Exploitation’ in the Trafficking in Persons Protocol (2015) 95 . R v Rasalingam (Unreported, District Court of New South Wales, 2 November 2007); Australian Institute of Criminology, Labour Trafficking: Prosecutions and Other Proceedings, Transnational Crime Brief No 5 (June 2009) .

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of the offence is no defence. In practice, while the victim’s consent has not been accepted as a defence, it has been raised and discussed in several cases.36 Key among them was the case of R v Tang, the first Australian case in which slavery charges under s 270(3) of the Criminal Code were applied and proceeded to the High Court.37 The charges, brought prior to the introduction of the new trafficking offences under div 271, related to five Thai women who had worked at a brothel in metropolitan Melbourne owned by Wei Tang. Each of the women entered into an agreement to come to Australia from Thailand to work in the sex industry. The contract required each woman to incur a debt of $45,000 that she would pay off by servicing clients in a brothel, with $50 reduced from the debt for each client serviced.38 Upon arrival in Australia, the women’s passports were confiscated and kept at the brothel.39 The jury in Tang’s first trial was unable to reach a unanimous verdict in respect of any charge against her. She was re-tried in April 2006, resulting in her conviction and sentencing to 10 years’ imprisonment with a non-parole period of six years.40 Tang appealed to the Victorian Court of Appeal, which found that the trial judge’s directions on the fault elements of the offence were not sufficient and ordered a retrial. The CDPP was granted special leave to appeal to the High Court against the decision of the Victorian Court of Appeal. The High Court allowed the CDPP’s appeal, with the result that the order for a retrial was overturned and the defendant’s convictions reinstated. In reaching its decision, the High Court determined that the fact that the women voluntarily came to Australia and agreed to be the subject of sale and purchase did not preclude that the circumstances in which they were subsequently possessed and used by Tang were as if they were ‘owned’ by her.41 Accordingly, the Court determined that the respondent’s appeal to the Court of Appeal of Victoria should have been dismissed.

C  Implementation of the Migrant Smuggling Protocol [10.90]  Australia signed the Smuggling Protocol on 21 December 2001 and ratified it on 27 May 2004. At this time, domestic legislation addressing migrant smuggling offences was already in place in the Migration Act. 36

37

38 39 40 41

United Nations Office on Drugs and Crime, Issue Paper: The Role of ‘Consent’ in the Trafficking in Persons Protocol (2014) 40 , referring to R v Tang (2008) 237 CLR 1, 17–18 [32]; Ho v The Queen (2011) 219 A Crim R 74, 90–1 [80], 91–2 [83]. R v Tang (2008) 237 CLR 1; Irina Kolodizner, ‘R v Tang: Developing an Australian AntiSlavery Jurisprudence’ (2009) 31 Sydney Law Review 487; Andreas Schloenhardt, Genevieve Beirne and Toby Corsbie, ‘Trafficking in Persons in Australia: Myths and Realities’ (2009) 10(3) Global Crime 224, 238. R v Tang (2008) 237 CLR 1, 13. R v Tang (2008) 237 CLR 1, 16. R v Tang (2008) 237 CLR 1, 50. R v Tang (2008) 237 CLR 1, 63–4.

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Section 233A(1) of the Migration Act, similarly to s 73.1 of the Criminal Code, describes the offence of ‘people smuggling’ as follows: A person (the first person) commits an offence if: (a) the first person organises or facilitates the bringing or coming to Australia, or the entry or proposed entry into Australia, of another person (the second person); and (b) the second person is a non-citizen; and (c) the second person had, or has, no lawful right to come to Australia. The penalty applied for this offence is 10 years, 1000 penalty units or both. The Anti-People Smuggling and Other Measures Act 2010 (Cth) harmonised the definitions of people smuggling contained in the Migration Act and the Criminal Code, and introduced to both instruments the offence of ‘supporting the offence of people smuggling’, which attracts a 10-year penalty. Other relevant offences include those related to documents, work and visas. Aggravated smuggling of migrants is also criminalised in accordance with art 6(3)(a) of the Smuggling Protocol, including placing people in danger of death or serious harm, or subjecting a person to cruel, inhuman or degrading treatment, amounting to a sentence of 20 years. Beyond those basic aggravating circumstances, Australia added another, being the smuggling of at least five people, which also results in imprisonment for 20 years.42 ‘Absolute liability’ applies to para 1(b) of the base people smuggling offence. In contrast to the provision specified in the Smuggling Protocol, there is no requirement that the person organising or facilitating another’s entry into Australia intends to obtain a financial or material benefit, meaning that persons who do so for humanitarian or other non-criminal motives could be captured by this provision. While the Smuggling Protocol introduces a twofold mens rea (intention to procure another person’s illegal entry, plus intention to obtain financial or other material benefit), Australian legislation requires only an intention to obtain another person’s illegal entry. Also of key relevance to understanding how Australian legislation departs from the intention of the drafters of the Smuggling Protocol is the legislative understanding of what constitutes a ‘lawful right’ to come to Australia. At the level of international law, it is understood that seeking asylum is lawful, while Australian legislation was amended by the Deterring People Smuggling Act 2011 (Cth) to make explicit that a non-citizen has no lawful right to come to Australia for the purpose of seeking asylum; s 228B(2) was inserted into the Migration Act to describe circumstances in which non-citizens have no legal right: To avoid doubt, a reference in subsection (1) to a non-citizen includes a reference to a non-citizen seeking protection or asylum (however described), whether or not Australia has, or may have, protection 42

Migration Act 1958 (Cth) s 233C; Criminal Code Act 1995 (Cth) s 73.

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obligations in respect of the non-citizen because the non-citizen is or may be a refugee, or for any other reason. Australia’s policy response to people smuggling has garnered significant national and international attention, largely surrounding the politicisation of efforts to address migrant smuggling.43 A surge in maritime people smuggling and deaths at sea from September 2008 onwards, predominantly of people from Sri Lanka, Pakistan and Malaysia, resulted in increased efforts and a ‘whole-of-government’ approach. The criminal justice response was stepped up, with $48.3 million allocated to the Australian Federal Police towards combating people smuggling from July 2009.44 To combat people smuggling and protect Australia’s borders, the government introduced ‘Operation Sovereign Borders’, under which Australian authorities use force to intercept and turn around boats.45 Though the policy (directed solely at maritime rather than air arrivals) has essentially stopped maritime arrivals of migrants and asylum seekers as well as deaths at sea, questions have been raised about the impact that these laws (and others, including the mandatory detention of asylum seekers under the Migration Act) have on the safety of individuals affected by them. Further issues arise concerning the impact that these laws have on Australia’s obligations under international law, including UNTOC and its protocols, as well as the 1951 Refugee Convention46 and the 1967 protocol thereto, particularly in respect of the right to seek asylum and the principle of non-refoulement.47 The government’s human trafficking policy framework is outlined in a National Action Plan aligned with the prevention, prosecution and protection purposes of art 2 of the Trafficking Protocol. In contrast, the policy framework on people smuggling is a militaryled border-security operation, anchored on disruption and deterrence; detection, interception and transfer; and the capacity building of Indonesian law and policy. No pillar of its response explicitly addresses the protection of 43

44

45

46

47

See, eg, Border Crossing Observatory, Border Deaths and Border Control Policies (Border Crossings Research Brief No 3, March 2012) . See Australian Federal Police, People Smuggling (2015) . Department of Immigration and Border Protection, Operation Sovereign Borders . Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954). See chapter 8 of this volume. See also Australian Human Rights Commission, The Forgotten Children: National Inquiry into Children in Immigration Detention 2014 (2015) 11, 18 . Concerns have been raised at the lack of open source data on migrant smuggling by sea. See, eg, TC Beirne School of Law, Statistics Relating to Migrant Smuggling in Australia, University of Queensland .

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the rights of smuggled migrants in fulfilment of the stated purposes of the Smuggling Protocol.48 Several cases have been successfully brought against people smuggling offenders, both within and outside Australian territorial jurisdiction or involving multiple jurisdictions. The cases almost exclusively relate to migrant smuggling by sea, rather than air, with the use of fraudulent documents to facilitate illegal entry. Further, prosecutions in Australia have not always been of high level organisers reaping high financial profits from complex criminal operations; low level individuals have also been targeted. In the case of R v Hasanusi, a fisherman was sentenced to six and a half years of imprisonment for one count of facilitating the entry of five or more people into Australia, pursuant to s 232A of the Migration Act.49 The defendant unsuccessfully sought to defend the charge on the basis of duress. He claimed that he had been recruited to take passengers on a fishing charter, but the passengers subsequently threatened him and forced him to take them to Christmas Island. The trial judge in that case stated: I can only say that it must have been the money that made you do this … It wasn’t a lot of money, about $1,600, I think, but a lot of money for you. The people smugglers will always prey upon people like you … But there is nothing I can do about that. The law requires me to punish you, so that other fishermen like you do not agree to do things like this for the money.50 The fact that aggravated people smuggling offences are the only crimes that attract mandatory sentencing in federal law has been a topic of significant discussion when the sentences have been applied to impoverished and illiterate crew members of vessels, rather than high level organisers of smuggling ventures.51 The prosecution of a 19-year-old fisherman named Magaming required the High Court to determine whether the prescription of a mandatory minimum term of imprisonment for bringing into Australia a group of at least five non-citizens with no lawful right to come to Australia (Migration Act s 233C(1)) was beyond the legislative power of the Commonwealth Parliament and conferred judicial power on prosecuting authorities.52 Magaming was intercepted as one of four crewmembers on a boat carrying 48

49

50

51 52

See Department of Immigration and Border Protection, Operation Sovereign Borders ; Attorney-General’s Department, People Smuggling – Australia’s Response . R v Hasanusi (Unreported, District Court of Western Australia, 1365/2009, Fenbury DCJ, 21 April 2010). R v Hasanusi (Unreported, District Court of Western Australia, 1365/2009, Fenbury DCJ, 21 April 2010); Commonwealth Director of Public Prosecutions, Case Report Hasanusi . Law Council of Australia, Policy Discussion Paper on Mandatory Sentencing (May 2014) 33–4. Magaming v The Queen (2013) 252 CLR 381.

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52 passengers, and was subsequently charged with and convicted of aggravated people smuggling, an offence carrying a mandatory minimum sentence of five years’ imprisonment with a minimum non-parole period of three years. Magaming appealed the sentence, arguing in the High Court that prosecuting authorities were exercising judicial power in being able to choose between charging the basic people smuggling offence with no mandatory minimum sentence (art 233A(1)), and an aggravated offence (art 233C(1)) carrying a mandatory minimum prescribed under s 236B(3) (c). He further argued that the provision amounted to requiring the Court to impose an arbitrary sentence. The High Court re-sentenced Magaming with aggravated smuggling and accepted the constitutional validity of the mandatory sentencing provisions. In concluding, the Court stated that: … to argue that s 236B(3)(c) was an unnecessarily harsh way to pursue the end of deterring those minded to engage in the activity proscribed by s 233C is to make a point about the political wisdom of the law. Whether there is merit in that point is a matter for political judgment; but it has nothing to do with whether, as a matter of constitutional law, s 236B(3)(c) is inconsistent with the institutional integrity of a court obliged to enforce that law.53 In reaching its decision, the High Court did not consider the appropriateness of the punishment, rule of law principles, or consistency with international law principles.54 In determining whether the mandatory minimum penalty attached to smuggling complies with the UNTOC requirement to impose sanctions that accord with the gravity of the offence (art 11(1)), it may be recalled that protocol requirements are a minimum standard, and that states parties ‘may adopt more strict or severe measures than those provided for by this Convention for preventing and combating transnational organized crime’.55 From a policy point of view, this consideration can be weighed against broader considerations about whether penalties imposed are effective, proportionate and dissuasive in targeting serious transnational organised crime in accordance with the intentions and provisions of the Smuggling Protocol.

IV  AUSTRALIA’S CRIMINAL JUSTICE COOPERATION RELATIONSHIPS [10.100]  The establishment of robust and well-practised transnational relationships between states is crucial in the prevention, investigation and prosecution of transnational crime, and in the protection of victims 53 54 55

Magaming v The Queen (2013) 252 CLR 381, 414 [108]. Law Council of Australia, Policy Discussion Paper on Mandatory Sentencing (May 2014) 38. UNTOC art 34(3).

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and witnesses. Australia’s criminal justice cooperation relationships were relatively limited until the late 1980s and 1990s, when the first treaties with traditional allies beyond the Commonwealth (including the United States, as well as some European and South American states) were negotiated.56 The events of 11 September 2001 and the Bali bombings of 2002, together with concerns surrounding people smuggling, provided the impetus for further extradition and mutual legal assistance (‘MLA’) treaty negotiations over the past decade, particularly with Southeast Asian states, China and the United Arab Emirates. The Australian government passed the first comprehensive legislation on extradition and mutual legal assistance with the Extradition Act 1988 (Cth) and the Mutual Assistance in Criminal Matters Act 1987 (Cth), which formed the basis for steadily expanding criminal justice cooperation practice in Australia. The Extradition and Mutual Assistance in Criminal Matters Amendment Act 2012 (Cth) introduced significant reforms to Australia’s criminal justice cooperation frameworks that have significant bearing on its capacity to cooperatively address transnational trafficking and migrant smuggling. Beyond relationships established through extradition and MLA mechanisms, Australia has also undertaken steps to support the international community in strengthening its response to transnational crime, including through its recent financial support of UNODC’s initiative to develop an information-sharing portal, SHERLOC, alongside the governments of France and the United States.57 At the regional level, Australia has also participated as a co-chair alongside Indonesia in the Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime (‘Bali Process’) since 2002. This process has involved over 50 regional and extraregional participants in producing model legislation on migrant smuggling and trafficking, enhancing criminal justice cooperation between participants, and conducting training projects for preventing transnational crime.58

A Formal Cooperation Mechanisms: Extradition and Mutual Legal Assistance [10.110]  The two key aspects of criminal justice cooperation in which states generally establish formal treaty relationships and legislative frameworks are extradition and MLA. UNTOC provides mechanisms for states parties to 56

57

58

Attorney-General’s Department, Australian Bilateral Extradition Arrangements . United Nations Office on Drugs and Crime, Sharing Electronic Resources and Laws on Crime (SHERLOC) . For more information on the Bali Process, see Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime, About the Bali Process .

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formally cooperate in confronting the criminal offences to which it applies, primarily through these mechanisms.59 Extradition is the process by which a state requests another state to return an individual to its jurisdiction to face criminal charges or punishment. UNTOC requires that states parties treat offences established in accordance with the protocols as extraditable under their laws, and ensure that such offences are included as extraditable offences in extradition treaties.60 Australia can make extradition requests to any country, and the laws of that country determine whether or not the request will be accepted. Australia’s own laws determine that it can only respond to extradition requests where regulations are in place. Such regulations have been made in five ways: „„ through bilateral extradition treaties, which Australia currently has in place with 39 countries; „„ through multilateral treaties that have extradition obligations to which Australia is party, including UNTOC, the Trafficking Protocol and the Smuggling Protocol; „„ through the London Scheme governing relationships between Commonwealth countries and their dependencies; „„ through extradition treaties with the United Kingdom that have been inherited by Australia; and „„ through non-treaty extradition arrangements with some countries.61 In contrast, Australia can make or respond to requests for mutual legal assistance with any country, irrespective of whether or not there are specific regulations in place. As with extradition, Australia has mutual assistance relationships with countries that are party to the same multilateral treaties that provide for assistance arrangements, including UNTOC, the Smuggling Protocol and the Trafficking Protocol. However, given that bilateral treaties serve to expedite MLA, Australia also has arrangements in place with 29 countries.62 MLA takes many forms, including taking witness statements, arresting persons, sharing evidence, seizing assets, and a range of other measures that are provided for in international and domestic law. UNTOC requires that states parties afford each other the widest possible measure of assistance in investigations, prosecutions and judicial proceedings in relation to offences covered by it, including trafficking in persons and migrant

59 60 61

62

UNTOC arts 16, 18. UNTOC art 16. Attorney-General’s Department, International Crime Cooperation Arrangements . Attorney-General’s Department, International Crime Cooperation Arrangements .

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smuggling.63 That obligation requires that national laws provide for MLA under relevant laws. The Extradition and Mutual Assistance in Criminal Matters Legislation Act 2012 (Cth) introduced key changes to the Extradition Act, including allowing Australia to prosecute a person whom it refuses to extradite in accordance with the customary law principle of doing so where violations of jus cogens norms (including those related to slavery) are involved, or on the basis of treaties where no such norms are violated.64 Changes made to the Mutual Assistance in Criminal Matters Act include expanding surveillance and forensic capacities. Safeguards in both Acts were strengthened to allow the refusal of cooperation in situations where there are concerns that a person may be subject to torture or the death penalty, or discriminated against on the grounds of sex or sexual orientation.65 Historically, extradition treaties provided for a list of extraditable offences, creating difficulties in relation to emerging unlisted crime types. Accordingly, the principle of dual criminality applies in most newer treaties, such that extradition is possible where the same conduct is criminalised in both the state making the request and the state receiving the request, and is subject to a penalty above a certain threshold — for example, not less than 12 months’ imprisonment, as is the case in Australia.66 The ratification of UNTOC and the protocols thereto is a means by which the dual criminality requirement can be satisfied by states parties.67 In practice, the use of criminal justice cooperation mechanisms to extradite offenders and obtain evidence located outside Australia has been integral to securing convictions of people smuggling offences. Key examples include the case of Ahmadi v The Queen, being the first trial of an extradited people smuggler involving multiple boats.68 The defendant was charged with four counts of bringing more than five people into Australia, pursuant to s 232A of the Migration Act. He was found guilty of two counts and sentenced to seven and a half years’ imprisonment, with a non-parole period of four years. The defendant in this case was an Iraqi national extradited from Indonesia. Other cases include the prosecution of Masood Ahmed Chaudhry, who was charged with arranging to bring two unlawful non-citizens from Pakistan to Australia contrary to s 233(1)(a) of the Migration Act. Chaudhry was extradited from Thailand to Australia to face charges under an old extradition treaty between the Kingdom of Siam and Britain that applies to 63 64 65

66 67 68

UNTOC art 18. Anne T Gallagher, The International Law of Human Trafficking (Cambridge, 2010) 409–10. Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Act 2012 (Cth) sch 2 pt 3, sch 3 pts 3, 4. Extradition Act 1988 (Cth) s 5. Anne T Gallagher, The International Law of Human Trafficking (Cambridge, 2010) 407. Ahmadi v The Queen (2011) 254 FLR 174.

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Australia. He was convicted on both counts. In April 2006, he was sentenced to four years’ imprisonment on each charge, with the sentence to be served cumulatively with a non-parole period of four years.69 Khaleed Shnayf Daoed was charged with assisting in the organisation of the proposed entry into Australia of more than 400 non-citizens aboard a vessel code-named SIEV X, contrary to s 233 of the Migration Act. On 19 October 2001, the vessel sank and most of the passengers on board were drowned. Daoed was extradited from Sweden to face charges in Australia under Australia’s bilateral extradition treaty with Sweden. He was convicted and, in July 2005, sentenced to nine years’ imprisonment with a non-parole period of four and a half years.70 More recently, Said Mir Bahrami, an Afghani national operating in Indonesia with associates in Iran and Indonesia, was prosecuted for two counts of aggravated people smuggling (of five or more people) from Indonesia, under s 233C of the Migration Act, and three counts of people smuggling under s 233A. Bahrami was extradited from Malaysia to Australia. In March 2015, he was sentenced 11 years and three months’ imprisonment.71

B Informal Cooperation Mechanisms: Australia in Southeast Asia [10.120]  Australia’s geographical location has meant that its transnational crime threats primarily originate in, or at least transit through, the Southeast Asian region, which is where Australia has made significant investments in solutions to transnational organised crime. Key contributions in this respect include its flagship anti-trafficking program, the Australia–Asia Program to Combat Trafficking in Persons (‘AAPTIP’), in which Australia has invested $50 million for the years 2013 to 2018, and its $20 million investment for the years 2015 to 2025 to reduce the vulnerability of migrant workers in Southeast Asia through collaboration with the International Labour Organization’s TRIANGLE II.72 AAPTIP aims to reduce human trafficking in the region essentially by strengthening the criminal justice capacity to investigate, prosecute and adjudicate trafficking crimes through programs across the seven Association of Southeast Asian Nations (‘ASEAN’) countries (Cambodia, Indonesia, Lao PDR, Myanmar, the Philippines, Thailand and Viet Nam) and 69

70

71

72

Commonwealth Director of Public Prosecutions, Annual Report 2005–2006 (2006) 27–8 . Commonwealth Director of Public Prosecutions, Annual Report 2005–2006 (2006) 28–9 . See Commonwealth Director of Public Prosecutions, Case Report on Said Mir Bahrami . Department of Foreign Affairs and Trade, Amplifying Our Impact: Australia’s International Strategy to Combat Trafficking and Slavery (23 March 2016) 8 .

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to promote regional cooperation across all ASEAN member states (including Brunei, Malaysia and Singapore).73 Australia’s anti-trafficking work is not explicitly connected to its anti-smuggling work, although its recently launched International Strategy against Trafficking in Persons gives a role to the Australian ‘Ambassador for People Smuggling Issues’, who ‘will act as an advocate for enhanced international cooperation, and will give greater focus to Australia’s international engagement on human trafficking and slavery, both as an irregular migration issue and where it occurs within country borders’.74 More specifically focused on migrant smuggling issues, the Bali Process is a voluntary and non-binding mechanism for policy dialogue, information sharing and capacity building that Australia co-chairs along with Indonesia. Incepted in 2002 with a view to strengthening regional cooperation against migrant smuggling and human trafficking, the Bali Process has 48 members, being 45 member states and the International Organization for Migration, the United Nations High Commissioner for Refugees, and UNODC. Additionally, 27 states and agencies are observers to the Bali Process. Though professing to target transnational crime types, its focus is also evidently on the phenomenon of irregular migration, irrespective of whether or not it occurs in the context of transnational crime. Indeed, the Bali Process is operationalised through the Regional Cooperation Framework to ‘reduce irregular migration in the Asia and Pacific region’. The Bali Declaration on People Smuggling, Trafficking in Persons and Related Transnational Crime was adopted at the Sixth Regional Ministerial Conference of the Bali Process, held in March 2016. The importance of cooperation emerged strongly in this context; signatories to the declaration include Ministers and representatives of member states. That declaration emphasised strict respect for the principle of non-refoulement and the need for access to migrants by humanitarian providers, and encouraged states to explore alternatives for detention for vulnerable groups. In relation to transnational organised crime that profits from smuggling and trafficking, the declaration acknowledged ‘the need for robust mechanisms that promote international cooperation, including law enforcement cooperation, mutual legal assistance and extradition, if applicable, to facilitate timely investigation and prosecution of offenders’.75 73

74

75

See Department of Foreign Affairs and Trade, Australia–Asia Program to Combat Trafficking in Persons (AAPTIP) (2013) . Department of Foreign Affairs and Trade, Amplifying Our Impact: Australia’s International Strategy to Combat Trafficking and Slavery (23 March 2016) 20 . Bali Declaration on People Smuggling, Trafficking in Persons and Related Transnational Crime (23 March 2016) attachment A, [8] .

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The Final Co-Chairs’ Statement at the Sixth Regional Ministerial Con­ ference also referred to successful practical cooperation against trafficking in persons and the smuggling of migrants, including the establishment of a Working Group on Disruption of Criminal Syndicates involved in People Smuggling and Trafficking in Persons that resulted in eight countries conducting separate but coordinated law enforcement operations against criminal syndicates, culminating in 32 arrests and eight new investigations.76 Australia’s work in the region highlights the criminal justice capacitybuilding role that it has assumed, and its strong interest in promoting international cooperation against transnational crimes of trafficking in persons and migrant smuggling. Australia’s recently launched International Strategy to Combat Human Trafficking and Slavery underlines its commitment ‘to being a regional leader in the total eradication of human trafficking and slavery’, with Southeast Asia being its principle region of interest currently and in the foreseeable future.77

V CONCLUSION [10.130]  The last decade has seen considerable activity at the global level to establish a core of treaties to address prevalent criminal activities with transboundary effects. These instruments aim to promote cooperative action among states to prevent, criminalise and prosecute such activities, and to protect the rights of people affected by them. The Trafficking Protocol and the Smuggling Protocol share the same raison d’être, being prevention, prosecution, protection and partnerships to those ends. The different approaches that Australia has taken in transposing the provisions of these protocols at the level of domestic law and policy showcase the range of challenges and competing political and other interests that may have a bearing on how international laws are implemented in practice. Australia’s National Action Plan to Combat Trafficking in Persons and Slavery 2015–2019 reports that $150 million has been allocated to antitrafficking initiatives, including $50 million to the AAPTIP.78 The National 76

77

78

Co-Chairs’ Statement, Sixth Ministerial Conference of the Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime (23 March 2016) [15] . Department of Foreign Affairs and Trade, Amplifying Our Impact: Australia’s International Strategy to Combat Trafficking and Slavery (23 March 2016) 3, 7 . Attorney-General’s Department, National Action Plan to Combat Human Trafficking and Slavery 2015–19 (2014) 16 .

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Action Plan is governed by four pillars that align with the stated purposes of the Trafficking Protocol, including prevention and deterrence; detection and investigation; prosecution and compliance; and victim support and protection. Like the counter-trafficking response, the counter-smuggling response takes a whole-of-government approach, yet the national strategy mounted against the smuggling of migrants, in the form of Operation Sovereign Borders, does not so tightly track the mandatory protection requirements of the Smuggling Protocol and related international law, including humanitarian and human rights law.79 From a prosecutorial point of view, despite the significant investment made in combating trafficking in persons crimes, the number of people smuggling matters prosecuted by the CDPP far exceeds the number of human trafficking prosecutions. By way of illustration, there are 14 human trafficking and slavery case reports on the CDPP website, in contrast to 23 for migrant smuggling.80 The UNODC case law database contains 23 human trafficking cases from Australia, in contrast to 179 migrant smuggling cases.81 The significant attention given to smuggling issues in Australian Commonwealth legislation is also highlighted by the fact that people smuggling offences are the only offences to attract mandatory sentencing, with severe penalties often imposed on individuals who are replaceable components of trans­ national criminal operations. Australia has also appointed an Ambassador for People Smuggling Issues; there is no equivalent role in respect of Trafficking in Persons, although the international action plan does give the Ambassador a role in respect of trafficking and related crimes. The considerable leeway that states enjoy in their domestic responses to transnational crime is in part owing to the fact that the global apparatus for ensuring compliance with UNTOC and its protocols is not as robust as it is for some other conventions.82 Issues of whether and how to establish a review 79

80

81

82

Matthew Liddy (ed), ‘Operation Sovereign Borders’, ABC News (online), 26 March 2014, . It is less clear how much financial investment has been made in counter-trafficking responses, given that less information is publicly available. See Commonwealth Director of Public Prosecutions, Home Page . Here it is important to note that some cases classified as people smuggling relate to cases involving people smugglers or smuggled migrants (such as in detention), but not cases of the offence of people smuggling. See United Nations Office on Drugs and Crime, Human Trafficking: Knowledge Portal . Here it is important to note that many cases classified as ‘trafficking in persons’ or ‘smuggling of migrants’ may have been brought under other offences. UNTOC art 32(4) provides that ‘the Conference of the Parties shall acquire the necessary knowledge of the measures taken by States Parties in implementing this Convention and the difficulties encountered by them in doing so through information provided by them and through such supplemental review mechanisms as may be established by the Conference of the Parties’. Initially, this was accomplished through a series of questionnaires to states parties from the UNODC. This method of monitoring compliance contrasts markedly with the rigorous peer-driven compliance monitoring system under the OECD Foreign Bribery Convention.

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mechanism have long been a topic of disagreement among states parties, with different positions on issues including funding models, the role of peer review and country visits, and the inclusion of civil society and non-governmental organisations.83 These discussions have been expressed in Resolution 7/1 of the seventh session of the Conference of the Parties to UNTOC held in 2014, as an ‘ongoing and gradual process’ that looks set to continue for some time. In the meantime, effective implementation of these instruments depends very much on the political will of states parties to criminalise the relevant offences in their national laws and cooperate with other states in the prevention, investigation and prosecution of the crimes, and the protection of victims and witnesses. Regional processes such as the Bali Process are fundamental vehicles in this endeavour, forging closer bonds with regional and extra-regional partners in combating such crimes and extending Australia’s criminal justice cooperation network with countries in Southeast Asia and beyond. As profit-driven criminals become more and more geographically far-reaching, and increasingly organised and ruthless in their activities, such relationships will remain key to the dynamic practice of transnational criminal law in years to come, and an ongoing criminal justice priority for Australia.

83

See Report of the Chair on the open-ended intergovernmental meeting to explore all options regarding an appropriate and effective review mechanism for the United Nations Convention against Transnational Organized Crime and the Protocols thereto held in Vienna from 28 to 30 September 2015, UN Doc CTOC/COP/WG.8/2015/3.

11 Australia and International Counter-Terrorism Law and Practice Ben Saul

I INTRODUCTION [11.10]  Terrorism was a low priority in Australian foreign policy and was scarcely addressed in domestic law prior to the terrorist attacks on the United States of 11 September 2001 (‘9/11’). Australia had comparatively little experience of terrorism before 9/11, although there was a surprising number of terrorist incidents in Australia between the 1970s and 2000, typically taking the form of low level bombings, attacks or kidnappings against foreign consuls, diplomats or embassies.1 Australia reported to the General Assembly in 1987 that there had been 36 terrorist incidents in Australia in the 17 years since 1970.2 Before 9/11, Australia generally dealt with terrorist events by applying the ordinary criminal law, including offences deriving from the many ‘antiterrorism’ treaties adopted since the early 1960s. There were few special legal provisions dealing with terrorism, little reference to the scant international law frameworks, and little attention to terrorism in Australian foreign policy. The low key approach changed rapidly and radically after 9/11, in which 10 Australians were killed but which more importantly demonstrated the potential threat to Australia. Al Qaeda identified Australia as a target of its operations,3 1

2 3

See Department of Prime Minister and Cabinet, Australian Government, CounterTerrorism White Paper: Securing Australia, Protecting Our Community (2010) 7 . UN GAOR 6th Comm, 42nd sess, 28th mtg, A/C.6/42/SR.28 (21 October 1987) 16–17. Department of Prime Minister and Cabinet, Australian Government, Counter-Terrorism White Paper: Securing Australia, Protecting Our Community (2010) 13 . 261

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and a number of groups associated with Al Qaeda also came to be of concern to the authorities.4 Over 100 Australians worldwide were killed by terrorist organisations between 2001 and 2015. In Australia’s region, a major attack in Bali in 2002 by Jemaah Islamiyah killed 88 Australians, and the Australian Embassy in Jakarta was bombed in 2004;5 Abu Sayyaf in the Philippines was also considered of concern to Australia. Domestic radicalisation grew too, with 35 prosecutions for terrorism offences between 2001 and 2015, resulting in 26 convictions. Over 100 Australian passports have been refused or cancelled since 2001, most since the rise of Islamic State in Syria and Iraq after 2012 and the growth of ‘foreign fighters’. This chapter assesses Australia’s approach to developing and implementing international law addressing terrorism. It first considers Australia’s engagement with international treaties dealing with terrorism since the 1960s. It then tracks the positions adopted by Australia in the UN General Assembly since terrorism came to be considered there from the 1970s. Australian practice concerning UN Security Council measures is then examined, from implementing sanctions in the 1990s to deeper law reform to implement post-9/11 resolutions. The chapter then considers Australia’s involvement in regional and bilateral counter-terrorism cooperation. The chapter concludes by addressing selected human rights issues raised by Australian practice. Australia’s use of military force in the context of terrorism is considered in other chapters, including in Afghanistan after 2001 (collective self-defence of the United States, followed by Security Council authorisation); Iraq from 2004 (Security Council authorisation); and Iraq and Syria from 2015 (collective self-defence of Iraq against Islamic State attacks).

4

5

Department of Prime Minister and Cabinet, Australian Government, Counter-Terrorism White Paper: Securing Australia, Protecting Our Community (2010) 8, 11 . The main threats to Australia are assessed to be from groups in Afghanistan (Al Qaeda) and Pakistan (Lashkar-e-Tayyiba and Jaish-e-Mohammed); Al Qaeda derivatives (as in Iraq, the Islamic Maghreb (in North and West Africa), the Arabian Peninsula (in Yemen and Somalia) and, in Australia’s region, Jemaah Islamiyah (Indonesia) and Abu Sayyaf (the Philippines)); and Islamic State or Daesh in Syria and Iraq. There is also concern about Hizballah’s External Security Organisation. Department of Prime Minister and Cabinet, Australian Government, Counter-Terrorism White Paper: Securing Australia, Protecting Our Community (2010) 9 . In addition, the London transport bombings in 2005 killed one Australian; four Australians were killed in the Bali restaurant bombings in 2005; three were killed in the Mumbai attacks in 2008; and three were killed in the Jakarta hotel bombings in 2009.

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II  AUSTRALIA’S ROLE IN INTERNATIONAL LAW-MAKING AND IMPLEMENTATION A  Anti-Terrorism Treaties [11.20]  Australia was scarcely involved in the earliest efforts by the inter­ national community to regulate transnational terrorism. It did not participate in League of Nations treaty negotiations on terrorism between 1934 and 1937,6 or sign the treaties adopted, although in 1936 it expressed support for a treaty criminalising terrorism but did not favour a treaty creating an inter­ national criminal court to prosecute terrorism.7 The international community eventually got around to creating treaty law on terrorism from the 1960s onwards, initially in response to violence against aircraft by liberation movements, and later to deal with the changing means and methods of terrorist violence. More than a dozen such treaties have now been adopted,8 most taking a ‘sectoral’ approach (that is, confronting particular types of terrorist act) rather than naming acts as ‘terrorism’ as such or defining a general crime of ‘terrorism’. This pragmatic approach enabled international cooperation against terrorism while avoiding the ideological problem of defining terrorism and resolving the contested issue of selfdetermination violence. Some treaties prohibit violent criminal acts against vulnerable or politically or economically significant targets (such as international aircraft, airports, ships, fixed platforms and internationally protected persons). Treaties also prohibit particularly notorious methods or means (such as hijacking and hostage taking). A further approach is the prohibition of the use of particular weapons (such as plastic explosives, nuclear material and bombs). A recent treaty also prohibits the ancillary conduct of financing terrorism. Two of the conventions are regulatory (concerning aircraft safety and the marking of plastic explosives) and do not establish criminal offences. At the time of the 9/11 attacks, Australia was already a party to nine of the then 12 anti-terrorism treaties, but was yet to ratify the treaties on the marking of plastic explosives (1991), terrorist bombings (1997) and terrorist

6

7

8

See Ben Saul, ‘The Legal Response of the League of Nations to Terrorism’ (2006) 4(1) Journal of International Criminal Justice 78–102. League of Nations, International Repression of Terrorism: Observations by Governments Series I, League of Nations Doc A.24.1936.V (7 September 1936) 1. See United Nations Treaty Collection, Text and Status of the United Nations Conventions on Terrorism .

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financing (1999).9 The Plastic Explosives Convention10 was a response to the Lockerbie aircraft bombing in 1988 but Australia did not sign the convention in 1991, though it did participate in the drafting. Security Council Resolution 1373 after 9/11 encouraged (but did not require) all states to become parties to all of the anti-terrorism treaties and provided the stimulus for Australia to accede to the Plastic Explosives Convention in 2007.11 The delay in acceding after 2001 was explained by the government having other anti-terrorism legislative priorities, although Australia said that it had complied with the treaty’s substance for four years prior to accession.12 Australia’s lack of ratification of the latter two treaties was largely explained by the treaties being new rather than there being any legal objection to them by Australia, which had already signed both of them. Australia moved fairly quickly to become a party to the Terrorist Bombings Convention13 in September 2002 and the Terrorist Financing Convention14 in October 2002, completing the necessary domestic procedures (including a National Interest Analysis and review by the Joint Standing Committee in Treaties). Security Council Resolution 1373 also imposed binding obligations to suppress the financing of terrorism, and implementation of the detailed provisions of the Terrorist Financing Convention was one convenient means of better aligning Australian law with those obligations. Australia’s domestic legislative implementation of the ratified treaties has been fairly comprehensive.15 Many of the treaties also contain preparatory offences additional to the principal crimes.16 Australia has primarily incorporated such offences by resort to the usual federal modes of extended criminal 9

10

11

12

13

14

15

16

Convention on the Marking of Plastic Explosives for the Purpose of Detection, adopted 1 March 1991, [1991] ATSD 3903 (entered into force 21 June 1998) (‘Plastic Explosives Convention’); International Convention for the Suppression of Terrorist Bombings, opened for signature 12 January 1998, 2149 UNTS 256 (entered into force 23 May 2001) (‘Terrorist Bombings Convention’); International Convention for the Suppression of the Financing of Terrorism, adopted 9 December 1999, 2178 UNTS 197 (entered into force 10 April 2002) (‘Terrorist Financing Convention’). Convention on the Marking of Plastic Explosives for the Purpose of Detection, adopted 1 March 1991, [1991] ATSD 3903 (entered into force 21 June 1998) (‘Plastic Explosives Convention’). Convention on the Marking of Plastic Explosives for the Purpose of Detection, done at Montreal on 1 March 1991 — National Interest Analysis [2005] ATNIA 18 (11 October 2005). Joint Standing Committee on Treaties, Parliament of Australia, Review of Treaties Tabled on 11 October 2005 (2), 28 February and 28 March 2006, Report No 75 (2006) 18. International Convention for the Suppression of Terrorist Bombings, opened for signature 12 January 1998, 2149 UNTS 256 (entered into force 23 May 2001) (‘Terrorist Bombings Convention’). International Convention for the Suppression of the Financing of Terrorism, adopted 9 December 1999, 2178 UNTS 197 (entered into force 10 April 2002) (‘Terrorist Financing Convention’). See Australian Parliament Library, Terrorism Treaties . Such as attempt, threats, complicity, abetting, organising or directing, or intentionally contributing to the commission of an offence by a group of persons acting with a common purpose.

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responsibility.17 The treaties generally establish mandatory and optional bases for prescriptive jurisdiction, although the bases vary widely.18 In implementing the treaty offences, Australian law establishes extensive extraterritorial jurisdiction over some of them (such as offences against aircraft or diplomats),19 but requires certain other offences to have links to Australian territory, aircraft, ships or citizens.20 Some of the treaties also ‘depoliticise’ offences for extradition, so that suspects may be returned to face prosecution in the state where the offence was committed (or some other state with jurisdiction). Australia’s extradition legislation provides that none of the treaty offences is a political offence for extradition purposes.21 In this respect, Australian law goes further than is required, for only two of the treaties remove the political offence exception.22 The risk of this approach is that some violent acts against repressive governments (including their property or security officials) may well be justified where civilians are not targeted, particularly in the context of civil wars or rebellions. The Australian approach could implicate Australia’s democracy in collaborating with authoritarian regimes to repress legitimate political resistance. Such internal struggles for political supremacy are, after all, an expression of self-determination by the people concerned, an interest that historically induced foreign states not to intervene. Australia has also regarded other treaties not specifically designed to address terrorism as relevant. In its reporting to the UN Counter-Terrorism Committee under Resolution 1373, Australia noted that it has domestic legislation criminalising dealings with biological and chemical weapons, including in armed conflict,23 which implement the other treaty obligations.24 Australia also noted that it was also taking steps to ratify the UN Protocol 17

18 19

20

21

22

23

24

Criminal Code Act 1995 (Cth) sch 1 s 11 (including attempt, complicity and common purpose, commission by proxy, incitement, and conspiracy). Ben Saul, Defining Terrorism in International Law (Oxford University Press, 2006) 139–40. See, eg, Crimes (Aviation) Act 1991 (Cth) s 12; Crimes (Internationally Protected Persons) Act 1976 (Cth) s 5. See, eg, Crimes (Hostages) Act 1989 (Cth) s 8; Criminal Code Amendment (Suppression of Terrorist Bombings) Act 2002 (Cth), inserting s 72.4 into the Criminal Code Act 1995 (Cth) sch 1. Report of Australia to the Counter-Terrorism Committee of the United Nations Security Council pursuant to paragraph 6 of the Security Council resolution 1373 (2001) of 28 September 2001, UN Doc S/2001/1247 (23 January 2002) 17. See Extradition Act 1988 (Cth). The Terrorist Financing Convention and the Terrorist Bombings Convention. The UN Office on Drugs and Crime has also urged states to remove the exception for all treaty offences. Report of Australia to the Counter-Terrorism Committee of the United Nations Security Council pursuant to paragraph 6 of the Security Council resolution 1373 (2001) of 28 September 2001, UN Doc S/2001/1247 (23 January 2002) 15. Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxic Weapons and on Their Destruction, opened for signature 10 April 1972, 1015 UNTS 163 (entered into force 26 March 1975); Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, adopted 13 January 1993, 1974 UNTS 45 (entered into force 29 April 1997).

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against the Illicit Manufacturing of and Trafficking in Firearms,25 and was implementing the General Annex to the revised World Customs Organization Kyoto Convention (in relation to security of supply chain).26 Australia has also supported ‘soft law’ regulatory regimes such as the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual Use Goods and Technologies, including its Terrorist Goods List.27 On the thorny issue of defining terrorism generally as an international crime, Australia has been an active participant in lengthy and unresolved treaty negotiations in the UN General Assembly since 2000. While agreement was soon reached on much of the convention (including the definition of terrorist crimes), an impasse remains on the scope of exclusions for certain violence by state armed forces and non-state groups (including liberation movements). Australia strongly supported the draft convention from 2000, calling its adoption ‘one of the key objectives’ of the General Assembly in 2001.28 This attitude starkly contrasted with Australia’s view in 1985 that a convention would not be productive and that it would be better to focus on practical cooperation in specific areas.29 Australia’s newfound support was conditioned, however, on the draft convention complementing rather than overlapping the existing sectoral treaties.30 Australia emphasised in 2000 that the ‘subjectby-subject’ approach of the existing counter-terrorism regime provided ‘the strongest, most appropriate mechanism to respond to the complex phenomenon of terrorist crime’.31 It observed that the lack of a general definition of terrorism to date had ‘not prevented the development of a truly robust and effective counter-terrorist regime’32 and that ‘[s]pecific crimes require specific treatment’, rather than ‘[a]ttempting to deal with all possible manifestation of terrorist crimes in a single instrument’.33 25

26

27

28

29 30

31

32

33

Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunition, supplementing the United Nations Convention against Transnational Organized Crime, adopted 31 May 2001, 2326 UNTS 208 (entered into force 3 July 2005). Fourth Report to the UN Counter-Terrorism Committee, UN Doc S/2003/1204 (26 December 2003) 6–7. Fourth Report to the UN Counter-Terrorism Committee, UN Doc S/2003/1204 (26 December 2003). John Dauth, Measures to Eliminate International Terrorism, UN GAOR, 56th sess, 15th plen mtg, Agenda Item 166, UN Doc A/56/PV.15 (2 October 2001) 9. UN GAOR, 6th Comm, 40th sess, 22nd mtg, UN Doc A/C.6/40/SR.22 (25 October 1985) 8–9. Australian Statement to the UN General Assembly 55th Session (15 November 2000) in Tim Bolotnikoff, ‘Australian Practice in International Law’ (2002) 21 Australian Year Book of International Law 211. Australian Statement to the UN General Assembly 55th Session (15 November 2000) in Tim Bolotnikoff, ‘Australian Practice in International Law’ (2002) 21 Australian Year Book of International Law 211. Australian Statement to the UN General Assembly 55th Session (15 November 2000) in Tim Bolotnikoff, ‘Australian Practice in International Law’ (2002) 21 Australian Year Book of International Law 211. Australian Statement to the UN General Assembly 55th Session (15 November 2000) in Tim Bolotnikoff, ‘Australian Practice in International Law’ (2002) 21 Australian Year Book of International Law 211.

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Australia contributed to the drafting process by, for instance, submitting a draft proposal with Belgium on the definition of terrorism (to include reference to major economic loss).34 It also urged Middle Eastern states ‘to play a constructive and flexible role in efforts to seek compromise so that remaining differences in the text can be resolved’.35 Australia’s main contribution, however, took the form of leadership in the drafting bodies, by providing personnel from the Department of Foreign Affairs and Trade to lead discussions. There was, however, scant mention of Australia or Australian officials in records of negotiations after 2004, suggesting that Australia’s diplomatic energies had, like those of some other states, increasingly disengaged in the face of the deadlock. Australia was also active in the late 1990s in putting forward draft provisions in the negotiations for a convention on nuclear terrorism, including by cooperating on joint proposals with Austria, Belgium, the Netherlands and the Group of South Pacific Countries. Those proposals covered a range of issues, including nuclear cooperation, information exchange and confidentiality, the definition of financing, forfeiture of property, liability of legal entities, and identification of customers by financial institutions.36 Significantly, its proposals on domestic criminalisation (art 4) and bases of jurisdiction (art 7) were adopted as revised negotiating texts for the nuclear convention.37 Australia also submitted a proposal to exclude from the nuclear convention the activities of state military forces where ‘regulated by’ international humanitarian law, and the ‘official activities’ of state military forces (which were particularised to include law enforcement, evacuation operations, peace operations and any other actions taken in accordance with the laws of self-defence).38 The enumeration of official activities was not endorsed in the drafting, although it helped to illustrate the interpretation of ‘official activities’, which found its way into the revised texts. As part of the Group of South Pacific Countries, Australia also put forward a provision to prohibit states from assisting in any agreement or contract to commit an offence 34

35

36

37

38

Rohan Perera, Report of the Working Group on Measures to Eliminate International Terrorism, UN GAOR, 6th Comm, 55th sess, Agenda Item 164, UN Doc A/C.6/55/L.2 (19 October 2000) 28 (draft art 2(1)). David Stuart, Statement to the UN: Scale of Assessments for the Apportionment of the Expenses of the United Nations, 55th sess, 77th plen mtg, Agenda Item 122 (30 November 2001) 9. Australia proposed texts of arts 1, 3, 4, 5, 6, 7, 8 and 17: see, eg, Philippe Kirsch, Report of the Working Group on Measures to Eliminate International Terrorism, UN GAOR, 6th Comm, 54th sess, Agenda Item 160, UN Doc A/C.6/54/L.2 (26 October 1999) 41. Report of the Ad Hoc Committee established by General Assembly resolution 51/210 of 17 December 1996, UN GAOR, 54th sess, Supp No 37, UN Doc A/54/37 (28 January – 1 February 2002) 1. Philippe Kirsch, Report of the Working Group on Measures to Eliminate International Terrorism, UN GAOR, 6th Comm, 52nd sess, Agenda Item 152, UN Doc A/C.6/52/L.3 (10 October 1997) 58 (art 3).

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under the International Convention against the Recruitment, Use, Financing and Training of Mercenaries of 1989.39 That provision was not accepted.

B  UN General Assembly Resolutions [11.30] Until 9/11, much of the international community’s attention to terrorism was channelled through the General Assembly. Its first effort to grapple with the normative challenges presented by terrorism occurred between 1972 and 1979, when states, during the Cold War, were ideologically divided over the means of pursuing decolonisation. Australia was one of 35 states to vote against Resolution 3034(XXVII) concerning terrorism, while 76 states voted for it and 17 abstained. The resolution was controversial because it implied that liberation violence could not amount to terrorism, focused on condemning state terrorism against liberation movements, and did not condemn non-state terrorism.40 Australia was not among the 35 member states that joined the Ad Hoc Committee on International Terrorism established to study the causes of terrorism and propose responses to it. The Committee was unable to reach agreement on the definition or causes of terrorism. Australia was, however, one of 118 states voting in favour of Resolution 34/145 of 1979, in contrast to the United States, Canada and Britain, which were among 22 abstaining states. That resolution received the report of the Ad Hoc Committee and set the pattern for a chain of similar resolutions in successive years:41 condemning terrorism; calling for the elimination of its 39

40 41

International Convention against the Recruitment, Use, Financing and Training of Mercenaries, opened for signature 4 December 1989, 2163 UNTS 75 (entered into force 20 October 2001); proposal submitted by the Group of South Pacific Countries, A/AC.252/1999/ WP.17, draft art 6(2). See Ben Saul, Defining Terrorism in International Law (Oxford University Press, 2006) ch 4. See the following GA resolutions: GA Res 36/109, 92nd plen mtg, UN Doc A/RES/36/109 (10 December 1981); GA Res 38/130, 101st mtg, UN Doc A/RES/38/130 (19 December 1983); GA Res 40/61, 108th plen mtg, UN Doc A/RES/40/61 (9 December 1985); GA Res 42/22, 73rd plen mtg, UN Doc A/RES/42/22 (18 November 1987), annexed Declaration; GA Res 42/159, 94th plen mtg, UN Doc A/RES/42/159 (7 December 1987); GA Res 44/29, 72nd plen mtg, UN Doc A/RES/44/29 (4 December 1989); GA Res 46/51, 67th plen mtg, UN Doc A/RES/46/51 (9 December 1991); GA Res 48/122, 85th plen mtg, UN Doc A/RES/48/122 (20 December 1993); GA Res 49/60, 84th plen mtg, UN Doc A/ RES/49/60 (9 December 1994), annexed Declaration; GA Res 49/185, 94th plen mtg, UN Doc A/RES//49/185 (23 December 1994); GA Res 50/53, 87th plen mtg, UN Doc A/ RES/50/53 (11 December 1995); GA Res 50/186, 99th plen mtg, UN Doc A/RES/50/186 (22 December 1995); GA Res 51/210, 88th plen mtg, UN Doc A/RES/51/210 (17 December 1996), annexed Declaration; GA Res 52/133, 70th mtg, UN Doc A/RES/52/133 (12 December 1997); GA Res 52/165, UN Doc A/52/653 (15 December 1997); GA Res 53/108, 53rd sess, Agenda Item 155, UN Doc A/RES/53/108 (26 January 1999); GA Res 54/110, 54th sess, Agenda Item 160, UN Doc A/RES/54/110 (2 February 2000); GA Res 54/164, 54th sess, Agenda Item 116(b), UN Doc A/RES/54/164 (24 February 2000); GA Res 55/158, 55th sess, Agenda Item 164, UN Doc A/RES/55/158 (30 January 2001); GA Res 56/88, 56th sess, Agenda Item 166, UN Doc A/RES/56/88 (24 January 2002); GA Res 57/27, 57th sess, Agenda Item 160, UN Doc A/RES/57/27 (15 January 2003); GA Res 58/81, 58th sess, Agenda Item 156, UN Doc A/RES/58/81 (8 January 2004); GA Res 59/153, 59th sess, Agenda Item 96, UN Doc A/RES/59/153 (1 February 2005).

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causes; urging respect for the 1970 Declaration on Friendly Relations (relevantly prohibiting states from using force or intervening by terrorist means);42 implementing sectoral treaties and developing new ones; encouraging cooperation, information exchange, prosecution and extradition; and involving the UN and specialised and regional agencies in counter-terrorism. It is difficult to gauge Australia’s position on many subsequent resolutions on terrorism because many were adopted by consensus and Australia did not speak in the debates. There were, however, a number of significant resolutions where a vote was recorded. In 1984, Australia fell back in step with other Western states in joining the 30 states that abstained from Resolution 39/61 of 1984, adopted by 117 affirmative votes, on the inadmissibility of the policy of state terrorism. Many Western states believed that state violence was adequately regulated by existing areas of international law, including the Charter of the United Nations and law on the use of force, international humanitarian law, and human rights law. Western and former colonial powers were also seen as the target of that resolution. In a 1985 debate, Australia doubted the need for a comprehensive antiterrorism convention and instead supported the need to further develop the ‘no sanctuary approach’ of the existing prosecute or extradite treaties.43 Australia suggested that less ambitious initiatives would be more constructive, such as dealing with maritime piracy (following the Achille Lauro cruise ship hijacking of that year); armed conflicts involving self-determination movements; clarification of the confusion about ‘state terrorism’; the identification of non-political crimes for extradition purposes; and eliminating the causes of terrorism. Australia approvingly recounted at length the views of an International Committee of the Red Cross Legal Adviser, Hans-Peter Gasser, as to the relationship between terrorism, liberation violence, and international humanitarian law. In 1987, Australia was one of 153 states in favour of Resolution 42/159, leaving the United States and Israel isolated as the only two negative votes. That resolution uncontroversially condemned ‘as criminal, all acts, methods and practices of terrorism, wherever and by whomever committed’, although it still referred to the legitimacy of self-determination violence. Australia understood that reference to self-determination as required to be exercised ‘in accordance with the Charter of the United Nations’ and did not except national liberation movements from the prohibition on terrorism.44 In the same year, Australia again emphasised the importance of the 42

43

44

Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations, GA Res 2625 (XXV), UN GAOR, 25th sess, Agenda Item 85, UN Doc A/RES/25/2625 (24 October 1970) (‘Declaration on Friendly Relations’). Summary of the 22nd meeting, UN GAOR, 6th Comm, 40th sess, 22nd mtg, UN Doc A/C.6/40/ SR.22 (25 October 1985) 8–9. UN GAOR, 6th Comm, 42nd Sess, 60th mtg, UN Doc A/C.6/42/SR.60 (1 December 1987) 7.

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‘sectoral’ approach, having co-sponsored with Canada the proposal for the International Civil Aviation Organization to develop a convention on violence against airports.45 It opposed Libya’s call for an international conference to differentiate liberation struggles from terrorism, arguing that doing so would undermine the consensus achieved so far and legitimise liberation violence. Australia also stated that there were ‘insuperable obstacles to any effort to define terrorism’. For Australia, the ‘challenge was not the convening of new conferences or the establishment of new bodies, but the use of existing machinery, the implementation of existing international agreements, and compliance with the obligations imposed by international law’.46 While Australia opposed terrorism as a means of settling political differences, it highlighted that ‘the causes of terrorism must be removed’.47 To this end, it was noted that ‘one of the basic principles guiding Australia’s foreign policy was the need to acknowledge the rights of the Palestinian people to self-determination, including their right to independence and their own State’.48 Australia also observed that South Africa’s ‘persistent refusal to dismantle apartheid and to negotiate fundamental reforms for the black community had led to a situation in which frustration was increasingly expressed in violent ways’. Australia preferred peaceful negotiation or settlement and pressure (including sanctions) over violence. By 1989, Australia noted that terrorism was increasing despite growing international condemnation of it, and expressed frustration that few states had responded to the UN Secretary-General’s call to report on their implementation of resolutions on terrorism.49 It highlighted its own extradition arrangements with 100 states, ratification of sectoral treaties, the drafting of International Maritime Organization treaties in 1988, arms controls, and monitoring of terrorist movements. It reiterated, however, its opposition to a conference to define terrorism, not only as fruitless but for UN budgetary reasons. Australia also criticised ‘clear instances of State terrorism’ in the form of public calls for retribution against people exercising fundamental human rights such as freedom of thought and expression. Australia called terrorist acts as ‘generated by minds which had gone beyond all bounds of humanity

45

46

47

48

49

UN GAOR, 6th Comm, 42nd Sess, 28th mtg, UN Doc A/C.6/42/SR.28 (21 October 1987) 16–17. UN GAOR, 6th Comm, 42nd Sess, 28th mtg, UN Doc A/C.6/42/SR.28 (21 October 1987) 16–17. UN GAOR, 6th Comm, 42nd Sess, 28th mtg, UN Doc A/C.6/42/SR.28 (21 October 1987) 16–17. UN GAOR, 6th Comm, 42nd Sess, 28th mtg, UN Doc A/C.6/42/SR.28 (21 October 1987) 16–17. UN GAOR, 6th Comm, 44th Sess, 19th mtg, UN Doc A/C.6/44/SR.19 (16 October 1989) 4–5.

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and reason’ and ‘like a disease which, if ignored, would continue to spread’.50 It also noted that blind retribution would vindicate terrorists’ claims. Australia was part of the consensus in the General Assembly that adopted the Declaration on Measures to Eliminate International Terrorism of 1994,51 which condemned terrorism as unjustifiable ‘criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes’, but is not recorded as speaking in the debate. When the Assembly came to address the vexed interface between terrorism and human rights in 1997, Australia was one of 57 states abstaining from Resolution 52/133, which was adopted by 115 states in favour with no negative votes. Australia believed that other UN forums, notably the Sixth Committee, were more appropriate to consider terrorism.52 Western states generally were not keen on the resolution’s proposed establishment of a voluntary fund for the victims of terrorism, while the Nordic states and some others did not accept that terrorism by non-state actors could be legally characterised as a human rights violation. Australia maintained its emphasis on a sectoral treaty approach in 1998, calling on states not to lose their sense of urgency to adopt a terrorist bombings convention after the US embassy attacks in Africa.53 Australia noted that such a treaty was not intended to impact on wider nuclear non-proliferation issues being dealt with in other forums, or to legalise what is illegal. Australia also welcomed a French proposal for a terrorist financing convention. After 9/11, Australia spoke more frequently in the General Assembly about terrorism. It condemned 9/11 as ‘heinous’, ‘repugnant and inhumane’, and unjustifiable, and called for the perpetrators to be brought to justice.54 In 2002, the Foreign Minister called these ‘chilling events’ an ‘attack on the values of the great civilizations represented here today, values that are central to the United Nations Charter and this Organization’.55 He also prematurely claimed that the US coalition in Afghanistan had ‘disabled’ Al Qaeda and ‘defeated’ the Taliban regime, leaving the world a ‘safer and more humane place’.56 In the following year, the Foreign Minister described contemporary terrorism as ‘new forms of nihilism’ and a ‘negation of civilization’, and warned of the dangers of weapons of mass destruction (‘WMDs’) falling

50

51

52 53

54 55 56

UN GAOR, 6th Comm, 44th Sess, 19th mtg, UN Doc A/C.6/44/SR.19 (16 October 1989) 4–5. Measures to Eliminate International Terrorism, GA Res 49/60, UN GAOR, 49th sess, 84th plen mtg, Supp No 49, UN Doc A/RES/49/60 (9 December 1994). UN GAOR, 3rd Comm, 52nd Sess, 48th mtg, UN Doc A/C.3/52/SR.48 (9 December 1997) 6. UN GAOR, 6th Comm, 53rd Sess, 28th mtg, UN Doc A/C.6/53/SR.28 (25 November 1998) 3. UN GAOR, 6th Comm, 56th Sess, UN Doc A/56/PV.15 (2 October 2001) 9. UN GAOR, 57th Sess, 4th plen mtg, UN Doc A/57/PV.4 (13 September 2002) 23. UN GAOR, 57th Sess, 4th plen mtg, UN Doc A/57/PV.4 (13 September 2002) 23.

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into the hands of terrorists.57 ‘Failed states’ were described as ‘incubators’ of terrorism and the ‘promotion of good governance and democratization’ was seen as imperative for international security.58 The Foreign Minister acknowledged the ‘visionary and innovative work which sometimes only the United Nations can do’ and paid tribute to the Secretary-General’s senior representative in Baghdad, Sérgio Vieira de Mello, who was ‘swept by a terrorist bomb into the silent democracy of death [which] epitomizes the struggle between civilization and the unthinkable alternative’.59 Yet, the Foreign Minister also warned the UN ‘to avoid frittering away its credibility and influence by failing to exercise its power effectively’ and called for a radical ‘overhaul of the United Nations architecture, particularly in the light of new security threats’. Speaking on the limits of collective security, and implicitly justifying Australia’s invasion of Iraq earlier that year, the Foreign Minister stated that multilateral diplomacy should not be an ‘obstacle’ to effective action to preserve security.60 In 2004, Australia sponsored (with Turkey and Argentina) a draft resolution on the prevention of the illicit transfer and unauthorised access to, and use of, man-portable air defence systems (‘MANPADS’). It also acknowledged the need for a ‘comprehensive approach’ to terrorism, which included respect for Islam: ‘our efforts to stop a minority of extremist Muslim terrorists is not a war on Islam … Muslims are as much the victims of terrorist attacks and must defend themselves’.61 Both the Prime Minister and the Foreign Minister spoke at the World Summit of leaders in 2005, which considered UN reforms. Australia supported the counter-terrorism outcomes of the Outcome Document, but the Prime Minister was disappointed ‘at the lack of language on disarmament and non-proliferation, particularly given the risk of proliferation of weapons of mass destruction to terrorists’.62 The Foreign Minister further criticised the ‘outdated ideology that too many delegations brought to negotiations’ as ‘a damningly deep reflection on the intergovernmental process at the United Nations’.63 He also lamented the missed opportunity for world leaders ‘to produce a political declaration defining acts of terrorism’ as the deliberate targeting of civilians, even by ‘freedom fighters’, which ‘offends civilization’.64 He further called for the development of international law to meet a threat not envisaged by the drafters of the Geneva Conventions: ‘terrorist organizations 57 58

59 60 61 62 63 64

UN GAOR, 58th Sess, 9th plen mtg, UN Doc A/58/PV.9 (24 September 2003) 31. UN GAOR, 58th Sess, 9th plen mtg, UN Doc A/58/PV.9 (24 September 2003) 31. See also UN GAOR, 52nd Sess, 15th plen mtg, UN Doc A/62/PV.15 (2 October 2007) 44–5. UN GAOR, 58th Sess, 9th plen mtg, UN Doc A/58/PV.9 (24 September 2003) 31. UN GAOR, 58th Sess, 9th plen mtg, UN Doc A/58/PV.9 (24 September 2003) 31. UN GAOR, 59th Sess, 17th plen mtg, UN Doc A/59/PV.17 (30 September 2004) 20–1. UN GAOR, 60th Sess, 7th plen mtg, UN Doc A/60/PV.7 (16 September 2005) 19–20. UN GAOR, 60th Sess, 18th plen mtg, UN Doc A/60/PV.18 (21 September 2005) 4–6. UN GAOR, 60th Sess, 18th plen mtg, UN Doc A/60/PV.18 (21 September 2005) 4–6.

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and their foot soldiers, like those captured in Afghanistan, who bear arms on a battlefield but pay no heed to the laws of war, fight for no regular army, wear no uniform and bear no recognizable insignia’.65 Australia welcomed the adoption of the UN Global Counter-Terrorism Strategy in September 2006, and in 2008 called for its implementation.66 It stated that ‘multilateral action through the United Nations system is a vital element of our international strategy to address terrorism’.67 Australia noted that states bore the primary responsibility for implementation, but welcomed the coordination role of the UN Counter-Terrorism Implementation Task Force and the regional assistance provided by the UN Office on Drugs and Crime. Australia later observed that citizens too were responsible to ensure national security.68 Australia singled out the importance of countering the ideological dimension of terrorism through promoting ‘dialogue, tolerance and understanding among civilizations, cultures and religions’, to combat the ignorance and distortions fostered by terrorists.69 Australia therefore welcomed the Secretary-General’s Alliance of Civilizations initiative as a complement to Australia’s own activities, including a national action plan to strengthen social cohesion, harmony and security, and regional initiatives with governments, NGOs and community groups to rebut extremist propaganda. For instance, Australia co-sponsored regional interfaith dialogue in 2008 with New Zealand, the Philippines and Indonesia. Notably, Australia had supported Security Council Resolution 1624 (2005) on combating incitement to terrorism. In general, Australia has supported the ‘important galvanising role’ of the UN in global efforts to combat terrorism,70 including its ‘norm and standard setting’, which has helped to ‘lay the groundwork for the elaboration of more specific obligations’.71 Australia has also used the UN to build international support and strengthen legal frameworks and sees UN multilateralism as ‘key parts of our armoury in the fight against terrorism’.72 65 66 67 68

69

70

71

72

UNGAOR, 60th Sess, 18th plen mtg, UN Doc A/60/PV.18 (21 September 2005) 4–6. UN GAOR, 63rd Sess, 118th plen mtg, UN Doc A/62/PV.118 (14 September 2008) 13–14. UN GAOR, 63rd Sess, 118th plen mtg, UN Doc A/62/PV.118 (14 September 2008) 13–14. UN GAOR, 6th Comm, 63rd Sess, 2nd mtg, UN Doc A/C.6/63/SR.2 (28 October 2008) 5 (for Canada, Australia and New Zealand (the ‘CANZ’ group)). UN GAOR, 63rd Sess, 118th plen mtg, UN Doc A/62/PV.118 (14 September 2008) 13–14; see also UN GAOR, 6th Comm, 62nd Sess, 3rd mtg, UN Doc A/C.6/62/SR.3 (10 October 2007) 3–4 (for CANZ). Department of Foreign Affairs and Trade, Transnational Terrorism: The Threat to Australia (2004) ch 7. Department of Foreign Affairs and Trade, Transnational Terrorism: The Threat to Australia (2004) ch 7. Department of Foreign Affairs and Trade, Transnational Terrorism: The Threat to Australia (2004) ch 7.

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C  UN Security Council Measures [11.40]  Until it served as temporary member of the Security Council in 2013–14, Australia had last served as a member of the Security Council in 1985–86. Accordingly, it had a limited capacity to influence the Council’s counter-terrorism norm-setting and practices for almost three decades. Before 1985, the Council did not mention terrorism at all in its resolutions, while from 1985 to 2000 it occasionally condemned acts of terrorism73 but rarely took binding action under ch VII of the Charter of the United Nations. In the 1990s, sanctions were imposed on Libya (for the Lockerbie bombing), Sudan (for harbouring Osama Bin Laden) and Afghanistan (for harbouring Al Qaeda), and Australia duly implemented the respective sanctions regimes under the Charter of the United Nations Act 1945 (Cth) and regulations. 1  Resolution 1267 (1999) [11.50]  The most far-reaching sanctions regime was established in 1999 by Resolution 1267, which required states to freeze the funds and assets of Bin Laden and associated individuals and entities, including Al-Qaeda, as listed by a newly created 1267 Committee.74 Resolution 1390 (2002) extended sanctions beyond Afghan territory after the fall of the Taliban, focusing on the global activities of Bin Laden, Al-Qaeda and ‘associates’.75 Within a few years, hundreds of organisations and individuals were proscribed, including in areas of separatist or religious conflict such as Bosnia, Kosovo, Chechnya, Palestine, North Africa, Sudan, Kurdistan and Southeast Asia. Australia took a lead in the listing of an Indonesia-based group, Jemaah Islamiyah,76 which was responsible for the Bali bombings in 2002. Australia also noted that sanctions regimes are not keeping pace with the growth of autonomous terrorist groups.77 Deep concern has been expressed about the procedural unfairness of the administrative processes of listing and de-listing, including through successful human rights challenges in the European courts.78 Australia initially took a hard-line view that implementation of Security Council measures, by virtue of 73 74

75

76

77

78

See Ben Saul, Defining Terrorism in International Law (Oxford University Press, 2006) ch 4. SC Res 1333, UN SCOR, 4251st mtg, UN Doc S/RES/1333 (19 December 2000) [8(c)], [16(b)]. SC Res 1390, UN SCOR, 4452nd mtg, UN Doc S/RES/1390 (16 January 2002) [1]; SC Res 1617, UN SCOR, 5244th mtg, UN Doc S/RES/1617 (29 July 2005). John Dauth, Statement to the UN Security Council: Threats to International Peace and Security Caused by Terrorist Acts, UN SCOR, 5031st mtg, UN Doc S/PV.5031 (13 September 2004) 22. Department of Foreign Affairs and Trade, Transnational Terrorism: The Threat to Australia (2004) ch 7. See, eg, Lisa Ginsborg, ‘The United Nations Security Council’s Counter-Terrorism Al-Qaida Sanctions Regime: Resolution 1267 and the 1267 Committee’ in Ben Saul (ed), Research Handbook on International Law and Terrorism (Edward Elgar, 2014) 608.

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art 103 of the UN Charter, precluded Australia from providing any domestic procedure for reviewing a listing by the 1267 Committee. It later softened its approach to support improvements in due process, including through the establishment and strengthening of a UN Ombudsperson.79 2  Resolution 1373 (2001) [11.60]  After 9/11, the lynchpin of the Security Council’s response to terrorism was Resolution 1373 of 2001, which imposed numerous obligations on states with regard to counter-terrorism, including through domestic law reforms. A Counter-Terrorism Committee (‘CTC’) was established to monitor implementation through mandatory state reporting.80 Australia made six reports to the CTC between December 2001 and October 2005. 3  Terrorist Financing Obligations [11.70]  In fulfilling the terrorism financing obligations, Australia made immediate use in early October 2001 of existing banking and finance laws to stop payments to terrorists and terrorist organisations identified in United States Executive Order 13224.81 The Charter of the United Nations (AntiTerrorism Measures) Regulations 2001 (Cth), gazetted in December 2001, then made it an offence to make an asset available to a person or entity listed by the Minister of Foreign Affairs under para 1(c) of Resolution 1373. Australia also reported that an old and seldom-used law, the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), made it an offence to give or receive money, goods or services for the purpose of supporting or promoting a person to engage in or to enter a foreign state with intent to engage in hostile activity in that foreign state.82 In its follow-up dialogues, the CTC pressed Australia on issues concerning financing and asset freezing.83 Australia also reported on its laws to permit disclosure to foreign countries of terrorist-related financing transactions,84 79

80 81

82

83

84

Damian White, Statement to the UN Security Council: Briefings by Chairmen of Subsidiary Bodies of the Security Council, UN SCOR, 6767th mtg, UN Doc S/PV.6767 (10 May 2012) 36. SC Res 1373, UN SCOR, 4385th mtg, UN Doc S/RES/1373 (28 September 2001) [6]. Report of Australia to the Counter-Terrorism Committee of the United Nations Security Council pursuant to paragraph 6 of the Security Council resolution 1373 (2001) of 28 September 2001, UN Doc S/2001/1247 (23 January 2002) 4 (under the Banking (Foreign Exchange) Regulations 1959 (Cth) and the Financial Transaction Reports Act 1988 (Cth)). Report of Australia to the Counter-Terrorism Committee of the United Nations Security Council pursuant to paragraph 6 of the Security Council resolution 1373 (2001) of 28 September 2001, UN Doc S/2001/1247 (23 January 2002) 5. Supplement to First Report of Australia to the Counter-Terrorism Committee pursuant to paragraph 6 of the Security Council resolution 1373 (2001) of 28 September 2001, UN Doc S/2002/776 (19 July 2002) 3; Fifth Report to the UN Counter-Terrorism Committee, UN Doc S/2005/90 (22 February 2005); Sixth Report to the UN Counter-Terrorism Committee, UN Doc S/2005/671 (26 October 2005). Suppression of the Financing of Terrorism Act 2002 (Cth), amending the Financial Transaction Reports Act 1988 (Cth).

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and the revision of its asset-freezing regime under the Charter of the United Nations Act 1945 (Cth).85 The CTC also pushed Australia towards more stringent regulation of charities and religious and cultural associations. Australia reported that it had included counter-terrorism clauses in aid contracts with NGOs and commercial contractors, as well as multilateral bodies such as UNICEF, the United Nations Development Programme and the United Nations Relief and Works Agency.86 It also developed guidelines for NGOs to minimise the risk of aid diversion to terrorism. Compliance with anti-financing measures is one reason why Australia maintains a ‘no ransom’ policy in relation to hostage-taking or the kidnapping of Australian citizens, the payment of which by a family member might be a criminal offence.87 Australia did, however, resist the CTC’s assumption that it was obliged to comply with the more extensive measures of the Financial Action Task Force (‘FATF’), an informal grouping of states (including Australia) that developed non-binding ‘best practice’ standards. Australia noted that Resolution 1373 ‘does not specifically require compliance with the revised FATF Forty Recommendations, or the FATF 9 Special Recommendations on Terrorist Financing’, though Australia had implemented many of them.88 Later Resolution 1617 urged states to implement the FATF recommendations. For all of this regulatory effort, by late 2003 Australia reported that there were only two cases of assets being frozen in Australia, with a paltry total value of $2197.89 Australia kept no records on whether reporting of suspicious trans­ actions had led to any prosecutions.90 4  Other Elements of Resolution 1373 [11.80]  Aside from financing, Australia highlighted a range of other laws relevant to implementing Resolution 1373. In respect of recruitment, Australia invoked the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), which contained offences relating to preparation; training; weapons; giving, receiving or soliciting money, goods or services; allowing premises, 85

86

87

88

89

90

The Suppression of the Financing of Terrorism Act 2002 (Cth) inserted a new pt 4 of the Charter of the United Nations Act 1945 (Cth) to replace the Charter of the United Nations (AntiTerrorism Measures) Regulations 2001 (Cth); new regulations were issued as the Charter of the United Nations (Terrorism and Dealings with Assets) Regulations 2002 (Cth). Sixth Report to the UN Counter-Terrorism Committee, UN Doc S/2005/671 (26 October 2005) 4. Senate Foreign Affairs, Defence and Trade References Committee, Parliament of Australia, Held Hostage: Government’s Response to Kidnapping of Australian Citizens Overseas (2011) ch 4. Fifth Report to the UN Counter-Terrorism Committee, UN Doc S/2005/90 (22 February 2005) 3. Fourth Report to the UN Counter-Terrorism Committee, UN Doc S/2003/1204 (26 December 2003) 5. Fourth Report to the UN Counter-Terrorism Committee, UN Doc S/2003/1204 (26 December 2003) 4.

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vessels or aircraft to be used; and recruitment.91 The same Act was also invoked in respect of preventing Australian territory being used to commit terrorism against other states.92 Australia further reported that it had incorporated domestic offences arising under most of the sectoral anti-terrorism conventions,93 and was considering ratifying the outstanding treaties. It also reported the availability of antique public security offences of treason, treachery, sedition, espionage94 and a more recent offence of harming Commonwealth officials.95 Australia later amended the treason offence to cover hostile assistance to an organisation (not just a foreign state) and even where no formal war is declared.96 Sedition offences were also modernised, despite domestic opposition on free speech grounds,97 although later amendments following an Australian Law Reform Commission cured some, but not all, of the over-reach and rebadged them as offences of ‘urging violence’. After the Bali bombing in 2002, a new offence of harming Australians abroad was created, which asserts extraterritorial jurisdiction on a passive personality (and/or protective) basis, with seemingly no objection from other states to the intrusion on their regular territorial criminal jurisdiction. In terms of transnational cooperation, Australia noted its extensive mutual assistance and extradition legislation,98 and the existence of 40 bilateral extradition and 23 bilateral mutual assistance agreements.99 It noted that it excluded the sectoral treaty offences from being regarded as political 91

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95 96

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Report of Australia to the Counter-Terrorism Committee of the United Nations Security Council pursuant to paragraph 6 of the Security Council resolution 1373 (2001) of 28 September 2001, UN Doc S/2001/1247 (23 January 2002) 7–8. Report of Australia to the Counter-Terrorism Committee of the United Nations Security Council pursuant to paragraph 6 of the Security Council resolution 1373 (2001) of 28 September 2001, UN Doc S/2001/1247 (23 January 2002) 13. Report of Australia to the Counter-Terrorism Committee of the United Nations Security Council pursuant to paragraph 6 of the Security Council resolution 1373 (2001) of 28 September 2001, UN Doc S/2001/1247 (23 January 2002) 14–15. Under the Crimes Act 1914 (Cth): Report of Australia to the Counter-Terrorism Committee of the United Nations Security Council pursuant to paragraph 6 of the Security Council resolution 1373 (2001) of 28 September 2001, UN Doc S/2001/1247 (23 January 2002) 16. Under the Criminal Code Act 1995 (Cth) sch 1 s 115. Supplement to Second Report of Australia to the Counter-Terrorism Committee pursuant to paragraph 6 of Security Council resolution 1373 (2001) of 28 September 2001, UN Doc S/2003/513 (28 April 2003) 3. See Ben Saul, ‘Speaking of Terror: Criminalising Incitement to Violence’ (2005) 28 UNSW Law Journal 868; Australian Law Reform Commission, Fighting Words: A Review of Sedition Laws in Australia, Report No 104 (2006). Report of Australia to the Counter-Terrorism Committee of the United Nations Security Council pursuant to paragraph 6 of the Security Council resolution 1373 (2001) of 28 September 2001, UN Doc S/2001/1247 (23 January 2002) 16–18. Report of Australia to the Counter-Terrorism Committee of the United Nations Security Council pursuant to paragraph 6 of the Security Council resolution 1373 (2001) of 28 September 2001, UN Doc S/2001/1247 (23 January 2002) 22.

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offences in extradition law,100 and maintained safeguards in relation to non-­ discrimination, double jeopardy, double criminality, the national interest, the death penalty and foreign military offences. On preventing terrorism, Australia reported strict controls on domestic firearms and weapons exports,101 and extensive telecommunications interception powers. In relation to preventing the movement of terrorists, Australia highlighted its strict border controls, including carrier sanctions, advance passenger screening and travel documentation.102 It denied ‘safe haven’ by conducting immigration security checks (including a ‘good character’ requirement103), along with using movement alert lists and deportation powers.104 In practice, Australia’s broad definition of national security risks105 and a lack of due process have left Australia in violation of its international human rights law obligations. In 2013, for instance, the UN Human Rights Committee found that Australia’s indefinite detention of 47 refugees on undisclosed national security grounds amounted to arbitrary detention; a denial of effective judicial review; and cruel, inhuman or degrading treatment.106 In addition to its existing laws, Australia also reported to the CTC on its development of new terrorism-specific laws.107 These included a 100

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Report of Australia to the Counter-Terrorism Committee of the United Nations Security Council pursuant to paragraph 6 of the Security Council resolution 1373 (2001) of 28 September 2001, UN Doc S/2001/1247 (23 January 2002) 24. Report of Australia to the Counter-Terrorism Committee of the United Nations Security Council pursuant to paragraph 6 of the Security Council resolution 1373 (2001) of 28 September 2001, UN Doc S/2001/1247 (23 January 2002) 9. Report of Australia to the Counter-Terrorism Committee of the United Nations Security Council pursuant to paragraph 6 of the Security Council resolution 1373 (2001) of 28 September 2001, UN Doc S/2001/1247 (23 January 2002) 18–20. Under the Migration Act 1954 (Cth) s 501. Report of Australia to the Counter-Terrorism Committee of the United Nations Security Council pursuant to paragraph 6 of the Security Council resolution 1373 (2001) of 28 September 2001, UN Doc S/2001/1247 (23 January 2002) 11–13; see also Department of Prime Minister and Cabinet, Australian Government, Counter-Terrorism White Paper: Securing Australia, Protecting Our Community (2010) 35–9 . Under the Australian Security Intelligence Organisation Act 1979 (Cth) s 4. The Australian Senate Legal and Constitutional Affairs Committee described the definition as ‘broad in the extreme’, ‘unhelpful or unworkable’ for an affected person, and susceptible to abuse: Senate Legal and Constitutional Affairs Committee, Report of Inquiry into the Provisions of the National Security Information (Criminal Proceedings) (Consequential Amendments) Bill 2004 (2004) [3.20], [3.22]. FKAG, ‘Views adopted by the Committee at its 108th session’, Communication No 2094/2011 to the UN Human Rights Committee in FKAG v Australia, 26 July 2013; MMM, ‘Views adopted by the Committee at its 108th session’, Communication No 2136/2012 to the UN Human Rights Committee in MMM v Australia, 26 July 2013. Report of Australia to the Counter-Terrorism Committee of the United Nations Security Council pursuant to paragraph 6 of the Security Council resolution 1373 (2001) of 28 September 2001, UN Doc S/2001/1247 (23 January 2002) 3.

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new definition and crime of terrorism adopted in 2002,108 as required by Resolution 1373, reflecting a stark shift from Australia’s previous approach of treating terrorism as regular crime. Extensive preparatory offences were created in connection with the definition of terrorism, such as providing or receiving training for terrorism, possessing a thing or document connected with terrorism, financing terrorism, and doing acts in preparation for terrorism.109 The UN Human Rights Committee has criticised the vagueness of the definition and recommended that Australia ‘ensure that its application is limited to offences that are indisputably terrorist’.110 Australia also rejected111 calls to exclude conduct in armed conflicts from the scope of the terrorism definition.112 Consequently, its terrorism definition potentially interferes in the regulatory regime of international humanitarian law by criminalising conduct that is not otherwise criminal. The Attorney-General’s consent is, however, necessary to prosecute non-citizens for conduct outside Australia, which discretionarily allows ‘international law implications’ to be considered, including ‘current international law, practice and comity, international relations and prosecution action that is being or that might be taken in another country’.113 In addition to the terrorism offences, Australia reported new executive and judicial powers to proscribe terrorist organisations, which also trigger extensive offences for various kinds of involvement with listed organisations.114 Other 108

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Report of Australia to the Counter-Terrorism Committee of the United Nations Security Council pursuant to paragraph 6 of the Security Council resolution 1373 (2001) of 28 September 2001, UN Doc S/2001/1247 (23 January 2002) 16. See Criminal Code Act 1995 (Cth) sch 1 s 100.1. Supplement to Second Report of Australia to the Counter-Terrorism Committee pursuant to paragraph 6 of Security Council resolution 1373 (2001) of 28 September 2001, UN Doc S/2003/513 (28 April 2003) 3–4; see Criminal Code Act 1995 (Cth) sch 1 s 101, as amended by the Security Legislation Amendment (Terrorism) Act 2002 (Cth). UN Human Rights Committee, Concluding Observations: Australia, 95th sess, UN Doc CCPR/C/AUS/CO/5, 7 May 2009 [11]. Australian Government, Response to Parliamentary Joint Committee on Intelligence and Security Review of Security and Counter-Terrorism Legislation (2008) . Joint Committee on Intelligence and Security, Parliament of Australia, Review of Security and Counter-Terrorism Legislation (2006) Recommendation 12; Security Legislation Review Committee, Report of the Security Legislation Review Committee (2006). Supplement to First Report of Australia to the Counter-Terrorism Committee pursuant to paragraph 6 of the Security Council resolution 1373 (2001) of 28 September 2001, UN Doc S/2002/776 (19 July 2002) 6. Criminal Code Act 1995 (Cth) sch 1 s 102. This listing process is separate from the power of the Minister for Foreign Affairs, under the Charter of the United Nations Act 1945 (Cth), to list organisations in implementing Australia’s anti-terrorist financing obligations under UN resolutions.

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new invasive counter-terrorism powers adopted since 9/11 have included compulsory questioning and detention powers for the Australian Security Intelligence Organisation; preventive police detention; control orders; surveillance powers; search and seizure powers; numerous modifications to criminal procedure (including extended investigative detention periods, reversal of bail presumptions, minimum non-parole periods, non-disclosure of security information, and a lower threshold of suspicion); and powers to refuse or cancel passports and cancel the citizenship of dual nationals. In its dialogue with Australia, the CTC raised a number of other issues, including how anti-terrorism measures were coordinated in Australia’s federal system (Australia noted that the states referred powers)115 and the integrity of citizenship laws. Australia also explained its domestic inter-agency coordination, air security, and protections for sensitive military technologies and export controls.116 Questions about human rights were not raised by the CTC. The CTC even appeared to push against Australia’s human rights protections, raising questions about Australia’s refusal of extradition to the death penalty,117 or whether special courts are used (Australia responded that the ‘usual criminal justice system applies’). Australia scarcely mentioned human rights in reporting, although it noted that many of its new laws were subject to periodic review — even if reviews were often ignored. Aside from reporting on its implementation, Australia has supported the institutional strengthening of the Security Council’s counter-terrorism machinery, such as the establishment of the Counter-Terrorism Executive Directorate (‘CTED’) in 2004.118 A former Australian Ambassador for Counter-Terrorism, Mike Smith, was appointed as Executive Director of the CTED in 2007. 115

116

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Supplement to First Report of Australia to the Counter-Terrorism Committee pursuant to paragraph 6 of the Security Council resolution 1373 (2001) of 28 September 2001, UN Doc S/2002/776 (19 July 2002) 10. See Coalition of Australian Governments, An Agreement on Australia’s National Counter-Terrorism Arrangements (2002) ; Council of Australian Governments, Intergovernmental Agreement on Counter-Terrorism Laws (2005); Criminal Code Amendment (Terrorism) Act 2003 (Cth) s 100.3. Customs Act 1901 (Cth); Customs (Prohibited Exports) Regulations 1958 (Cth); Weapons of Mass Destruction (Prevention of Proliferation) Act 1995 (Cth). Fourth Report to the UN Counter-Terrorism Committee, UN Doc S/2003/1204 (26 December 2003) 6. Sue Knowles, Australian Statement to the UNGA 58th Sess (17 October 2003), quoted in Jennifer French, ‘Australian Practice in International Law 2003’ (2005) 24 Australian Year Book of International Law 327, 420; John Dauth, Statement to the Security Council’s Counter-Terrorism Committee (20 July 2005), quoted in Andrew Thomas, ‘Australian Practice in International Law’ (2007) Australian Year Book of International Law 327.

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At a practical level, Australia has acknowledged that developing countries find it difficult to meet their UN anti-terrorism obligations119 and has provided technical assistance to Asian and Pacific states through the CTED, the United Nations Office on Drugs and Crime, or bilaterally. It has also been active through other international organisations, such as the International Maritime Organization, the International Civil Aviation Organization, the International Monetary Fund, the World Bank and FATF.120 Australia created an Ambassador for Counter-Terrorism to develop Australia’s global counter-terrorism efforts and to coordinate policy cooperation, capacity building, and operational collaboration. 5  Nuclear, Biological and Chemical Weapons Controls [11.90]  Australia has been particularly active in the nuclear field, by supporting the ‘central role’ of the International Atomic Energy Agency in responding to terrorist nuclear threats, contributing to the Nuclear Security Fund,121 and endorsing Security Council Resolution 1540 on WMDs proliferation to non-state actors and export controls. Australia has a long history of diplomacy on nuclear issues, including through the 40 states of Australia Group (established in 1985 and dealing with export controls on WMDs), and the Australia and Japan International Commission on Nuclear NonProliferation and Disarmament. Australia is among the 82 states that are part of the Global Initiative to Combat Nuclear Terrorism established by the United States and Russia in 2006 to enhance nuclear security. In addition, Australia is part of almost 100 states involved in the Proliferation Security Initiative (‘PSI’), designed to impede illicit WMD trade and enable maritime interdiction. Concerns have been raised about whether aspects of the PSI comply with the international law of the sea122 and some of Australia’s neighbours oppose it, including Indonesia, Malaysia, China and India. In 2004, Australia announced the establishment of a 1000 nautical mile Maritime Identification Zone, based on cooperative international agreements with neighbouring maritime states. The collection of comprehensive shipping information aimed to, among other things, support counter-terrorism 119

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Department of Foreign Affairs and Trade, Transnational Terrorism: The Threat to Australia (2004) ch 7; UN GAOR, 6th Comm, 65th Sess, 2nd mtg, UN Doc A/C.6/65/SR.2 (25 October 2010) 6. Department of Foreign Affairs and Trade, Transnational Terrorism: The Threat to Australia (2004) ch 7 (including through the International Monetary Fund Training Institute in Singapore, training prosecutors, judges and officials from financial intelligence units). John Dauth, Statement to UN General Assembly: Report of the International Atomic Energy Agency, UN GAOR, 57th Sess, 46th plen mtg, Agenda Item 14, UN Doc A/57/PV.46 (11 November 2002) 22. See generally the discussion of the PSI in Donald R. Rothwell and Tim Stephens, The International Law of the Sea (Oxford University Press, 2nd ed, 2016) 299–300.

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response and interdiction,123 as well as help to protect offshore oil and gas installations. 6  Resolution 2178 (2014): ‘Foreign Fighters’ [11.100]  In Resolution 2178 (2014), the Security Council required states to ‘prevent and suppress the recruiting, organising, transporting or equipping of individuals who travel to a State other than their States of residence or nationality for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts or the providing or receiving of terrorist training, and the financing of their travel and of their activities’.124 As a temporary member of the Council, Australia supported the passage of the resolution and took steps to implement it. The Australian Foreign Minister addressed an open Council debate on counter-terrorism in November 2014, emphasising the extensiveness of Australia’s foreign fighter laws.125 Australia’s laws go further, however, than the resolution requires. Australia’s ‘foreign recruitment’ offences criminalise travel to participate not only in terrorist acts, but also in any foreign hostilities — regardless of how the person fights and even if the person confines attacks to proportionate strikes against military targets. Australia’s ‘declared area’ offence goes even further, criminalising a person’s mere presence in an area declared by the Minister of Foreign Affairs, irrespective of whether the person’s conduct is violent or harmful. 7  Australia’s Membership of the Security Council 2013–14 [11.110]  As a member of the Security Council for two years, Australia was involved in its deliberations and decisions on a number of terrorism issues. Australia declared counter-terrorism as one of its priorities on the Council.126 One of its key contributions was to chair the Al Qaeda sanctions committee and seek to improve its effectiveness. It also focused on accelerating the implementation of resolutions on foreign terrorist fighters, terrorist financing, and proliferation of WMDs. In relation to the Syrian conflict, Australia worked to enhance humanitarian access and civilian protection, including via Resolution 2165, which innovatively allowed UN agencies to deliver humanitarian assistance into 123

124 125

126

John Howard, ‘Strengthening Offshore Maritime Security’ (Press Release, 15 December 2004). SC Res 2178, UN SCOR, UN Doc S/RES/2178 (24 September 2014) [5]. Julie Bishop, ‘Australian National Statement’ (Address delivered at the Security Council Open Debate on Counter-Terrorism, United Nations Security Council, New York, 19 November 2014). Department of Foreign Affairs and Trade, Australia’s Term on the United Nations Security Council 2013–14: Achievements (February 2015) 5 .

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Syria without Syria’s consent. It was involved in securing the release of UN personnel by Al-Nusrah on the Israel–Syria border. The threat of groups such as Islamic State (Daesh) and Al-Nusrah dominated Australia’s term, with the Australian Foreign Minister describing their ‘hateful ideologies’ as ‘an affront to the values of the United Nations Charter’.127 Australia led the mandate renewal of the UN security force in Afghanistan and advocated for the appointment of a UN Counter-Terrorism Coordinator or Envoy to improve UN counter-terrorism efforts. Australia’s time on the Security Council coincided with Council interest in numerous terrorist situations, including in Libya, Yemen, Nigeria (Boko Haram) and the Sahel region. Australia expressed its concern about various terrorism-related issues, including sectarian attacks on religious and ethnic groups; risks to women and girls, and to children; and countering radicalisation, violent extremism and recruitment.

III  AUSTRALIA AND REGIONAL COOPERATION [11.120]  In the relatively strongly institutionalised regions of Europe, the Americas and even Africa, regional organisations have adopted binding counter-terrorism treaties. In contrast, Asia and the Pacific are less organised as regions and have been marked more by ‘soft law’ developments and practical cooperation.128 Australia has focused its efforts at counter-terrorism cooperation on Southeast Asia and the Pacific, where Australians and Australian interests have been threatened.129 Between 2002 and 2007, it committed $450 million to regional cooperation. It has also increasingly cooperated in South Asia and in Africa. In the Pacific, Australia has worked through the Pacific Islands Forum,130 including by developing model legislation to implement international

127

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Julie Bishop, ‘Australian National Statement’ (Address delivered at the Security Council Open Debate on Counter-Terrorism, United Nations Security Council, New York, 19 November 2014). With the exception of the South Asia Association for Regional Cooperation (‘SAARC’), which adopted an anti-terrorism treaty in 1987; see SAARC Regional Convention on Suppression of Terrorism, adopted 4 November 1987 (entered into force 22 August 1998); Additional Protocol to the SAARC Regional Convention on Suppression of Terrorism, adopted 6 January 2004. UN GAOR, 63rd Sess, 118th plen mtg, UN Doc A/62/PV.118 (14 September 2008) 13–14; see also Department of Prime Minister and Cabinet, Australian Government, CounterTerrorism White Paper: Securing Australia, Protecting Our Community (2010) 48 . Supplement to First Report of Australia to the Counter-Terrorism Committee pursuant to paragraph 6 of the Security Council resolution 1373 (2001) of 28 September 2001, UN Doc S/2002/776 (19 July 2002) 11–14.

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standards,131 and at meetings of law officers, police chiefs, and customs and immigration officers concerning cooperation. In Southeast Asia, Australia adopted an ASEAN–Australia Joint Declaration for Cooperation to Combat International Terrorism in 2004 and has pursued cooperation through the ASEAN Regional Forum and the Asia-Pacific Group on Money Laundering.132 Australia has supported Asia-Pacific Economic Cooperation (‘APEC’) efforts to control MANPADS and WMDs, and to pursue maritime and customs security.133 It has also been active in APEC’s Counter-Terrorism Task Force and in funding the Asian Development Bank’s Cooperation Fund for Regional Trade and Financial Security. Australia has supported the development of new regional bodies dealing with terrorism. With Indonesia, it jointly established and funded the Jakarta Centre for Law Enforcement Cooperation in 2004.134 The Centre has trained over 5000 regional personnel, including in counterterrorism. Australia has also supported the Southeast Asian Regional Centre for Counter-Terrorism in Kuala Lumpur, the International Law Enforcement Academy in Bangkok, and the Philippine Centre on Trans­ national Crime in Manila. It further helped to establish Regional Bomb Data Centres in Indonesia, the Philippines, Malaysia and Thailand. Counterterrorism has also featured Australia’s co-sponsorship with Indonesia of the Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime.135 Further afield, Australia has worked through other regional groupings, including the Commonwealth of Nations (which adopted a counter-terrorism Plan of Action and model legislation) and the G8 Counter-Terrorism Action Group, and as a founding of the Global Counterterrorism Forum established in 2011.136

131

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Department of Foreign Affairs and Trade, Transnational Terrorism: The Threat to Australia (2004) ch 7. Pacific Islands Forum documents on terrorism are available in Ben Saul (ed), Research Handbook on International Law and Terrorism (Edward Elgar, 2014) 712–15. Department of Foreign Affairs and Trade, Transnational Terrorism: The Threat to Australia (2004) ch 7. Department of Foreign Affairs and Trade, Transnational Terrorism: The Threat to Australia (2004) ch 7. Department of Prime Minister and Cabinet, Australian Government, Counter-Terrorism White Paper: Securing Australia, Protecting Our Community (2010) 49 . Department of Foreign Affairs and Trade, Transnational Terrorism: The Threat to Australia (2004) ch 7. US State Department, Global Counterterrorism Forum: Fact Sheet (9 September 2011) .

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IV  BILATERAL AGREEMENTS [11.130]  Australia has also pursued a bilateral counter-terrorism strategy. It has signed 17 counter-terrorism Memoranda of Understanding (‘MOUs’) with states in Asia, the Pacific, the Middle East and Europe. The MOUs encompass intelligence sharing; border control; terrorist financing; weapons trafficking; and training, education and technical assistance.137 The MOUs contemplate cooperation among personnel in areas such as security, intelligence, law enforcement, defence, customs, immigration and transport. In addition, Australia has concluded two agreements with the United States to share technical knowledge and research and to develop new technologies for counter-terrorism.138 There are also MOUs with the Bahamas, Bulgaria and Romania on the exchange of financial intelligence to combat money laundering, terrorism and other serious crimes.139 At a practical level, Australian police have cooperated with national police in states such as Indonesia, Thailand, the Philippines, Afghanistan, Iraq and Pakistan, as well as in Africa. This has included terrorist criminal investigations in Indonesia, Saudi Arabia, Turkey and Spain,140 following crimes such as the Bali and Madrid bombings. Significant counter-terrorism funding has been provided to Indonesia and the Philippines.141 AUSTRAC also provided support to establish Indonesia’s financial intelligence unit, and has information exchange arrangements with 27 countries.142 Australia’s Financial Intelligence Support Team has assisted Pacific states.143 Australia’s law enforcement cooperation has been led by the Australian Federal Police Law Enforcement Cooperation Program, and by other agencies in particular areas. Legislative reform has been led by the Attorney-General’s 137

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See Australian announcements of MOUs in (2005) 24 Australian Year Book of International Law 497. Including an MOU with the US Department of Defense Technical Support Working Group and a treaty through the US Department of Homeland Security: Department of Prime Minister and Cabinet, Australian Government, Counter-Terrorism White Paper: Securing Australia, Protecting Our Community (2010) 46 ; and Agreement between Australia and the United States on Cooperation in Science and Technology for Homeland/Domestic Security Matters, Australia and the United States, signed 21 December 2005 (entered into force 28 February 2006). See ‘International Instruments’ (2004) 23 Australian Year Book of International Law 437. Department of Foreign Affairs and Trade, Transnational Terrorism: The Threat to Australia (2004) ch 7. Department of Foreign Affairs and Trade, Transnational Terrorism: The Threat to Australia (2004) ch 7. Department of Foreign Affairs and Trade, Transnational Terrorism: The Threat to Australia (2004) ch 7. Department of Foreign Affairs and Trade, Transnational Terrorism: The Threat to Australia (2004) ch 7.

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Department in order to build legal frameworks in accordance with international standards.144 As early as the 1990s, Australia had provided model legislation to some Asia-Pacific states.145

V  HUMAN RIGHTS [11.140]  At a policy level, some Australian governments, led by then Attorney-General Phillip Ruddock, have conceptualised terrorism as a threat to the rights to life and security.146 This approach has been critiqued for co-opting and instrumentalising human rights to allow one right to disproportionately and simplistically trump others and to justify excessive counter-terrorism measures. The principle that terrorism threatens basic human rights is shared by the UN General Assembly human rights bodies,147 but that does not support Australia’s blunt ‘trumps’ approach. Australia rightly views protecting rights as the most effective means of combating terrorism.148 As the Minister for Foreign Affairs stated in 2002, ‘[t]o be effective, Australia must pursue a principled and proportionate response that promotes and upholds the values we seek to protect’.149 Australia has thus rejected torture in response to terrorism, and asserted that it will pursue terrorists ‘within proper legal frameworks and in accordance with the rule of law’.150 That includes a commitment to Australia’s human rights treaty obligations.151 144

145 146

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Department of Prime Minister and Cabinet, Australian Government, Counter-Terrorism White Paper: Securing Australia, Protecting Our Community (2010) 50 . UN GAOR, 6th Comm, 53rd Sess, 28th mtg, UN Doc A/C.6/53/SR.28 (25 November 1998) 3. See Greg Carne, ‘Reconstituting Human Security in a New Security Environment: One Australian, Two Canadians and Article 3 of the Universal Declaration of Human Rights’ (2006) 25 Australian Year Book of International Law 1. See the resolutions cited in Ben Saul, Defining Terrorism in International Law (Oxford University Press, 2006) ch 4. Department of Foreign Affairs and Trade, Transnational Terrorism: The Threat to Australia (2004) ch 7. Department of Prime Minister and Cabinet, Australian Government, Counter-Terrorism White Paper: Securing Australia, Protecting Our Community (2010) 23 . Department of Prime Minister and Cabinet, Australian Government, Counter-Terrorism White Paper: Securing Australia, Protecting Our Community (2010) 23 . Department of Prime Minister and Cabinet, Australian Government, Counter-Terrorism White Paper: Securing Australia, Protecting Our Community (2010) 56 .

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As noted above, however, aspects of Australia’s counter-terrorism laws, implementing its Security Council obligations, have raised human rights concerns and attracted criticism from UN treaty bodies. Its transnational cooperation has also raised concerns. For example, in 2016, the UN Human Rights Committee found that Australia had arbitrarily detained David Hicks by enforcing, in an Australian prison, his US military commission conviction (for providing material support for terrorism152). The Committee held that Hicks’s conviction involved a ‘flagrant denial of justice’ because the process was unfair and the charge was retrospective.153 In addition, Hicks’s guilty plea was found to have resulted from his poor detention conditions and ill-treatment at Guantánamo Bay. Another Australian, Mamdouh Habib, received compensation in an outof-court settlement after alleging that Australian officials were implicated in his torture in Egypt, after he was rendered there from Pakistan by the United States. The Hicks and Habib cases also involved inconclusive litigation about Australia’s conduct in foreign relations, the protection of its citizens, and the extent of the ‘act of state’ doctrine in cases involving human rights violations.154 At the international level, Australia has welcomed the ‘vital role’ of the UN in advising states on ‘ways to counter terrorism consistent with their obligations under international law, with particular regard for international human rights, refugee and humanitarian law’.155 In its own diplomacy, Australia has criticised foreign states for excessive counter-terrorism measures, such as China’s suppression of Uighur and Tibetan freedoms of expression and assembly.156 Similarly, Australia acknowledged that ‘Indonesia has a right to deal with groups which use violent means to pursue political goals’, but urged Indonesia ‘to keep open channels for further dialogue with separatist movements and respect the human rights of all Indonesian citizens’. Australia suggested that special autonomy is the best solution to separatism in Aceh and Papua.157 Australia has, however, provided military training to Indonesian special 152 153

154 155

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Under the US Military Commissions Act of 2006 § 950(25). David Hicks, ‘Views’, Communication No 2005/2010 to the UN Human Rights Committee in Hicks v Australia, 5 November 2016. Hicks v Ruddock (2007) 156 FCR 574; Habib v Commonwealth (2010) 183 FCR 62. UN GAOR, 63rd Sess, 118th plen mtg, UN Doc A/62/PV.118 (14 September 2008) 13–14. Mike Smith, Australian Statement to the UN Commission on Human Rights 59th Session (31 March 2003) quoted in Jennifer French, ‘Australian Practice in International Law 2003’ (2005) 24 Australian Year Book of International Law 327, 337. Sue Knowles, Australian Statement to the General Assembly 58th Session, Third Committee (10 November 2003) quoted in Jennifer French, ‘Australian Practice in International Law 2003’ (2005) 24 Australian Year Book of International Law 327, 337.

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forces, including a counter-terrorism unit, Detachment 88, which is accused of torture in Ambon.158 At the same time, Australia has ‘securitised’ its human rights diplomacy. For instance, Australia raised the UN anti-terrorism conventions with Vietnam in its bilateral human rights dialogue in 2002.159 Australia’s foreign aid and development have been ‘securitised’ by counter-terrorism aims. The Counter-Terrorism White Paper of 2010 states that ‘[a]lthough distinct from terrorism-specific initiatives, our development assistance program provides possible alternatives and economic opportunity to “at risk” communities … and can help to mitigate the sources of transnational threats such as terrorism’.160 The aid budget has been utilised, for instance, to fund joint law enforcement counter-terrorism capacity in the Philippines, and to fund port or ship security161 in Asian and Pacific states. As noted in other chapters, there have been related controversies over Australia’s conduct under international humanitarian law and the law on the use of force, with potential implications for the right to life and detainee rights in extraterritorial operations. The deployment of Australian Special Forces and Australian Secret Intelligence Service officers in anti-terrorism intelligence gathering, as in Somalia, Kenya, Nigeria and Zimbabwe,162 may also raise rights issues. The Defence Minister stated that such deployments accord with domestic and international law,163 without revealing Australia’s legal justifications or the type of operations.

VI CONCLUSION [11.150]  As for many states, counter-terrorism was a low priority for Australia before 9/11 and Australia utilised the ordinary criminal law to 158

159

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163

Tom Allard, ‘Australia Paying Troops Who “Torture”’, The Sydney Morning Herald, 13 September 2010; ‘Detachment 88 “Tortured Prisoners”: Report’, The Jakarta Post, 24 June 2010. Alexander Downer, ‘Australia–Vietnam Human Rights Dialogue’ (Press Release, FA79, 26 May 2002). Department of Prime Minister and Cabinet, Australian Government, Counter-Terrorism White Paper: Securing Australia, Protecting Our Community (2010) 67 . Alexander Downer, ‘Strengthening Port Security in the Pacific’ (Press Release, 10 May 2004); Alexander Downer and John Anderson, ‘Reducing Terrorism Risks in the Philippines’ (Joint Press Release, 27 April 2004). Rafael Epstein and Dylan Welch, ‘Secret SAS Teams Hunt for Terrorists’, The Sydney Morning Herald, 13 March 2012, 1. Daniel Flitton, ‘Spies Follow Rules, Says Minister’, The Sydney Morning Herald, 14 March 2012; see also Emma Griffiths and Emily Bourke, ‘Smith Tight-Lipped on SAS Africa Claims’, ABC News (online), 13 March 2012, .

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deal with rare instances of terrorism, coupled with domestic incorporation of the sectoral anti-terrorism treaties and ad hoc Security Council sanctions. Australia occasionally commented in the General Assembly on terrorism, mainly to emphasise that a comprehensive convention was unnecessary. After 9/11, Australia rapidly increased its international engagement in counter-terrorism. It supported efforts in the UN General Assembly to negotiate a draft comprehensive convention; successfully sought the listing of Jemaah Islamiyah under the Security Council’s Resolution 1267 sanctions regime; and offered technical assistance through the CTC to assist other states to meet their obligations. Australia also promptly reviewed and extensively refashioned its own domestic laws under the auspices of implementing Resolution 1373, adopting over 60 Acts of Parliament on terrorism issues between 2001 and 2015. It also made counter-terrorism a priority as a member of the Security Council in 2013–14. Augmenting its multilateral efforts, Australia has engaged in extensive regional and bilateral cooperation, particularly in Asia and the Pacific, across a wide spectrum of law reform, policing, law enforcement, financial intelligence, customs and migration. Australia has justified its efforts in pursuit of protecting rights to life and security, and claims that it acts consistently with its human rights obligations. Yet, a number of areas of domestic law, implementing international obligations, and aspects of its international activities have raised serious questions about its commitment to human rights in the face of terrorist threats.

12 The ADF and Military Operations Dale Stephens, Rob McLaughlin and Paul Muggleton*

I INTRODUCTION [12.10]  Over the past 30 years, the Australian Defence Force (‘ADF’) has been engaged in a myriad of operations that have been constant in tempo, and demanding in terms of navigating numerous disparate legal regimes. The types of operations that the Australian government has committed the ADF to undertake in this time period have included maritime law enforcement,1 international and domestic disaster relief operations,2 United Nations sanctions enforcement,3 evacuation

*

1

2

3

Colonel Paul Muggleton sadly passed away before the final publication of this chapter. The views expressed in the chapter are entirely those of the authors and do not necessarily reflect those of the Australian Defence Force, the Department of Defence or the Australian government. The authors would like to thank Major Lauren Sanders for her valuable research assistance in the preparation of this chapter. These have included Operation Relex I, Operation Cranberry, Operation Mistral, Operation Resolute, and Operation Relex II . These have included Operation Pakistan Assist, Operation Samoa Assist, Operation Queensland Assist, Operation Padang Assist and Operation Sumatra Assist. See generally Evan Carlin, ‘Australian Defence Force Experience with Non-Government Organizations in Humanitarian Assistance and Disaster Relief Operations’ (2007) 83 US Naval War College International Law Studies 267. Australian Naval forces, allocated to Operation Slipper, contribute to Combined Task Forces 150, 151 and 152, which conduct anti-terrorism, maritime security and antipiracy operations, respectively, as part of Australia’s contribution to Combined Maritime Operations in the Gulf region of the Middle East; see Department of Defence, ‘Navy Assumes Command of International Task Force in the Middle East’ (Media Release, 15 December 2011) ; see also Oceans and the Law of the Sea: Report of the Secretary-General, UN GAOR, 64th sess, Item 77, UN Doc A/64/66 (13 March 2009) 40. 291

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operations,4 and peacekeeping and peace enforcement operations.5 In addition to these operations, the ADF has also been involved in its key role of fighting in armed conflict, as well as associated counter-insurgency and stability operations in Iraq and Afghanistan. In the period identified, Australia has signed and ratified numerous key international treaties that directly impacted ADF operations, including the Additional Protocols to the 1977 Geneva Conventions (‘API’, ‘APII’ and ‘APIII’),6 the Suppression of Unlawful Acts at Sea Convention,7 the Convention on the Law of the Sea (‘LOSC’),8 the Chemical Weapons Convention,9 the Biological Weapons Convention,10 the Ottawa Anti-Personnel Land Mines Convention11 and the Rome Statute of the International Criminal Court.12 The implementation of these treaties under domestic law, along with recognition of correlative changes to customary international law (‘CIL’), has required constant vigilance to ensure that ADF operational doctrine and associated tactics, techniques and procedures are responsive to these legal frameworks. The ability to ensure proper compliance with these increasingly complex regimes has been met through an increasing recognition of the need for greater resource allocation to operational legal planning processes, and more 4

5

6

7

8

9

10

11

12

David Horner and John Connor, The Good International Citizen: Australian Peacekeeping in Asia, Africa and Europe, 1991–1993 — The Official History of Australian Peacekeeping, Humanitarian and Post-Cold War Operations (Cambridge University Press, 2014). See generally Australian War Memorial, Australians and Peacekeeping . Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, opened for signature 8 June 1977, 1125 UNTS 3 (entry into force 7 December 1978) (‘API’); Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, opened for signature 8 June 1977, 1125 UNTS 609 (entry into force 7 December 1978) (‘APII’); Protocol additional to the Geneva Conventions of 12 August 1949, and Relating to the Adoption of an Additional Distinctive Emblem, opened for signature 8 December 2005, 2404 UNTS 261 (entered into force 14 January 2007) (‘APIII’). Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, opened for signature 10 March 1988, 1678 UNTS 201 (entered into force 1 March 1992). Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 UNTS 397 (entered into force 16 November 1994; entered into force for Australia 10 May 1994) (‘LOSC’). Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, opened for signature 13 January 1993, 1974 UNTS 45 (entered into force 29 April 1997) (‘Chemical Weapons Convention’). Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, opened for signature 10 April 1972, 1015 UNTS 163 (entered into force 26 March 1975) (‘Biological Weapons Convention’). Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction, signed 3 December 1997, 2056 UNTS 211 (entered into force 1 March 1999) (‘Ottawa Convention’). Rome Statute of the International Criminal Court, signed 17 July 1998, 2187 UNTS 3 (entered into force 1 July 2002) (‘Rome Statute’).

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streamlined interdepartmental mechanisms. Currently, the Defence Legal Division of the Department of Defence liaises closely with the Office of International Law in the Attorney-General’s Department and the International Legal Division of the Department of Foreign Affairs and Trade (‘DFAT’) to determine the specific Australian legal position that underpins ongoing operational planning and compliance. Such planning results in optimising mission accomplishment goals set by the government consistent with the law. This chapter will survey a range of operations that the ADF has participated in during the recent past and will highlight some of the challenges faced when seeking to meet government priorities. The goal of this analysis is not to document in detail the historical record of ADF operational engagement, but rather to identify key legal themes that have developed in these operations and that have ongoing consequence. The structure of the chapter will comprise a number of parts that will, respectively, address the question of the international and domestic law interface, the conduct of ADF law enforcement operations, the ADF and peace operations, and the ADF and armed conflict.13 This last part will address selected weapons issues and the intersection of international humanitarian law (‘IHL’) and inter­ national human rights law (‘IHRL’).

II  INTERNATIONAL AND DOMESTIC LEGAL INTERFACE [12.20]  Any overview of developments in the domestic–international legal interface over the last 30 years must begin with three general statements as to context. The first is that there is, quite plainly, exponentially more international law to take into account, but concomitant domestic implementation has slowed. As a consequence, the standard rules on applicability of treaty law and CIL in Australian domestic law14 have significant resonance for the interface between international law and domestic law as they affect ADF operations. However, this highly legalistic and increasingly formalistic point should not be overstated. This is because, in the context of ADF operations, a second contextual aspect of this interface significantly mitigates the practical effect of this formal position — namely, that much of this as yet ‘undomesticated’ (that is, as yet to be incorporated) international law applicable to ADF operations is nevertheless applied or followed as a matter of policy. This will be discussed further below. The third contextual aspect of note is that while there has been a good deal of judicial review, and indeed criminal case law, that has emerged from several of Australia’s operational partners whose legal systems most closely mirror our own, there has been very little to 13

14

The terms ‘international humanitarian law’ (‘IHL’) and the ‘law of armed conflict’ (‘LOAC’) will be used interchangeably through this chapter. See further chapters 2 and 3 of this volume.

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emerge from Australia’s experience of deployment in operations (both international and domestic) in that period. Canada, the United Kingdom and the United States, for example, have all experienced significant levels of judicial or Commission-based inquiry into aspects of their operations in Iraq and Afghanistan in particular.15 In Australia, however, calls for judicial review or other inquiry mechanisms into broader issues of ADF engagement on operations have generally not been successful, despite a clear public interest.16 Indeed, the sole case concerning an ADF use of force involving death to come in for any form of criminal judicial process to date was the directions hearing stage of the ‘Commando Prosecution’.17

A  Treaties Signed, Ratified and Implemented [12.30]  In terms of treaties, the first issue of significance for the ADF is translating those international law provisions into Australian domestic legal contexts and concepts. The first challenge can be taking an international law permission/prohibition and covering the same scope within Australian law. This can then be complicated by the need to seek out consistency in the domestication of terms, which often come with significant negotiating baggage. One example is the scope covered of terms such as ‘use’, ‘encourage’ and ‘assist’, as they apply within the Ottawa Convention18 (dealing with anti-personnel land mines (‘APLM’)) and now also the Oslo Convention19 (dealing with cluster munitions) and how these terms have been brought into Australian law in an operationally acceptable manner. The obligation in the Ottawa Convention (which is paralleled in the Oslo Convention) is: 1. Each State Party undertakes never under any circumstances: (a) To use anti-personnel mines; (b) To develop, produce, otherwise acquire, stockpile, retain or transfer to anyone, directly or indirectly, anti-personnel mines; 15

16

17

18

19

For Canada, see Amnesty International Canada v Chief of the Defence Staff for the Canadian Forces [2009] 4 FCR 149; for the United Kingdom, see Al-Skeini v Secretary of State for Defence (Consolidated Appeals) [2007] UKHL 26; R (Evans) v Secretary of State for Defence [2010] EWHC 1445; William Gage, The Report of the Baha Mousa Inquiry (2011) ; for the United States, see United States v Girouard 70 MJ 5 (CAAF 2011). See, eg, Public Interest Advocacy Centre, Military Detention Project . See Transcript of Proceedings: Pre-Trial Directions Hearing (20 May 2011) 15 . Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction, signed 3 December 1997, 2056 UNTS 211 (entered into force 1 March 1999) (‘Ottawa Convention’). Convention on Cluster Munitions, opened for signature 3 December 2008, 2688 UNTS 39 (entered into force 1 August 2010) (‘Oslo Convention’).

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(c) To assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under this Convention. 2. Each State Party undertakes to destroy or ensure the destruction of all anti-personnel mines in accordance with the provisions of this Convention.20 However, there was some disagreement as to the precise scope of the obligation of ‘never under any circumstances’ during negotiations,21 and also a good deal of operational concern as to the practical effects of a wide, or narrow, interpretation upon multinational operating partners to which the prohibition did not apply. One specific concern, for example, was the operation of the prohibition in a multinational force where one partner determined to use APLM as a protective measure around an operating base shared with ADF elements. Certainly, ADF elements could not participate in the mine-laying. But did ‘assist’, for example, also prohibit ADF elements from providing routine security coverage for the US elements that were laying the mines? If not, could this security coverage be only from the operating base itself, or on the ground in close proximity to the mine-laying operation? The legislation implementing the obligation thus had to address this concern, and to bring some degree of certainty to the scope of the prohibition. The result was s 7(3) of the Anti-Personnel Mines Convention Act 1998 (Cth): (3) Subsection (1) [the offence-creating section] does not apply to anything done by way of the mere participation in operations, exercises or other military activities conducted in combination with an armed force that: (a) is an armed force of a country that is not a party to the Convention; and (b) engages in an activity prohibited under the Convention. A second challenge in incorporating international obligations with high levels of operational resonance into Australian domestic law is working out how Australia’s specific levels of criminal responsibility will apply.22 For example, the Rome Statute assigns the culpability level of ‘wilful’ to the offence of ‘wilful killing’ (art 8(2)(a)(i)). Translating ‘wilful’ into the scheme underpinning federal criminal law (fault and physical elements, with fault elements being either intention, knowledge, recklessness or negligence23) and assigning a domestically nuanced level of criminal responsibility is not necessarily 20

21

22 23

Ottawa Convention art 1. The Oslo Convention obligation is the same, but for its applicability to cluster munitions. For a revisionist view on the Ottawa Convention negotiation process, see, eg, Kenneth Anderson, ‘The Ottawa Convention Banning Landmines, the Role of International NonGovernmental Organizations and the Idea of International Civil Society’ (2000) 11(1) European Journal of International Law 91. Criminal Code Act 1995 (Cth) ch 2. Criminal Code Act 1995 (Cth) divs 4, 5.

296    INTERNATIONAL LAW IN AUSTRALIA

straightforward. In this case, the resultant offence (s 268.24) translates wilful into ‘knowledge’ or ‘recklessness’ (and thus intention, by default, is also captured) for some elements of the offence, but also into strict liability (no fault element) for one other element of the offence: that the person or persons targeted in a ‘wilful killing’ are protected under one or more of the Geneva Conventions or under Protocol I to the Geneva Conventions. A third issue confronted in domesticating operationally nuanced international law is the intentional or unwitting creation of lacunae when attempting to capture the full suite of the obligations imposed by the treaty. Indeed, s 268.24 arguably contains such an oversight in that it does not appear to provide a defence or excuse for conduct that inflicted death upon a civilian, with knowledge that this would be the result, but in circumstances where the law of armed conflict (‘LOAC’) excuses the collateral damage as permissible under the proportionality calculus.24

B  Treaties Signed, but Not Yet Ratified or Implemented [12.40]  For the ADF, the formal legal position of international instruments signed but not yet ratified by Australia25 is only one factor relating to whether it applies to govern ADF operations. In the realm of use of force — particularly outside Australian territory by Australian forces — ADF conduct is likely to be subject to much higher levels of international scrutiny. Thus, the ADF tends to operate (as a matter of policy) as if the treaty binds it; for example, procurement decisions on the SMART 155 artillery round were certainly conducted in the shadow of the Oslo Convention on cluster munitions, even though Australia had not, at that time, ratified and implemented the treaty. Similarly, there is little doubt that Australia also applies the full range of LOAC targeting criteria applicable to an international armed conflict (‘IAC’) to non-international armed conflict (‘NIAC’). This reflects abundant caution regarding API’s targeting law constituting CIL across both types of armed conflict contexts, in addition to being grounded in good policy. In terms of operational consequences, whether an obligation is applied as a matter of law or policy actually has little operational difference — the obligation is passed on as an order either way. However, the legal point when such pre-ratification compliance is expressed in terms of application as a matter of policy rather than law is significant when assessing conduct that breaches these orders. If the underlying obligation is policy-based, then the character of the offence is primarily as a breach of an order; if the underlying obligation is legal, then the character of the offence will be more appropriately found in the breach of the legal norm itself. 24

25

Rob McLaughlin and Bruce Oswald, ‘“Wilful Killing” during Armed Conflict: Is There a Defence of Proportionality in Australia?’ (2007) 18(1) Criminal Law Forum 1. See chapters 2 and 3 of this volume on the incorporation of international law obligations into Australian law.

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C  The Increasing Importance of Soft Law [12.50]  There is no room for doubt that so-called ‘soft law’ does have a significant effect on ADF operational conduct. No debate on targeting civilians taking a direct part in hostilities within a NIAC context now takes place without some reference to the International Committee of the Red Cross Interpretive Guidance26 on this subject. Similarly, manuals such as the San Remo Manual (law of naval warfare),27 the Harvard Air and Missile Warfare Manual (air warfare),28 and the Tallinn Manual (cyber operations law)29 influence operational planning and execution. The rules found in such soft law are often highly persuasive in their nuanced distillations of the applicable law, and as such are routinely consulted during the preparation of ADF operational doctrine, plans and rules of engagement (‘ROE’).

III  ADF LAW ENFORCEMENT OPERATIONS [12.60]  Law enforcement is a task increasingly undertaken by military forces around the world, usually as part of a low-intensity conflict paradigm or in the context of heightened domestic counter-terrorism operations. While the demand has increased, it has not generally been regarded as a traditional military function, at least in relation to actions against one’s own population. Naturally, domestic police forces are primarily responsible for enforcing domestic criminal law under legislative regimes that ensure appropriate due process. However, given the rising lethality of non-state actors and the increasingly sophisticated threats that they pose to national security, the line between law enforcement and military operations is becoming increasingly blurred. Military skill sets and weapons can prove to be more effective in dealing with such threats than are police capabilities; however, selecting the correct legal regime and/or developing hybrid versions of each that may apply has become an increasingly complex challenge. There exists no constitutional or inherent common law prohibition against the ADF enforcing Commonwealth laws.30 Hence, the ADF has been empowered under legislative regimes such as the Customs Act 1901 (Cth), 26

27

28

29

30

International Committee of the Red Cross, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (2009). Louise Doswald-Beck (ed), San Remo Manual on International Law Applicable to Armed Conflicts at Sea (Cambridge University Press and International Institute of Humanitarian Law, 1995). Harvard Program on Humanitarian Policy and Conflict Research, Manual on International Law Applicable to Air and Missile Warfare (Harvard University, 2009). Michael Schmitt (ed), The Tallinn Manual on the International Law Applicable to Cyber Warfare (Cambridge University Press and NATO Cooperative Cyber Defence Centre of Excellence, 2013). Li Chia Hsing v Rankin (1978) 141 CLR 182, 195 (Gibbs J).

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the Fisheries Management Act 1991 (Cth) and the Migration Act 1958 (Cth) to enforce the provisions of such laws. This specific jurisdictional focus within the various legislative regimes takes international law as its foundation for enforcement activity. Jurisdictional limits within the legislative schemes generally track the maritime zones enunciated within the LOSC and empower ADF members accordingly. Similarly, international legal rights pertaining to enforcement mechanisms such as ‘hot pursuit’ in the maritime environment also find their expression within domestic Commonwealth law.31 International law does provide general limits regarding the use of force by setting clear limits on the use of lethal force for mere maritime law enforcement.32 International law and domestic legislation do countenance the authority to fire at, or into, vessels when circumstances require,33 but this can verge dangerously close to threatening life, which is proscribed. Accordingly, it is difficult to predict precisely the thresholds of force, below that of lethal force, which may apply in any given operation. Alternatively, it demonstrates the growing significance of international law and the desire for harmonisation of domestic and international standards. It also clearly anticipates the possibility of defending Australian actions in both domestic and international forums in relation to actions against foreign flagged vessels. In recent years, the ADF has been at the forefront of a number of legally and politically charged incidents involving off-shore law enforcement. The question of border protection has become a key operational focus of the ADF. It is now clear that executive authority provides an independent foundation for ADF action, notwithstanding the co-existence of reasonably comprehensive legislative regimes. These overlapping authorities highlight the intersection of law enforcement and national security concerns. In the Tampa case34 of 2001, a majority of the Full Bench of the Federal Court upheld Commonwealth/ADF actions in preventing the arrival of undocumented individuals into Australia. This case represents perhaps the high-water mark of ADF authorisation under the executive power of the Commonwealth and, from an operational perspective, it represents a re-affirmation of that power to ground ADF activity, but also discloses an appreciation of 31

32

33

34

Maritime Powers Act 2013 (Cth) ss 41 and 42 provide an authority to engage in hot pursuit that is arguably more liberal in some respects than that found in LOSC art 111. Cameron Moore, ADF on the Beat: A Legal Analysis of Offshore Enforcement by the Australia Defence Force (University of Wollongong, 2004) 113–19; note also that internationally established standards for the use of force in law enforcement are contained within the UN Congress on the Prevention of Crime and the Treatment of Offenders, Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, UN Doc A/CONF.144/28/Rev.1 (27 August 1990), as well as the Code of Conduct for Law Enforcement Officials, GA Res 34/169 (17 December 1979). Cameron Moore, ADF on the Beat: A Legal Analysis of Offshore Enforcement by the Australia Defence Force (University of Wollongong, 2004). Ruddock v Vadarlis (2001) 110 FCR 491; see also chapter 8 of this volume for a further discussion of the Tampa case.

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the twilight area in which ADF actions take place — not traditional war fighting, but not quite classic law enforcement either.

A  Border Protection and the ADF [12.70]  The question of maritime border protection attracted an unprecedented level of political debate during the course of the Australian federal election of November 2001 and it continues to resonate within Australian political discourse. The issue that originally ignited such intense debate concerned the arrival of the Norwegian-flagged vessel MV Tampa into Australian territorial waters at Christmas Island on 29 August 2001. The arrival of the Tampa prompted intense diplomatic, legal and public scrutiny and led, ultimately, to the passage by the Australian Parliament, on 26 September 2001, of omnibus border protection legislation.35 This new legislation established a robust legal regime, which, among other things, infused the ADF with significantly greater authority to intercept and remove suspected illegal entry vessels from Australia’s maritime zones. At international law, the ability to intercept vessels carrying undocumented migrants is contemplated within the LOSC under art 33, which permits a coastal state the authority to exercise ‘the control necessary’ within the contiguous zone to prevent infringement of immigration laws. Of course, such authority exists in the territorial sea, where art 19(g) of the LOSC defines the loading/unloading of persons contrary to coastal state immigration laws as non-innocent passage which, under art 25, a coastal state may ‘take the necessary steps’ to ‘prevent’. While there seemed ample prima facie authority under international law to intercept vessels and prevent non-innocent passage, there was a difficulty in reconciling these powers with the applicable legislative scheme. The Migration Act at the time provided for a highly formalised procedure in which ‘Commanders’ of duly commissioned ships were authorised to intercept vessels carrying suspected undocumented migrants.36 The Act seemed to generally contemplate that persons so detained would be conveyed into Australian Migration Act jurisdiction (that is, land territory), rather than taken out of it in order to facilitate a more ordered processing regime where claims of refugee status might be more meaningfully considered.37 On the day of the Tampa incident, members of the Special Air Service were not acting in accordance with powers pursuant to the Migration Act, as they were not duly appointed ‘Commanders’ as defined by the Act, nor were they in command of a commissioned ship as also contemplated by the legislation, but rather were acting pursuant to specific government direction under the executive power of the Constitution. 35 36 37

Border Protection (Validation and Enforcement) Act 2001 (Cth). Migration Act 1958 (Cth) s 245B(1). Migration Act 1958 (Cth) s 245F(9).

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The difficulty facing the Commonwealth in relying upon the executive power in the context of the Tampa interception was that it seemed inconsistent with the legislative scheme then operating under the Migration Act. As such, it was an uncertain basis upon which to found military action. It has traditionally been an uncontested right of the executive government to declare war and operate liberally within the national security space, at least with respect to off-shore activities. Black CJ, the minority judge in the Tampa appeal, emphasised consistently through his judgment the peacetime nature of the exercise of executive powers in that instance,38 when determining the question of the displacement of executive authority. In contrast, it is notable that French J’s judgment had a more comprehensive view of the incidents of national sovereignty. Indeed, the reference to possible expandability of the power as an incident of national sovereignty, like that of the defence power, at least hinted that national security considerations would be given weight. Indeed, following the 9/11 attacks that had occurred a week before the decision, the United Nations Security Council had adopted Resolution 1373 under ch VII of the Charter of the United Nations, which deals with threats to international peace and security.39 Article 2(g) of this resolution emphasised the need for all states to bolster their border controls as a necessary measure to combat terrorist activity, thus identifying a national security component to international migration processes that required ongoing vigilance.40

B  Executive Authority and ADF Operations [12.80]  It is unclear how substantive an authority executive power may be when planning and conducting peacetime ADF operations. However, it does seem clear when examining all the judgments that the executive power has particular reach when the ADF is acting extraterritorially, especially when undertaking operations pursuant to Security Council authority and particularly in situations of armed conflict. At present, the deployment of the ADF overseas on operations is undertaken through decision solely by the executive branch. While in the modern era the Hawke government made a statement informing Parliament of ADF deployment in the first Gulf War in 1990, parliamentary approval was not sought then, nor has it been since, by the government in any subsequent ADF deployment.41 ADF operations extending for the last 20 years have all been grounded 38 39 40

41

Ruddock v Vadarlis (2001) 110 FCR 491, 495 [7]. SC Res 1373, UN SCOR, 4385th mtg, UN Doc S/Res/1373 (28 September 2001). The Full Court decision has been criticised by some academic commentators for failing to properly have regard to implicit international obligations contained within the 1951 Refugee Convention to which Australia is party. See generally Penelope Mathew, ‘Inter­national Association of Refugee Law Judges Conference: Address — Legal Issues Concerning Interception’ (2003) 17 Georgetown Immigration Law Journal 221. See Department of Parliamentary Services, Parliamentary Involvement in Declaring War & Deploying Forces Overseas 2009–10, 22 March 2010.

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upon the exercise of the executive power. This is not to deny that the ADF is subject to prevailing positive law. It plainly is: the Criminal Code Act 1995 (Cth), which incorporates the Rome Statute in div 268 of the code, applies to shape ADF operational planning and execution in armed conflict, as does the Defence Force Discipline Act 1982 (Cth), which attracts the full panoply of domestic criminal law. What it does mean, however, is that there exists wide latitude for government to deploy the ADF on operations where this is consistent with national interest and priorities. In some cases, like anti-piracy operations in the Indian Ocean, there is applicable domestic law that can apply,42 albeit sometimes only partially, to give effect to operational outcomes (in terms of potential prosecution of alleged captured pirates). This was not always the case, as until recently there was no positive grant of domestic legislative authority to undertake UN Security Council sanctions enforcement.43 The conduct of such operations has traditionally been pursuant to an exercise of the executive power, though ADF members themselves must comply with prevailing Australian criminal/ domestic law, which applies to all ADF operations. To that end, ADF legal planning must be cognisant of the international legal authorities that ground operations, along with domestic legal frameworks, to ensure that such operations retain their legal integrity in both international and domestic law.

C  Part IIIAAA of the Defence Act [12.90]  The evolving nature of the global terrorist threat that has been recognised since the events of 9/11 has given rise to substantive changes to ADF legal capacity to engage in counter-terrorist operations within Australia. Amendments made to pt IIIAAA of the Defence Act 1903 (Cth) in 2000 (motivated by Sydney’s hosting of the 2000 Olympics) and further in 2006 (following the events of 9/11, the Bali bombings and Australia’s hosting of the 2007 Asia-Pacific Economic Cooperation meetings) have provided a comprehensive scheme that permits the ‘call out’ of the ADF to apply up to lethal force to quell any terrorist threat that is beyond the capacity of local law enforcement to deal with. Notably, s 51Y of the Defence Act provides that the legislative powers provided in pt IIIAAA do not detract from other powers that the ADF would have but for that part.44 Given the broad reach of the legislative provisions empowering the ADF under pt IIIAAA, it is not likely that this implicit reservation of executive authority will be readily invoked, but it exists in tandem. 42 43

44

Crimes Act 1914 (Cth) pt IV. Note that the Charter of the United Nations Act 1945 (Cth) principally allows for the making of regulations giving effect to a UN sanctions regime in terms of trade and other proscribed activities; it does not provide a statutory authorisation to undertake military enforcement measures that may involve the use of force. Defence Act 1903 (Cth).

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Under pt IIIAAA, pursuant to an order made by the Governor-General, or by one or more authorising Ministers,45 a member of the ADF under command of the Chief of the ADF is authorised to take a variety of actions46 to protect Commonwealth or state interests where local police forces are unable to meet the threat through traditional means. The actions available to an ADF member under the legislation include recapturing a location or thing, preventing or putting an end to violence, and protecting persons from acts of violence.47 Importantly, the ADF member is permitted to use reasonable and necessary force, up to and including lethal force, in discharging his or her duties where the life of the member or others is threatened.48 Significantly, pt IIIAAA also provides for the forceful protection of ‘critical designated infrastructure’49 where the loss of such infrastructure directly or indirectly endangers the life of, or causes serious injury to, other persons. Such infrastructure shall be designated by an authorising Minister and might reasonably include power generation facilities, energy pipelines, power lines and bio-hazard facilities. ADF members are also empowered in certain situations to take forceful measures, up to and including lethal force, to destroy an aircraft (whether airborne or on the ground) and/or a vessel. The methodology of balancing competing lives, such as those on a hijacked aircraft as against those on the ground, is not a familiar paradigm in law enforcement and there are no reliable means to calibrate what the ‘correct’ response should be. However, the lawful application of force is not unknown in the sphere of armed conflict, where civilian lives are factored into the proportionality equation to achieve an anticipated concrete and direct military advantage when attacking military objectives.50 Over the past decade, it has become clear that actions by terrorist groups and other motivated non-state actors have demanded greater vigilance in protecting resident civilian populations. This has resulted in the development of hybrid laws within Australia that empower the ADF to act in specific circumstances where normal law enforcement capacities are not adequate to the task. Amendments to pt IIIAAA of the Defence Act are representative of this shift. In this rarefied legal environment, normal law enforcement paradigms are supplanted by decision-making processes that more faithfully resemble methodologies utilised under the LOAC. At present, these powers are exercisable in very heightened and specific circumstances, but they nonetheless represent a significant moment in the operational and legal tradition of the ADF.

45 46 47 48 49 50

Defence Act 1903 (Cth) ss 51A, 51AA, 51AB, 51B, 51C, 51CA. Defence Act 1903 (Cth) ss 51D, 51E. Defence Act 1903 (Cth) s 51I. Defence Act 1903 (Cth) s 51T. Defence Act 1903 (Cth) div 2A. API art 51(5)(b).

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IV  THE ADF AND PEACE OPERATIONS [12.100]  Australia has an enviable record as an active participant in UN peace operations, having made military contributions to numerous peace operations since 1947. In more recent times, the legal foundation that underpins such operations has become more complex. The term ‘peacekeeping’ is not expressly mentioned in the Charter of the United Nations, nor does the Charter expressly mention ‘peace enforcement’ or the more generic term ‘peace operation’. Nonetheless, while the International Court of Justice (‘ICJ’) can trace authority for the conduct of these operations to specific provisions of the Charter,51 there has been a need to develop appropriate supporting doctrine for the conduct of these operations. A fundamental tenet of classical peacekeeping is that consent from the state in which the peacekeeping force (‘PKF’) is to be deployed remains a critical requirement for deployment.52 Additionally, two other key elements are necessary: namely, the exercise of impartiality53 and a limited use of force in actions of self-defence by the PKF.54 While these three conditions for establishing a peacekeeping presence (consent, impartiality and limited selfdefence) have become entrenched within UN doctrine,55 the actual function of the PKF remains an evolving concept. In practice, peacekeeping has included monitoring, supervising and verifying ceasefire agreements; overseeing troop withdrawals; establishing buffer zones; providing assistance in election monitoring, human rights protection and humanitarian aid delivery; and assisting or establishing civil administration functions.56 In contrast to peacekeeping, peace enforcement does not need to comply with the three requirements of consent, impartiality and limited use of force. Peace enforcement has been defined as ‘a military operation in support of diplomatic efforts to restore peace between the belligerents who may not be consenting to intervention and who may be engaged in combat activities’.57 While not critical, provided there is another legal basis for intervention under 51 52

53

54

55

56

57

See generally Certain Expenses of the United Nations (Advisory Opinion) [1962] ICJ Rep 151. Report to the General Assembly on Basic Points for the Presence and Functioning in Egypt of the United Nations Emergency Force (20 November 1956), quoted in Andrew W Cordier and Wilder Foote (eds), Public Papers of the Secretaries-General of the United Nations Vol III, Dag Hammarskjöld 1956–1957 (Columbia University Press, 1973) 373–6. Marrack Goulding, ‘The Evolution of United Nations Peacekeeping’ (1993) 69 International Affairs 451, 454. Marrack Goulding, ‘The Evolution of United Nations Peacekeeping’ (1993) 69 International Affairs 451, 455. Report of the Panel on United Nations Peace Operations, UN GAOR and UN SCOR, 55th sess, Item 87, UN Doc A/55/305–S/2000/809 (21 August 2000) 1435. J G Waddell, ‘Legal Aspects of UN Peacekeeping’ in Hugh Smith (ed), The Force of Law (Australian Defence Studies Centre, 1994) 47–9. J G Waddell, ‘Legal Aspects of UN Peacekeeping’ in Hugh Smith (ed), The Force of Law (Australian Defence Studies Centre, 1994) 47–8.

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the Charter, it is legally advantageous that peace enforcement operations are based upon a Security Council resolution deriving authority from ch VII of the Charter. What gives ch VII its particular attractiveness is the status of decisions reached by the Security Council under this chapter. Pursuant to art 25 of the Charter, all UN members ‘agree to accept and carry out the decisions of the Security Council in accordance with the present Charter’, which ensures that such decisions by the Security Council are determinative. Similarly, art 103 of the Charter provides that ‘[i]n the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail’. Whether or not art 103 acts as a hierarchical mechanism within inter­ national legal discourse, its tenor allows for significantly wide legal latitude. There certainly exists sufficient scholarly opinion to conclude that ch VII authority allows broad strategic, operational and tactical authority in both armed conflict58 and, a fortiori, in operations less than armed conflict. In addition to identifying the relevant pedigree of a Security Council resolution under the Charter, it has also become critical to review the actual language used in such resolutions. In particular, the use of the ‘all necessary means’ terminology is a practised one in Security Council resolutions. The import of such language is to ensure no legal deficit in the capacity of relevant actors to give effect to Security Council will, at least at the operational and tactical levels of mission planning and execution. While the outer limits of what ‘all necessary means’ authority may permit have yet to be delineated, it is clear that they at least presume sufficient legal capacity to carry out Security Council-mandated goals in the relevant operational environment. These issues were in play during Australia’s biggest contribution to peace operations in recent years, in deployments to East Timor in the late 1990s and early 2000s as part of the International Force East Timor (‘INTERFET’) and the UN Transitional Authority in East Timor (‘UNTAET’) Peacekeeping Force.

A  East Timor: INTERFET [12.110]  In 1999, Australia took the lead role in undertaking UNauthorised action in East Timor as part of the INTERFET force. The INTERFET operation was the biggest deployment of Australian military forces since Australian engagement in the Vietnam War. While proving to be a very successful campaign, it was not without its considerable legal challenges. East Timor had been incorporated into Indonesia following an invasion by Indonesian forces in 1975, though the majority of the international 58

Program on Humanitarian Policy and Conflict Research at Harvard University, Com­ mentary on the Harvard Humanitarian Policy and Conflict Research Manual on International Law Applicable to Air and Missile Warfare (Harvard University, 2010) 61 [5].

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community did not recognise this action. East Timor remained on the list of non-self-governing territories and there was ongoing international pressure to permit East Timorese people the right to self-determination. In 1999, the Indonesian government agreed to hold a popular ballot to determine whether or not East Timor should constitute an autonomous part of Indonesia or, in effect, become an independent nation. The popular consultation ballot was conducted on 30 August 1999 with results producing an overwhelming ‘No’ vote to continued integration with Indonesia. Pro-Indonesian forces responded with violence to the outcome, and it was estimated that, in the weeks that followed the ballot, between 1000 and 2000 people were killed and over 200,000 people were forcibly repatriated to West Timor.59 On 15 September 1999, the Security Council unanimously adopted Resolution 1264,60 which authorised a ‘coalition of the willing’ to deploy into East Timor. The mandate included three major objectives: first, to restore peace and security to the territory; second, to protect and support the UNAMET mission; and third, to facilitate humanitarian assistance. The INTERFET force was an Australian-led multinational force under unified command, which began its deployment on 20 September 1999. Major General Peter Cosgrove commanded INTERFET, which at its peak comprised 12,600 soldiers from 22 contributing nations. Australia provided the largest contingent of over 5500 ADF members. The INTERFET force operated for approximately five months and handed over responsibility to the UN commanded UNTAET Peacekeeping Force in February 2000. Australia continued to be the biggest contributor to the UNTAET force. 1  SC Resolution 1264: INTERFET [12.120]  Resolution 1264 creating INTERFET was unusual in its com­ position. It ostensibly adopted all the hallmarks of a ‘peace enforcement’ mission: it invoked ch VII of the UN Charter and included within its terms the ‘all necessary means’ formula in order to fulfil its threefold mandate.61 Paradoxically, however, the resolution made specific reference in its Preamble62 to the ‘readiness of Indonesia to accept an international peacekeeping force’ and welcomed the commitment of the government of Indonesia to cooperate with the multinational force.63 Such references introduced a level of ambiguity into the framework as to whether Indonesian government consent was legally necessary to permit INTERFET to realise the goals of the Resolution. 59

60 61 62 63

For estimates as to casualties, see Astri Suhrke, ‘Peacekeepers as Nation-Builders: Dilemmas of the UN in East Timor’ (2001) 8 International Peacekeeping 1, 4; cf Joel C Beauvais, ‘Benevolent Despotism: A Critique of UN State-Building in East Timor’ (2001) 33 New York University Journal of International Law and Policy 1101, 1103. SC Res 1264, UN SCOR, 4045th mtg, UN Doc S/Res/1264 (15 September 1999). SC Res 1264, UN SCOR, 4045th mtg, UN Doc S/Res/1264 (15 September 1999) [3]. SC Res 1264, UN SCOR, 4045th mtg, UN Doc S/Res/1264 (15 September 1999). SC Res 1264, UN SCOR, 4045th mtg, UN Doc S/Res/1264 (15 September 1999) [4].

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2  INTERFET Land, Air and Maritime Operations [12.130]  The ambiguity of Resolution 1264 was a reflection of the practical need to confront the immediate humanitarian crisis of East Timor. The only functional entity remaining in East Timor in late September 1999 was the Indonesian military. Hence, Indonesian cooperation was critical if humanitarian and security goals were to be met. As a practical measure, an Exchange of Diplomatic Notes Constituting an Arrangement between the Government of Australia and the Government of the Republic of Indonesia Concerning the Status of the Multinational Force in East Timor was agreed and came into effect on 24 September 1999.64 This acted practically as a status of forces agreement (‘SOFA’) for the duration of the campaign. For the land operations, the ch VII ‘all necessary means’ authority provided significant legal foundation in shaping operations. Indonesian forces eventually withdrew in late October 1999 and, with one notable exception,65 land operations did not involve territorial dispute with Indonesia. While there were violent contact incidents with pro-Indonesian militia forces, such engagements were spasmodic and ceased after the first few months.66 For maritime operations, the situation was more problematic, partially due to the geography of East Timor. The maritime elements of INTERFET were heavily engaged in delivering humanitarian assistance and transporting internally displaced persons from West Timor to East Timor. In addition, they were extensively used to transport INTERFET troops and to heavy lift material, fuel and supplies throughout East Timor and to the Oecussi enclave. On one occasion, local Indonesian authorities sought to deny air transport to the Oecussi enclave, which brought to the fore the question of whether Indonesian government consent was necessary for the realisation of the goals of Resolution 1264. It was determined by those on the ground that the ‘all necessary means’ ch VII status of the resolution meant that such consent was not a condition precedent to the lawfulness of actions taken. In the event, the specific issue did not escalate and air and maritime transits were undertaken with full effect and in cooperation with Indonesian Authorities, but it was a key moment of interpretative construction that raised questions about the efficacy of such resolutions when drafted in a slightly ambiguous manner. 64

65

66

Exchange of Diplomatic Notes Constituting an Arrangement between the Government of Australia and the Government of the Republic of Indonesia Concerning the Status of the Multinational Force in East Timor (20 May 2002), quoted in Australian Defence Force, Military Law Centre, Lessons Learnt for Legal Officers 2000 Monograph, Annex F. A cross-border incident occurred at Mota’ain on the border of East and West Timor between Indonesian and INTERFET forces, which was precipitated by a misunderstanding as to border coordinates; see Michael Kelly et al, ‘Legal Aspects of Australia’s Involvement in the International Force for East Timor’ (2001) 83 International Review of the Red Cross 101, 122. Kofi Annan, The United Nations and East Timor: Self-determination through Popular Consultation (United Nations, 2000) 53.

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B  UN Operations and National Law [12.140]  As evidenced in the INTERFET operations, and much more frequently in the subsequent UNTAET mission, ADF members do apply force in achieving mission outcomes. The growing range of UN peace operation goals, and the dispensation of the need for consent in peace enforcement operations in particular, make it almost inevitable that force will be applied and causalities sustained. However, while the range and reach of UN-authorised peace operations have expanded considerably, the legal and operational tools upon which to achieve these ever-growing missions have not kept pace. For example, a conundrum facing peacekeeping/peace enforcement missions is that despite the boldness of strategic-level authority deriving from a relevant ch VII resolution, all national contingents remain subject to their national law. While it has become convenient to talk of UN ‘commanded’ forces, this is sophistry. The exercise of military command is a fundamental and central incident of national sovereignty. States do not delegate or surrender any form of sovereignty over their military forces when participating in peace operations. In Australia’s case, the Defence Act is quite clear in vesting command of the ADF only in the Chief of the Defence Force.67 Hence, Australian domestic law, especially criminal law, will apply to the actions of ADF members, even when acting on a peace operation. Accordingly, the use of the ‘all necessary means’ formula within a relevant resolution, and even the authorisation of mission-specific UN ROE amplifications, will not provide an additional authority for the use of force at the tactical level that is not also supported by national law. This does not deny that the actions of ADF members will be reviewed by UN legal mechanisms for compliance as a matter of international law and UN Department of Peace-Keeping Operations policy. However, when ADF members use force in self-defence when fulfilling their mission, their actions will be scrutinised according to Australian criminal law standards. Of course, most prescriptions of the defence of self-defence within Australian jurisdictions allow, either expressly or implicitly, for an element of reasonableness in determining its application.68 The fact that ADF members are employed on UN peace operations under strict Security Council resolutions with the full panoply of operational and tactical international legal authority will certainly be a relevant consideration to any determination of the lawfulness of selfdefensive action by an Australian court or tribunal. Such UN authority will not, however, be decisive. This has obvious significance in instances such as the protection of mission-essential property. It is not uncommon for UN ROE to provide an authority for forces to use up to lethal force to 67 68

Defence Act 1903 (Cth) s 9(2). For example, the Criminal Code Act 1995 (Cth) s 10.4(2), the Crimes Act 1900 (NSW) s 418, and the Criminal Code Act 2012 (NT) s 43BD(2)(b) all require that ‘the conduct is a reasonable response in the circumstances as he or she perceives them’.

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protect such property, whereas under Australian Commonwealth law there is no such authority, absent an associated threat to life.69 There have been numerous calls for reform, such as incorporating reference to UN ROE in national legal systems for such operations.70 This has not been undertaken within Australia for the purposes of UN peace operations. This necessarily produces an ironic outcome. As noted above, the use of force by ADF members in a number of Australian domestic law enforcement provisions is expressly conditioned by prevailing international standards and obligations to achieve national outcomes. When, however, acting as part of a UN peace operation, where use of force issues have been specifically tailored for such operations by the United Nations itself, the law that applies is solely Australian domestic law.

V  THE ADF AND ARMED CONFLICT A International Humanitarian Law and Operations: The General Structure and Process [12.150]  In 1991, the ADF participated in the war against Iraq. It subsequently participated in armed conflict in Afghanistan in 2001, and again in Iraq in 2003. In all of these operations, the ADF operated in accordance with the LOAC that was applicable to each of these deployments. Australia also had forces operating in Afghanistan and the broader Middle East region in support of the national government and, depending on the particular deployment, operating under an armed conflict rubric.71 Over the past few decades, the law applicable to armed conflict has continued to expand. There is universal ratification of the four 1949 Geneva Conventions, hence these treaties will necessarily apply to any armed conflict in which the ADF is engaged. Additionally, Australia has ratified a number of relevant treaties72 that necessarily inform the ADF legal planning process and have been incorporated into national law. 69 70

71 72

Criminal Code Act 1995 (Cth) sch 1 s 10.4(3). Peter Rowe, ‘The United Nations Rules of Engagement and the British Soldier in Bosnia’ (1994) 43 International & Comparative Law Quarterly 946, 956; see also Cameron Moore, ‘“To Execute and Maintain the Laws of the Commonwealth”: The ADF and Internal Security — Same Old Issues with New Relevance’ (2005) 28(2) University of New South Wales Law Journal 523, 534–6. See Department of Defence, Global Operations . API; APII; APIII; Chemical Weapons Convention; Biological Weapons Convention; Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices, as amended (‘Protocol II’) annexed to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, opened for signature 10 October 1980, 1342 UNTS 137 (entered into force 3 December 1998); Ottawa Convention; Rome Statute.

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In practice, LOAC is largely applied operationally through the mechanism of ROE. There presently exists within government a highly refined consultative arrangement whereby ROE are reviewed through an intergovernmental process (involving particularly the Defence Department, the Attorney-­General’s Department and DFAT). Invariably, this process includes ministerial consultation/approval and it is the Chief of the ADF who will issue ROE for subordinate commanders to apply within the battle space. ROE set the parameters on the use of force. While they reflect the law, they do not constitute it; however, they do constitute lawful general orders for the purposes of the Defence Force Discipline Act and hence their contravention represents, on that ground at the very least, an offence under that Act. ADF doctrine permits subordinate Commanders to restrict the ROE, but subcommanders may never expand the permissions to use force contained within the ROE. Issues concerning who may be targeted, the definitions of military objective, the precautionary principle, and proportionality stipulations are invariably included within ROE calculus applicable in armed conflict.

B  Legal Interoperability [12.160]  It is a common feature of Australian participation in armed conflict that it is done as part of a coalition. In this respect, the engagements in Iraq and Afghanistan were undertaken with numerous other coalition allies, most notably the United States. When participating in a coalition, there is a pressing need to ensure the harmonisation of legal obligations. This necessarily raises particular challenges when other military partners are not party to the same international legal framework. The United States, in particular, has not ratified API, APII, the Rome Statute or the Ottawa Convention. In some cases, ensuring legal interoperability is almost impossible. The provisions of art 1(c) of the Ottawa Convention, for example, provide that any party to the treaty is under an active obligation not to ‘assist, encourage or induce anyone to engage in any activity prohibited to a State Party’. Such broad language means that cooperative operational activity with even a non-party to the convention is prohibited. The terminology of ‘assist, encourage or induce’ would necessarily prohibit even indirect involvement with a non-party military force that was intending to use such weapons.73 As such, actions such as directly participating in air-to-air refuelling or even transhipment of non-state party armed forces on naval vessels of a party within theatre would be prima facie prohibited. Additionally, even provisions of API that are expressed in more general language — such as art 56, which prohibits attacks on dams, dykes and nuclear electrical generating stations — provide points of divergence with non-parties to the protocol that require careful navigation in coalition operations. The issue is the same in 73

Ottawa Convention pt 1.

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the context of belligerent reprisals and even the definition of what constitutes a proper ‘military objective’.74 The reality is that non-parties to the protocol are not formally bound to such treaty prohibitions and, absent a correlative prohibition under customary international law, are able to take actions that non-parties may not. This obviously has implications for tasking and requires constant vigilance to ensure that boundaries are properly observed. 1  International Humanitarian Law and International Human Rights Law [12.170]  As the legal terrain that encompasses IHL has become more complex, so has the application of other discrete bodies of international law to ADF operations. One key area of development in the last 30 years has been the question of how IHRL might apply extraterritorially to shape ADF activities. Despite theoretical and pragmatic differences between IHL and IHRL, the general thrust of international jurisprudence and, indeed, governmental policy is to seek greater assimilation of these bodies of law to military operations. The ICJ has looked at the interaction of IHL and IHRL on three separate occasions. In the 1996 Nuclear Weapons advisory opinion,75 the Court examined specifically the application of the International Covenant on Civil and Political Rights (‘ICCPR’)76 to conflict situations. The Court determined that both bodies of law (IHL and IHRL) applied in a time of armed conflict, but that by virtue of the lex specialis principle, IHL took precedence.77 In the subsequent Wall advisory opinion,78 the ICJ looked at a number of possible options for the interaction between IHL and IHRL, with the lex specialis principle determining the details of the interaction.79 In this instance, the Court expanded its reading of the scope of possible human rights obligations beyond just the right to life. Significantly, in the subsequent case DRC v Uganda,80 the ICJ recalled and applied the same reasoning and 74

75 76

77 78

79

80

Department of the US Navy et al, The Commander’s Handbook on the Law of Naval Operations (NWP 1-14M) (July 2007) [5.3.1] controversially makes reference to an enemy’s ‘warfighting/war sustaining’ effort in its discussion of the definition of military necessity, a position unique to the United States and not shared by other states. See also Harvard Program on Humanitarian Policy and Conflict Research, Manual on International Law Applicable to Air and Missile Warfare (Harvard University, 2009) 110, [24(2)]. Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Reps 226. International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (‘ICCPR’). Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Reps 226 [25]. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Reports 136. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Reports 136, 178 [106]. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) [2005] ICJ Rep 168.

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again expressed no limitation on the types of human rights obligations that might apply. The jurisprudence emanating from the ICJ on this interaction necessarily engenders a large degree of uncertainty. In failing to properly delineate when and how the lex specialis rule applies, or otherwise in what circumstances one body of law took precedence over the other, it remains unclear when IHRL may apply and what the content of that body of law may be in any given circumstance. This generates two possible paths: on the one hand, there can be conceived only one lex specialis where there is a body of law with provisions that are more detailed, more specific and, most importantly, clearer than are the provisions in the other law, and hence it applies to displace the other law. On the other, there may be disagreement on this point, and a lex specialis application need only be one intended for a specific situation.81 Such a perspective does not necessarily subordinate IHRL to IHL, but rather would seem to permit rules of IHL and IHRL to be both lex specialis, thus requiring a level of examination and harmonisation to be applied rather than being an exercise of subordination or displacement. In practice, it seems clear that different forums will take different perspectives. Indeed, the European Court of Human Rights (‘ECtHR’) has resisted any real application of IHL to its determinations. This has resulted in a number of contentious determinations82 that threaten to unravel the cohesion sought by the ICJ in reconciling IHL with IHRL. In addition to the theoretical reconciliation of IHL and IHRL, the more prosaic question, and that of most relevance to ADF members, is whether IHRL can apply extraterritorially in the first place so as to even generate the potential conflict. Article 2(1) of the ICCPR provides: Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 81

82

The 2006 International Law Commission Report on the Fragmentation of International Law would tend to support the latter perspective: ‘That special law has priority over general law is justified by the fact that such special law, being more concrete, often takes better account of the particular features of the context in which it is to be applied than any applicable general law.’ International Law Commission, Report of the International Law Commission: Difficulties Arising from the Diversification and Expansion of International Law, UN GAOR, 58th sess, UN Doc A/61/10 (1 May 2006) 409. A significant example of this is found in the case of Isayeva v Russia (European Court of Human Rights, Grand Chamber, Application Nos 57947/00, 57948/00 and 57950/00, 25 February 2005); see generally Eriko Tamura, ‘The Isayeva Cases of the European Court of Human Rights: The Application of International Humanitarian Law and Human Rights Law in Non-International Armed Conflicts’ (2011) 10 Chinese Journal of International Law 129–40.

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Many opinions have been expressed on whether this provision may be read conjunctively or disjunctively. For some commentators, it is abundantly clear that a person must both be within the relevant state party territory and be subject to its sovereign authority for the obligations of the ICCPR to be enlivened. Moreover, even conceding that the provision may be read disjunctively, and only requiring jurisdictional coverage, some scholars point to the problem of impracticability of applying the full gamut of ICCPR provisions, especially in a time of armed conflict.83 The 2007 Al-Skeini case84 in the British House of Lords provided something of a pragmatic solution to some of these dilemmas. The proceedings arose from the deaths in Basra in Iraq of six Iraqi civilians and the maltreatment while in British custody of one of them (Mr Mousa, causing his death). Issues before the Court included whether the acts complained of fell both within the European Convention on Human Rights (‘ECHR’)85 and the Human Rights Act 1998 (UK). The UK Secretary of State contended that the Human Rights Act had no application to acts of public authorities outside the borders of the United Kingdom — that is, the Act has no extraterritorial application. However, concerning the detention case of Mousa, the Secretary of State accepted that, since the events occurred in the British detention unit, Mousa met his death ‘within the jurisdiction’ of the United Kingdom for the purposes of art 1 of the ECHR. What was contentious was whether the other five Iraqis killed in shooting incidents, occurring during a time of active operations, had been within the jurisdiction of UK authorities. Regarding the application of the UK Human Rights Act, the majority found that it applied extraterritorially. On the issue of jurisdiction, the Law Lords found that there was not a sufficient link between the Iraq victims and the United Kingdom, as the British forces did not have ‘effective control’ over the area where the killings occurred. The question of what constitutes ‘effective control’ has become a primary reference point in deciding the jurisdiction aspect of the application of IHRL. On the criteria considered in Al-Skeini, the concession that ‘effective control’ by the UK Secretary of State is manifested in a military prison occupied and controlled by agents of the United Kingdom represents a clear threshold. Certainly, Lord Carswell required a high degree of control for the extraterritorial application of jurisdiction, noting that in an invasion context it must be closely ‘confined’.86 83

84 85

86

Michael J Dennis and Andre M Surena, ‘Application of the International Covenant on Civil and Political Rights in Times of Armed Conflict and Military Occupation: The Gap between Legal Theory and State Practice’ (2008) 6 European Human Rights Law Review 714, 725; see also Naz K Modirzadeh, ‘The Dark Sides of Convergence: A Pro-Civilian Critique of the Extraterritorial Application of Human Rights in Armed Conflict’ (2010) 86 US Naval War College International Law Studies Series 349. Al-Skeini v Secretary of State for Defence (Consolidated Appeals) [2007] UKHL 26. European Convention on Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953). Al-Skeini v Secretary of State for Defence (Consolidated Appeals) [2007] UKHL 26 [97].

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The Al-Skeini case found its way into the Grand Chamber of the ECtHR, which delivered its decision in July 2011.87 The Court surprisingly applied quite an inchoate test of the exercise of ‘some public powers’88 in terms of territorial control and resolved a very low threshold for when ‘effective control’ could be manifested by UK military forces when conducting operations outside of the United Kingdom. Hence, while the concept of ‘effective control’ is unarguably present where military forces have actual physical custody of an individual (the personal limb), it would seem now that it is also manifested in the territorial sense, where a military force is conducting active military operations in a foreign jurisdiction, where there is some semblance of ‘influence over the region’.89 Significantly, this threshold of application sits considerably lower than that mandated by the Fourth Geneva Convention90 relating to occupied territory. More recent ECtHR cases, including Al-Jedda91 and Hassan,92 have focused upon rights of detention by UK forces when conducting operations overseas. These cases have involved strict readings of the ECHR relating to restrictions on liberty that either ignore or desperately grapple with corresponding rights of detention under IHL. In the European setting, there is enormous theoretical discord and difference of judicial opinion on how and in what manner and to what extent IHRL provisions displace or assimilate IHL provisions in zones of armed conflict. In terms of the general question of the interplay between IHL and IHRL, outside of a context in which application of the ECHR might apply (that is, one in which Australia may be bound), the question of an ‘effective control’ test would still appear to be the governing one. It is unclear how an Australian court, or an international court to which Australia would be subject, would deal with the issues of ‘effective control’ and ADF obligations vis-à-vis IHRL and IHL. Australia has ratified a number of key IHRL instruments, including, on 13 August 1980, the ICCPR. Concerning Australia’s IHRL obligations, there are two related issues. One is the enforceability of international obligations in Australian courts. The other is the extraterritorial application of ICCPR obligations under Australian law that might apply to ADF operations overseas. The ICCPR has no direct operation in Australian 87

88

89

90

91

92

Al-Skeini v United Kingdom (European Court of Human Rights, Grand Chamber, Application No 55721/07, 7 July 2011). Al-Skeini v United Kingdom (European Court of Human Rights, Grand Chamber, Application No 55721/07, 7 July 2011) [149]. Al-Skeini v United Kingdom (European Court of Human Rights, Grand Chamber, Application No 55721/07, 7 July 2011) [39]. Geneva Convention Relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) (‘Fourth Geneva Convention’). Al-Jedda v United Kingdom (European Court of Human Rights, Grand Chamber, Application No 27021/08, 7 July 2011). Hassan v United Kingdom (European Court of Human Rights, Grand Chamber, Application No 29750/09, 16 September 2014).

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law;93 although the ICCPR is included in the Human Rights Commission Act 1986 (Cth) and the Australian Human Rights Commission may receive complaints about alleged breaches of the ICCPR, this instrument has not been directly incorporated into Australian law as such, so is not directly enforceable in Australian courts.94 However, the ICCPR and other IHRL instruments that Australia has ratified may have an indirect effect in Australian courts even if the parent treaty is not incorporated into Australian law directly. Hence, Australian case law95 indicates that treaties may be used to resolve uncertainty or ambiguity in the common law, may support review of earlier decisions and possibly their overruling, and may assist in the determination of community values and standards relevant to the development of the common law. However, even if instruments such as the ICCPR have been incorporated in Australian law, a second relevant issue arises. Under general Australian law and under s 21(1) (b) of the Acts Interpretation Act 1901 (Cth), there is essentially a presumption against extraterritorial application.96 Although no Australian court has explicitly examined the issue of Australia’s extraterritorial obligations under the ICCPR, it has not been Australian practice to apply the ICCPR de jure to offshore military deployments. However, the Australian government does have a record of applying human rights norms, alongside applicable IHL, as a matter of policy choice.97 When directed by the executive to apply human rights norms as a matter of policy, such stipulations find ready expression in military orders, directives and other actionable obligations. These military mechanisms themselves have the force of law, at least with respect to possible prosecution for their breach under the Defence Force Discipline Act, and hence attract legal significance. To date, the ADF has developed comprehensive detention policies in theatres of armed conflict where human rights norms are assimilated into active processes. Indeed, from an intergovernmental perspective, Australia has developed a robust detention monitoring and audit system98 that incorporates many human rights norms in its composition. While detention 93 94

95

96

97

98

See chapter 2 of this volume on the reception of international law in Australia. See, eg, Senate Legal and Constitutional Affairs Committee, Parliament of Australia, Commonwealth Power to Make and Implement Treaties (1996) ch 6. The seminal case in this area is the High Court case of Mabo v Queensland [No 2] (1992) 175 CLR 1, 42 (Brennan J). Acts Interpretation Act 1901 (Cth) s 21(1)(b). See also Justin Gleeson, ‘Extraterritorial Application of Australian Statutes Proscribing Misleading Conduct’ (2000) 79 Australian Law Journal 296, 299. Michael Kelly et al, ‘Legal Aspects of Australia’s Involvement in the International Force for East Timor’ (2001) 83 International Review of the Red Cross 101. Stephen Smith, ‘Detainee Management: UNAMA Report on Afghan Detention Facilities’ (Media Release, 11 October 2011) .

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operations may form a ready opportunity where IHL and IHRL standards may be fused, extending beyond this context in the battle space, the issue becomes more problematic from both a legal and an institutional perspective. It remains a highly dynamic area that constantly influences operational planning and it is evident that the interrelationship between IHL and IHRL will develop and mature in the immediate future. 2  Weapons Reviews [12.180]  The treaty-based obligation to conduct weapons reviews is contained in API art 36. API has been ratified by Australia and is incorporated within Australian law as sch 5 to the Geneva Conventions Act 1957 (Cth). Many of the crimes disclosed in API are now covered in detail within div 268 of the Criminal Code Act, and the Geneva Conventions Act criminalises only a few additional offences. But failure to conduct a weapons review is not encountered in either Act as a specific offence. The obligation thus exists, and is incorporated into Australian law, but without there being an accom­ panying sanction for noncompliance. It is general Australian practice to conduct weapons reviews on all new weapons. First, given that there can be no certainty that a particular weapons system will only ever be employed outside of IAC, it is prudent to review all weapons against this eventuality. Second, there is probably a CIL obligation to conduct weapons reviews that has independent existence outside of API.99 The policy for conducting weapons reviews is contained within Defence Instruction (General) OPS 44-1.100 As simple as the obligation seems, actual compliance is becoming more complex and problematic. New weapons technologies, the drive towards network-centric warfare,101 and the integration of previously separable or compartmentalised weapons and systems have exponentially complicated the weapons review process. As some scholars have recently pointed out, the answer to the seemingly simple, but fundamental, question — ‘is it a weapon?’ — is now neither simple nor safely assumed.102 While a stand-alone intelligence, surveillance and reconnaissance platform or system would not normally be considered a ‘weapon’ in the art 36 sense, it is increasingly necessary to conduct art 36 reviews of such systems. Where it 99

100

101

102

International Committee of the Red Cross, Customary International Humanitarian Law Study, rr 70–71 . Department of Defence, Legal Review of New Weapons (General) OPS 44-1; see also Kathleen Lawand, ‘A Guide to the Legal Review of New Weapons, Means and Methods of Warfare: Measures to Implement Article 36 of Additional Protocol I of 1977’ (2006) 88(864) International Review of the Red Cross 931. See Department of Defence, Australian Defence Doctrine Publication D: Joint Operations for the 21st Century (May 2007) 12–13 . See, eg, an Australian-influenced perspective on this challenge in Duncan Blake and Joseph S Imburgia, ‘“Bloodless Weapons”? The Need to Conduct Legal Reviews of Certain Capabilities and the Implications of Defining Them as “Weapons”’ (2010) 66 Air Force Law Review 157.

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is likely — or even merely possible — that these systems will form an integral part of the so-called ‘kill chain’, they will need to be assessed for IHL compliance. I­ ncreasingly, and inevitably, the same will come to apply to computer programs. Art 36 weapons reviewing is already a very specialist IHL skill and, as the military applications of new technologies proliferate, the time, skill and effort required for proper compliance have radically escalated. It is certain that this trend will continue.

VI CONCLUSION [12.190]  Over the past 30 years, the relationship between the ADF and its operations, and law, has evolved rapidly but also coherently. This relationship has been characterised by a need to participate in the development, incorporation and implementation of substantially more (and substantially more detailed) law. The exponential rise in operations undertaken by the ADF within this time period corresponded with a similar burgeoning of international and domestic law. This has required deft handling of the multiple legal regimes that apply to a given military operation. While traditional areas of the relevant law, such as LOAC, continue to anchor operational deployments, there is the co-development of IHRL, as well as international criminal law, to frame operational planning. Reconciling these disparate areas, as well as managing the interplay between international and domestic legal authorities and prohibitions, has been a largely successful undertaking. Cooperation between relevant Commonwealth government agencies has been highly effective in formulating agreed positions that ensure that the ADF remains faithful to the goals and purposes that underpin this wide array of law. The development of a distinct specialisation of ‘military operations law’ is finding expression both in practice and within Australia’s leading academies of learning, where there is an ever-growing interest in what the ADF does and how it does it. The regulation of the use of force and, in particular, of bloodshed and its reduction within armed conflict is surely a worthwhile goal of the law. Recognising fidelity to the law and taking responsibility for the ethical jeopardy that sometimes underpins this effervescing field remain the enduring hope, and these twin objectives do regularly find their realisation within the development and application of law to ADF operational frameworks.

13 Australia and International Trade Law Andrew D Mitchell, Elizabeth Sheargold and Tania Voon*

I INTRODUCTION [13.10]  For a country of only approximately 23 million people, Australia might be said to punch above its weight in the world of international trade law. Australia has played a prominent role in the dispute settlement system of the World Trade Organization (‘WTO’) as a complainant, respondent, third party and contributor to discussions on reform. It has also been active in WTO negotiations, including in the Doha Round of multilateral trade negotiations, as well as in the Uruguay Round of negotiations among contracting parties to the General Agreement on Tariffs and Trade 1947 (‘GATT’)1 (the predecessor to the WTO).2 Like many other countries, Australia has also vigorously pursued the conclusion of preferential trade agreements (‘PTAs’) with a range of trading partners, particularly in recent years. Australia’s trade with Asia has increased,3 with China, Japan,4 Singapore and the Republic * This chapter derives from independent research funded by the Discovery Project scheme of the Australian Research Council (project ID DP130100838). The authors thank James Munro and Jane Kluske for helpful research and editorial assistance. The chapter was written in 2011 and updated in 2013 and 2016. It covers in particular developments during that period. 1 GATT Doc LT/UR/A-1A/1/GATT/2 (30 October 1947). 2 See generally C H Alexandrowicz, ‘Australia and GATT’ in D P O’Connell (ed), International Law in Australia (Law Book Co, 1965) 87; K W Ryan, ‘Australia and International Trade Law’ in K W Ryan (ed), International Law in Australia (Law Book Co, 2nd ed, 1984) 277. 3 Cf K W Ryan, ‘Australia and International Trade Law’ in K W Ryan (ed), International Law in Australia (Law Book Co, 2nd ed, 1984) 278. 4 For a historical perspective of Australia’s relationship with these countries, see C H Alexandrowicz, ‘Australia and GATT’ in D P O’Connell (ed), International Law in Australia (Law Book Co, 1965) 87, 109–10, 114. 317

318    INTERNATIONAL LAW IN AUSTRALIA

of Korea among Australia’s top five two-way trading partners, along with the United States.5 In this chapter, we focus on the WTO and Australia’s PTAs as the two major focal points of Australia’s role in international trade and international trade law today. First, we outline Australia’s involvement in the WTO through GATT and WTO negotiations, WTO committee work, WTO disputes, and WTO review of Australian trade law and policy. We then analyse Australia’s bilateral trade relationships in the context of its existing and future PTAs. Our analysis reveals areas of significant activity by Australia on the world scale, while emphasising policy highpoints as well as certain tensions arising in Australia’s approach to international trade law and its interaction with domestic regulation.

II  AUSTRALIA AND THE WORLD TRADE ORGANIZATION A  Australia in GATT and WTO Negotiations [I]n nearly each branch of GATT operations Australia appeared as a party to a conflict or as the promoter of a particular course of action.6 [13.20]  Following on from its active participation in negotiations conducted under the GATT 1947 (including the Uruguay Round, which created the WTO), Australia has been active in the Doha Round of negotiations to improve WTO rules. Here we mention three areas in which Australia has shown a particular interest in the context of multilateral trade negotiations: culture, agriculture and geographical indications. Australia has a specific interest in the relationship between trade and culture, best viewed against the background of its support for cultural industries such as through the funding of the Australian Broadcasting Corporation.7 During the Uruguay Round negotiations leading to the creation of the WTO in 1995, Australia supported the objectives of a draft sectoral annex introduced by the European Union to ensure respect for the ‘cultural specificities’ of audiovisual services in liberalising trade in these services.8 Australia also emphasised in a formal communication the need for special treatment 5

6

7 8

Department of Foreign Affairs and Trade (‘DFAT’), Australia’s Trade in Goods and Services 2014–15 (25 November 2015) . C H Alexandrowicz, ‘Australia and GATT’ in D P O’Connell (ed), International Law in Australia (Law Book Co, 1965) 87, 88. See Australian Broadcasting Corporation, Annual Report 2009 (2009) 14. Working Group on Audiovisual Services, Uruguay Round Group of Negotiations on Services, Note on the Meeting of 5 and 18 October 1990, GATT doc MTN.GNS/AUD/2 (20 December 1990) [2], [3], [5].

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of these services on cultural grounds.9 Australia has since maintained this cultural emphasis, retaining the right under the Australia–United States Free Trade Agreement to impose certain minimum local content quotas on television,10 even while facing criticism for conceding ground in a number of other areas.11 Like a number of other WTO members, Australia maintains an audiovisual services exemption from most-favoured nation treatment in the General Agreement on Trade in Services.12 On 18 September 2009, Australia acceded to the Convention on the Protection and Promotion of the Diversity of Cultural Expressions of the United Nations Educational, Scientific and Cultural Organization,13 art 6 of which maintains the right of parties to adopt measures providing access for ‘domestic independent cultural industries’ to relevant means of production and dissemination. The text of the TransPacific Partnership Agreement (‘TPP’) released in January 2016 following the conclusion of negotiations in late 2015 also shows exemptions for Australia with respect to local content requirements and co-production arrangements in relation to broadcasting and individual services. Agriculture is an area of longstanding major importance to Australia and its trade agenda.14 In Australia’s own words: While agriculture is the most distorted area of international trade, Australia’s agricultural sector is one of the most open, market-oriented and competitive in the world. … Australia’s agricultural exporters are frustrated by the lack of progress and the ongoing failure to conclude the Doha Round. … Australia, as Chair of the Cairns Group seeks to achieve an ambitious outcome which delivers substantial improvements in market access, elimination of export subsidies and substantial reductions in tradedistorting domestic support.15

9

10

11

12

13

14

15

DFAT, Australian Intervention on Negotiating Proposal on Audiovisual Services: Council for Trade in Services Special Session (July 2001). Australia–United States Free Trade Agreement, opened for signature 18 May 2004, [2005] ATS 1 (entered into force 1 January 2005) annex I (Australia) 14; DFAT, Australia–United States Free Trade Agreement: Guide to the Agreement (March 2004) ch 10. See generally Andrew Mitchell and Tania Voon, ‘Australia–US Free Trade Agreement’ in Simon Lester and Bryan Mercurio (eds), Bilateral and Regional Trade Agreements: Case Studies (Cambridge University Press, 2009) 6 and references cited therein. Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995) annex 1B (‘General Agreement on Trade in Services’). Convention on the Protection and Promotion of the Diversity of Cultural Expressions, opened for signature 20 October 2005, 2440 UNTS 311 (entered into force 18 March 2007). K W Ryan, ‘Australia and International Trade Law’ in K W Ryan (ed), International Law in Australia (Law Book Co, 2nd ed, 1984) 277, 279–83. Trade Policy Review: Report by Australia, WTO Doc WT/TPR/G/244 (1 March 2011) [55]–[56].

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The Cairns Group was formed in 1986 and comprises 19 agricultural exporting countries that together have a significant voice in international trade matters, including in the Doha Round.16 Unusually — and contrary to its efforts to liberalise agricultural trade in the context of the WTO — in 2011 Australia imposed an agricultural trade barrier in the form of a temporary ban on the exportation of live cattle to Indonesia for slaughter, in order to safeguard animal welfare.17 This ban raised questions of inconsistency with arts I:1 and XI:1 of the GATT 1994, which respectively impose a most-favoured nation treatment obligation and a prohibition on, inter alia, quantitative restrictions on exportation of a product to a WTO member. GATT arts XX(a) (public morals) and (b) (animal life and health) provide possible exceptions for any such inconsistency. Successful invocation by Australia of these exceptions would require the finding of a ‘sufficient nexus’ between the cattle in question and Australia’s territory, or a novel decision by a WTO panel that these exceptions may be applied to protect morals or animals extraterritorially, which is currently an undecided issue.18 Another issue in which Australia has been active in WTO negotiations concerns ‘geographical indications’. Pursuant to art 22.1 of the WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights (‘TRIPS Agreement’),19 geographical indications are ‘indications which identify a good as originating in the territory of a Member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin’ (for example, ‘Champagne’). Australia was one of 19 WTO members that submitted a ‘joint proposal’ in 2011 for the establishment of a multilateral system of notification and registration of geographical indications for wines and spirits, pursuant to para 18 of the Doha Ministerial Declaration.20 Under the joint proposal, members’ participation in the register (in the form of a database) would be voluntary, and participating members would simply need to provide for consultation of the database when assessing whether to protect 16

17

18

19

20

The countries are Argentina, Australia, Bolivia, Brazil, Canada, Chile, Colombia, Costa Rica, Guatemala, Indonesia, Malaysia, New Zealand, Pakistan, Paraguay, Peru, the Philippines, South Africa, Thailand and Uruguay: . Joe Ludwig, ‘Minister Suspends Live Cattle Trade to Indonesia’ (Media Release, DAFF11/174L, 8 June 2011). See Appellate Body Report, United States — Import Prohibition of Certain Shrimp and Shrimp Products, WTO Doc WT/DS58/AB/R (adopted 6 November 1998) [133]; Appellate Body Reports, European Communities — Measures Prohibiting the Importation and Marketing of Seal Products, WTO Docs WT/DS400/AB/R, WT/DS401/AB/R (adopted 18 June 2014) [5.173]. Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995) annex 1C. Ministerial Declaration Adopted on 14 November 2001, WTO Doc WT/MIN(01)/DEC/1 (20 November 2001).

Ch 13: AUSTRALIA AND INTERNATIONAL TRADE LAW   321

trademarks or geographical indications in their country.21 An earlier 2003 proposal, endorsed by more than 100 members and led by the European Union, mandated participation in the register and treated registration as prima facie evidence that a given term meets the definition of a geographical indication.22 This underlying difference reflects the primarily ‘New World’ status of many of the joint proposal members, in which the meaning of various indications has evolved. Thus, Australia has also opposed the extension to other products of the higher level of protection currently given to geographical indications for wines and spirits, in contrast to the European Union.23

B  Australia’s Involvement in WTO Committees [13.30]  Australia’s involvement in the WTO extends beyond dispute settlement and the negotiating sessions associated with the Uruguay and Doha Rounds to the day-to-day operations of the WTO and its various bodies and committees. Australia routinely plays a leadership role in committees.24 Australia’s contributions to committee work may be influenced by and reflect on its subsequent positions in WTO disputes and negotiations for reform of WTO rules. For example, Australia’s legislation mandating standardised tobacco packaging was fully implemented on 1 December 2012.25 Australia notified the legislation to the WTO’s Committee on Technical Barriers to Trade (‘TBT Committee’),26 and some WTO members expressed

21

22

23

24

25 26

Proposed Draft TRIPS Council Decision on the Establishment of a Multilateral System of Notification and Registration of Geographical Indications for Wines and Spirits: Submission by Argentina, Australia, Canada, Chile, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras, Israel, Japan, Korea, Mexico, New Zealand, Nicaragua, Paraguay, the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu, South Africa and the United States — Revision, WTO Doc TN/IP/W/10/Rev.4 (31 March 2011). Draft Modalities for TRIPS Related Issues: Communication from Albania, Brazil, China, Colombia, Ecuador, the European Communities, Iceland, India, Indonesia, the Kyrgyz Republic, Liechtenstein, the Former Yugoslav Republic of Macedonia, Pakistan, Peru, Sri Lanka, Switzerland, Thailand, Turkey, the ACP Group and the African Group, WTO Doc TN/C/W/52 (19 July 2008). Cf Multilateral System of Notification and Registration of Geographical Indications under Article 23.4 of the TRIPS Agreement: Communication from Hong Kong, China, WTO Doc TN/IP/W/8 (23 April 2003). See Carsten Fink and Keith Maskus, ‘The Debate on Geographical Indications in the WTO’ in Richard Newfarmer (ed), Trade, Doha, and Development: A Window into the Issues (World Bank, 2006) 201, 206; Geographical Indications: Communication from the European Communities, WTO Docs WT/GC/W/547, TN/C/W/26, TN/IP/W/11 (14 June 2005). For example, at the time of writing, Andrew Jory of Australia is Chairperson of the Working Party on State Trading Enterprises. See WTO, Current WTO Chairpersons (2016) . Tobacco Plain Packaging Act 2011 (Cth). Notification, WTO Doc G/TBT/N/AUS/67 (8 April 2011) (notification by Australia to the Committee on Technical Barriers to Trade).

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concerns about it in both the TBT Committee27 and the WTO’s TRIPS Council.28 Ultimately, five WTO members commenced formal WTO disputes with Australia in respect of the legislation,29 although Ukraine subsequently suspended its complaint.30 Australia’s defence of this dispute may influence its future response in relevant WTO committees to measures of other countries, requiring, for example, textual or pictorial warnings on tobacco, alcohol or other unhealthy products.

C  Australia in WTO Disputes 1  Overview [13.40]  At the time of writing, according to WTO statistics,31 Australia has been involved in 96 disputes as a third party, seven disputes as a complainant (most recently in a dispute commenced against the European Communities in 2003 in respect of geographical indications),32 and 15 disputes as a respondent, including most recently the five in relation to plain tobacco packaging mentioned above, and before that one concerning Australia’s sanitary and phytosanitary measures in relation to apples, brought by New Zealand.33 27

28

29

30

31

32 33

See, eg, WTO, Questions for Australia Regarding Its Notification on the Plain Packaging Bill (G/TBT/N/AUS/67), WTO Doc G/TBT/W/338 (10 June 2011); WTO, The Impact of Australia’s Draft Regulation on Tobacco Plain Packaging Bill 2011 in Cigarettes and Other Tobacco Products, WTO Doc G/TBT/W/336 (8 June 2011); WTO, Questions for Australia Regarding Its Notification on the Plain Packaging Bill (G/TBT/N/AUS/67), WTO Doc G/TBT/W/338 (10 June 2011). WTO, Members Debate Cigarette Plain-Packaging’s Impact on Trademark Rights (7 June 2011). Australia — Certain Measures Concerning Trademarks and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging: Request for the Establishment of a Panel by Ukraine, WTO Doc WT/DS434/11 (17 August 2012); Australia — Certain Measures Concerning Trademarks, Geographical Indications and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging: Request for the Establishment of a Panel by Honduras, WTO Doc WT/DS435/16 (17 October 2012); Australia — Certain Measures Concerning Trademarks, Geographical Indications and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging: Request for the Establishment of a Panel by the Dominican Republic, WTO Doc WT/DS441/15 (13 November 2012); Australia — Certain Measures Concerning Trademarks, Geographical Indications and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging: Request for the Establishment of a Panel by Indonesia, WTO Doc WT/DS467/15 (6 March 2014); Australia — Certain Measures Concerning Trademarks, Geographical Indications and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging: Request for the Establishment of a Panel by Cuba, WTO Doc WT/DS458/14 (14 April 2014). Australia — Certain Measures Concerning Trademarks and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging: Communication from the Chairperson of the Panel, WTO Doc WT/DS434/16 (3 June 2015). WTO, Disputes by Country/Territory (2016) . See table 1 and footnotes. See table 1 and footnotes.

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Australia has accordingly described itself as ‘one of the more active Members on WTO dispute settlement’34 and in 2006 it collected Australian perspectives on WTO dispute settlement in an edited volume.35 Complaints have been brought against Australia by Canada, Cuba, the Dominican Republic, the European Union, Honduras, Indonesia, New Zealand, the Philippines, Switzerland, Ukraine and the United States. In turn, Australia has brought complaints against the European Union, Hungary, India, the Republic of Korea and the United States.36 However, only some of these disputes have proceeded to decision by a WTO panel, as summarised in table 1.37 As table 1 demonstrates, of the cases in which Australia has been involved as a primary party that have proceeded to a panel report (and, in some cases, an Appellate Body report), in only one (US — Offset Act (Byrd Amendment)) was Australia a co-complainant with other WTO members.38 In all the other cases, Australia acted on its own, including in bringing complaints against two of the strongest and most active dispute settlement participants in the WTO, the United States and the European Communities (‘EC’) (now the European Union).39 The significance of these cases should not be underestimated. A majority (six) were appealed. The plain packaging disputes will no doubt be appealed, regardless of the outcome at the panel stage. Together, these cases provide a number of major findings and interpretations with respect to various areas of substantive WTO law, as well as systemic implications for the WTO dispute settlement system and the relationship between WTO members. In this chapter, we mention a few of the most significant elements of this jurisprudence, to which Australia has contributed.

Trade Policy Review: Report by Australia, WT/TPR/G/244 (1 March 2011) [70]. Melissa Bray (ed), Ten Years of WTO Dispute Settlement: Australian Perspectives (Commonwealth of Australia, 2006). 36 WTO, Disputes by Country/Territory (2013) . 37 The plain packaging disputes against Australia are continuing at the time of writing. 38 In EC — Export Subsidies on Sugar, Brazil and Thailand brought separate complaints at the same time. The Panel issued separate reports in the three disputes. The Appellate Body issued a single report. In EC — Trademarks and Geographical Indications, the United States brought a separate complaint at the same time. The Panel issued separate reports, neither of which was appealed. 39 Until 20 November 2009, the European Union was known in the WTO as the ‘European Communities’: WTO, Member Information: The European Union and the WTO (2011) . 34 35

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Table 1: Disputes Involving Australia as Complainant or Respondent That Have Proceeded to a Panel Report Year of adoption40 Dispute 1998 Australia — Salmon41 (followed by Australia — Salmon (Article 21.5 — Canada)42 — adopted in 2000)43 1999 Australia — Automotive Leather II 44 (followed by Australia — Automotive Leather II (Article 21.5 — US)45 — adopted in 2000) 2001 Korea — Various Measures on Beef 46 2001 US — Lamb47 2003 US — Offset Act (Byrd Amendment)48

2005 2005 2010 40

41

42

43

44

45

46

EC — Export Subsidies on Sugar (Australia)49 EC — Trademarks and Geographical Indications (Australia)50 Australia — Apples51

Complainant Canada

Respondent Australia

United States

Australia

Australia Australia Australia, Brazil, Chile, European Communities, India, Indonesia, Japan, Republic of Korea, Thailand Australia

Republic of Korea United States United States

Australia New Zealand

European Communities European Communities Australia

WTO panel and Appellate Body reports have no binding legal force until adopted by the Dispute Settlement Body. Adoption is quasi-automatic, pursuant to the reverse consensus rule in the Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995) annex 2 (‘Understanding on Rules and Procedures Governing the Settlement of Disputes’) arts 16.4, 17.14. Panel Report, Australia — Measures Affecting Importation of Salmon, WTO Doc WT/DS18/R and Corr.1 (adopted 6 November 1998); Appellate Body Report, Australia — Measures Affecting Importation of Salmon, WTO Doc WT/DS18/AB/R (adopted 6 November 1998). Panel Report, Australia — Measures Affecting Importation of Salmon — Recourse to Article 21.5 of the DSU by Canada, WTO Doc WT/DS18/RW (adopted 20 March 2000). Pursuant to the Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995) annex 2 (‘Understanding on Rules and Procedures Governing the Settlement of Disputes’) art 21.5, an additional panel report (and even an Appellate Body report) may be adopted where parties disagree as to the WTO-consistency of a respondent’s implementation of the rulings in an earlier dispute. Panel Report, Australia — Subsidies Provided to Producers and Exporters of Automotive Leather, WTO Doc WT/DS126/R (adopted 16 June 1999). Panel Report, Australia — Subsidies Provided to Producers and Exporters of Automotive Leather — Recourse to Article 21.5 of the DSU by the United States, WTO Doc WT/DS126/RW and Corr.1 (adopted 11 February 2000). Panel Report, Korea — Measures Affecting Imports of Fresh, Chilled and Frozen Beef, WTO Docs WT/DS161/R, WT/DS169/R (adopted 10 January 2001); Appellate Body Report, Korea — Measures Affecting Imports of Fresh, Chilled and Frozen Beef, WTO Docs WT/DS161/ AB/R, WT/DS169/AB/R (adopted 10 January 2001).

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2  Sanitary and Phytosanitary Disputes [13.50]  Two complaints against Australia — Australia — Salmon and Australia — Apples (both of which Australia lost) — represent key contributions to the development and interpretation of the WTO’s Agreement on the Application of Sanitary and Phytosanitary Measures (‘SPS Agreement’).52 For example, the Appellate Body in Australia — Salmon developed the three-prong test for assessing whether a given sanitary and phytosanitary (‘SPS’) measure is more trade-restrictive than required, contrary to art 5.6 of the SPS Agreement: specifically, where an alternative SPS measure (i) ‘is reasonably available taking into account technical and economic feasibility’; (ii) achieves the member’s ‘appropriate level’ of SPS protection; and (iii) is ‘significantly less restrictive to trade’ than the contested measure.53 The Panel in Australia — Salmon (Article 21.5 — Canada) found that a Tasmanian government import ban on fresh chilled or frozen salmon imposed after the original dispute was a measure taken to comply with the recommendations and rulings of the Dispute Settlement Body (‘DSB’) in that dispute.54 Moreover, the Panel noted that the Australian federal government was responsible for that state government measure (pursuant to SPS Agreement 47

48

49

50

51

52

53 54

Panel Report, United States — Safeguard Measures on Imports of Fresh, Chilled or Frozen Lamb Meat from New Zealand and Australia, WTO Docs WT/DS177/R, WT/DS178/R (adopted 16 May 2001); Appellate Body Report, United States — Safeguard Measures on Imports of Fresh, Chilled or Frozen Lamb Meat from New Zealand and Australia, WTO Docs WT/DS177/ AB/R, WT/DS178/AB/R (adopted 16 May 2001). Panel Report, United States — Continued Dumping and Subsidy Offset Act of 2000, WTO Docs WT/DS217/R, WT/DS234/R (adopted 27 January 2003); Appellate Body Report, United States — Continued Dumping and Subsidy Offset Act of 2000, WTO Docs WT/DS217/ AB/R, WT/DS234/AB/R (adopted 27 January 2003). Panel Report, European Communities — Export Subsidies on Sugar, Complaint by Australia, WTO Doc WT/DS265/R (adopted 19 May 2005); Appellate Body Report, European Communities — Export Subsidies on Sugar, WTO Docs WT/DS265/AB/R, WT/DS266/ AB/R, WT/DS283/AB/R (adopted 19 May 2005). In EC — Export Subsidies on Sugar, Brazil and Thailand brought separate complaints at the same time. The Panel issued separate reports in the three disputes. The Appellate Body issued a single report. Panel Report, European Communities — Protection of Trademarks and Geographical Indications for Agricultural Products and Foodstuffs, Complaint by Australia, WTO Doc WT/DS290/R (adopted 20 April 2005). In EC — Trademarks and Geographical Indications, the United States brought a separate complaint at the same time. The Panel issued separate reports, neither of which was appealed. Panel Report, Australia — Measures Affecting the Importation of Apples from New Zealand, WTO Doc WT/DS367/R (adopted 17 December 2010); Appellate Body Report, Australia — Measures Affecting the Importation of Apples from New Zealand, WTO Doc WT/DS367/AB/R (adopted 17 December 2010). Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995) annex 1A (‘Agreement on the Application of Sanitary and Phytosanitary Measures’). Appellate Body Report, Australia — Salmon [194]. Panel Report, Australia — Salmon (Article 21.5 — Canada) [7.10].

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art 13),55 which was inconsistent with SPS Agreement arts 2.2 and 5.1.56 The Panel therefore recommended that the DSB request Australia to bring its WTO-inconsistent measures into conformity.57 Australia and Canada sub­sequently settled the matter.58 In Australia — Apples, the Appellate Body clarified the standard of review to be applied by panels pursuant to various SPS Agreement provisions, suggesting a more deferential standard in reviewing risk assessments conducted by the authorities of a respondent under art 5.1 than in assessing whether the respondent could have adopted a less trade-restrictive SPS measure under art 5.6.59 At the DSB meeting at which the panel and Appellate Body reports were adopted in Australia — Apples, Australia expressed concern about the Appellate Body’s reasoning regarding the standard of review in SPS disputes: The Appellate Body appeared to have suggested that a panel could conduct a de novo review in relation to an Article 5.6 claim. This would constitute a significant departure from the Appellate Body’s longstanding guidance that Article 11 of the [Understanding on Rules and Procedures Governing the Settlement of Disputes (‘DSU’)60] precluded such a review. … Australia was concerned that the Appellate Body had introduced a significant element of uncertainty on standard of review which would make the task of panels more difficult in reviewing Members’ compliance with key provisions of the SPS Agreement.61 Australia notified its compliance with the adverse rulings, and began issuing permits for the import of apples from New Zealand in August 2011.62 In September 2011, New Zealand expressed some doubts to the DSB about Australia’s compliance63 and the possibility of continuing proceedings,64 but these do not appear to have eventuated.

55 56 57 58

59 60

61

62 63

64

Panel Report, Australia — Salmon (Article 21.5 — Canada) [7.162]. Panel Report, Australia — Salmon (Article 21.5 — Canada) [7.161]. Panel Report, Australia — Salmon (Article 21.5 — Canada) [8.4]. Mark Vaile, ‘Australia Negotiates Settlement with Canada on Salmon’ (Media Release, 7 May 2000). Appellate Body Report, Australia — Apples [356]. Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995) annex 2 (‘Understanding on Rules and Procedures Governing the Settlement of Disputes’). Minutes of Meeting Held in the Centre William Rappard on 17 December 2010, WT/DSB/M/290 (11 February 2011) (Secretariat minutes of DSB meeting) [63], [64]. Australia — Apples: Status Report by Australia, WTO Doc WT/DS367/20 (23 August 2011). Minutes of Meeting Held in the Centre William Rappard on 2 September 2011, WT/DSB/M/302 (28 October 2011) (Secretariat minutes of DSB meeting) [51]. Australia — Apples: Understanding between New Zealand and Australia Regarding Procedures under Articles 21 and 22 of the DSU, WTO Doc WT/DS367/21 (19 September 2011).

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3  Disputes Involving Subsidies and Trade Remedies [13.60]  Equally significant, and often controversial, decisions have arisen from disputes involving Australia under other WTO agreements. Some noteworthy decisions have concerned subsidies and so-called ‘trade remedies’ (anti-dumping, countervailing and safeguard measures), while also having systemic implications for WTO dispute settlement in general. In Australia — Automotive Leather II (Article 21.5 — US), the United States challenged Australia’s position that Australia had complied with the recommendations and rulings of the DSB in the underlying dispute Australia — Automotive Leather II. Australia had given a loan of around $14 million on noncommercial terms to Australia Leather Holdings Ltd, on condition that its subsidiary Howe and Company Proprietary Ltd repay around $8 million65 of a subsidy that the DSB had found to be prohibited under art 3.1(a)66 of the Agreement on Subsidies and Countervailing Measures (‘SCM Agreement’).67 The Panel found that, by combining a requirement to repay the subsidy with a loan on non-commercial terms, Australia had failed to withdraw the subsidy as required by the original DSB ruling.68 In a report that was not appealed, the Panel found that in order to ‘withdraw the subsidy’ within the meaning of SCM Agreement art 4.7, Australia had to require the repayment of the subsidy in full, because simply terminating the subsidy program would not withdraw the subsidy with respect to amounts already paid.69 The Panel’s conclusion in Australia — Automotive Leather II (Article 21.5 — US) that full repayment of a subsidy was required in order to withdraw it was contrary to the usual approach under WTO dispute settlement, whereby remedies are prospective only, relating to the period following the end of the expiry of the reasonable period of time.70 Not only Australia but also Canada, Brazil and Japan disputed the Panel’s conclusion in this regard at the DSB meeting at which the Panel report was adopted, with the EC and Malaysia acknowledging the serious ‘systemic implications’ of the decision.71 Even the United States indicated that it ‘did not agree with every word of the Panel Report’ and noted that the ‘Panel’s remedy went beyond that sought by the

65 66 67

68 69 70

71

Panel Report, Australia — Automotive Leather II (Article 21.5 — US) [6.50]. Panel Report, Australia — Automotive Leather II (Article 21.5 — US) [9.72], [10.1(b)]. Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995) annex 1A (‘Agreement on Subsidies and Countervailing Measures’). Panel Report, Australia — Automotive Leather II (Article 21.5 — US) [6.51], [7.1]. Panel Report, Australia — Automotive Leather II (Article 21.5 — US) [6.48]. Panel Report, Australia — Automotive Leather II (Article 21.5 — US) [6.29]–[6.32], [6.37], [6.40]–[6.42]. Minutes of Meeting Held in the Centre William Rappard on 11 February 2000, WT/DSB/M/75 (7 March 2000) (Secretariat minutes of DSB meeting) 5–9.

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United States’.72 Australia’s concerns were expressed in terms including the following, according to the minutes prepared by the WTO Secretariat: The money had been paid lawfully to the company and so the government could not force recovery of the money. … This was a punitive remedy which appeared designed to punish both Australia and the company. … Retrospectivity was a risky path for this organization to go down. It was retrospectivity without any statute of limitations. … Did anyone believe that when his or her government ratified the WTO that it had contemplated that the treaty would require it to confiscate lawful assets without compensation?73 Hong Kong (China) alone expressly supported the Panel ruling on this issue, indicating that ‘delegation’s long time position that Article 19 of the DSU did not prejudge time-wise at all the remedies recommended’.74 The issue of retrospective remedies has been discussed in the negotiations concerning review of the DSU.75 As is typical in WTO disputes, Australia has had more success as a complainant than as a respondent. In EC — Export Subsidies on Sugar (Australia), the Panel and Appellate Body found various violations of the Agreement on Agriculture76 by the EC in relation to its export subsidies on sugar. This case was also significant in relation to broader questions concerning WTO dispute settlement. The Appellate Body found that the Panel had failed to fulfil its function under art 11 of the DSU by exercising ‘false judicial economy’ in declining to rule on the complainants’ claims under art 3 of the SCM Agreement.77 According to the Appellate Body, in doing so, the Panel had ‘precluded the possibility’ of a remedy being made available under SCM Agreement art 4.7, which provides for remedies different than those under the DSU art 19.1.78 In the same dispute, the EC contended that the complainants had ‘until recently … shared the EC’s understanding that the C sugar regime does not provide export subsidies’, so that regime could not nullify or impair benefits

72

73

74

75

76

77 78

Minutes of Meeting Held in the Centre William Rappard on 11 February 2000, WT/DSB/M/75 (7 March 2000) (Secretariat minutes of DSB meeting) 5. Minutes of Meeting Held in the Centre William Rappard on 11 February 2000, WT/DSB/M/75 (7 March 2000) (Secretariat minutes of DSB meeting) 6. Minutes of Meeting Held in the Centre William Rappard on 11 February 2000, WT/DSB/M/75 (7 March 2000) (Secretariat minutes of DSB meeting) 9. WTO, Special Session of the Dispute Settlement Body: Report by the Chairman to the Trade Negotiations Committee, TN/DS/25 (21 April 2011) [25], [72]. Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995) annex 1A (‘Agreement on Agriculture’). Appellate Body Report, EC — Export Subsidies on Sugar [335]. Appellate Body Report, EC — Export Subsidies on Sugar [335].

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accruing to the complainants (despite the presumption in DSU art 3.8),79 and the complainants were estopped from bringing a WTO complaint against that regime.80 The Appellate Body rejected these arguments, indicating that a complainant’s expectations are irrelevant to nullification or impairment in circumstances where ‘adverse trade effects’ are demonstrated, and noting that the Panel had found no ‘shared understanding’ of the kind alleged by the EC.81 As regards estoppel, which the EC characterised as ‘a general principle of international law, which follows from the broader principle of good faith’ as recognised in DSU art 3.10,82 the Appellate Body expressed some doubts. The Appellate Body held that even if estoppel applied in WTO dispute settlement, it was not made out in the present case.83 The result accorded with views expressed by Australia that ‘the principle of estoppel is not applicable in WTO dispute settlement’, and similar statements by Thailand and the United States.84 Estoppel remains an area of uncertainty in WTO dispute settlement,85 feeding into broader contentious questions about the extent to which public international law applies in WTO disputes in an interpretative or non-interpretative manner.86

79

80 81

82 83 84 85

86

DSU art 3.8 states: ‘In cases where there is an infringement of the obligations assumed under a covered agreement, the action is considered prima facie to constitute a case of nullification or impairment. This means that there is normally a presumption that a breach of the rules has an adverse impact on other Members parties to that covered agreement, and in such cases, it shall be up to the Member against whom the complaint has been brought to rebut the charge.’ Appellate Body Report, EC — Export Subsidies on Sugar [293], [298], [303], [314]. Appellate Body Report, EC — Export Subsidies on Sugar [299], [316]. DSU art 3.10 provides: ‘It is understood … that, if a dispute arises, all Members will engage in these procedures in good faith in an effort to resolve the dispute’ (emphasis added). Appellate Body Report, EC — Export Subsidies on Sugar [311]. Appellate Body Report, EC — Export Subsidies on Sugar [310], [312], [313], [317]. Appellate Body Report, EC — Export Subsidies on Sugar [311]. See Andrew Mitchell, ‘Good Faith in WTO Dispute Settlement’ (2006) 7(2) Melbourne Journal of International Law 339, 348–9, 356–62; Andrew Mitchell and David Heaton, ‘The Inherent Jurisdiction of WTO Tribunals: The Select Application of Public International Law Required by the Judicial Function’ (2010) 31 Michigan Journal of International Law 561, 608–17. See also Panel Report, European Communities and Certain Member States — Measures Affecting Trade in Large Civil Aircraft [7.101]–[7.104]; Appellate Body Report, European Communities — Regime for the Importation, Sale and Distribution of Bananas [223]–[228]. See, eg, Joost Pauwelyn, Conflicts of Norms in Public International Law: How WTO Law Relates to Other Rules of International Law (Cambridge University Press, 2004); Andrew Mitchell, Legal Principles in WTO Disputes (Cambridge University Press, 2008); Panel Report, European Communities — Measures Affecting the Approval and Marketing of Biotech Products, WTO Docs WT/DS291/R, WT/DS292/R, WT/DS293/R (adopted 21 November 2006) [7.67]–[7.72]; Special Session of the Dispute Settlement Body: Report by the Chairman to the Trade Negotiations Committee, WTO Doc TN/DS/25 (21 April 2011) A-27–A-30.

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In US — Offset Act (Byrd Amendment), the notion of ‘good faith’ again arose, and the Appellate Body’s approach to the issue generated some controversy. The Appellate Body rejected the Panel’s conclusion that the United States had not acted in good faith because its challenged legislation defeated the object and purpose and undermined the value of certain provisions in the SCM Agreement87 and the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (‘Anti-Dumping Agreement’).88 However, the Appellate Body also held that ‘there is a basis for a dispute settlement panel to determine, in an appropriate case, whether a Member has not acted in good faith’.89 Upon adoption by the DSB, the United States suggested that such a determination ‘would clearly and unambiguously exceed the mandate of dispute settlement panels and the Appellate Body’, which was ‘to determine conformity with the “covered Agreements”, and not international law more generally’.90 This case also raised a substantive legal issue concerning anti-dumping and countervailing measures that does not arise in typical trade remedies disputes. The Appellate Body found that the challenged legislation, which provided for the distribution of anti-dumping and countervailing duties to domestic producers who supported the underlying investigation, constituted a specific action against dumping and subsidisation contrary to art 18.1 of the Anti-Dumping Agreement and art 32.1 of the SCM Agreement.91 In a major but long-delayed example of compliance with WTO rulings, the United States eventually repealed the offending legislation in respect of imports that entered that country on or after 1 October 2007.92 Australia and some other complainants did not seek authorisation to suspend concessions,93 but 87

88

89 90

91

92

93

Panel Report, US — Offset Act (Byrd Amendment) [7.63]–[7.66]; Appellate Body Report, US — Offset Act (Byrd Amendment) [299]. Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995) annex 1A (‘Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994’). Appellate Body Report, US — Offset Act (Byrd Amendment) [297]. Minutes of Meeting Held in the Centre William Rappard on 27 January 2003, WTO Doc WT/ DSB/M/142 (6 March 2003) (Secretariat minutes of DSB meeting) [57]. Appellate Body Report, US — Offset Act (Byrd Amendment) [256], [263], [265], [273], [274]. United States — Continued Dumping and Subsidy Offset Act of 2000: Status Report by the United States (Addendum), WTO Docs WT/DS217/16/Add.24, WT/DS234/24/ Add.24 (7 February 2006); Deficit Reduction Act of 2005, Pub L No 109-171, §7601 (2006). See also Editorial, ‘An Expensive Byrd’, Wall Street Journal, 11 September 2008. United States — Continued Dumping and Subsidy Offset Act of 2000: Understanding between Australia and the United States, WTO Doc WT/DS217/44 (6 January 2005); United States — Continued Dumping and Subsidy Offset Act of 2000: Understanding between Indonesia and the United States, WTO Doc WT/DS217/46 (12 January 2005); United States — Continued Dumping and Subsidy Offset Act of 2000: Understanding between Thailand and the United States, WTO Doc WT/DS217/45 (10 January 2005).

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the EC and Japan retaliated against the United States for some years in respect of the distribution of duties collected on imports before 1 October 2007.94 4  GATT Article XX: Korea — Various Measures on Beef [13.70]  Korea — Various Measures on Beef considered complaints by Australia and the United States that requirements imposed by Korea on the retail sale of imported beef were inconsistent with the national treatment obligation contained in art III:4 of the GATT 199495 (among other provisions of the WTO agreements).96 The significance of this case arose from Korea’s defence of the measures at issue, which invoked art XX(d) of the GATT 1994 — a general exception (subject to the art XX chapeau) for measures ‘necessary to secure compliance’ with GATT-consistent laws or regulations. When examining the application of this exception, the Appellate Body established the following general framework for determining the ‘necessity’ of a measure: [T]he reach of the word ‘necessary’ is not limited to that which is ‘indispensable’ …97 [D]etermination of whether a measure, which is not ‘indispensable’, may nevertheless be ‘necessary’ within the contemplation of Article XX(d), involves in every case a process of weighing and balancing a series of factors which prominently include the contribution made by the compliance measure to the enforcement of the law or regulation at issue, the importance of the common interests or values protected by that law or regulation, and the accompanying impact of the law or regulation on imports or exports.98

94

95

96

97 98

United States — Continued Dumping and Subsidy Offset Act of 2000: Communication from the European Union, WTO Doc WT/DS217/67 (13 May 2015); United States — Continued Dumping and Subsidy Offset Act of 2000: Communication from Japan, WTO Doc WT/DS217/68 (23 September 2015); Decision by the Arbitrator, United States — Continued Dumping and Subsidy Offset Act of 2000 (Original Complaint by the European Communities) — Recourse to Arbitration by the United States under Article 22.6 of the DSU, WTO Doc WT/DS217/ARB/ EEC (31 August 2004); Decision by the Arbitrator, United States — Continued Dumping and Subsidy Offset Act of 2000 (Original Complaint by Japan) — Recourse to Arbitration by the United States under Article 22.6 of the DSU, WTO Doc WT/DS217/ARB/JPN (31 August 2004). The GATT 1994 is the GATT 1947 as incorporated into the Marrakesh Agreement Establishing the WTO, opened for signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995) annex 1A. For an overview of the claims made in the dispute, see Appellate Body Report, Korea — Various Measures on Beef [2]–[3]. Korea — Various Measures on Beef [161]. Korea — Various Measures on Beef [164] (emphasis added). We note that whether or not the Appellate Body actually engages in this kind of ‘weighing and balancing’ may be open to doubt. See Donald Regan, ‘The Meaning of “Necessary” in GATT Article XX and GATS Article XIV: The Myth of Cost–Benefit Balancing’ (2007) 6(3) World Trade Review 347.

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[T]he weighing and balancing process we have outlined is comprehended in the determination of whether a WTO-consistent alternative measure which the Member concerned could ‘reasonably be expected to employ’ is available, or whether a less WTO-inconsistent measure is ‘reasonably available’.99 This Appellate Body report arguably remains the leading decision on the meaning of art XX(d),100 and although some may contend that the contours of the test have been somewhat refined in subsequent cases,101 this general approach has been influential in informing the interpretation of the word ‘necessary’ in relation to other general exceptions provisions.102

D  WTO Review of Australian Trade Law and Policy [13.80]  Trade policy reviews of Australia within the WTO also entail a form of negotiation. These have taken place periodically since the WTO was created: in 1998, 2002, 2007, 2011 and 2015. The most recent review (at the time of writing) was completed in July 2015.103 In its report for that review, Australia noted that ‘[m]ore than 99% of Australia’s tariff lines will be applied at a most-favoured nation (‘MFN’) rate of 5% or less, with over 47% duty free’.104 The discussant at the relevant meeting of the Trade Policy Review Body (‘TPRB’) noted that the Secretariat report described Australia as ‘one of the most open economies in the world’, but went even further, saying that ‘being open … is a motto that the country holds dear, and one 99 100

101

102

103

104

Appellate Body Report, Korea — Various Measures on Beef [166] (emphasis added). See also Appellate Body Report, Mexico — Tax Measures on Soft Drinks and Other Beverages, WTO Doc WT/DS308/AB/R (adopted 24 March 2006) [67]–[80]; Appellate Body Report, Thailand — Customs and Fiscal Measures on Cigarettes from the Philippines: Report of the Appellate Body, WTO Doc WT/DS371/AB/R (circulated 17 June 2011) [177]. For example, rather than balancing the three factors against each other, the Appellate Body in Brazil — Retreaded Tyres appears to balance the factors of trade-restrictiveness and contribution to the objective, in the light of the importance of that objective. See Appellate Body Report, Brazil — Measures Affecting Imports of Retreaded Tyres, WTO Doc WT/DS332/AB/R (adopted 17 December 2007) [156]. On GATT 1994 art XX(a), see, eg, Appellate Body Report, China — Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products, WTO Doc WT/DS363/AB/R (adopted 19 January 2010) [239], [242], [251]; Appellate Body Reports, European Communities — Measures Prohibiting the Importation and Marketing of Seal Products, WTO Docs WT/DS400/AB/R, WT/DS401/AB/R (adopted 18 June 2014) [5.214]–[5.215]. On GATT 1994 art XX(b), see Appellate Body Report, Brazil — Retreaded Tyres [141]–[142], [156], [210]. The use of this approach has extended beyond GATT 1994 to the equivalent provision of the General Agreement on Trade in Services. See Appellate Body Report, United States — Measures Affecting the CrossBorder Supply of Gambling and Betting Services, WTO Doc WT/DS285/AB/R (adopted 20 April 2005) [291], [305]–[307]. Trade Policy Review: Report by the Secretariat — Australia, WTO Doc WT/TPR/S/312/Rev.1 (21 July 2015). Trade Policy Review: Report by Australia, WTO Doc WT/TPR/G/312 (3 March 2015) [3.4].

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that explains its economic success’.105 However, the discussant also noted some ongoing areas of concern, including tariff assistance and other government support in the manufacturing sector, and SPS measures that are stricter than relevant international standards (even though Australia’s SPS regime had been reformed during the review period, moving from ‘rigid intervention targets to a more flexible risk-based biosecurity approach’).106 Other concerns raised by members related to Australia’s foreign investment restrictions and government procurement policies (including whether Australia would accede107 to the WTO’s Agreement on Government Procurement).108 In relation to trade remedies, the Secretariat noted that, ‘[w]ith 267 cases (217 in 2010) initiated between 1995 and 2013, Australia was one of the world’s major users of anti-dumping measures (fourth in 2013)’.109 In 2011, in response to a Productivity Commission report, a number of ‘Streamlining reforms’ were made to improve access, timeliness, decision-making and compliance in the anti-dumping system.110 Further reform of Australia’s anti-dumping regime occurred in 2012, following the release of the ‘Brumby review’.111 Notably, in December 2012, the Commonwealth government announced the creation of a new, stand-alone and well-resourced anti-dumping agency (the ‘Anti-Dumping Commission’) in response to a tripling of anti-dumping investigations.112 Responding to industry concerns, further reforms were announced in December 2014, including changes to the Anti-Dumping Review Panel’s merits review procedure and changes to prevent circumvention activities.113 These changes raise concerns about Australia’s commitment to open trade, particularly given the underlying economic irrationality of antidumping measures in general.114 The 2009 government-commissioned report by the Productivity Commission, while recommending retention of an 105

106

107

108

109

110 111 112

113 114

Trade Policy Review: Australia — Minutes of the Meeting, WTO Doc WT/TPR/M/312 (24 June 2015) (meeting of Trade Policy Review Body on 21 and 23 April 2015) [3.8]. Trade Policy Review: Australia — Minutes of the Meeting, WTO Doc WT/TPR/M/312 (24 June 2015) (meeting of Trade Policy Review Body on 21 and 23 April 2015) [3.23], [3.25]. Trade Policy Review: Australia — Minutes of the Meeting, WTO Doc WT/TPR/M/312 (24 June 2015) (meeting of Trade Policy Review Body on 21 and 23 April 2015) [5.46]–[5.47]. Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995) annex 4 (‘Agreement on Government Procurement’). Trade Policy Review: Report by the Secretariat — Australia, WTO Doc WT/TPR/S/312/Rev.1 (21 July 2015) [3.40]. Trade Policy Review: Report by Australia, WTO Doc WT/TPR/G/312 (3 March 2015) [2.25]. Trade Policy Review: Report by Australia, WTO Doc WT/TPR/G/312 (3 March 2015) [2.26]. Jason Clare, ‘Minister Releases Brumby Report’ (Media Release, 27 November 2012); Julia Gillard, Greg Combet and Jason Clare, ‘Anti-Dumping Reforms to Support Australian Industry’ (Media Release, 4 December 2012). Trade Policy Review: Report by Australia, WTO Doc WT/TPR/G/312 (3 March 2015) [2.28]. See, eg, Tania Voon, ‘Eliminating Trade Remedies from the WTO: Lessons from Regional Trade Agreements’ (2010) 59(3) International and Comparative Law Quarterly 625, 629–31 and references cited therein.

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anti-dumping system, noted that anti-dumping measures ‘represent transfers between different domestic stakeholders’ (primarily from consumers to applicant industries), with ‘adverse consequences for Australia’s overall economic performance and community well-being’.115 Consequently, many of the Commission’s recommendations for reform of the system would diminish rather than increase reliance on this tool of protectionism.116 In spite of these recommendations, reforms to Australia’s anti-dumping system in 2011, 2012 and 2014 have ‘moved the system in the opposite direction’,117 with some limited exceptions, such as improvements in the appeals process and disclosure of information.118 In a research report released in February 2016, the Productivity Commission argued that ‘it is hard to reconcile the recent policy emphasis in this area with [Australia’s] market and trade liberalisation objectives’.119 Australia also noted, in its report for the 2011 Trade Policy Review, the latest infrastructure investments it had made, including with respect to ‘telecommunications via the National Broadband Network’ (‘NBN’).120 Several WTO members posed questions regarding the NBN at the 2011 TPRB meeting,121 but neither the Australian government nor the Australian Competition and Consumer Commission provided detailed information about how Australia regards WTO law as applying to the NBN. The NBN scheme raised potential trade law concerns, particularly under the General Agreement on Trade in Services,122 as well as the services, telecommunications and competition chapters of some PTAs. Although the rollout of the NBN scheme was discussed in Australia’s 2015 Trade Policy Review,123 apparently no members questioned the consistency of the scheme with Australia’s WTO obligations at the 2015 TPRB meeting. 115

116

117

118

119

120 121

122

123

Productivity Commission, Australia’s Anti-Dumping and Countervailing System (Productivity Commission Inquiry Report No 48, 18 December 2009) 35. See, eg, Productivity Commission, Australia’s Anti-Dumping and Countervailing System (Productivity Commission Inquiry Report No 48, 18 December 2009) XXVIII, XXX. Productivity Commission, Development in Anti-Dumping Arrangements (Productivity Commission Research Paper, 29 February 2016) iii. Productivity Commission, Development in Anti-Dumping Arrangements (Productivity Commission Research Paper, 29 February 2016) 69. Productivity Commission, Development in Anti-Dumping Arrangements (Productivity Commission Research Paper, 29 February 2016) 19. Trade Policy Review: Report by Australia, WTO Doc WT/TPR/G/244 (1 March 2011) [23]. Trade Policy Review: Australia — Record of the Meeting (Addendum), WTO Doc WT/ TPR/M/244/Add.1 (16 May 2011) (advance written questions posed to and replies from Australia). Tania Voon and Andrew Mitchell, ‘The NBN and the WTO’ (2011) 61(1) Telecommunications Journal of Australia 6.1–6.7; Tania Voon and Andrew Mitchell, ‘International Trade Law Implications of Australia’s National Broadband Network’ (2011) 35(2) Melbourne University Law Review 578. Trade Policy Review: Report by the Secretariat — Australia, WTO Doc WT/TPR/S/312/Rev.1 (21 July 2015) [4.99]–[4.101].

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III  AUSTRALIA’S PREFERENTIAL TRADE AGREEMENTS [13.90]  In its April 2011 trade policy statement, following the November 2010 report by the Productivity Commission into PTAs,124 the Gillard government walked a fine line in addressing its approach towards PTAs. On the one hand, the statement identified ‘non-discrimination’ as one of five guiding principles for Australian trade policy, recognising the widely acknowledged fact125 that ‘[d]iscriminatory trade agreements can divert trade away from more efficient, excluded producers of goods and services to less efficient parties to the agreements’.126 On the other hand, the statement indicated that, as other countries do not embrace this non-discrimination pillar and have obtained discriminatory access to our trading partners’ markets, Australia would continue to pursue preferential trade deals. This policy of pursuing multilateral (or non-discriminatory) trade liberalisation, as well as regional and bilateral PTAs, continued after the election of the Abbott government in September 2013. In its election policy on trade, the Coalition emphasised that the ‘current impasse in the Doha Round of [WTO] negotiations increases the need for Australia to pursue bilateral agreements that expand trade and investment opportunities for Australian businesses’.127 The Abbott government placed great emphasis on the need to conclude PTAs with major trading partners,128 particularly those in North Asia, and had concluded agreements with Korea, Japan and China by 2015.129 Thus, despite Australia’s recognition of the benefits of non-discrimination and the most-favoured nation rule, Australia continues to be extremely active in concluding PTAs, having concluded 11 with five more under negotiation, as summarised in table 2. In addition, Australia and the EC announced in November 2015 their ‘agree[ment] to commence work toward the launch of negotiations’ for a PTA.130 Australia’s approach accords with the worldwide 124

125

126

127

128

129 130

Productivity Commission, Research Report: Bilateral and Regional Trade Agreements (November 2010) XXXVII–XXXIX. See, eg, WTO Consultative Board, The Future of the WTO: Addressing Institutional Challenges in the New Millennium (WTO, 2004) ch II; Jagdish Bhagwati and Arvind Panagariya, ‘Preferential Trading Areas and Multilateralism — Strangers, Friends, or Foes?’ in Jagdish Bhagwati and Arvind Panagariya (eds), The Economics of Preferential Trade Agreements (AEI Press, 1996) 1. DFAT, Gillard Government Trade Policy Statement: Trading Our Way to More Jobs and Prosperity (April 2011) 7. Liberal Party of Australia, The Coalition’s Policy for Trade (September 2013) . Liberal Party of Australia, The Coalition’s Policy for Trade (September 2013) . See table 2. European Commission, Statement of the President of the European Commission JeanClaude Juncker, the President of the European Council Donald Tusk and the Prime Minister of Australia Malcolm Turnbull (15 November 2015) .

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proliferation of PTAs,131 despite difficulties associated with both the WTO committee process for approving PTAs and the legal test for their validity under GATT art XXIV.132 Table 2: PTAs Concluded or under Negotiation with Australia PTA Australia–New Zealand Closer Economic Relations Trade Agreement Singapore–Australia Free Trade Agreement Thailand–Australia Free Trade Agreement Australia–United States Free Trade Agreement (‘AUSFTA’) Australia—Chile Free Trade Agreement ASEAN–Australia–New Zealand Free Trade Agreement

Partner(s) New Zealand

Australia–Malaysia Free Trade Agreement Australia–Korea Free Trade Agreement Australia–Japan Economic Partnership Agreement Australia–China Free Trade Agreement

Malaysia

131

132

133

Singapore Thailand United States Chile New Zealand, Brunei, Burma, Malaysia, the Philippines, Singapore, Vietnam, Thailand, Laos, Cambodia, Indonesia

Korea Japan China

Status Entered into force 1 January 1983; periodic additions/ revisions since then133 Entered into force 28 July 2003 Entered into force 1 January 2005 Entered into force 1 January 2005 Entered into force 6 March 2009 Entered into force for eight countries, including Australia, 1 January 2010; Thailand, 12 March 2010; Laos, 1 January 2011; Cambodia, 4 January 2011; Indonesia, 10 January 2012 Entered into force 1 January 2013 Entered into force 12 December 2014 Entered into force 15 January 2015 Entered into force 20 December 2015

See, eg, WTO Consultative Board, The Future of the WTO: Addressing Institutional Challenges in the New Millennium (WTO, 2004) ch II; Jean-Pierre Chauffour and Jean-Christophe Maur, Preferential Trade Agreement Policies for Development: A Handbook (World Bank, 2011). On PTAs in Australian history, see K W Ryan, ‘Australia and International Trade Law’ in K W Ryan (ed), International Law in Australia (Law Book Co, 2nd ed, 1984) 277, 296–304. See, eg, C H Alexandrowicz, ‘Australia and GATT’ in D P O’Connell (ed), International Law in Australia (Law Book Co, 1965) 87, 111–12; Andrew Mitchell and Nicolas Lockhart, ‘Legal Requirements for FTAs under the WTO’ in Simon Lester and Bryan Mercurio (eds), Bilateral and Regional Trade Agreements: Case Studies (Cambridge University Press, 2009) 81. See, eg, Protocol to the Australia New Zealand Closer Economic Relations — Trade Agreement on Acceleration of Free Trade in Goods (18 August 1988), [1988] ATS 18 art 4.2; Protocol on Trade in Services to the Australia New Zealand Closer Economic Relations Trade Agreement (18 August 1988), [1988] ATS 20; Protocol on Investment to the Australia–New Zealand Closer Economic Relations Trade Agreement (16 February 2011).

Ch 13: AUSTRALIA AND INTERNATIONAL TRADE LAW   337 Trans-Pacific Partnership Agreement (‘TPP’)

Australia–Gulf Cooperation Council Free Trade Agreement Pacific Agreement on Closer Economic Relations (PACER) Plus

Australia–India Comprehensive Economic Cooperation Agreement Indonesia–Australia Comprehensive Economic Partnership Agreement Regional Comprehensive Economic Partnership

Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Singapore, Peru, the United States, Vietnam Bahrain, Kuwait, Oman, Qatar, Saudi Arabia, the United Arab Emirates Cook Islands, Federated States of Micronesia, Fiji, Kiribati, Nauru, New Zealand, Niue, Palau, Papua New Guinea, Republic of Marshall Islands, Samoa, Solomon Islands, Tonga, Tuvalu, Vanuatu India

Negotiations concluded 6 October 2015

Indonesia

Negotiations commenced September 2012

The 10 ASEAN member states, plus China, India, Japan, Korea and New Zealand

Negotiations commenced 20 November 2012

Negotiations commenced 30 July 2007 Negotiations commenced August 2009

Negotiations commenced 12 May 2011

Australia’s PTAs are generally comprehensive agreements, which cover a wide range of matters such as trade in goods (including goods such as agricultural products and pharmaceuticals), trade in services (such as telecommunications),134 intellectual property, investment, and dispute settlement. Recently, however, Australia has also joined some more narrowly focused plurilateral negotiations, which pursue further trade liberalisation in a specific sector or category among some but not all WTO members. These include the proposed Trade in Services Agreement135 — which Australia is jointly leading with the European Union and the United States — and the Environmental Goods Agreement.136 Although Australia has become an enthusiastic participant in PTAs, entry into these agreements has not been without controversy. The Productivity Commission’s 2010 report on PTAs made several recommendations 134

135

136

See Tania Voon and Andrew Mitchell, ‘Achieving a Common Market for Telecommunications Services in Australia and New Zealand’ (2007) 26 Australian Year Book of International Law 1. DFAT, Trade in Services Agreement . DFAT, Environmental Goods Agreement .

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for future negotiations, including that Australia not include matters that would ‘affect established social policies without a comprehensive review of the implications’ and ‘seek to avoid’ the inclusion of investor–state dispute settlement (‘ISDS’) provisions ‘that grant foreign investors in Australia substantive or procedural rights greater than those enjoyed by Australian investors’.137 While the Gillard trade policy statement endorsed this recommendation on ISDS provisions,138 the approach of the Coalition government since September 2013 has been to consider the inclusion of ISDS in PTAs on a case-by-case basis.139 In 2014, Australian Greens Senator Peter Whish-Wilson introduced a private senator’s Bill that, if enacted, would have prevented the Australian government from entering into any agreement providing for ISDS.140 The Bill has not been voted on by the Senate or the House of Representatives, and a majority of the Senate Foreign Affairs, Defence and Trade Legislation Committee recommended that the Bill not be passed, as a ‘blanket ban on ISDS wold impose a significant constraint on the ability of Australian governments to negotiate trade agreements’.141 While Labor Party senators on that committee contended that the inclusion of ISDS provisions in PTAs is unnecessary, they ultimately agreed that ‘it is not desirable to radically constrain’ the government’s treaty-making power in the way that the Bill proposed.142 The committee suggested that concerns regarding ISDS would be better addressed through careful treaty drafting, and that Australia should avoid ‘sending a message to existing and potentially new trading partners that [it] was turning inward-looking and distancing itself from the international law system’.143 In addition to controversy regarding the substance of PTAs and the inclusion of ISDS provisions, some parliamentarians and civil society groups have raised concerns regarding Australia’s treaty-making process. PTAs, like other Australian treaties, are negotiated by the executive, and after signing 137

138

139

140

141

142

143

Productivity Commission, Research Report: Bilateral and Regional Trade Agreements (November 2010) XXXVII–XXXVIII. DFAT, Gillard Government Trade Policy Statement: Trading Our Way to More Jobs and Prosperity (April 2011) 14. Senate Foreign Affairs, Defence and Trade Legislation Committee, Parliament of Australia, Trade and Foreign Investment (Protecting the Public Interest) Bill 2014 (August 2014) [2.7]. See Trade and Foreign Investment (Protecting the Public Interest) Bill 2014 (Cth); Explanatory Memorandum, Trade and Foreign Investment (Protecting the Public Interest) Bill 2014 (Cth). Senate Foreign Affairs, Defence and Trade Legislation Committee, Parliament of Australia, Trade and Foreign Investment (Protecting the Public Interest) Bill 2014 (August 2014) 17. Senate Foreign Affairs, Defence and Trade Legislation Committee, Parliament of Australia, Trade and Foreign Investment (Protecting the Public Interest) Bill 2014 (August 2014) 19–21. Senate Foreign Affairs, Defence and Trade Legislation Committee, Parliament of Australia, Trade and Foreign Investment (Protecting the Public Interest) Bill 2014 (August 2014) 17.

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are tabled in parliament for review by the Joint Standing Committee on Treaties (‘JSCOT’). In June 2015, the Senate Foreign Affairs, Defence and Trade References Committee issued a report titled Blind Agreement, which made several recommendations intended to increase the role of Parliament and parliamentary committees in negotiating, approving and reviewing treaties before they are signed, and to ensure adequate stakeholder consultation.144 A key aspect of the context for the committee’s report was identified as ‘the way that large and complex free trade agreements such as those with Korea, Japan and China and the [TPP], are encroaching on the Australian domestic sphere without an adequate level of stakeholder engagement, public consultation, parliamentary oversight and executive accountability’.145 The perceived secrecy of trade negotiations was particularly prominent in relation to the TPP, leading to the unusual step of parliamentarians being given access to the draft text before the conclusion of negotiations (subject to strict confidentiality obligations).146 In response to the committee report, the Coalition government rejected all 10 of its recommendations.147 Despite having been heavily criticised for its timing and partisan nature,148 the JSCOT process continues to be the main opportunity for parliamentary scrutiny of PTAs. Despite political debate surrounding Australia’s negotiation of PTAs, the ratification of recently concluded agreements has received bipartisan support. For example, while the China–Australia Free Trade Agreement was relatively controversial,149 the necessary implementing legislation was passed after agreement was reached by the Coalition government and the opposition Labor Party.150 At the time of writing, it is unclear whether this bipartisan approach will continue for the TPP — an Asia-Pacific regional PTA including 12 countries, 144

145

146

147 148

149

150

Senate Foreign Affairs, Defence and Trade References Committee, Parliament of Australia, Blind Agreement: Reforming Australia’s Treaty-Making Process (June 2015) xiii–xiv. Senate Foreign Affairs, Defence and Trade References Committee, Parliament of Australia, Blind Agreement: Reforming Australia’s Treaty-Making Process (June 2015) [6.4]. Senate Foreign Affairs, Defence and Trade References Committee, Parliament of Australia, Blind Agreement: Reforming Australia’s Treaty-Making Process (June 2015) [3.55]. Commonwealth, Parliamentary Debates, Senate, 2 February 2016, 67–9 (Anne Ruston). See Andrew Mitchell and Tania Voon, ‘Australia–US Free Trade Agreement’ in Simon Lester and Bryan Mercurio (eds), Bilateral and Regional Trade Agreements: Case Studies (Cambridge University Press, 2009) 6, 11–12 and references cited therein. See, eg, Dan Conifer, ‘Free Trade Agreement: Voters Oppose China–Australia Deal after Hearing Controversial Elements: Poll’, ABC News (online), 24 June 2015, . Andrew Robb and Peter Dutton, ‘Government and Opposition Reach Agreement on Support for China–Australia Free Trade Deal’ (Media Release, 21 October 2015) .

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which together represented over 35 per cent of global GDP in 2014.151 This agreement is significant in its own right, but it is also seen as an important step towards ‘broader economic integration’152 and the long-term goal held by Australia and other nations of forming a Free Trade Area of the AsiaPacific.153 As the proposed reforms to the treaty-making process discussed above were rejected, formal parliamentary scrutiny of the TPP could not commence until after the agreement was signed in February 2016. The text of the TPP and a National Interest Analysis were then formally tabled before Parliament,154 to be considered by JSCOT before ratification. Even if the TPP receives support from JSCOT and the necessary implementing legislation is passed, its entry into force requires ratification by countries representing at least 85 per cent of the combined GDP of the 12 original TPP parties.155 Thus, notwithstanding the conclusion of TPP negotiations, implementation of the TPP remains uncertain. Assuming that the TPP does enter into force, it will be open to accession by other members of Asia-Pacific Economic Cooperation, or any other state or customs territory agreed by the parties.156 Several major economies in the Asia-Pacific region have already expressed interest in joining the TPP, signalling its potential to promote further regional economic integration.157

IV CONCLUSION [13.100]  This chapter has painted a picture of Australia as an interested and active participant in the multilateral trading system with a sound understanding of the economic implications of trade liberalisation, including the national and global welfare gains to be made from unilateral liberalisation. Australia is a respected player in WTO negotiations, even leading the way in certain areas. Australia has also been involved in a significant number of WTO disputes covering a broad range of matters, and in this context it has 151

152

153

154

155

156 157

DFAT, Trans-Pacific Partnership Agreement . ‘Trans-Pacific Partnership Ministers’ Statement’ (Media Release, 4 February 2016) . Andrew Robb, ‘Text Released for Historic Trade Pact (TPP)’ (Media Release, 5 November 2015) . Commonwealth, Parliamentary Debates, House of Representatives, 9 February 2016, 1 (Andrew Robb). Trans-Pacific Partnership Agreement, signed 4 February 2016 (not yet in force) art 30.5 (‘TPP’). TPP art 30.4. ‘Trans-Pacific Partnership Ministers’ Statement’, Statement’ (Media Release, 4 February 2016) .

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contributed to the development of WTO law and practice. At the same time, Australia’s approach to international trade appears on occasion unprincipled, inconsistent and unnecessarily secretive, from the perspective of law, economics and policy. For example, recent reforms to strengthen the domestic anti-dumping regime are difficult to square with the weak economic basis for this instrument of protection. Australia’s ongoing pursuit of PTAs is similarly hard to justify, given the detrimental impact of PTAs on multilateral trade liberalisation and the MFN rule, particularly when combined with a reluctance to increase transparency and democracy in the associated negotiating process. In sum, Australia is doing well in its engagement with international trade law, but it could do better. As we look towards the future, we can expect Australia to continue its vigorous engagement with a range of trading partners, particularly those in the Asia-Pacific region. Continued controversy regarding investment provisions in PTAs is likely. A greater awareness of the rigour required in domestic decision-making processes such as SPS-related risk assessments may also follow from losses within the WTO dispute settlement system. Australia may also have the opportunity to improve on its past record as a respondent in WTO disputes, if it is able to successfully defend its plain cigarette packaging measure against the WTO claims currently under consideration. The TPP, if it enters into force, will have major implications for Australia’s ongoing trade relationships. But while this agreement is undeniably significant, its conclusion is still just another step in a broader program of trade liberalisation.

14 Australia and International Commercial Law Vivienne Bath

I INTRODUCTION [14.10]  Australia is an active participant in the development and implementation of international economic law through its accession to a broad range of international conventions; its participation in multilateral and bilateral initiatives dealing with aspects of international economic law; and its engagement with international bodies such as the World Trade Organization and its associated bodies, the World Bank (the International Bank for Reconstruction and Development) and the International Monetary Fund (‘IMF’), the Group of Twenty (‘G20’), the Organisation for Economic Co-operation and Development (‘OECD’) the United Nations Commission on Inter­ national Trade Law (‘UNCITRAL’), and private international law and trade organisations. A broad view of the range and scope of international economic law has been taken in this discussion, although there is a variety of academic opinions on how ‘international economic law’ should be defined and the area differentiated from other fields of international law. This chapter adopts the definition proposed by Zamora: International economic law comprises a broad collection of laws and customary practices that govern economic relations between actors in different nations. It includes the examination of both law and policy issues on multiple levels, including private law, local law, national law, and international law.1 1

Stephen Zamora, ‘International Economic Law’ (1996) 17 University of Pennsylvania Journal of International Economic Law 63, 63–4 (footnote omitted). See also Steve Charnovitz, ‘What Is International Economic Law?’ (2011) 14 Journal of International Economic Law 3. 343

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Important features of international economic law are the range of possible participants, the international location of actors, and the variety of ways in which international economic law is created. Participants include states and international organisations such as the World Bank and the IMF, inter­ national groups or organisations comprised of government ministers and officials, and privately established international organisations, such as the Hague Conference on Private International Law.2 They also include international non-governmental organisations established and run by business concerns that have a strong interest in the making and implementation of international rules and policies. These include such organisations as the International Chamber of Commerce (‘ICC’), regional groupings, individuals, businesses and other non-government organisations — all of which are affected by and have both a role in, and an impact on, the development of international economic law. As a result, there is a wide range of different sources of law, regulation and policy that contribute to the overall framework of international economic regulation — ranging from conventions that clearly constitute international obligations to rules, practices or standards the adoption or implementation of which is voluntary at best. International agreements include international conventions imposing direct obligations on states and international organisations, such as the World Trade Organization treaties;3 international conventions that aim to achieve international harmonisation of rules relating to an aspect of private international or commercial law through unification or standardisation of domestic commercial regulation; conventions and practices developed by regional bodies or through plurilateral or bilateral treaties, and international standards developed at a state and sub-state level. For example, Australia is a member of the OECD and has agreed to comply with and implement not only international conventions prepared under the auspices of the OECD, but also a range of decisions, recommendations, declarations and other documents — only some of which are intended to be legally binding on OECD members and non-member signatories.4 Other parts of this framework are provided by the adoption by domestic jurisdictions of internationally negotiated model laws prepared by such institutions as UNCITRAL. Other rules are created by the widespread adoption and utilisation of financial standards and codes by government bodies and private organisations, corporations and traders. Commercial practices codified and developed by the ICC, such as the Uniform Customs 2

3 4

Hague Conference on Private International Law, Home (2016) . See chapter 13. See, eg, Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, opened for signature 17 December 1997, 2802 UNTS 49274 (entered into force 15 February 1999).

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and Practices for Documentary Credits (‘UCP’),5 create standard terms for the financing of a large amount of the world’s trade. The ICC rules for the use of domestic and international trade terms (‘Incoterms’) provide terms and conditions relating to the carriage of goods. These terms and conditions are widely used in international trade contracts.6 Other widely used trade practices and usages also constitute important parts of this framework. International and domestic courts and tribunals and arbitration tribunals interpret and apply these provisions and create jurisprudence that may be referred to and applied internationally as well as domestically. It is not possible in one chapter to describe all of the many ways in which Australia participates in international economic law. This chapter focuses on international monetary law in Australia, the major international commercial law areas of international sale and carriage of goods, and some of the important sources of international economic law in Australia.7

II  INTERNATIONAL MONETARY LAW [14.20]  International monetary or financial law is largely a construct of soft law standards and principles created, monitored and to some degree enforced by a number of sources, including international agencies, governments, government regulators, international institutions and nongovernment institutions and regional and other bodies.8 Rules of practice, standards, usages and widely adopted form contracts are also developed at the industry level.9 The major international economic institutions were established as a result of the United Nations Monetary and Financial Conference held at Bretton Woods, New Hampshire in the United States in 1944.10 They consist of the IMF and the five organisations in the World Bank Group: the International Bank for Reconstruction and Development (the World Bank), the Inter­ national Development Association, the International Finance Corporation, 5

6 7

8

9

10

ICC, ICC Uniform Customs and Practice for Documentary Credits, 2007 Revision, UCP600 (2006). ICC, Incoterms® 2010: ICC Rules for the Use of Domestic and International Trade Terms (2010). Other matters that are generally included in the area of international economic law — such as the World Trade Organization, carriage of goods and passengers by air, and international dispute resolution — are covered in chapters 13, 20 and 23. Douglas W Arner and Ross P Buckley, ‘Redesigning the Architecture of the Global Financial System’ (2010) 11 Melbourne Journal of International Law 1, 14; Chris Brummer, ‘Why Soft Law Dominates International Finance and Not Trade’ (2010) 13 Journal of International Economic Law 623. Rosa M Lastra, ‘Do We Need a World Financial Organization?’ (2014) 17 Journal of International Economic Law 787, 799. World Bank, Bretton Woods Monetary Conference, July 1–22, 1944 .

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the Multilateral Investment Guarantee Agency, and the International Centre for Settlement of Investment Disputes. Australia, although initially reluctant to participate in the IMF,11 joined the IMF and the World Bank organisation in 1947 and has been an active participant in these international organisations.12 Australia currently alternates with Korea in nominating an Executive Director of the IMF, representing a constituency largely composed of Pacific nations, plus Korea and Mongolia.13 The IMF and the World Bank are bound by its founding documents, that is, by the Articles of Agreement, as amended from time to time, which set out the basic purposes of the organisation and the obligations of the members. The Articles of Agreement of these institutions do not, on their face, give significant power to the organisations either to enforce obligations or to determine international rules or policies. Pursuant to the IMF Articles of Agreement, art IV and arts VIII(2), (3) and (4), Australia has made binding commitments, including an undertaking not to impose restrictions on the making of payments and transfers for current international payments. The IMF’s ability to enforce country commitments, however, is relatively limited: noncompliance may result in a report; a member may be ineligible to seek fund resources; voting rights may be suspended; conditions may be imposed; and all of these elements may be taken into account when a member seeks assistance.14 From the point of view of ‘hard law’, therefore, the IMF’s powers are restricted.15 The main power that the IMF has is through the use of its lending powers and the use of reports and surveillance to name and shame governments with policies of which it disapproves. Both the IMF and the World Bank have expanded into the areas of policy and standard-setting through a variety of means, predominantly the adoption 11

12

13

14

15

Ken Henry, ‘Australia and the International Financial Architecture — 60 Years On’ (Paper presented as the Sir Leslie Melville Lecture, 16 July 2003) . Australian participation is supported legislatively by the International Monetary Agreements Act 1947 (Cth) s 4; the International Finance Corporation Act 1955 (Cth); the Multilateral Investment Guarantee Agency Act 1997 (Cth); and the International Development Association Act 1960 (Cth). For discussion on the reconstruction and development role played by the World Bank, see Douglas W Arner and Ross P Buckley, ‘Redesigning the Architecture of the Global Financial System’ (2010) 11 Melbourne Journal of International Law 1. International Monetary Fund, IMF Executive Directors and Voting Power (3 October 2016) . See Edwin M Truman, ‘The International Monetary Fund and Regulatory Challenges’ (2010) 45(1) International Spectator 37. See Daniel D Bradlow, ‘International Law and the Operations of the International Financial Institutions’ in Daniel D Bradlow and David B Hunter (eds), International Financial Institutions and International Law (Kluwer Law International 2010) 1, 12–16; Rosa M Lastra, ‘Do We Need a World Financial Organization?’ (2014) 17 Journal of International Economic Law 787, 796–7.

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of policies and procedures with which members either voluntarily comply or with which compliance is required as a condition of funding.16 This has enabled these institutions to act as full participants in the international system of setting, implementing and monitoring international standards. The IMF website, for example, sets out a list of international standards recognised by the IMF and the World Bank that are ‘benchmarks of good practices’ in the areas of policy transparency, financial sector regulation and supervision, corporate governance, and market integrity. The IMF and the World Bank also assess countries’ compliance with these standards, and provide technical assistance to countries where needed for the purpose of strengthening domestic economic and financial institutions.17 Australia cooperates with the IMF in providing access to information on its financial activities and compliance with these international standards for the purpose of its annual bilateral consultations with the IMF under art IV of the IMF Articles of Agreement, on the basis of which the IMF holds regular discussions with members on financial and fiscal policy.18 In the last 10 to 15 years, international policy in relation to the regulation of the international financial system has been dominated by a series of intergovernmental initiatives — through the G7, the G8,19 the G1020 and, most recently, the G20.21 The G20 has taken on the role of setting policy relating to the international financial system, and in 2009 declared itself ‘the premier forum for international economic co-operation’.22 16

17

18

19

20

21

22

Daniel D Bradlow, ‘International Law and the Operations of the International Financial Institutions’ in Daniel D Bradlow and David B Hunter (eds), International Financial Institutions and International Law (Kluwer Law International 2010) 1, 14–21. International Monetary Fund, Standards and Codes: The Role of the IMF (16 September 2015) . Treasury, Annual Report 2014/15 (2015) pt 5: ‘Australia and the International Financial Institutions’ . The G6 (Group of 6) was originally composed of financial officials from France, Germany, Italy, Japan, the United Kingdom and the United States. With the addition of Canada it became the G7, and then the G8 when Russia joined in 1998: Glen Levy, ‘A Brief History of the G-8’ Time Magazine (online), 8 July 2009, . Bank for International Settlements, Research and Publications, G10 . Douglas W Arner and Ross P Buckley, ‘Redesigning the Architecture of the Global Financial System’ (2010) 11 Melbourne Journal of International Law 1, 17–18. The G20 or Group of Twenty is made up of finance ministers and central bank governors of 19 countries, including the members of the G8, Australia, China, Brazil and a number of developing countries, plus the European Union and the European Central Bank; see G20, About G20 (27 November 2015) . Douglas W Arner and Ross P Buckley, ‘Redesigning the Architecture of the Global Financial System’ (2010) 11 Melbourne Journal of International Law 1, 22–34. See also OECD, OECD and the G20: Pittsburgh, United States 2009 .

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Regulation of international finance is largely effected by the drafting and implementation of financial and other standards by a range of sub-­ governmental bodies, operating under and with the cooperation of the G20, the IMF and the World Bank, as well as the Bank for International Settlements.23 The Financial Stability Board (‘FSB’) (originally established as the Financial Stability Forum)24 is composed of the treasurers and central banks of the G20, as well as the European Commission; the OECD; the World Bank; the IMF; the European Central Bank; the Bank of Inter­national Settlements; the financial centres of Hong Kong, Singapore, Spain and Switzerland; and the chairs of the main regulatory committees. The FSB is responsible for the international coordination of the work of national financial authorities, as well as the setting of standards to develop and promote effective regulatory, supervisory and other financial sector policies. The main international regulatory committees are the Basel Committee on Banking Supervision, which is the standard-setter for the prudential regulation of banks;25 the Committee on Payments and Market Infrastructures (formerly the Committee on Payment and Settlement Systems),26 which sets standards for payments, clearing and securities settlement systems; the Committee on the Global Financial System,27 which monitors and promotes improvements to the functioning and stability of global financial markets; the International Association of Insurance Supervisors,28 which promotes consistent supervision of the insurance industry in order to maintain safe and stable insurance markets; the International Organization of Securities Commissions,29 which sets global standards for the securities sector; and the International Accounting Standards Board,30 which develops the Inter­ national Financial Reporting Systems for financial markets. Australia is an active member of the G20 and a participant in the FSB and in international regulatory committees in the international economic 23

24 25

26

27

28

29

30

The Bank for International Settlements was established in 1930. Its mission is to foster international cooperation and serve banks in the areas of monetary and financial stability; see Bank for International Settlements, History — Overview . See Financial Stability Board, About the FSB . Bank for International Settlements, Basel Committee on Banking Supervision . Bank for International Settlements, Committee on Payments and Market Infrastructures (CPMI) (13 May 2015) . Bank for International Settlements, Committee on the Global Financial System . International Association of Insurance Supervisors, About the IAIS . International Organization of Securities Commissions, About IOSCO (2016) . AFRS Foundation and the IASB, About Us .

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area. At the regional level, Australia is a member of the Asian Development Bank31 and other regional organisations, and is also a member of the newly established Asian Infrastructure Investment Bank.32 Australia also participates in the Joint Forum under the Bank of International Settlements, the purpose of which is to coordinate international policy in the banking, insurance and securities areas.33 The international system of guidelines and standards created by the work of these committees and organisations is not, on its face, intended to constitute ‘hard’ law in the form of a binding and enforceable international legal system. The Basel Committee, for example, states specifically that ‘[t]he Committee does not possess any formal supranational supervisory authority, and its conclusions do not, and were never intended to, have legal force’.34 Prudential standards agreed by these various international bodies typically become enforceable law through adoption into domestic legislation.35 These standards are applied in Australia through standards and guidelines that are authorised by legislation, implemented by a range of government or governmentapproved agencies, and enforced by Australia’s regulatory bodies.36 In the case of accounting standards, for example, the Australian Accounting Standards Board (‘AASB’) was set up as a government agency under the Australian Securities and Investments Commission Act 2001 (Cth), with responsibility for the making and formulation of accounting standards and participating in the development of a single set of worldwide accounting standards.37 The AASB has adopted International Financial Reporting Standards for companies reporting under the Corporations Act 2001 (Cth). Compliance in Australia with these standards is monitored by a number of other Australian regulators, including the Australian Securities and Investments Commission and the Australian Prudential Regulation Authority.38 Australia also participates in a range of other international and regional bodies that deal with monetary and financial matters. The Financial Action 31 32 33 34

35

36

37

38

See Asian Development Bank Act 1966 (Cth). Asian Infrastructure Investment Bank, About Us . Bank for International Settlements, Joint Forum . Bank for International Settlements, Basel Committee on Banking Supervision . Rosa M Lastra, ‘Do We Need a World Financial Organization?’ (2014) 17 Journal of International Economic Law 787, 796. For example, the Australian Prudential Regulation Authority is gradually implementing the Basel III capital reforms through the implementation of prudential and reporting standards (effective 1 January 2013); see Australian Prudential Regulation Authority, Annual Report 2015 (2015) . Australian Government, Australian Accounting Standards Board, About the AASB . Australian Government, Australian Accounting Standards Board, About the AASB .

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Task Force (‘FATF’), which was originally established by the G7, sets standards and works to promote implementation of measures, including the enactment of laws and the establishment of regulatory and implementation systems to combat money laundering, the financing of terrorist activities, and other threats to the international financial system.39 Australia is a member of the FATF and is also a member of the Asia-Pacific Group on Money Laundering, which is committed to the implementation of international standards on money laundering and the financing of terrorism, particularly the FATF standards.40 The FATF conducts regular joint reviews with member countries to assess technical compliance and the effectiveness of legal, enforcement and operational measures. Australia implements its commitments, however, through its own domestic legislation.41 The informal nature of this international rule-making structure is highlighted by its treatment under Australian law. In Pape v Federal Commissioner of Taxation,42 the Australian government argued in support of the constitutionality of its payment of bonus funds to taxpayers that the government was obliged under international law to make the payments in order to comply with a declaration by the G20 and recommendations on policy made by an IMF and OECD declaration of action plan. Of the three judges who addressed this issue, Hayne and Kiefel JJ expressed the view that these documents and recommendations in fact imposed no obligation on Australia and therefore did not enliven the external affairs power under s 51(xxix) of the Constitution.43 Heydon J in dissent concluded that the implementation of recommendations of international agencies that were not binding under international law could support the constitutionality of a law based on s 51(xxix) only if the recommendations were pronounced to give effect to the terms of a treaty to which they relate.44 This view was subsequently supported by the Court of Appeal of New South Wales in 2015 in Alqudsi v Commonwealth.45 Nevertheless, this network of international bodies, including the OECD, has created a comprehensive framework of recommendations, policies and guidelines dealing with international monetary and financial policy 39 40

41

42 43 44 45

FATF, Who We Are . Asia-Pacific Group, About APG . Including the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), the Financial Transaction Reports Act 1988 (Cth), the Anti-Money Laundering and CounterTerrorism Financing Rules Instrument 2007 (No 1) (Cth), the Australian Transaction Reports and Analysis Centre Industry Contribution Act 2011 (Cth) and the Australian Transaction Reports and Analysis Centre Industry Contribution (Collection) Act 2011 (Cth). Pape v Federal Commissioner of Taxation (2009) 238 CLR 1. Pape v Federal Commissioner of Taxation (2009) 238 CLR 1, 126–8 [368]–[374]. Pape v Federal Commissioner of Taxation (2009) 238 CLR 1, 164–5 [479]. Alqudsi v Commonwealth (2015) 91 NSWLR 93, 135–9 [148]–[167] (Leeming JA).

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with which countries such as Australia generally comply. The Australian government participates actively in the creation and development of this international network of rules, standards and policies and engages in domestic implementation of the rules, as well as submitting to the international system of surveillance, reporting and monitoring that maintains them. The ‘soft law’ nature of this system at the international level thus often results in enforceable ‘hard law’ at the domestic level.

III  INTERNATIONAL COMMERCIAL LAW [14.30]  International trade is the subject of international legislative and regulatory activity at a number of levels. At the state-to-state level, it is largely governed by the treaties establishing the World Trade Organization.46 In addition, a variety of international public and non-governmental organisations are engaged in efforts to harmonise and unify important elements of the laws that apply to private participants in international trade. In this area, the objective is not to deal with intergovernmental activity, but through international government action to create a consistent legal regime that will, it is hoped, facilitate and encourage international trade. This aim is best set out by the third paragraph to the Preamble to the United Nations Convention on Contracts for the International Sale of Goods (‘CISG’),47 which states that: … the adoption of uniform rules which govern contracts for the international sale of goods and take into account the different social, economic and legal systems would contribute to the removal of legal barriers in international trade and promote the development of international trade. Harmonisation and unification endeavours at an international governmental level take a variety of forms. They include international conventions designed to ensure that the signatory states adopt and apply uniform rules, with very little modification permitted. The CISG and the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (‘New York Convention’)48 are prominent examples of this. Other conventions allow the states parties flexibility in deciding how to implement the requirements of the convention. Thus, domestic legislation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International 46 47

48

See chapter 13. United Nations Convention on Contracts for the International Sale of Goods, opened for signature 11 April 1980, 1489 UNTS 3 (entered into force 1 January 1988) (‘CISG’). New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, opened for signature 10 June 1958, 330 UNTS 3 (entered into force 7 June 1959) (‘New York Convention’).

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Business Transactions may vary considerably.49 Conventions may also set out rules that each participating state must adopt but is permitted to modify (such as the Hague–Visby Rules).50 Other harmonisation endeavours include model laws and guidelines, standards and principles adopted by a range of bodies. In addition to steps taken at a governmental level, there are many other sources of legal principle and practice relating to international commercial law. These include statements of international principle prepared at an international level, such as the UNIDROIT Principles of International Commercial Contracts issued by the International Institute for the Unification of Private Law (‘UNIDROIT’).51 Universal customs and trade terms and standard form contracts that are widely used in international trade are interpreted by domestic courts and international and domestic arbitral tribunals, and they have an impact on laws and practice in the international commercial area. A number of academic commentators take the view that there should be considered to be an international system of internationalised private law that is created by the practice of merchants, as well as by international efforts to harmonise and consolidate commercial rules through treaties and other instruments — that is, a lex mercatoria or law merchant that exists independently of domestic law. Certainly, the accumulated effect of this range of different instruments, documents, practice and usage has a major impact on international business activities. It is, however, difficult to assess whether these sources constitute an independent law at an international level. This chapter does not examine the complexities of this particular debate, as Australian courts have generally been cautious in relation to the concept of an independent international lex mercatoria that exists outside domestic law.52 49

50

51

52

Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, opened for signature 17 December 1997, [1999] ATS 21 (entered into force 15 February 1999). See chapter 10 and the discussion in Robin Burnett and Vivienne Bath, International Business Law in Australasia (Federation Press, 2009) 436–9 on the different approaches taken by Australia and New Zealand in enacting the legislation to implement this convention. International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading, opened for signature 25 August 1924, 120 LNTS 155 (entered into force 2 June 1931) (‘Brussels Convention’ or ‘Hague Rules’), as modified by the Protocol to Amend the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading, opened for signature 23 February 1968, 1412 UNTS 121 (entered into force 23 June 1977) (‘Visby Protocol’), and Protocol Amending the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading, opened for signature 21 December 1979, 1412 UNTS 121 (entered into force 14 February 1984) (‘SDR Protocol’). UNIDROIT, UNIDROIT Principles of International Commercial Contracts 2010 . But see Leonie’s Travel Pty Ltd v Qantas Airways Ltd (2010) 183 FCR 246, 259 [57] (Lander and Rares JJ), referring to the law merchant to support the desirability of uniform construction of International Air Transport Association contracts. For a discussion of the various theories, arguments and possibilities, see Leon Trakman, ‘The TwentyFirst Century Law Merchant’ (2011) University of New South Wales Faculty of Law Research Series 32.

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At a governmental level, Australia is an active member of the leading bodies in the international harmonisation endeavour. It participates in working groups of UNCITRAL; it is one of the 63 state members of UNIDROIT;53 and it is one of the 80 state members of the Hague Conference on Private International Law.54 The Australian government engages in the negotiation, adoption and implementation of international conventions dealing with areas of international trade that directly affect Australian interests, including conventions relating to the carriage of goods by sea and by air;55 conventions on maritime liability, maritime pollution and safety, and other maritime conventions administered by the International Maritime Organization;56 the CISG; and the New York Convention. In other areas, however, the Australian government approach to ratifying conventions designed to standardise rules relating to international commerce has been cautious. Australia is not a party to many of the treaties negotiated under the auspices of UNCITRAL. In common with many of its major trading partners, it did not accede to the 1978 Convention on the Carriage of Goods by Sea (‘Hamburg Rules’),57 nor has it, as yet, signed the 2008 Convention on Contracts for the Carriage of Goods Wholly or Partly by Sea (‘Rotterdam Rules’),58 although it was an active participant in the negotiations for the formation of that treaty. Similarly, it has signed very few of the conventions sponsored by UNIDROIT, with some exceptions.59 Australia has been similarly cautious in relation to conventions on international trade drafted and sponsored by the Hague Conference on Private International Law, although it is a party to a number of important conventions in the private international law area such as wills, service of process and evidence, adoption, recognition of divorces, marriages, child abduction and related areas.60 Australia has not acceded to or ratified the Convention on 53

54

55 56

57

58

59

60

UNIDROIT, UNIDROIT Principles of International Commercial Contracts 2010 . Hague Conference on Private International Law, HCCH Members (2016) . See chapter 20. International Maritime Organization, List of IMO Conventions (2016) . Convention on the Carriage of Goods by Sea, opened for signature 31 March 1978, 1695 UNTS 3 (entered into effect 1 November 1992) (‘Hamburg Rules’). Convention on Contracts for the Carriage of Goods Wholly or Partly by Sea, opened for signature 11 December 2008 (not yet in force) (‘Rotterdam Rules’); UNCITRAL, UNCITRAL Texts & Status, International Transport of Goods . For example, in 2015, Australia joined the Convention on International Interests in Mobile Equipment, opened for signature 16 November 2001, 2307 UNTS 285 (entered into effect 1 March 2006). Hague Conference on Private International Law, Status of Signatures, Ratifications and Accessions .

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Choice of Court Agreements, which came into effect on 1 October 2015 after approval by the European Union, although steps were taken in early 2016 to commence formal consideration of accession.61 Australia has adopted as domestic legislation a number of important model laws initiated by UNCITRAL that relate to international trade or international commercial transactions (such as the 1985 Model Law on International Commercial Arbitration62 and the 1997 Model Law on Cross-Border Insolvency).63 It has also, as a member of the United Nations and international bodies and committees, agreed or become obliged to implement international guidelines and standards — particularly in the international financial area, as discussed above. As a member of the OECD, it is obliged to implement decisions of the OECD Council, such as the OECD Guidelines for Multinational Enterprises,64 and is expected to implement recommendations of the Council.65

IV  HARMONISATION THROUGH CONVENTIONS: UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS [14.40]  Australia became a party to the CISG in 1988, and it came into effect for Australia on 1 April 1989.66 Most of Australia’s major trading partners, including the People’s Republic of China, Japan, Korea and the United States are now also parties to the CISG.67 The CISG is implemented in Australian law through legislation in all the states and territories which provides that the CISG has the force of law in the relevant state and territory and overrides 61

62

63

64

65 66 67

Hague Conference on Private International Law, 37: Convention of 30 June 2005 on Choice of Court Agreements . The convention was tabled before the Joint Standing Committee on Treaties on 15 March 2016 (the inquiry lapsed on 9 May 2016 on dissolution of the Senate); Parliament of Australia, Joint Standing Committee of Treaties, Treaty Being Considered . UNCITRAL, UNCITRAL Model Law on International Commercial Arbitration (1985), with amendments as adopted in 2006 . UNCITRAL, UNCITRAL Model Law on Cross-Border Insolvency (1997) . OECD, Decisions, Recommendations and Other Instruments of the Organisation for Economic Co-Operation and Development; Decision of the Council on the OECD Guidelines for Multinational Enterprises (27 June 2000; amended 25 May 2011) . OECD, OECD Legal Instruments . [1988] ATS 32. The CISG had 85 parties in June 2016; United Nations, United Nations Treaty Series Online Collection .

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inconsistent domestic legislation to the extent of any inconsistency.68 Australia has not made any of the permitted substantive reservations to the CISG, which therefore applies in its entirety in the circumstances outlined in the CISG unless excluded or modified by the parties pursuant to art 6.69 The aim of the CISG is to provide a uniform regime for contracts for the international sale of goods. Thus, where the convention applies (both when the contract in question is between two parties with their places of business in states that are parties to the CISG, and where the rules of private inter­national law lead to the application of the CISG), the resolution of a contractual dispute relating to a matter covered by the convention should be predictable and not dependent on the terms of domestic law. Parties may, however, by agreement, override provisions of the CISG or opt out of the CISG, explicitly or implicitly, in whole or in part.70 The CISG therefore leaves space for the parties to define their own contractual terms or to opt for the application of domestic law. The CISG sets out rules relating to contracts for the international sale of goods, including in relation to the formation and performance of the contract, the rights and obligations of the parties, and the definition and consequences of breach and termination. It does not cover the validity of the contract or the transfer of property.71 In order to achieve the purpose of creating a uniform international regime for international sales of goods, art 7 of the CISG provides that in interpreting the CISG ‘regard is to be had to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade’. Questions not expressly settled in the convention should be settled in conformity with the general principles on which it is based, or in conformity with law applicable under rules of private international law.72 There is, however, no international court or body with the authority to set precedent or to ensure international consistency, and, as Schlechtriem and Butler comment, in order for the objective of uniformity to be achieved, it is necessary for domestic courts and arbitral bodies to take into account foreign judgments and jurisprudence.73 At an international level, organisations and academic commentators have put a great deal of effort into creating databases of cases in different domestic courts and opinions dealing with the CISG for the purpose of giving practical 68 69

70 71 72 73

See, eg, Sale of Goods (Vienna Convention) Act 1986 (NSW) ss 5–6. Australia has made a reservation relating to application of the convention in external territories: [1988] ATS 32, note 1. CISG art 6. CSIG art 4. CSIG art 7(2). Peter Schlechtriem and Petra Butler, UN Law on International Sales: The UN Convention on the International Sale of Goods (Springer, 2009) 49.

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effect to the concept of promoting uniformity in application.74 Australian practice in this regard, however, is not consistent. There are surprisingly few reported Australian cases on the CISG. This could be due to the reluctance of Australian companies and lawyers to subject their transactions to the CISG.75 Other factors may be incomplete reporting of lower level cases on the CISG and the referral of disputes to arbitration. The approach of Australian courts to the CISG can be, and has been, criticised for the failure of judges to recognise, first, that the principles in the CISG differ from Australian common and statutory law, and, second, that it is essential to refer to the international body of jurisprudence in order to achieve uniformity in application.76 Although in the 2001 case of Downs Investments Pty Ltd (in liq) v Perwaja Steel SDN BHD,77 the Supreme Court of Queensland referred to authority from the United States in relation to the interpretation of the CISG, in 2011, in Castel Electronics Pty Ltd v Toshiba Singapore Pte Ltd,78 the Full Federal Court of Australia referred solely to Australian authority (with the exception of one 19th century English case that did not, of course, refer to the CISG) in interpreting the CISG.79 This is in marked contrast to the approach taken by the New Zealand Court of Appeal in Smallmon v Transport Sales Ltd, where the court stated that ‘the Convention is to be given an autonomous interpretation requiring the Convention to be interpreted exclusively on its own terms and applying Convention-related decisions in overseas jurisdictions’.80 The significance of courts and tribunals making consistent interpretations of the convention is highlighted by the fact that Australian companies may well become involved in arbitration or litigation under the CISG outside Australia.81 74

75

76

77 78 79

80

81

See, for example, UNCITRAL, Case Law on UNCITRAL Texts (CLOUT) . Lisa Spagnolo, ‘The Last Outpost: Automatic CISG Opt Outs, Misapplications and the Costs of Ignoring the Vienna Sales Convention for Australian Lawyers’ (2009) 10(1) Melbourne Journal of International Law 141. Lisa Spagnolo, ‘The Last Outpost: Automatic CISG Opt Outs, Misapplications and the Costs of Ignoring the Vienna Sales Convention for Australian Lawyers’ (2009) 10(1) Melbourne Journal of International Law 141. Downs Investments Pty Ltd (in liq) v Perwaja Steel SDN BHD [2002] 2 Qd R 462. Castel Electronics Pty Ltd v Toshiba Singapore Pte Ltd (2011) 192 FCR 445. See also Fryer Holdings Pty Ltd (in liq) v Liaoning MEC Group Co Ltd [2012] NSWSC 18 (30 January 2012), where McDougall J referred to only two cases in applying the CISG: Australian Knitting Mills Ltd v Grant (1933) 50 CLR 387 (decided well before the CISG) and Castel Electronics Pty Ltd v Toshiba Singapore Pte Ltd (2011) 192 FCR 445. Smallmon v Transport Sales Ltd [2012] 2 NZLR 109, 121 [39] (Ellen France, Stevens and Wild JJ). See, for example, a dispute between an Australian seller and a Korean buyer decided by the Seoul High Court in October 2010 (cotton seed case), in favour of the Australian seller. Pace Law School Institute of International Commercial Law, Albert H Kritzer CISG Database, Cases on the CISG, Republic of Korea (2010) .

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V  CARRIAGE OF GOODS BY SEA [14.50]  A different approach to international conventions is reflected in Australia’s legislation relating to carriage of goods by sea. Carriage of goods by sea is a particularly significant area of concern for Australia, given the importance of international trade to the Australian economy. The Australian government has been an active participant in inter­national conventions relating to this area, and is a signatory to a number of major conventions relating to carriage of goods by sea, as well as the major maritime conventions.82 It was also an active participant in the recent rounds of negotiations on the Rotterdam Rules. Unlike the CISG, which was adopted without reservations, Australia’s incorporation of inter­ national rules into Australian law relating to carriage of goods by sea has been made with a close regard to Australian interests. The Brussels Convention83 set out the basic balance between carrier and shipper that has provided the basis for all future conventions relating to carriage of goods by sea. These Hague Rules imposed on the carrier a level of responsibility in relation to shipped goods from which the carrier could not exempt itself. In return, the carrier received a number of protections — action against it could be brought only within a certain period of time, and its financial liability for loss or damage to the goods that it carried was regulated and limited. The 1968 Visby Protocol,84 which created the Hague–Visby Rules, provided additional protection for third-party transferees and further clarified the calculation of damages. The 1979 SDR Protocol85 changed the measure of liability from the gold standard to the IMF’s special drawing right. In 1978, the Hamburg Rules aimed to modernise the applicable regime by expanding the coverage of international conventions to include shipping documents other than bills of lading and to provide additional protections for shippers by increasing the amount for which the carrier could be liable, reducing the carrier’s exemptions and clarifying the scope of liability. The Hamburg Rules were not ratified by major trading nations, however, and another attempt to reach international agreement on the appropriate balance between the interests of the carriers (as represented by those 82

83

84

85

International Maritime Organization, List of IMO Conventions (2016) . International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading, opened for signature 25 August 1924, 120 LNTS 155 (entered into force 2 June 1931) (‘Brussels Convention’ or ‘Hague Rules’). Protocol to Amend the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading, opened for signature 23 February 1968, 1412 UNTS 128 (entered into force 23 June 1977) (‘Visby Protocol’). Protocol Amending the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading, opened for signature 21 December 1979, 1412 UNTS 146 (entered into force 14 February 1984) (‘SDR Protocol’).

358    INTERNATIONAL LAW IN AUSTRALIA

states with a major shipping industry) and the shippers was made in the 2008 Rotterdam Rules. Australia is a party to the Brussels Convention, the Hague–Visby Rules and the SDR Protocol. It did not accede to the Hamburg Rules and it has not signed the Rotterdam Rules. The Australian regime in relation to this area is set out in the Carriage of Goods by Sea Act 1991 (Cth) (‘COGSA’). COGSA is supported by state and territory legislation, such as the Sea-Carriage Documents Act 1997 (NSW), which enables transferees of shipping documents related to shipped goods to bring suit against carriers in their own right. In 1997, COGSA was amended to allow the government to modify the Hague–Visby Rules by regulation in order to incorporate a number of provisions that were essentially taken from the Hamburg Rules. This has resulted in a hybrid, and rather idiosyncratic, regime. The essence of these changes was to expand the scope of coverage of the rules to include not just goods shipped pursuant to a bill of lading or similar document of title, but also goods shipped under a broad range of sea-carriage documents, both negotiable and non-negotiable (including electronic documents), to allow for the coverage of carriage of cargo on deck and to spell out the carrier’s liability for delay. In order to support and enforce the applicability of these change to cargoes in which Australian shippers had an interest, COGSA extends the mandatory application of Australian law and the jurisdiction of the Australian courts over disputes involving cargoes departing from or arriving in Australia. The Hague–Visby Rules86 operate on the principle that the rules should apply if the relevant bill of lading is issued in a contracting state, or the goods depart from a port in the contracting state, or the parties agree to apply the rules.87 COGSA88 provides that the parties to a sea-carriage document relating to the carriage of goods from Australia to a port outside Australia are deemed to have contracted pursuant to the law of the place of shipment. The Australian version of the Hague–Visby Rules also provides that in the case of goods coming into Australia, the Australian version of the Hague–Visby Rules applies unless a convention regime (that is, the Hague Rules, the Hague–Visby Rules or the Hamburg Rules) applies to the carriage of goods by law or by agreement of the parties. These requirements are supported by provisions in ss 11(2)–(3) of COGSA, which are intended to ensure that parties cannot opt out of the jurisdiction of the Australian courts. In particular, the parties cannot exclude the jurisdiction of the Australian courts by opting for arbitration, unless the arbitration is in Australia.89 Both the utility and the effectiveness of these 86 87 88 89

Hague–Visby Rules art 10. Hague–Visby Rules arts 10(a)–(b). Carriage of Goods by Sea Act 1991 (Cth) s 11(1) (‘COGSA’). COGSA s 11(3); see Hi-Fert Pty Ltd v United Shipping Adriatic Inc (1998) 89 FCR 166; Dampskibsselskabet Nordon A/S v Gladstone Civil Pty Ltd (2013) 216 FCR 469. Section 2C(b) of the International Arbitration Act 1974 (Cth) provides that nothing in that Act overrides this provision.

Ch 14: AUSTRALIA AND INTERNATIONAL COMMERCIAL LAW   359

provisions in the context of an international shipping regime have been severely criticised.90 The Hague–Visby Rules, as in force in Australia, follow the Hague Rules and the Hague–Visby Rules in relation to the circumstances in which the carrier will be liable to the shipper, and to the transferee of the goods, for loss or damage to goods. Article 3 r 1 requires the carrier to exercise due diligence ‘before or at the beginning of the voyage’ to make the ship seaworthy, properly man the ship, and make the holds and other parts of the ship fit to and safe for the reception and carriage of the cargo. Under art 4 r 1, neither the carrier nor the ship is liable unless there has been a failure of due diligence on the part of the carrier.91 Article 3 r 2 provides that ‘the carrier shall properly and carefully load, handle, stow, carry, keep, care for, and discharge the goods carried’. A complex set of defences for the carrier is set out in art 4 rr 1 and 2. Of these, possibly the most difficult and controversial is the defence set out in art 4 r 2(a), which exempts the carrier from liability in the case of its negligence in the navigation or management of the ship (as opposed to negligence in the management of the cargo).92 In return for the assumption of these liabilities, the carrier is protected under art 3 r 6 by a one-year limitation period in respect of actions against it. In addition, unless the value of goods is declared at the time of shipping and set out on the sea-carriage documents, the liability of the carrier is limited as set out in art 4 r 5 of the Hague–Visby Rules.93 The Hamburg Rules provide for a higher level of liability,94 which will be further increased under the Rotterdam Rules should they come into effect.95 Inconsistent international membership and implementation of the conventions on carriage of goods by sea has resulted in a fragmented regulatory regime. For example, China, a very important trading nation, has not acceded to any of the treaties, but maintains its own related regime.96 The United States is a party to the Brussels Convention, but has not signed the 90

91

92

93

94 95 96

See, eg, Simon Allison, ‘Choice of Law and Forum Clauses in Shipping Documents — Revising Section 11 of the Carriage of Goods by Sea Act 1991 (Cth)’ (2014) 40(3) Monash University Law Review 639. See Great China Metal Industries Co Ltd v Malaysian International Shipping Corporation Berhad (1998) 196 CLR 161 for a discussion of the difficult question of the allocation of the burden of proof under these two rules. For example, Tasman Orient Line CV v New Zealand China Clays Ltd [2010] 3 NZLR 1 (Supreme Court). Set at 666.67 special drawing rights (‘SDRs’) per package or 2 SDRs per kilogram, whichever is the greater. On 15 June 2016, the SDR was worth A$0.5244: Reserve Bank of Australia, Exchange Rates . Set at 835 SDRs per package, or 2.5 SDRs per kilogram for carrier’s negligence. Set at 875 SDRs per package, or 3 SDRs per kilogram. Paul Myburgh, ‘Uniformity or Unilateralism in the Law of Carriage of Goods by Sea’ (2000) 31(2) Victoria University of Wellington Law Review 355, 361–2.

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Visby Protocol or the SDR Protocol.97 States that have signed the conventions, such as Australia, may modify the provisions of the various conventions when implementing them domestically, thus requiring courts and arbitral tribunals to deal with the effect of the concurrent existence of multiple convention regimes. The approach taken by Australia in establishing its own ‘hybrid’ versions of the Hague–Visby Rules is not unique, and the variety of different national approaches to carriage of goods by sea has resulted in a fragmented and diverse international regime.98 Notwithstanding this international diversity of approach, in applying the provisions of first the Hague Rules and then the Hague–Visby Rules, Australian courts have acknowledged that the purpose of the conventions is to ensure uniformity.99 Australian courts draw on case law from around the world in applying COGSA, although they rely particularly on cases from the United Kingdom and the United States. In addition, as noted above, the courts are required to recognise and deal with the concurrent existence of multiple convention regimes where the Australian version of the Hague–Visby Rules does not apply to a particular case. For example, in several Australian cases, the Australian courts have been obliged to interpret and apply the US version of the Hague Rules.100 The Rotterdam Rules represent another attempt to consolidate the inter­ national regime. In order to achieve uniformity, a state that becomes a party to the Rotterdam Rules will be required to renounce all other relevant conventions.101 Current signatories include a number of significant trading nations, such as the United States, France and the Netherlands. Such other important trading nations as Australia, Canada, China, Japan, Korea, Russia and the United Kingdom, however, have not signed, and only Congo, Spain and Togo have ratified the convention. At least 20 ratifications are required in order for the convention to enter into force.102 The Rotterdam Rules are long, detailed and complex. They potentially make major changes to the international regime by moving away from reliance on 97

98

99

100

101 102

See United Nations Treaty Collection, Status of Treaties . Paul Myburgh, ‘Uniformity or Unilateralism in the Law of Carriage of Goods by Sea’ (2000) 31(2) Victoria University of Wellington Law Review 355, 362. ‘Because the Hague Rules are intended to apply widely in international trade, it is selfevidently desirable to strive for uniform construction of them’: Great China Metal Industries Co Ltd v Malaysian International Shipping Corporation, Berhad (1998) 196 CLR 161, 176 [38] (Gaudron, Gummow and Hayne JJ), citing Michael F Sturley, ‘International Uniform Laws in National Courts: The Influence of Domestic Law in Conflicts of Interpretation’ (1987) 27 Virginia Journal of International Law 729, 736. See Chapman Marine Pty Ltd v Wilhelmsen Lines A/S [1999] FCA 178 (5 March 1999); The Sanko Steamship Co Ltd v Sumitomo Australia Ltd (1995) 63 FCR 227. Rotterdam Rules art 89. Rotterdam Rules art 94; United Nations Treaty Series, Status of Treaties .

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shipping documents and by distinguishing between liner transportation (that is, regular and scheduled transportation) and non-liner transportation. An attempt is made to rebalance the obligations of the carrier and the shipper by extending the obligation of the carrier to provide a seaworthy ship to the length of the voyage (rather than the beginning); removing the defence of negligence in the navigation or management of the ship; extending the limitation period for legal action; raising the limits on the financial liability of the carrier; and extending the liability of the shipper to the carrier. Most controversially, however, under the so-called volume contracts rule, parties to a contract may opt out of many of the restrictions in the rules if they have long-term or repeated arrangements for the carriage of goods. Australia, which is primarily a nation of shippers rather than carriers, along with various other countries, objected strongly to this provision. Although its incorporation reflects the current reality that most shipping by the major cargo lines is conducted under service contracts,103 the provision potentially allows for considerable quantities of international shipping to be exempted from the Rotterdam Rules, thus weakening protections for shippers (and possibly carriers) that have limited bargaining power in the market and further contributing to the complexity and lack of uniformity in the inter­ national shipping regime.104 At this stage, it is unclear whether the Rotterdam Rules will ever come into effect and, if so, what impact they will have on this important area of international commercial law.

VI  HARMONISATION THROUGH MODEL LAWS [14.60]  UNCITRAL and other organisations, through their members, have drafted a number of model laws for domestic implementation. The purpose of the model laws is essentially to lead to uniformity or harmonisation through the gradual introduction of the various provisions of these laws in domestic jurisdictions, while allowing domestic legislatures to adapt the provisions to their own circumstances. As noted above, Australia has incorporated the UNCITRAL Model Law on International Commercial Arbitration, with modifications, into domestic law through the International Arbitration Act 1974 (Cth). It has also adopted the UNCITRAL Model Law on Cross-Border Insolvency in the Cross-Border Insolvency Act 2008 (Cth),105 as well as many elements of the 1996 UNCITRAL Model Law on Electronic Transactions in the Electronic Transactions Act 1999 (Cth) and related state and territory legislation. 103

104

105

Mary Brooks and Jason Mackey, ‘Will the Rotterdam Rules Be Accepted? A Liner Cargo Interest Perspective’ (2012) 35 Dalhousie Law Journal 267. Mary Brooks and Jason Mackey, ‘Will the Rotterdam Rules Be Accepted? A Liner Cargo Interest Perspective’ (2012) 35 Dalhousie Law Journal 267. See Gerard McCormack and Anil Hargovan, ‘Australia and the International Insolvency Paradigm’ (2015) 37(3) Sydney Law Review 389.

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Australia’s approach to the adoption and implementation of the model laws demonstrates the range of ways in which the model laws can be incorporated into domestic law. In the case of the Model Law on Cross-Border Insolvency, s 6 of the Cross-Border Insolvency Act provides that the model law will have the force of law in Australia. The provisions of the law are therefore directed at listing the appropriate Australian courts and the relationship of the model law with the relevant Australian legislation. The purpose of the Act is to grant access to Australian courts to foreign representatives and creditors, to allow for recognition of foreign insolvency proceedings, and to facilitate coordination in relation to insolvency proceedings where there are assets located in a number of states. The Act came into effect in May 2008 and has generated a large number of cases, mainly to assist foreign liquidators.106 A different approach was taken in relation to electronic transactions. The original legislation in the Commonwealth and the states and territories implemented specific provisions of the model law in relation to ‘legal validity of electronic transactions, non-discriminatory treatment of different electronic methods, and party autonomy to agree to alternative terms and conditions’ without specifically referring to the model law.107 The Commonwealth and state legislation has subsequently been amended in order to incorporate provisions of the 2005 United Nations Convention on the Use of Electronic Communications in International Contracts108 so that Australia can become a party to that convention.

VII  HARMONISATION THROUGH INTERNATIONAL PRACTICE AND GUIDELINES [14.70]  Another significant area of international commercial law and regulation comes from the actions of non-governmental actors, in the form of principles, guidelines, rules, trade terms and standard contracts that are used by agreement between the parties, but are so widely used that they establish expectations and understandings in the industries in which they are utilised. The various editions of the UCP and Incoterms (as modified from time to time) must be incorporated by reference into documentation between parties, but are very widely (and, in the case of the UCP, almost universally) used in 106

107 108

The highest level of authority on the Act so far is the Full Federal Court of Australia; see Akers as a joint foreign representative of Saad Investments Company Ltd (in official liquidation) v Deputy Commissioner of Taxation (2014) 223 FCR 8. Explanatory Memorandum, Electronic Transactions Amendment Bill 2011 (Cth). United Nations Convention on the Use of Electronic Communications in International Contracts, opened for signature 23 November 2005, UN Doc A/60/515 (entered into force 1 March 2013), [2010] ATNIF 33; see, eg, Electronic Transactions (Victoria) Act 2000 (Vic); Electronic Transactions Act 2000 (NSW).

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international (and often domestic) trade and are therefore interpreted and applied by courts and arbitral tribunals on a regular basis.109 Other attempts to create or codify international principles for use in international trade have been made by such actors as UNIDROIT. The UNIDROIT Principles on International Commercial Contracts, for example, set out general rules for international commercial agreements, which can be used in a variety of ways. The parties may, for example, specifically agree that their contract will be governed by the UNIDROIT Principles. The principles may also be utilised to interpret international uniform law instruments or domestic law.110 Although some reference has been made to the UNIDROIT Principles in Australian courts, their impact on Australian judicial practice has been limited.

VIII CONCLUSION [14.80]  Australia is, if not at the forefront, actively engaged in the development of international economic laws (both hard and soft) and in the implementation of international economic law in Australia. It is an active participant at the governmental and sub-governmental level in the areas of international financial regulation and standards and international trade in both developing and applying standards. It also engages in the process of negotiating and considering the adoption and implementation of major international conventions relating to aspects of international economic law. As a result of this active participation, it can be expected that the role of international economic law in Australia will increase in importance. This rapid growth in international commitments and the resulting laws, regulations, principles, standards and guidelines, however, brings with it a number of potential issues. The first issue is the extent to which Australian governments and businesses participate in international developments in this area. Australia’s willingness to engage in international commercial developments has traditionally been combined with a pragmatic approach directed towards protecting the interests of Australian participants in international trade. This approach will be tested in relation to harmonisation efforts such as the Rotterdam Rules, where the decision whether to participate may require the government to balance the importance of supporting the principle of uniformity against the perceived interests of Australian shippers. 109

110

See Camilla Baasch Andersen, ‘A New Challenge for Commercial Practitioners: Making the Most of Shared Laws and Their “Jurisconsultorium”’ (2015) 38(3) University of New South Wales Law Journal 911 on the global use of the UCP. UNIDROIT, UNIDROIT Principles of International Commercial Contracts 2010 .

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A second issue is presented by the rapid growth in international instruments dealing with aspects of international economic law, resulting from the large number of institutions, both governmental and non-­ governmental, working in this area — occasionally in competition with each other — and the incomplete and sometimes fragmented adoption by members of the international community of the various conventions and standards. The result is a complex, overlapping and often inconsistent collection of rules. In addition, the broad range of initiatives and ongoing negotiations requires the investment of considerable government resources and the active participation of the private sector in engaging in international projects. This leads to a third issue, which is the question of implementation at a domestic level of international economic laws and principles. Australian governments and government agencies show a commitment to the implementation of international standards and rules through regulation. International standards and rules cease to be international, however, if they are not applied in an internationally consistent manner. The purpose of international contract rules is defeated if domestic courts create a separate domestic jurisprudence in relation to the application of the international rules. It is therefore necessary that the businesses, lawyers and courts utilising or interpreting international rules recognise both the international nature of the rules and the importance of referring to and applying international jurisprudence. As discussed above, practice in these areas has been inconsistent. As more cases involving what are essentially rules of international economic law are referred to dispute resolution, however, there will be more need for a truly international perspective from judges and arbitrators.

15 Australia’s Resources Policies and International Law Donald R Rothwell and Susan Reye

I INTRODUCTION [15.10]  As a country that has heavily relied upon its export of resources, Australia has historically had a clear interest in the relationship between international law and resources. Initially, after the Second World War, this relationship may have been limited to a small number of resources. Then, as Australia’s resource capacity expanded and its overseas markets grew, the international law dimensions of Australian resources policy likewise developed — from first having primarily an agricultural focus deeply connected with developments in international trade law and commodity markets, and the role that Australia played in bodies such as United Nations Conference on Trade and Development (‘UNCTAD’), to a 21st century focus on how Australian resources can be successfully exported to multiple overseas markets. An additional policy driver has been to promote the responsible management of resources in order to ensure their sustainability or their peaceful use. There has also been recognition during this time that not only is the export of Australian resources vital for a robust economy, but also some resources are in need of local sustainable management and regulation. How Australia views resources policy and international law has therefore evolved as a broader approach has been taken towards the characterisation of resources, while the mix of policy and national and international legal mechanisms that are used to regulate resources has also changed. This chapter assesses these issues by first providing some context to Australian resources policy and international law. An assessment will then be undertaken of offshore marine living resources, offshore petroleum resources, water resources, and uranium export policy and international law, 365

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followed by some concluding remarks. Particular considerations associated with Australian trade policy and international law, and genetic resources and their management under international environmental law, are dealt with elsewhere in this volume.1

II  CONTEXT OF AUSTRALIAN RESOURCES POLICY AND INTERNATIONAL LAW [15.20]  Australian mining resources policy since the Second World War has focused on developing global markets for a number of key minerals commodities, including bauxite, coal, gold and copper, iron ore, lead and zinc, nickel and uranium. During this period, Australia played a major role in developing and contributing to the relevant international mechanisms associated with the markets for some of these minerals, such as the International Tin Council (which collapsed dramatically in 1985)2 and the International Bauxite Association (from which Australia withdrew in 1992).3 As the role and significance of commodity producer organisations diminished, Australia has in more recent decades sought to utilise bilateral free trade agreements to enhance export markets for these minerals. This now also includes aspects of energy cooperation.4 The international law dimension of Australian resources policy with respect to these minerals has therefore increasingly focused on international trade law, export and regulatory controls regarding sensitive commodities such as uranium, and Australia’s sovereign rights to engage in exploration and exploitation of certain resources in the offshore. A characteristic of Australian policy in this area has been active engagement in relevant multilateral bodies and forums, which has allowed for an Australian perspective to be heard. A contemporary example is Australia’s active engagement in the International Seabed Authority established under the 1982 United Nations Convention on the Law 1 2

3

4

See chapters 13 and 19 respectively. See, eg, Sixth International Tin Agreement, opened for signature 26 June 1981, 1287 UNTS 205 (entered into force 1 July 1982); on Australia’s position on the collapse of the Tin Council, see ‘International Organisations — Liability of Members for Debts of the Organisation — International Tin Council’ (1991) 11 Australian Year Book of International Law 539–42. Agreement Establishing the International Bauxite Association, opened for signature 8 March 1974, 1021 UNTS 175 (entered into force 29 July 1975); for Australian withdrawal, see ‘Australian Membership of International Organisations — Intergovernmental Council of Copper Exporting Countries — International Bauxite Association — Australian Withdrawal’ (1993) 14 Australian Year Book of International Law 596–7. Department of Industry, Innovation and Science, Resources: Bilateral Minerals and Energy Cooperation , listing bilateral minerals and energy cooperation with China, India, Japan, the Republic of Korea, Taiwan and the United States.

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of the Sea (‘LOSC’) for the international management of the deep seabed, being the area of the seabed beyond national jurisdiction.5 In the case of offshore living resources, Australian policy and legislative frameworks are profoundly affected by international law. Rules of international law govern Australia’s rights to exploit marine living resources in offshore areas and, at the same time, impose obligations concerning the conservation and management of those resources and the protection of the environment. As well as setting limits within which Australia’s policy must operate, international law provides a means of giving effect to that policy. Over-exploitation of fish stocks on the high seas and the maritime zones of other countries directly affects Australia’s ability to ensure the sustainability of stocks fished by the domestic industry. Australia also seeks international arrangements to assist in the enforcement of its rights in the vast area of the Australian exclusive economic zone (‘EEZ’). Participation in the creation of, and encouraging the enforcement of, international law rules is therefore an important means by which Australia pursues its resources policies.

III  OFFSHORE MARINE LIVING RESOURCES [15.30]  A coastal state has sovereignty, and therefore the right to exploit the living natural resources, in its internal waters and territorial sea. Beyond the outer limit of the territorial sea, a state’s rights to offshore living resources are governed by the basic rules set out in the LOSC. Under art 56, the coastal state has sovereign rights for the purpose of exploring and exploiting, conserving and managing the living and non-living natural resources of the EEZ.6 Australia therefore has the right to fish in its EEZ and to control fishing there by nationals of other states. These rights are accompanied by obligations. The LOSC imposes on the coastal state obligations to conserve and manage the living resources in the EEZ, and art 61(1) requires the coastal state to determine the allowable catch. Taking into account the best scientific evidence available to it, the coastal state must ensure through proper conservation and management measures that the maintenance of the living resources in the EEZ is not endangered by over-exploitation.7

5

6 7

United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 UNTS 3 (entered into force 16 November 1994) pt XI (‘LOSC’). Australia was elected a member of the Council of the Authority for a four-year term commencing on 1 January 2015. LOSC art 56(1). LOSC art 61(2). For further discussion of the law of the sea regime applicable in this area, see chapters 17 and 18.

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A  Straddling Fish Stocks and Highly Migratory Species [15.40]  A particular concern for international law is the treatment of straddling fish stocks and highly migratory species. Straddling stocks are those that occur within the EEZs of two or more coastal states, or both within an EEZ and in an adjacent area of high seas. Straddling stocks of importance to Australia include orange roughy on the South Tasman Rise off Tasmania,8 and Patagonian toothfish in the area of the sub-Antarctic external territory of Heard Island and the McDonald Islands. Article 63 of the LOSC provides that coastal states in whose EEZs straddling stocks occur and other states that fish those stocks on the high seas must seek, either directly or through appropriate subregional or regional organisations, to agree upon conservation measures. Highly migratory fish stocks are distributed beyond areas of national jurisdiction, though they may spend periods of their life cycles in areas under national jurisdiction and migrate between one or more EEZs and high seas. Annex I to the LOSC contains a list of highly migratory fish stocks — including southern bluefin tuna, which is of particular economic interest to Australia. Where one of the listed highly migratory species occurs in a state’s EEZ, LOSC art 64 requires that state and other states whose nationals fish in the region to cooperate directly or through appropriate international organisations with a view to ensuring conservation and promoting the optimum utilisation of such species throughout the region, both within and beyond the EEZ. In regions for which no appropriate international organisation exists, the coastal state and other states whose nationals harvest these species in the region must cooperate to establish and participate in such an organisation. Within the framework of LOSC arts 63 and 64, the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (‘FSA’)9 was concluded in 1995 to enable the LOSC regime to address fish stocks more comprehensively. The FSA was developed in response to international concern following a rapid increase of unregulated fishing on the high seas, and the damaging effect that overfishing was having on fish stocks and the economic interests of coastal states. 8

9

The Australian Fisheries Management Authority (‘AFMA’) manages orange roughy under the Orange Roughy Rebuilding Strategy 2015, which seeks to rebuild stocks to a sustainable level under the Commonwealth Fisheries Harvest Strategy: Australian Fisheries Management Authority, Orange Roughy . Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, opened for signature 4 December 1995, 2167 UNTS 3 (entered into force 11 December 2001) (‘FSA’).

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The FSA generally applies to the high seas, but sets out in pt II, arts 5, 6 and 7, principles that parties must also apply in areas under their national jurisdiction. General principles in art 5 include: „„ adopting measures to ensure the long-term sustainability of straddling and highly migratory stocks and to promote their optimum utilisation;10 „„ ensuring that measures are based on the best scientific evidence available and are designed to maintain or restore stocks to levels capable of producing maximum sustainable yield;11 „„ applying the precautionary approach;12 „„ preventing overfishing;13 „„ preventing environmental harm and protecting biodiversity, including by adopting measures to preserve species associated with or dependent on the target stocks;14 and „„ monitoring, enforcement and sharing of data.15 Article 7 requires coastal states parties to cooperate with other relevant states to agree on conservation and management measures in respect of highly migratory and straddling fish stocks, so that measures for areas under national jurisdiction will be compatible with those for the high seas.

B  Regional Fisheries Management Organisations [15.50]  Part III of the FSA sets out general principles for the establishment and operation of subregional or regional fisheries management organisations or arrangements (‘RFMOs’).16 Coastal states and states that fish straddling and highly migratory stocks on the high seas must pursue cooperation either directly or through RFMOs.17 Where an RFMO has the competence to establish conservation and management measures for straddling and highly migratory stocks, parties to the FSA must give effect to their duty to cooperate by becoming members of the RFMO or by applying the measures that it establishes.18 Where an RFMO applies conservation and management measures to high seas fishery resources, a party to the FSA does not have access to those resources, and must not authorise vessels flying its flag to fish for them unless it is a member of the RFMO or agrees to apply the measures established by the RFMO.19 10 11 12 13 14 15 16 17 18 19

FSA art 5(a). FSA art 5(b). FSA arts 5(c), 6(1). FSA art 5(h). FSA arts 5(d)–(g). FSA arts 5(j), (l). FSA arts 9–12. FSA art 8(1). FSA art 8(3). FSA arts 8(4), 17.

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Australia is a party to a number of agreements establishing RFMOs. Three of these deal with highly migratory species: „„ the Convention on the Conservation of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean20 applies to nearly all species of highly migratory fish stocks listed in annex I of the LOSC occurring in the convention area, and establishes the Western and Central Pacific Fisheries Commission; „„ the Convention for the Conservation of Southern Bluefin Tuna21 deals with a single species, but applies wherever southern bluefin tuna is fished rather than within fixed geographical boundaries; and „„ the Agreement for the Establishment of the Indian Ocean Tuna Commission22 provides for management by the Commission of tuna and tuna-like species in a defined area of competence in the Indian Ocean and adjacent seas. Australia is also a party to three treaties that establish RFMOs dealing with non-highly migratory species. Since 1982, Australia has been a party to the Convention on the Conservation of Antarctic Marine Living Resources (‘CCAMLR’).23 It applies to all living marine resources, except seals and whales, in the area south of 60oS and to resources in the area between that latitude and the Antarctic Convergence that form part of the Antarctic marine ecosystem. From the point of view of Australia’s fisheries policy, its most significant coverage is of the Patagonian toothfish, Antarctic toothfish and mackerel icefish. The two other agreements entered into force in 2012. The Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean24 establishes the South Pacific Regional Fisheries Management Organisation and provides for management of both highly migratory and non-highly migratory fishery resources in a large area of high seas in the South Pacific Ocean.25 The Southern Indian Ocean Fisheries

20

21

22

23

24

25

Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean, opened for signature 5 September 2000, 2275 UNTS 43 (entered into force 19 June 2004). Convention for the Conservation of Southern Bluefin Tuna, opened for signature 10 May 1993, 1819 UNTS 359 (entered into force 20 May 1994). Agreement for the Establishment of the Indian Ocean Tuna Commission, opened for signature 25 November 1993, 1927 UNTS 329 (entered into force 27 March 1996). Convention on the Conservation of Antarctic Marine Living Resources, opened for signature 20 May 1980, 1329 UNTS 47 (entered into force 7 April 1982) (‘CCAMLR’). Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean, opened for signature 14 November 2009, [2012] ATS 28 (entered into force 24 August 2012). This includes orange roughy, which was important for the Australian fishing industry: National Interest Analysis, Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean — National Interest Analysis [2011] ATNIA 23 [6].

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Agreement26 applies to fishery resources, other than LOSC annex I highly migratory species and certain sedentary species, in a large part of the high seas in the southern Indian Ocean. The agreements establishing RFMOs have a number of common features. They apply, generally, to fishing for particular species in a particular area — though, as noted, the Convention for the Conservation of Southern Bluefin Tuna applies to a single species wherever it is fished, while CCAMLR applies to all marine species (other than seals and whales) in a particular area. Where the treaty establishes a Commission, that body is given the ability to determine conservation and management measures, such as setting a total allowable catch and proscribing particular fishing methods. These determinations are binding on the parties, subject in some cases to a right to object to a measure and not be bound to it. Parties bound by a measure must ensure that vessels flying their flag comply. The more recent agreements — those concluded from 2000 — require records to be kept of the vessels that are authorised to engage in activities in the fishery, give port states rights and obligations to take measures to ensure compliance by the vessels of other parties, and expressly require the Commission to adopt a precautionary approach and an ecosystem-based approach. A distinctive aspect of the Southern Indian Ocean Fisheries Agreement is that, in place of a Commission, a Meeting of Parties is established, which is complemented by Subsidiary Bodies and a Secretariat.27

C  Enforcement Agreements [15.60]  At the time the LOSC was concluded, fishing in those areas of the world’s oceans beyond 200 nautical mile limits was only a small proportion of the global fishing effort. However, by the 1990s, with fish stocks within EEZs becoming fully or over-exploited, and with new technologies allowing greater access to high seas fisheries, there had been a notable increase in the proportion of catch taken on the high seas. Illegal, unreported and unregulated (‘IUU’) fishing on the high seas was creating a particular danger to fish stocks. IUU fishing by foreign vessels in Australia’s vast EEZ was also a major concern. From the late 1990s, Australia’s resources and industry were particularly affected by large, sophisticated illegal operations targeting Patagonian toothfish in the sub-Antarctic, both on the high seas and in Australia’s remote EEZ around Heard Island and the McDonald Islands.28 Australia was one of the states involved in the adoption by the Food and Agriculture Organization of the United Nations (‘FAO’) of the Agreement to 26

27

28

Southern Indian Ocean Fisheries Agreement, opened for signature 29 December 2006, [2012] ATS 21 (entered into force 21 June 2012). Southern Indian Ocean Fisheries Agreement, opened for signature 29 December 2006, [2012] ATS 21 (entered into force 21 June 2012) arts 5, 7, 9. See generally Sam Bateman and Donald R Rothwell (eds), Southern Ocean Fishing: Policy Challenges for Australia (Centre for Maritime Policy, University of Wollongong, 1998).

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Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (‘Compliance Agreement’).29 Adopted in 1993, the agreement entered into force 10 years later. It is an integral part30 of the FAO Code of Conduct for Responsible Fisheries, which is, for the most part, a non-binding instrument setting out principles and international standards to ensure the effective conservation, management and development of living aquatic resources.31 The primary focus of the Compliance Agreement is to require states parties to ensure that fishing vessels entitled to fly their flag do not engage in any activity that undermines the effectiveness of international conservation and management measures on the high seas. There is also provision for port states, with the agreement of the flag state, to investigate suspected breaches of such measures.32 In 2015, Australia ratified the 2009 FAO Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing,33 which upon entry into force will provide states with additional mechanisms to prevent, deter and eliminate IUU fishing by way of port states measures. Australia has also entered into regional and bilateral agreements for cooperative enforcement of fisheries measures that are supported by Australian law and accompanying regulations.34 Within the South Pacific, the 1992 Niue Treaty on Cooperation in Fisheries Surveillance and Law Enforcement in the South Pacific Region (‘Niue Treaty’),35 which was agreed pursuant to the South Pacific Forum Fisheries Agency Convention,36 was at the time of its adoption an innovative response to the challenges of fisheries enforcement within the vast maritime areas of the Southwest Pacific. The Niue Treaty was enhanced in 2012 by a subsequent agreement,37 which seeks to promote fisheries surveillance and law enforcement, and the sharing of fisheries data 29

30 31

32 33

34

35

36

37

Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas, opened for signature 24 November 1993, 2221 UNTS 120 (entered into force 24 April 2003) (‘Compliance Agreement’). Compliance Agreement Preamble. FAO, Code of Conduct for Responsible Fisheries (Rome, 1995); the Compliance Agreement is now a binding element of the FAO Code. FAO, Code of Conduct for Responsible Fisheries (Rome, 1995) art V.2. FAO Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, opened for signature 22 November 2009, [2010] ATNIF 41; ratified by Australia 20 July 2015 (not yet in force). See, eg, Fisheries Management (International Agreements) Regulations 2009 (Cth), made under the Fisheries Management Act 1991 (Cth) s 168. Niue Treaty on Cooperation in Fisheries Surveillance and Law Enforcement in the South Pacific Region, opened for signature 9 July 1992, [1993] ATS 31 (entered into force 20 May 1993) (‘Niue Treaty’). South Pacific Forum Fisheries Agency Convention, opened for signature 10 July 1979, [1979] ATS 16 (entered into force 9 August 1979). Agreement on Strengthening Implementation of the Niue Treaty on Cooperation in Fisheries Surveillance and Law Enforcement in the South Pacific, opened for signature 2 November 2012, [2014] ATNIF 25 (not yet in force).

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and intelligence.38 In response to IUU fishing in the Southern Ocean, particularly for Patagonian toothfish, Australia and France concluded bilateral agreements39 creating a framework for cooperation to enforce their fisheries laws in the territorial seas and the EEZs around the parties’ sub-Antarctic island territories.

D  Australian Fisheries Law and Policy [15.70]  In 1979, Australia40 established a 200 nautical mile Australian Fishing Zone (‘AFZ’) and required all fisheries activities in that zone to be licensed under Australian law.41 The Fisheries Management Act 1991 (Cth) applies within the AFZ, which, generally speaking, comprises waters between the old three nautical mile territorial sea boundary and the outer limits of the EEZ,42 while state and territory law operates within the three nautical mile limit. However, ss 71 and 72 of the Fisheries Management Act allow the Commonwealth and one or more states to enter into arrangements in relation to the management of a particular fishery. Arrangements can provide for joint management of the fishery, for a fishery in the AFZ to be subject to state law rather than the Fisheries Management Act, or for a fishery in ‘state waters’ to be managed under Commonwealth law. A considerable number of such arrangements have been made. Sections 71(5) and 72(2) of the Fisheries Management Act provide that if, under an arrangement, a fishery, or part of a fishery, is to be managed in accordance with the law of the state, the arrangement may, if required by the Commonwealth, provide for the giving of effect to Australia’s obligations under international law, including international agreements. These provisions were intended to act as a ‘trigger’ to ensure that the Commonwealth took Australia’s international obligations into account when entering into arrangements, since those obligations apply just as much to fisheries

38

39

40

41 42

See analysis in Camille Goodman, ‘“Strength through Cooperation”: A 21st Century Treaty for Multilateral Maritime Enforcement in the Pacific’ (2013) 31 Australian Year Book of International Law 11–39. Treaty between the Government of Australia and the Government of the French Republic on Cooperation in the Maritime Areas Adjacent to the French Southern and Antarctic Territories (TAAF), Heard Island and the McDonald Islands, signed 24 November 2003, 2438 UNTS 253 (entered into force 1 February 2005); Agreement on Cooperative Enforcement of Fisheries Laws between the Government of Australia and the Government of the French Republic in the Maritime Areas Adjacent to the French Southern and Antarctic Territories, Heard Island and the McDonald Islands, signed 8 January 2007, [2011] ATS 1 (entered into force 7 January 2011). For a discussion of Australian fisheries law and policy, see generally Rachel Baird, ‘Fisheries Management’ in Rachel Baird and Donald R Rothwell (eds), Australian Coastal and Marine Law (Federation Press, 2011) 122, 133–50. Fisheries Amendment Act 1978 (Cth). Fisheries Management Act 1991 (Cth) s 4.

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under state management as to those under Commonwealth management.43 In addition, even where an arrangement provides that a particular fishery is to be managed in accordance with the law of a state, the Fisheries Management Act continues to apply to fishing by foreign boats in that fishery.44 However, foreign boats can only operate within state or Commonwealth waters if they have been declared by the Australian Fisheries Management Authority (‘AFMA’) to be an ‘Australian boat’, or have been reflagged consistently with the provisions of the Shipping Registration Act 1981 (Cth),45 or where the foreign boat is operating under an AFMA-issued foreign fishing licence.46 The Fisheries Management Act also applies beyond the AFZ in some respects, particularly for the purposes of ensuring compliance with international agreements. To implement the FSA, and give effect to measures determined by RFMOs, the Fisheries Management Act prohibits unauthorised or illegal fishing by Australian flagged fishing vessels and Australian nationals in areas outside the AFZ.47 It prohibits foreign fishing vessels contravening international fisheries management measures (such as those determined by RFMOs), but prosecution of a foreign national requires the consent of the Attorney-General following consultation with the flag state.48 Certain aspects of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) can also apply to the management of fisheries under the Fisheries Management Act.49 As well as the usual enforcement powers within the AFZ, the Fisheries Management Act confers on AFMA officers powers to act beyond the limits of the EEZ. These include boarding and inspection of boats without nationality on the high seas.50 AFMA officers also have enforcement powers in relation to foreign flagged fishing vessels on the high seas or in the maritime zones or territory of another state, where this has been authorised by the flag state under an international agreement.51 The Fisheries Management Act provides the legislative basis for management of fisheries by AFMA, which was established by the Fisheries Administration Act 1991 (Cth). AFMA is required to pursue particular objectives, including among others: 43

44 45

46 47 48 49 50 51

Explanatory Memorandum, Fisheries Legislation Amendment (Cooperative Fisheries Management Arrangements and Other Matters) Bill 2005 (Cth) [2.8]. Fisheries Management Act 1991 (Cth) s 77. Fisheries Management Act 1991 (Cth) ss 4(1), 4(2); see AFMA, Declaring a Foreign Boat to Be an Australian Boat . Fisheries Management Act 1991 (Cth) s 34. Fisheries Management Act 1991 (Cth) ss 105A–105EB, 105F, 105FA. Fisheries Management Act 1991 (Cth) ss 105E–105EB, 105H–105J. Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 6. Fisheries Management Act 1991 (Cth) s 87H. Fisheries Management Act 1991 (Cth) s 87HA.

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„„ ensuring that the exploitation of fisheries resources and the carrying on of any related activities are conducted in a manner consistent with the principles of ecologically sustainable development52 (which include the exercise of the precautionary principle), in particular the need to have regard to the impact of fishing activities on non-target species and the long-term sustainability of the marine environment; „„ ensuring that the exploitation in the AFZ and the high seas of fish stocks in relation to which Australia has obligations under international agreements and related activities is carried on consistently with those obligations; „„ ensuring that fishing activities by Australian flagged boats on the high seas are carried on consistently with international obligations, including under the Compliance Agreement; and „„ maximising the net economic returns to the Australian community.53 These objectives guide the development by AFMA of plans of management for Commonwealth fisheries under s 17 of the Fisheries Management Act. Generally, AFMA carries out its statutory role independently of the government; however, s 91 of the Fisheries Administration Act gives the Minister power to give directions to AFMA, if satisfied that because of the existence of exceptional circumstances it is necessary to give the direction in order to ensure that AFMA’s performance of its functions does not conflict with major government policies. In December 2005, at a time when many fish stocks were under threat of overfishing, the Minister used this power to bring about a major change in Commonwealth fisheries management.54 The direction stated: AFMA must take a more strategic, science-based approach to setting total allowable catch and/or effort levels in Commonwealth fisheries, consistent with a world’s best practice Commonwealth Harvest Strategy Policy that has the objectives of managing fish stocks sustainably and profitably, putting an end to overfishing, and ensuring that currently overfished stocks are rebuilt within reasonable timeframes … Referring specifically to the FSA, as well as to scientific advice, the direction set out the initial settings for what became the 2007 Commonwealth Fisheries Harvest Strategy Policy.55 Alternative harvest strategies could be developed in specific cases, but must achieve the objective of avoiding overfishing and avoiding overfished stocks with at least 80 per cent probability. Where lack of knowledge about a fish stock precluded decision-making with this level of 52

53 54 55

The Fisheries Administration Act 1991 (Cth) s 6A defines what is meant by ‘principles of ecologically sustainable development’. Fisheries Administration Act 1991 (Cth) s 6. Commonwealth, Gazette, No S 234, 20 December 2005. Department of Agriculture, Fisheries and Forestry, Commonwealth Fisheries Harvest Strategy: Policy and Guidelines (September 2007).

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certainty, the direction stated that decisions should reflect the application of the precautionary principle. The direction noted that: … for internationally-managed fisheries to which Australia is a party (such as the Southern Bluefin Tuna Fishery and the Heard Island and McDonald Islands Fishery) the relevant international agreement will prevail where it includes an acceptable scientific process for setting sustainable catch levels. In such fora, Australia will advocate its domestic policy settings as an example of best practice. At the same time as the direction was given, government assistance was provided to encourage fishers to leave the industry by way of a $149 million fishing concession buyback.56 In 2012–13, a review was undertaken of the Commonwealth Fisheries Harvest Strategy Policy and the accompanying Guidelines, which concluded: The harvest strategy is widely regarded as having been a very successful initiative for improving the management of Commonwealth fisheries. The policy and guidelines meet or exceed the standards of relevant international obligations and continue to represent world’s best practice in most respects.57 Australia has also adopted polices with respect to the reduction of bycatch. These policies have now been complemented by the 2011 FAO Guidelines on Bycatch Management and Reduction of Discards.58 A Commonwealth Policy on Fisheries Bycatch that was released in 2000, and reviewed in 2013, seeks to promote ecologically sustainable fisheries.59

E  Special Areas Exempted from the Australian Fishing Zone [15.80]  Under s 11 of the Fisheries Management Act, waters can be declared to be ‘excepted waters’ and so excluded from the AFZ, and this has occurred in relation to certain areas where there are particular obligations under inter­ national law. Article 10 of the Treaty between Australia and the Independent State of Papua New Guinea Concerning Sovereignty and Maritime Boundaries in the Area between the Two Countries, Including the Area Known as Torres Strait, and Related Matters (‘Torres Strait Treaty’)60 establishes a protected zone including 56

57

58 59

60

See Simon Vieira et al, Impact of the Structural Adjustment Package on the Profitability of Commonwealth Fisheries (ABARE Research Report 10.01, February 2010). Department of Agriculture, Fisheries and Forestry, Final Report of the Review of the Commonwealth Fisheries Harvest Strategy Policy and Guidelines (May 2013) 7. FAO, Guidelines on Bycatch Management and Reduction of Discards (2011). See generally Department of Agriculture and Water Resources, Fisheries Bycatch . Treaty between Australia and the Independent State of Papua New Guinea Concerning Sovereignty and Maritime Boundaries in the Area between the Two Countries, Including the Area Known as Torres Strait, and Related Matters, opened for signature 18 December 1978, [1985] ATS 5 (entered into force 15 February 1985) (‘Torres Strait Treaty’).

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waters of both states. The purpose is to protect the traditional way of life and livelihood of the traditional inhabitants, including their traditional fishing, as well as protect the marine environment and indigenous fauna and flora. The Torres Strait Treaty also provides for cooperative management of commercial fisheries in the protected zone by Australia and Papua New Guinea.61 The Torres Strait Fisheries Act 1984 (Cth) applies a specific fisheries regime to the Australian areas within the protected zone, which has been proclaimed as ‘excepted waters’ and so excluded from the AFZ.62 The Australian Antarctic Territory has also been excluded from the AFZ. Fishing in those waters is subject to the Antarctic Marine Living Resources Conservation Act 1981 (Cth), which gives effect to Australia’s obligations under CCAMLR.

IV  OFFSHORE PETROLEUM RESOURCES [15.90]  Australia has since the end of the Second World War taken an increasingly assertive position with respect to the management of its offshore seabed resources consistent with its entitlements under the law of the sea and particularly under the regime of the continental shelf. To that end, Australia was an active participant in debates at both the First and Third United Nations Conferences on the Law of the Sea — both of which not only recognised coastal state entitlements to the continental shelf, including sovereign rights over the resources of the shelf, but also extended those sovereign rights to a minimum entitlement of 200 nautical miles from the territorial sea baselines.63 Through the framework of the LOSC, Australia has under art 76 now proclaimed a continental shelf beyond 200 nautical miles consistent with the recommendations that it received from the Commission on the Limits of the Continental Shelf.64 Consistent with Australia’s offshore legislative regime, the Seas and Submerged Lands Act 1973 (Cth) provides for the continental shelf, which in turn is subject to the general mechanisms associated with the offshore constitutional settlement.65 61 62

63

64

65

Torres Strait Treaty pt 5. Fisheries Management (Excepted Waters) Proclamation 2011 under the Fisheries Management Act 1991 (Cth) s 11. For a discussion of Australia’s position in these debates, see Sir Kenneth Bailey, ‘Australia and the Geneva Convention on the Law of the Sea’ in D P O’Connell (ed), International Law in Australia (Law Book Co, 1965) 228; Michael Landale and Henry Burmester, ‘Australia and the Law of the Sea — Offshore Jurisdiction’ in K W Ryan (ed), International Law in Australia (Law Book Co, 2nd ed, 1984) 390. Seas and Submerged Lands (Limits of Continental Shelf) Proclamation 2012 (Cth) (Federal Register of Legislative Instruments F2012L01081); see generally Tim Stephens, ‘The Continental Shelf’ in Rachel Baird and Donald R Rothwell (eds), Australian Coastal and Marine Law (Federation Press, 2011) 151–77. Seas and Submerged Lands Act 1973 (Cth) ss 11–13; see also the discussion in Tim Stephens, ‘The Continental Shelf’ in Rachel Baird and Donald R Rothwell (eds), Australian Coastal and Marine Law (Federation Press, 2011) 151, 163–4.

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Offshore petroleum resources in the Australian continental shelf are managed under the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth), which establishes a regulatory framework under Australian law for petroleum exploration and recovery in the offshore — which, for the purposes of the Act, encompasses an area that is three nautical miles from the territorial sea baseline extending to the outer limits of the continental shelf.66 The Act encompasses ‘natural resources’ as defined in art 77(4) of the LOSC, therefore including both living and non-living resources.67 The Act also extensively defines ‘petroleum’ so as to include naturally occurring hydrocarbons, whether in a gaseous, liquid or solid state, and any mixture of those hydrocarbons, including with hydrogen sulphide, helium and carbon dioxide.68 The Act provides for the grant of a variety of petroleum permits, leases and licences, with administration undertaken consistently with the offshore constitutional settlement shared between Commonwealth and state authorities.69 Consistent with international law, Australia also has in place some distinctive arrangements with respect to its continental shelf and seabed. Under the terms of the Torres Strait Treaty, which provides for a seabed boundary between Australia and Papua New Guinea in the Torres Strait, provision was originally made for a 10-year moratorium on mining and drilling of the seabed or subsoil.70 That moratorium was subsequently extended for consecutive 10-year periods until 2008, when it was jointly announced that the moratorium would be for an indefinite period.71 Australia also has in place a mining moratorium on the continental shelf of the Australian Antarctic Territory and the continental shelves of Heard Island and the McDonald Islands that extend south of 60oS,72 which also extends generally to all Australian nationals in Antarctica — including by implication the seabed up to 60oS.73 These limitations on continental shelf mining generally seek to give effect to Australia’s obligations under the 1991 Protocol on Environmental Protection to the Antarctic Treaty, which under art 7 places a prohibition on any ‘activity relating to mineral resources’.74 66

67 68 69

70 71

72 73 74

Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) s 4. The ‘continental shelf’ has the meaning given to it under the Seas and Submerged Lands Act 1973 (Cth) s 3. Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) s 7. Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) s 7. Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) s 4; see generally the discussion in Tina Hunter and John Chandler, Petroleum Law and Policy in Australia (LexisNexis, 2013) chs 4, 5. Torres Strait Treaty art 15. ‘Maritime Arrangements — Extension of the Mining Moratorium in the Torres Strait’ (2010) 29 Australian Year Book of International Law 317. Antarctic Treaty (Environment Protection) Act 1980 (Cth) s 19A. Antarctic Treaty (Environment Protection) Act 1980 (Cth) s 19B. Protocol on Environmental Protection to the Antarctic Treaty of 1 December 1959, opened for signature 4 October 1991, [1998] ATS 6 (entered into force 14 January 1998).

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Australia’s maritime boundary arrangements with Timor-Leste in the Timor Sea are also subject to joint development within a designated joint petroleum development area (‘JPDA’),75 under which Australia receives a 10 per cent share of the petroleum produced within the area with the remainder going to Timor-Leste.76 Associated mechanisms for revenue sharing between Australia and Timor-Leste in areas of seabed adjacent to the JPDA are also provided for under two later agreements.77

V  WATER RESOURCES [15.100]  Water has historically been understood as a scarce resource in Australia, and its significance for sustaining the Australian population and agricultural activities is appreciated.78 Australia, nevertheless, has not been a major participant in international legal instruments with respect to rivers and water more generally because there is no transboundary dimension for Australia.79 Accordingly, the adoption of the Water Act 2007 (Cth) was a landmark in not only Australian water law, but also Australian resources law with respect to international law.80 This is highlighted by the reference in s 4 of the Water Act to eight named ‘relevant international agreements’, making clear that one of the constitutional foundations of the Act is reliance upon s 51(xxix) of the Constitution and the treaties power. Reflecting the groundbreaking nature of the Water Act, s 9 seeks to identify its constitutional basis, indicating that the Act relies upon ss 51(i), (v), (viii), (xi), (xv), (xx), (xxix) and (xxxix) and s 122 of the Constitution, in addition to implied legislative powers of the Commonwealth. The Act was principally drafted with the intention of managing and regulating the Murray–Darling Basin, and refers to a Murray–Darling Basin 75

76

77

78

79

80

Timor Sea Treaty between the Government of East Timor and the Government of Australia, opened for signature 20 May 2002, [2003] ATS 13 (entered into force 2 April 2003). Timor Sea Treaty between the Government of East Timor and the Government of Australia, opened for signature 20 May 2002, [2003] ATS 13 (entered into force 2 April 2003) art 4. See Agreement between the Government of Australia and the Government of the Democratic Republic of Timor-Leste Relating to the Unitisation of the Sunrise and Troubadour Fields, opened for signature 6 March 2003, [2007] ATS 11 (entered into force 23 February 2007); Treaty between Australia and the Democratic Republic of Timor-Leste on Certain Maritime Arrangements in the Timor Sea, opened for signature 12 January 2006, [2007] ATS 12 (entered into force 23 February 2007). Aspects of the analysis in this section are drawn from Donald R Rothwell, ‘International Law and the Murray–Darling Basin Plan’ (2012) 29 Environmental and Planning Law Journal 268–80. Cf Australia’s interests in desertification as a result of serious drought and the United Nations Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/ or Desertification, Particularly in Africa, opened for signature 17 June 1994, 1954 UNTS 3 (entered into force 26 December 1996). For more detailed background on Australian water law, see Alex Gardner, Richard Bartlett and Janice Gray, Water Resources Law (LexisNexis, 2009).

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Agreement81 and an associated Murray–Darling Basin Plan.82 Part 2 of the Act identifies the purpose, basis and content of the Basin Plan, with s 20 generally stating that the Basin Plan is to ‘provide for the integrated management of the Basin water resources in a way that promotes the objective’ of the Act. Particular provision is then made for the Basin Plan to provide for integrated management of Basin water resources by promoting the objects of the Act through giving effect to seven criteria, one of which includes ‘relevant international agreements’ (‘RIAs’).83 The Water Act then proceeds to list eight RIAs,84 which are directly referred to throughout the Act. The RIAs are the: „„ 1971 Convention on Wetlands of International Importance Especially as Waterfowl Habitat (‘Ramsar Convention’);85 „„ 1992 Convention on Biological Diversity (‘Biodiversity Convention’);86 „„ 1994 United Nations Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa;87 „„ 1979 Convention on the Conservation of Migratory Species of Wild Animals (‘Bonn Convention’);88 „„ 1986 Agreement between the Government of Australia and the Government of the People’s Republic of China for the Protection of Migratory Birds and Their Environment (‘CAMBA’);89 „„ 1974 Agreement between the Government of Australia and the Government of Japan for the Protection of Migratory Birds in Danger of Extinction and Their Environment (‘JAMBA’); 90 81 82 83

84 85

86

87

88

89

90

Water Act 2007 (Cth) pt 1A. Water Act 2007 (Cth) pt 2. Water Act 2007 (Cth) s 20(a); other factors to be taken into account include environmentally sustainable limits on surface and ground water; water-dependent ecosystems; use of Basin water to optimise economic, environmental and social outcomes; development of an efficient water trading regime across the Basin; accreditation of a water resource plan; and improved water security. Water Act 2007 (Cth) s 4. Convention on Wetlands of International Importance Especially as Waterfowl Habitat, opened for signature 2 February 1971, 996 UNTS 245 (entered into force 21 December 1975) (‘Ramsar Convention’). Convention on Biological Diversity, opened for signature 5 June 1992, 1760 UNTS 79 (entered into force 29 December 1993) (‘Biodiversity Convention’). United Nations Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa, opened for signature 24 October 1994, 1954 UNTS 3 (entered into force 26 December 1996). Convention on the Conservation of Migratory Species of Wild Animals, opened for signature 23 June 1979, 1651 UNTS 333 (entered into force 1 November 1983) (‘Bonn Convention’). Agreement between the Government of Australia and the Government of the People’s Republic of China for the Protection of Migratory Birds and Their Environment, opened for signature 20 October 1986, [1988] ATS 22 (entered into force 1 September 1988) (‘CAMBA’). Agreement between the Government of Australia and the Government of Japan for the Protection of Migratory Birds in Danger of Extinction and Their Environment, opened for signature 6 February 1974, [1981] ATS 6 (entered into force 30 April 1981) (‘JAMBA’).

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„„ 2006 Agreement between the Government of Australia and the Government of the Republic of Korea on the Protection of Migratory Birds (‘ROKAMBA’);91 and „„ 1992 United Nations Framework Convention on Climate Change (‘Climate Change Convention’).92 Additionally, provision is also made for other unnamed conventions to which Australia is a party that are relevant to the use and management of Basin water resources, and which have been prescribed under the regulations for that purpose.93 Such a convention could include the 1972 World Heritage Convention,94 which may have potential application on the basis of existing or future World Heritage sites located within the Murray–Darling Basin, or future treaties to which Australia may become a party.95 The Water Act outlines in s 21 the general basis upon which the Basin Plan is to be developed, and further direct references are made to RIAs and in some instances relevant provisions are precisely identified. Here, the language of s 21(1) merits emphasis. It states: The Basin Plan … must be prepared so as to provide for giving effect to relevant international agreements (to the extent to which those agreements are relevant to the use and management of Basin water resources). In addition, the conservation and sustainable use of biodiversity is directly referred to in s 21(2),96 in which arts 7 and 8 of the Biodiversity Convention are noted. The Water Act also provides that the Basin Plan must promote the conservation of declared Ramsar wetlands.97 These are wetlands that have been declared under the Ramsar Convention and included on a ‘List of Wetlands of International Importance’.98 91

92

93 94

95

96 97 98

Agreement between the Government of Australia and the Government of the Republic of Korea on the Protection of Migratory Birds, opened for signature 6 December 2006, [2007] ATS 24 (entered into force 13 July 2007) (‘ROKAMBA’). United Nations Framework Convention on Climate Change, opened for signature 9 May 1992, 1771 UNTS 107 (entered into force 21 March 1994) (‘Climate Change Convention’). Water Act 2007 (Cth) s 4. Convention for the Protection of the World Cultural and Natural Heritage, opened for signature 23 November 1972, 151 UNTS 1037 (entered into force 17 December 1975). In this respect, there is some ambiguity in the use of the distinctive terms ‘international agreement’, ‘relevant international agreement’ and ‘international convention’ in the Water Act 2007 (Cth) s 4, especially with respect to how the term ‘international convention’ may or may not be applicable to a future bilateral instrument similar to CAMBA that is referred to as an ‘Agreement’. Water Act 2007 (Cth) s 21(2). Water Act 2007 (Cth) s 21(3). Ramsar Convention arts 2, 3. As at 2016, a total of 16 Murray–Darling Basin wetlands have been placed on the Ramsar Convention list. For full details on Australia’s Ramsar wetlands, see Department of Environment, Australian Ramsar Wetlands .

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With respect to the Basin Plan, it too adopts the language of the Water Act and includes direct reference throughout to RIAs, and in some cases specific international agreements. Embedded within the ch 5 management objectives and outcomes for the Plan are that Basin water resources are used in a way that gives effect to RIAs.99 In the case of the ch 8 ‘Environmental watering plan’ provisions, a clearly stated objective is to protect and restore a subset of all water-dependent ecosystems of the Murray–Darling Basin.100 Here, direct reference is made to the impact of certain international agreements, including ensuring that: „„ declared Ramsar wetlands that depend upon Murray–Darling Basin water resources maintain their ecological character; and „„ water-dependent ecosystems that depend upon Basin water resources and support the life cycles of species listed under the Bonn Convention, CAMBA, JAMBA or ROKAMBA continue to support those species.101 Further in ch 8, long-term watering plans are not to be inconsistent with RIAs.102 Likewise, with respect to ch 8 and the principles to be applied in environmental watering, Principle 9 makes clear that ‘Environmental watering should be undertaken in a way that is not inconsistent with relevant international agreements’.103 The Basin Plan also makes reference throughout to Ramsar wetlands, as ‘environmental assets’ or clearly identifiable localities capable of identifiable protection and which can be taken into account in water allocation, or for the purposes of water quality targets.104 International law plays a central role for the Water Act and the accompanying Basin Plan, in terms of providing both a constitutional basis for parts of the Water Act and a framework set of mechanisms for giving effect to Australia’s obligations under those treaties. While doubts have been expressed over the capacity of the Water Act and the Basin Plan to properly give effect to Australia’s obligations under both the Biodiversity Convention and the Ramsar

99

100 101

102

103 104

Water Act 2007 (Cth); Basin Plan (Federal Register of Legislative Instruments F2012L02240) 5.02 (‘Basin Plan’). Basin Plan [8.04]. Basin Plan [8.05]. The identification of these areas is further supported in the Basin Plan sch 8, ‘Criteria for identifying an environmental asset’, in which the assessment criteria is a water-dependent ecosystem that requires environmental watering and is either a declared Ramsar wetland, or with environmental watering capable of supporting a species listed under CAMBA, JAMBA, ROKAMBA or the Bonn Convention. Basin Plan [8.20(5)]; an accompanying note states: ‘A purpose of the Basin Plan, including Chapter 8, is to give effect to relevant international agreements … This provision is a further check to ensure that this purpose is achieved.’ Basin Plan [8.41]. See, eg, Basin Plan [8.49].

Ch 15: AUSTRALIA’S RESOURCES POLICIES AND INTERNATIONAL LAW   383

Convention,105 both instruments remain relatively new initiatives in Australian water resources policy and in 2016 were the subject of a major review.

VI  URANIUM EXPORT POLICY AND INTERNATIONAL LAW [15.110]  Australia is one of the largest producers and exporters of uranium globally,106 and Australia’s uranium resources policy has sought to balance a commitment to nuclear disarmament and the peaceful use of nuclear material with support for the uranium mining industry. To that end, Australia’s uranium export policy has been framed around the need to ensure that uranium will only be exported to states for ‘peaceful non-explosive purposes’; that Australia retains the right to be selective as to the countries with which it is prepared to conclude safeguards agreements for the export of Australian uranium; and that Australia has certain expectations with respect to the exportation of uranium to non-nuclear weapon states that are party to the 1968 Treaty on the Non-Proliferation of Nuclear Weapons (‘NPT’),107 and to nuclear weapon states.108 Australia’s international policy and legal framework in this regard revolve around its NPT commitments and engagement with the International Atomic Energy Agency (‘IAEA’)109 and associated nuclear safeguards mechanisms.110 As of 2016, Australia had 23 bilateral nuclear cooperation agreements in force covering 41 states. Some of these agreements relate only to nuclear cooperation, while others directly deal with the transfer of nuclear material.111 105

106

107

108

109

110

111

Emma Carmody, ‘The Silence of the Plan: Will the Convention on Biological Diversity and the Ramsar Convention Be Implemented in the Murray–Darling Basin?’ (2013) 30 Environmental and Planning Law Journal 56–73. Australian Safeguards and Non-Proliferation Office, Australia’s Uranium Production and Exports . In 2014–15, Australia exported 5515 tonnes of uranium oxide valued at $532 million. Treaty on the Non-Proliferation of Nuclear Weapons, opened for signature 1 July 1968, 729 UNTS 161 (entered into force 5 March 1970) (‘NPT’). Department of Foreign Affairs and Trade, Australia’s Uranium Export Policy . See Statute of the International Atomic Energy Agency, opened for signature 26 October 1956, 276 UNTS 3 (entered into force 29 July 1957). See, eg, Protocol Additional to the Agreement between Australia and the International Atomic Energy Agency for the Application of Safeguards in Connection with the Treaty on the Non-Proliferation of Nuclear Weapons of 1 July 1968, opened for signature 23 September 1997, [1997] ATS 28 (entered into force 12 December 1997). Department of Foreign Affairs and Trade, Policies, Agreements and Treaties: Australia’s Network of Nuclear Cooperation Agreements .

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In this respect, it is notable that Australia has been very proactive in this field since 2000, having 13 agreements enter into force during that time with a range of state partners, including India,112 the Russian Federation113 and the United States.114 In 2006, Australia concluded two prominent nuclear agreements with China, being: „„ the Agreement between the Government of Australia and the Government of the People’s Republic of China on the Transfer of Nuclear Material;115 and „„ the related Agreement between the Government of Australia and the Government of the People’s Republic of China for Cooperation on the Peaceful Uses of Nuclear Energy.116 Two agreements were concluded rather than the standard single agreement due to internal Chinese policies in the field. In the case of Russia, the 2007 Agreement between the Government of Australia and the Government of the Russian Federation on Cooperation in the Use of Nuclear Energy for Peaceful Purposes, which entered into force in 2010, is something of a model for recent Australian treaty action allowing for the transfer of nuclear material, including uranium.117 The agreement facilitates the transfer of nuclear material, equipment, components and technology with a focus upon the encouragement and facilitation of cooperation ‘in the peaceful uses of nuclear energy’.118 Key aspects of the agreement include: „„ a joint commitment to the use of nuclear energy for peaceful purposes and furthering the objective of non-proliferation of nuclear weapons;119 112

113

114

115

116

117

118 119

Agreement between the Government of Australia and the Government of India on Cooperation in the Peaceful Uses of Nuclear Energy, opened for signature 5 September 2014, [2015] ATS 9 (entered into force 13 November 2015). Agreement between the Government of Australia and the Government of the Russian Federation on Cooperation in the Use of Nuclear Energy for Peaceful Purposes, opened for signature 7 September 2007, [2010] ATS 22 (entered into force 11 November 2010) (‘Australia– Russia Nuclear Cooperation Agreement’) Agreement between the Government of Australia and the Government of the United States of America Concerning Peaceful Uses of Nuclear Energy, opened for signature 4 May 2010, [2010] ATS 25 (entered into force 22 December 2010). Agreement between the Government of Australia and the Government of the People’s Republic of China on the Transfer of Nuclear Material, opened for signature 3 April 2006, [2007] ATS 3 (entered into force 3 February 2007). Agreement between the Government of Australia and the Government of the People’s Republic of China for Cooperation in the Peaceful Uses of Nuclear Energy, opened for signature 3 April 2006, [2007] ATS 4 (entered into force 3 February 2007). Australia–Russia Nuclear Cooperation Agreement art I defines ‘nuclear material’ to include any ‘source material’ or ‘special fissionable material’ as those terms are defined in the Statute of the International Atomic Energy Agency, which extends to plutonium and uranium. Australia–Russia Nuclear Cooperation Agreement art II. Australia–Russia Nuclear Cooperation Agreement Preamble.

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„„ extension of the agreement to cover all transferred nuclear material until such time as it is no longer usable for any nuclear activity, or is practically irrecoverable, or has been transferred beyond either Russia and Australia in accordance with the terms of the agreement;120 „„ nuclear material is to be used only for peaceful purposes and not in the manufacture of nuclear weapons or explosive devices, or for any military purpose;121 „„ nuclear material subject to the agreement shall not be transferred beyond the territory of a receiving state without prior written consent;122 „„ nuclear material in Russia shall only be processed, used or stored at facilities that are identified in the Eligible Facilities List;123 and „„ each party is to take measures to ensure adequate physical protection of nuclear material.124 Australian policy relating to the sale of Australian uranium has placed particular importance on the existence of a nuclear safeguards regime. In 2006, Foreign Minister Alexander Downer reasserted Australia’s position on these matters following signature of the nuclear agreements with China. He observed: These agreements establish strict safeguards arrangements and conditions to ensure Australian uranium supplied to China, and any collaborative programs in applications of nuclear technology, is used exclusively for peaceful purposes. These agreements are consistent with Australia’s long term policy of applying safeguards and restrictions on uranium exports.125 The status of India under the NPT and its obligations under associated safeguards agreements were issues for Australia when it commenced negotiations with India for the sale of Australian uranium. The issues were highlighted in 2006, when the then Minister representing the Foreign Minister in the Senate gave the following answer in response to a question regarding Australian uranium policy and non-NPT states: Australia has a longstanding policy of only selling uranium to countries that are party to the NPT and with whom Australia has a safeguards agreement. In April 2005 Mr Downer announced that the Additional Protocol on strengthened IAEA safeguards would be made an additional condition for supply of Australian uranium. India is not an NPT party, nor does Australia have a safeguards agreement with it, nor has it yet signed an Additional Protocol.126 120 121 122 123 124 125 126

Australia–Russia Nuclear Cooperation Agreement art VI. Australia–Russia Nuclear Cooperation Agreement art VII. Australia–Russia Nuclear Cooperation Agreement art X. Australia–Russia Nuclear Cooperation Agreement art XI. Australia–Russia Nuclear Cooperation Agreement art XIII. ‘Nuclear Power — China’ (2008) 27 Australian Year Book of International Law 441. ‘Nuclear Power — India’ (2008) 27 Australian Year Book of International Law 443.

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Notwithstanding this position, Australia announced in 2007 that it had decided to allow the export of uranium to India. In making the announcement, Prime Minister John Howard indicated that the sale of uranium would be conditional upon a number of matters, including the conclusion of a suitable safeguards agreement between India and the IAEA, and an Australia–India safeguards agreement.127 The 2014 Australia–India Nuclear Cooperation Agreement128 accordingly directly raised a series of significant policy challenges for Australia, given that India was at that time and remains outside of the NPT framework, which in turn created issues for the finalisation of related safeguards agreements under IAEA frameworks. For Australia, a critical development was the 2008 decision of the Nuclear Supplier Group to allow the supply of nuclear material, including uranium, to a state not party to the NPT.129 This paved the way for Australia to negotiate the 2014 agreement, of which the accompanying National Interest Analysis observed that: The provisions of the proposed Agreement would implement Australia’s policies for the safeguarding and accountability of supplied nuclear materials for the case of India, including consistency with Australia’s international obligations. The international framework … within which Australia and India have negotiated the proposed Agreement, is unique to India, as is the IAEA safeguards model for India …130

VII  CONCLUDING REMARKS [15.120]  Australian resources policy and international law have undergone a significant transformation in recent decades. Australia has placed considerable emphasis on international trade liberalisation, including bilateral free trade agreements, to promote the sale of Australian resources into foreign markets. Australia has also had to adjust its resource policy outlook, particularly with respect to Australia’s maritime domain where Australia has acquired sovereign rights over a vast continental shelf and EEZ. This has given to Australia particular rights and also obligations over the marine living resources of the EEZ. However, technological improvements, 127

128

129

130

‘Nuclear Non-Proliferation — Nuclear Safeguards — India’ (2009) 28 Australian Year Book of International Law 399. Agreement between the Government of Australia and the Government of India on Cooperation in the Peaceful Uses of Nuclear Energy, opened for signature 5 September 2014, [2015] ATS 9 (entered into force 13 November 2015). Agreement between the Government of Australia and the Government of India on Cooperation in the Peaceful Uses of Nuclear Energy — National Interest Analysis [2014] ATNIA 22 [10]. Agreement between the Government of Australia and the Government of India on Cooperation in the Peaceful Uses of Nuclear Energy — National Interest Analysis [2014] ATNIA 22 [14].

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combined with shrinking fish stocks in EEZs, may continue to see increased fishing activity on the high seas, with a corresponding shift in the focus of international management efforts. This will create particular challenges in ensuring that all relevant states, including Australia, participate in that cooperative effort, and in providing effective enforcement of the rules that are adopted. Enforcement is also a critical issue associated with the sale of Australian uranium to both nuclear and non-nuclear weapon states. Given Australia’s longstanding position with respect to nuclear non-proliferation and the political controversy that has been attached to Australian nuclear policy in the past, Australia will carefully monitor the suite of agreements that are now in place for the sale of Australian uranium. International law will therefore continue to play a pivotal role in Australian resources policy in the foreseeable future, not only as a means to facilitate the sale and export of Australian resources, but also for the conservation and management of Australian resources and Australian resource interests in places as diverse as Antarctica and the high seas.

16 Diplomatic and Consular Immunities and Privileges in Australia Katherine Cook

I INTRODUCTION [16.10]  The Vienna Convention on Diplomatic Relations (‘VCDR’)1 and the Vienna Convention on Consular Relations (‘VCCR’)2 codify the rules for the exchange of diplomatic missions and consular posts among sovereign states. Australia is a party to both conventions3 and both conventions have been given effect in Australian law by the Diplomatic Privileges and Immunities Act 1967 (Cth) (‘DPI Act’) and the Consular Privileges and Immunities Act 1972 (Cth) (‘CPI Act’). Little relevant case law has developed in Australia since both conventions were incorporated into Australian domestic law. There are two other types of privileges and immunities that are granted under Australian law: those granted to international organisations under the International Organisations (Privileges and Immunities) Act 1963 (Cth) (‘IOPI Act’) and those granted to certain overseas missions under the Overseas Missions (Privileges and Immunities) Act 1995 (Cth) (‘OMPI Act’). This chapter deals with diplomatic privileges and immunities and then by reference, in less detail, with consular privileges and immunities and those accorded to international organisations and certain overseas missions in Australia.

1

2

3

Vienna Convention on Diplomatic Relations, opened for signature 18 April 1961, 500 UNTS 95 (entered into force 24 April 1964) (‘VCDR’). Vienna Convention on Consular Relations, opened for signature 24 April 1963, 596 UNTS 261 (entered into force 19 March 1967) (‘VCCR’). Australia became a party to the VCDR on 25 February 1968 and the VCCR on 14 March 1973. 389

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II  PRIVILEGES AND IMMUNITIES [16.20]  The meanings of the terms ‘privileges’ and ‘immunities’ in Australia were set out in the second reading speech made by Paul Hasluck, then Minister for External Affairs, when introducing the Diplomatic Privileges and Immunities Bill 1967 (Cth) into the House of Representatives on 9 March 1967: The term ‘diplomatic privileges’ is commonly used to describe the concessions, often of a fiscal nature, which countries traditionally accord to foreign diplomatic missions and their staffs. The term ‘diplomatic immunities’ describes the jurisdictional immunities — for example inviolability of the person of a diplomatic agent, the premises and archives of a diplomatic mission and their immunity from suit — which international law confers on diplomatic missions, diplomatic agents and their staffs.4 According to para 4 of the Preamble to the VCDR, ‘the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States’. The VCDR and the VCCR justify privileges and immunities by reference to functional need. International relations and international cooperation between states are only effective where there is a process for communication between states. The VCDR enables diplomatic agents to act free of pressure or undue influence from the administrative or judicial mechanisms of the receiving state. As the International Court of Justice (‘ICJ’) stated, there is ‘no more fundamental prerequisite for the conduct of relations between states than the inviolability of diplomatic envoys and embassies’.5 These immunities allow a diplomatic agent to speak and act on behalf of his or her sending state without fear of reprisal from the receiving state.6 With increasing international cooperation, diplomatic immunities are necessary for the maintenance of a system of peaceful cooperation and co-existence among states.7

A  State Practice and Reciprocity [16.30]  Most states are both a sending and a receiving state for diplomatic missions and diplomatic agents. As such, reciprocity has generally proved 4

5

6 7

Commonwealth, Parliamentary Debates, House of Representatives, 9 March 1967, 505 (Paul Hasluck). United States Diplomatic and Consular Staff in Tehran (United States of America v Iran) [1980] ICJ Rep 3 [91]. Sir Ivor Roberts (ed), Satow’s Diplomatic Practice (Oxford University Press, 2009) [8.4]. See Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium) [2002] ICJ Rep 3 [75] (Judges Higgins, Kooijmans and Buergenthal): ‘immunities are granted to high State officials to guarantee the proper functioning of the network of mutual interState relations, which is of paramount importance for a well-ordered and harmonious international system’.

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an effective guarantee of the observance of the conventions.8 A government that fails to accord privileges and immunities to a diplomatic mission or diplomat in its territory risks reprisals against its own diplomatic mission and diplomatic agents in other states. Under the DPI Act, any or all privileges and/or immunities may be withdrawn from a particular mission by the Foreign Minister on the basis of reciprocity, where the relevant privileges and immunities provided to an Australian mission or diplomatic agent in an overseas country are less than the privileges and immunities granted under the DPI Act to that country’s diplomatic mission in Australia.9

III  DIPLOMATIC PRIVILEGES AND IMMUNITIES A  The Vienna Convention on Diplomatic Relations [16.40]  The VCDR was adopted in 1961 and is one of the most widely based multilateral regimes in the field of international relations, with 190 signatories to the convention. The VCDR largely codifies customary international law, which has long recognised that diplomats accredited to a foreign state possess immunities from the jurisdiction of that state.10 Twenty of the 53 articles in the VCDR relate to privileges and immunities. The VCDR creates a graduated regime of privileges and immunities for the different types of staff of a diplomatic mission: „„ a diplomatic agent is the head of the mission or a member of the diplomatic staff having diplomatic rank; „„ the administrative and technical staff are employed in the administrative and technical service of the mission; „„ the service staff are employed in the domestic service of the mission; and „„ private servants are in the domestic service of a member of the mission and are not employees of the sending state. The principle of functional necessity discussed above is also the justification for the graduated regime. Diplomatic agents, including the head of mission, are accorded the broadest range of privileges and immunities, while private servants, who do not perform diplomatic work, do not need the same range of immunities to perform their functions effectively free from interference from the receiving state. Therefore, private staff of the mission require few protections from local law to perform their role. They are only exempt 8 9 10

Sir Ivor Roberts (ed), Satow’s Diplomatic Practice (Oxford University Press, 2009) [8.4]. Diplomatic Privileges and Immunities Act 1967 (Cth) s 12. See, eg, The Schooner Exchange v McFaddon, 11 US 116 (Marshall CJ) (1812), holding that whenever a representative of a foreign state is present within the territory by consent, it is to be implied that the local sovereign confers immunity from local jurisdiction.

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from tax on the wages that they received from their employment and from the social security provisions of the receiving state if they are not nationals or permanent residents of the receiving state.11 The analysis that follows will focus on the privileges and immunities accorded to diplomatic agents. The recognition of diplomatic status is a matter for the receiving state, not the sending state.12 Bearing a diplomatic passport issued by a sending state does not of itself confer diplomatic status. Pursuant to art 4 of the VCDR, the head of diplomatic mission is appointed with the agreement of the receiving state. This is an exception to the general rule in art 7 that permits the sending state to appoint the members of the staff of the mission. Typically, the sending state nominates a person as a diplomatic agent13 and the receiving state can reject the person as a diplomatic agent by declaring him or her as persona non grata either at any time before the person takes up his or her appointment or at any time during his or her posting.14 In Australia, the recognition of the foreign diplomatic missions (and consular posts) and their staff is a matter for the executive arm of government and there is an established practice of courts deferring to the executive government on this issue. For example, in Duff v The Queen, the Full Federal Court held that ‘[r]ecognition of the status of diplomatic personages is the prerogative of the Government of Australia, and a person who is so recognized as having a particular status has that status for purpose of a court of law’.15 Recognition of diplomatic status is a matter of foreign policy, which is unsuitable for discussion or a view in the courts.16 Under s 14 of the DPI Act and s 12 of CPI Act, the Minister for Foreign Affairs may issue a certificate in writing certifying any fact relevant to the question of whether a person is, or was at any time or in respect of any period, entitled to any privileges or immunities by virtue of those Acts. Certificates issued under the DPI Act and the CPI Act are evidence of the facts certified. For example, in R v Stolpe,17 the absence of a certificate led to the Court finding that an Honorary Ambassador-at-Large of the Government of Palau had no diplomatic immunity and was not a diplomatic agent. 1  Obligations on Diplomatic Agents [16.50]  In addition to creating a scheme of privileges and immunities, the VCDR also creates obligations on those who enjoy immunities. Article 41(1) provides that ‘[w]ithout prejudice to their privileges and immunities, it is the 11 12 13 14 15 16 17

VCDR art 33. R v Browning (1991) 103 FLR 425, 436. VCDR art 7. VCDR art 7. Duff v The Queen (1979) 39 FLR 315, 355. Duff v The Queen (1979) 39 FLR 315, 355. R v Stolpe (Unreported, District Court of NSW, Robson J, 17 October 1980).

Ch 16: DIPLOMATIC AND CONSULAR IMMUNITIES AND PRIVILEGES   393

duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State’. In practice, reminding missions and diplomatic staff of this obligation is often an effective way of ensuring compliance with the laws and regulations of a receiving state. 2  Implementation of the VCDR in Australian Law [16.60]  Certain specific provisions of the VCDR are given effect in Australian law by the DPI Act. Section 7 of the DPI Act gives arts 1, 22–24 and 27–40 of the VCDR the force of law in Australia and in every external territory. The other articles of the VCDR are not appropriate for this treatment and are not expressly incorporated into Australian law. The articles that are not incorporated are nevertheless binding in international law on both a sending and a receiving state. 3  Immunities: Inviolability and Immunity from Search [16.70]  Article 22 of the VCDR provides that the premises of the diplomatic mission shall be inviolable and that the agents of the receiving state stall not enter them except with the consent of the head of the mission. The ‘premises of the mission’ is defined in art 1 to be ‘buildings or parts of buildings and the land ancillary thereto, irrespective of ownership, used for the purposes of the mission including the residence of the head of the mission’. The private residence of a diplomatic agent has the same inviolability and protection as the mission.18 In Australia, the reference ‘agent of the receiving State’ includes the Australian Federal Police, members of the police force of a state or territory, and ‘persons exercising a power of entry to premises’.19 The ‘premises of the mission’ is not the territory of the sending state and the acts and omissions occurring in a diplomatic mission occur in the territory of the receiving state. In R v Turnbull; Ex parte Petroff, which considered the throwing of gelignite at the USSR Embassy in Canberra, Fox J held that provisions of the Crimes Act 1900 (NSW), which applied in the Australian Capital Territory at that time, ‘apply as fully to acts done on embassy or chancery premises as to acts done elsewhere’.20 Fox J also stated that it would be difficult for the Commonwealth to comply with its obligations under the VCDR to protect the mission and its diplomatic agents if the charges were treated as being beyond the cognisance of its courts.21 Even though the criminal law of the receiving state is applicable to the premises of a mission, a serious threat to national security or a breach of the receiving state’s laws does not justify entry by the agents of the receiving state (even where there is a threat to the mission’s staff or its premises). Instead, 18 19 20 21

VCDR art 30. See Diplomatic Privileges and Immunities Act 1967 (Cth) s 7(2)(c). R v Turnbull; Ex parte Petroff (1971) 17 FLR 438, 441. R v Turnbull; Ex parte Petroff (1971) 17 FLR 438, 445.

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the VCDR provides its own system of remedies, such as declarations of persona non grata and the withdrawal of diplomatic relations.22 Even abuses of these immunities — such as espionage or interference in the internal affairs of the receiving state — or a receiving state acting in self-defence cannot be relied on to justify entry for a breach of the obligation to respect the laws of the receiving state.23 Instead, the rules set out in the VCDR provide remedies for abuse without resort to the wider doctrine of self-defence in international law.24 Where there is a serious threat to the mission’s staff or in the case of an emergency, the consent of the head of mission or the government of the sending state must be obtained. Consent cannot be assumed. The receiving state is also ‘under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity’.25 These obligations have been implemented in Australian law by the DPI Act and the CPI Act, and augmented by the Public Order (Protection of Persons and Property) Act 1971 (Cth) (‘PO Act’) and the Crimes (Internationally Protected Persons) Act 1976 (Cth). In particular, pt III of the PO Act creates a number of offences, including actions arising out of assemblies involving violence or conduct by a member of an assembly leading to a reasonable apprehension of violence aimed at ‘protected premises’ and ‘protected persons’. Protected premises include premises occupied for the purposes of a diplomatic mission or a consular post, premises occupied by an international organisation, and premises used as the residence or private accommodation of a protected person. A protected person includes a member of the diplomatic staff, a member of the staff of a consular post who is entrusted with consular functions, a high officer of an international organisation, and certain representative members of an international organisation, but does not include a person who is an Australian citizen or is permanently resident in Australia.26 In Minister for Foreign Affairs and Trade v Magno,27 the Full Federal Court considered the validity of the executive’s power to make ‘necessary and convenient’ regulations under the DPI Act to give effect to Australia’s obligation to protect, among other things, the dignity of a diplomatic mission. Under s 15 of the then DPI Act, the Governor-General had the 22

23

24

25 26 27

United States Diplomatic and Consular Staff in Tehran (United States of America v Iran) [1980] ICJ Rep 3 [86]. Eileen Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations (Oxford University Press, 3rd ed, 2008) 150; United States Diplomatic and Consular Staff in Tehran (United States of America v Iran) [1980] ICJ Rep 3 [83]–[87]. United States Diplomatic and Consular Staff in Tehran (United States of America v Iran) [1980] ICJ Rep 3 [83]–[87]. VCDR art 22(2). Public Order (Protection of Persons and Property) Act 1971 (Cth) s 4. Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298.

Ch 16: DIPLOMATIC AND CONSULAR IMMUNITIES AND PRIVILEGES   395

power to make regulations ‘not inconsistent with this Act, prescribing all matters required or permitted by this Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to this Act’. In Magno, the Governor-General had made regulations to authorise the removal of wooden crosses on a grass verge next to a footpath outside the Indonesian Embassy, as an appropriate step to prevent the disturbance of the peace of the mission or the impairment of its dignity, or the dignity of a diplomatic agent. The crosses were a symbolic protest at the killing of a number of East Timorese people by the Indonesian Army in East Timor. French J held that the Parliament had left to the executive the task of determining what steps are appropriate in the discharge of its duty, thereby deferring to the executive what were the appropriate steps to comply with Australia’s obligations to protect the dignity of a diplomatic mission. Such decisions are essentially questions of foreign relations, which are political decisions for the executive arm of government. French J also noted that something beyond the purpose of maintaining that peace and dignity would not be authorised. However, he gave no guidance about what this would be. Gummow J held that the duty imposed by s 7 of the DPI Act and arts 22 and 29 of the VCDR was not limited to the enforcement of existing municipal law, but could extend to the imposition and enactment of additional legal obligations upon the Australian community to enable the Australian government to uphold its international obligations. 4  Inviolability of the Archives, Documents, Personal Papers and Property [16.80]  The archives and any documents of the mission are inviolable at any time and wherever they may be.28 The official correspondence of the mission — the correspondence relating to the mission and its functions — is also inviolable.29 This means that these documents cannot be seized and cannot be used in evidence, and their production cannot be compelled by a court in any legal proceedings in the receiving state. The term ‘archives’ is not defined in the VCDR, but it is generally understood to cover any form of storage of information. Given that the purpose of this article is to protect the confidentiality of information, it does not cover letters sent by the mission to third parties as such documents no longer belong to the mission. However, contracts between the sending state represented by the mission and other bodies are generally accepted to be archives of the mission where such contracts are intended to be confidential. In contrast to the protections provided to the archives of a mission, the protections provided to the diplomatic bag fall short of inviolability. Article 27(3) provides that the diplomatic bag ‘shall not be opened or detained’. However, Australia has maintained that any practice that involves revealing 28 29

VCDR art 24. VCDR art 27.

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the contents of the bag, such as X-raying, is not permitted by the VCDR, as it is a violation of the confidentially of the diplomatic bag. 5  Immunity from Jurisdiction [16.90]  Diplomatic immunity is not immunity from legal liability of illegal acts but immunity from the jurisdiction of the courts of the receiving state. In Australian Federation of Islamic Councils Inc v Westpac Banking Corporation,30 the federation sought a declaration as to the title to deposited funds that were held by the bank on behalf of the Federation but were subject to control or disposition on the joint instructions of the President and Treasurer of the Federation and the Ambassador for the Kingdom of Saudi Arabia. The Supreme Court of New South Wales declined to proceed with the matter and stayed the application by the Federation on the basis that the Saudi Ambassador could not be joined as a party to the proceedings. The Court held the Saudi Ambassador was at all relevant times acting in his official capacity as Ambassador and on behalf of the Saudi Kingdom, and therefore, until such time as his immunity was waived, the Court had no jurisdiction to hear the proceedings. Under the VCDR, a diplomatic agent, both in the agent’s professional capacity and in his or her personal capacity,31 is completely immune from the criminal jurisdiction of the receiving state and, with three limited exceptions, from the civil and administrative jurisdiction.32 The three limited exceptions are (1) a real action relating to private immovable property situated in the territory of the receiving state, unless the diplomatic agent holds it on behalf of the sending state for the purposes of the mission;33 (2) an action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending state; and (3) an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving state outside of his or her official functions. The extent of the exceptions noted above were considered by the Family Court in In the Marriage of de Andrade.34 In this case, the former wife of a diplomatic agent commenced proceedings for dissolution of their marriage and other relief under the Family Law Act 1975 (Cth). Her husband enjoyed diplomatic immunity by virtue of the DPI Act. The wife claimed, among other things, that the proceedings regarding the dissolution of marriage, the guardianship of the child of the marriage, and the allocation of an investment 30 31

32 33

34

Australian Federation of Islamic Councils Inc v Westpac Banking Corporation (1988) 17 NSWLR 623. Immunity ratione personae attaches because of status or office. Heads of states and foreign Ministers enjoy the same immunity under customary international law. VCDR art 31. A real action refers to an action brought for protecting a real right — namely, the right of ownership and its dismemberments. In the Marriage of de Andrade (1984) 119 FLR 192.

Ch 16: DIPLOMATIC AND CONSULAR IMMUNITIES AND PRIVILEGES   397

property fell within the exception to diplomatic immunity in art 31. The Court rejected this argument and instead held that the dissolution of marriage and the guardianship of the children were not ‘real actions’ and that the purchase of a house by a diplomatic agent as an investment does not amount to a commercial activity within the meaning of art 31(1)(c). A diplomatic agent is also not obliged (that is, cannot be compelled) to give evidence as a witness.35 However, a diplomatic agent can be authorised to give evidence without a waiver of immunity, as discussed below. Under art 29, the person of a diplomatic agent is inviolable and is not liable to any form of arrest or detention. There has been much debate about whether a very limited exception to the prohibition on arrest or detention may be implied on the basis of self-defence or an overriding duty to protect human life.36 The ICJ in United States Diplomatic and Consular Staff in Tehran stated that the observance of the principle of inviolability did not mean that ‘a diplomatic agent caught in the act of committing an assault or other offence may not, on occasion, be briefly arrested by the police of the receiving State in order to prevent the commission of a particular crime’.37 In Australia, this is usually applied in driving situations. The Protocol Guidelines38 issued by the Department of Foreign Affairs and Trade state that: Police have the authority to stop any motor vehicle and request that the driver submit to an alcohol screening breath test. Diplomatic officers must obey any request to stop by a police officer. Failure to submit to a breath test is an offence under the driving laws of Australia. In the department’s view, a request to stop does not constitute ‘detention’ within the meaning of the Vienna Convention on Diplomatic Relations 1961 or involve, at that point, any question of immunity. … Where a driver is able to establish appropriate diplomatic identity and refuses to undergo an alcohol screening breath test, the police authorities will assess if it is safe for the driver to continue to drive. If it is in the interests of the public and the driver’s safety, the police authorities may prevent the driver from driving. The police may request that a passenger, or a member of the driver’s family, or a member of the relevant mission or post, drive the vehicle and escort the driver to his or her destination. Reflecting the seriousness of driving 35 36

37 38

VCDR art 31(2). Eileen Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations (Oxford University Press, 3rd ed, 2008) 267; United States Diplomatic and Consular Staff in Tehran (United States of America v Iran) [1980] ICJ Rep 3 [86]. United States Diplomatic and Consular Staff in Tehran [1980] ICJ Rep 3 [86]. Department of Foreign Affairs and Trade (Australia), Protocol Guidelines, ‘8.2.3 Breath Testing’ .

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under the influence in Australia, the police will report any incidents to the department, which will inform the officer’s head of mission of the offence. If the driver is unable to prove diplomatic status, the police request to submit to a screening test cannot be refused and the police authorities may proceed with this test. If this test shows a reading above the legal limit, the police may escort the driver to the local police station where they will seek to confirm the driver’s diplomatic status by contacting the mission or the department. 6  Maintenance and Waiver of Immunity [16.100]  A diplomatic agent’s immunity from the jurisdiction of the receiving state may be waived by the sending state.39 A waiver must always be express. Express actions may include entering an appearance or filing a defence in judicial proceedings. The initiation of proceedings by a person enjoying immunity under the VCDR will also preclude him or her from invoking immunity from jurisdiction in respect of any counterclaim directly connected with the principal claim.40 However, there is a difference between a waiver of immunity by the sending state and an agreement to give evidence by a diplomatic agent who is not obliged (that is, cannot be compelled) to give evidence. For example, in R v Browning,41 the US government waived the immunity of an American diplomatic agent, ‘only for the limited purposes of permitting Ms Hayes to appear and testify to facts known to her in connection with the fire-bombing of United States diplomatic personnel vehicles and the threat letter to the US Ambassador, and for no other purpose (Article 32 of the Vienna Convention on Diplomatic Relations)’. Following the Supreme Court of Malaysia in Public Prosecutor v Orhan Olmez,42 the Supreme Court of the Australian Capital Territory considered that Ms Hayes’s diplomatic immunity had not been waived. Despite the express reference to a waiver of immunity in the diplomatic note, the Court held that Ms Hayes’s immunity had not been waived; rather, she had been authorised to give evidence to certain limited matters about her knowledge of the fire bombings and the threatening letter. The judge also held that the waiver referred to in the diplomatic note was not a waiver of immunity from the sanctions that would normally follow from a person refusing to give evidence or from giving perjured evidence. 39 40

41 42

VCDR art 32. VCDR art 32(3); for example, in Kubacz v Shah [1984] WAR 156, Kennedy J of the Supreme Court of Western Australia found that the defendant (the Sultan of the State of Selangor in the Federation of Malaysia) had expressly waived his immunity by his solicitor entering an appearance and filing a defence and counterclaims. R v Browning (1991) 103 FLR 425, 436. Public Prosecutor v Orhan Olmez [1988] 1 MLJ 13.

Ch 16: DIPLOMATIC AND CONSULAR IMMUNITIES AND PRIVILEGES   399

In such cases, a separate waiver would be required. This did not mean, however, that Ms Hayes could not be cross-examined about the evidence she gave on this matter. If questions were asked of the witness that only went to impeach her credit and were not relevant to the contested issues, then, in the judge’s view, those questions would fall outside the restricted area of evidence that the witness was authorised to give.43 Some questions of credit might touch on issues and so remain within the authorised area — for instance, cross-examination on a prior inconsistent statement about a relevant matter. As noted above, a diplomatic agent is also immune from measures of execution of the judgment of a foreign court. While art 32(4) only refers to a waiver of immunity in respect of the civil or administrative proceedings, it has widely been interpreted to apply to the criminal jurisdiction as well. This means that carrying out a penalty or sentence following criminal proceedings is regarded as separate from the issue of liability or guilt, and a separate waiver will be required before action can be taken against a diplomatic agent. As discussed above, since the sending state is under no legal obligation to waive immunity, the only sanction the receiving state can impose is to declare the diplomat persona non grata44 if the sending state refuses to waive a diplomatic agent’s immunity. A diplomatic agent’s immunity from the jurisdiction of the receiving state does not exempt him or her from the jurisdiction of the sending state.45 Under Australian law, the Crimes (Overseas) Act 1964 (Cth) extends the criminal laws of the Jervis Bay Territory extraterritorially for the purpose of criminalising the behaviour of Australian diplomatic agents, consular officers, and other persons such as Australian nationals serving as United Nations officials or experts on mission abroad. The Act provides jurisdiction over Australians who are immune from criminal prosecution in a foreign country by virtue of an agreement between Australia and the foreign country (or under the VCDR or the VCCR), or between the United Nations (or United Nations organ) and the foreign country. Disciplinary action can also be taken against Australian public servants who are posted to diplomatic missions and consular posts for breaches of the Public Service Overseas Code of Conduct in the Public Service Act 1999 (Cth). Breaches of the code are regarded as a breach of s 13(12) of the Act, which states that a public servant ‘on duty overseas must at all times behave in a way that upholds the good reputation of Australia’.  7  The Period of Immunities [16.110]  A diplomatic agent’s immunity starts from the moment he or she enters the territory of the receiving state or, if already in its territory, from 43 44 45

R v Browning (1991) 103 FLR 425, 438. VCDR art 9. VCDR art 31(4).

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the moment when his or her appointment is notified.46 A diplomatic agent’s personal privileges and immunities normally continue until the diplomatic agent leaves the receiving state on the termination of his or her mission, or for a reasonable time to enable the diplomatic agent to do so.47 There is no definition of a ‘reasonable period’ in the VCDR and no period is prescribed in the DPI Act. Rather, a reasonable period is determined on a case-by-case basis. For example, if the diplomatic agent is winding up the affairs of an entire diplomatic mission following its withdrawal, he or she is likely to be protected for a longer period. By contrast, a diplomatic agent who is declared persona non grata is likely to be granted a short period to leave the receiving state. The immunity for official acts subsists after the diplomatic agent has left the receiving state. The rationale for the subsistence of this immunity is because at law these acts were done on behalf of the sending state and a foreign state is immune from the jurisdiction of the receiving state. 8  Privileges [16.120]  Five privileges are accorded under the VCDR: (1) an exemption from taxation; (2) an exemption from customs duties and baggage inspection; (3) an exemption from social security obligations; (4) an exemption from personal and public services; and (5) special treatment under the law of the receiving state regarding the acquisition of nationality. The discussion that follows focuses on exemptions from taxation and the exemption from customs duties. Pursuant to art 23(1), the sending state and the head of mission are exempt from all national, regional or municipal dues and taxes in respect of the premises of the mission, whether owned or leased, other than dues and taxes that represent payment for specific services rendered (for example, water and sewerage charges), but this exemption does not apply to such dues and taxes payable under the law of the receiving state by a person contracting with the sending state or the head of mission.48 With several exceptions, a diplomatic agent is exempt from all dues and taxes — personal or real, national, regional or municipal.49 The exemptions are: „„ dues and taxes on private immovable property situated in the receiving state, unless the diplomatic agent holds it on behalf of the receiving state for the purposes of the mission; „„ estate, succession or inheritance duties levied by the receiving state; „„ dues and taxes on private income having its source in the receiving state and capital taxes on investments made in commercial undertakings in the receiving state. Article 34(d) of the VCDR permits a receiving state 46 47 48 49

VCDR art 39(1). VCDR art 39(2). VCDR art 23(2). VCDR art 34.

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to tax private income having its source in that state. Australia regards ‘private income’ as including all income derived from Australian sources, some examples being the proceeds of share market dealings, dividends from public companies, dealings in real estate, and the interest that accrues to personal accounts operated by individuals at financial institutions in Australia. Individuals who receive such income are liable to pay Australian tax. This position is consistent with that adopted by a number of other countries; „„ charges and levies for services rendered; „„ registration, court or record fees, mortgage dues and stamp duty with respect to immovable property; and „„ indirect taxes of kinds that are normally incorporated in the price of goods and services. In Australia, the last exemption has proved problematic, as it includes the indirect Australian goods and services tax (‘GST’), which is imposed on most goods and services sold or consumed in Australia. However, equivalent sales taxes in many other states, such as the United States, are a direct tax from which diplomatic agents and missions are exempt under the VCDR, thus creating issues for reciprocity. To overcome this, the indirect tax concession scheme allows diplomatic missions, consular posts headed by career consular officers (not honorary consuls), certain overseas missions and international organisations to claim refunds of GST paid to merchants. The scheme is implemented on the basis of reciprocity, and the tax concessions granted to foreign diplomatic missions in Australia are broadly comparable with the tax concessions that are granted to Australian diplomatic missions overseas.50 9  Immunities and Family Members [16.130]  The members of the family of a diplomatic agent forming part of his or her household, if they are not nationals of the receiving state, enjoy the same privileges and immunities as does the diplomatic agent.51 The rationale for extending privileges and immunities to family members is to prevent undue influence being exerted on a diplomatic agent by the receiving state through actions taken by that state against a diplomatic agent’s family member. The VCDR does not define who constitutes ‘the family of a diplomatic agent forming part of his or her household’. In accordance with Australian practice, provided they are formally nominated by the foreign ministry of the sending state, the Australian government will accept as dependants a spouse and unmarried children up to 21 years of age who form part of the officer’s 50

51

The scheme is established under Diplomatic Privileges and Immunities Act 1967 (Cth) s 10B and Consular Privileges and Immunities Act 1972 (Cth) s 10A. Determinations have been issued. VCDR art 37(1).

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physical household. Same-sex or de facto partners will be accepted, provided they are formally nominated by the sending state. As a courtesy, unmarried children who are over 21 but not more than 25 years of age and who can demonstrate that they are undertaking full-time studies at an Australian educational institution in the city of the officer’s posting may also be granted diplomatic visas and accorded privileges and immunities as a member of a family of a diplomatic agent. In exceptional circumstances, the Department of Foreign Affairs and Trade will consider granting diplomatic visas to other relatives who have an established history of dependence on the officer for physical or psychological reasons. The sending state’s foreign ministry should explain the basis and duration of dependency and, if appropriate, provide a medical certificate confirming the exceptional circumstances that are claimed. If approved, such dependants are admitted as private family members without diplomatic privileges and immunities.

IV  CONSULAR IMMUNITIES AND PRIVILEGES [16.140]  The VCCR was adopted in 1967 and, like the VCDR, is one of the most widely based multilateral regimes in the field of international relations, with 179 countries having ratified the convention. The specific provisions of the VCCR are given effect in Australian law by the CPI Act. Subject to a number of limits, s 5 of the CPI Act gives the following provisions the force of law in Australia and in every external territory: arts 1, 5, 15 and 17; paras 1, 2 and 4 of art 31; arts 32, 33, 35 and 39; paras 1 and 2 of art 41; arts 43 to 45 (inclusive) and 48 to 54 (inclusive); paras 2 and 3 of art 55; para 2 of art 57; paras 1, 2 and 3 of art 58; arts 60 to 62 (inclusive), 66 and 67; paras 1, 2 and 4 of art 70; and art 71. The other articles of the VCCR are not appropriate for this treatment and are not expressly incorporated into Australian law. The second reading speech for the Consular Privileges and Immunities Bill 1972 (Cth) indicates that the articles not listed in s 5 were not ‘regarded as appropriate or necessary for action by legislation and the obligations in them c[ould] be met by administrative action’.52 Australia is also a party to two consular agreements with China53 and Vietnam,54 which expand upon some of the provisions of the VCCR by clearly defining the rights and obligations of the parties with respect to consular activities. Consular posts are usually located away from the seat of the national government of the sending state. In Australia, most consulates are found 52

53

54

Commonwealth, Parliamentary Debates, House of Representatives, 24 May 1972, 3011 (N H Bowen). Agreement on Consular Relations between Australia and the People’s Republic of China, opened for signature 8 September 1999, [2000] ATS 26 (entered into force 15 September 2000). Consular Agreement between Australia and the Socialist Republic of Vietnam, opened for signature 29 July 2003, [2004] ATS 25 (entered into force 6 August 2004).

Ch 16: DIPLOMATIC AND CONSULAR IMMUNITIES AND PRIVILEGES   403

in the state capital cities, such as Melbourne and Sydney. It is also common for members of a diplomatic mission to exercise consular functions. When a diplomatic agent exercises consular functions, he or she continues to be governed by the VCDR rules.55 When consular functions are performed by a consular post, the regime in the VCCR applies. This regime generally provides a lower level of privileges and immunities, which reflects the different roles and functions performed by diplomatic and consular missions. Consular officials do not require the same level of protection from the sending state, as they do not perform diplomatic representational functions and are not the spokesperson for the sending state in communications with the receiving state. Consular officials do not represent the interests of the sending state in the same way that a diplomatic agent does. He or she is an official of the sending state, charged with the responsibility of performing consular functions,56 including protecting the interests of the sending state’s citizens. Therefore, consular officials require a less protective regime of privileges and immunities to protect the consular functions they perform.57 As noted above, the privileges and immunities granted to consular posts and consular officers have been codified in the VCCR. Like the privileges and immunities provided to diplomatic agents, the privileges and immunities provided to consular officers are not to benefit the individuals but to ensure the efficient performance of official functions. It is the duty of all persons enjoying privileges and immunities to respect the laws and regulations of the receiving state.58 The VCCR sets out two types of consular posts: those headed by a career consular officer (usually a career public servant) and those headed by an honorary consul. Posts headed by career consular officers are given a status that is closer to a diplomatic mission but enjoy a lower level of privileges and immunities. As with the staff of a diplomatic mission, there are different types of consular officials:59 „„ consular officers are persons including the head of a consular post, entrusted in that capacity with the exercise of consular functions; „„ consular employees are persons employed in the administrative and technical services of the post; „„ members of the service staff are persons employed in the domestic service of the post; and „„ members of the private staff are persons employed exclusively in the private service of a member of the consular post. 55 56 57

58 59

VCCR art 70(4). See VCCR art 5. Immunity ratione materiae attaches to acts performed by state officials in the exercise of their functions. VCCR art 55. VCCR art 1.

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The head of the consular post and the career consular officers are accorded the highest level of privileges and immunities under the VCCR. This section will focus on some of the immunities accorded to career consular officers.

A  Immunities: Inviolability and Immunity from Search [16.150]  Consular premises are inviolable and the authorities of the receiving state shall not enter that part of the consular premises that is used exclusively for the purpose of the work of the consular post without the consent of the head of the consular post or his or her designee, or the head of the diplomatic mission or the sending state. However, in contrast to the similar provision in the VCDR, the consent of the consular post can be assumed in the case of fire or other disaster requiring prompt protective action.60 The rationale for this difference between consular premises and diplomatic premises is that consular premises are usually co-located with private businesses in office buildings and access to consular premises is required in the event of fire to protect those other businesses. In Australia, one public matter where the inviolability of consular premises was an issue occurred on 27 November 1988, when an 18-year-old youth was shot during a protest outside the then Yugoslav ConsulateGeneral in Sydney by a security guard employed by the consulate. At the time, the Australian government described the shooting as ‘intolerable and totally unacceptable’. In Parliament, the then Foreign Minister, Gareth Evans, stated that the Australian government considered that no issue of diplomatic or consular immunity for the security guard arose and that this was not a matter for which any reliance upon immunity in any form was appropriate. Although it was not clear, it appears that either the security guard was not accredited as a consular officer or, alternatively, the government considered that the security guard did not shoot the person as part of his consular duties. However, there was an issue of de facto immunity as the security guard remained in the consular premises, which made impossible his arrest until such time as he was moved out or the status of the consulate changed. So long as the consulate remained a consulate, it was physically inviolable by the Australian government — even though the security guard concerned did not at any stage enjoy or claim diplomatic or consular immunity.61 After an investigation by the NSW Police, on 1 December 1988, the Australian government asked the Yugoslavian Ambassador to surrender the security guard by 2 December 1988 to allow the NSW Police to charge him with, among other things, the offence of shooting with intent

60 61

VCCR art 31. Commonwealth, Parliamentary Debates, Senate, 6 December 1988, 3563 (Gareth Evans).

Ch 16: DIPLOMATIC AND CONSULAR IMMUNITIES AND PRIVILEGES   405

to do grievous bodily harm under s 33 of the Crimes Act 1900 (NSW).62 The security guard was not surrendered and the Australian government closed the consulate, giving the Consul-General and all members of the consular staff and their dependants until 5 December 1988 to leave. In accordance with art 26, the security guard and other members of the consulate were given safe passage.63 In marked contrast to the situation under the VCDR, the residence of the head of the consular post is not included in the definition of the consular premises and therefore is not inviolable. Similarly, the private residence and the property of a consular official are also not inviolable. The agents of the receiving state in accordance with the laws of the receiving state can enter both consular premises. Under the VCCR, similarly to the VCDR, the receiving state has a special duty to take all appropriate steps to protect the consular premises against any intrusion or damage and to prevent any disturbance of the peace of the consular post or any impairment of its dignity.64 The PO Act assists in giving effect in Australia to this special duty in the same way as it does with respect to diplomatic premises. Unlike a diplomatic agent, the person of a consular officer is not inviolable, although the receiving state must treat him or her with due respect and take appropriate steps to prevent any attack on his or her person, freedom or dignity.65 Like diplomatic archives, consular archives and documents are inviolable at all times and wherever they may be.66

B  Immunity from Jurisdiction [16.160]  The immunities provided to consular officers under the VCCR are much less than those accorded under the VCDR. A consular officer is not subject to the jurisdiction of the judicial or administrative authorities of the receiving state in respect of acts performed in the exercise of their consular functions.67 Unlike diplomatic agents, consular officers are not accorded immunity for their personal acts. A consular officer shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the 62

63

64 65 66 67

‘Consulates — Shooting of Demonstrator at the Yugoslav Consulate-General in Sydney — Protection of Diplomatic and Consular Premises — Possession of Firearms by Diplomatic and Consular Personnel — Consular Immunity — Closure of Consulate-General’ (1992) 12 Australian Year Book of International Law 460. ‘Consulates — Shooting of Demonstrator at the Yugoslav Consulate-General in Sydney — Protection of Diplomatic and Consular Premises — Possession of Firearms by Diplomatic and Consular Personnel — Consular Immunity — Closure of Consulate-General’ (1992) 12 Australian Year Book of International Law 460, 461–2. VCCR art 31(3). VCCR art 40. VCCR art 33. VCCR art 43.

406    INTERNATIONAL LAW IN AUSTRALIA

competent authority. Under the CPI Act, a grave crime shall be read as a reference to an offence punishable on a first conviction by imprisonment for a period that may extend to five years or by a more severe sentence.68 Otherwise, a consular officer cannot be committed to prison or be liable to any other form of restriction of their personal freedom except in the execution of a judicial decision of final effect. Although this has not been expressly incorporated into Australian domestic law, if criminal proceedings are instituted against a consular officer he or she must appear before the competent authorities. Whether an act is an official act is usually determined by whether it falls within the list of consular functions set out in art 5 of the VCCR.69 For example, it is unlikely that bringing a defamation case against a person is a consular act. In considering whether the Consul-General for Lebanon in Sydney was required to pay security for costs before he could be granted leave to appeal from a magistrate’s decision that diplomatic and consular immunity did not apply to him, Pembroke J opined that defamation is a personal cause of action whose object is to vindicate and protect the personal reputation of the person defamed, and that it cannot protect the reputation of a consular post.70 Career consular officers are not exempt from the duty to attend if summoned as witnesses, although if they decline to do so, no coercive measure or penalty may be applied against them.71 Career consular officers are under no obligation to give evidence on official matters or to produce official correspondence or documents, or to give evidence as an expert witness on the law of the sending state. The privileges and immunities conferred on a career consular official, unlike those conferred on a diplomatic agent, do not extend to their family members. The rules about wavier of immunity and when privileges and immunities commence and cease are similar to those that apply to a diplomatic agent.

V  HONORARY CONSULS [16.170]  Honorary consuls are usually resident in the receiving state and volunteer to provide a limited range of consular services to nationals of the sending state. The Australian government has a long tradition of accepting honorary consuls, and over half of the many consular posts established in Australian state and territory capital cities are headed by honorary consuls. 68 69

70

71

Consular Privileges and Immunities Act 1972 (Cth) s 5(2)(d). Naoum (Consul General for Lebanon in Sydney) v Dannawi [2011] NSWSC 23 (25 January 2011). Naoum (Consul General for Lebanon in Sydney) v Dannawi [2011] NSWSC 23 (25 January 2011). VCCR art 44.

Ch 16: DIPLOMATIC AND CONSULAR IMMUNITIES AND PRIVILEGES   407

Chapter III of the VCCR sets out the regime of privileges and immunities to be accorded to honorary consuls and for the posts headed by such officers. The honorary consuls and the posts that they head are given very limited privileges and immunities. Honorary consuls in Australia enjoy immunity from jurisdiction in respect of official acts, and from giving testimony concerning matters connected with the exercise of those official functions, producing official documents, or serving as expert witnesses with regard to Australian law.72 It is important to note that honorary consuls are not immune from arrest or detention.73 However, should they be arrested, detained or prosecuted, they have the right to have this fact promptly notified to the sending state.74 If arrest, detention or prosecution relates to acts of an official nature for which immunity applies, the government of the sending state may waive the immunity of the honorary consul.75 The consular premises of posts headed by an honorary consul are not inviolable, although the receiving state is obliged to protect them from intrusion, damage, or impairment of dignity.76 Inviolability of consular archives and documents is contingent on their being kept separate from the honorary consul’s private and business papers.77 Exemptions from customs duties are granted only to specified articles imported for the post’s official use, such as coats of arms, flags, signboards, seals and stamps, and official printed matter.78 Neither honorary consuls nor posts headed by them may purchase motor vehicles free of customs duty or other taxes. The indirect tax concession scheme under which diplomatic missions and consular posts headed by career officers are able to seek refunds of GST and related indirect taxes on goods and a limited number of services is not extended to consulates headed by honorary consuls.

VI  INTERNATIONAL ORGANISATIONS [16.180]  Internationals organisations and their staff enjoy privileges and immunities under various international agreements.79 The extent of these privileges and immunities depends on the relevant agreement and the 72 73 74 75 76 77 78 79

VCCR art 58.2. VCCR art 63. VCCR art 58.2. VCCR art 58.2. VCCR art 59. VCCR art 61. VCCR art 61. See, eg, Convention on the Privileges and Immunities of the United Nations, opened for signature 13 February 1946, 1 UNTS 15 (entered into force 2 March 1949); Convention on the Privileges and Immunities of the Specialized Agencies, opened for signature 21 November 1947, 33 UNTS 261 (entered into force 2 December 1948).

408    INTERNATIONAL LAW IN AUSTRALIA

receiving state’s national laws and regulations, which vary considerably depending on the role of the organisation. For example, UN bodies have comprehensive privileges and immunities under Australian law,80 whereas the Asia-Pacific Telecommunity (Privileges and Immunities) Regulations (Cth) only provide legal personality to the Asia-Pacific Telecommunity. In Australia, the IOPI Act and the regulations that are enacted under that Act provide privileges and immunities to prescribed international organi­ sations. Australia provides privileges and immunities to international organisations of which it and other countries are members. The rationale for providing privileges and immunities to these organisations is similar to the rationale for providing privileges and immunities to diplomatic missions and consular posts. The special status accorded to the international organisation allows the body which functions via member states to conduct its business free of interference from the receiving state. Generally, the privileges and immunities conferred on international organisations at international and domestic law are less than those accorded to a diplomatic mission and a diplomatic agent. The IOPI Act sets out in five schedules the privileges and immunities that may, either without restriction or to the extent or subject to the conditions prescribed, be accorded under regulation to a specific international organisation, its staff, experts and representatives of member countries. Each schedule sets out the privileges and immunities applicable to a particular category. For example, under the Commission for the Conservation for the Antarctic Marine Living Resources (Privileges and Immunities) Regulations 1983 (Cth), the office of the Executive Secretary (which is the high office in the Commission) has the privileges and immunities specified in pt 1 of the second schedule of the IOPI Act.81 This means that the Executive Secretary (and his or her spouse and children under 18) is accorded the like privileges and immunities of a diplomatic agent.82

VII  OVERSEAS MISSIONS [16.190]  Australia also accords privileges and immunities to a limited number of entities that it does not officially recognise as states via the OMPI Act. Australia accords privileges and immunities under the Act to official missions established in Australia to represent a foreign territory in one or more capacities. A foreign territory means: (a) a colony, overseas territory, overseas province or protectorate of a foreign country; 80

81

82

See, eg, United Nations (Privileges and Immunities) Regulations 1986 (Cth); Specialized Agencies (Privileges and Immunities) Regulations 1986 (Cth). Commission for the Conservation of Antarctic Marine Living Resources (Privileges and Immunities) Regulations 1983 (Cth) reg 9A. International Organisations (Privileges and Immunities) Act 1963 (Cth) sch 2.

Ch 16: DIPLOMATIC AND CONSULAR IMMUNITIES AND PRIVILEGES   409

(b) a territory outside Australia, where a foreign country is to any extent responsible for the international relations of the territory; or (c) a territory outside Australia that is to some extent selfgoverning, but that is not recognised as an independent sovereign state by Australia.83 For example, according appropriate privileges and immunities to the representative offices of Taipei in Australia, in the absence of formal diplomatic relations, is done via the OMPI Act. Under this Act, rights similar to diplomatic immunity may be accorded in Australia to representatives of entities not officially recognised by Australia as states. The Act requires application by regulation in particular cases. Currently, there are regulations for the Taipei Economic and Cultural Office84 and the Hong Kong Economic and Trade Office.85

VIII  EMERGING ISSUES: DUAL CITIZENSHIP [16.200]  In recent years, the issue of whether dual citizens should be given diplomatic privileges and immunity has increasingly become an issue as more countries allow dual citizenship. Article 8 of the VCDR provides that members of the diplomatic staff of the mission should in principle be of the nationality of the sending state. Article 8 of the VCDR and art 22 of the VCCR provide for the receiving state to agree to the appointment of persons who are citizens or permanent residents of the receiving state. Where such approval is granted for diplomatic staff, art 38 of the VCDR provides for limitations to be placed on the privileges and immunities of those who are nationals of the receiving state or permanent residents of that state. Australia has a policy of not accrediting Australian citizens or permanent residents as diplomatic agents or consular officers of other countries. However, if Australia does accredit an Australian citizen or permanent resident as a diplomatic agent in Australia, the policy is that the person will enjoy immunity from jurisdiction and inviolability only in respect of official acts performed in the exercise of his or her official functions in Australia. No other privileges and immunities will be accorded.

83 84 85

Overseas Missions (Privileges and Immunities) Act 1995 (Cth) s 3. Taipei Economic and Cultural Office (Privileges and Immunities) Regulations 1998 (Cth). Hong Kong Economic and Trade Office (Privileges and Immunities) Regulations 1996 (Cth).

17 Australia’s Coastal and Offshore Jurisdiction Henry Burmester and Rachel Baird

I BACKGROUND [17.10] Australia is a party to the United Nations Convention on the Law of the Sea (‘LOSC’), having ratified it in 1994.1 It was previously a party to the earlier 1958 law of the sea conventions.2 As a consequence, and not surprisingly, Australia’s exercise of jurisdiction in the offshore areas around its extensive coastline has, for the most part, been consistent with the relevantly applicable international law. This reflects, as the previous edition of this book noted, the continuation of a longstanding policy by Australia of making orthodox maritime claims and of being ‘not ahead of the field’ in this regard.3 A possible exception is Australia’s establishment of maritime zones around its Antarctic Territory, including an exclusive economic zone (‘EEZ’) in which it has established a whale sanctuary, and its submission of a continental shelf claim around that territory to the Commission on the Limits of the Continental Shelf.4 1

2

3

4

United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 UNTS 3 (entered into force 16 November 1994) (‘LOSC’). Convention on the Territorial Sea and the Contiguous Zone, opened for signature 29 April 1958, 516 UNTS 205 (entered into force 10 September 1964); Convention on the High Seas, opened for signature 29 April 1958, 450 UNTS 11 (entered into force 30 September 1962); Convention on Fishing and Conservation of the Living Resources of the High Seas, opened for signature 29 April 1958, 559 UNTS 285 (entered into force 20 March 1966); Convention on the Continental Shelf, opened for signature 29 April 1958, 499 UNTS 311 (entered into force 10 June 1964). Michael Landale and Henry Burmester, ‘Australia and the Law of the Sea — Offshore Jurisdiction’ in K W Ryan (ed), International Law in Australia (Law Book Co, 2nd ed, 1984) 390, 391. See chapters 4, 15 and 22. 411

412    INTERNATIONAL LAW IN AUSTRALIA

Australia’s attitude to the negotiation of the new maritime regime embodied in the LOSC has been discussed previously and is not repeated here.5 Rather, this chapter concentrates on more recent practice by Australia in relation to the maritime zones around its coast, including the regulation of activities within them as permitted by international law.6 As a federation, implementation by Australia of regulatory controls in certain of these zones has involved both Commonwealth and state laws and the establishment of cooperative arrangements for this purpose. These arrangements have altered over time and the Commonwealth has become increasingly dominant, including in relation to activities in the territorial sea. Australia’s approach to other law of the sea issues — particularly those involving direct relationships with other states or the international community, such as regulation of international straits, maritime boundaries and the outer limits of the continental shelf, and high seas issues such as piracy and security initiatives — are dealt with elsewhere.7 Australia was in the past generally slow to assert in a formal sense its rights over the various offshore maritime zones to which, under international law, it was entitled. It continued to claim only a three nautical mile territorial sea up until 1990, and did not seek to take full advantage of the many developments in maritime practice as reflected in the LOSC until 1994 — unlike many other countries that moved quickly to assert expanded jurisdiction well before entry into force of the convention. Since then, Australia has taken full advantage of the new law of the sea, including by drawing extensive straight baselines and being among the first states to delineate an extended continental shelf. Australia had, as early as 1953, proclaimed its sovereign rights over the adjacent continental shelf.8 This followed similar action by the United States. A potential dispute with Japan over pearling on northern parts of the continental shelf was put beyond the reach of the International Court of Justice without prior agreement on a modus vivendi by Australia’s optional clause declaration in 1954, no doubt a recognition of the then uncertain international law status of this continental shelf claim.9 The 1958 Convention on 5

6

7 8

9

Michael Landale and Henry Burmester, ‘Australia and the Law of the Sea — Offshore Jurisdiction’ in K W Ryan (ed), International Law in Australia (Law Book Co, 2nd ed, 1984) 390. Many of the issues in this chapter are considered in greater detail in Rachel Baird and Donald R Rothwell (eds), Australian Coastal and Marine Law (Federation Press, 2011). Regulatory arrangements in relation to fisheries and offshore mining and petroleum are dealt with in chapter 15. See chapter 18. Commonwealth of Australia Gazette Proclamation, 11 September 1953, Gazette, No 56, 2563. Declaration by Australia recognising the jurisdiction of the International Court, 6 February 1954, 186 UNTS 771.

Ch 17: AUSTRALIA’S COASTAL AND OFFSHORE JURISDICTION   413

the Continental Shelf 10 soon put the entitlement beyond doubt. The Australian government took an expansive view of this jurisdiction, granting exploration permits beyond the 200 metre limit and, in 1970, made a specific assertion of rights out to the edge of the continental margin.11 Australia was faced with pressure in the late 1960s to take measures to protect the Great Barrier Reef by drawing straight baselines and to stop foreign fishing in the Gulf of Carpentaria. However, the government resisted suggestions that it assert expanded maritime jurisdiction in these areas.12 It was, however, the growth of an offshore petroleum industry in the late 1960s that provided the impetus for the Commonwealth to enact a legislative basis for the various maritime zones to which it was then entitled under international law. The assertion of jurisdiction over offshore maritime areas inevitably led to tensions between the Commonwealth and the states as to how best to divide up legislative and administrative responsibility in the offshore areas. In 1967, a settlement was reached between the Commonwealth and the states for the cooperative exploration and exploitation of seabed petroleum resources.13 This gave the states significant control in day-to-day administration and a share of royalties. However, the underlying constitutional issues were soon to be tested. In 1970, the Territorial Sea and Continental Shelf Bill (Cth) was introduced into the Commonwealth Parliament, but not proceeded with. There continued to be pressure to resolve the constitutional position. The Seas and Submerged Lands Act 1973 (Cth) provided the legislative framework under which the Commonwealth asserted Australia’s main maritime zone entitlements. The Act was originally based on the 1958 Convention on the Territorial Sea and the Contiguous Zone14 and the Convention on the Continental Shelf. It declared that sovereignty in the territorial sea is vested in and exercisable by the Crown in right of the Commonwealth. It also declared that the sovereign rights of Australia as a coastal state in respect of the continental shelf for the purpose of exploring it and exploiting its natural resources are vested in the Commonwealth. The Act provided for proclamations to establish baselines and the limits of the territorial sea and the continental shelf. However, such proclamations were not immediately made. Rather, the enactment of the 10

11

12

13

14

Convention on the Continental Shelf, opened for signature 29 April 1958, 499 UNTS 311 (entered into force 10 June 1964). Commonwealth, Parliamentary Debates, House of Representatives, 30 October 1970, 3107–9 (William McMahon, Minister for External Affairs). Commonwealth, Parliamentary Debates, House of Representatives, 28 November 1968, 3436 (Nigel Hubert Bowen, Attorney-General). R D Lumb, ‘The Offshore Petroleum Agreement and Legislation’ (1968) 41 Australian Law Journal 453. Convention on the Territorial Sea and Contiguous Zone, opened for signature 29 April 1958, 516 UNTS 205 (entered into force 10 September 1964).

414    INTERNATIONAL LAW IN AUSTRALIA

legislation led to a constitutional challenge to its validity by the states, which considered it an attack on rights that they enjoyed over the offshore area — especially the territorial sea. It was the vehicle to clarify the constitutional position in relation to offshore rights. In New South Wales v Commonwealth (‘Seas and Submerged Lands case’),15 the validity of the Act was upheld. A five-to-two majority of the High Court considered that the legislative assertion of sovereignty by the Commonwealth over the territorial sea was valid under the external affairs power in s 51(xxix) of the Constitution. The majority considered that the states had not inherited rights in the territorial sea and its seabed from pre-Federation days. The minority disagreed. The court unanimously upheld the Commonwealth’s assertion of sovereign rights over the continental shelf.

II  THE OFFSHORE CONSTITUTIONAL SETTLEMENT [17.20]  The result in the Seas and Submerged Lands case gave the Commonwealth rather than the states control of the offshore areas and ensured that, from a legal point of view, the Commonwealth could assert to the full its maritime entitlements without being constrained by the states. State power to regulate activities in the offshore area was not wholly excluded, but considerable doubt existed as to the scope of state legal competence in this regard. The political and practical realities, however, meant that the Commonwealth was motivated to reach a mutual understanding with the states as to how best to manage and control the offshore areas. It negotiated the Offshore Constitutional Settlement (‘OCS’) with the states in 1979. This recognised continuing state legislative capacity and power in the territorial sea and continuing state responsibility for certain areas of offshore activity. The key legislative elements of the settlement were the Coastal Waters (State Powers) Act 1980 (Cth) and the Coastal Waters (State Title) Act 1980 (Cth) and the equivalent Acts applicable to the Northern Territory. The first Act conferred on each of the states a general legislative power over their adjacent ‘coastal waters’ (being internal waters not already within the limits of the state and the three nautical mile territorial sea) as if the coastal waters were within the limits of the state. This legislation made clear that the power conferred did not detract from the status of the territorial sea in international law, including the right of innocent passage, or give force to a state law inconsistent with a Commonwealth law. The second Act vested title in the seabed of the ‘coastal waters’ in the states. The legislation specifically provided that the title of the states only extended to the limit of the three nautical mile territorial sea and would not cover any extended area of seabed if the territorial sea was extended to 15

New South Wales v Commonwealth (1975) 135 CLR 337 (‘Seas and Submerged Lands case’).

Ch 17: AUSTRALIA’S COASTAL AND OFFSHORE JURISDICTION   415

12 nautical miles.16 This title was subject to the Great Barrier Reef Marine Park Act 1975 (Cth) and the right of the Commonwealth to use the area for certain purposes, including defence and quarantine. It was accepted as part of the OCS that ‘history, common sense and the sheer practicalities of life mark out the territorial seas, in particular, as a matter for local jurisdiction — that is to say, State jurisdiction — except on matters of overriding national or international importance’.17 The conferral of title and legislative power on the states and the Northern Territory in the waters landward of the three nautical mile territorial sea limit not already within the limits of the states or the territory was a reflection of this. Subsequent decisions by the High Court have made clear that state legislative power enables each state to legislate in relation to its adjacent maritime area provided there is a reasonable connection between the state and the activity.18 This has made the express conferral of legislative power on the states in coastal waters largely redundant. The conferral on the states of title to the seabed is, however, of continuing relevance and continues to affect arrangements involving seabed resources. Any attempt by the Commonwealth to take back title would trigger the constitutional guarantee of compensation on just terms. As part of the OCS, agreement was reached on the division of legislative responsibility between the Commonwealth and the states in relation to regulation and control of various maritime activities, including shipping, marine pollution and crimes at sea. The particular arrangements are outlined below. Since the OCS was originally concluded in 1979, many of the arrangements have been varied as experience and changing regulatory demands have led the Commonwealth and the states to revise the division of relevant responsibilities. Generally speaking, over time, the Commonwealth has assumed increasing responsibilities across all maritime activities. The OCS has been criticised for its complexity, but it has not prevented considerable revision and readjustment of the arrangements that were originally agreed. In a federal system, a level of complexity seems inevitable. Before outlining the various regulatory arrangements applicable in the offshore area, it is appropriate to set out the particular provisions establishing Australia’s various maritime zones in more detail. As previously indicated, the Seas and Submerged Lands Act provides the legislative basis for Australia’s maritime zones. This Act was extensively amended in 1994 by the Maritime 16

17

18

See generally Offshore Constitutional Settlement: A Milestone in Co-operative Federalism (AGPS, 1980) 4, reproduced in Michael W D White, Australian Offshore Laws (Federation Press, 2009) 411. Offshore Constitutional Settlement: A Milestone in Co-operative Federalism (AGPS, 1980) 4, reproduced in Michael W D White, Australian Offshore Laws (Federation Press, 2009) 411. Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1; see also Stuart Kaye, ‘The Offshore Jurisdiction of the Australian States’ (2009) 1(2) Australian Journal of Maritime and Ocean Affairs 37.

416    INTERNATIONAL LAW IN AUSTRALIA

Legislation Amendment Act 1994 (Cth), immediately prior to Australia’s ratification of the LOSC. The Act now refers to the relevant provisions of the LOSC, rather than the earlier 1958 conventions. It also now incorporates express reference to a contiguous zone and EEZ.

III  AUSTRALIA’S OFFSHORE ZONES A  Internal Waters [17.30]  The waters on the landward side of Australia’s territorial sea baselines form Australia’s internal waters. The internal waters of Australia, as a matter of international law, do not, however, necessarily coincide with the limits of the states. The limits of the states, set out in Imperial instruments, are generally defined by the mean low water mark. This is understood to include waters within the jaws of the land, such as ports, harbours and certain enclosed bays. One exception is that the limits of South Australia and the Northern Territory are defined expressly to include bays and gulfs. Thus, Spencer Gulf forms part of the internal waters of South Australia.19 The precise limits of the states and territories are not, however, always easily determined. This can be important for determining whether Commonwealth or state jurisdiction exists for particular purposes. For instance, the Great Barrier Reef Marine Park does not include waters within the limits of Queensland. Consequently, because a bay of an island was found to be a bay at common law in 1900 and hence within the limits of Queensland, Commonwealth restrictions imposed under the park’s management plan did not apply there.20 The Commonwealth has proclaimed territorial sea baselines taking account of modern international law. This is discussed below. One consequence is to extend Australia’s internal waters, and to create areas of Commonwealth internal waters that are not part of state internal waters. One of the issues that the OCS was designed to overcome was the practical problems that could arise from the uncertainty as to the precise location of state maritime limits. By extending state legislative power over the ‘coastal waters’,21 these problems were considerably reduced. These waters comprise not only the three nautical mile territorial sea, but also waters on the landward side of the territorial sea not within the limits of a state or internal territory.22 For most domestic 19 20

21 22

A Raptis & Son v South Australia (1977) 138 CLR 346. Donald R Rothwell and Brad Jessup, ‘The Limits of the Great Barrier Reef Marine Park: Defining Bays and Redefining Regulatory Control’ (2009) 37 Federal Law Review 71. Coastal Waters (State Powers) Act 1980 (Cth) s 3. See the second reading speech on the Constitutional Power (Coastal Waters) Bill 1979 (Vic), reproduced in Michael W D White, Australian Offshore Laws (Federation Press, 2009) 444; see also Stuart Kaye, ‘The Offshore Jurisdiction of the Australian States’ (2009) 1(2) Australian Journal of Maritime and Ocean Affairs 37.

Ch 17: AUSTRALIA’S COASTAL AND OFFSHORE JURISDICTION   417

purposes, the difference between state and Commonwealth internal waters is, as a result, not practically significant. The Great Barrier Reef Marine Park is an exception in this regard. Under the LOSC, one difference between state and Commonwealth internal waters is that innocent passage applies in areas of internal waters established as a result of straight baselines.

B  Territorial Sea Limits and Baselines [17.40]  As already mentioned, Australia formally asserted its sovereignty over the territorial sea in the Seas and Submerged Lands Act. In 1990, Australia extended the breadth of its territorial sea around Australia, and all its external territories, from three to 12 nautical miles.23 The only exception is the territorial sea around certain islands in the Torres Strait north of the seabed jurisdiction line fixed by the Torres Strait Treaty,24 which continue to have only a three nautical mile territorial sea from fixed base points as set out in the treaty.25 The precise limits of the territorial sea around these islands is thus fixed and does not change despite coastline changes, whether through erosion or accretion or sea level rise as a result of climate change. Australia has also proclaimed baselines from which the breadth of its territorial sea is measured. The most recent proclamation was made in 2016, replacing without substantive change an earlier 2006 proclamation.26 An earlier comprehensive proclamation had been made in 1983, with amendments in 1987.27 The 2006 proclamation used revised geodetic and mapping information. The greater part of the baseline around the mainland and the islands comprising the states and territories (with the exception of certain Torres Strait Islands) is the low water mark along the coast. The low water mark is defined by reference to the lowest astronomical tide, which is the lowest level predicted to occur under average meteorological conditions. The proclamation reflects the provisions of the LOSC dealing with baselines. Thus, it picks up the provisions on bays in art 10, permanent harbour works in art 11, and low tide elevations in art 13. The proclamation thus draws straight baselines across the mouths of rivers, and to enclose bays not more than 24 nautical miles wide at their mouths. Specified straight baselines are 23

24

25 26

27

Proclamation of 9 November 1990, Gazette, No S 297, 13 November 1990, with effect from 20 November 1990. Treaty between Australia and the Independent State of Papua New Guinea Concerning Sovereignty and Maritime Boundaries in the Area between the Two Countries, Including the Area Known as Torres Strait, and Related Matters, opened for signature 18 December 1978, [1985] ATS 5 (entered into force 15 February 1985) (‘Torres Strait Treaty’). Proclamation of 4 February 1983, Gazette, No S 29, 9 February 1983. Seas and Submerged Lands (Territorial Sea Baseline) Proclamation 2016, F2016L00302, 10 March 2016, replacing without substantive change an earlier proclamation made on 15 February 2006. Proclamation of 4 February 1983, Gazette, No S 29 of 9 February 1983; Proclamation of 19 March 1987, Gazette, No S 57 of 31 March 1987.

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proclaimed where the coast is deeply indented or there is a fringe of islands, giving effect to art 7 of the LOSC. Among the areas enclosed in this way are areas off the coasts of Queensland, south-east Tasmania and north-western Western Australia. Australia has also declared four bays in South Australia as historic bays and has drawn straight baselines across them.28 This followed a report in 1986 by a joint Commonwealth–South Australian committee. The United States in 1991 formally protested the declaration of these bays as historic bays.29 Australia, as envisaged by art 12 of the LOSC, in 2000 extended the outer limit of the territorial sea around a roadstead in the Gulf of Carpentaria near the port of Karumba.30

C  Contiguous Zone [17.50]  Australia only formally asserted a contiguous zone in the 1994 amendments to the Seas and Submerged Lands Act. Its limit was fixed as 24 nautical miles in a proclamation in 1999.31 No zone is proclaimed north of the Torres Strait Treaty seabed jurisdiction line. As early as 1981, however, Australia had extended its enforcement powers under the Customs Act 1901 (Cth) to areas within 12 nautical miles of the coast, but now these extend to 24 nautical miles.32

D  Exclusive Economic Zone [17.60]  In 1979, Australia established a 200 nautical mile Australian Fishing Zone (‘AFZ’), replacing a 12 nautical mile fishing zone established in 1967. In 1994, an EEZ was proclaimed, including around all external territories, including the Australian Antarctic Territory.33 The EEZ is 200 nautical miles wide, except in delimitation situations where either a median line or the line agreed in the relevant delimitation treaty is used. 28

29

30

31 32

33

See Seas and Submerged Lands (Historic Bays) Proclamation 2016, F2016L00301, replacing pt 2 of sch 2 of Proclamation of 15 February 2006, Seas and Submerged Lands (Territorial Sea Baseline) Proclamation 2016, F2016L00302, originally proclaimed 19 March 1987, Gazette, No S 57 of 31 March 1987. Relevant documents are set out in Gregory French and Harry Reicher, ‘Law of the Sea’ in Harry Reicher (ed), Australian International Law: Cases and Materials (LBC Information Services, 1995) 312–16. Proclamation of 29 August 2000, Gazette, No GN 35, 6 September 2000, still in effect. Gazette, No S 148, 7 April 1999. Customs Amendment Act 1981 (Cth) s 12, inserting a new s 59; this section has now been repealed; see also Maritime Powers Act 2013 (Cth) s 41(1)(c) and Maritime Powers Regulations 2014 (Cth) reg 8. Proclamation of 26 July 1994, Gazette, No S 290, 29 July 1994.

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The terms AFZ and EEZ are employed in Commonwealth Acts, depending upon the subject matter.34

E  Continental Shelf [17.70]  Australia’s assertion of sovereign rights over its continental shelf is contained in s 11 of the Seas and Submerged Lands Act. As originally enacted, this assertion was based on the 1958 Convention on the Continental Shelf, replacing the former executive proclamation from 1953. The Act now asserts sovereign rights over the continental shelf by reference to art 76 of the LOSC. This provides for the continental shelf to extend to 200 nautical miles or beyond to the outer edge of the continental margin, but that it cannot extend beyond the more seaward of a line 350 nautical miles from the baselines or a line that is 100 nautical miles from the 2500 metre isobath. In accordance with art 76, in 2004 Australia submitted information on its extended continental shelf to the United Nations Commission on the Limits of the Continental Shelf. In 2008, that Commission adopted recommendations in response to Australia’s submission. In 2012, Australia issued a proclamation confirming the outer limits of most of Australia’s continental shelf, including those areas beyond 200 nautical miles covered by recommendations of the Commission.35 The proclamation does not cover certain areas to the north of Australia opposite Indonesia and East Timor where the boundaries are not yet fully agreed. The proclamation also includes the continental shelf around Australia’s external territories, except the Australian Antarctic Territory. In the case of this latter territory, Australia submitted proposed limits for its continental shelf to the Commission but asked for it not to consider the issue for the time being.36

IV  COMMONWEALTH–STATE DIVISION OF RESPONSIBILITIES [17.80]  At the time the OCS was adopted in 1979, it was said to have ‘marked the solution of a fundamental problem that has bedevilled Commonwealth–State relations and represents a major achievement of the policy of co-operative federalism’.37 What marked the settlement was its pragmatic nature, reflected in the variety of regulatory arrangements agreed in relation to various offshore activities. There was no common feature, except the default position of state title and jurisdiction in the 34

35

36 37

For a discussion on fisheries management in Australia, see chapter 15 and Rachel Baird, ‘Fisheries Management’ in Rachel Baird and Donald R Rothwell (eds), Australian Coastal and Marine Law (Federation Press, 2011) 120–50. Seas and Submerged Lands (Limits of the Continental Shelf) Proclamation 2012, F2012LO1081, 24 May 2012. Australia’s interaction with the Commission is discussed in more detail in chapter 18. Offshore Constitutional Settlement: A Milestone in Co-operative Federalism (AGPS, 1980) 1, reproduced in Michael W D White, Australian Offshore Laws (Federation Press, 2009) 411.

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three nautical mile territorial sea. That, however, did not prevent Commonwealth control within that area for particular matters. The best example is the Great Barrier Reef Marine Park, which extends into the low water mark around Queensland, including Queensland islands and where the Commonwealth retains full control. Some of the agreed arrangements were extraordinarily complex — such as the arrangements in relation to fisheries, which allowed for individual fisheries to be managed under Commonwealth, state or joint administration. Foreign fisherpersons were, however, solely a Commonwealth responsibility. In relation to offshore petroleum and minerals, the states retained full responsibility within the three nautical mile zone and there were joint authorities established in the areas of continental shelf adjacent to each state, with the states retaining major regulatory responsibilities throughout their respective adjacent areas. Royalties continued to be shared between the Commonwealth and the states. The OCS did not, however, prevent readjustment of the division of responsibilities or prevent the Commonwealth, if it wished, from asserting control over an offshore activity in order to ensure that Australia’s international obligations could be met, or to improve regulatory arrangements. The only part of the settlement that is hard to undo is the conferral of title on the states in the three nautical mile zone. As already mentioned, to take that away would attract the constitutional requirement to pay just terms for the acquisition of property. However, many of the regulatory arrangements in relation to offshore activities have changed over the years from those initially agreed as part of the OCS. This has occurred as new international law obligations and standards have emerged and in response to demands for more complex but uniform national regulation and control. The remainder of this chapter will look at a number of these areas.

V  PARTICULAR ISSUES ARISING IN OFFSHORE AREAS A  Crimes at Sea [17.90]  As part of the OCS, the Crimes at Sea Act 1979 (Cth) generally applied the criminal laws of an appropriate state or territory to offences on Australian ships, and in limited circumstances to foreign ships, beyond the then three nautical mile territorial sea. State law dealt with offences in the territorial sea or on ships on intra-state voyages. A revised scheme was enacted in the Crimes at Sea Act 2000 (Cth). The substantive criminal law of the relevant state now applies in the 12 nautical mile territorial sea by force of state law. The Commonwealth Act applies the criminal law of the adjacent state out to the edge of the EEZ

Ch 17: AUSTRALIA’S COASTAL AND OFFSHORE JURISDICTION   421

or continental shelf, whichever is the greater.38 The Act also applies the law of the Jervis Bay Territory to offences on board Australian ships beyond that area, to offences by Australian citizens on foreign ships outside that area, and to criminal acts committed on foreign ships where Australia is the first country at which the ship calls after the criminal acts.39 In order to ensure that the exercise of Australia’s criminal jurisdiction under the Act accords with Australia’s international obligations, the Commonwealth Attorney-General’s written consent is required before prosecution of an offence can proceed in relation to an act alleged to have been committed on a foreign ship where the country of registration has, under international law, jurisdiction over the alleged offence.40

B  Marine Parks and Reserves [17.100]  Australia has taken a leading role in the protection of the bio­diversity of its marine areas. This is reflected in the extensive marine parks and reserves that the Commonwealth and states have established around its coasts. The Environment Protection and Biodiversity Conservation Act 1999 (Cth) provides the statutory basis for the establishment of offshore marine parks and reserves in waters beyond the three nautical mile coastal waters of a state or the Northern Territory, and out to the outer limit of the 200 nautical mile zone. In 2012, the Commonwealth established the world’s largest network of marine reserves around all of Australia’s coasts, as well as in waters around the Coral Sea Territory and other external territories. These new reserves replaced some more limited reserves and parks that had been previously established. Examples of reserves include the Ningaloo Commonwealth Marine Reserve, an area inscribed on the World Heritage list, and the Great Australian Bight Commonwealth Marine Reserve.41 In December 2013, the Commonwealth abandoned the management plans that were announced to take effect in mid-2014 and a marine reserves review was established to consider and recommend the appropriate management measures for marine reserves. In the meantime, no restrictions were imposed on fishing and other on-water activities.42 The states have also established marine parks and reserves in their respective coastal waters, many of which abut Commonwealth reserves. Cooperative arrangements are one way in which the respective state and Commonwealth waters can be managed in a compatible manner, consistently with the needs of the particular marine environment in question. 38 39 40 41 42

Crimes at Sea Act 2000 (Cth) s 6(1). Crimes at Sea Act 2000 (Cth) ss 6(2)–(3). Crimes at Sea Act 2000 (Cth) s 6(4). Commonwealth of Australia, Special Gazette, No S 116, 11 July 2012, 2. See generally Australian Government Department of the Environment, Commonwealth Marine Reserves .

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The Great Barrier Reef Marine Park is regulated under its own legislation, the Great Barrier Reef Marine Park Act 1975 (Cth). Unlike the other marine reserves and parks, the Great Barrier Reef Marine Park includes waters up to the low water mark of Queensland. This was an exception agreed at the time of the OCS. The park is managed under detailed zoning plans, but this is overseen by a ministerial forum representing both the Commonwealth and Queensland governments. The park is a World Heritage listed area and, covering more than 344,000 square kilometres, is one of the largest marine protected areas in the world.43 Activities in the park that are likely to have a significant impact on the environment, along with activities outside the park that are likely to have a significant impact on the park, need approval from the Commonwealth and must comply with any permit requirements under the park’s own regulatory regime. Australia has also established the Australian Whale Sanctuary, extending from the three nautical mile state limits to the outer limit of the EEZ, including that zone off the Australian Antarctic Territory. The establishment of the sanctuary has been used by Humane Society International to obtain an injunction against Japanese whaling vessels taking whales in the sanctuary. Subsequently, a large fine was imposed on the company that owned the vessels for contempt of court after the Japanese vessels had ignored the injunction.44 The protection and conservation of Australia’s biodiversity are managed under the Environment Protection and Biodiversity Conservation Act. It is under this Act that Australia fulfils obligation under international conventions such as the Convention on the International Trade in Endangered Species of Wild Fauna and Flora,45 the Convention on Biological Diversity46 and the Convention on Wetlands of International Importance.47 Under the Commonwealth marine reserves network, over three million square kilometres of ocean are intended to be managed primarily for biodiversity conservation. As noted above, these are complemented by state marine parks.

43 44

45

46

47

Great Barrier Reef Marine Park Act 1975 (Cth) pt VAA div 2. Humane Society International Inc v Kyodo Senpaku Kaishu Ltd [2015] FCA 1275 (18 November 2015). See also the Full Federal Court decision that overturned the earlier decision not to allow service out of the jurisdiction on the Japanese whaling company, Humane Society International Inc v Kyodo Senpaku Kaishu Ltd (2006) 154 FCR 425; for an extended discussion of these cases, see chapter 4. Convention on the International Trade in Endangered Species of Wild Fauna and Flora, opened for signature 3 March 1973, 993 UNTS 243 (entered into force 1 July 1975). Convention on Biological Diversity, opened for signature 5 June 1992, 1760 UNTS 79 (entered into force 29 December 1993). Convention on Wetlands of International Importance, opened for signature 2 February 1971, 966 UNTS 245 (entered into force 21 December 1975).

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C  Historic Wrecks and Underwater Heritage [17.110]  Australia first enacted legislation in 1976 to protect the remains of ships and their relics more than 75 years old situated in Australian waters.48 The legislation extends from the low water mark to the edge of the continental shelf. The Act aims to protect wrecks for heritage values and regulates recreational and other uses in light of that objective. A number of wrecks have protected or no-entry zones established in relation to them. A review of the Act was conducted in 2009 and no significant changes have yet occurred to the legislation.49 In particular, Australia has not yet become a party to the 2001 Convention on the Protection of Underwater Cultural Heritage.50 The legislation would need some amendment to enable Australia to meet its obligations under that convention. Each of the states and the Northern Territory have complementary legislation protecting wrecks within the limits of the state or territory.

D Shipping [17.120]  International shipping is regulated by the International Maritime Organisation (‘IMO’), which oversees the administration and implementation of a wide range of international conventions. Early conventions addressed the regulation of the activity of shipping (that is, operation and navigation) and included the International Convention for the Safety of Life at Sea51 and the International Regulations for Preventing Collisions at Sea.52 Many IMO conventions now address the environmental consequences of shipping, including pollution from the operation of ships and also pollution from collisions or groundings. In Australian waters, shipping has been managed by the Commonwealth and states in an often confusing and complex way. The OCS settled responsibility for the regulation of shipping on the basis of the type of voyage, although in reality the division of responsibility was never that simple.53 As a starting point, interstate and international voyages by trading ships were to be regulated by the Commonwealth. The states regulated other trading ship 48 49

50

51

52

53

Historic Shipwrecks Act 1976 (Cth). Australian Government, Review of the Historic Shipwrecks Act 1976 Fact Sheet . Convention on the Protection of Underwater Cultural Heritage, opened for signature 2 November 2001 (2002) 41 ILM 37 (entered into force 2 January 2009). International Convention for the Safety of Life at Sea, opened for signature 1 November 1974, 1184 UNTS 276 (entered into force 25 May 1980). International Regulations for Preventing Collisions at Sea, opened for signature 20 October 1972, 1050 UNTS 17 (entered into force 15 July 1977). See Offshore Constitutional Settlement: A Milestone in Co-operative Federalism (AGPS, 1980), reproduced in Michael W D White, Australian Offshore Laws (Federation Press, 2009) 411; Craig Forrest, ‘Shipping’, in Rachel Baird and Donald R Rothwell (eds), Australian Coastal and Marine Law (Federation Press, 2011) 203, 209–10.

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voyages. The extent of regulation covered the ship’s crew, port access and the issue of certificates to ships. Simultaneously with the settlement, a Uniform Shipping Laws Code was established as the basis for uniform Commonwealth, state and territory legislation.54 The OCS arrangements over time did not provide the necessary regulatory regime for matters increasingly regulated by international standards. In 2012, new revised arrangements were put in place. The Navigation Act 2012 (Cth) repealed and replaced the Navigation Act 1912 (Cth). As explained in the Explanatory Memorandum for the Navigation Bill 2012 (Cth), the Act is: Australia’s primary legislation regulating international ship and seafarer safety, employment conditions for Australian seafarers and shipboard aspects of protection of the marine environment. It is a key legislative vehicle to give domestic effect to Australia’s port state control responsibilities and implements a range of international conventions covering matters such as the safety of life at sea; training and certification of seafarers; prevention of collisions at sea; watertight integrity and reserve buoyancy of ships; pollution prevention standards for ships; safety of containers, salvage; and determination of gross and net tonnage of ships.55 Vessels56 will be subject to the substantive requirements of the Navigation Act 2012 if they are: (a) foreign vessels conducting activities in Australian waters; (b) Australian vessels that cross or leave the EEZ, operate entirely outside the EEZ or are for use on voyages outside the EEZ; (c) Australian vessels that maintain certification for unrestricted operations under the Navigation Act; or (d) vessels that have ‘opted-in’ by application to the Australian Maritime Safety Authority (‘AMSA’). Australian vessels that fall under category (c) above may ‘opt out’ of regulation under the Navigation Act 2012, in which case the vessel would be regulated under the Commonwealth or state equivalents of the Marine Safety (Domestic Commercial Vessel) National Law Act 2012 (Cth) (‘National Law’) and would be required to surrender any certification issued under the Navigation Act 2012. The National Law implements an intergovernmental agreement (through the Council of Australian Governments) to develop a national approach to the safety of domestic commercial vessels and to establish 54

55 56

Uniform Shipping Laws Code 1979 as amended . Explanatory Memorandum, Navigation Bill 2012 (Cth) 3. The Navigation Act 1912 (Cth) used the word ‘ship’; this has been replaced with ‘vessel’ in the Navigation Act 2012 (Cth) s 14. Other changes include that ‘pleasure craft’ is now ‘recreation vessel’ and ‘surveyor’ is now ‘inspector’: Navigation Act 2012 (Cth) s 14.

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AMSA as the single national safety regulator for all domestic commercial vessel safety in Australia. Under ‘roll-back’ provisions in the Navigation Act 2012, a section that gives effect to an obligation imposed on Australia under specified international conventions and that would otherwise apply to a domestic commercial vessel does not operate in relation to such a vessel where the relevant National Law gives effect to that obligation for that vessel. If the National Law does not give effect to an obligation imposed under one of the conventions, the roll-back provisions of the Navigation Act also operate in relation to a domestic vessel or to a recreational vessel, if another state and territory law gives effect to the obligation in respect of those vessels. The specified conventions are the: „„ International Convention for the Safety of Life at Sea (‘SOLAS’);57 „„ International Convention for the Prevention of Pollution from Ships (‘MARPOL’);58 and „„ Convention on the International Regulations for Preventing Collisions at Sea (‘COLREGS’).59 What the new arrangements ensure is a single national regulator, AMSA, for all commercial vessels, deriving its powers from Commonwealth legislation to the extent constitutionally possible and from the National Law as adopted by states or territories. Australia’s international obligations under key shipping conventions will be met under Commonwealth law, except to the extent that state law gives effect to those conventions in relation to particular vessels. The Navigation Act 2012 also ensures that Australia can enforce its provisions against foreign vessels while in port, entering or leaving an Australian port, or in its territorial sea, consistently with the LOSC.60 Commonwealth legislation regulates in considerable detail the registration (flag) of Australian ships and admiralty matters.61

E  Marine Pollution [17.130]  Responsibility for marine pollution is shared between the states and the Northern Territory and the Commonwealth. Internal waters are managed under state and territory law, although the main source of marine pollution in these waters is from land-based sources. Coastal waters are also subject to state and territory law; however, marine pollution incidents 57

58

59

60 61

International Convention for the Safety of Life at Sea, opened for signature 1 November 1974, 1184 UNTS 278 (entered into force 25 May 1980) (‘SOLAS’). International Convention for the Prevention of Pollution from Ships, opened for signature 2 November 1973, 1340 UNTS 62 (entered into force 17 February 1978) (‘MARPOL’), as modified by the protocol of 1978 relating thereto. Convention on the International Regulations for Preventing Collisions at Sea, opened for signature 20 October 1972, 1050 UNTS 16 (entered into force 15 July 1977) (‘COLREGS’). Navigation Act 2012 (Cth) s 9. Shipping Registration Act 1981 (Cth); Admiralty Act 1988 (Cth).

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usually trigger Commonwealth law as well. A prominent example was the 2009 Pacific Adventurer incident, which involved the loss of 270 tonnes of oil off the coast of Queensland near Moreton Island.62 Under the National Plan63 (an integrated government and industry organisational framework enabling effective response to marine pollution incidents and maritime casualties), AMSA worked with the Queensland government to conduct the clean-up response. Historically, while ports and harbours have fallen under the jurisdiction of the states, Commonwealth environmental law can also apply. For example, if the port is within or adjacent to a marine park, or if matters of national environmental significance are affected, the Environment Protection and Biodiversity Conservation Act can apply. Under state legislation, port authorities are usually empowered to regulate activities within the port confines. State legislation relevant to marine pollution or implementing certain international conventions applies.64 Australia is a party to all the major marine pollution conventions. It is an active participant in the IMO, including in responding to new pollution issues such as ballast wastewater.65 Some of the conventions are outlined below. MARPOL, regulating discharges of oil and other hazardous substances from ships, is implemented by the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 (Cth). In accordance with arrangements agreed as part of the OCS, the Commonwealth Act gives full effect to MARPOL but contains roll-back provisions so that the Commonwealth law only applies from the three nautical mile outer limit if the relevant state or the Northern Territory has passed its own legislation to give effect to the relevant part of the convention in that area. This has led to a patchwork of applicable law in the three nautical mile area, as not all states have passed legislation to give effect to all the different parts of the convention. The Act has been regularly amended to reflect amendments to annexes to MARPOL, including amendments to give effect to new provisions governing transfers of oil at sea. It also contains provisions giving effect to particular marine pollution measures applicable in Antarctic waters pursuant to the Protocol on Environment Protection to the Antarctic Treaty.66 62

63

64 65

66

Australian Transport Safety Bureau, Independent Investigation into the Loss of Containers from Pacific Adventurer off Cape Moreton, Queensland, 11 March 2009 (Investigation No 263-MO-2009-002) . Australia’s National Plan to Combat Pollution of the Sea by Oil and Other Hazardous and Noxious Substances. See, eg, the Transport Operations (Marine Pollution) Act 1995 (Qld). See generally Stathis Palassis, ‘Marine Pollution and Environmental Law’ in Rachel Baird and Donald R Rothwell (eds), Australian Coastal and Marine Law (Federation Press, 2011) 228–63. Protocol on Environment Protection to the Antarctic Treaty, opened for signature 4 October 1991, [1998] ATS 6 (entered into force 14 January 1998).

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The cost of cleaning up marine pollution is invariably very high. The International Convention on Civil Liability for Oil Pollution Damage (‘CLC’)67 creates strict liability on the shipowner for marine pollution incidents and requires compulsory insurance by registered shipowners. The CLC is supplemented by the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (‘Fund Convention’),68 which establishes a fund with a threefold purpose: „„ provide supplementary compensation where full and adequate compensation is not available under the CLC; „„ partially indemnify the owner with respect to the additional financial burdens imposed by the CLC; and „„ distribute more equitably among the oil industry the cost of oil pollution. Protocols were adopted in 1992 to the CLC and the Fund Convention to increase the limits of liability.69 The International Convention on Civil Liability for Bunker Oil Pollution Damage entered into force in November 2007, extending the liability and compensation regimes to damage caused by spills of oil when carried as fuel in ships’ bunkers.70 These conventions are implemented in Australian law by the Protection of the Sea (Civil Liability) Act 1981 (Cth), the Protection of the Sea (Oil Pollution Compensation Funds) Act 1993 (Cth) and the Protection of the Sea (Civil Liability for Bunker Oil Pollution Damage) Act 2008 (Cth). The International Convention for the Control and Management of Ships’ Ballast Water and Sediments71 has been supported by Australia.72 A comprehensive set of domestic ballast water management arrangements has been adopted under the Biosecurity Act 2015 (Cth) which is supported by the Australian Ballast Water Management Requirements. All vessels, whether 67

68

69

70

71

72

International Convention on Civil Liability for Oil Pollution Damage, signed 29 November 1969, 973 UNTS 2 (entered into force 19 June 1975) (‘CLC’). International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, opened for signature 18 December 1971, 1110 UNTS 57 (entered into force 16 October 1978) (‘Fund Convention’). 1992 Protocol to Amend the 1971 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage of 18 December 1971, opened for signature 27 November 1992, 1953 UNTS 330 (entered into force 30 May 1996); 1992 Protocol to Amend the 1969 International Convention on Civil Liability for Oil Pollution Damage, opened for signature 27 November 1992, [1996] ATS 2 (entered into force 30 May 1996). International Convention on Civil Liability for Bunker Oil Pollution Damage, opened for signature 23 March 2001, [2009] ATS 14 (entered into force 21 November 2008). International Convention for the Control and Management of Ships’ Ballast Water and Sediments, opened for signature 1 June 2004, [2005] ATNIF 18 (not yet in force). Australian Government, Department of Agriculture and Water Resurces, Australian Ballast Water Management Requirements, adopted 16 June 2016, Version 6-09/2013, . The requirements are enforced under the Biosecurity Act 2015 (Cth).

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on domestic or international voyages, are required to manage ballast water to prevent the introduction and spread of introduced marine pests. Ocean dumping is regulated under the Environment Protection (Sea Dumping) Act 1981 (Cth), which implements the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter73 and its 1996 protocol (‘London Convention Protocol’), which superseded the original convention and entered into force in 2006.74 Under this Act (or the relevant state Act that may apply under roll-back provisions), permits are required to dump waste at sea and it is only annex 1 listed substances that may be approved. The definition of ‘dumping’ includes the deliberate disposal of waste. It does not include geosequestration, which is now permitted in accordance with an amendment to the London Convention Protocol to exclude the storage of carbon dioxide (CO2) under the seabed from 10 February 2007.75 Sequestration is regulated under the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth).

F  Offshore Enforcement [17.140]  Offshore enforcement is shared by the Commonwealth and the states. Commonwealth regulatory powers are spread across a range of Acts, including the Customs Act 1901 (Cth), the Biosecurity Act 2015 (Cth), the Migration Act 1958 (Cth) and the Fisheries Management Act 1991 (Cth). With the establishment of the Border Protection Command in 2005,76 the inefficiencies and complexity in having one agency working under several sources of legislative authority became obvious. The Maritime Powers Act 2013 (Cth) brings together in one piece of legislation the maritime enforcement powers in relation to the various regulatory regimes. The Act does not alter operational roles, functions or responsibilities, or reallocate existing resources, between agencies. The Act confers the enforcement powers that can be used by maritime officers to give effect to Australian laws and international agreements and decisions. The following are defined as maritime officers: „„ customs officers; „„ members of the Australian Defence Force; „„ members of the Australian Federal Police; and „„ other persons appointed by the Minister.

73

74

75 76

Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, opened for signature 29 December 1972, 1046 UNTS 120 (entered into force 30 August 1975). 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter of 29 December 1992, opened for signature 7 November 1996, [2006] ATS 11 (entered into force 24 March 2006) (‘London Convention Protocol’). [2006] ATNIA 42. Initially, the Border Protection Command was called the ‘Joint Offshore Protection Command’. It was renamed the ‘Maritime Border Command’ in 2015.

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Operating under one Act will simplify processes for maritime enforcement officers. Previously, for example, Australian Defence Force officers needed to be aware of under which Act they were exercising powers in order to observe the particular procedural requirements. Under the Act, a maritime officer will require authorisation from an authorising officer to exercise enforcement powers in relation to vessels, installations, aircraft and protected land areas. Once an authorisation is in force, a maritime officer generally has access to the full range of powers set out in pt 3. The powers include searching things and people, seizing and retaining things, boarding vessels, and requiring persons to cease conduct that contravenes Australian law. The exercise of maritime powers under an authorisation will be subject to various geographical and other limits designed to ensure that maritime officers act consistently with limits under international and Australian law in relation to the exercise of maritime enforcement powers.77 The consolidation of offshore enforcement has been further enhanced with the establishment in 2015 of the Australian Border Force as part of the Department of Immigration and Border Protection. This brings together the former customs service with other operational border, investigations, compliance, detention and enforcement functions.78

G  Offshore Native Title [17.150]  In Mabo v Queensland [No 2],79 the High Court accepted for the first time in Australian law that continuing rights and interests of Aboriginal and Torres Strait Islander peoples under their traditional laws and customs could be recognised in certain circumstances.80 This common law position is now regulated by the Native Title Act 1993 (Cth). This Act extends to the coastal sea (the territorial sea and the sea on the landward side not within the limits of the state), and to waters over which Australia asserts sovereign rights under the Seas and Submerged Lands Act.81 In Commonwealth v Yarmirr,82 the High Court confirmed that native title could exist in the territorial sea, although such rights could not be exclusive. The public rights to fish and navigate and the right of innocent passage that flows from the assertion of sovereignty over the territorial sea were inconsistent with the continuation of a right in holders of native title to say who may enter the area. Assertion of sovereignty 77 78

79 80 81

82

See especially the Maritime Powers Act 2013 (Cth) s 41. See Australian Government Department of Immigration and Border Protection, Who We Are . Mabo v Queensland [No 2] (1992) 175 CLR 1. For a discussion of offshore native title, see also chapter 7. Native Title Act 1993 (Cth) ss 6, 223(1); see generally Samantha Hepburn, ‘Native Title in Coastal and Marine Law’ in Rachel Baird and Donald R Rothwell (eds), Australian Coastal and Marine Law (Federation Press, 2011) 296–321. Commonwealth v Yarmirr (2001) 208 CLR 1.

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by the Crown was antithetical to the continued existence of exclusive rights.83 Native title in offshore waters depends on showing a traditional connection with the waters in question at the time when jurisdictional sovereignty was actually acquired.84 This can be significant given the fact that many of these assertions are quite recent, such as the extension of the territorial sea to 12 nautical miles in 1990. In Akiba v Queensland [No 2],85 it was accepted that native title can also exist beyond the territorial sea in areas of the EEZ. In that case, recognition was given to non-exclusive rights to access, use and take resources from areas where the necessary connection with the waters was found. However, such rights will not be recognised if they are inconsistent with the sovereign rights claimed by Australia.86 Whether this could extend to taking resources for commercial purposes despite the extensive statutory regime governing such exploitation had been controversial. The Federal Court was divided on this issue. However, the High Court unanimously held that legislation prohibiting the taking of fish for commercial purposes without a licence did not extinguish native title, including taking for commercial purposes if that was a part of the native title rights in question.87 Land grants under the Land Rights (Northern Territory) Act 1976 (Cth) to areas of territorial sea do confer exclusive possession and operate to override commercial fishing permits.88

VI CONCLUSION [17.160]  This chapter has outlined some of the myriad of legislative and other arrangements that govern the many different activities that take place in Australia’s offshore maritime zones. What this shows is that these arrangements generally reflect and are consistent with the rights and ­jurisdiction conferred by international law, including the numerous treaties that govern such activities. However, as a federation, Australia’s arrangements are often complex and involve multiple jurisdictions. This does not always produce clear and certain rules. In recent years, the ­Commonwealth has asserted an increasingly dominant role in order to put in place uniform 83 84

85

86

87

88

Commonwealth v Yarmirr (2001) 208 CLR 1, 68 [100]; see also 60–1 [76]. Akiba on behalf of the Torres Strait Regional Seas Claim Group v Queensland [No 2] (2010) 204 FCR 1, 184–5 [737]. Akiba on behalf of the Torres Strait Regional Seas Claim Group v Queensland [No 2] (2010) 204 FCR 1. Akiba on behalf of the Torres Strait Regional Seas Claim Group v Queensland [No 2] (2010) 204 FCR 1; see also Commonwealth v Akiba on behalf of the Torres Strait Regional Seas Claim Group (2010) 204 FCR 260. Akiba on behalf of the Torres Strait Regional Seas Claim Group v Commonwealth (2013) 250 CLR 209. Gumana v Northern Territory (2007) 158 FCR 349; Northern Territory v Arnhem Land Aboriginal Land Trust (2008) 236 CLR 24.

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national regulatory regimes. This is evident most recently in the national shipping regulatory regime. This trend is likely to continue. The OCS has not prevented this. The states do, however, still retain considerable day-to-day responsibility for activities in the three nautical mile coastal waters, such as marine parks and in relation to recreational activities, and this will also continue. The inevitable challenges for the future management and control of Australia’s offshore maritime zones will continue to require the Commonwealth and the states to cooperate in a flexible way so that effective enforcement of the evolving international and domestic regulatory regimes can occur. If this does occur, Australia will continue to be able diligently to discharge its international responsibilities, as well as protect its own interests, in its offshore maritime zones. It seems unlikely that the complexity that a federal system inevitably brings can be avoided. Despite this, there is no reason why Australia cannot continue to give full and timely effect to its international law rights and responsibilities in the offshore area.

18 Australia and the Law of the Sea Stuart Kaye and Bill Campbell

I INTRODUCTION [18.10]  As an island continent, it is unsurprising that a focus of successive Australian governments has been the international law of the sea. Australia has been active, both in the negotiation of new rules such as those in the 1982 United Nations Convention on the Law of the Sea (‘LOSC’)1 and in adopting laws and practices contributing to the development of customary international law. These developments in the law have accorded Australia significant benefits — for example, an area of maritime jurisdiction that is among the largest of any country. The law of the sea is one of the oldest areas of international law, with origins that can be traced back to Roman times. While the law of the sea prior to the Second World War was essentially customary international law, increasing international trade and discourse — as well as new or greatly expanded uses of the sea, such as the exploitation of offshore oil and gas — meant that the nature and scope of a state’s jurisdiction, rights and obligations at sea were in need of clarity. The first major clarification took the form of the four 1958 Geneva Conventions, each dealing with a different aspect of the law of the sea.2 These were followed 24 years later by the comprehensive LOSC,

1

2

United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 UNTS 3 (entered into force 16 November 1994) (‘LOSC’). Convention on the Territorial Sea and the Contiguous Zone, opened for signature 29 April 1958, 516 UNTS 205 (entered into force 10 September 1964); Convention on the High Seas, opened for signature 29 April 1958, 450 UNTS 11 (entered into force 30 September 1962); Convention on Fishing and Conservation of the Living Resources of the High Seas, opened for signature 29 April 1958, 559 UNTS 285 (entered into force 20 March 1966); Convention on the Continental Shelf, opened for signature 29 April 1958, 499 UNTS 311 (entered into force 10 June 1964). 433

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which was intended to be a ‘constitution for the oceans’3 and a ‘package deal’ on oceans governance that states would be obliged to accept in toto, without reservation. The LOSC had a difficult beginning, with almost no ratifications from developed states in the decade following its adoption. This in part was due to concerns over the regime for the deep seabed that had been explicitly rejected by the United States.4 Ultimately, these concerns were addressed in a Part XI Implementation Agreement,5 effectively annexed to the LOSC, which saw most developed states, including Australia, ratify the LOSC around the time of its entry into force on 16 November 1994. Subsequently, another agreement dealing with highly migratory fisheries and fish stocks straddling national jurisdiction and the high seas — the Fish Stocks Agreement — was added in the late 1990s.6 These additions aside, the LOSC has remained in its original form, and has been adopted by well over three-quarters of the international community. Australia was an active participant in the third United Nations Conference on the Law of the Sea (‘UNCLOS III’), taking a leadership role in a number of negotiating groups.7 Australia ratified the resulting LOSC and the Part XI Implementation Agreement on 5 October 1994, just over a month before the convention entered into force generally. Australia also was an original party to the Fish Stocks Agreement when it entered into force on 11 December 2001.

II  MARITIME ZONES [18.20] The LOSC divides the world’s oceans into a series of maritime zones, each of which encompasses a range of state rights and obligations relating to 3

4

5

6

7

Tommy T B Koh, ‘A Constitution for the Oceans’, remarks by the President of UNCLOS III, 10 December 1982, . Notwithstanding its refusal to sign the LOSC, the United States made a Presidential Statement in 1983 to the effect that it believed the provisions concerning maritime zones were customary international law: United States Policy Statement No 471 (1983), Oceans Policy and the Exclusive Economic Zone; see Proclamation No 5030 of 10 March 1983, reprinted at (1983) 22 ILM 461. Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, opened for signature 28 July 1994, 1836 UNTS 3 (entered into force 28 July 1996) (‘Part XI Implementation Agreement’). Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, opened for signature 4 December 1995, 2167 UNTS 3 (entered into force 11 December 2001) (‘Fish Stocks Agreement’). More detail on Australia’s role in the historical development of the law of the sea is to be found in Sir Kenneth Bailey, ‘Australia and the Geneva Convention on the Law of the Sea’ in D P O’Connell (ed), International Law in Australia (Law Book Co, 1965) 228–45; Michael Landale and Henry Burmester, ‘Australia and the Law of the Sea — Offshore Jurisdiction’ in K W Ryan (ed), International Law in Australia (Law Book Co, 2nd ed, 1984) 390–416.

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activities taking place in, on, under and over the sea.8 The classification of the zones essentially is based on their physical proximity to the land territory of a coastal state. Generally, the closer to the coast, the greater the jurisdiction and control accorded the coastal state. The nature of these zones is fundamental to the LOSC, and it is appropriate to consider each in turn, after first analysing the base-points from which they are measured.

A  The Territorial Sea Baseline [18.30]  Maritime zones under the LOSC are typically measured from land. What constitutes land is a concept expressly alluded to in the convention, being any naturally formed area that is clear of the water at high tide.9 This definition acts as a significant barrier to states that might wish to create islands by artificial means in order to bring large areas of ocean space under their jurisdiction.10 The zones are measured from the territorial sea baseline, most commonly the low water mark along the coastline.11 However, in a range of specific circumstances, the baseline is located elsewhere, including certain low tide elevations; baselines drawn across the mouths of rivers and bays and around harbour-works, roadsteads and fringing reefs; and straight baselines where the coast is deeply indented and cut into or to enclose fringing islands following the general direction of the coast.12 Small and isolated features above high water can assume much greater importance in the generation of maritime zones than their physical dimensions would suggest. In order to address this factor, art 121 of the LOSC provides that islands that are rocks and incapable of sustaining human habitation or an economic life of their own cannot generate an exclusive economic zone (‘EEZ’) or continental shelf. States tend to apply a maximum credible view of these criteria,13 which are of particular relevance 8

9 10

11 12 13

These are the rights of states and not individuals. In any case, see Ure v Commonwealth (2016) 236 FCR 458, in which the Full Federal Court rejected the proposition that international law recognises that individuals can acquire proprietary rights over terra nullius (including islands) that states must recognise. LOSC art 121. The creation of islands by artificial means was considered in the South China Sea Arbitration commenced under annex VII of the LOSC: Republic of the Philippines v People’s Republic of China (Permanent Court of Arbitration) Award (12 July 2016) . LOSC art 5. LOSC arts 6–10. These rules reflect the customary international law. This has led to a number of very small features generating claims to jurisdiction over large areas of maritime space; see the discussion in Jon M Van Dyke and Robert A Brooks, ‘Uninhabited Islands: Their Impact on the Ownership of the Oceans’ Resources’ (1983) 12 Ocean Development and International Law 265, 283; Hartini Dipla, Le régime juridique des îles dans le droit international de la mer (Presses universitaires de France, 1984) 82–5; see also the refusal by the Commission on the Limits of the Continental Shelf to take action in 2012 in relation to Japan’s request for an extended continental shelf adjacent to Oki-no-Tori Shima, CLCS/74.

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to Australia.14 For example, certain features on the Great Barrier Reef and even more remote features, such as Elizabeth and Middleton Reefs (which are located to the north of Lord Howe Island), are relied upon to generate the Australian EEZ. Australia’s territorial seas baselines were first proclaimed in 1983 and include 396 straight baselines, which are located adjacent to all Australian states and the Northern Territory.15 Furthermore, in 1987, a proclamation enclosed four small bays along the South Australian coast as historic bays16 (the subject of a formal protest from the United States on 10 April 1991) and a roadstead was proclaimed adjacent to the Port of Karumba in Queensland in 2000.17 Finally, in 2006, the 1983 baseline proclamation and 1987 historic bay proclamation were revised and the coordinates changed to reflect the contemporary geodetic datum in use in Australia.18

B  Territorial Sea and Internal Waters [18.40]  The territorial sea is the oldest of the maritime zones and the one closest to the coast. It is subject to the sovereignty of the coastal state, and the airspace above the territorial sea is part of the national airspace of a state. The territorial sea’s width is now set by art 3 of the LOSC to a maximum of 12 nautical miles measured from the territorial sea baseline, thus settling one of the longest debates in international law. Coastal state rights and jurisdiction over the territorial sea are largely unfettered,19 subject only to the right of innocent passage. Waters landward of territorial sea baselines are not part of the territorial sea and form part of the internal waters of a state.20 The coastal state has regulatory control in the territorial sea, including over aspects of navigation, protection of cables and pipelines, fisheries, environmental protection, marine scientific research21 and crime. 22 These areas of 14

15 16

17 18

19 20

21 22

A much stricter application of these criteria in relation to the Australian Territory of Heard and the McDonald Islands is to be found in the separate opinion of Judge Vukas in the Volga Case, where he found that the Territory, containing as it does Australia’s second-highest land point above sea level, did not meet the art 121 test for generating an EEZ or continental shelf: Volga Case (Russian Federation v Australia) ITLOS Reports of Judgments 2002, 42–4. Proclamation under the Seas and Submerged Lands Act 1973 (Cth), 4 February 1983. Proclamation, 31 March 1987; for more detail, see Stuart Kaye, ‘South Australian Historic Bays: An Assessment’ (1995) 17 Adelaide Law Review 269. Proclamation, 29 August 2000. The current declarations of the baselines are to be found in the Seas and Submerged Lands (Territorial Sea Baseline) Proclamation 2016 and the Seas and Submerged Lands (Historic Bays) Proclamation 2016, both made on 10 March 2016. LOSC art 2. These internal waters are not subject to a right of innocent passage unless they are internal by reason of the drawing of straight baselines or the innocent passage involved is to or from a port: LOSC arts 8, 18. LOSC art 21. LOSC art 27.

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coastal state regulation can be enforced against foreign vessels, unless those vessels are subject to sovereign immunity.23 Australia at Federation possessed a three nautical mile territorial sea derived from the Territorial Waters Jurisdiction Act 1878 (Imp). The Australian territorial sea was extended to its current width of 12 nautical miles in 1990.24

C  Contiguous Zone [18.50]  Beyond the territorial sea is the contiguous zone, which may extend to a maximum distance of 24 nautical miles from the territorial sea baselines. Article 33 of the LOSC provides that a state may exercise jurisdiction in the contiguous zone to prevent or punish infringements of customs, fiscal, immigration or sanitary laws within its territory or territorial sea. The contiguous zone adjacent to Australia was first proclaimed in 1999, and substantive legislation to provide for the jurisdiction in domestic law has been introduced over time since that date.25

D  Exclusive Economic Zone [18.60]  The EEZ, with an outer limit 200 nautical miles seaward of the territorial sea baseline,26 is the most recent of the maritime zones and is primarily resource related.27 Within the EEZ, a coastal state has jurisdiction over all resource-related activities in and on the ocean, seabed and subsoil, whether for living or non-living resources. The coastal state also has jurisdiction over marine scientific research, artificial islands and installations, and protection and preservation of the marine environment.28 The rights over this zone are described in the LOSC as sovereign rights, rather than sovereignty, reflecting the limited nature of the functional jurisdiction possessed by the coastal state. This is reinforced in the LOSC, which confirms the ability of all states within the EEZ of a coastal state to exercise those high seas rights that are not qualified by the EEZ rights of that coastal state. The most notable of these is the right to freedom of navigation.29 With the advent of the EEZ, almost one-third of the world’s oceans, including approximately 90 per cent of wild fisheries and virtually all commercial offshore oil and gas fields, have been brought under national 23 24 25

26 27 28 29

LOSC pt II s C. Proclamation, 13 November 1990. Seas and Submerged Lands (Limits of Contiguous Zone) Proclamation 1999. Australia’s contiguous zone jurisdiction was considered by the High Court in CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514. The inner limit is the outer limit of the territorial sea. The EEZ is covered in LOSC pt V. LOSC art 56. LOSC art 58(2).

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jurisdiction. The Australian EEZ was first proclaimed in 1994,30 although for a number of years thereafter the Australian Fishing Zone continued to operate separately under the Fisheries Management Act 1991 (Cth). This Act was subsequently amended to equate the Australian Fishing Zone with the EEZ.31

E  Continental Shelf [18.70]  The continental shelf has its origins in the Truman Proclamation of 1945,32 with international recognition following in the form of the 1958 Convention on the Continental Shelf.33 Although the EEZ includes coastal state jurisdiction over the seabed to a distance of up to 200 nautical miles, pt VI of the LOSC retains the continental shelf as a separate maritime zone as in some areas the physical continental shelf of a coastal state extends beyond 200 nautical miles. A coastal state has exclusive ‘sovereign rights’ to explore and exploit the seabed of its continental shelf.34 This includes rights over the mineral and other non-living resources of the seabed and its subsoil, as well as any sedentary species living on the seabed.35 Unlike the EEZ, the right to the continental shelf is not dependent upon occupation or express proclamation, but accrues by virtue of the state’s sovereignty over the adjacent land mass.36 Australia first proclaimed a continental shelf in 1952 to support the application of the Pearl Shell Fisheries Act 1952 (Cth).37 Contemporary arrangements for the Australian continental shelf closely reflect the requirements of art 76 of the LOSC.38 Where a state wishes to assert jurisdiction over an area of continental shelf beyond 200 nautical miles (the extended continental shelf (‘ECS’)), it is obliged to lodge data in support of the ECS for consideration by a body established under annex II of the LOSC — the Commission on the Limits 30 31 32

33

34 35 36 37

38

Proclamation under the Seas and Submerged Lands Act, 1 August 1994. Fisheries Management Act 1991 (Cth) s 4. Proclamation by the President of the United States of America, 28 September 1945, reprinted in S H Lay, R Churchill and M Nordquist, New Directions in the Law of the Sea (Oceana, 1973) vol 1, 106–7. Convention on the Continental Shelf, opened for signature 29 April 1958, 499 UNTS 311 (entered into force 10 June 1964). LOSC art 77(1). LOSC art 77(4). LOSC arts 77(2), 77(3). Proclamation, 11 September 1953, Commonwealth, Gazette, 1953, No 56, p 2563. The current declaration is to be found in Seas and Submerged Lands (Limits of Continental Shelf) Proclamation 2012, 24 May 2012. Seas and Submerged Lands Act 1973 (Cth) pt II div 2; see also Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth); Offshore Minerals Act 2003 (Cth); Fisheries Management Act 1991 (Cth) s 12.

Ch 18: AUSTRALIA AND THE LAW OF THE SEA   439

of the Continental Shelf. On the basis of that data, the Commission makes recommendations relating to the outer limits of the ECS of the submitting state. The limits of the shelf established by the coastal state on the basis of those recommendations are final and binding under the LOSC.39 In making its recommendations, the Commission applies the definition of the continental shelf contained in art 76 of the LOSC. It also has regard to the Rules of Procedure of the Commission40 and to the Scientific and Technical Guidelines of the Commission.41 The ECS boundary beyond 200 nautical miles confirmed by the Commission, in combination with the 200 nautical mile element of the boundary, separates the continental shelf subject to the sovereign rights of the coastal state from the area42 that forms part of the ‘common heritage of mankind’. Australia was the third state to lodge a submission with the Commission, which it did on 15 November 2004.43 Australia submitted 10 regions for the Commission’s consideration,44 but requested the Commission not to consider the region adjacent to the Australian Antarctic Territory (‘AAT’) ‘for the time being’.45 As a result, the Commission decided not to consider that region. Australia engaged with the Commission over seven sessions and, in so doing, covered a range of complex geomorphological, geological and legal issues. The legal issues at stake included the manner in which existing and future bilateral delimitations should be dealt with, the joining of the 200 nautical mile line with the boundary of the ECS, and the application of art 76(6) of the LOSC concerning submarine ridges.46 The total area submitted by Australia for the nine regions not including the AAT was 2.69 million square kilometres.47 Australia received recommendations on the outer limit of its ECS from the Commission on 9 April 2008. The Commission recommended an outer limit confirming Australia’s entitlement to an ECS in the nine regions

39 40 41 42 43 44

45

46

47

LOSC art 76(8). CLCS/40/Rev.1. CLCS/11 and corrigenda. LOSC art 1. Executive Summary of the Australian Submission, AUS-DOC-ES. Argo, Australian Antarctic Territory, Great Australian Bight, Kerguelen Plateau, Lord Howe Rise, Macquarie Ridge, Naturaliste Plateau, South Tasman Rise, Three Kings Ridge and Wallaby and Exmouth Plateaus. Note Verbale No 89/204. The region was submitted in order to meet the 10-year timeframe for submissions that then prevailed. Australia lodged an opinion with the Commission from Professor Vaughan Lowe of Oxford University in an effort to persuade the Commission to accept Australia’s interpretation of LOSC art 76(6). Executive Summary of the Australian Submission, AUS-DOC-ES.

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considered of 2.56 million square kilometres.48 Subsequently, Australia proclaimed the outer limit of most of its continental shelf, including all of the ECS recommended by the Commission.49

F  Archipelagic Waters [18.80]  The LOSC also created a new category of ‘archipelagic waters’, reflecting the interests of states wholly constituted by one or more archi­ pelagos.50 An archipelagic state is entitled to draw baselines joining the outermost parts of the archipelago and it is the waters enclosed within those archipelagic baselines that form ‘archipelagic waters’.51 Such waters are subject to the sovereignty of the archipelagic state but, unlike the internal waters of that state, they are subject to rights of navigation by foreign shipping — including innocent passage and ‘archipelagic sea lanes passage’.52 Once archipelagic baselines are drawn, the coastal state measures its territorial sea, EEZ and other zones seaward from the archipelagic baselines.53 ‘Archipelagic sea lanes passage’ is available in designated archipelagic sea lanes or on routes used for international navigation within the archipelago where no lane is specified. Such passage cannot be hampered or interrupted, and is also available for overflight.54 For voyages through archipelagic waters outside of a lane or a route used for international navigation, innocent passage is applicable.55 To date, only one state, Indonesia, has designated archipelagic sea lanes through its archipelago.56 That designation was only a partial one, providing 48

49 50

51

52 53

54 55 56

Australia lost 0.05 million square kilometres during examination by the Commission; 0.08 million square kilometres is yet to be resolved (Williams Ridge in the Kerguelen Plateau Region and Joey Rise in the Wallaby and Exmouth Plateau Region). Seas and Submerged Lands (Limits of Continental Shelf) Proclamation 2012, 24 May 2012. Such states are designated ‘archipelagic States’ (LOSC art 46). Archipelagic states in Australia’s region include Indonesia, the Philippines, Palau, Papua New Guinea, Solomon Islands, Marshall Islands, Kiribati, Tuvalu and Fiji. Australia does contain archipelagos, including Recherche Archipelago and the Montebello Islands, but it is not wholly constituted by them. LOSC art 47 establishes strict criteria for the drawing of archipelagic baselines, including the length of baselines and land-to-water ratios. LOSC arts 52, 53. LOSC art 48. Failure to take account of the Indonesian archipelagic baselines (declared in March 2009) in calculating the outer edge of the Indonesian territorial waters led Australian government vessels taking part in Operation Sovereign Borders inadvertently to enter those waters in December 2013 – January 2014: ACBS/Department of Defence, Joint Review of Operation Sovereign Borders Vessel Positioning, December 2013 – January 2014 . LOSC art 53. LOSC art 52. See Resolution 72(69), Maritime Safety Committee of the IMO (adopted 19 May 1998) .

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three north–south archipelagic sea lanes but leaving a number of other routes currently used for international navigation undesignated for the present. These undesignated routes still attract archipelagic sea lanes passage. The major interests of Australia in archipelagic waters and baselines are twofold. First, it is important that Australian flag vessels, both military and civil, be able to exercise both innocent and archipelagic sea lanes passage through archipelagic waters and, in this respect, Australia has a close interest in the designations made by Indonesia. Second, it is conceivable that the archipelagic baselines may be of some relevance to maritime boundary negotiations with other countries in the future.57

III  DELIMITATION OF MARITIME ZONES [18.90]  Overlaps in the maritime zones asserted by two or more countries give rise to the need for the delimitation — that is, the drawing of boundaries between the asserted maritime zones of neighbouring states with opposite or adjacent coastlines.

A  Principles of Delimitation [18.100]  The tests for the delimitation of maritime boundaries established by the LOSC reflect customary international law. Failing agreement to the contrary, the territorial seas of neighbouring states are to be delimited by a ‘median line every point of which is equidistant from the nearest points on the baselines from which the breadth of the territorial seas of each of the two States is measured’.58 In contrast to this precise formula, the provisions concerning the delimitation of EEZs and continental shelves are more in the nature of a broad legal principle: The delimitation … shall be effected by agreement on the basis of international law, as referred to in Article 38 of the Statute of the International Court of Justice, in order to achieve an equitable solution.59 Pending a permanent boundary, states may enter into provisional arrangements60 such as a joint development zone providing for the joint exploitation of an area claimed by two or more countries. 57

58 59 60

This could occur, for example, were Indonesia to give notice to Australia that it no longer intended to ratify the Treaty between the Government of Australia and the Government of the Republic of Indonesia Establishing an Exclusive Economic Zone Boundary and Certain Seabed Boundaries, [1997] ATNIF 4 (14 March 1997) (‘1997 Australia–Indonesia Maritime Delimitation Treaty’) and the area subject to delimitation in that treaty was the subject of further negotiation. More generally, the relevance of archipelagic baselines in maritime delimitation is not settled. LOSC art 15. LOSC arts 74, 83. LOSC arts 74(3), 83(3).

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International courts and tribunals now give effect to the general principles of delimitation established under the LOSC for the EEZ and continental shelf utilising the ‘equidistance/special circumstances’ method of three defined stages.61 The first stage is to draw a provisional delimitation line, every point of which is equidistant from points on the territorial sea baselines of the relevant countries.62 The second stage is to adjust this line for any special or relevant circumstances that may exist.63 The third stage is a confirmation that there is no ‘marked disproportion’ between the lengths of the relevant coastline of each state and the relevant maritime area attributed to that state by the provisional delimitation line.64 Where courts and tribunals are asked to draw a single maritime boundary delimiting both the EEZ and the continental shelf, the criteria to be applied must not give preferential treatment to the objects of one of the zones over the objects of the other.65 This leads in most circumstances to the adoption of 61

62

63

64

65

Maritime Delimitation in the Black Sea (Romania v Ukraine) (Judgment) [2009] ICJ Rep 61, 101 [115]–[116]; Dispute Concerning the Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar) ITLOS Judgment of 14 March 2012, 72–6 [225]–[240]; Case Concerning Maritime Dispute (Peru v Chile) [2014] ICJ Rep 4, 64–71; In the Matter of the Bay of Bengal Maritime Boundary Arbitration (Bangladesh v India), Award of LOSC Annex VII Tribunal, 7 July 2014 [341,345]–[341,346]. Maritime Delimitation in the Black Sea (Romania v Ukraine) (Judgment) [2009] ICJ Rep 61, 101 [116]–[119]; see also Case Concerning Maritime Dispute (Peru v Chile) [2014] ICJ Rep 4, 65 [180], 66–7 [185]; In the Matter of the Bay of Bengal Maritime Boundary Arbitration (Bangladesh v India), Award of LOSC Annex VII Tribunal, 7 July 2014 [353]; Continental Shelf (Libyan Arab Jamahiriya v Malta) (Judgment) [1985] ICJ Rep 13, 46 [60]; Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain) (Judgment) [2001] ICJ Rep 40, 111 [130]; Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea Intervening) (Judgment) [2002] ICJ Rep 303, 441 [288]. The most common relevant or special circumstance is that of islands. As noted by the ICJ in the Maritime Delimitation in the Black Sea (Romania v Ukraine) (Judgment) [2009] ICJ Rep 61, 122 [85], ‘the Court may on occasion decide not to take account of very small islands or decide not to give them their full potential entitlement to maritime zones, should such an approach have a disproportionate effect on the delimitation line under consideration’. Lord Howe Island and Christmas Island are examples of islands being given discounted effect in delimitation agreements negotiated by Australia. A number of other factors have been identified as constituting special circumstances: marked disparity in coastline lengths, prior resource activities, security interests, and geographical features such as concave coasts. However, the purpose of an adjustment is not to ‘re-fashion geography, or to compensate for the inequalities of nature’: In the Matter of the Bay of Bengal Maritime Boundary Arbitration (Bangladesh v India), Award of LOSC Annex VII Tribunal, 7 July 2014 [397]. Maritime Delimitation in the Black Sea (Romania v Ukraine) (Judgment) [2009] ICJ Rep 61, 101–3 [115]–[122]; Case Concerning Maritime Dispute (Peru v Chile) [2014] ICJ Rep 4, 65 [180], 66–7; In the Matter of the Bay of Bengal Maritime Boundary Arbitration (Bangladesh v India), Award of LOSC Annex VII Tribunal, 7 July 2014 [341]. Delimitation of the Maritime Boundary in the Gulf of Maine Area (Judgment) [1984] ICJ Rep 246, 327 [194]; Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria: Equatorial Guinea Intervening) (Judgment) [2002] ICJ Rep 303, 440 [286].

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the three-stage process described above.66 That same process also is applied to delimitation of the continental shelf beyond 200 nautical miles.67

B  Australian Maritime Delimitation [18.110]  Successive Australian governments have acted on the basis that maritime boundaries are best settled by agreement, rather than by third-party dispute settlement. Delimitation by negotiation has the capacity to be more innovative and deal with issues other than just the drawing of a boundary line.68 This preference for negotiation rather than adjudication is reflected in Australia’s current declaration of acceptance of the jurisdiction of the International Court of Justice (‘ICJ’) under art 36(2) of the Statute of the International Court of Justice. Australia has excluded from its general acceptance of ICJ jurisdiction matters related to delimitation: Any dispute concerning or relating to the delimitation of maritime zones, including the territorial sea, the exclusive economic zone and the continental shelf, or arising out of, concerning, or relating to the exploitation or any disputed area of or adjacent to any such maritime zone pending its delimitation.69 Australia also made a declaration under art 298.1(a)(i) of the LOSC exclud­ ing maritime delimitation from the LOSC dispute settlement procedures.70 Australia has nine maritime delimitation agreements and provisional arrangements in place with its neighbouring countries:71 the 1971 and 1972 Seabed Agreements with Indonesia;72 three treaties with Timor-Leste, the 66

67

68

69

70

71

72

There are most likely to be exceptions — for example, where the natural land prolongation of one state extends well beyond the point of equidistance between it and an opposite state. Dispute Concerning the Delimitation of the Maritime Boundary between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar), ITLOS Judgment of 14 March 2012, [455]; in that case, ITLOS rejected ‘the most natural prolongation’ as a relevant factor in a delimitation of the continental shelf beyond 200 nautical miles (emphasis added). The only real limitation on the content of delimitation by agreement is that it does not affect the enjoyment by other states of their rights or the performance of their obligations under international law: LOSC art 311(3). Declaration under the Statute of the International Court of Justice Concerning Australia’s Acceptance of the Jurisdiction of the International Court of Justice, [2002] ATS 5 (21 March 2002). The effect of this exclusion was considered by the ICJ in Whaling in the Antarctic (Australia v Japan: New Zealand Intervening) [2014] ICJ Rep 226, 242–6 [32]–[41]. Declaration under the United Nations Convention on the Law of the Sea Concerning the Application to Australia of the Dispute Settlement Provisions of That Convention, [2002] ATS 6 (21 March 2002). A detailed analysis of each is to be found in Jonathan I Charney and Lewis M Alexander (eds), International Maritime Boundaries (Martinus Nijhoff/Brill, 1993–2011) vols 1–6. Agreement between the Government of the Commonwealth of Australia and the Government of the Republic of Indonesia Establishing Certain Seabed Boundaries, opened for signature 18 May 1971, [1973] ATS 31 (entered into force 8 November 1973); Agreement between the Government of the Commonwealth of Australia and the Government of the Republic of Indonesia Establishing Certain Seabed Boundaries in the Area of the Timor and Arafura Seas, supplementary to the Agreement of 18 May 1971, opened for signature 9 October 1972, [1973] ATS 32 (entered into force 8 November 1973).

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Timor Sea Treaty,73 the Sunrise Unitisation Agreement74 and the Treaty on Certain Maritime Arrangements in the Timor Sea (‘CMATS’);75 the Torres Strait Treaty with Papua New Guinea;76 and maritime delimitation agreements with Solomon Islands,77 France78 and New Zealand.79 Australia negotiated the 1997 Australia–Indonesia Maritime Delimitation Treaty, which, when ratified, will settle the remaining boundaries between the two countries.80 The Timor Gap Treaty between Australia and Indonesia, which created a zone of cooperation in the Timor Sea, is no longer in force following the independence of Timor-Leste.81 The remaining permanent boundaries to be delimited by Australia are those between Australia and Timor-Leste; an area of extended continental shelf to the north of Lord Howe Island with France and possibly New Zealand; and with France, New Zealand and Norway in relation to the maritime zones adjacent to their respective Antarctic claims. The agreements negotiated by Australia have included innovative solutions, both permanent and temporary. One example is the multipurpose 73

74

75

76

77

78

79

80

81

Timor Sea Treaty between the Government of East Timor and the Government of Australia, opened for signature 20 May 2002, [2003] ATS 13 (2 April 2003) (‘Timor Sea Treaty’). Agreement between the Government of Australia and the Government of the Democratic Republic of Timor-Leste Relating to the Unitisation of the Sunrise and Troubadour Fields, opened for signature 6 March 2003, [2007] ATS 11 (entered into force 23 February 2007) (‘Sunrise Unitisation Agreement’). Treaty between Australia and the Democratic Republic of Timor-Leste on Certain Maritime Arrangements in the Timor Sea, opened for signature 12 January 2006, [2007] ATS 12 (entered into force 23 February 2007) (‘CMATS’). Treaty between Australia and the Independent State of Papua New Guinea Concerning Sovereignty and Maritime Boundaries in the Area between the Two Countries, Including the Area known as Torres Strait, and Related Matters, opened for signature 18 December 1978, [1985] ATS 4 (entered into force 15 February 1985) (‘Torres Strait Treaty’). Agreement between the Government of Australia and the Government of Solomon Islands Establishing Certain Sea and Seabed Boundaries, opened for signature 13 September 1988, [1989] ATS 12 (entered into force 14 April 1989). Agreement on Maritime Delimitation between the Government of Australia and the Government of the French Republic, opened for signature 4 January 1982, [1983] ATS 3 (entered into force 10 January 1983); this covers the boundaries between Australia and New Caledonia and between Heard and the McDonald Islands (Australia) and Kerguelen Islands (France). Treaty between the Government of Australia and the Government of New Zealand Establishing Certain Exclusive Economic Zone Boundaries and Continental Shelf Boundaries, opened for signature 25 July 2004, [2006] ATS 4 (entered into force 25 January 2006). Treaty between the Government of Australia and the Government of the Republic of Indonesia Establishing an Exclusive Economic Zone Boundary and Certain Seabed Boundaries, [1997] ATNIF 4 (14 March 1997) (‘1997 Australia–Indonesia Maritime Delimitation Treaty’). The first is the 1981 Provisional Fisheries Surveillance and Enforcement Arrangement; the second is the 1974 Australia–Indonesia Memorandum of Understanding regarding the Operations of Indonesian Traditional Fishermen in Areas of the Australian Fishing Zone and Continental Shelf. Treaty between Australia and the Government of Indonesia on the Zone of Co-operation in an Area between the Indonesian Province of East Timor and Northern Australia, opened for signature 11 December 1989, [1991] ATS 9 (entered into force 9 February 1991) (‘Timor Gap Treaty’).

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Torres Strait Treaty. It specifies which country has sovereignty over particular islands and contains detailed territorial sea, seabed and fisheries boundaries. The treaty establishes the sui generis solution of the protected zone in which freedom of movement is permitted for the purposes of traditional activities. Also, it creates a small area of overlapping jurisdiction in which Australia has fisheries jurisdiction and Papua New Guinea has seabed jurisdiction. This concept of ‘overlapping jurisdiction’ was taken to new levels in the 1997 Australia–Indonesia Maritime Delimitation Treaty. That treaty respects the seabed boundaries negotiated between the two countries in 1971 and 1972. However, for much of its length, the EEZ boundary negotiated in 1997 is south of the seabed boundary, thus creating large areas of overlapping jurisdiction. In those areas of overlapping jurisdiction, Australia exercises seabed jurisdiction and Indonesia exercises the water column aspects of EEZ jurisdiction. Finally, by way of innovation, the 2004 Australia–New Zealand delimitation treaty was among the first to address directly the delimitation of areas of extended continental shelf beyond 200 nautical miles. The most difficult area of delimitation for Australia has been the area of the Timor Sea between Australia and Timor-Leste. As noted above, this is covered by three treaties, none of which permanently delimit the boundaries — indeed, the CMATS expressly postpones permanent delimitation for a period of 50 years.82 The Timor Sea Treaty establishes a Joint Petroleum Development Area (‘JPDA’) between Australia and Timor-Leste, in which the petroleum produced is shared in the ratio of 90 per cent (Timor-Leste) to 10 per cent (Australia). The Sunrise Unitisation Agreement governs the exploration and exploitation of the Greater Sunrise Field, which straddles the JPDA, and an area of Australian jurisdiction to the east of the JPDA. Under the agreement, ownership of the petroleum from that field is allocated in the ratio 79.9 per cent (Australia) to 20.1 per cent (JPDA). Pursuant to the later CMATS, the revenue from production of petroleum from the Greater Sunrise Field deposit is to be divided equally between Australia and TimorLeste. CMATS confirms also that Timor-Leste will exercise water column jurisdiction in the area of the JPDA for the duration of CMATS. Notwithstanding these detailed provisional arrangements, Timor-Leste has reinstated its quest for establishing a permanent maritime boundary with Australia. In so doing, it has made renewed claims to EEZ and continental shelf jurisdiction not only within the whole of the JPDA, but also to areas outside the JPDA encompassing the whole of the Greater Sunrise Field to the east and the Laminaria, Corallina and Buffalo deposits to the west — all of which fall within Australian seabed jurisdiction under the 1972 Seabed 82

This 50-year period ends on 23 February 2057; CMATS arts 4, 12. On 23 April 2013, Timor-Leste initiated an arbitration with the aim of having CMATS declared invalid: ; .

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Agreement with Indonesia.83 This latter dimension raises complex issues — including, if Australia were to agree to negotiate a permanent boundary in such areas outside the JPDA, its ability or otherwise to in effect cede areas of Australian seabed agreed under the 1972 Seabed Agreement to Timor-Leste, those areas being closer to Indonesia than to Timor-Leste. The provisions of the 1997 Australia–Indonesia Maritime Delimitation Treaty, which is not yet in force, concerning overlapping jurisdiction would add to that complexity. Since 2013, Timor-Leste has commenced a number of dispute settlement procedures both challenging the existence and operation of certain provisional arrangements and seeking to move forward on permanent delimitation. First, on 23 April 2013, it commenced arbitration under the Timor Sea Treaty asserting that the CMATS was void ab initio by reason of the alleged espionage in the course of the negotiations. Second, it commenced arbitration under the Timor Sea Treaty concerning the interpretation of art 8(b) of that treaty dealing with jurisdiction over pipelines. Third, in 2016, it commenced what is likely to be the first conciliation under art 298(1)(a)(i) of the LOSC directed towards achieving a permanent boundary between Timor-Leste and Australia.

IV  AREAS BEYOND NATIONAL JURISDICTION A  High Seas [18.120]  The term ‘high seas’ is used to describe those waters beyond coastal state jurisdiction. Also, certain high seas rights are able to be exercised in the waters of the EEZ.84 The high seas rights guaranteed to all states are listed in art 87 of the LOSC and include the freedoms of navigation, overflight, fishing and scientific research. These freedoms have created a number of challenges, particularly for the regulation of high seas fisheries, given the lack of a single regulatory authority such as a coastal state. This led to the negotiation of multilateral treaties to regulate particular fisheries and, ultimately, the Fish Stocks Agreement in 1995.

B  Deep Seabed [18.130]  The seabed beyond national jurisdiction is also dealt with in the LOSC. This seabed is referred to as ‘the Area’ and is designated as part of the common heritage of mankind. Its development and regulation are the responsibility of the International Seabed Authority (‘ISA’), which has made 83

84

Agreement between the Government of the Commonwealth of Australia and the Government of the Republic of Indonesia Establishing Certain Seabed Boundaries in the Area of the Timor and Arafura Seas, supplementary to the Agreement of 18 May 1971, opened for signature 9 October 1972, [1973] ATS 32 (entered into force 8 November 1973). LOSC art 58.

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regulations with respect to environmental protection and exploration of the Area.85 Mining the deep seabed was a very contentious issue at UNCLOS III. Australia, as a major land-based mineral producer, had a deep interest in ensuring that exploitation of the resources of the seabed was not the subject of unfair economic practices. Consequently, it played a leading role in the development of pt XI of the LOSC dealing with the Area and supported the inclusion of measures limiting production from the seabed during an interim period.86 However, pt XI remained a source of discord after the adoption of the LOSC — particularly for developed states, including the United States and members of the European Community that opposed the limitations on production. Fear that the LOSC would enter into force without the support of developed states led to urgent efforts effectively to recast pt XI into a form more palatable to those states. Again Australia played a key role in the development of a consolidated text known as the ‘Boat Paper’,87 which formed the basis for the modification of pt X of the LOSC. The Part XI Implementation Agreement,88 adopted on the floor of the General Assembly without dissent in 1994 before the entry into force of the LOSC, now provides the basis for the ISA’s activities. This basis was the subject of further elaboration by the Seabed Dispute Chamber of the International Tribunal for the Law of the Sea (‘ITLOS’) in its Advisory Opinion of 1 February 2011 on Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area.89 Australia has been a long-term member of the 36-member ISA Council. In 2015, it was re-elected as a member in Category C, being a net exporter of minerals of the type derived from the Area. As at 19 May 2014, 16 exploration contracts were in force, covering approximately 900,000 kilometres of the seafloor in the Atlantic, Indian and Pacific Oceans. Twelve contracts cover exploration for polymetallic nodules, two for polymetallic sulphides and two for cobalt-rich crusts.90 85 86

87

88

89

90

See . See Gregory French and Harry Reicher, ‘Law of the Sea’ in Harry Reicher (ed), Australian International Law: Cases and Materials (LBC Information Services, 1995) 303, 391–412, in relation to the role played by Australia in the negotiation of pt XI of the LOSC and the later Part XI Implementation Agreement. Dr Greg French of the Australian Department of Foreign Affairs and Trade chaired the Special Commission responsible for the drafting of the mining code from 1990 onwards. Agreement Relating to the Implementation of Part XI of the United Nations Conventions on the Law of the Sea of 10 December 1982, opened for signature 28 July 1994, 1836 UNTS 3 (entered into force 28 July 1996) (‘Part XI Implementation Agreement’). ITLOS Reports 2011. Australia made a written submission to ITLOS in that case: ‘Written Statement of Australia’, 19 August 2010, . International Seabed Authority, International Seabed Authority Ends Historic Session .

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C  Maritime Enforcement on the High Seas [18.140]  Regulation on the high seas is accomplished by means of flag state jurisdiction. Flag state jurisdiction provides that ships and aircraft are subject to the jurisdiction of their state of registration. A ship can only possess one state of registration at any given time.91 Subject to certain exceptions, only flag states can enforce their laws on their flagged ships on the high seas. The LOSC provides little detail in respect of what rules ought to be applied to the flagging of ships. Article 91 provides that a vessel needs to possess a ‘genuine link’ between itself and the ship flying its flag, but this requirement is not defined, and states can set their own conditions for the registration of ships. As a result, many vessels are registered in what are described as open registries (flags-of-convenience), where the connection between the ship and its flag can be tenuous at best. Certain conduct is regarded as sufficiently serious as to attract universal jurisdiction, so that any state can take action against that conduct. This includes piracy,92 the slave trade93 and unauthorised broadcasting.94 The LOSC also permits the boarding of a vessel lacking nationality by warships of any country.95 Enforcement on the high seas against vessels flagged in other states is also possible in other limited circumstances. The first is where an offending vessel has been the subject of ‘hot pursuit’ by the coastal state from areas within its jurisdiction into areas outside its jurisdiction. The most prominent example of an extended exercise of hot pursuit by Australia was the 21-day pursuit for over 3500 nautical miles of the Uruguayan flagged fishing vessel the Viarsa in 2003.96 The doctrine of hot pursuit can also be applied to mother ships outside the coastal state’s jurisdiction that are supporting unlawful activities within the coastal state’s jurisdiction.97 The second means of enforcement against foreign flagged vessels on the high seas is through international cooperation. A flag state of a vessel may authorise any other state to take enforcement action against that vessel on the high seas. This can be done on an ad hoc basis, or it can be authorised under treaty. Australia has sought and gained the permission of flag states on an ad hoc basis on a number of occasions, particularly in relation to

91 92 93 94 95 96

97

LOSC art 91. LOSC arts 100–107, 110. LOSC arts 99, 110. LOSC arts 109, 110. LOSC art 110. Another example, also in 2003, was the pursuit by Australia of the North Korean vessel the Pong Su, which was used to smuggle drugs into Australia. LOSC art 111.

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fisheries matters.98 Also, in recent years, a number of such arrangements have been concluded, notably in anti-terrorism activities.99 The enforcement powers under international law are given effect in Australia by the recently enacted Maritime Powers Act 2013 (Cth).100 This Act consolidates powers previously contained in a plethora of legislation into a single comprehensive set of enforcement powers that may be exercised in the maritime domain and provides certainty as to the circumstances of their exercise. Powers under the Act are exercised regularly by Australian authorities — for example, in relation to fisheries and migration matters and other aspects of border protection.101

V  TRANSIT PASSAGE THROUGH INTERNATIONAL STRAITS [18.150]  Part III of the LOSC sets out a specific regime for ‘straits used for international navigation’. An international strait to which pt III applies is a strait consisting of an area of territorial sea that must be passed through on a voyage from one part of the EEZ or high seas to another.102 As such, any international strait must by necessity be less than 24 nautical miles wide. For the application of the special navigational regime of transit passage to apply, the strait must be used for international navigation, not be the subject of a separate international agreement, and not have a route of similar convenience for shipping outside the territorial sea available for ships to use.103 If these criteria are all met, then the regime of ‘transit passage’ applies. Transit passage differs from innocent passage in a number of crucial respects, including that it cannot be suspended or hampered104 and that it is available to overflying aircraft as well as ships.105 Furthermore, ships 98 99

100

101

102 103 104 105

See Maritime Powers Act 2013 (Cth) s 41(1)(j). See, eg, Stuart Kaye, ‘Interdiction and Boarding of Vessels at Sea: New Developments and Old Problems’ in Rupert Herbert-Burns, Sam Bateman and Peter Lehr (eds), Lloyd’s MIU Handbook of Maritime Security (Taylor & Francis, 2009) 201–14. One aspect of the Act is that it enables maritime enforcement powers to be exercised in support of the implementation of a relevant international agreement or decision. An international decision includes a decision of the Security Council under ch VII of the United Nations Charter: see Maritime Powers Act 2013 (Cth) ss 8, 12–14. However, the failure to consider, or an inconsistency with, international obligations is not a ground for invalidating the exercise of certain powers under the Act; see, eg, Maritime Powers Act 2013 (Cth) s 22A. Various provisions of the Maritime Powers Act 2013 (Cth) were the subject of detailed consideration by the High Court: CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514. LOSC arts 36, 37. LOSC arts 35(c), 38. LOSC art 44. LOSC art 39.3.

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and aircraft in transit passage must proceed without delay through or over the strait and must refrain from any threat or use of force, as well as refrain from any activities other than those incident to their ‘normal modes of continuous and expeditious transit’.106 The latter requirement has been interpreted by a number of states to permit submarines, for which the normal mode of navigation is to travel submerged, to remain submerged during transit passage. Such navigation is explicitly excluded from innocent passage.107 Australia’s coastline abuts two international straits within the meaning of the LOSC: Bass Strait between the State of Tasmania and mainland Australia, and the Torres Strait between Australia and Papua New Guinea. Transit through the Torres Strait is particularly hazardous and a navigational incident could have catastrophic consequences, both for the fragile environment of the Strait and subsequent navigation through the Strait. With this in mind, and with the endorsement of the International Maritime Organization (‘IMO’),108 Australia introduced a voluntary scheme of pilotage in the Torres Strait for the purposes of enhancing the safety of navigation, but it yielded relatively low compliance rates. Therefore, in 2006, Australia introduced a system of compulsory pilotage in the Torres Strait. This followed the adoption of an IMO resolution recommending that states abide by Australia’s system of pilotage.109 This compulsory system achieved a compliance rate approaching 100 per cent. However, it was opposed by a number of states, including the United States and Singapore, on the basis that the compulsory nature of the system hampered transit passage in a manner inconsistent with the LOSC.110 Australia responded to this criticism in April 2009 by publishing a Marine Notice111 making clear that the Australian government would only take action against a ship not carrying a pilot if and when the ship entered an Australian port — that is, it would not stop a noncompliant vessel while in transit through the Strait.

106 107 108

109

110

111

LOSC art 39.1. LOSC art 20. IMO Resolution A619 (15) adopted 19 November 1987 . IMO Resolution MEPC.133 (53), adopted 22 July 2005, IMO document MEPC 53/24/ Add.2. See statement by the Permanent Representative of Singapore to the United Nations to the UN General Assembly, 7 December 2006, . See also statement by the Permanent Representative of Australia to the United Nations, 18 December 2007, (2007) 28 AYBIL 325–6. Australian Government, Australian Maritime Safety Authority, Bridge Resource Management (BRM) and Torres Strait Pilotage (Marine Notice 7/2009).

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VI  MARINE SCIENTIFIC RESEARCH [18.160]  The adoption of the LOSC, in particular pt XIII, represented a marked shift to a more detailed regulation of marine scientific research (‘MSR’) under international law. Within the territorial sea, MSR may only be conducted with the express consent of the coastal state.112 This reflects the sovereignty of the coastal state over the territorial sea. The provisions of the LOSC concerning MSR in the EEZ and on the continental shelf113 reflect a number of competing negotiating factors: Freedom of marine scientific research had to be reconciled with the zonal approach to marine jurisdiction entailing a wide and varied range of coastal State rights, obligations and duties in its different maritime zones.114 This led to a regime that entrenched the principle of consent of coastal states to research in their EEZs and continental shelves, but attempted to limit the circumstances in which consent could be withheld.115 One notable omission from the LOSC is a definition of ‘marine scientific research’. This has given rise to some uncertainties, such as whether bio-prospecting is MSR under the LOSC. The better view, given its commercial purpose, is that bio-prospecting is not MSR.116 It would follow that bio-prospecting is not subject to the onus under the LOSC in favour of the grant of a permit. That lack of definition and the consequential uncertainties notwithstanding, Churchill and Lowe conclude that state practice supports the conclusion ‘that the principle of coastal State consent for research in the EEZ and on the continental shelf is now part of customary international law’.117 While the conduct of MSR is recognised as a freedom of the high seas,118 the LOSC contains express provisions concerning MSR in the seabed and ocean floor beyond national jurisdiction (the Area).119

112 113 114

115

116

117

118 119

LOSC art 245. Particularly those contained in LOSC art 246. Myron H Nordquist (ed), United Nations Convention on the Law of the Sea 1982: A Commentary (Martinus Nijhoff, 1991) vol IV, 433. Research relating to the exploration and exploitation of resources or drilling into the continental shelf; LOSC art 246 (5); see also R R Churchill and A V Lowe, The Law of the Sea (Manchester University Press, 3rd ed, 1999) 405–6. Joanna Mossop, ‘Protecting Marine Biodiversity on the Continental Shelf beyond 200 Nautical Miles’ (2007) 38 Ocean Development and International Law 292–4; Donald R Rothwell and Tim Stephens, The International Law of the Sea (Hart Publishing, 2nd ed, 2016) 355. R R Churchill and A V Lowe, The Law of the Sea (Manchester University Press, 3rd ed, 1999) 409. LOSC art 87(1)(f). LOSC art 143.

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A  Australian Practice [18.170]  Australia has a number of treaty obligations, additional to those under the LOSC, that bear on MSR. Both the 1997 Australia–Indonesia Maritime Delimitation Treaty and the Torres Strait Treaty with Papua New Guinea contain provisions that deal with MSR in the areas of overlapping jurisdiction described earlier.120 Similarly, in the JPDA, Timor-Leste has jurisdiction over MSR in the water column121 and Australia and Timor-Leste would likely have joint jurisdiction over MSR in relation to the seabed. Australia also has MSR obligations under the Antarctic Treaty and the Madrid Protocol in the area south of 60°S.122 The focal point for the regulation of MSR in Australia’s maritime zones is the Marine Scientific Research: A Guide to Public Vessel Status (PVS) Requests administered by the Department of Foreign Affairs and Trade.123 The guide very much reflects pt XIII of the LOSC. The mechanism for the approval of the conduct of foreign scientific research in Australian waters is through the grant of ‘public vessel status’. Under the guide, ‘public vessels’ are ‘those vessels owned, chartered, temporarily employed, contracted or commissioned by any foreign State when such vessels are not engaged in any commercial activity’. One of the purposes of the guide is to ensure that those conducting scientific research are aware of, and comply with, relevant Commonwealth legislation, such as the Fisheries Management Act 1991 (Cth), which may require a permit or licence to carry out the research.

VII  PROTECTION OF THE MARINE ENVIRONMENT [18.180]  The overarching obligation of states with respect to the marine environment124 is reflected in pt XII art 192 of the LOSC: ‘States have the obligation to protect and preserve the marine environment’. As with the term ‘marine scientific research’, the term ‘marine environment’ is undefined in the LOSC.125 However, a proposal put forward by Malta in the course of the negotiations does provide a reasonable definition: 120 121 122

123

124

125

1997 Australia–Indonesia Maritime Delimitation Treaty art 7(i); Torres Strait Treaty arts 4(3)–(4). CMATS art 8. Antarctic Treaty, opened for signature 1 December 1959, 402 UNTS 71 (entered into force 23 June 1961) art 3; Protocol on Environmental Protection to the Antarctic Treaty of 1 December 1959, opened for signature 4 October 1991, [1998] ATS 6 (entered into force 14 January 1998) (‘Madrid Protocol’). Department of Foreign Affairs and Trade, Marine Scientific Research: A Guide to Public Vessel Status (PVS) Requests . The marine pollution and sea dumping aspects of marine environmental protection are dealt with in LOSC ch 17. The term ‘pollution of the marine environment’ is defined in LOSC art 1.

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The marine environment comprises the surface of the sea, the air space above, the water column and the sea-bed beyond the high tide mark including the biosystems therein or dependent thereon.126 The LOSC expressly accords the coastal state powers with respect to the preservation of the marine environment within its maritime zones.127 Other provisions of the LOSC — for example, those relating to the conservation and management of living resources — also serve to protect and preserve important elements of the marine environment.128 Furthermore, in line with art 237 of the LOSC, Australia and other countries have assumed obligations with respect to the protection and preservation of the marine environment under a range of other multilateral and bilateral treaties and instruments. The multilateral conventions include the Convention on Biological Diversity,129 the Madrid Protocol, the Convention on the Conservation of Antarctic Marine Living Resources130 and the Convention on International Trade in Endangered Species of Wild Fauna and Flora,131 to name but a few. Bilateral agreements under which Australia has assumed obligations with respect to the protection of the marine environment include the Torres Strait Treaty,132 the 1997 Australia–Indonesia Maritime Delimitation Treaty,133 the Timor Sea Treaty134 and the Sunrise Unitisation Agreement.135 A number of international initiatives of non-treaty status have continuing relevance in protection of the marine environment. These include the Rio Declaration on Environment and Development136 and Agenda 21,137 both adopted at the Earth Summit held in Rio de Janeiro in 1992. Principle 15 of the Rio Declaration requires states to apply a precautionary approach to prevent 126

127

128 129

130

131

132 133 134 135 136

137

Myron H Nordquist (ed), United Nations Convention on the Law of the Sea 1982: A Commentary (Martinus Nijhoff, 1991) vol IV, 42. LOSC arts 21(1)(f), 56(1)(b)(iii). The powers of coastal states also extend to the protection and preservation of the marine environment of the seabed of the whole of its continental shelf, including the ECS beyond 200 nautical miles. For example, LOSC arts 61, 117, 118, 119, 145. Convention on Biological Diversity, opened for signature 5 June 1992, 1760 UNTS 79 (entered into force 29 December 1993). Convention on the Conservation of Antarctic Marine Living Resources, opened for signature 20 May 1980, 1329 UNTS 47 (entered into force 7 April 1982). Convention on International Trade in Endangered Species of Wild Fauna and Flora, opened for signature 3 March 1973, 993 UNTS 243 (entered into force 1 July 1975). Torres Strait Treaty arts 13, 14. 1997 Australia–Indonesia Maritime Delimitation Treaty art 7. Timor Sea Treaty art 10. Sunrise Unitisation Agreement art 21. Report of the United Nations Conference on Environment and Development, GA Res 47/190, UN GAOR, UN Doc A/CONF.151/5/Rev.1 (28 September 1992). Report of the United Nations Conference on Environment and Development, GA Res 47/190, UN GAOR, UN Doc A/CONF.151/5/Rev.1 (28 September 1992).

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environmental degradation. This precautionary approach has been picked up by courts and tribunals — for example, in the Southern Bluefin Tuna Cases (New Zealand v Japan; Australia v Japan)138 and Whaling in the Antarctic (Australia v Japan: New Zealand Intervening).139 Chapter 17 of Agenda 21 deals with the marine environment and its seven program areas, including marine environmental protection; sustainable use and conservation of marine living resources; and addressing critical uncertainties for the management of the marine environment and climate change. For each identified program area, Agenda 21 sets out objectives, activities and means of implementation. Two other relevant ongoing UN initiatives are the development under the LOSC of a legally binding instrument on the conservation and use of marine biological diversity of areas beyond national jurisdiction140 and the United Nations Open-ended Informal Consultative Process on Oceans and the Law of the Sea.141 In matters other than marine pollution, the principal Australian legislation relating to the protection of the marine environment is the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (‘EPBC Act’).142 One of the nine matters of ‘national environmental significance’ to which the EPBC Act applies is Commonwealth marine areas. Other matters of national environmental significance with a marine element include world heritage properties, listed threatened species, and ecological communities and the Great Barrier Reef Marine Park. A number of processes have been established under the EPBC Act to protect the marine environment in the maritime zones adjacent to mainland Australia and the external territories. These include the development of marine bioregional plans and the establishment of marine reserves, including the Coral Sea Conservation Zone, the Elizabeth and Middleton Reefs Marine National Nature Reserve, and the Lord Howe Island Marine Park. Also, the EPBC Act serves to protect a number of Australian entries on the World Heritage List that have a marine component. These include the Great Barrier Reef, Heard and the McDonald Islands, and the Lord Howe Island Group.

138

139

140 141

142

Southern Bluefin Tuna Cases (New Zealand v Japan; Australia v Japan) ITLOS Reports 1999, 274 [77]–[80]. See also Responsibility and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (Advisory Opinion) (ITLOS Seabed Dispute Chamber, Case No 17, 1 February 2011) [125]–[135]. Whaling in the Antarctic (Australia v Japan: New Zealand Intervening) [2014] ICJ Rep 226, 356–7 (Judge Cançado Trindade), 455–6 (Judge ad hoc Charlesworth). UNGA RES 69/292 of 16 July 2015. UNGA Res 54/33 . No 91 of 1999 as amended.

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VIII  DISPUTE SETTLEMENT [18.190]  The bulk of contentious cases involving Australia before the ICJ and more obviously ITLOS have dealt with law of the sea and maritime matters.143 The Nuclear Test Case,144 the Timor Gap Case,145 the Southern Bluefin Tuna Arbitrations146 and Whaling in the Antarctic147 all had an integral connection with the sea.148 While successive Australian governments have utilised forms of international third-party dispute settlement in resolving certain maritime disputes, as noted earlier, they have taken the view that maritime delimitation disputes are best settled by negotiation rather than by third-party dispute settlement.

IX  THE WAY FORWARD [18.200]  Internationally, there has been a tendency to regard the LOSC as set in stone — that is, a constitution of the ocean providing an ongoing detailed framework governing ocean activities without being altered itself.149 However, in common with most other areas of international law, the law of the sea should be a dynamic body of law responding to the challenges of the world as it is today, as opposed to the world as it was over 30 years ago at the time of adoption of the LOSC. To date, a number of mechanisms have been used to rectify omissions in, as well as the unworkable elements of, the LOSC.150 Nor has the LOSC kept pace with technology and new horizons of discovery. The right of hot pursuit is but one example of the failure to keep pace with developments in technology. One example of a new horizon is access to, and development of, the genetic resources of the ocean. Other matters in need of attention include 143 144 145 146 147 148

149

150

See chapter 23 in relation to dispute settlement more generally. Nuclear Tests (Australia v France) [1974] ICJ Rep 253. East Timor (Portugal v Australia) [1995] ICJ Rep 90. Southern Bluefin Tuna Cases (New Zealand v Japan; Australia v Japan) ITLOS Reports 1999, 274. Whaling in the Antarctic (Australia v Japan: New Zealand Intervening) [2014] ICJ Rep 226. Australia also made a written submission before the ITLOS Seabed Dispute Chamber’s advisory opinion Responsibility and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (Advisory Opinion) (ITLOS Seabed Dispute Chamber, Case No 17, 1 February 2011), as well as written (2013) and oral (2014) submissions before ITLOS in the Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC) . See, for example, the statements made by Ambassador Tommy Koh and Professor Bernard Oxman in the Proceedings of the 20th Anniversary Commemoration of the Opening for Signature of the United Nations Convention on the Law of the Sea (2003) 15, 199. An example of the latter is the use of resolutions of the Meetings of States Parties to the LOSC to overcome the original 10-year limit on lodging a submission with the Commission on the Limits of the Continental Shelf.

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a modernisation of the provisions concerning the interception of vessels and the effect on maritime zones of a partial or wholesale loss of territory as a result of sea level rise. The period between the adoption of the four 1958 conventions and the LOSC was 24 years. Developments over the 30-year-plus period since the adoption of the LOSC have been no less dramatic than those that occurred in that preceding 24-year period. One option to deal with these developments is to proceed in the same ad hoc manner to date; another is to commence new negotiations with a view to either amending the LOSC or adopting a new comprehensive convention. Negotiating a completely new convention may be too much for the international community to bear, but amending the LOSC is entirely realistic and catered for by the convention itself.151

151

LOSC arts 312–316.

19 Australia and International Environmental Law Jacqueline Peel* and Tim Stephens

I INTRODUCTION [19.10]  International environmental law is the field of public inter­ national law concerned with the protection of the natural environment, and those aspects of the built environment recognised as world cultural heritage.1 Australia has been an enthusiastic participant in a plethora of global and regional environmental regimes, and is party to over 40 multi­ lateral e­ nvironmental or natural resource treaties.2 Domestically, Australia’s environmental treaty-making has had significant implications at local, state and federal levels. It is also noteworthy that Australia has been involved in several international environmental disputes. Australia was an applicant in the first case in the International Court of Justice (‘ICJ’) concerning trans­ boundary environmental damage (the Nuclear Tests cases),3 and a respondent *

1

2

3

Professor Peel acknowledges the research support of Melbourne Law School’s Seed Grants scheme and the invaluable research assistance of Emma Cocks. Jacqueline Peel, ‘Environmental Protection in the Twenty-First Century: The Role of International Law’ in Regina S Axelrod, Stacy D VanDeveer and David L Downie (eds), The Global Environment: Institutions, Law, and Policy (CQ Press, 3rd ed, 2011) 48. If bilateral treaties and protocols to framework conventions are included, the total rises significantly: Department of Foreign Affairs and Trade, The Australian Treaties Database . For a list of key treaties, see Department of the Environment, The Australian Environment Act: Report of the Independent Review of the Environment Protection and Biodiversity Conservation Act 1999 (2009) app 4 . Nuclear Tests (Australia v France) (Provisional Measures) [1973] ICJ Rep 99; Nuclear Tests (Australia v France) (Merits) [1974] ICJ Rep 253. 457

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in two subsequent ICJ cases concerning natural resources (Certain Phosphate Lands in Nauru4 and the East Timor case5). Australia was an applicant in the Southern Bluefin Tuna case6 and a respondent in the Volga case,7 both of which were brought under the 1982 United Nations Convention on the Law of the Sea.8 Most recently, Australia was successful in ICJ proceedings against Japan in the Whaling in the Antarctic case.9 Australia has also been involved in litigation in the World Trade Organization (‘WTO’) raising environmental issues.10 Since the 1970s, international environmental law has grown into a substantial and complex body of rules. In this chapter we focus only on those areas of international environmental law of particular significance to Australia. Our discussion is prefaced by an exploration of the ecological factors that have predisposed Australia to take an active interest in ­international environmental law. For the benefit of those readers less familiar with inter­ national environmental law, we also explain its evolution and underlying principles.

II  AUSTRALIA’S ENGAGEMENT WITH INTERNATIONAL ENVIRONMENTAL LAW [19.20]  The ecological profile of the Australian continent and its offshore territories, including the Australian Antarctic Territory,11 has inclined Australia to participate actively in the development of international envi­ ronmental law. Australia is an island continent with an extensive coastline and jurisdiction over adjacent marine areas.12 Although the driest inhabited continent, Australia supports an exceptionally wide variety of landscape types, ecosystems and species. Australia is one of 17 countries that are considered ‘mega-diverse’ because of the variety of unique ecosystems and species.13 It is unsurprising then that Australia has been a strong supporter of environmental 4 5 6

7 8

9

10

11 12 13

Certain Phosphate Lands in Nauru (Nauru v Australia) [1992] ICJ Rep 240. East Timor (Portugal v Australia) (Jurisdiction) [1995] ICJ Rep 90. Southern Bluefin Tuna (New Zealand v Japan; Australia v Japan) (Provisional Measures) (1999) 117 ILR 148; Southern Bluefin Tuna (Jurisdiction) (2000) 119 ILR 508. Volga (Russian Federation v Australia) (Prompt Release) (2003) 42 ILM 159. United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 UNTS 3 (entered into force 16 November 1994). Whaling in the Antarctic (Australia v Japan; New Zealand intervening) (Judgment) [2014] ICJ Rep 226. See, eg, Appellate Body Report, Measures Affecting the Importation of Apples from New Zealand, WTO Doc WT/DS367/AB/R (29 November 2010). See chapter 22. See chapters 17 and 18. Rodney Tiffen and Ross Gittins, How Australia Compares (Cambridge University Press, 2nd ed, 2009) 152–3.

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regimes to protect species and habitats, halt desertification, protect coastal and marine environments, and safeguard the unique environment of Antarctica. By virtue of its location in the Asia Pacific region, Australia has also engaged in a range of regional environmental and natural resource management initiatives, particularly in relation to fisheries.14 Balanced against this are several factors that have contributed to Australia’s ambivalence towards some environmental regimes. Australia’s economy is highly energy-intensive and reliant upon a stationary power sector in which around 85 per cent of electricity is generated from burning fossil fuels, principally brown and black coal.15 Australia is also heavily dependent on exports of coal and gas for national income.16 This goes some way to explaining Australia’s reticence in committing to a strong global agreement to reduce greenhouse gas emissions.17 Another example is in relation to the regulation of genetically modified organisms (‘GMOs’). Australia has not joined the 2000 Cartagena Protocol on Biosafety (‘Biosafety Protocol’),18 citing concerns that it may disadvantage the biotechnology industry in Australia and impede commodity trade in bulk GMO crops. Being a geographically isolated island nation, there are some areas of international environmental law concerned with transboundary issues that have little relevance to Australia. For instance, although many of Australia’s water basins have been managed unsustainably, as Australia shares no rivers or other freshwater resources with other states it has seen no need to participate in the development or implementation of international water law.

III  DEVELOPMENT OF INTERNATIONAL ENVIRONMENTAL LAW [19.30]  The origins of international environmental law lie in early disputes between states over natural resources and transboundary pollution. One of the best-known is the Trail Smelter Case19 between Canada and the United States, which concerned emissions from a lead and zinc smelter in Canada that damaged crops in the United States. It stated the famous dictum that 14

15

16 17

18

19

See Ben Boer, Ross Ramsay and Donald R Rothwell, International Environmental Law in the Asia Pacific (Kluwer Law International, 1998) ch 5. Office of the Chief Economist, Australian Energy Update 2015 (Commonwealth of Australia, 2015) 6. Department of Foreign Affairs and Trade, Composition of Australian Trade 2011 (2011) 3. Clive Hamilton, Scorcher: The Dirty Politics of Climate Change (Black Inc Agenda, 2007); Guy Pearse, High and Dry: John Howard, Climate Change and the Selling of Australia’s Future (Penguin Australia, 2007). Cartagena Protocol on Biosafety to the Convention on Biological Diversity of 5 June 1992, opened for signature 29 June 2000, 39 ILM 1027 (entered into force 11 September 2003) (‘Biosafety Protocol’). Trial Smelter Arbitration (United States v Canada) (1938 and 1941) 3 RIAA 1911.

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no state has the right to use, or permit the use of, its territory in such a way as to cause serious injury by pollution in the territory of another state.20 This principle is one of the few international environmental norms to be recognised as part of customary international law.21 It was only from the 1970s that it became possible to identify a distinctive body of ‘international environmental law’.22 In 1972, the UN Conference on the Human Environment in Stockholm, at which Australia was one of 113 state participants,23 adopted the landmark Declaration on the Human Environment (‘Stockholm Declaration’),24 which contains 26 fundamental international environmental law principles. Twenty years later, at the 1992 UN Conference on Environment and Development held in Rio, a more far-reaching statement of principles was adopted by consensus by the 175 participating states in the Rio Declaration on Environment and Development (‘Rio Declaration’),25 again with Australia a prominent and supportive player. The Rio Earth Summit also adopted Agenda 21,26 which remains to this day an influential plan of action for global environmental challenges. The Stockholm Declaration and the Rio Declaration are examples of the way in which international environmental law has been developed through ‘soft’ law instruments. These declarations are not legally binding; however, they have exerted a significant influence upon Australian law and policy.27 For instance, the 1992 Inter-Governmental Agreement on the Environment (‘IGAE’),28 which gives effect to a policy of ‘cooperative federalism’ in the environmental field, makes reference to ecologically sustainable development, the precautionary principle, and also intergenerational equity — the idea that 20

21

22

23

24

25

26

27

28

Trial Smelter Arbitration (United States v Canada) (1938 and 1941) 3 RIAA 1911, cited in Tim Stephens, International Courts and Environmental Protection (Cambridge University Press, 2009) 123–36. Gabc˘íkovo-Nagymaros Project (Hungary v Slovakia) [1997] ICJ Rep 7 [53]; Case Concerning Pulp Mills on the River Uruguay (Argentina v Uruguay) [2010] ICJ Rep 14 [101]. Lee Godden and Jacqueline Peel, Environmental Law: Scientific, Policy and Regulatory Dimensions (Oxford University Press, 2010) 333. W G Murray, Summary Report of the Australian Delegation to the United Nations Conference on the Human Environment (Government of Australia, 1972). Declaration of the United Nations Conference on the Human Environment, GA Res 2994, UN GAOR, 27th sess, 2112th plen mtg, UN Doc A/CONF.48/14/Rev.1 (15 December 1972) (‘Stockholm Declaration’). Report of the United Nations Conference on Environment and Development, GA Res 47/190, UN GAOR, UN Doc A/CONF.151/5/Rev.1 (28 September 1992) (‘Rio Declaration’). See also Jorge E Viñuales (ed), The Rio Declaration on Environment and Development: A Commentary (Oxford University Press, 2015). Report of the United Nations Conference on Environment and Development, GA Res 47/190, UN GAOR, UN Doc A/CONF.151/5/Rev.1 (28 September 1992) (‘Rio Declaration’). Jacqueline Peel, ‘Interpretation and Application of the Precautionary Principle: A ­ ustralia’s Contribution’ (2009) 18 Review of European Community and International Environmental Law 11, 25. National Environment Protection Council Act 1994 (Cth) sch.

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the present generation should pass on to future generations a healthy, diverse and productive natural environment. The period between 1972 and 1992 was a time of intense treaty-making activity, with major multilateral agreements seeking to protect the key elements of the global environment: the atmosphere,29 the oceans30 and ­biodiversity.31 In the more than 20 years since the Rio Conference, environ­ mental treaty-making has continued, with new agreements being reached, and existing treaties significantly amended or supplemented.32

A  Foundational Principles [19.40]  International environmental law is primarily treaty-based rather than customary. Another distinctive feature of international environmental law is the way in which it is structured around a collection of fundamental guiding principles of environmental policy. There are eight such principles that have commanded wide acceptance and have been expressed in environmental treaties.33 They are (1) the principle of sovereignty and responsibility: states possess permanent sovereignty over their natural resources, but have a responsibility to ensure that they do not cause transboundary damage; (2) the principle of preventive action: associated with a duty to avoid or minimise appreciable environmental harm to other states or global commons areas through the implementation of preventive measures; (3) the principle of cooperation: an extension of the general principle of good neighbourliness to environmental matters; (4) the precautionary principle/approach: where there are threats of serious or irreversible damage, scientific uncertainty should not be used as a basis for postponing measures to prevent environmental degradation; (5) the principle of sustainable development: an overarching principle requiring states ‘to reconcile economic development with protection of the environment’;34 29

30

31

32

33

34

United Nations Framework Convention on Climate Change, opened for signature 9 May 1992, 1771 UNTS 165 (entered into force 21 March 1994) (‘UNFCCC’); Vienna Convention for the Protection of the Ozone Layer, opened for signature 22 March 1985, 1513 UNTS 324 (entered into force 22 September 1988); Montreal Protocol on Substances That Deplete the Ozone Layer, opened for signature 16 September 1987, 1522 UNTS 29 (entered into force 1 January 1989). United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 UNTS 3 (entered into force 16 November 1994). Convention on Biological Diversity, opened for signature 5 June 1992, 1760 UNTS 143 (entered into force 29 December 1993) (‘CBD’). See, eg, Paris Agreement on Climate Change, opened for signature 22 April 2016, [2016] ATNIF 31 (not yet in force). Philippe Sands and Jacqueline Peel (with Adriana Fabra and Ruth MacKenzie), Principles of International Environmental Law (Cambridge University Press, 3rd ed, 2012) 187–236. Gabc˘íkovo-Nagymaros Project (Hungary v Slovakia) [1997] ICJ Rep 7 [140].

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(6) the polluter-pays principle: dictating that the costs of pollution should be borne by polluters; (7) the principle of equity both between generations (inter­ generational equity) and within the present generation (intra-­generational equity) as regards the use of natural resources and the enjoyment of an environment of a reasonable standard; and (8) the principle of common but differentiated responsibility: another equitable principle placing a special responsibility on developed countries in the pursuit of sustainable development. While only a handful have been recognised as having the status of customary or general principles of international law,35 these principles provide the conceptual framework upon which more specific rules affecting different natural resources are built. The following sections of the chapter consider some of the most important of these specific areas of international environ­ mental law for Australia.

B  World Heritage [19.50]  International efforts to protect heritage sites of outstanding uni­ versal value began to take shape in the 19th century. These efforts merged with proposals in the 1960s for the protection of outstanding natural areas advanced by the International Union for the Conservation of Nature (‘IUCN’) and presented at the 1972 Stockholm Conference. Eventually, a single text, the Convention Concerning the Protection of the World Cultural and Natural Heritage (‘World Heritage Convention’),36 was adopted under the auspices of the United Nations Educational, Scientific and Cultural Organization (‘UNESCO’) on 16 November 1972. Australia was one of the first countries to ratify the treaty. The World Heritage Convention recognises that parts of the cultural and natural heritage located in countries are of ‘outstanding universal value’ and should be ‘preserved as part of the world heritage of mankind as a whole’.37 Parties accept the primary ‘duty’ of ensuring the identification, protection, conservation, presentation and transmission to future generations of world heritage sites situated on their territories.38 Under the convention, parties 35

36

37 38

For instance, the responsibility principle (Legality of the Threat of Use of Nuclear Weapons [1996] ICJ Rep 226, 242), the principle of preventative action requiring environmental impact assessment (Case Concerning Pulp Mills on the River Uruguay (Argentina v Uruguay) [2010] ICJ Rep 14 [204]), the principle of co­operation (MOX Plant Case (Ireland v United Kingdom) (Provisional Measures) (2002) 41 ILM 405 [82], [84], [89]) and the principle of sustainable development (Iron Rhine Arbitration (Belgium v Netherlands) (Judgment) (2005) Permanent Court of Arbitration Award Series [59]). Convention Concerning the Protection of the World Cultural and Natural Heritage, opened for signature 23 November 1972, 1037 UNTS 151 (entered into force 17 December 1975) (‘World Heritage Convention’). World Heritage Convention Preamble. World Heritage Convention art 4.

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also pledge to ensure that ‘active and effective measures’ (including legal measures) are taken for these purposes ‘in so far as possible, and as appropriate for each country’.39 The federal government is responsible for identifying and nominating suitable areas within Australia for inclusion on the World Heritage List, overseen by UNESCO’s World Heritage Committee. The rich natural and cultural heritage of Australia has seen 19 sites qualify for acceptance on the World Heritage List.40 The World Heritage Convention has had enduring significance in Australia in shaping domestic federal–state relations and responsibilities with respect to the environment.41 In the seminal Tasmanian Dam Case,42 which concerned the constitutionality of federal legislation implementing the World Heritage Convention,43 the High Court held that the external affairs power gives the Commonwealth the capacity to legislate to implement its obligations under an environmental treaty, even though it has no general competence over environmental matters. Subsequent litigation in the High Court further tested the federal government’s powers to implement the World Heritage Convention. In the Lemonthyme Forests Case,44 the High Court upheld legislation45 providing interim protection from logging for areas of the Lemonthyme and Southern Forests in Tasmania that were being considered for world heritage listing. In a second case, also involving areas designated for logging, the High Court refused Queensland’s request to question the international listing process, ruling that ‘[a]s the inclusion of the property in the [World Heritage] List is conclusive of its status in the eyes of the interna­ tional community, it is conclusive of Australia’s international duty to protect and conserve it’.46 Conflicts over world heritage listings eased during the 1990s as the Commonwealth retreated from exercising the full extent of its newfound constitutional powers in favour of a cooperative approach.47 The compromise was given effect through policy instruments, such as the 1992 IGAE, under which the Commonwealth, states, territories and local governments 39 40

41

42 43

44 45 46 47

World Heritage Convention art 5. See UNESCO, World Heritage Centre, The States Parties — Australia, UNESCO . Jacqueline Peel and Lee Godden, ‘Australian Environmental Management: A “Dams” Story’ (2005) 28 University of New South Wales Law Journal 668. Commonwealth v Tasmania (1983) 158 CLR 1 (‘Tasmanian Dam Case’). World Heritage Properties Conservation Act 1983 (Cth). This legislation has since been repealed, and World Heritage matters are now addressed in the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (‘EPBC Act’) discussed below. Richardson v Forestry Commission (1988) 164 CLR 261 (‘Lemonthyme Forests Case’). Lemonthyme and Southern Forests (Commission of Inquiry) Act 1987 (Cth). Queensland v Commonwealth (1989) 167 CLR 232, 242. Ben Boer, ‘World Heritage Disputes in Australia’ (1992) 7 Journal of Environmental Law & Litigation 247.

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agreed that they would take a shared and coordinated approach to imple­ menting international environmental obligations.48 The policy of cooperative federalism has guided the spirit of Australian environmental governance since that time. More recently, world heritage has again become a battleground in Australia, but this time as a site of disputes between the federal government and environmental organisations over the detrimental impacts of climate change. Inadequate action by the Australian and other governments in responding to climate change has encouraged environmental organisations and individuals to investigate the use of international legal forums as a means of forcing reductions in greenhouse gas emissions.49 One avenue pursued has been petitioning the World Heritage Committee to list climate changevulnerable sites on the convention’s List of World Heritage in Danger.50 Petitions of this kind have been submitted for Australian world heritage sites in the Blue Mountains and the Great Barrier Reef. While not successful in achieving an ‘in danger’ listing, the petitions have prompted wider policy discussions within UNESCO to examine and mitigate the effects of climate change on world heritage.51

C  Hazardous Substances and Pollution [19.60]  There is now a substantial body of international rules directed to regulating hazardous and dangerous substances and wastes such as toxic chemicals, pesticides and persistent organic pollutants (POPs), as well as by-product wastes from industrial and manufacturing processes. As an island nation, Australia is relatively immune from transboundary harm associated with hazardous substances and wastes (such as may arise from chemical spills in shared waterways). However, the increasingly liberalised world trading system has expanded possibilities for hazardous substances and wastes to affect all countries. In addition, Australia’s waste disposal practices, particu­ larly the dumping of wastes at sea, have undergone significant change in response to evolving international legal requirements.52 Hazardous substances and wastes are not regulated by any single inter­ national organisation or treaty. Instead, there is a patchwork of different international laws, the applicability of which depends upon the nature 48

49

50 51 52

Pursuant to the Inter-Governmental Agreement on the Environment (1992) sch 8 para 3, the federal government agreed to consult with the relevant state or states, and use its best endeavours to obtain agreement, on nominations to the World Heritage List. See William C G Burns and Hari M Osofsky (eds), Adjudicating Climate Change: State, National and International Approaches (Cambridge University Press, 2009). World Heritage Convention art 11(4). UNESCO, Climate Change and World Heritage . Department of Defence and Department of Environment and Heritage, Sea Dumping in Australia: Historical and Contemporary Aspects (2003).

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of a particular substance and the location of the activity with which it is associated. Aside from international laws governing the disposal of hazardous and other wastes at sea,53 the principal treaties of relevance for Australia are those touching on international trade in, and transportation of, hazardous substances. 1  Trade and Disposal of Hazardous Wastes [19.70]  In 1989, the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (‘Basel Convention’)54 was concluded with the objective of regulating the transport and disposal of hazardous and other wastes in order to protect human health and the environment.55 Australia was relatively slow to accept the Basel Convention, only acceding just prior to the convention’s entry into force in 1992. For Australia, a problematic element of the Basel Convention is its broad coverage of wastes, including recyclable materials. Although Australian industry has the capacity to recycle or reuse hazardous wastes, it has not always proven economical to do so.56 As a consequence, Australia has relied on trade in recyclable hazardous wastes to avoid their disposal to domestic landfill or long-term storage facilities. For instance, in 2000, Australia exported 60 tonnes of hazardous waste to South Africa, and, in 2010, it authorised a shipment of 6100 tonnes of hexachlorobenzene (a highly toxic by-product of certain industrial and agricultural chemical processes) to Denmark (although Denmark later revoked its acceptance in light of domestic political opposition).57 The Basel Convention was one of the first environmental treaties to employ trade restrictions. It affirms the right of parties to prohibit imports of

53

54

55

56

57

See generally Donald R Rothwell and Tim Stephens, The International Law of the Sea (Hart/ Bloomsbury, 2nd ed, 2016) 402–7. Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, opened for signature 22 March 1989, 1673 UNTS 57 (entered into force 5 May 1992) (‘Basel Convention’). Basel Convention art 1 defines wastes as hazardous either by reference to categories set out in annex I (unless they do not possess the characteristics listed in annex III), or if classified as hazardous by national legislation. Many obligations under the convention also apply to ‘other wastes’ listed in annex II, which includes household wastes or residue from incineration of household wastes. Radioactive wastes and wastes discharged from the normal operation of ships are excluded provided that they are regulated by other international instruments. Zada Lipman and Robert H Thompson, ‘Product/Waste Distinctions and Australia’s Domestic Legislation’ (1996) 9(1) Georgetown International Environmental Law Review 119, 126–7. Joe Kelly, ‘Denmark Cancels Shipments of Toxic Chemical Waste from Australia’, The Australian (online), 24 December 2010, .

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hazardous and other wastes for disposal58 and provides that waste shipments may only take place between parties, except where a specific arrangement exists with a non-party.59 Parties are also obliged to reduce the generation of hazardous wastes, to prevent pollution from such wastes, and to prohibit the import or export of wastes if they have reason to believe that the wastes will not be managed in an environmentally sound manner.60 Australia implements these obligations via the Hazardous Waste (Regulation of Exports and Imports) Act 1989 (Cth),61 which initially controlled only hazardous waste shipments intended for final disposal, and not recyclable and recoverable wastes. In 1996, the Act was overhauled to remedy this contravention of the conven­ tion’s requirements; however, issues remain over what materials fall within the scope of recyclable wastes that are subject to the restricted trading regime imposed by the convention.62 The Hazardous Waste (Regulation of Exports and Imports) Act establishes a requirement for permits to be issued for proposed hazardous waste exports or imports.63 The federal Environment Minister may only grant a permit to export hazardous wastes where it can be shown that the wastes will be managed in an environmentally sound manner in the country of import.64 Concerns over the proper disposal of hazardous wastes have been acute in developing countries that lack the financial and technical resources to manage hazardous waste imports and disposal. In response to such concerns, in 1995 the Basel Convention parties adopted the Basel Ban65 on the export of hazardous wastes from Organisation for Economic Co-operation and Development (‘OECD’) countries to non-OECD countries. Australia also participates in regional initiatives, such as the Convention to Ban the Importation into Forum Island Countries of Hazardous and Radioactive Wastes 58 59

60 61

62

63 64 65

Basel Convention art 4. Australia has two such arrangements under the Hazardous Waste (Regulation of Exports and Imports) (Waigani Convention) Regulations 1999 (Cth) (allowing Australia to receive hazardous wastes exported from South Pacific Forum Island countries not party to the Basel Convention) and the Hazardous Waste (Regulation of Exports and Imports) (Imports from East Timor) Regulations 2003 (Cth). Basel Convention art 4(2). See also Australian and New Zealand Environment and Conservation Council, National Strategy for the Management of Scheduled Waste (6 November 1992) . Zada Lipman and Robert H Thompson, ‘Product/Waste Distinctions and Australia’s Domestic Legislation’ (1996) 9(1) Georgetown International Environmental Law Review 119, 127–9. Hazardous Waste (Regulation of Exports and Imports) Act 1989 (Cth) pt 4. Hazardous Waste (Regulation of Exports and Imports) Act 1989 (Cth) s 17(1)(a). Third Meeting of the Conference of the Parties to the Basel Convention, Decision III/1, UNEP/CHW.3/35 (‘Basel Ban’); see also L de la Fayette, ‘Legal and Practical Implications of the Ban Amendment to the Basel Convention’ (1995) 6 Yearbook of International Environmental Law 703.

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and to Control the Transboundary Movement and Management of Hazardous Wastes within the South Pacific Region (‘Waigani Convention’),66 which prohibits outright the importation of hazardous and radioactive waste into Pacific developing parties. 2  Chemicals Regulation [19.80]  Management of risks arising from the production, use and trade in chemicals is a relatively new concern of international environmental law, although some specialised regimes (such as that for ozone-depleting substances) and regional arrangements (for example, in Europe) have been in place for some time. The two main treaties are the 1998 Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (‘PIC Convention’)67 and the 2001 Stockholm Persistent Organic Pollutants Convention (‘POPs Convention’).68 Australia is a party to both. In addition, Australia is an active participant in various inter­ national forums concerned with chemical risk management, including the Chemicals Committee of the OECD and the Inter-Governmental Forum on Chemical Safety. The PIC Convention builds on voluntary schemes administered by the Food and Agriculture Organization and the United Nations Environ­ ment Programme governing trade in hazardous chemicals.69 The central element of the PIC Convention is a prior informed consent and notification regime for banned or severely restricted chemicals listed in the conven­ tion’s annex III. Forty-seven chemicals or categories of chemicals are currently listed, with the potential for more to be added by the conference of the parties.70 The PIC Convention is implemented in Australia through regulations under the Customs Act 1901 (Cth), which impose controls on the import and export of listed chemicals.71 As a number of chemicals regulated 66

67

68

69

70 71

Convention to Ban the Importation into Forum Island Countries of Hazardous and Radioactive Wastes and to Control the Transboundary Movement and Management of Hazardous Wastes within the South Pacific Region, opened for signature 22 March 1989, 2161 UNTS 91 (entered into force 21 October 2001) art 4 (‘Waigani Convention’). See further David van Hoogstraten and Peter Lawrence, ‘Protecting the South Pacific from Hazardous and Nuclear Waste Dumping: The Waigani Convention’ (1998) 7(3) Review of European Community & International Environmental Law 268. Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, opened for signature 11 September 1998, 38 ILM 1 (entered into force 24 February 2004) (‘PIC Convention’). Stockholm Convention on Persistent Organic Pollutants, opened for signature 22 May 2001, 40 ILM 532 (entered into force 17 May 2004) (‘POPs Convention’). Philippe Sands and Paolo Galizzi, Documents in International Environmental Law (Cambridge University Press, 2nd ed, 2004) 252, 813. PIC Convention arts 7, 8. Customs (Prohibited Imports) Regulations 1956 (Cth); Customs (Prohibited Exports) Regulations 1958 (Cth).

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under the PIC Convention are toxic pesticides, the Agricultural and Veterinary Chemicals (Administration) Regulations 1995 (Cth) are also relevant. Like the PIC Convention, the POPs Convention adopts a listing approach.72 Initially, the POPs Convention targeted 12 POPs, the use and production of which must be eliminated (annex A chemicals) or severely restricted (annex B chemicals). These chemicals, including dioxins and the pesticide DDT, are known as the ‘dirty dozen’ and were heavily regulated in many developed countries, including Australia, prior to the conclusion of the POPs Convention. For example, the final registration for use of DDT was issued in Australia in 1987 and importation of the pesticide is prohibited.73 Australia has thus largely relied on its existing legal framework for pesticide and chemical registration and control in order to implement obligations under the POPs Convention. This framework consists of both federal laws, such as the Agricultural and Veterinary Chemicals (Administration) Act 1992 (Cth) and the Industrial Chemicals (Notification and Assessment) Act 1989 (Cth), and state and territory pollution control legislation.74 The main implementation challenge posed by the POPs Convention for Australia arises from the convention’s processes for adding new chemicals to the list of regulated POPs. Proposals for new listings may be put forward by any party and proceed through a process of chemical risk assessment overseen by a scientific expert committee.75 Final decisions on the listing of new chemicals are taken by the conference of the parties, which is instructed to act ‘in a precautionary manner’.76 This reference to the precautionary principle was opposed by the United States and Australia.77 While these states were not successful in eliminating all references to precaution, the treaty does adopt their preferred risk assessment approach in the process for new listings. In August 2010, the parties to the POPs Convention agreed to add nine new chemicals to the convention’s annexes.78 While Australia supported this decision, the new listings do not take effect for Australia until it ratifies the amendment. The Environment Department is still undertaking regulatory impact and national interest analyses to determine whether to accept the 72

73 74

75 76 77

78

Noelle Eckley, ‘Traveling Toxics: The Science, Policy, and Management of Persistent Organic Pollutants’ (2001) 43(7) Environment: Science and Policy for Sustainable Development 24. Customs (Prohibited Imports) Regulations 1956 (Cth). Department of Environment and Heritage, Stockholm Convention on Persistent Organic Pollutants: Australia’s National Implementation Plan (2006) app B. POPs Convention art 8. POPs Convention art 8(9). Andrew Yoder, ‘Lessons from Stockholm: Evaluating the Global Convention on Persistent Organic Pollutants’ (2003) 10(2) Indiana Journal of Global Legal Studies 133; Kevin Stairs, ‘The Obstructive Role of the US, Canada and Australia in Negotiating International Environmental Policy and Law Making’ (Greenpeace International, 2000) . UNEP/POPS/COP.4/38 (8 May 2009), decisions SC-4/10 to SC-4/18.

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amendment.79 Some of the newly listed POPs could be easily accommodated within Australia’s existing chemicals restrictions, as they are no longer in use in Australia. However, others, such as polybrominated flame retardants and perfluorooctane sulphonate, are still widely used.80

D  Biodiversity Conservation [19.90]  Concerns over the conservation of living natural resources motivated some of the earliest environmental treaties and international disputes. Initially, the purpose of international environmental regulation was to promote more sustainable use of living resources to ensure the economic sustainability of dependent industries such as fishing. However, in the 1970s, environmental concern shifted towards a goal of preservation based on the intrinsic worth of species. Broadly, a distinction has emerged between international environ­ mental treaties concerned with marine living resources and fisheries (which tend to emphasise the sustainable use approach)81 and those concerned with endangered species and biodiversity protection (which tend to emphasise a conservationist approach). 1  Species Protection [19.100]  Many international treaties concerned with species conservation reflect an ongoing tension between objectives of sustainable use and pres­ ervation. The 1946 International Convention for the Regulation of Whaling (‘ICRW’)82 exemplifies these tensions. In its 2014 judgment in Whaling in the Antarctic, the ICJ brought much-needed clarity to the so-called ‘scientific whaling exception’ under the ICRW, which allows parties unilaterally to engage in lethal research of large cetaceans. The ICJ determined that Japan’s large-scale research whaling program in the Southern Ocean (known as JARPA II) was not undertaken ‘for purposes of scientific research’ as required by art VIII of the ICRW.83 The Court therefore held that JARPA II violated the moratorium on whaling for commercial purposes, a ban that has been in place under the ICRW since 1985.84 Significantly, the ICJ did not rule that lethal scientific whaling was necessarily unlawful. The Court emphasised that the ICRW expressly allows for the conduct of scientific whaling programs, 79

80

81 82

83

84

See Department of Environment, Stockholm Convention on Persistent Organic Pollutants (POPs) . Department of the Environment and Energy, Nine New POPs and the Treaty Making Process . See further chapter 15. International Convention for the Regulation of Whaling, opened for signature 2 December 1946, 161 UNTS 72 (entered into force 10 November 1948) (‘ICRW’). ICRW art VIII allows states parties to issue special permits to their nationals to take whales for scientific purposes. Whaling in the Antarctic (Australia v Japan; New Zealand intervening) (Judgment) [2014] ICJ Rep 226 [247].

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including those that are lethal and that ‘pursue an aim other than either conservation or sustainable exploitation of whale stocks’.85 Rather, the key limitation set by the Court was that any scientific whaling program must be designed and implemented in a way that is reasonable in relation to achieving its stated objectives.86 Japan’s expansive program was determined not to be reasonable. The Court’s judgment focused on the ICRW and did not explore general topics of international environmental law;87 however, Judge Cançado Trindade88 and Judge ad hoc Charlesworth89 in their separate opinions did range more broadly and both considered the precautionary principle to be relevant to the interpretation of art VIII.90 Judge ad hoc Charlesworth observed that ‘treaties dealing with the environment should be interpreted wherever possible in light of the precautionary approach, regardless of the date of their adoption’.91 Protection of species is the central concern of two of the principal inter­ national environmental law treaties adopted in the 1970s: the Convention on International Trade in Endangered Species of Wild Fauna and Flora (‘CITES’),92 and the Convention on the Conservation of Migratory Species of Wild Animals (‘Bonn Convention’).93 CITES aims to preserve endangered species by controlling or eliminating international markets in such species or their products (for example, ivory tusks and turtle shell products). Species are classified by CITES according to their endangerment status, which in turn determines how strictly their import and export are regulated. For example, trade in the most endangered species listed in app I is highly restricted and may not take place for commercial purposes.94 Australia is a party to CITES and the legislative basis for meeting Australia’s responsibili­ ties under CITES is pt 13A of the Environment Protection and Biodiversity 85

86

87

88

89

90

91

92

93

94

Whaling in the Antarctic (Australia v Japan; New Zealand intervening) (Judgment) [2014] ICJ Rep 226 [58]. Whaling in the Antarctic (Australia v Japan; New Zealand intervening) (Judgment) [2014] ICJ Rep 226 [67]. Whaling in the Antarctic (Australia v Japan; New Zealand intervening) (Judgment) [2014] ICJ Rep 226. Whaling in the Antarctic (Australia v Japan; New Zealand intervening) (Judgment) [2014] ICJ Rep 226, 348 (Judge Cançado Trindade). Whaling in the Antarctic (Australia v Japan; New Zealand intervening) (Judgment) [2014] ICJ Rep 226, 453 (Judge Charlesworth). Judge Cançado Trindade also referred to the principles of intergenerational equity and prevention: Whaling in the Antarctic (Australia v Japan; New Zealand intervening) (Judgment) [2014] ICJ Rep 226, 348 [41]–[47], [60]–[71]. Whaling in the Antarctic (Australia v Japan; New Zealand intervening) (Judgment) [2014] ICJ Rep 226 [9] (Judge ad hoc Charlesworth). Convention on International Trade in Endangered Species of Wild Fauna and Flora, opened for signature 3 March 1973, 993 UNTS 243 (entered into force 1 July 1975) (‘CITES’). Convention on the Conservation of Migratory Species of Wild Animals, opened for signature 23 June 1979, 1651 UNTS 355 (entered into force 1 November 1983) (‘Bonn Convention’). CITES art 3.

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Conservation Act 1999 (Cth) (‘EPBC Act’).95 Coordination of the enforcement of CITES obligations is the responsibility of the International Wildlife Trade Section of the federal Environment Department, although most investiga­ tions of illegal wildlife trade are undertaken by the Australian Customs Service or the Australian Federal Police. The Bonn Convention of 1979 is concerned with migratory species that, because their populations habitually move across national borders, require international regulation to ensure their conservation.96 As with CITES, the Bonn Convention utilises a listing approach, with the most endangered species listed in app I generating a state obligation to ‘endeavour’ to conserve and restore their habitats and to prohibit takings except under very limited circumstances.97 In respect of app II species, which are not endangered but have an unfavourable conservation status, states parties must conclude agreements with other range states on measures to restore the conservation status of such species.98 The Bonn Convention entered into force for Australia in 1991. The EPBC Act is again the primary mechanism through which the convention is enforced domestically. Bonn Convention migratory species are a designated ‘matter of national environmental significance’ under the Act, and actions that may be potentially detrimental to such species require assessment and approval.99 In addition, protected areas established under federal or state legislation offer protection for many migratory species. Kakadu National Park is a good example, providing habitat for 21 of the species listed under the Bonn Convention that are found in Australia. National efforts to protect migratory species are complemented by bilateral and multilateral arrangements with other countries, particularly in respect of migratory bird species.100 2  Conservation of Biological Diversity [19.110]  The concept of biological diversity (or biodiversity) is of more recent origin than species protection, being rooted in the ecosystem thinking of ecological science and increasing scientific knowledge of the differing genetic make-up of living organisms. Biodiversity is generally considered in relation to three components: genetic diversity (genetic variation within a species), species diversity (the variety of species within a region) and ecosystem diversity (the 95

96 97 98 99 100

Margaret Allars, ‘To Breed or to Exhibit? The Asian Elephants Case and Reasons for Regulatory Failure’ (2007) 24(5) Environmental and Planning Law Journal 239. Bonn Convention arts I, II. Bonn Convention art III. Bonn Convention art IV. EPBC Act s 20. Department of the Environment and Energy, East Asian–Australasian Flyway Partnership .

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variety of ecosystem types within a region).101 A focus on bio­diversity conser­ vation has led to a reorientation of international environmental law towards issues of habitat protection, inter-species relationships, and the maintenance of critical ecological processes. Early examples of international environmental treaties taking an ecosystem-based conservation approach include the 1971 Convention on Wetlands of International Importance Especially as Waterfowl Habitat (‘Ramsar Convention’),102 which seeks the conservation and wise use of wetlands in light of the ‘fundamental ecological functions of wetlands as regulators of water regimes and as habitats supporting a characteristic flora and fauna, especially waterfowl’.103 Similarly to the World Heritage Convention, the Ramsar Convention obliges parties to nominate suitable wetlands within their territories for inclusion on the List of Wetlands of International Importance.104 Parties undertake to formulate and implement their planning to promote the con­ servation of listed wetlands,105 and to establish natural reserves on wetlands (whether listed or not) to protect the wetlands and resident waterfowl.106 In the event of changes to the ecological character of a listed wetland, parties are to notify the Convention Secretariat ‘without delay’.107 Australia has been a party to the Ramsar Convention since 1974. In the same year, Australia designated the world’s first Wetland of International Importance: the Cobourg Peninsula in the Northern Territory. Today, Australia has 66 Ramsar wetlands.108 Ramsar wetlands are designated ‘matters of national environmental significance’ under the EPBC Act and actions having a significant impact on their ecological character cannot be undertaken without approval.109 One of the few prosecutions brought under the EPBC Act involved a Ramsar wetland site that had been ploughed and planted with crops by a farmer whose property encompassed the site.110 101

102

103 104 105 106 107 108

109 110

Philippe Sands and Jacqueline Peel (with Adriana Fabra and Ruth MacKenzie), Principles of International Environmental Law (Cambridge University Press, 3rd ed, 2012) 449. Convention on Wetlands of International Importance Especially as Waterfowl Habitat, opened for signature 2 February 1971, 996 UNTS 245 (entered into force 21 December 1975) (‘Ramsar Convention’). Another example is the United Nations Convention to Combat Desertification in Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa, opened for signature 17 June 1994, 1954 UNTS 3 (entered into force 26 December 1996). Ramsar Convention Preamble. Ramsar Convention art 2. Ramsar Convention art 3(1). Ramsar Convention art 4(1). Ramsar Convention art 3(2). Department of the Environment, Australia’s Ramsar Sites (2013) . EPBC Act s 16. Greentree v Minister for the Environment and Heritage (2005) 223 ALR 679.

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Nonetheless, Australia’s compliance with the Ramsar Convention in other respects has been far from exemplary.111 Australia has failed to report to the Ramsar Secretariat on wetlands damage caused by drought, pollution and irrigation, and wetlands continue to be one of Australia’s most threatened ecosystems for example, the Coorong wetlands at the mouth of the Murray River).112 While the Ramsar Convention incorporates elements of an ecosystemsbased approach, its limited focus on one ecosystem type contrasts with the comprehensive approach of the 1992 Convention on Biological Diversity (‘CBD’),113 which encompasses ‘the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems’.114 The CBD pursues three broad objectives: the conservation of biological diversity, the sustainable use of its components, and the fair and equitable sharing of the benefits arising from the use of genetic resources.115 The last-mentioned objective illustrates the way in which the CBD moves beyond traditional environmental concerns. Access to genetic resources of plant and animal species located within particular countries is considered vital for fostering scientific research that might lead to the development of new medicines or technologies with beneficial environmental applications. However, the CBD also emphasises the need for the financial benefits of the commercial application of such research to be shared with the countries of origin and their local or indigenous communities. In October 2010, the parties to the CBD concluded the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from Their Utilization.116 This protocol creates a legally binding framework for access to genetic resources for research activities, and sharing the benefits from their use or the use of associated traditional knowledge. The protocol currently has 70 parties. Australia has signed the protocol and, if it proceeds with ratifica­ tion, this could carry significant implications for the research community 111

112

113

114

115 116

James Pittock et al, ‘Changing Character: The Ramsar Convention on Wetlands and Climate Change in the Murray–Darling Basin, Australia’ (2010) 27(6) Environmental and Planning Law Journal 401. Richard T Kingsford et al, ‘A Ramsar Wetland in Crisis — the Coorong, Lower Lakes and Murray Mouth, Australia’ (2011) 62(3) Marine and Freshwater Research 255. Convention on Biological Diversity, opened for signature 5 June 1992, 1760 UNTS 143 (entered into force 29 December 1993) (‘CBD’). CBD art 2, definition of ‘biological diversity’. See also D E Fisher, ‘The Impact of Inter­ national Law upon the Australian Environmental Legal System’ (1999) 16 Environmental and Planning Law Journal 372. CBD art 1. Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from Their Utilization, opened for signature 2 February 2011, [2012] ATNIF 3 (not yet in force) (‘Nagoya Protocol’).

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and the nation’s indigenous peoples (as holders of traditional knowledge about biodiversity).117 The CBD places duties upon parties both in respect of ex situ bio­diversity conservation (for example, in zoos) and, more critically, in situ bio­ diversity conservation and management.118 The CBD also identifies specific biodiversity threats to be managed by parties — such as those that may be posed by alien invasive species and GMOs — and directs that indigenous and traditional knowledge relevant for the conservation and sustainable use of biological diversity be respected, preserved and maintained.119 Parties are further required to introduce appropriate procedures requiring envi­ ronmental impact assessment of proposed projects likely to have significant adverse effects on biological diversity and, where appropriate, allow for public participation in such procedures.120 Australia was among the first group of countries to ratify the CBD in 1993. It finalised a National Strategy for the Conservation of Australia’s Biological Diversity in 1996, which was reviewed and replaced in 2010 by Australia’s Biodiversity Conservation Strategy 2010–2030. Federally, the main mechanism for implementing commitments under the CBD is the EPBC Act. The Act includes objectives for promoting the conservation of biodiversity and ecologically sustainable development through the conser­ vation and ecologically sustainable use of natural resources.121 To achieve these objectives, the legislation couples a regime for biodiversity conserva­ tion and management with a system of environmental impact assessment and approval for activities that may have significant impacts on designated matters of national environmental significance, including threatened species and ecological communities. In order to come within the ambit of the EPBC Act, a threatened species or ecological community must be included on the national list established by the Environment Minister, with advice from the Threatened Species Scientific Committee.122 The Act also contains provision for the listing of ‘key threatening processes’, such as predation by feral species, incidental by-catch in fishing operations, and land clearance. Private development action that may be detrimental to biodiversity is regulated under the EPBC Act’s assessment and approval regime. A person or corporation seeking to take an ‘action’ (which is broadly defined)123 that 117

118 119 120 121 122

123

Department of the Environment and Energy, The Nagoya Protocol — Convention on Biological Diversity . CBD arts 8, 9. CBD arts 8(h), (g), (j), 17 respectively. CBD art 14. EPBC Act ss 3(1)(b), (c). EPBC Act ss 18, 178, 266B. Threatened species and communities are divided into categories depending on their degree of endangerment. EPBC Act s 523.

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will have, may have, or is likely to have significant impacts on a nationally listed threatened species or ecological community may only do so with federal approval. Failure to secure approval amounts to a contravention of the Act, with provision for both civil and criminal penalties.124 In addition, third parties, such as environmental groups, may seek injunctions in the Federal Court to prevent actual or threatened contraventions of the Act,125 and they are also given extended standing rights to seek judicial review of decisions made under the Act.126 The fairly general obligations under the CBD have been supplemented over time by protocols dealing with specific aspects of biodiversity conser­ vation: the Nagoya Protocol (discussed above) and the Biosafety Protocol concerned with regulating transboundary movements and risks associated with ‘living modified organisms’.127 Australia is not a party to the Biosafety Protocol. However, at the domestic level, different considerations operate as a result of consumer concern over the environmental and health risks posed by GMOs. A relatively stringent regime exists under the Gene Technology Act 2000 (Cth) governing the environmental release of GMOs, and several states maintain moratoria on the growing of GMO crops in their jurisdictions.128

E  Atmospheric Pollution [19.120]  The protection of the atmosphere has been a longstanding concern of international environmental law. The problem receiving the earliest attention was acid rain, and in the Northern Hemisphere a sophisticated legal regime now regulates the transboundary air pollution that causes acid rain and localised ozone pollution.129 Australia has not experienced such trans­ boundary air pollution (although several of its neighbours in the region have had to deal with major problems of transboundary haze pollution resulting from peat and forest fires in Indonesia).130 Australia has, however, been 124 125 126

127

128

129

130

EPBC Act ss 18A, 18(1). EPBC Act s 475. EPBC Act s 487. The Commonwealth government is seeking to repeal this provision: George Brandis, ‘Government Acts to Protect Jobs from Vigilante Litigants’ (Media Release, 18 August 2015). ‘Living modified organisms’ are defined as ‘any living organism that possesses a novel combination of genetic material obtained through the use of modern biotechnology’: CBD art 3(g); exclusions exist for human pharmaceuticals (art 5), transit and contained use (art 6). Following the first federal approvals of GMO canola varieties, all states and territories except Queensland and the Northern Territory enacted GMO crop moratorium legislation (although several of these were subsequently lifted). Convention on Long-Range Transboundary Air Pollution, opened for signature 13 November 1979, 1302 UNTS 218 (entered into force 16 March 1983). See ASEAN Agreement on Transboundary Haze Pollution, opened for signature 10 June 2002 (entered into force 25 November 2003) .

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concerned with two global air pollution issues that have particular domestic implications: ozone depletion and climate change. 1  Ozone Depletion [19.130]  In the late 1970s, scientists discovered a large hole in the ozone layer, the thin layer of trioxygen (O3) that protects the Earth from dangerous ultraviolet light that not only causes skin cancer in humans but also damages a range of plants and animals.131 Clear scientific evidence and widespread public concern led to negotiations on a global regime to phase out the production and consumption of ozone-depleting chlorofluorocarbons (CFCs) and hydrochlorofluorocarbons (HCFCs), synthetic substances invented in the 1920s and used in products from hairspray to refrigerators. In 1985, agreement was reached by over 130 states, including Australia, on the Vienna Convention for the Protection of the Ozone Layer.132 This was a framework treaty setting out general principles. However, new scientific evidence confirming the seriousness of the ozone depletion problem led to the 1987 Montreal Protocol on Substances That Deplete the Ozone Layer (‘Montreal Protocol’),133 which committed parties to reducing the production and consumption of ozone-depleting substances by 50 per cent on 1986 levels by 1998. Subsequently, tougher targets were agreed through a succession of amendments. The Montreal Protocol also includes mechanisms for assisting developing states to use alternative, non-damaging, substances; bans the trade in ozone-depleting substances with non-parties; and sets out detailed requirements for reporting data on the production and trade in controlled compounds. Although responsible for less than 1 per cent of emissions of ozonedepleting substances, Australia has been a strong supporter of the ozone regime given the particular threat that ozone depletion poses to nations in the southern hemisphere, where ozone thinning is most pronounced.134 Australia has ratified the Vienna Convention, the Montreal Protocol and all of the amendments agreed to date, and the Commonwealth has implemented its international obligations under the regime through the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 (Cth). Complementary legislation was passed by state and territory Parliaments.135 The ozone regime 131

132

133

134

135

Laura M Martinez-Levasseur et al, ‘Acute Sun Damage and Photoprotective Responses in Whales’ (2011) 278(1711) Proceedings of the Royal Society B 1581. Vienna Convention for the Protection of the Ozone Layer, opened for signature 22 March 1985, [1988] ATS 26 (entered into force 22 September 1988). Montreal Protocol on Substances That Deplete the Ozone Layer, opened for signature 24 September 1987, [1989] ATS 18 (entered into force 1 January 1989) (‘Montreal Protocol’). Greg Rose, ‘Australian Approaches to International Environmental Law during the Howard Years’ (2008) 27 Australian Year Book of International Law 115, 133. See, eg, Ozone Protection Act 1989 (NSW).

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is widely regarded as a success story of international cooperation. Between 1986 and 2007, the parties to the Montreal Protocol achieved a 97 per cent reduction in the consumption of ozone-depleting substances.136 As a result, the ozone layer has begun to recover and may be restored to full health by the end of the century.137

F  Climate Change [19.140]  In 1988, the United Nations General Assembly recognised climate change as a ‘common concern of mankind’ and initiated negotiations that led to the conclusion of the United Nations Framework Convention on Climate Change (‘UNFCCC’)138 and the Kyoto Protocol.139 Australia is highly vulnerable to the impacts of climate change and can expect a range of severe impacts if there is no mitigation of global emissions. Under a business-asusual scenario, it is expected that by 2100 the Great Barrier Reef will be destroyed, the frequency of drought will increase substantially, there will be severe stress on urban water supplies, and there will a more than 90 per cent decline in irrigated agricultural production in the Murray–Darling Basin.140 At the same time, Australia’s greenhouse gas emissions on a per capita basis are among the highest in the world,141 and successive governments have failed to introduce enduring and effective climate laws and policies. At the UNFCCC negotiations, Australia and several other states, including those of the European Union, argued for binding emissions targets; however, the United States and oil-producing countries vetoed their inclusion. A com­promise was ultimately reached, committing industrialised countries to return their emissions to 1990 levels by 2000.142 The overarching goal of the UNFCCC is set out in art 2: the ‘stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system.’ In pursuing the UNFCCC’s objective, parties are guided by several principles. The first is that the climate system is to be protected for the benefit of present and future generations, on the basis of equity and according to

136

137

138

139

140 141 142

United Nations, The Millennium Development Goals Report 2009 (2009) 42 . United Nations Ozone Secretariat, Achievements in Stratospheric Ozone Protection: Progress Report 1987–2007 (2008). United Nations Framework Convention on Climate Change, opened for signature 4 June 1992, 1771 UNTS 107 (entered into force 21 March 1994) (‘UNFCCC’). Kyoto Protocol to the United Nations Framework Convention on Climate Change, opened for signature 11 December 1997, 2303 UNTS 162 (entered into force 16 February 2005) (‘Kyoto Protocol’). Ross Garnaut, The Garnaut Climate Change Review: Final Report (2008) ch 6. Ross Garnaut, The Garnaut Climate Change Review: Final Report (2008) 153. UNFCCC arts 4(2)(a)–(b).

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common but differentiated responsibilities and respective capabilities.143 Second, particular attention must be paid to the needs and special circum­ stances of developing countries — especially those states that are vulnerable to climate change, such as small island developing states. Third, the UNFCCC incorporates the precautionary principle, so that full scientific certainty should not be used as an excuse for failing to take measures to prevent climate change. The UNFCCC divides countries into two categories: industrialised nations and non-industrialised nations (that is, developing states). The industrialised nations are listed in annex I of the UNFCCC. The UNFCCC imposes some obligations on all parties (such as duties to report greenhouse gas emissions), but the annex I parties have specific duties to take the lead in combating climate change. Australia is an annex I party, and one of the first states to join the UNFCCC — which, with 192 parties, is one of the most widely ratified treaties in history. 1  1997 Kyoto Protocol [19.150]  The Kyoto Protocol was the product of three years of negotiations that saw Australia win two key concessions.144 First, Australia was permitted to increase emissions, by 8 per cent over 1990 levels, during the first commitment period of 2008–12 (only two other countries — Iceland and Norway — were allowed to increase emissions). The second concession was the inclusion of the so-called ‘Australia clause’,145 allowing emissions from land clearing to be included in a state’s 1990 baseline emissions level. As land clearing was being brought under control in the 1990s, this meant that Australia would meet its Kyoto target relatively easily and major industries would then be able to increase their emissions. Australia signed the Kyoto Protocol in 1998; however, after the Bush administration in the United States took a hard-line position against the Kyoto Protocol, the Australian government also changed its position. The Howard government announced that Australia would not ratify the protocol, as it would damage the Australian economy.146 It was only when the Rudd government was elected to office in 2007 that Australia finally ratified the Kyoto Protocol. Article 3(1) of the Kyoto Protocol states that the annex I parties must ‘[i]ndividually or jointly, ensure that their aggregate anthropogenic carbon dioxide equivalent emissions … do not exceed their assigned amounts … inscribed in Annex B’, with the aim that developed states would reduce their overall emissions by at least 5 per cent below 1990 levels by the end of the first commitment period, 2008–12. Five-year commitment periods allow 143 144 145 146

UNFCCC art 3(1). Clive Hamilton, Scorcher: The Dirty Politics of Climate Change (Black Inc Agenda, 2007) 74. Kyoto Protocol art 3(3). Guy Pearse, High and Dry: John Howard, Climate Change and the Selling of Australia’s Future (Penguin Australia, 2007) 77.

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parties to average their emissions over a number of years, and smooth the effects of one-off events that could lead to unexpected spikes in emissions. To help achieve its objectives, the Kyoto Protocol established three market-based ‘flexible mechanisms’: joint implementation of emissions reduction projects by two or more industrialised parties; the clean development mechanism (the CDM) under which emissions reduction projects can be implemented in developing states parties; and emissions trading. At COP18 — the 18th session of the Conference of the Parties — in Qatar, it was agreed in the ‘Doha Amendment’ that the Kyoto Protocol would be extended to a second commitment period from 2013 to 2020. Australia agreed, along with member states of the European Union, to accept a second commitment period, although some other developed countries will not do so. Australia’s second commitment period target is a 5 per cent cut on 2000 levels by 2020, a target that it can meet only by carrying over credit for surpassing its first Kyoto target. 2  2015 Paris Agreement [19.160]  The Paris Agreement147 is the latest treaty to be concluded as part of the international climate change regime.148 Unlike the Kyoto Protocol, it requires all parties, both developed and developing, to take action to address climate change. In respect of mitigation, each party undertakes to ‘prepare, communicate and maintain successive nationally determined contributions that it intends to achieve’.149 Parties are further required to ‘pursue domestic mitigation measures, with the aim of achieving the objectives of such contribu­ tions’.150 Nationally determined contributions (‘NDCs’) are to be updated on a five-yearly cycle and are subject to internationally administered accounting, reporting and transparency requirements. However, NDCs are set by parties in their own domestic policy-making processes, rather than being imposed as a matter of international law. Importantly, however, the Paris Agreement specifies various principles and procedures that will apply to NDCs. NDCs are to represent ‘ambitious efforts’ with ‘a progression over time’ that are taken ‘with the view to achieving the purpose’ of the Paris Agreement.151 The purpose of the Paris Agreement, set out in art 2, is to enhance imple­ mentation of the UNFCCC and ‘to strengthen the global response to the threat of climate change, in the context of sustainable development and efforts to

147

148

149 150 151

Paris Agreement on Climate Change, opened for signature 22 April 2016, [2016] ATNIF 31 (not yet in force) (‘Paris Agreement’). This section of the chapter draws from Neil Gunningham and Jacqueline Peel, Discussion Paper: Climate Law and Energy Regulation (Australian Panel of Experts on Environmental Law, Draft Paper, January 2016) (on file with authors). Paris Agreement art 4.2. Paris Agreement art 4.2. Paris Agreement art 3.

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eradicate poverty’.152 Specifically, the Paris Agreement aims to hold the global average temperature increase to ‘well below 2°C above pre-industrial levels’, and parties also agree ‘to pursue efforts to limit the temperature increase to 1.5°C above pre-industrial levels, recognizing that this would significantly reduce the risks and impacts of climate change’.153 Key features of the Paris Agreement include: „„ a collective aim to reach global peaking of emissions ‘as soon as possible’, and to undertake rapid reductions thereafter ‘in accordance with best available science’;154 „„ a collective aim to achieve carbon net neutrality in the second half of the century;155 „„ a commitment that each successive NDC of a party ‘will represent a progression beyond the Party’s then current nationally determined contri­ bution and reflect its highest possible ambition’;156 „„ an obligation on developed country parties to ‘continue taking the lead by undertaking economy-wide absolute emission reduction targets’;157 and „„ the establishment of a ‘global stocktake’ procedure, to commence in 2023 and continue every five years thereafter, which will assess collective progress towards achieving the purpose of the Paris Agreement.158 The first NDCs are likely to be the same as those submitted before or during the Paris conference. In Australia’s case, that is an economy-wide emissions reduction target of 26–28 per cent below 2005 levels by 2030. While this target appears comparable to that of other developed countries (for example, the United States pledges a cut of 26–28 per cent from 2005 levels by 2025), the adoption of a 2005 baseline (a historically high year for emissions in Australia), coupled with a 10-year timeframe, means that Australia’s NDC sits at the low end of developed country pledges.159 The government’s target also falls well short of recommendations by the independent Climate Change Authority for the adoption of more stringent targets to cut emissions 30 per cent from 2000 levels by 2025, and 40–60 per cent from 2000 levels by 2030.160 152 153 154 155 156 157 158 159

160

Paris Agreement art 2.1. Paris Agreement art 2.1(a). Paris Agreement art 4(1). Paris Agreement art 4(1). Paris Agreement art 4(3). Paris Agreement art 4(4). Paris Agreement arts 14(1)–(2). Frank Jotzo, ‘Australia’s 2030 Climate Target Puts Us in the Race, but at the Back’, The Conversation, 12 August 2015, . Climate Change Authority, First Draft Report of the Special Review: Australia’s Future Emissions Reduction Targets (April 2015) .

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3  Implementation of International Climate Change Law in Australia [19.170]  Australia’s most definitive regulatory response to climate change was the carbon pricing mechanism established under the Clean Energy Act 2011 (Cth), enacted by the Gillard government and later repealed by the Abbott government. The carbon pricing mechanism commenced with a ‘fixed price’ phase and was set to transition to a fully fledged emissions trading scheme in 2015. The carbon pricing mechanism represented the culmination of many decades of debate in Australia over the design of climate policy for emissions reduction.161 It was widely endorsed by commentators as a welldesigned, albeit not perfect, regulatory measure for the purpose.162 There is also growing evidence that, prior to its repeal, the carbon pricing mechanism had a measureable impact in reducing national emissions, especially from the electricity sector.163 With the repeal of the Clean Energy Act 2011 (Cth) and other climaterelevant laws, such as the Energy Efficiency Opportunities Act 2006 (Cth), the landscape of federal climate law is now barren. The ‘centrepiece’ of the Abbott and Turnbull governments’ climate policy is the misleadingly named ‘Direct Action’. The legislative basis for Direct Action is a 2014 amendment to the Carbon Credits (Carbon Farming Initiative) Act 2011 (Cth). This established the Emissions Reduction Fund (‘ERF’). Allocated $2.55 billion in the 2014–15 budget, the ERF provides financial incentives to businesses, organisations and individuals across a variety of sectors to reduce emissions. Participants tender emissions-reducing projects that are selected through an auction process run by the Clean Energy Regulator. To date, two auctions have been held for the ERF with contracts issued to purchase 93 megatonnes of carbon dioxide equivalence of emissions reductions from vegetation, waste, agriculture, savanna burning, energy efficiency, transport and coal-mine gas projects. The ERF is a voluntary scheme for emissions reduction,164 though some broad constraints on emissions will be introduced from 1 July 2016 through the scheme’s ‘safeguard mechanism’.165 This mechanism will cover facilities 161

162 163

164

165

See Alexander Zahar, Jacqueline Peel and Lee Godden, Australian Climate Law in Global Context (Cambridge University Press, 2012) 155–63. Frank Jotzo, ‘Australia’s Carbon Price’ (2012) 2 Nature Climate Change 475. AAP, ‘Carbon Tax Repeal Sparks Jump in Australia’s Electricity Emissions’, The Guardian (online), 5 July 2015, . Voluntary schemes for emissions reduction in Australia have been ineffective in lowering national greenhouse gas emissions. See, eg, Rory Sullivan, ‘Greenhouse Challenge Plus: A New Departure or More of the Same?’ (2006) 23 Environmental and Planning Law Journal 65. See Department of the Environment, The Safeguard Mechanism — Overview (2016) .

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with direct (scope 1) emissions166 of more than 100,000 tonnes of CO2-e a year. Covered facilities must ensure that their emissions do not exceed their individual ‘baseline’ — the highest level of reported emissions for a facility over the historical period 2009–10 to 2013–14. Beyond Direct Action and ERF, several other federal laws regulate aspects of Australia’s greenhouse gas emissions generation.167 The most important of these is the Renewable Energy (Electricity) Act 2000 (Cth), which establishes the Renewable Energy Target (‘RET’) with the goal of increasing the uptake of clean, renewable energy sources in the electricity sector. The Abbott government significantly reduced the RET target (from 41,650 gigawatthours to 33,000 gigawatt-hours, a nearly 20 per cent cut).168 It also sought to abolish the Clean Energy Finance Corporation and the Australian Renewable Energy Agency.

IV CONCLUSION [19.180]  Despite the country’s relative geographic isolation, international environmental law is of vital importance for Australia. As international enviro­ nmental law has developed, treaties have focused to a greater extent on environmental protection within states, in addition to more traditional transboundary or ‘common heritage’ concerns.169 Modern international environmental treaties, such as the POPs Convention, the CBD and the UNFCCC, establish principles and obligations that penetrate deeply into domestic environmental governance arrangements and expose the actions of states parties, including Australia, to international scrutiny and supervision. The Paris Agreement, with its requirements for transparency, reporting and regular review, is a good example. This means that Australia’s performance against international standards is evaluated by independent international bodies and may be found wanting, with the possibility of flow-on effects for the nation’s reputational and economic interests.170 Another emerging trend 166

167

168

169

170

Scope 1 emissions are those directly produced by a facility — for example, CO2 from a coal-fired power plant. Scope 2 emissions are indirect emissions from the consumption of purchased electricity, heat or steam. Scope 3 emissions are all other indirect emissions — for example, from the burning of coal harvested in a domestic coal mine. These include the National Greenhouse and Energy Reporting Act 2000 (Cth), which establishes reporting requirements for greenhouse gas emissions and energy consumption by large corporate emitters. ABC News, ‘Renewable Energy Target: Legislation to Cut RET Passes Federal Parliament’, ABC News (online), 23 June 2015, . D E Fisher, ‘The Impact of International Law upon the Australian Environmental Legal System’ (1999) 16 Environmental and Planning Law Journal 372. See especially Alexander Zahar, Jacqueline Peel and Lee Godden, Australian Climate Law in Global Context (Cambridge University Press, 2012) ch 3.

Ch 19: AUSTRALIA AND INTERNATIONAL ENVIRONMENTAL LAW   483

is for international supervision of Australian environmental measures to be exercised by international institutions outside of the environmental field, such as the WTO, investment arbitration or human rights review bodies. The growing importance of international environmental law both for Australia’s foreign policy and in its domestic environmental legal framework may place constraints on the scope or ambition of environmental measures adopted by Australia in some areas. Climate change mitigation is one example where the Paris Agreement potentially adds to the pressure on national governments to increase the ambition of domestic emissions reduction targets in light of the agreement’s long-term temperature goal. The increasing fluidity of the boundary between international and Australian environmental law also opens up opportunities for a ‘bottom-up’ process of legal development where environmental objectives and regulatory approaches are shaped as much by domestic practice and priorities as by rules set at the international level. In this context, a country such as Australia has some capacity to internationalise its domestic regulatory initiatives, including models for emissions trading, for chemicals’ risk management, and for protecting and conserving biodiversity.

20 Australia and International Air Law Ron Bartsch

I INTRODUCTION [20.10]  International air law by virtue of the very essence of aviation activities necessarily requires and relies upon international harmonisation of the highest order. It is the freedom and agility by which aviation operations can readily transcend previously restrictive geographic and political boundaries that truly differentiates flying from all other modes of transport. To harness this freedom for the betterment of all, aviation regulation provides the requisite authority, responsibility and sanctions. The regulation of aviation is as fundamental and rudimentary to the industry as civil order is to modern society. In no other field of human endeavour or branch of law does there exist such a vital yet symbiotic relationship. Since its very beginning, commercial aviation has been subject to stringent legal and regulatory control.1 Only six months after the commencement of the first regular international passenger air service,2 27 states signed the Convention Relating to the Regulation of Aerial Navigation3 in Paris on 13 October 1919. The Paris Convention (as it became known) heralded the 1

2

3

Some commentators suggest that the commencement of commercial operations began with balloon operations. For a more detailed account of the first regulations pertaining to civil aviation, see Ronald I C Bartsch, International Aviation Law (Ashgate Publishing, 2012) ch 1. See also Ronald I C Bartsch, Aviation Law in Australia (Thomson Reuters, 4th ed, 2013) ch 1. The weekly service between Paris and Brussels commenced on 22 March 1919 for a fare of 365 francs. Lignes Aériennes Farman operated Farman F60 Goliath biplanes with a flying time of 2 hours 50 minutes. Convention Relating to the Regulation of Aerial Navigation, opened for signature 13 October 1919, 11 LNTS 173 (entered into force 11 July 1922) (‘Paris Convention’). Art 1 stated: ‘The High Contracting Parties recognise that every Power has complete and exclusive sovereignty over the air space above its territory.’ 485

486    INTERNATIONAL LAW IN AUSTRALIA

beginning of international air law in confirming, virtually at the dawn of airline operations, the desire of governments throughout the world to systematically control aviation. Today, the Chicago Convention4 of 1944, which updated and replaced the Paris Convention, is one of the most prolifically ratified international treaties. More than 190 sovereign states have ratified this convention and, in so doing, have agreed, under international air law, to be bound by the technical and operational standards5 developed by the International Civil Aviation Organization (‘ICAO’) and as detailed in the 18 annexes. In summary, the very essence of aviation is travel. With rapid advancements in aircraft design and technology, largely attributable to two World Wars, aircraft are now able to fly faster, higher and further than ever before. In very few fields of human endeavour or scientific achievement have advances been accomplished so swiftly and with such global application as has been the case with aeronautics. As a leading aviation legal commentator states: The use of aircraft has destroyed all effective frontier barriers, even the barrier of the ocean. So the sovereign states of the world have been forced to try to replace their differing systems of national laws by one international system for the flow of international traffic and trade. So far the system is still very far off. But no other system of law has been so rapidly developed by sovereign states collaborating for national and international objectives.6

II  AIR LAW [20.20]  Throughout the world, there has been considerable debate in relation to any universally agreed definition for the terms air law, aeronautical law and aviation law. Sometimes the terms are even used interchangeably. In the main, air law is generally considered as ‘the law governing the aeronautical uses of the air space’.7 Air law is predominantly the concern of specialist lawyers. Consistent with the above definition, ‘air law’ has received widespread acceptance and usage even though the actual term is somewhat of a misnomer: It is safe to conclude that the term ‘air law’ from its inception was confined only to the legal regulation of social relations generated by the aeronautical uses of the air space. The term ‘aeronautical law’ would be more precise but a century of common use of the term ‘air 4

5 6 7

Convention on International Civil Aviation, signed 7 December 1944, 15 UNTS 295 (entered into force 4 April 1947) (‘Chicago Convention’). As prescribed in the various standards and recommended practices (‘SARPs’). C N Shawcross and K M Beaumont, Air Law (Butterworths, 4th ed, 1977) 9. Michael Milde, Essential Air and Space Law Series: International Air Law and ICAO (Eleven International Publishing, 2008) 5.

Ch 20: AUSTRALIA AND INTERNATIONAL AIR LAW   487

law’ should be respected and any terminological doubts, disputes or preferences are of no practical relevance.8 If air law or the law of the air were to apply to the literal or common meaning of the word ‘air’ as the ‘medium’ or the ‘atmosphere’, then this would logically extend its application to a consideration of radiotelegraphy, telecommunication, infra-red radiation and so on.9 Obviously, that is not what is commonly understood by the notion of ‘air law’ and, if the proposition extracted above is accepted, which generally it is, then air law and aero­ nautical law should be considered one and the same. An alternative definition of air law, and one that has received considerable support, is ‘that body of rules governing the use of airspace and its benefits for aviation, the general public and the nations of the world’,10 The incongruity of the second definition, in comparison to the first, is that it significantly expands the scope of activities to which air law applies. Not that there is anything fundamentally irreconcilable with the second definition — however, to deviate so substantially from the subject matter of the first, it creates, in the opinion of the author, unnecessary confusion and ambiguity as to its common meaning and usage. The nature, scope and therefore application of the second definition of air law would be considerably different from what is generally understood to be the doctrinal jurisdiction of this branch of the law. Throughout this chapter, ‘air law’ will be considered, as originally defined above, as that branch of law governing the aeronautical uses of the airspace.

A  Aviation Law [20.30]  Aviation law is a broader term than air (aeronautical) law and has been defined as that branch of law that comprises rules and practices that have been created, modified or developed that apply to aviation activities.11 By way of analogy, aviation law is to air law as maritime law is to the law of 8

9

10

11

Michael Milde, Essential Air and Space Law Series: International Air Law and ICAO (Eleven International Publishing, 2008) 2. N Matte, Treatise on Air-Aeronautical Law (Institute and Centre of Air and Space Law, McGill University, 1981), actually considers aeronautical law as a subset and only part (albeit ‘the most important’ part) of air law: 52. The author does not accept or see any practical relevance for such a distinction. For a detailed exposition of this topic, see N Matte, Treatise on Air-Aeronautical Law (Institute and Centre of Air and Space Law, McGill University, 1981), especially ch 3: ‘The Notion and Definition of Air-Aeronautical Law’. I Diederiks-Verschoor, An Introduction to Air Law (Kluwer Law International, 8th ed, 2006) 1. See also Michael Milde, Essential Air and Space Law Series: International Air Law and ICAO (Eleven International Publishing, 2008), who suggests that air law would be more appropriately termed ‘aeronautical law’, but the extensive use and acceptance of the term air law ought to be respected. For an outline of the broader aspects of international treaty law, see Conway W Henderson, Understanding International Law (Wiley-Blackwell, 2010). For an outline of general aspects of the doctrinal basis and the classification and definition of air law and aviation law, see Ronald I C Bartsch, Aviation Law in Australia (Thomson Reuters, 4th ed, 2013) ch 1.

488    INTERNATIONAL LAW IN AUSTRALIA

the sea. To assist with the clarity of expression and reduce the potential for problems to arise in the application (or misapplication) of these terms in this title, the above definitions will respectively apply to the terms ‘air law’ and ‘aviation law’. Aviation law therefore encompasses the business aspects of airlines and general aviation activities and their regulation. Likewise, those aspects of insurance law, commercial law, competition law and so on that peculiarly relate to aviation activities will all form part of aviation law. Security and environmental regulations applicable to aviation activities are also within the scope of aviation law. Also included within the domain of aviation law is the regulatory oversight of aviation activities by regulators, government agencies and others. Aviation law is not separate from other divisions of law in the way that, say, the law of contract and the law of negligence are. The fact that there are relatively few reported cases on aviation has tended to obscure and mask the identification of this generic branch of law in Australia.12 In Australia, aviation law encompasses both international law and municipal law, the vast majority of which is legislative in nature.

B  International Air Law [20.40]  International law is that body of legal rules that apply between sovereign states and such entities that have been granted international per­ sonality. Within the aviation community, the concept of international per­sonality extends to organisations such as ICAO, which is a division of the United Nations — both of which are key players in international law. International conventions (for example, the Chicago Convention in regard to ICAO) detail and confer international personality upon these respective organisations. As there is no sovereign international authority with the power to enforce decisions or even compel individual states to follow rules, international law has often been considered as not being a ‘true law’. In aviation, however, because of the extensive and important role of international institutions such as ICAO and the International Air Transport Association (‘IATA’) and the proliferation of honoured bilateral agreements between nations, including the almost universal ratification of international conventions concerning international civil aviation, the existence of an international law would be difficult to deny. That branch of international air law that determines the rules between contracting states and other international personalities is known as public 12

There are relatively few Australian aviation cases because most tend to resolve into insurance cases, the bulk of which settle on economic grounds. In contrast, in the United States, the development and application of legal principles in aviation scenarios have flourished because of the sheer volume of such litigation.

Ch 20: AUSTRALIA AND INTERNATIONAL AIR LAW   489

international air law. The Paris Convention and the Chicago Convention are true charters of public international air law. This term contrasts with the law relating to private disputes in which one of the parties may be of another state. This is the realm of private international air law or conflict of laws. International air law is essentially a combination of both public and private international air law. It has been suggested that its principle purpose is to provide a system of regulation for international civil aviation and to eliminate conflicts or inconsistencies in domestic air law.13

C  International Treaty Law [20.50]  Treaty law is the major source of international air law and is constituted by multilateral and bilateral agreements between sovereign states.14 A convention does not become part of Australian law unless and until it has been ratified15 or otherwise incorporated into the law by legislation. In some aspects of aviation activities — namely, those relating to technical matters and safety — the High Court of Australia, in considering the extent of the external affairs power, has broadly interpreted it to extend the Commonwealth’s legislative powers not only to international and interstate aviation, but also to purely intrastate aviation activities so as to enable the Commonwealth to meet its obligations arising from the ratification of international conventions. To provide a further insight into the application and importance of both public and private international air law to the aviation industry, major international conventions will be examined below. But first, it is important to highlight the importance of the concept of sovereignty as it applies to territorial airspace.

D  Sovereignty of Territorial Airspace [20.60]  In international aviation, the concept of sovereignty is the keystone upon which virtually all air law is founded.16 At the Paris Conference in 1919, nations had to decide whether this vastly improved mode of transport was 13 14

15

16

C N Shawcross and K M Beaumont, Air Law (Butterworths, 4th ed, 1977) 13. Sovereignty of a state refers to the right to exercise the functions of a state in regard to a portion of the globe to the exclusion of any other state. This extends to the airspace above its territory. This principle is reflected in the Chicago Convention art 1(a), which was identical to the Paris Convention art 1: ‘The High Contracting Parties recognise that every Power has complete and exclusive sovereignty over the air space above its territory.’ ‘Ratify’ means to confirm or adopt. For instance, the wording of the Air Navigation Act 1920 (Cth) says, in effect, that the ratification of the Chicago Convention by Australia is ‘approved’. In effect, the signing and ratifying of international treaties are executive acts — but, in order to honour the international legal obligations, Parliament must enact the provisions of the treaty into the municipal law of Australia. See further chapter 2 of this volume for an analysis of the reception of international law in Australia. See Robert Y Jennings, ‘International Civil Aviation and the Law’ (1945) 22 British Yearbook of International Law 191, 208.

490    INTERNATIONAL LAW IN AUSTRALIA

to follow the predominantly unregulated nature of international maritime operations, or whether governments would choose to regulate the new technology. It was the First World War that brought about the realisation of both the importance of aviation and its potential danger to states and their citizens in threatening their sovereignty. It was, therefore, not surprising that the first article of the Paris Convention stated: The High Contracting Parties recognise that every Power has complete and exclusive sovereignty over the air space above its territory. This proclamation laid to rest the prior debate of whether airspace was ‘free’, as it is with the high seas, or whether it was ‘part’ of the subjacent state or territory. With the memories of the war still fresh in the minds of the allied delegates, the decision to follow the latter path was practically unanimous. Air sovereignty has ever since, both legally and nationally, maintained a high profile and remains very much a part of national pride and identity. In Australia, Qantas has an almost iconic status and is perceived to be a part of the Australian identity.17 While the Paris Convention clearly asserted that exclusive or absolute sovereignty extends to the airspace above the territory of the state, issues are raised as to what constitutes the vertical and horizontal territorial limits of each state. With respect to vertical limits, customary law, based on an ancient Roman principle,18 had long recognised that absolute sovereignty of the state over its territorial airspace extended to an unlimited height. Although international treaties have since modified this position in asserting that ‘[no] national appropriation by claim of sovereignty’ can prevent overflight rights of satellites in outer space,19 no precise definition of outer space is provided.20 Once again, with respect to horizontal or lateral limits of sovereignty, international treaties have clarified the situation. Article 2 of the Chicago Convention states that ‘[f]or the purposes of this Convention the territory of a State shall be deemed to be the land areas and the territorial waters adjacent thereto under the sovereignty, suzerainty, protection or mandate of such State’.

17

18

19

20

In the immortal words of Frank Zappa: ‘You can’t be a real country unless you have a beer and an airline — it helps if you have some kind of a football team, or some nuclear weapons, but at the very least you need a beer’ (Frank Zappa and Peter Occhiogrosso, The Real Frank Zappa Book (Simon and Schuster, 1989) 231). The maxim cujus est solum ejus est usque ad coelum, meaning ‘whose is the soil, his is also that which is up to the sky’. Outer space is the space beyond the navigable airspace and provides for right of free passage as for flight over the high seas: provided in accordance with the ‘rules of the air’. See further chapter 21 of this volume. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, signed 27 January 1967, 610 UNTS 205 (entered into force 10 October 1967) art II (‘Outer Space Treaty’).

Ch 20: AUSTRALIA AND INTERNATIONAL AIR LAW   491

The United Nations Convention on the Law of the Sea (‘LOSC’)21 defines the limits to which the sovereignty of the coastal state may apply to the airspace above the territorial waters or sea. In Australia, as with many other sea-bordering nations, the territorial sea extends to the maximum permitted under art 3 of the convention, being 12 nautical miles from the low-water mark of the coastline.22 Although sovereignty does not extend to the limits of the contiguous zone (24 nautical miles) or the limits of the exclusive economic zone (200 nautical miles), certain airspace rights apply, such as airspace management procedures and air traffic control, and, for reasons of safety, immigration, customs and other aspects of national security. It is important to realise that the Paris Convention did not create the principle of exclusive air sovereignty but rather recognised it. Article 1 was drafted such that it was ‘declaratory of pre-existing customary inter­national law’.23 Furthermore the principle extends to all nations (that is, ‘every Power’), irrespective of whether a particular state has signed or ratified the convention. Subsequent conventions in Madrid in 1926 and Havana in 1928 achieved little by way of advancement in international air law. Significantly, however, the Havana (Pan American) Convention24 of 1928 was the first multilateral convention that challenged the principle of absolute sovereignty. It was signed by the United States, Mexico and 14 South American states.25 Somewhat ironically, because of its restricted acceptance by an overwhelming majority of International Commission for Air Navigation (‘ICAN’) members in rejecting the principle of absolute sovereignty, its application elsewhere was consequentially reinforced. The principle of absolute sovereignty was again challenged with the Chicago Convention of 1944, but ultimately the status quo prevailed. The Chicago Convention recognised and confirmed the principle that every state has complete and exclusive sovereignty over the airspace above its territory. The territory of a state for the purposes of the Chicago Convention is deemed the land areas and the territorial waters adjacent to them under the sovereignty, suzerainty, protection or mandate of the state. The question of the vertical extent of the airspace above a state’s territory remains undetermined. 21

22

23

24

25

United Nations Convention on the Law of the Sea, signed 10 December 1982, 1833 UNTS 3 (entered into force 16 November 1994) (‘LOSC’). Territorial sea is defined in s 3(1) of both the Civil Aviation Act 1988 (Cth) and the Air Navigation Act 1920 (Cth) and is consistent with the relevant provisions of the LOSC. In some instances, customary law may still apply. P P C Haanappel, ‘The Transformation of Sovereignty in the Air’ in Chia-Jui Cheng (ed), The Use of Air and Outer Space Cooperation and Competition (Martinus Nijhoff Publishers, 1998) 25. Pan American Convention on Commercial Aviation, opened for signature 20 February 1928, 129 LNTS 223 (entered into force 13 June 1929) (‘Havana (Pan American) Convention’). The convention was ultimately ratified by the United States and only 10 South American nations.

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However, the view that those rights in airspace extend to a height without any limit has been firmly rejected.26 Apart from the right of overflight by satellites in outer space, the concept of sovereignty remains the basis upon which both the structure and the proliferation of bilateral air service agreements continue. We will now examine what is without doubt the most important international treaty in aviation — and, arguably, based on the adoption by almost every nation, one of the most important treaties in the world.

III  THE CHICAGO CONVENTION [20.70]  As in the aftermath of the First World War, the enhanced positive attributes of aviation during times of peace were again realised following the improved performance and capabilities of aircraft during the Second World War. By the war’s end, advancements in aircraft design and technology had culminated in the development of the first jet engine. Following preliminary discussions initiated by the British government in early 1944, the United States called for an international conference in Chicago in early November 1944. It was the intention of the United States and allied nations to establish post-war civil aviation arrangements and institutions and, in particular, the United States sought to promote the freedom of international exchange by removing the restrictions to international air travel imposed by absolute air sovereignty. The conference was attended by most of the principal nations of the world, including Britain, the United States and Australia. As the war in Europe was still six months from over, none of the ‘enemy’ states were invited or present. Of the 54 invited states, the Union of Soviet Socialist Republics was the only notable absentee.27 The major players at the conference were Britain and the United States. Both nations shared the same view regarding the conference’s technical objectives; however, in terms of economic outcomes, their idiosyncratic views differed vastly. In contrast to Britain, the United States had well-established airlines and route structures and wanted unrestricted operating rights for all nations on all international sectors. With an almost complete monopoly on the production of large four-engine transport aircraft,

26

27

This view has been directly rejected in the context of private law: Baron Bernstein of Leigh v Skyviews & General Ltd [1978] 1 QB 479. The USSR had originally planned to attend and, at the last moment, withdrew its delegates from Montreal while en route to Chicago (according to N Matte, Treatise on Air-Aeronautical Law (Institute and Centre of Air and Space Law, McGill University, 1981) 127). The Soviets refused to attend because Portugal, Spain and Switzerland, with which the USSR had no diplomatic relations, had been invited. From a practical viewpoint, its absence had the effect of prohibiting the use of Soviet airspace to international aviation for almost the next half-century.

Ch 20: AUSTRALIA AND INTERNATIONAL AIR LAW   493

the United States was bargaining from a position of strength.28 On the other hand, Britain had, by agreement with the United States, concentrated its wartime efforts on the production of fighter aircraft. Britain’s only major negotiating strength, and indeed the main weakness of the United States, came from its extensive network of territories located along strategic trunk routes and its influence over Commonwealth member countries. The general objectives of the conference, in terms of promoting inter­ national air transportation, were essentially twofold: „„ Economic: These aims included the promotion of freedom of airspace to nations and airlines; procedures for determining air fares, frequencies, schedules and capacities; and arrangements for simplifying customs procedures and standardising visas and other documentation. „„ Technical: These aims were concerned with establishing international standards with respect to a variety of technical matters, including licensing pilots and mechanics, registering and certifying the airworthiness of aircraft, and planning and developing navigational aids. The Chicago Convention applies to civil aircraft only and does not apply to state aircraft. However, annex 13 of the convention implies that states are expected to apply its provisions domestically, while annex 17 of the convention was amended in the wake of the events of 11 September 2001 to ‘require’ states to implement certain security standards domestically, except where it is impracticable to do so. The High Court of Australia sanctions the view that at least some international standards cannot be given meaningful effect without mandatory domestic application.29 In relation to the economic objectives of the conference, in October 1944 the British government had issued a white paper that proposed a multi­lateral surrender of sovereignty to an international airline regulatory authority. Australia, along with New Zealand, proposed an even more radical plan in calling for the complete ownership and operation of airlines with the establishment of an international authority. It was, however, the proposal submitted by the Canadian delegation concerning the so-called ‘five freedoms’ that won the greatest support.30 28

29

30

According to one industry source, from 1939 to 1944 the United States produced some 17,000 multi-engine transport aircraft: The Aeroplane, 22 December 1944, 685. The so-called ‘commingling’ doctrine was considered and accepted by the High Court of Australia in Airlines of New South Wales Pty Ltd v New South Wales [No 2] (1965) 113 CLR 54, 77–8 (Barwick CJ); 150 (Windeyer J); 166 (Owen J). The Court proposed that the Commonwealth could not effectively regulate international air transport (in fulfilling its obligations under the Chicago Convention) unless it had ‘control’ over all aviation activities that shared the same airspace. See also R I C Bartsch, ‘Unmanned and Uncontrolled: The Commingling Theory and the Legality of Unmanned Aircraft System Operations’ . The Canadian proposal contained only four ‘freedoms’, the fifth being later added by the United States.

494    INTERNATIONAL LAW IN AUSTRALIA

A  Freedoms of the Air [20.80]  As with the Paris Convention, the Chicago Convention restated and thereby reinforced the principle of absolute air sovereignty in art 1, which provided that the contracting states recognise that every state has complete and exclusive sovereignty over the airspace above its territory. Air transit and traffic rights between contracting states required specific agreement. The United States advocated for a complete freedom of the air for commercial air transportation, while Britain, supported by Australia and New Zealand, proposed varying degrees of international regulation. The ‘five freedoms agreement’ was documented as the International Air Transport Agreement, with only 20 states signing the agreement at Chicago, including the United States, but not all subsequently ratifying it. It was only a handful of South American countries, along with countries on ‘the road to nowhere’,31 that signed, as they had more to gain by air alliance with the United States than any loss of fifth freedom rights. The five freedoms can be summarised as follows: (1) the freedom of Country A’s aircraft to overfly other countries; (2) the freedom of Country A’s aircraft to land in other countries for non-traffic purposes32 — for example, for fuel or repairs; (3) the freedom of Country A to deliver traffic from Country A to other countries; (4) the freedom of Country A to pick up from other countries traffic destined for Country A; and (5) the freedom of Country A’s aircraft to pick up and discharge traffic between other countries (Countries B and C) on multi-sector journeys that originate/terminate in Country A.33 Without the addition of the ‘fifth’ freedom, the United States would not have been able to achieve its objective of dominating the major trunk routes. Obviously, in the absence of any regulatory control, if the five freedoms were adopted, the United States would be strategically placed to use its overwhelming air operating superiority to monopolise whichever major trunk routes in which it cared to operate. Such a proposal was therefore unacceptable to Britain and most other nations, including Australia. Although nearly all the delegates agreed that some degree of regulatory control was desirable, and indeed necessary for a cooperative development of international civil aviation, there was no general consensus apart from 31

32 33

Including Bolivia, El Salvador, Honduras and Paraguay — since entering into force on 8 February 1945, only 11 parties have ratified the agreement. Traffic means the taking on or discharging of passengers or cargo. The fifth freedom (or ‘beyond rights’) may be reserved and each contracting state retains the right of cabotage viz carriage of traffic between two points in the territory of the same foreign state.

Ch 20: AUSTRALIA AND INTERNATIONAL AIR LAW   495

agreement of the first two freedoms. It was hoped that the other freedoms might be settled on a multilateral basis, but that was not practicable as the more powerful nations stood to gain more through negotiating bilateral arrangements. As the free market approach was not acceptable and multilateral approaches were not practicable, the only other way to secure international air travel consensus would seem to be by way of individual bilateral air services agreements. Under the convention, all scheduled international air services34 must acquire prior permission before flying into or over foreign territories. To fill the gap with regard to scheduled international air services, most states — including Australia, Britain and the United States — signed the International Air Services Transit Agreement (‘Two Freedoms Agreement’ or ‘Transit Agreement’).35 As such, this agreement has proven extremely effective (in terms of simplifying overflight rights) and practical when diplomatic tensions arise between contracting states — as has been the case, for example, between Australia and Iran. In practice, although ICAO is authorised to resolve disputes arising from the Transit Agreement, this is rarely invoked. The only case the ICAO Council has heard pursuant to this power was in 1950 between Pakistan and India. It is at the contracting state’s unfettered discretion whether to adhere to the Transit Agreement. Bilateral agreements can, and usually do, include terms exchanging these two freedoms. This is an alternative arrangement for overflight rights where one or both states are not party to the multilateral agreement — for example, Australia’s bilateral air services agreement with Indonesia, where Indonesia is not party to the multilateral agreement. The Transit Agreement does not specifically require contracting states to obtain a permit prior to exercising transit or non-traffic stopovers. In practice, irrespective of how overflight rights have been established, the filing of flight plans for operational purposes is usually all that is required to provide the requisite safety, technical and security information. Today, due to the unconformable nature of international dialogue, bilateral air service agreements are negotiated with respect to the other 34

35

The definition of ‘scheduled international air services’ adopted by ICAO in 1952 requires that aircraft (a) pass through the airspace of more than one state; (b) carry passengers, mail or cargo, of the general public, for remuneration; and (c) service two or more destinations in accordance with a published timetable or regular service. Note also that the Chicago Convention applies only to ‘civil’ aircraft and not to ‘state’ aircraft: art 3(a). Aircraft used in military, customs or police services are deemed to be state aircraft: art 5(b). International Air Services Transit Agreement, signed 7 December 1944, 84 UNTS 389 (entered into force 30 January 1945). The Two Freedoms Agreement is also known as the Transit Agreement. This agreement was signed by 32 states at the Chicago Convention and has subsequently been ratified or accepted by over 100 states: for a more detailed account of this agreement, see Gary N Heilbronn, Aviation Regulation and Licensing: The Laws of Australia (Thomson Reuters, 2008) 288–90.

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‘freedoms’ just as they were prior to the convention. So as not to deny certain rights of the parties, the wording of these agreements is often intentionally self-contradictory and general. Not surprisingly, bilateral agreements are often the source of a significant proportion of international air disputes. The Chicago Convention, the Transit Agreement and subsequent amendments to the convention have been ratified by Australia in the Air Navigation Act 1920 (Cth).

B  International Civil Aviation Organization [20.90]  The most important contribution of the Chicago Convention was the agreement over technical matters and the groundwork that led to the establishment of ICAO. Without doubt, ICAO is the most important international organisation in the area of public international air law. Article 44 of the Chicago Convention describes the purpose of ICAO as: … to develop the principles and techniques of international air navigation and foster the planning and development of inter­ national air transport so as to insure the safe and orderly growth of ­international civil aviation throughout the world. By 6 June 1945, the required 26 states — including each of the 20 states (Australia among them) elected to the ICAO Council — had accepted the Interim Agreement on International Civil Aviation.36 Thus the ‘Provisional’ ICAO (‘PICAO’) came into effect as planned within six months of the signing of the Chicago Convention. It was agreed by member states that PICAO would remain in operation until the permanent forum, ICAO, came into force within the three-year limit prescribed in the convention. ICAO provides the structure for the achievement of international cooperation and coordination in civil aviation. Through a variety of mechanisms, ICAO works to uphold the principles underlying the Chicago Convention. It develops and adopts internationally agreed standards and procedures for the regulation of civil aviation, coordinates the provision of air navigation facilities on a regional and worldwide basis, collates and publishes information on international civil aviation, and acts as the medium by which aviation law develops at an international level. Apart from technical matters, ICAO has also been instrumental in providing the organisational structure for the determination of less contentious economic arrangements. ICAO, with beneficial outcomes, has addressed matters such as customs procedures and visa requirements. It has also assumed responsibility for collecting statistical data for international civil aviation, including information on safety-related issues such as incident and accident statistics. 36

Interim Agreement on International Civil Aviation, opened for signature 7 December 1944, 171 UNTS 345 (entered into force 6 June 1945).

Ch 20: AUSTRALIA AND INTERNATIONAL AIR LAW   497

The international specifications for civil aviation appear in 18 annexes to the Chicago Convention, with each annex addressing a particular subject matter. The specifications are divided into two categories — namely, ‘standards’ and ‘recommended practices’, although they are collectively, and most commonly, referred to as ‘SARPs’. Today, the 190 state signatories of the Chicago Convention are obliged to comply with the extensive and comprehensive technical, safety, operational, security and environmental provisions as set out in the SARPs. It is little wonder that there is almost universal legislative harmony in this area of aviation law. In the next section of the chapter, we move into the area of private international air law.

IV  THE WARSAW CONVENTION [20.100]  International carriage by air by Australian carriers is predominantly governed by international conventions that have been ratified and given effect in Australia through legislation.37 These international conventions came about as a result of the development of the air transport industry, from around the time of the Paris Convention, and were aimed at addressing conflict-of-law problems that often arose as a result of international carriage. The first true instrument of private international air law was the Convention for the Unification of Certain Rules Relating to International Carriage by Air (‘Warsaw Convention’).38 The Warsaw Convention adopted a uniform set of rules governing international carriage by air. It deals with the rights of passengers and owners or consignors of cargo and provides for internationally accepted limits on a carrier’s liability for death, injury or damage. Prior to the establishment of the ‘Warsaw System’,39 there were no uniform rules of law concerning international carriage by air. The problems inherent in international air travel often relate to matters concerning conflicts of law. The rights of passengers and owners of cargo, most of which had been previously stated in the contract of carriage, would vary from country to country and in accordance with each country’s domestic law. Similarly, the liabilities of the carriers would vary enormously. The Warsaw Convention represented the first uniform international effort to implement laws relating 37

38

39

For example, the Chicago Convention, the Transit Agreement and subsequent amendments to the convention have been ratified by Australia in the Air Navigation Act 1920 (Cth). See also the Civil Aviation (Carriers’ Liability) Act 1959 (Cth). Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed 12 October 1929, 137 LNTS 11 (entered into force 13 February 1933) (‘Warsaw Convention’). Australia deposited its instrument of ratification on 1 August 1935, with the convention coming into force between Australia and other parties to the convention on 30 October 1935. The ‘Warsaw System’ is a term commonly used to describe the liability regime that comprises the Warsaw Convention itself and the subsequent Hague, Guatemala City and Montreal Protocols.

498    INTERNATIONAL LAW IN AUSTRALIA

to international air carriage, especially in respect of carriers’ liability for death, injury or damage. At that time, airlines were predominantly state-owned and particularly supportive of the introduction of known limits on liability. Arguments advanced in favour of liability limits included: „„ the protection of a developing and financially vulnerable aviation industry; „„ the distribution of potentially large risks; „„ the practicality of carriers being able to fully insure against liabilities; „„ standardised and readily quantifiable damages awards; „„ allowing passengers to take out their own insurance policies; and „„ reducing litigation against airlines and facilitating the settlement of disputes. Commentators have questioned whether these arguments were sufficient to justify the imposition of a limited liability regime. Further, many continue to question their ongoing relevance and authority in the contemporary context. Air carriers’ liability is an important subset of the broader legal liabilities and responsibilities of an air carrier, whether an airline or other form of air operation. The objectives of the Warsaw Convention were achieved for approximately two decades after implementation, but the convention’s effectiveness and support were gradually eroded. In an attempt to retain its relevance, the convention was updated several times by way of amendments. As a consequence of the United States (and others countries) having not adopted all of the subsequent amendments to the Warsaw Convention, a non-uniform international system of liability of carriers governing international air carriage emerged, thereby frustrating the most fundamental objective for the creation of the Warsaw Convention. Moreover, the terminology and language used in the Warsaw Convention (and amending protocols) had become outdated and were the source of much ambiguity and hence dispute.40 It is essential to realise that the Warsaw Convention applies to international carriage only. The decision in Stratis v Eastern Air Lines41 illustrates the importance of determining whether or not a particular flight is deemed to be international carriage and thereby limiting the liability of the carrier. In that case, Mr Stratis, a crewman on a Greek tanker, was booked on Delta Air Lines from Baton Rouge to New Orleans, then on Eastern Air Lines from New Orleans to New York, and finally on Olympic Airways from New York to Athens. He had prepaid for all travel prior to departure, but was only issued with tickets for the domestic sectors, having arranged to 40

41

For an overview and historic account of the Warsaw System and the development of a new regime for international carriage by air, see Bin Cheng, ‘A New Era in the Law of International Carriage by Air: From Warsaw (1929) to Montreal (1999)’ (2004) 53 International and Comparative Law Quarterly 833. Stratis v Eastern Air Lines Inc, 682 F 2d 406 (1982).

Ch 20: AUSTRALIA AND INTERNATIONAL AIR LAW   499

collect his ‘international’ ticket in New York. The Eastern Air Lines flight crashed on approach to New York and Stratis became a quadriplegic. The Court awarded him US$6.5 million in damages, being apportioned as follows: 60 per cent for the negligence of the hospital that had treated him and 40 per cent against Eastern Air Lines and the US government for the negligence of their pilots and air traffic controllers respectively. On appeal to the US Circuit Court of Appeals, the Court accepted the defence of Eastern Air Lines that its liability was limited under the Warsaw Convention because it was international carriage. It was held that the contemplation of the parties was for international carriage and the fact that the ‘domestic’ tickets were annotated to that effect was a significant factor. 42 On 4 November 2003, the Convention for the Unification of Certain Rules for International Carriage by Air (‘Montreal Convention’)43 came into force and replaced, for those states (including Australia) that have ratified it, the Warsaw Convention and, as appropriate, where amended by the Hague and Montreal Protocols. This convention has fundamentally altered this area of private international air law. The new liability rules were developed during an International Air Law Conference called by ICAO to modernise the Warsaw Convention system. Dr Assad Kotaite, then President of the Council of ICAO, stated in respect of the new agreement: We have succeeded in modernising and consolidating a seventy-year old system of international instruments of private international law into one legal instrument that will provide, for years to come, an adequate level of compensation for those involved in international air accidents. The importance of the Warsaw Convention to the development of inter­ national air law cannot be overstated.

V  THE MONTREAL CONVENTION [20.110]  The development of various international conventions relevant to international air carriage — especially since the Second World War — in the context of a maturing commercial aviation industry has given rise to a complex system of international treaties, which have become in many respects unwieldy and outdated. Although the Montreal Convention consolidates the many amendments to the Warsaw Convention, it is in fact an entirely 42

43

Article 3 of the Warsaw Convention relates to passenger tickets and requires the carrier to provide a notice to the effect that if Warsaw applies then the carrier’s liability is limited, and that the passenger ticket shall constitute prima facie evidence of the conclusion and conditions of carriage. Convention for the Unification of Certain Rules for International Carriage by Air, opened for signature 28 May 1999, 2242 UNTS 309 (entered into force 4 November 2003) (‘Montreal Convention’).

500    INTERNATIONAL LAW IN AUSTRALIA

new treaty that unifies and replaces the system of liability established by the Warsaw Convention and its subsequent amendments. The Montreal Convention is the most recent international convention governing international air carriage, intended to consolidate and update the ‘patchwork’ nature of the various Warsaw System amending protocols. As a consequence of the United States (and others) having not ratified the subsequent amendments to the Warsaw Convention, a non-uniform inter­ national system of liability of carriers governed international air carriage for some time. This has largely been resolved following the entry into force of the Montreal Convention in 1999. The ratification by the United States of the Montreal Convention represented another important step in the unification of international air carriage governance. However, some states that are parties to the Warsaw Convention are yet to ratify the Montreal Convention. Prior to the introduction of the Montreal Convention, compensation limits remained generally low, in line with the early philosophies aimed at supporting a fledgling industry. The industry, despite present-day challenges, has developed significantly in respect of its commercial stability and relative safety standards. Commercial arrangements such as inter-carrier, code-shares, and airline alliance agreements and the complex nature of international trade have led to practices never envisaged by the drafters of earlier conventions, such as electronic documentation in place of traditional paper tickets and air waybills. On 10 May 1999, some 525 participants from 121 of the ICAO contracting states took part in the historic three-week conference in Montreal. The resulting convention, the Montreal Convention, was opened for signature at Montreal on 28 May 1999. At that time, 50 countries signed the agreement, but Australia was not then a signatory. The Montreal Convention establishes an alternative carriage by air regime for determining the liability of air carriers for injury or death of a passenger; loss or damage to luggage or cargo; and damage caused by, or delay in, the transport of passengers, luggage or cargo that occurs during the course of international carriage. Overall, the Montreal Convention has sought to address the problems that developed in the Warsaw System by substantially raising carriers’ liability limits, presenting the liability framework in a single consistent convention, and updating the language and terminology used. The Montreal Convention distinguishes between international and domestic carriage. The convention applies to international carriage only. Domestic travel is treated as ‘other carriage’ to which the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) applies. The convention lists five guiding principles agreed by its contracting parties as a preamble to its substantive provisions. The Montreal Convention: (1) recognises the significant contribution of the Warsaw Convention (as amended) to the harmonisation of private international air law;

Ch 20: AUSTRALIA AND INTERNATIONAL AIR LAW   501

(2) recognises the need to modernise and consolidate the Warsaw Convention (as amended); (3) recognises the importance of ensuring protection of consumer interests in international air transport and the need for equitable compensation based upon the principle of restitution; (4) reaffirms the desirability of the orderly development of international air operations and the smooth flow of passengers, baggage and cargo in accordance with the Chicago Convention; and (5) promotes collective state action for further harmonisation and codification of certain rules governing international air carriage through a new convention as the most adequate means of balancing interests. Under its own terms, the Montreal Convention came into force 60 days after its 30th ratification. The 30th ratification — that of the United States — occurred on 5 September 2003. The convention consequently entered into force on 4 November 2003.44 Australia ratified the convention on 25 November 2008 and it came into effect on 24 January 2009. The convention is implemented in Australia by the Civil Aviation Legislation Amendment (1999 Montreal Convention and Other Measures) Act 2008 (Cth), which amended the Civil Aviation (Carriers’ Liability) Act, the Air Accidents (Commonwealth Government Liability) Act 1963 (Cth) and the Civil Aviation Act 1988 (Cth). Interesting issues have arisen throughout the ratification and implementation process of the Montreal Convention. Legislation in operation in the European Union has taken a broad interpretation of the provisions of the convention. Regulation (EC) No 261/2004 in particular has attracted much attention. Argued to be overly focused on ‘passenger protection’, the regulation imposes onerous obligations on carriers to assist passengers in the event of delay — including those situations where the events giving rise to the delay are beyond the control of the carrier, such as is the case when delay is caused by adverse weather conditions and air traffic disruptions. This regulation is particularly troubling both because it has the potential to affect foreign, non-European carriers, and because it appears to contravene those provisions of the Montreal Convention that provide carriers with a defence in circumstances where delay is beyond their control. Further, such issues will likely continue to arise as additional implementing legislation is introduced by various states parties, which are likely to look to the example set by the European Union as a point of guidance and comparison — such as the Passenger Bill of Rights enacted by the State of New York and later overturned by the US courts.

44

As of 1 June 2016, more than 100 nations have ratified the Montreal Convention.

502    INTERNATIONAL LAW IN AUSTRALIA

VI  DIFFERENCES BETWEEN THE WARSAW AND MONTREAL CONVENTIONS [20.120]  It is important to note that carriage under the Warsaw System does not cease to be legally binding because of the entry into force of the Montreal Convention. The Warsaw Convention still applies to round trips departing from a state that is not a member of the Montreal Convention and to ‘one-way flights’ between two states where either had adhered to the Montreal Convention. The convention applies to all international air carriage in which the country of departure and the country of destination have both adopted the convention. Most of Australia’s major trading partners have already adopted the Montreal Convention, including the United States, the European Union, China, Japan and New Zealand. Countries with carriers that service Australia that are yet to adopt the Montreal Convention include India, Indonesia and Thailand. For international flights to or from those countries, the applicable version of the Warsaw Convention will continue to apply.45 Through ch III, the Montreal Convention establishes a new two-tiered scheme to govern passenger compensation. The first tier, which operates up to 100,000 special drawing rights (‘SDRs’),46 imposes strict liability upon the carrier. The carrier’s liability under the first tier can only be reduced by the demonstrated contributory negligence of the passenger. Liability under the second tier is unlimited if damages are proven in excess of 100,000 SDRs, but can be avoided by the carrier proving that the damage was not caused by its negligence, or was caused solely by the negligence or other wrongful act or omission of a third party. The Montreal Convention only applies if the parties agree to its application to transportation between two locations (the destination may be changed during the flight, or the flight may be a round trip). This rule excludes pilot training and test flights. Although carriage occurs in these examples, it does not occur pursuant to a contract of carriage. Therefore, the Montreal Convention is excluded by the absence of a contract and not by the absence of a carriage. It follows that carriage does not need to be defined according to the parties’ subjective intentions.47 Other notable changes include the promotion of the English text to a position of authority equal to the French text that controlled the Warsaw Convention. This means that courts will no longer be forced to resolve ambiguities and other interpretation-based issues by reference to French dictionaries. Further, reliance upon gold francs is replaced by a new generic 45

46

47

For a list of contracting parties to the Montreal Convention, see United Nations, United Nations Treaty Collection (2016) . SDR is an international measurement of a reserve asset created by the International Monetary Fund in 1969 and based on a basket of key international currencies. With the current exchange rate, one SDR is equivalent to approximately A$0.55. Warsaw Convention art 1.

Ch 20: AUSTRALIA AND INTERNATIONAL AIR LAW   503

currency system based upon SDRs, the value of which is determined by the International Monetary Fund. A ‘fifth forum’ of jurisdiction has also been created under the Montreal Convention, which enables a passenger to bring an action in the state party to the convention in which, as at the time of the accident, the passenger has his or her principal place of residence, so long as the carrier operates (directly or indirectly) to that state. Australia’s current carriers’ liability arrangements are detailed in the Civil Aviation (Carriers’ Liability) Act. This Act provides the force of law to a number of passenger liability frameworks, including the Montreal Convention, a separate system of liability for domestic air travel, and the Warsaw Convention. Apart from Australia, more than 100 states have adopted the Montreal Convention and, accordingly, the importance and application of the Warsaw Convention has been, and will continue to be, significantly reduced.

A  International Carriage by Air [20.130]  As the Montreal Convention applies to international carriage only, it is imperative, in the first instance, to determine whether or not a particular flight is domestic or international. We saw earlier the leading authority on this issue in Stratis v Eastern Air Lines Ltd. Domestic travel is treated as ‘other carriage’ to which the Civil Aviation (Carriers’ Liability) Act applies. International carriage under the Montreal Convention includes baggage (luggage) and cargo. In the case of cargo, art 4 of the Montreal Convention requires that every carrier of cargo has the right to require the consignor to make out and hand over an air consignment note, called an ‘air waybill’. Every consignor has the right to require the carrier to accept this document. The question arises as to whether the Montreal Convention provides an exclusive right of action in respect of claims arising from international air transportation. This question was discussed in the context of the Warsaw Convention in Sidhu v British Airways.48 The case was brought by passengers travelling from London on British Airways Flight 149 to Kuala Lumpur via Kuwait in August 1990. The flight had the misfortune of landing in Kuwait in the hours after Iraq had invaded that country. While the aircraft refuelled, the airport was seized by Iraqi troops. The passengers and crew were taken by force to Baghdad and detained for approximately one month. The claimants alleged that the airline knew, or ought to have known, of the dangerous situation between Iraq and Kuwait and the possibility of imminent invasion. Damages were claimed in respect of both physical and psychological injuries. The passengers brought their claim at common law, arguing that the Warsaw Convention did not prevent or extinguish their rights at common law. The House of Lords dismissed the claimant’s arguments and held that the objects and structure of the Warsaw Convention supported 48

Sidhu v British Airways plc [1997] AC 430.

504    INTERNATIONAL LAW IN AUSTRALIA

its interpretation as a uniform international code that could be applied by all the high contracting parties without reference to their own domestic law. In delivering the judgment, Lord Hope stated that the structure of arts 17 and 24 of the Warsaw Convention required the carrier to surrender its freedom to exclude or limit its liability on the one hand, while restricting the passenger in the claims which can be brought in any action for damages on the other. He stated: The idea that an action of damages may be brought by a passenger against the carrier outside the Convention in the cases covered by art 17 … seems to be entirely contrary to the system in which these two articles were designed to create.49 Lord Hope concluded that while the Warsaw Convention did not purport to deal with all matters relating to contracts of international carriage by air, it was intended to be uniform and exclusive of any resort to the rules of domestic law in the areas dealt with by its terms. A similar approach was taken by the US Court of Appeals in Potter v Delta Air Lines Inc,50 where a claimant was denied an action under state law where the circumstances of her claim did not constitute an accident for the purposes of art 17 of the Warsaw Convention. In Australia, the Full Federal Court considered the issue in South Pacific Air Motive Pty Ltd v Magnus,51 closely examining the Sidhu, Floyd 52 and Zicherman53 cases. The Full Court was not required to rule directly on the point. Other issues were central in the case and, by virtue of s 13 of the Civil Aviation (Carriers’ Liability) Act, the liability of a carrier under the convention is substituted for any civil liability under any other law in respect of an injury. In the judgment of Sackville J, this amounted to the same result that the House of Lords had found to flow from the terms of the Warsaw Convention itself.54 In Emery Air Freight Corporation v Nerine Nurseries Ltd,55 the New Zealand Court of Appeal held that actions for damage to cargo must be brought within the terms of the Warsaw Convention, stating that the general purpose of the convention had been to protect carriers from the vagaries of local law by imposing a uniform regime upon them and those dealing with them.56

49 50 51 52 53 54 55 56

Sidhu v British Airways plc [1997] AC 430 447. Potter v Delta Air Lines Inc, 98 F 3d 881 (5th Cir, 1996). South Pacific Air Motive Pty Ltd v Magnus (1998) 87 FCR 301. Eastern Air Lines Inc v Floyd, 499 US 530 (1991). Zicherman v Korean Air Lines, 116 S Ct 629 (1996). See South Pacific Air Motive Pty Ltd v Magnus (1998) 87 FCR 301, 344. Emery Air Freight Corporation v Nerine Nurseries Ltd [1997] 3 NZLR 723. Emery Air Freight Corporation v Nerine Nurseries Ltd [1997] 3 NZLR 723 737.

Ch 20: AUSTRALIA AND INTERNATIONAL AIR LAW   505

B  Interpreting International Air Conventions [20.140]  The principles of interpretation of international conventions are an important element of properly applying the international regime of air carrier liability set up by the Warsaw and Montreal Conventions. In Povey v Qantas Airways Ltd,57 the High Court described the role of the Vienna Convention on the Law of Treaties in governing the principles of construction for international agreements. The judgment in Povey v Qantas Airways Ltd was primarily concerned with the question of whether deep vein thrombosis (‘DVT’) was within the scope of the definition of ‘accident’ under art 17 of the Warsaw Convention. Mr Povey brought proceedings against Qantas, British Airways and the Civil Aviation Safety Authority in respect of DVT leading to a pulmonary embolus and allegedly contracted while seated in economy class during long-haul flights between Australia and the United Kingdom. He alleged that the accident that caused the DVT condition was the cabin conditions experienced during the flights, alleging that he first experienced symptoms of the condition while on a return flight to Australia. The airlines sought to strike out Povey’s pleadings before trial, claiming that the facts pleaded him could not support an action under art 17 of the Warsaw Convention as amended by the Montreal Protocol No 4.58 At first instance, the Court refused the airlines’ motion. On appeal to the Court of Appeal, the airlines were successful in striking out Povey’s proceedings; however, the Court did not consider itself bound by the decision in the Air Travel Group Litigation, as that case did not mirror the pleadings brought by Povey. Povey appealed to the High Court of Australia. By a six-to-one majority, the High Court upheld the finding of the Court of Appeal in favour of the airlines.59 In Gulf Air Co GSC v Fattouh,60 Allsop P in the Court of Appeal of New South Wales described the principles governing the approach to interpretation of the Warsaw Convention as amended by the Montreal Protocol No 4 as ‘[when] the relevant international instrument is given the force of Australian law in its full terms, it is the convention properly interpreted and understood as an international instrument that is given the force of Australian law’.61 Allsop P continued to emphasise the importance of international uniformity to the extent that such can be achieved and, in furthering that aim, that respect is to be afforded to considered decisions of foreign courts — in particular, decisions of appellate courts. 57 58

59

60 61

Povey v Qantas Airways Ltd & British Airways plc (2005) 223 CLR 189. Additional Protocol No 4 to Amend the Convention for the Unification of Certain Rules Relating to International Carriage by Air, opened for signature 25 September 1975, 2145 UNTS 36 (entered into force 14 June 1998) (‘Montreal Protocol No 4’). The majority judgment in Povey was given by Gleeson CJ, Gummow, Hayne and Heydon JJ; Kirby and Callinan JJ agreed in a separate judgment; McHugh J dissented. Gulf Air Co GSC v Fattouh (2008) 230 FLR 311. Gulf Air Co GSC v Fattouh (2008) 230 FLR 311, 320 [25].

506    INTERNATIONAL LAW IN AUSTRALIA

VII  CONCLUDING THOUGHTS: GLOBALISATION OF AVIATION [20.150]  The extent to which there has been an adoption of international treaties such as the Chicago Convention is quite unique to the aviation industry. This particular treaty not only influences all aviation activities — that is, international, domestic and, to an increasing degree, military — but, to a large and increasing extent, dictates all operational, technical, safety and security standards within the industry. The study of international air law is important not just to attain a more complete picture of aviation in its international environmental, but also to provide a clear understanding of the legal basis upon which all aviation law is founded. As an industry, what makes aviation unique can be explained in terms of both its development and how it is regulated. These two aspects of aviation, although quite distinct, are in fact highly interrelated and, to a large extent, account for why there is a greater degree of international harmonisation of legislation for aviation than for any other industry. From the very beginnings, aviation activities have been subject to strict regulatory control. Soon after the first manned hot air balloon assents by the Montgolfier brothers in 1783, the Paris police required flight permits to protect the safety of persons and property on the ground. One prominent commentator suggested that ‘it seems as if regulators feared a sinister element in the navigation of the air, born of ancient superstition and sought to safeguard the people from some diabolical power attacking the human race from the heavens’.62 In concluding, it is worthy of mention that the trend of international harmonisation towards universal conformity of aviation activities is not only increasing but is doing so at an ever-increasing rate. The catalyst for this was the First World War and the trend has continued to be fuelled by major worldwide events, including the Second World War, international terrorism, government economic rationalisation, airline strategic alliances, pandemics and epidemics, customer loyalty (frequent flyer) programs, code-sharing, global reservation systems, highly dynamic oil prices, the proliferation of low-cost carriers, internet ticketing, the global financial crisis, and increased government liberalisation towards more and more ‘open skies’ policies. Quite unlike any other mode of transportation, aviation activities are not restricted by political and geographical boundaries. The ‘internationalisation’ of aviation activities, along with the legal processes that have supported and assisted this development, commenced with the invention of aviation, has continued ever since, and will continue until international harmonisation is absolute. I believe that such a future is well within the realm of rational contemplation. 62

Kenneth W Colegrove, International Control of Aviation (World Peace Foundation, 1930) 2.

21 Australia and International Space Law Steven Freeland

I  AUSTRALIA’S EARLY SPACE HERITAGE [21.10]  On 4 October 1957, a Soviet space object, Sputnik I, was launched. It orbited the Earth over 1400 times during the following three-month period. This momentous event heralded the dawn of the space age. What is perhaps less well known is that Australia was involved in space activities even before that time, having developed, as early as 1949, a test launch facility at Woomera that, at its peak, would become the world’s second-most heavily used launch site (after Cape Canaveral).1 On 29 November 1967, Australia launched the WRESAT1 satellite from Woomera,2 the first Australian ‘indigenous’ launch,3 making Australia only the fourth country to have successfully completed such a launch, and only the third to have launched a satellite from its own soil.4 1

2

3

4

Senate Standing Committee on Economics, Parliament of Australia, Lost in Space? Setting a New Direction for Australia’s Space Science and Industry Sector (2008) 25 [4.1] (‘Senate Inquiry Report’), citing Senate Standing Committee on Transport, Communications and Infrastructure, Parliament of Australia, Developing Satellite Launching Facilities in Australia and the Role of Government (1992) 1, 6. See generally on the WRESAT-1 launch UN Doc A/AC.105/INF.180 (5 December 1967), lodged by the Australian government in accordance with International Cooperation on the Peaceful Uses of Outer Space, GA Res 1721 (XVI) B, 16th sess, 1085th plen mtg, UN Doc A/ RES/1721(XVI)B (20 December 1961) [1]–[2]. But see Jo-Anne Gilbert, ‘“We Can Lick Gravity, but …”: What Trajectory for Space in Australia?’ (2009) 25 Space Policy 174, who (at n 2) casts some doubt as to the extent that the launch of WRESAT-1 was, in fact, ‘indigenous’. Cheryl Jones, ‘Watch This Empty Space’, The Australian, 31 March 2010, . 507

508    INTERNATIONAL LAW IN AUSTRALIA

The government has until recently described Woomera as ‘the largest land-based test range in the world’.5 As well as its historically close space-related links with the United States and the United Kingdom, Australia has also had a strong cooperative relationship with Europe. During the 1960s, Australia was a member of the European Launcher Development Organisation (‘ELDO’)6 — the only non-European country to have that status — and provided various launch services to several European countries.7 Australia did not, however, take up the opportunity to become a member state of the European Space Agency (‘ESA’) when that body began to function de facto from May 19758 — although it has long maintained close cooperation with ESA, most recently evidenced by the conclusion of a bilateral treaty in October 2011.9 Australia was also actively involved in the development of the inter­ national legal framework for outer space, and was a foundation member state of the United Nations Committee on the Peaceful Uses of Outer Space (‘COPUOS’).10 Australia became a party to the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (‘Outer Space Treaty’)11 when that instrument came into force (10 October 1967), and is one of only 16 states12 that are parties to all five of the principal United Nations space treaties (see below). Australia also regularly complies with its obligations to provide information to the

5

6 7

8

9

10

11

12

Department of Defence, Japanese Spacecraft to Land in Australia (Defence Alert, 2 June 2010) . The main hotel in Woomera is called the ELDO Hotel. Jo-Anne Gilbert, ‘“We Can Lick Gravity, but …”: What Trajectory for Space in Australia?’ (2009) 25 Space Policy 174, 177. See Convention for the Establishment of a European Space Agency, signed 30 May 1975, 1297 UNTS 161 (entered into force 30 October 1980) (‘ESA Convention’). The ESA Convention came into force on 30 October 1980. Australia has, since then, on four occasions been offered associate membership of ESA, but has declined to take up the opportunity each time. Agreement between the Government of Australia and the European Space Agency for a Co-operative Space Vehicle Tracking Program, signed 5 October 2011, [2012] ATS 29 (entered into force 23 August 2012). COPUOS was established by the United Nations General Assembly in 1959: see Inter­ national co-operation in the peaceful uses of outer space, GA Res 1472 (XIV), UN GAOR, 14th sess, 856th plen mtg, UN Doc A/RES/1472(XIV)A-B (12 December 1959). Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, opened for signature 27 January 1967, 610 UNTS 205 (entered into force 10 October 1967) (‘Outer Space Treaty’). COPUOS Legal Subcommittee, Status of international agreements relating to activities in outer space as at 1 January 2015, 54th sess, UN Doc A/AC.105/C.2/2015/CRP.8 (8 April 2015).

Ch 21: AUSTRALIA AND INTERNATIONAL SPACE LAW   509

United Nations Secretary-General13 pursuant to art IV of the Convention on Registration of Objects Launched into Outer Space (‘Registration Convention’).14

II  AN OVERVIEW OF THE INTERNATIONAL LAW OF OUTER SPACE [21.20]  The law of outer space has developed as a discrete body of law within general public international law. Since the launch of Sputnik 1, this process of evolution has been remarkably rapid, largely driven by the need to agree on rules to regulate activities in this new ‘frontier’. There is now a substantial body of international and domestic law principles dealing with many aspects of the exploration and use of outer space. These principles are, as noted, primarily to be found in a number of United Nations-sponsored multilateral treaties, as well as United Nations General Assembly (‘UNGA’) resolutions, a wide range of national legislation, decisions by national courts, bilateral arrangements, and determinations by intergovernmental organisations. There are also a number of foundational principles that reflect customary international law. Although the Soviet Union had not sought the permission of any other state to undertake the Sputnik mission, there were no significant international protests asserting that this artificial satellite had infringed any country’s sovereignty as it circled the Earth. The almost total international (in)action that stemmed from the Sputnik mission confirmed that outer space did not, from a legal perspective, possess the traditional elements of sovereignty that had already been well-established under the binding international law principles that regulated land, sea and air space on Earth. Instead, it was assumed that outer space was to be regarded as an area beyond territorial sovereignty. 13

14

See, eg, Information furnished in conformity with the Convention on Registration of Objects Launched into Outer Space, note verbale dated 30 November 2009 from the Permanent Mission of Australia to the United Nations (Vienna) addressed to the Secretary-General, UN Doc ST/SG/SER.G/584 (18 January 2010). The notifications submitted by Australia as specified on the United Nations Register can be accessed at United Nations Office for Outer Space Affairs, Notifications from States & Organizations: Australia . It should be noted, however, that, as at the date of writing, the list of notifications does not include the successful launch of a communications satellite by NBN Co Ltd in September 2015; see Australian Government Department of Industry, Innovation and Science, Key Highlights: nbnTM Successfully Launches Sky Muster . Convention on Registration of Objects Launched into Outer Space, opened for signature 14 January 1975, 1023 UNTS 15 (entered into force 15 September 1976; Australia signed on 12 November 1974) (‘Registration Convention’). Article IV requires a state party to furnish certain information relating to space objects carried on its national registry to the Secretary-General of the United Nations.

510    INTERNATIONAL LAW IN AUSTRALIA

Describing the early emergence of this customary international principle, Judge Manfred Lachs of the International Court of Justice (‘ICJ’) observed, shortly after the first of the United Nations space law treaties had been finalised, that … [t]he first instruments that men sent into outer space traversed the air space of States and circled above them in outer space, yet the launching States sought no permission, nor did the other States protest. This is how the freedom of movement into outer space, and in it, came to be established and recognised as law within a remarkably short period of time.15 As such, almost immediately after humankind had begun its quest to explore and use outer space, a number of foundational principles of the international law of outer space were born — in particular, the so-called ‘common interest’, ‘freedom’ and ‘non-appropriation’ principles.16 These principles were later incorporated into the terms of the United Nations space law treaties,17 with the result that they also constitute binding conventional rules, codifying what had already amounted to principles of customary international law. In essence, the community of states, including both of the major space-faring states of the time, had accepted from the outset that outer space was to be regarded as being similar to a res communis omnium.18 As noted, these fundamental rules underpinning the international law of outer space represent a significant departure from the legal rules relating to air space, which is categorised as constituting part of the ‘territory’ of the underlying state. The five main multilateral treaties that have been finalised through the auspices of COPUOS are the: „„ Outer Space Treaty; „„ 1968 Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space;19

15

16

17 18 19

North Sea Continental Shelf (Federal Republic of Germany v Denmark) (Judgment) [1969] ICJ Rep 3, 230 (Judge Lachs). For a detailed discussion of the non-appropriation principle as specified in art II of the Outer Space Treaty, see Steven Freeland and Ram Jakhu, ‘Article II’ in Stephan Hobe, Bernhard Schmidt-Tedd and Kai-Uwe Schrogl (eds), Cologne Commentary on Space Law, Volume I — Outer Space Treaty (Heymanns, 2009) 44. See, eg, Outer Space Treaty arts I, II. Antonio Cassese, International Law (Oxford University Press, 2nd ed, 2005) 95. Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, opened for signature 22 April 1968, 672 UNTS 119 (entered into force 3 December 1968) (‘Rescue Agreement’).

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„„ 1972 Convention on International Liability for Damage Caused by Space Objects;20 „„ Registration Convention; and „„ 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (‘Moon Agreement’).21 These treaties deal with various important issues relating to outer space. In general terms, they specify, as noted, the principles of non-appropriation of outer space by any one state, as well as the freedom of the exploration and use of outer space; a liability regime applicable in the case of damage caused by space objects; the safety and rescue of space objects and astronauts; the prevention of harmful interference with space activities and with the environment; the notification of space activities to, and registration with, the United Nations; the scientific investigation and exploitation of the natural resources of outer space; and the settlement of disputes arising from outer space activities. Although it was contemplated by the drafters of the treaties that space activities might also be undertaken by non-governmental entities, the responsibility for such activities was imposed, from an international law perspective, on states. Article VI of the Outer Space Treaty imposes ‘international responsibility’ on states for ‘national activities in outer space’, undertaken either by ‘governmental agencies or by non-governmental entities’.22 The provision then goes on to specify that the ‘activities of non-governmental entities in outer space’ require ‘authorization and continuing supervision by the appropriate State Party’, but does not specify the mechanism for such authorisation and supervision, simply imposing the obligation on states. There are, in addition to these treaties, various sets of principles adopted by the UNGA, each of which relates to specific aspects of the use of outer space. These include the: „„ 1963 Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space;23 „„ 1982 Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting;24 20

21

22 23

24

Convention on International Liability for Damage Caused by Space Objects, opened for signature 29 March 1972, 961 UNTS 187 (entered into force 1 September 1972) (‘Liability Convention’). Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, opened for signature 18 December 1979, 1363 UNTS 3 (entered into force 11 July 1984) (‘Moon Agreement’). Emphasis added. GA Res 1962, UN GAOR, 18th sess, 1280th plen mtg, UN Doc A/RES/18/1962 (13 December 1963). GA Res 37/92, UN GAOR, 37th sess, 100th plen mtg, UN Doc A/RES/37/92 (10 December 1982).

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„„ 1986 Principles Relating to Remote Sensing of the Earth from Outer Space;25 „„ 1992 Principles Relevant to the Use of Nuclear Power Sources in Outer Space;26 and „„ 1996 Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries.27 These sets of principles provide for the application of international law and the promotion of international cooperation and understanding in space activities, the dissemination and exchange of information through transnational direct television broadcasting via satellites and remote satellite observations of Earth, and general standards regulating the safe use of nuclear power sources necessary for the exploration and use of outer space. It is generally agreed that UNGA resolutions are non-binding,28 at least within the traditional analysis of the ‘sources’ of international law specified in art 38(1) of the Statute of the International Court of Justice. These five sets of principles thus constitute soft law, although a number of specific provisions may now also represent customary international law.29 More significantly, for a number of reasons, it has become difficult for the international community, particularly through the consensus decision-making approach practised by COPUOS, to conclude further treaties relating to outer space activities. No additional lex specialis treaties have been concluded through COPUOS since the ‘failed’ Moon Agreement in 1979.30 As a consequence, the soft law approach, notwithstanding its own inherent risks of greater ‘noncompliance’,31 is for the moment the only methodology for formulating guidelines in relation to the specifics of new and emerging space activities. Indeed, in addition to the UNGA resolutions referred to above, there have been a number of more recent soft law instruments directed inter alia towards 25

26

27

28

29

30

31

GA Res 41/65, UN GAOR, 41st sess, 97th plen mtg, UN Doc A/RES/41/128 (4 December 1986). GA Res 47/68, UN GAOR, 47th sess, 85th plen mtg, UN Doc A/RES/47/68 (14 December 1992). GA Res 51/122, UN GAOR, 51st sess, 83rd plen mtg, UN Doc A/RES/51/122 (13 December 1996). See, eg, David John Harris, Cases and Materials on International Law (Sweet & Maxwell, 7th ed, 2010) 53–6 and the references therein. See, eg, Ricky J Lee and Steven Freeland, ‘The Crystallisation of General Assembly Space Declarations into Customary International Law’ in International Institute of Space Law (ed), Proceedings of the 46th Colloquium on the Law of Outer Space (American Institute of Aeronautics and Astronautics, 2005) 122. See Stephan Hobe et al, ‘The Moon Agreement’ in Stephan Hobe, Bernhard SchmidtTedd and Kai-Uwe Schrogl (eds), Cologne Commentary on Space Law, Volume II — Rescue Agreement, Liability Convention, Registration Convention, Moon Agreement (Heymanns 2013) 325. See Steven Freeland, ‘For Better or for Worse? The Use of “Soft Law” within the International Legal Regulation of Outer Space’ (2011) 36 Annals of Air and Space Law 409.

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further guidelines relating to outer space activities, including for the use of nuclear power sources in outer space,32 and the mitigation of space debris.33

III  INTERNATIONAL SPACE LAW IN AUSTRALIA: THE SPACE ACTIVITIES ACT 1998 [21.30]  Despite its early space legacy, a lack of tangible government action after the 1970s meant that Australia failed to retain its place in the ‘space world’ in the following decades. A period of ‘bureaucratic inertia’34 took hold, and the government ignored a number of opportunities to expand Australia’s research and commercial involvement in space, just as others were seizing upon the potential (and need) to do so. Whatever steps it did take in this period were only half-hearted. For example, the government did establish an Australian Space Office in 1987, but this was underfunded and lacked real political support during its operation, and was eventually disbanded in 1996. Things seemed to change again, however, in the late 1990s, when the government began to consider seriously the potential for the establishment of a significant national commercial space launch industry. As the international commercial launch industry became more competitive during that decade, several private overseas consortia sought to explore the possibility of providing commercial satellite launches from Australia. Given the historical reluctance of the government to encourage the development of a large-scale domestic space launch vehicle system, these projects were largely conceived as being consistent with the need to ‘import’ launch vehicle and associated technology as the foundation to allow for the development of a domestic launch industry.35 32

33

34

35

See COPUOS Scientific and Technical Sub-Committee and International Atomic Energy Agency (AIEA), Safety Framework for Nuclear Power Source Applications in Outer Space, UN Doc A/AC.105/934 (2009) . See also Ulrike M Bohlmann and Steven Freeland, ‘The Regulation of Space Activities and the Space Environment’ in Shawkat Alam et al (eds), Routledge Handbook of International Environmental Law (Routledge 2013) 375. See, eg, International cooperation in the peaceful uses of outer space, GA Res 62/217, UN GAOR, 62nd sess, Agenda Item 31 (1 February 2008), which (at [26]) endorsed the Space Debris Mitigation Guidelines of the United Nations Committee on the Peaceful Uses of Outer Space (A/62/20), (at [27]) agreed that ‘the voluntary guidelines for the mitigation of space debris reflect the existing practices as developed by a number of national and international organizations’, and (at [28]) considered it ‘essential that Member States pay more attention to the problem of collisions of space objects, including those with nuclear power sources, with space debris, and other aspects of space debris’. See also International cooperation in the peaceful uses of outer space, GA Res 65/97, UN GAOR, 65th sess, 62nd plen mtg (20 January 2011) [8]. Jo-Anne Gilbert, ‘“We Can Lick Gravity, but …”: What Trajectory for Space in Australia?’ (2009) 25 Space Policy 174, 174. Heather Walker, ‘Bi-lateral Agreements to Facilitate Launch Projects and Satisfy NonProliferation Obligations’ (Paper presented to the 47th Colloquium on the Law of Outer Space, Vancouver, October 2004).

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Largely in response to this private sector interest in the development of a launch industry in Australia, in December 1998, the government passed the Space Activities Act 1998 (Cth), thereby becoming only the sixth country (at the time) to introduce specific domestic legislation directed towards space activities.36 Prior to this, there had been no existing Australian legislative or regulatory framework that specifically applied to ‘national’ space activities, particularly launch activities from Australia. The government described the principal object of the legislation in terms of: … reflect[ing] in an Australian law, Australia’s obligations as a signatory to the key United Nations space treaties and provid[ing] a legally certain and predictable environment for the development and operation of Australia’s space launch facilities.37 In keeping with this stated objective, the primary purposes of the legislation were expressed as follows:38 „„ to establish a regulation regime for commercial space activities carried out either from Australia or by Australian nationals outside Australia; „„ to provide for the payment of adequate compensation for damage caused to persons or property as a result of space activities regulated by the Act; „„ to implement certain of Australia’s obligations under the United Nations space treaties; and „„ to implement certain of Australia’s obligations under specified space cooperation agreements. In general terms, the structure of the Space Activities Act is as follows:39 „„ Part 1 is an introduction. „„ Part 2 contains definitions. „„ Part 3 provides for the regulation of space activities. Certain space activities carried out in Australia or by an Australian national outside Australia require approval obtained under a licensing system. In addition, the holders of a specific licence must satisfy certain financial and insurance requirements.40 „„ Part 4 specifies rules regarding liability for damage that might be caused by relevant space activities. 36

37 38 39 40

The previous countries were the United States, Sweden, the United Kingdom, the Russian Federation and South Africa; see Frans G von der Dunk, ‘Launching from “Down Under”: The New Australian Space Activities Act of 1998’ (2000) 43 Proceedings of the Colloquium on the Law of Outer Space 132, 139 n 9. Explanatory Memorandum, Space Activities Bill 1998 (Cth) 4. Space Activities Act 1998 (Cth) s 3. Space Activities Act 1998 (Cth) s 4. Space Activities Act 1998 (Cth) s 48.

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„„ Part 5 establishes a Register of Space Objects, which is to be maintained having regard to the terms of the Registration Convention and any other international agreement or arrangement relating to the registration of space objects to which Australia is a party. „„ Part 5A provides a framework for the implementation of specified space cooperation agreements. „„ Part 6 deals with civil penalties. „„ Part 7 provides for the investigation of accidents and incidents. The provisions of the Space Activities Act deal with the principal elements that one would expect to find in domestic space legislation, including those that flow directly from the obligations of state parties to the United Nations space treaties.41 These are highlighted below.

A Incorporation of Australia’s International Obligations into National Law [21.40]  Australia’s constitutionally established regime of ‘separation of powers’ means that an executive (government) decision to ratify a treaty cannot automatically ‘create’ domestic law; rather, law in Australia can only be created by the legislature or judiciary.42 Hence, and in an attempt to incorporate the international obligations of Australia that arise under the five United Nations space law treaties into Australian law, one object of the legislation refers specifically to the implementation of the United Nations space treaties, each of which is annexed as a schedule to the legislation. 1  An Interpretation of ‘National Activities’ [21.50]  As noted, states bear international responsibility for national activities in outer space. This applies irrespective of whether the activity is undertaken by a governmental agency, a non-governmental entity, or both (for example, in a public–private cooperative space venture). There is, however, no precise clarification provided in the United Nations space law treaties as to what constitutes a national activity.43 While it may be obvious in situations where, for example, a state launches its own space object, the position may not always be as clear. In this regard, the terms of the domestic space law of a particular state will serve to clarify the scope 41

42 43

For a more detailed analysis of these elements, see Steven Freeland, ‘The Development of National Space Law’ in Steven Freeland, Rada Popova and Solomon Passy (eds), Contemporary Issues for National and International Space Law: Commentary and Source Materials (AMG Publishing, 2012) 12–35. See chapters 2 and 3 on the reception of international law in Australian law. For a detailed discussion of the scope of those ‘national activities’ that may be contemplated by art VI of the Outer Space Treaty, see Michael Gerhard, ‘Article VI’ in Stephan Hobe, Bernhard Schmidt-Tedd and Kai-Uwe Schrogl (eds), Cologne Commentary on Space Law, Volume I — Outer Space Treaty (Heymanns, 2009) 103.

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of activities to which it refers. The Space Activities Act provides that certain space activities carried out in Australia, or by an Australian national from outside Australia, are subject to regulation under the legislation, and would thus require an appropriate licence. 2  Restrictions on Certain Types of Weapons [21.60]  The first paragraph of art IV of the Outer Space Treaty imposes certain restrictions in relation to ‘objects carrying nuclear weapons or any other kinds of weapons of mass destruction’. These provisions do not constitute a ban on all types of weapons44 and, in fact, there have been recent proposals directed towards a more comprehensive prohibition of weapons in space.45 It is clear, however, that states parties to the Outer Space Treaty (which includes all of the major space powers) are obligated to comply in good faith with the restrictions specified in art IV, as limited as they are. While there may be uncertainties as to precisely what a weapon of mass destruction is — at least for the purposes of the international legal regulation of outer space — one would expect to see this obligation incorporated in some way into national space law, particular as it pertains to non-governmental entities. Regulation 4.01 of the Australian Space Activities Regulations 2001 (Cth) — which were introduced shortly after the introduction of the Space Activities Act in order to expand upon the general provisions of the legislation — stipulates that, before an overseas launch certificate (which authorises an Australian national to launch from overseas) can be granted, the authorising agency must be satisfied that: 44

45

See, eg, Jackson Maogoto and Steven Freeland, ‘Space Weaponization and the United Nations Charter: A Thick Legal Fog or a Receding Mist?’ (2007) 41(4) The International Lawyer 1091. One of the most significant of these initiatives — and one sponsored by a number of leading space powers — was the submission by Russia and China of the draft Treaty on the Prevention of the Placement of Weapons in Outer Space, the Threat or Use of Force against Outer Space Objects (‘PPWT’) at the 2008 meeting of the United Nations Conference on Disarmament (‘CD’) in Geneva. While the PPWT is still only a draft proposal and is not in force, it does add significantly to the ongoing international debate relating to the future imposition of more rigorous ‘anti-weaponisation’ obligations under inter­national space law. In responding to this proposal, the US administration reiterated at the time that it opposed any treaty that seeks ‘to prohibit or limit access to or use of space’, adding that, in any event, such a treaty would be impossible to enforce. However, the PPWT may still represent an important step on the path towards a more comprehensive legal regime to address the dangers posed by the ‘weaponisation’ of outer space. For an analysis of the PPWT, see Steven Freeland, ‘The 2008 Russia/China Proposal for a Treaty to Ban Weapons in Space: A Missed Opportunity or an Opening Gambit?’ (2008) 51 Proceedings of the Colloquium on the Law of Outer Space 261. A revised version of the PPWT was submitted to the CD by Russia on 10 June 2014: see . For a commentary, see Michael Listner and Rajeswari Pillai Rajagopalan, ‘The 2014 PPWT: A New Draft but with the Same and Different Problems’, The Space Review, 11 August 2014.

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… [n]o part of the space object or objects concerned, in which the person [seeking the certificate] has an ownership interest, must be or contain a nuclear weapon or a weapon of mass destruction of any other kind.46 Indeed, the Space Activities Regulations require that, as part of the application procedure for an overseas launch certificate, a statutory declaration (made under oath) by an appropriately authorised official of the relevant nongovernmental entity must be provided with the application, verifying that this is indeed the case.47 Moreover, if any part of the space object to be launched in which the applicant has an ownership interest contains any ‘fissionable material’, the relevant Minister’s written approval must be presented with the application.48 3  Establishment of a Licensing Regime for Non-Governmental Entities [21.70]  As noted, the Outer Space Treaty requires that ‘the appropriate State’ authorise and continually supervise national activities in outer space undertaken inter alia by non-governmental entities. There has been some debate as to whom the appropriate state will be in a specific situation, but it is generally considered that this will prima facie apply to the state whose national activity it is. In practice, however, it may be difficult for that state to continually supervise a particular space activity in circumstances where it is (part of) a cooperative venture between a number of states and their respective non-governmental entities, but where one state has overall control and management of the activity on a continuing basis. In other circumstances, the overall control and management of the activity may, in practice, change from time to time. The obligation to ‘authorise’ a space activity is more straightforward. To satisfy this obligation, a state would normally establish a mandatory domestic licensing system that applies to those of its (non-governmental) nationals who propose to undertake space activities and/or to foreign nationals seeking to undertake such an activity in the territory of the relevant state. In this regard, the Space Activities Act establishes a number of different licences that deal with specific space (launch-related) activities: „„ A space licence is required to ‘operate a launch facility in Australia, or do anything directly connected with operating a launch facility in Australia, using a particular kind of launch vehicle’ or to use ‘particular flight paths’.49 „„ A launch permit is required to launch ‘a particular space object’ or ‘a particular series of launches of space objects that … having regard to the nature of any payloads to be carried, may appropriately be authorised 46 47 48 49

Space Activities Regulations 2001 (Cth) reg 4.01(2). Space Activities Regulations 2001 (Cth) reg 4.03(4)(e). Space Activities Regulations 2001 (Cth) reg 4.03(4)(f). Space Activities Act 1998 (Cth) ss 15, 18.

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by a single launch permit from a launch facility located in Australia’.50 The permit may also ‘authorise particular space objects to be returned, in connection with the launch or launches, to a specified place or area in Australia’.51 „„ An overseas launch certificate is required for an Australian national to launch ‘a space object … from a launch facility located outside Australia’.52 „„ An authorisation of return is required for the return to a place anywhere in Australia of a space object that was not launched from a launch facility located within Australia.53 „„ The legislation also provides for the possibility of an exemption certificate in relation to various space activities, to be issued in the circumstances set out in the Space Activities Regulations, which could, for example, be in a situation requiring an emergency landing.54 The legislation does not require the government to seek a licence when it itself is engaged in a relevant space activity, either solely or as part of a joint venture with a non-governmental entity (which will be required to obtain the specific licence).55 4  Creation of (Criminal) Offences for Noncompliance with Licence Requirements [21.80]  It follows from the establishment of a mandatory licensing regime that the failure of a non-governmental entity either to first obtain the requisite authorisation or licence before conducting a relevant space activity, or to comply with the various conditions of any licence that has been granted, would constitute an (criminal) offence. Under the Space Activities Act, both criminal and civil offences are created. For example, a person who launches a space object from a launch facility in Australia without a launch permit (or exemption certificate) commits an offence punishable as follows:56 „„ in the case of a body corporate — a fine not exceeding 100,000 penalty units; or 50 51 52 53 54 55 56

Space Activities Act 1998 (Cth) ss 11, 26(1). Space Activities Act 1998 (Cth) s 26(2). Space Activities Act 1998 (Cth) s 12(a). Space Activities Act 1998 (Cth) ss 14(a)–(b). Space Activities Act 1998 (Cth) s 46. Space Activities Act 1998 (Cth) s 16. Space Activities Act 1998 (Cth) ss 11(e)–(f). See also ss 12(d)–(e) in relation to an overseas launch certificate, ss 13(f)–(g) in relation to a launch permit, and ss 14(d)–(e) in relation to authorisation for return to Australia of an overseas-launched space object. By contrast, operating a launch facility in Australia without a space licence does not constitute an offence under the legislation, but does give rise to a civil penalty (s 15). The Crimes Act 1914 (Cth) specifies the relevant value of a penalty unit as is applicable under the Space Activities Act 1998 (Cth) from time to time.

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„„ in the case of an individual — imprisonment for a term not exceeding 10 years, or a fine not exceeding 600 penalty units, or both. In addition, the legislation creates a series of ‘civil penalty provisions’, the contravention of which does not constitute an offence, but may result in a penalty calculated as follows:57 „„ in the case of a body corporate — 5000 penalty units; or „„ in the case of an individual — 500 penalty units. 5  Establishment of an Appropriate Government Body [21.90]  The creation of a licensing regime brings with it the need to establish (if no such body already exists) a government agency with the responsibility to undertake all relevant regulatory, administrative and/or supervisory functions. In the case of Australia, the government, at the time, established the Space Licensing and Safety Office (‘SLASO’) to ‘[a]ssist the development of Australian space activities through the efficient administration’ of the Space Activities Act and the Space Activities Regulations.58 Under the legislation, SLASO’s role was to ensure that: „„ national space activities do not jeopardise public safety, property, the environment and Australia’s national security, foreign policy or inter­ national obligations; „„ there is adequate third-party insurance (or other appropriate financial comfort) in place to cover proposed and actual space activities; and „„ any accidents that may occur are investigated.59 Much of the work of SLASO was subsumed into the Space Policy Unit (‘SPU’) when that body was established in 2009 — although, as discussed below, the SPU was itself subsequently closed, with the licensing functions of SLASO now under the day-to-day responsibility of officials in the Civil Space and ICT Policy Section of the Department of Industry, Innovation and Science. 6  Clarification of the ‘Geographical’ Ambit of the Legislation (‘What Is Outer Space’?) [21.100]  From the perspective of administrative certainty, one might expect that national space legislation would clarify the relevant scope of activities for which an appropriate licence must be sought. Although it has not proven, thus far at least, to be a major cause for concern in relation to those domestic 57 58 59

Space Activities Act 1998 (Cth) ss 81(3)(a)–(b). See generally ss 80–83. Space Licensing and Safety Office Fact Sheet, copy on file with author. Under the terms of the Space Activities Act 1998 (Cth), there is a differentiation between an ‘accident’ and an ‘incident’. Under the legislation, a ‘suitably experienced and qualified investigator’ must be appointed in the case of an accident, but need not be in the case of an incident (ss 85, 86, 88).

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space laws that do not define the geographical scope of the licensing regime (which would presumably be a specified altitude above the Earth), it might be that, in certain circumstances, a lack of a precise definition could lead to uncertainties as to whether a particular (launch) activity falls within the ambit of the legislation. Ideally, therefore, national space legislation should specify the (geographical) circumstances as to when a non-governmental entity is required to apply for authorisation to undertake a relevant space activity. For the purposes of the Space Activities Act, the legislation incorporates into the definitions of a ‘launch’, a ‘launch vehicle’, a ‘return’ and a ‘space object’ a reference to ‘the distance of 100 [kilometres] above mean sea level’.60 At the time of introducing this specific point of reference, the Minister explained that its inclusion was necessary to: … provide certainty to industry about the point where industry players become subject to the provisions [of the legislation since] the issue that there is uncertainty as to where ‘outer space’ begins given that there is no definitive explanation of the term in either Australian or inter­ national law.61 For example, the definition of a ‘space object’ in the Space Activities Act, which differs from the (somewhat unsatisfactory) definition that appears in a number of the United Nations space law treaties,62 is as follows:

space object means a thing consisting of: (a) a launch vehicle; and (b) a payload (if any) that the launch vehicle is to carry into or back from an area beyond the distance of 100 [kilometres] above mean sea level; or any part of such a thing, even if: (c) the part is to go only some of the way towards or back from an area beyond the distance of 100 [kilometres] above mean sea level; or (d) the part results from the separation of a payload or payloads from a launch vehicle after launch.63 At the time, this was the first example of domestic space-related legislation that referred to a specific ‘demarcation point’ for the purposes of regulating national space activities; only a small number of other countries have since followed. A more recent and significant development in this regard was the inclusion of an express definition of ‘outer space’ in the 2008 version of 60 61 62

63

Space Activities Act 1998 (Cth) s 8. Explanatory Memorandum, Space Activities Amendment Bill 2002 (Cth) 4. Liability Convention art I(d) defines a space object as follows: ‘The term “space object” includes component parts of the space object as well as its launch vehicle and parts thereof.’ An identical definition is found in the Registration Convention art I(b). Space Activities Act 1998 (Cth) s 8.

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the draft Treaty on the Prevention of the Placement of Weapons in Outer Space, the Threat or Use of Force against Outer Space Objects (‘PPWT’),64 all the more so since that instrument was sponsored by a large number of states, including at least two major space-faring nations. However, as a further indication of the ongoing uncertainty — and political sensitivities — around the issue of a possible demarcation, it is pertinent to note that the revised version of the draft PPWT submitted by Russia in 2014 omitted this definition. Should such developments in state practice eventually be extensively adopted elsewhere, it may ultimately represent evidence tending towards the creation of a new customary international rule.65 This possibility may become very important in relation not only to the broad principles of international (and national) space law, but also on a practical level — for example, to the regulation of commercial sub-orbital space tourism activities, which, at least under current technological constraints, typically involve paying passengers being taken to an altitude slightly in excess of 100 kilometres above the Earth.66 7  Establishment of a National Register and a Mechanism to Furnish Information for the United Nations Register [21.110]  Under the terms of the Registration Convention, the state of registry is required both to maintain a national register67 and to furnish certain information about the launch of space objects to the Secretary-General of the United Nations,68 who maintains an ‘international’ register.69 The establishment of the national register is also relevant in relation to the ‘jurisdiction and 64

65

66

67

68 69

PPWT art I(a) defines outer space as the ‘space beyond the elevation of approximately 100 [kilometres] above ocean level of the Earth’. See North Sea Continental Shelf Cases (Federal Republic of Germany v Denmark; Federal Republic of Germany v The Netherlands) (Judgment) [1969] ICJ Rep 3. It has long been accepted that customary international law represents one of the ‘sources’ of space law: see Vladlen S Vereshchetin and Gennady M Danilenko, ‘Custom as a Source of International Law of Outer Space’ (1985) 13(1) Journal of Space Law 22. In September and October 2004, the manned space vehicle SpaceShipOne twice reached an altitude of just over 100 kilometres and safely returned to Earth to claim the US$10 million Ansari X Prize: see Steven Freeland, ‘Up, Up and … Back: The Emergence of Space Tourism and Its Impact on the International Law of Outer Space’ (2005) 6(1) Chicago Journal of International Law 1. For an analysis of more recent developments in relation to the possible evolution of a commercial space tourism ‘industry’, see Steven Freeland, ‘Fly Me to the Moon: How Will International Law Cope with Commercial Space Tourism?’ (2010) 11(1) Melbourne Journal of International Law 90. Registration Convention art II(1) provides as follows: ‘When a space object is launched into earth orbit or beyond, the launching State shall register the space object by means of an entry in an appropriate registry which it shall maintain. Each launching State shall inform the Secretary-General of the United Nations of the establishment of such a registry.’ See Registration Convention art IV(1). See Registration Convention art III(1).

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control’ of a space object (and the personnel thereof), pursuant to art VIII of the Outer Space Treaty. Part 5 of the Space Activities Act provides for the establishment of a Register of Space Objects to be maintained by the relevant Minister. However, perhaps as an oversight, there is no provision outlining a process by which the relevant information is to be sent to the Secretary-General of the United Nations — although, as noted above, Australia continues to do so through regular diplomatic channels. 8  A Requirement of ‘Direct Financial Responsibility’ for Third-Party Claims [21.120]  One of the most important elements that should be included in national space legislation stems from the general international liability provisions found in the Outer Space Treaty,70 as well as the more detailed liability regime in the Liability Convention, which imposes liability on a ‘launching State’ for certain damage caused by a space object.71 In the absence of specific indemnities for claims by third parties, or where the various exceptions and exonerations contained in the Liability Convention do not apply,72 a launching state will continue to bear this (contingent) international obligation of liability in relation to all relevant space objects. There are no time limitations to, or caps on, the amount of this liability specified under the Liability Convention, as long as it represents ‘damage’73 caused by a space object. Even if it is not a state party to the Liability Convention, a state would still be subject to the liability provisions in the Outer Space Treaty, as well as, of course, any other potential claims based on the general public international law principles of state responsibility. As a consequence, the enactment of national laws enables space-faring states to formalise domestic legal processes that would allow them to pass on financial responsibility to, and recover from, their national non-governmental entities the amount of the damages for which the state may be liable at the international level. Of course, this does not remove the international treaty obligations of liability for a launching state, but it does enable the state to put in place a domestic mechanism by which it can transfer to non-governmental entities the financial ‘risk’ associated with this potential international liability for third-party claims. 70

71

72 73

Outer Space Treaty art VII prescribes the general terms giving rise to international liability for damage caused by an object launched into outer space. The scope of international liability is then elaborated in the subsequent Liability Convention. Liability Convention art 1(c) defines a launching state as: (i) A State which launches or procures the launching of a space object; (ii) A State from whose territory or facility a space object is launched. See especially Liability Convention arts VI, VII. Liability Convention art I(a) defines ‘damage’ as ‘loss of life, personal injury or other impairment of health; or loss of or damage to property of States or of persons, natural or juridical, or property of international intergovernmental organizations’.

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In order to meet the specific circumstances relevant for a (potential) launching state and/or the concerns of commercial enterprises considering a space activity, it is open to the relevant state to limit or cap this ‘indemnity’ to a specific maximum amount and/or for a specific time period. The Space Activities Act is quite specific in this regard. As noted, one express object of the legislation is to provide for the payment of adequate compensation for such damage. The legislation establishes a liability regime with this goal in mind. It provides for either absolute liability74 or fault liability75 on the part of the launch operator in circumstances largely mirroring the terms of arts II and III of the Liability Convention.76 This domestic regime is applicable in circumstances where Australia is a launching state, but (unlike the Liability Convention) only during the ‘liability period’, which is defined as follows:77 „„ for the launch of a space object — the period of 30 days beginning when the launch takes place, or such other period as is specified in the regulations; and „„ for the return of a space object — the period beginning when the relevant re-entry manoeuvre is begun and ending when the object has come to rest on Earth, or such other period as is specified in the regulations. Unless there has been a breach of the relevant licence, or the damage has been caused by an operator that has failed to obtain a required licence (in which case there is unlimited liability), the legislation also provides for a maximum amount of liability equal either to the ‘Maximum Probable Loss’ or the statutory ceiling, which was specified as A$750 million (whichever is the lesser amount). At the time of introducing the legislation, this was considered as important in order not to impose uncommercial and/or uncompetitive obligations upon launch operators.78 With this in mind, the Space Activities Act enables commercial entities applying for a licence to demonstrate ‘direct financial responsibility’ as an alternative to taking out insurance. Article 47 of the legislation provides that the holder of a specific licence satisfies the ‘insurance/financial requirements’ for a launch or return if: 74 75 76

77 78

Space Activities Act 1998 (Cth) s 67. Space Activities Act 1998 (Cth) s 68. Liability Convention art II provides as follows: ‘A launching State shall be absolutely liable to pay compensation for damage caused by its space object on the surface of the earth or to aircraft in flight.’ Liability Convention art III provides as follows: ‘In the event of damage being caused elsewhere than on the surface of the earth to a space object of one launching State or to persons or property on board such a space object by a space object of another launching State, the latter shall be liable only if the damage is due to its fault or the fault of persons for whom it is responsible.’ Space Activities Act 1998 (Cth) s 8. Explanatory Memorandum, Space Activities Bill 1998 (Cth) 9.

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(a) throughout the liability period for the launch or return, the insurance requirements in section 48 are satisfied; or (b) the holder has, in accordance with the regulations, shown direct financial responsibility for the launch or return for an amount not less than the amount that would otherwise have been applicable under subsection 48(3) for the launch or return.79 In summary, the Space Activities Act was designed to facilitate a commercial space launch industry in Australia, as well as launches of Australian payloads from overseas sites, and the possible return of a space object that was not launched from a launch facility located within Australia, all within the context of protecting public safety. However, this has not eventuated and, as things currently stand, we are unlikely to see a significant commercial launch service industry in Australia for a considerable period of time, if ever. In the words of the 2008 Senate Inquiry Report (see below): While not opposed in principle to Australia regaining its role as a launch site if a commercial venture wishes to do so (whether for satellites or tourists), the committee does not see this as likely, nor as something the government should be supporting with taxpayers’ money.80 In this regard, therefore, the policy underpinning the existing national space law of Australia has proven largely to be irrelevant and unattainable. Having said this, however, the licensing regime that is established under the legislation continues to be used to authorise overseas launches by commercial providers of satellite telecommunications services, as well as events such as the 2010 return to Australia of the Japanese Hayabusa asteroid probe, which had been launched from Japan in 2003.81 In addition, the overseas launch certificate process is of increasing relevance to Australian research institutions and small operators with payloads on foreign launch vehicles.82 In this regard, the changing nature of space-related technology means that the terms of the Space Activities Act as currently drafted might not fully reflect the activities undertaken (and proposed) by the Australian space sector, an issue that is a primary focus of the current government review of the Space Activities Act (see below).

79 80

81

82

Space Activities Act 1998 (Cth) ss 47(2)(a)–(b). Senate Standing Committee on Economics, Parliament of Australia, Lost in Space? Setting a New Direction for Australia’s Space Science and Industry Sector (2008) 29 [4.16]. See Steven Freeland, ‘Space Jump Better Late than Never’, The Age (Melbourne), 7 June 2010, 11. See Steven Freeland and Michael Davis, ‘Space Treaties Are a Challenge to Launching Small Satellites in Orbit,’ The Conversation, 17 April 2015, .

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IV  RECENT INITIATIVES AND DEVELOPMENTS [21.130]  The past few years have seen a significant degree of introspection in Australia regarding its future in space, given the importance of (access to) space technology in the wider context of the country’s internal and international relations, as well as the need to articulate and effectively implement a focused space policy. Indeed, it has long been clear to observers that these steps, coupled with the establishment of a comprehensive and relevant body of national law and appropriate international cooperative arrangements, are important for Australia’s future if it is to continue to play an important role in an ever-changing world. This has seen a number of initiatives, the most significant of these being the following.

A  Senate Inquiry Report (2008) [21.140]  In March 2008, the Australian Senate convened a Senate Standing Committee to conduct a public inquiry and to report on the current state of Australia’s space science and industry sector. Its purpose was to examine options to ‘strengthen and expand Australia’s position in fields that strongly align with space science and industry’, with particular reference to: (a) Australia’s capabilities in space science, industry and education, including: (i) existing Australian activity of world-class standard, and (ii)  areas in which there is currently little or no activity but that are within the technical and intellectual capacity of the country; (b) arguments for and against expanded Australian activity in space science and industry, including: (i)  an assessment of the risks to Australia’s national interest of Australia’s dependence on foreign-owned and operated satellites, (ii) the potential benefits that could accrue to Australia through further development of our space capability, (iii) economic, social, environmental, national security and other needs that are not being met or are in danger of not being met by Australia’s existing space resources or access to foreign resources, (iv) impediments to strengthening and expanding space science and industry in Australia, including limiting factors relating to spatial information and global positioning systems, including but not limited to ground infrastructures, intergovernmental arrangements, legislative arrangements and government/ industry coordination, and (v) the goals of any strengthening and expansion of Australia’s space capability both in the private sector and across government; and

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(c) realistic policy options that facilitate effective solutions to crosssector technological and organisational challenges, opportunity capture and development imperatives that align with national need and in consideration of existing world-class capability.83 The Committee received 88 submissions and held public hearings across the country over a five-month period. It issued an interim report in June 2008 and its final report in November 2008. The latter included a series of recommendations that provided the basis upon which a revised national space strategy for the future could be developed.84

B  Department of Defence White Paper (2009) [21.150]  Following a review of the existing capabilities and requirements of its Navy, Army and Air Force, in April 2009 the Department of Defence issued a White Paper with the following purposes: 1.1 This new Defence White Paper explains how the Government plans to strengthen the foundations of Australia’s defence so that we are ready to meet the challenges of an uncertain strategic future. It sets out the Government’s future plans for Defence, and how it will achieve those plans. 1.2 In particular, this new Defence White Paper lays out the Government’s future plans for the development of Force 2030, including the major capability investments that will need to be made in the coming years. Most importantly, it explains the level of resources that the Government is planning to invest in Defence over coming years and what the Government, on behalf of the Australian people, expects in return from Defence.85 The 2009 Defence White Paper was a very comprehensive document, dealing with all aspects of the current and future defence capabilities and needs of the country, including issues relating to its increasing demand for assured access to specific space-related technology. It emphasised the need of the Australian Defence Force (‘ADF’) to be in a position to exercise greater self-reliance, while at the same time maintaining and utilising the strong existing strategic alliances, predominately with the United States. In relation specifically to space technology, the Senate Inquiry Report had already heard evidence from the Department of Defence that over 83

84

85

Senate Standing Committee on Economics, Parliament of Australia, Lost in Space? Setting a New Direction for Australia’s Space Science and Industry Sector (2008) Terms of Reference, vii. For a discussion of the recommendations contained in the Senate Inquiry Report, see Noel Siemon and Steven Freeland, ‘Regulation of Space Activities in Australia’ in Ram Jakhu (ed), National Regulation of Space Activities (Springer, 2010) 37. Department of Defence, Defending Australia in the Asia Pacific Century: Force 2030 (April 2009) [1.1]–[1.2] (‘2009 Defence White Paper’).

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50 per cent of the ADF’s major capability developments for the period 2006–16 ‘have a dependency on services that are derived from space’.86 Yet, although Australia does benefit from a comprehensive network of (privately owned and operated) communications satellites, for its other satellite needs — such as remote sensing and GPS — it is at present entirely reliant on satellites operated and controlled offshore. This is despite the fact that Australia is uniquely dependent upon space technology for defence, security and economic purposes, as well as due to its huge coastline. These ‘offshore’ satellites are not subject to Australian ownership or jurisdiction and control — the latter either in a practical day-to-day sense, and/or as contemplated in the Outer Space Treaty.87 As a consequence, the reality is that access to these satellites in a crisis would be solely dependent on the strength and enforceability of contractual terms and political ties. The 2009 Defence White Paper therefore placed a ‘high priority on assured access to high quality space-based imagery’, in order to meet the ADF’s requirements for ‘mapping, charting, navigation and targeting data’.88 In addition, great emphasis was placed on the need to enhance Australia’s intelligence, surveillance and reconnaissance (‘ISR’) capabilities,89 designed to give it the ability ‘to collect, share, interpret and act upon information in a timely manner’.90 As a result, the 2009 Defence White Paper confirmed the government’s intention to improve the country’s intelligence collection capability ‘by acquiring a satellite with a remote sensing capability, most likely to be based on a high-resolution, cloud-penetrating synthetic aperture radar’.91 These strategies were designed to augment the existing strategic alliances with the United States, which involve the sharing of imagery access with that country, as well as enhancing Australia’s ISR capability by linking it with that of the United States. These initiatives complemented the terms 86

87

88

89

90

91

Senate Standing Committee on Economics, Parliament of Australia, Lost in Space? Setting a New Direction for Australia’s Space Science and Industry Sector (2008) 44 [5.56]. Outer Space Treaty art VIII provides in part as follows: ‘A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body.’ See Australian Government, Government Response to the Inquiry by the Senate Standing Committee on Economics into the Current State of Australia’s Space Policy & Industry Sector (November 2009) . Department of Defence, Defending Australia in the Asia Pacific Century: Force 2030 (April 2009) [9.78]. Joel Fitzgibbon and Warren Snowden, ‘A Smarter Defence for a More Complex World’ (Media Release, 2 May 2009) . Department of Defence, Defending Australia in the Asia Pacific Century: Force 2030 (April 2009) [9.80].

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of a 2008 statement of principles between the respective governments establishing the United States–Australia Military Satellite Communications Partnership (the United States–Australia Partnership Agreement),92 which specified that the countries will ‘jointly pursue the development of satellite capabilities — both commercial and military’.93 The 2009 Defence White Paper, recognising both a need for ‘space situational awareness’ and appropriately skilled space professionals, also indicated that the ADF would develop a ‘career stream for space specialists’.94 At present, there is only a relatively small (albeit growing) number of people within the military dealing with an increasingly broad and complex array of space-related issues, so that this emphasis on the development of specific and up-to-date technical expertise is to be welcomed. This will also require the involvement of lawyers who are across a whole range of issues related to the interaction of the laws of armed conflict, military law and space regulation — a convergence that is not in itself entirely straightforward under existing international law.95

C  Establishment of the Space Policy Unit (2009) [21.160]  The thrust of the Senate Inquiry Report was geared towards a ‘whole-of-government’ approach to space. As part of the government’s response to the recommendations contained in the Senate Inquiry Report,96 and as an important interim step towards the development of its space policy, in its 2009 budget, $160.5 million was dedicated to space science and astronomy infrastructure acquisitions and development, and a further $8.6 million was allocated to establish the SPU within the (then) Department of Innovation, Industry, Science and Research. The SPU began its operations in mid-2009 and was tasked with various functions, including: 92

93

94

95

96

See Australian Government, ‘Australia–United States Ministerial Consultations 2008 Joint Communiqué’, AUSMIN — Australia–United States Ministerial Consultations (2008) . Department of Defence, Defending Australia in the Asia Pacific Century: Force 2030 (April 2009) [15.14]. Department of Defence, Defending Australia in the Asia Pacific Century: Force 2030 (April 2009) [9.101]. For a general discussion of the possible application of the international laws of war within the international legal regulation of outer space, see Steven Freeland, ‘The Applicability of the Jus in Bello Rules of International Humanitarian Law to the Use of Outer Space’ (2006) 49 Proceedings of the Colloquium on the Law of Outer Space 338; Steven Freeland, ‘The Laws of War in Outer Space’ in Kai-Uwe Schrogl et al (eds), Handbook of Space Security (Springer, 2015) 81. See Australian Government, Government Response to the Inquiry by the Senate Standing Committee on Economics into the Current State of Australia’s Space Policy & Industry Sector (November 2009) .

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„„ to act as a central point of contact and coordination for all civil space activities with international space organisations; „„ to examine Australia’s current civil space activities with a focus on Earth observation, satellite communications and navigation, and to continue to hold the Australian Government Space Forum; „„ to develop a national space policy; and „„ to administer the $40 million Australian Space Research Program, which would support space research, innovation and skills development in areas of national significance. The SPU was established to focus on a number of initiatives directed towards the ultimate articulation of a space policy covering in particular civil matters, as well as addressing such issues as how Australia uses space to tackle climate change, weather forecasting, natural resource management, forestry and agriculture, disaster management, and national security. Once established, in practical terms, the SPU acted as Australia’s de facto ‘space agency’. The Senate Inquiry Report had noted that Australia was the only Organisation for Economic Co-operation and Development country without a national space agency, and ‘as a consequence is missing out on opportunities to engage in this important area of innovation and technology’.97 Indeed, based on contact made with the author, prior to the establishment of the SPU, some overseas parties interested in Australia’s space activities were confused as to how to make contact with the appropriate persons within government. As part of the revamp of Australia’s space regulatory infrastructure, a new website was developed, which centralised all relevant information in relation to Australia’s space activities and which represented a useful starting point for those interested in engaging with the Australian government and/or space industry.98

D  Release of ‘Principles for a National Space Industry Policy’ (2011) [21.170]  In accordance with its mandate to develop an appropriate space policy for Australia, the SPU proceeded to categorise the government’s space activities under four broad themes: „„ ensuring access to space services (especially communications, global positioning/navigation and Earth observation); „„ supporting world-class space science and research, consistent with national priorities; „„ developing Australia’s domestic space industries; and „„ safeguarding Australia’s national security. 97

98

Senate Standing Committee on Economics, Parliament of Australia, Lost in Space? Setting a New Direction for Australia’s Space Science and Industry Sector (2008) 66 [6.84], Recommendation 2. See Department of Industry, Innovation and Science, Australian Civil Space .

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On this basis, the then Minister for Innovation, Industry, Science and Research released the Principles for a National Space Industry Policy (‘Space Policy Principles’) in late September 2011.99 The Space Policy Principles specifically recognised that: Australia does not currently have a space policy that: provides a clear understanding of our space interests and objectives; identifies existing and emerging opportunities, areas of leverage and facilitates competitive advantages; and prepares us to meet future challenges effectively.100 As a result, the Minister recognised the need to articulate a comprehensive national space strategy that will ‘facilitate better coordination of space activities across Government’,101 based on the following core principles: „„ to focus on space applications of national significance; „„ to assure access to space capability: „„ to strengthen and increase international cooperation; „„ to contribute to a stable space environment; „„ to improve domestic coordination; „„ to support innovation, science and skills development; and „„ to contribute to national security and economic well-being.

E Finalisation of Australia’s ‘Satellite Utilisation Policy’ (April 2013) [21.180]  On 9 April 2013, the Australian government released its new space policy, officially referred to as the Satellite Utilisation Policy (‘2013 Space Policy’).102 The 2013 Space Policy purports to approach Australia’s role very much in pragmatic and economic terms. It systematically builds upon the 2011 Space Policy Principles, while replacing them as the latest comprehensive statement about Australia’s objectives and directions in relation to its use of space. The release of the 2013 Space Policy was a welcome step forward. Almost for the first time, there was a significant and serious attempt to articulate a focused approach to the way that the country should engage with space 99

100

101

102

See Australian Government, Principles for a National Space Industry Policy (2011) . Australian Government, Principles for a National Space Industry Policy (2011) 1 . Australian Government, Principles for a National Space Industry Policy (2011) 1 . For the text of the 2013 Space Policy, see Australian Government, Australia’s Satellite Utilisation Policy (2013) .

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activities. A key difference between these proposals and previous attempts to articulate a space policy for the country is that it appears to be driven by a government that, at least as reflected in the broad language of the 2013 Space Policy, is committed to a ‘whole-of-nation’ approach to space. However, in many respects the document was long on generalities and rather short when it came to specifics. Much of the detail of the proposed enhancements to Australia’s space policy was not specified in any way. Notably, the financial implications of the policy were not outlined, and there was no specific allocation of funding to implement various elements of the underlying principles.103 On the other hand, there were tangible financial commitments made with respect to the acquisition of two satellites for the Australian National Broadband Network (NBN), but this was, arguably, as much driven by domestic policy considerations as by any concerns about the need to utilise space, since the NBN was a major platform upon which the Gillard government was re-elected to lead the country in 2010. The activities of the NBN have since continued, and the first NBN satellite was, as noted, launched in September 2015. After the release of the 2013 Space Policy, the SPU ceased to exist and general matters relating to space now fall within the scope of the Manufacturing and Services Policy Branch of the Department of Industry, Innovation and Science — although, of course, other government departments are also involved in the management and carriage of specific Australian space-related activities.

F  Review of the Space Activities Act 1998 (2015–16) [21.190]  On 24 October 2015, the Minister for Industry, Innovation and Science announced that the government had decided to undertake a review of the Space Activities Act, having engaged this author as an adviser to assist in this review.104 The establishment of the review is, at least in part, a response to the rapid development of space-related technology, and represents an opportunity for the government to gauge the most appropriate way in which the Australian regulatory framework should assist in the development of commercial opportunities for the Australian space sector, while protecting the country in relation to potential liability issues and ensuring that Australia meets its international obligations under the United Nations space treaties.105 103

104

105

For an analysis of the terms of the 2013 Space Policy, see Steven Freeland, ‘The Final Piece of the Puzzle? The Launch of Australia’s Satellite Utilisation Policy’ (2013) 62(3) German Journal of Air and Space Law/Zeitschrift für Luft- und Weltraumrecht 429. See Christopher Pyne, ‘Atmosphere Is Right for a Review of Our Space Activities’ (Media Release, 24 October 2015) . See Steven Freeland and Michael Davis, ‘Space Treaties Are a Challenge to Launching Small Satellites in Orbit’, The Conversation, 17 April 2015, .

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The review is intended to examine the appropriateness and effectiveness of existing Australian civil space regulation, including whether the Space Activities Act: „„ supports innovation and the advancement of space technologies; „„ promotes entrepreneurship and private investment in Australia, as well as opportunities for Australian firms to compete globally into the future; „„ appropriately protects the Commonwealth against potential liability claims in relation to current and future civil space activities conducted in Australia or by Australians; „„ adequately addresses emerging issues, such as management of the space environment and technology advancement or convergence; „„ appropriately aligns with other related Australian legislation and/or Australia’s international obligations, and removes unnecessary regulatory burden; and „„ provides the necessary authority to support Commonwealth-led civil space activities. At the time of writing, this review is underway, with a report to the Department of Industry, Innovation and Science due to be submitted in the second half of 2016.

V  CONCLUDING REMARKS [21.200]  Recent developments give rise to a degree of optimism as to the future direction of Australia’s participation in space, particularly if one is to compare these developments with prior attempts to articulate a space policy for the country. Successes such as the May 2012 announcement that Australia would co-host the multibillion dollar Square Kilometre Array radio telescope with New Zealand and South Africa have provided a significant impetus to Australia’s space capabilities and activities.106 Without doubt, there are many issues of detail to be determined regarding future space-related proposals, and it may well be some time before the precise direction of Australia’s space initiatives is apparent — even more so given the constantly evolving technological developments. Moreover, any long-term strategy will require considerable and unwavering governmental support and political will. However, indications over recent times suggest that the government is committed to the elaboration of a more systematic space-related regulatory framework in light of the (potential) opportunities for Australian entities to participate and compete in the global space sector. 106

See Chris Evans, SKA Decision a Breakthrough for Australia–New Zealand Science (26 May 2012) Ministers’ Website for Industry, Innovation, Science Research and Tertiary Education .

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It is within this context that the current review of the Space Activities Act will direct its attention towards the creation of a satisfactory and more comprehensive legal environment in order to gain the very considerable benefits associated with playing an enhanced role in space activities. Australia cannot afford to fall behind its friends and neighbours in relation to important aspects of the exploration and use of outer space. The next few years may therefore turn out to be pivotal in the future development of Australia’s place in the world and its ability to meet the undoubted challenges of the 21st century.

22 Australia’s External Territories and International Law Rosemary Rayfuse

I INTRODUCTION [22.10]  Popular histories of Australia often invoke its colonial past. Less well known is Australia’s own position as a ‘colonial power’ and an acquisitor of external territories. Indeed, since federation, Australia has acquired 10 external territories, sought predominantly for reasons of national security and access to resources.1 Six of these territories were obtained by transfer from the United Kingdom, two were acquired under mandate to the United Kingdom from first the League of Nations and later the United Nations, and two were acquired by direct annexation. Six of these territories were inhabited and three of them — Nauru, Papua and New Guinea — subsequently gained their independence. Although still retaining links to Australia as hosts of its offshore detention centres that form part of Australia’s ‘Pacific solution’ to irregular migration by sea, Nauru obtained its independ­ ence in 1969 and Papua and New Guinea obtained independence as the unified state of Papua New Guinea in 1975. Today, Australia possesses seven external territories: the inhabited territories of Norfolk Island, the Cocos (Keeling) Islands and Christmas Island (together referred to as the Indian Ocean Territories), and the uninhabited2 territories of Ashmore and Cartier Islands, Heard and McDonald Islands, the Australian Antarctic Territory (‘AAT’) and the Coral 1

2

For a comprehensive history of the acquisition by Australia of these territories, see Alan Kerr, A Federation in These Seas: An Account of the Acquisition by Australia of Its External Territories, with Selected Documents (Commonwealth of Australia, 2009) . These territories are ‘uninhabited’ in the sense that no permanent population has ever lived in them. This is not to suggest that there is no human presence whatsoever. 535

536    INTERNATIONAL LAW IN AUSTRALIA

Sea Islands. With the exception of the AAT, these territories are all small, remote island territories located in the Indian, Pacific and Southern Oceans that, collectively, place a mere 765 square kilometres of territory under the jurisdiction of Australia.3 With developments in the law of the sea,4 however, these territories place an additional 2.4 million square kilometres of exclusive economic zone (‘EEZ’) and continental shelf, and 1.34 million square kilometres of extended continental shelf under the jurisdiction of Australia.5 The AAT potentially adds a further 5.9 million square kilometres of land, 2.21 million square kilometres of EEZ and continental shelf as well as and 0.68 million square kilometres of extended continental shelf to the equation. The maritime domain generated by its external territories is thus greater than that generated by the Australian mainland and covers an area greater than the mainland itself.6 This chapter examines Australia’s law and practice with respect to its external territories and the international law issues that arise in respect of them. It begins with a discussion of the historical and legal basis in inter­ national law for these territorial claims and then examines the continued exercise of sovereignty by Australia over its inhabited and uninhabited external territories. Particular consideration is given to Australia’s role in the Antarctic.7 The chapter does not discuss the three now independent former external territories, Papua, New Guinea and Nauru — although, as the Nauru case makes clear, Australia remains responsible under international law for acts done by it in both its past and current external territories.8 Rather, this chapter focuses on Australia’s current external territories.

II  THE EXTERNAL TERRITORIES AND THE ACQUISITION OF TERRITORIAL SOVEREIGNTY [22.20]  The original impetus for the acquisition of external territories arose from the fears of the white Australian colonists of the security implications 3

4 5

6

7

8

Information on the physical location and size of the external territories is taken from Geoscience Australia, Remote Offshore Territories . See also Geoscience Australia, Oceans and Seas . See chapter 18 in this volume. Philip Symonds, Mark Alcock and Colin French, ‘Setting Australia’s Limits’ (2009) 93 AusGeo News . The EEZ generated by the mainland is approximately 6.1 million square kilometres. The total area of the mainland itself is approximately 7.69 million square kilometres. In this chapter, ‘Antarctica’ is used to refer to the continental land mass, while ‘the Antarctic’ refers to the area covered by the Antarctic Treaty, which is defined as all areas (terrestrial and marine) south of 60ºS latitude: Antarctic Treaty, opened for signature 1 December 1959, 402 UNTS 71 (entered into force 23 June 1961). Certain Phosphate Lands in Nauru (Nauru v Australia) [1992] ICJ Rep 240.

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of (non-British) colonial expansion in the Australasian region. In the decades prior to Federation, Australia sought to encourage the United Kingdom to annex a number of territories in the region in order to ‘draw a cordon around’ Australia’s boundaries.9 Determined to secure its ongoing protection, when the Australian Constitution was adopted in 1900, s 122 provided: The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Common­ wealth, and may allow the representation of such territory in ether House of the Parliament to the extent and on the terms which it thinks fit. In the event, Australia has used this power with some alacrity to secure the transfer to it of territories previously claimed or annexed by the United Kingdom, or to ‘otherwise acquire’ external territories of interest to it.

A  Norfolk Island [22.30] Norfolk Island lies in the South Pacific Ocean, 1412 kilometres east of Brisbane. The Territory of Norfolk Islands consists of the main island and the nearby Nepean and Phillip Islands, collectively referred to as Norfolk Island. The overall area of the Territory is approximately 37 square kilometres. Archaeological evidence suggests that the island was originally settled by Polynesian seafarers in the 13th or 14th century.10 However, when sighted by Captain James Cook in 1774, the island was uninhabited. Cook landed on the island and proclaimed it a British possession. In 1778, shortly after the establishment of the penal colony at Sydney cove, the island became a penal settlement of the British Crown, governed from the new colony of New South Wales. The penal colony was abandoned in 1814, re-established in 1825, and finally closed down in 1855, when the island was offered by the British government to the Pitcairn Islanders, the entire community of which (194 persons) relocated to Norfolk Island in 1856. Although some later returned to Pitcairn Island, most remained on Norfolk Island. In 1843, the island was severed from New South Wales and annexed to the colony of Van Diemen’s Land (now Tasmania). With the arrival of the Pitcairn Islanders in 1856, the island was separated from Van Diemen’s Land and 9

10

Alan Kerr, A Federation in These Seas: An Account of the Acquisition by Australia of Its External Territories, with Selected Documents (Commonwealth of Australia, 2009), 8 . Atholl Anderson and Peter White, ‘Prehistoric Settlement on Norfolk Island and Its Oceanic Context’ Records of the Australian Museum (Supplement 27) (2010) 135–41.

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made a distinct and separate settlement, administered by the Governor of New South Wales acting as the Governor of Norfolk Island.11 In 1896, the United Kingdom offered to transfer Norfolk Island either to the colony of New South Wales or to the expected Federation of Australia. In 1902, the newly formed Commonwealth government agreed to accept the Territory and — despite ongoing protests from the islanders — by the Norfolk Island Act 1913 (Cth), the island was accepted as a territory of the Commonwealth of Australia with effect from 1 July 1914.12

B  Ashmore and Cartier Islands [22.40]  The Ashmore Islands and Cartier Island are tiny, uninhabited, coral and sand atolls in the Timor Sea approximately 320 kilometres off Australia’s north-west coast and 170 kilometres south of the Indonesian island of Roti. The Ashmore group consist of three islands — West, Middle and East Islands — within the Ashmore Reef. Cartier Island, some 70 kilometres to the east of Ashmore, also lies within a reef. The Ashmore and Cartier Islands Territory consists of the islands and the surrounding 12 nautical mile territorial sea and totals an area of 199 square kilometres. The islands have been visited by Indonesian fishermen for centuries, but have never been inhabited. While it is possible that Dutch and Portuguese sailors may already have visited the islands, their first recorded discovery by Europeans was by Captains Ashmore and Nash sailing on the Hibernia in 1811. During the 1850s, American whalers operating in the area discovered phosphate deposits on Ashmore. These were then exploited by US nationals, leading to a dispute between the United Kingdom and the United States as to ownership of the islands. In 1878, the United Kingdom formally annexed Ashmore Islands, putting an end to the dispute. Cartier Island was subse­ quently annexed by the United Kingdom in 1909.13 In 1924, the British government proposed the transfer of the islands to the Commonwealth government for the purposes of rationalising the issuance of fishing concessions for the waters surrounding the islands. The offer was accepted and in 1931 the islands were placed under the authority of the Commonwealth by an order-in-council of the British government. The Ashmore and Cartier Islands Acceptance Act 1933 (Cth) came into effect on 10 May 1934. 11

12

13

Alan Kerr, A Federation in These Seas: An Account of the Acquisition by Australia of Its External Territories, with Selected Documents (Commonwealth of Australia, 2009), 121–2 . Alan Kerr, A Federation in These Seas: An Account of the Acquisition by Australia of Its External Territories, with Selected Documents (Commonwealth of Australia, 2009), 135–42 . Alan Kerr, A Federation in These Seas: An Account of the Acquisition by Australia of Its External Territories, with Selected Documents (Commonwealth of Australia, 2009), 195 .

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C  The Australian Antarctic Territory [22.50]  The AAT covers an area of approximately 5.9 million square kilometres, amounting to some 42 per cent of the Antarctic continent. The claimed area is equal to approximately 80 per cent of the total area of continental Australia itself. The Australian claim is the largest territorial claim over Antarctica and constitutes two pie-shaped wedges, or sectors, including all islands and territories south of 60ºS between 45ºE and 16ºE, excluding the French sector of Terre Adélie. The Territory is uninhabited except for a ‘transient’ population of scientists and researchers. Australian interest in Antarctica stretches back to the earliest days of the colonies and their reliance on trade routes through, and the whale and seal resources of, the Southern Ocean. However, Australia’s claim to the Territory is based on its involvement in the exploration of the continent in the early 20th century. While increasing exploration activity was ostensibly aimed at scientific enlightenment, a number of states, including Australia, were eyeing the resource and territorial potential of Antarctica. This led to consultations with the United Kingdom as to the manner in which British sovereignty might be established in the ‘Australian’ sector for the specific purpose of its transfer to Australia.14 In 1930, Sir Douglas Mawson, himself an Australian, proclaimed UK sovereignty over what is now the AAT. On 7 February 1933, by order-in-council, the United Kingdom placed this Antarctic Territory under the authority of the Commonwealth of Australia. The Australian Antarctic Territory Acceptance Act 1933 (Cth) was assented to on 13 June 1933 and came into effect on 24 August 1936.

D  Heard and McDonald Islands [22.60]  Described by Mawson as ‘the wildest place on earth’,15 Heard Island and the McDonald Islands are uninhabited sub-Antarctic islands located in the Indian Ocean sector of the Southern Ocean more than 4000 kilometres south-west of Australia and 1500 kilometres north of Antarctica. Heard Island is a 368 square kilometre island dominated by the Big Ben volcanic massif. The McDonald Islands, 44 kilometres to the west, are three small rocky volcanic islands totalling 2.5 square kilometres in area, while a small group of islets and rocks lies approximately 10 kilometres to the north of Heard Island. The Heard Island and McDonald Islands (‘HIMI’) Territory consists of the islands and the surrounding 12 nautical mile territorial sea, with an overall size of 372 square kilometres. 14

15

Alan Kerr, A Federation in These Seas: An Account of the Acquisition by Australia of Its External Territories, with Selected Documents (Commonwealth of Australia, 2009), 227–9 . Alan Kerr, A Federation in These Seas: An Account of the Acquisition by Australia of Its External Territories, with Selected Documents (Commonwealth of Australia, 2009), 249 .

540    INTERNATIONAL LAW IN AUSTRALIA

The islands were discovered in the mid-19th century, possibly by a British sailor in 1833, although they were named after American sailors who sighted them in 1853 and 1854. From 1855 to 1880, American sealers used Heard Island, deserting the island when seal stocks had been wiped out. A British ship landed for a day in 1874, but no formal claim to sovereignty appears to have ever been made by the United Kingdom. Rather, sovereignty seems to have been assumed through a number of acts, including the granting of leases to foreign nationals in 1908 and 1926, and the erection of a beacon and the raising of the Union Jack at a ceremony reported in the foreign press in 1910.16 Concurrent with its interests in Antarctica, to which the islands were seen as a stepping stone, Australian scientists had visited the islands in 1929–30,17 and by 1947 Australia wanted, and the United Kingdom was willing to transfer, the UK interests in the islands. However, given the uncertainty as to British sovereignty, in order to solidify its own position Australia took its own steps to occupy the Territory, landing a scientific expedition on Heard Island on 11 December 1947 and formally declaring its intention to continue the occupation of the islands and to administer them as Australian territories. A meteorological station and a post office were established on the island, intended to evidence Australia’s effective occupation of the Territory.18 To avoid attracting attention and protest from other potential claimant states, the transfer of sovereignty of Heard and McDonald Islands from the United Kingdom to Australia was conducted by a low-key exchange of notes on 19 December 1950 recognising that the UK interests in the islands had been transferred to and acquired by Australia through Australia’s own effective administration and occupation of the Territory as from 26 December 1947.19

E  Cocos (Keeling) Islands [22.70]  The Cocos (Keeling) Islands lie in the Indian Ocean approxi­ mately 2770 kilometres north-west of Perth and 100 kilometres south-west of Christmas Island. The isolated Territory consists of 27 coral islets formed 16

17

18

19

Alan Kerr, A Federation in These Seas: An Account of the Acquisition by Australia of Its External Territories, with Selected Documents (Commonwealth of Australia, 2009), 247–8 . Archibald Grenfell-Price, ‘The Winning of Australian Antarctica’ in P M Thomas (ed), Geographic Report of BANZAR Expedition 1929–1931 (Angus and Robertson, 1962) vol 1, 35–7. Alan Kerr, A Federation in These Seas: An Account of the Acquisition by Australia of Its External Territories, with Selected Documents (Commonwealth of Australia, 2009), 250 . Alan Kerr, A Federation in These Seas: An Account of the Acquisition by Australia of Its External Territories, with Selected Documents (Commonwealth of Australia, 2009), 252 .

Ch 22: AUSTRALIA’S EXTERNAL TERRITORIES AND INTERNATIONAL LAW   541

on two coral atolls with a total land area of 14 square kilometres. The small population of the Territory lives mainly on Home Island and West Island. The islands were uninhabited when first sighted by Captain William Keeling in 1609. He named them the Cocos Islands, but they were subse­ quently renamed in 1805 as Cocos (Keeling). They were settled in 1826 by an Englishman, Alexander Hare, who was joined in 1827 by John Clunies-Ross, the two men bringing to the islands a number of Malays to harvest coconuts and establish and work a copra planation. The islands were annexed by the United Kingdom in 1857. In 1878, they were placed under the administra­ tion of the Governor of Ceylon (now Sri Lanka). They were transferred to the Straits Settlement in 1886, at which time formal authority over the islands was given to the Clunies-Ross family in perpetuity by way of indenture from Queen Victoria. In 1903, the islands were formally incorporated into the British Crown colony of Singapore. 20 Australia’s interest in the islands began in 1901, when a cable station linking Perth with Africa, Asia and Europe was established on one of the islands. In 1914, the HMAS Sydney ran a German cruiser, the Emden, aground on North Island. During the Second World War, the islands were bombed, although not occupied, by the Japanese. By the end of the war, several thousand British troops were posted there and a large airstrip had been constructed for use by the Royal Air Force. With both defence and long-range civilian aviation interests growing after the Second World War, the islands assumed a strategic importance for Australia. In 1948, Australia enquired into the possibility of their transfer from the colony of Singapore to Australia. After considerable wrangling relating to the citizenship and residency rights of the Cocos Malay population living on the islands, the position of the Clunies-Ross family and the ownership of the airfield, the islands were eventually transferred to Australia on 23 November 1955.21

F  Christmas Island [22.80]  Christmas Island lies in the Indian Ocean, about 2300 kilometres north-west of Perth and just 360 kilometres south of the Indonesian island of Java. The island, which is the summit of a submarine mountain, covers approximately 135 square kilometres. First sighted by Europeans in 1615, it was named on Christmas day 1643 by Captain William Mynors of the British East India Company. The first recorded landing was in March 1688, at which time the island was found to be uninhabited. In 1888, the island was annexed by the United Kingdom and placed under the administration of the 20

21

Alan Kerr, A Federation in These Seas: An Account of the Acquisition by Australia of Its External Territories, with Selected Documents (Commonwealth of Australia, 2009), 267–8 . Cocos (Keeling) Islands Act 1955 (Cth).

542    INTERNATIONAL LAW IN AUSTRALIA

Straits Settlement. A settlement was established by George Clunies-Ross of Cocos (Keeling) Islands and, in 1891, he was granted a 99-year lease to mine phosphate and cut timber on the island. Operations were conducted using indentured labour from Singapore, China and Malaysia. In 1900, the island was incorporated into the Straits Settlement of Singapore and, in 1946, it was transferred to the Crown colony of Singapore.22 Australia’s interest in the island was sparked by the desire to ensure phosphate supplies during the First World War. This desire was further peaked by strategic and resource concerns when the island was occupied by the Japanese during the Second World War. After the war, Australia acquired commercial interests in the phosphate operations. When suggestions of the possible use of the island by the United Kingdom to house political detainees from Malaysia and as an observation post for its nuclear weapons tests at Woomera emerged, Australia — which was now taking the entire phosphate output from the island — requested that the island be transferred to it. The question was first broached in 1954 and, after delays relating to the negotiation of compensation to Singapore for its interests in the phosphates and the question of citizenship and residency of the inhabitants of the island, the transfer was ultimately effected with the coming into effect of the Christmas Island Act 1958 (Cth) on 1 October 1958.23

G  The Coral Sea Islands [22.90]  The Coral Sea Islands Territory consists of an area containing approximately 30 small uninhabited islands, reefs and atolls that extends eastwards from the outer edge of the Great Barrier Reef. The total area of the islands making up the Territory is only seven square kilometres, although the entire Territory covers an area of some 780,000 square kilometres. The Territory is the most recent to have been acquired by the Commonwealth and is the only one that was not obtained by transfer from the United Kingdom or administered by Australia under a mandate or trusteeship agreement. The islands and reefs of the Coral Sea were first charted in 1803, and some were mined for guano during the 1870s and 1880s. Historically, it was assumed that they were British possessions by virtue of Captain Cook’s annexation of eastern Australia and the islands off its coast in 1770. However, after Federation in 1901, concerns began to be raised as to their legal status and Australia moved to resolve the issue. A wireless station was established on Willis Island in 1921. In the 1930s — in response to increased 22

23

Alan Kerr, A Federation in These Seas: An Account of the Acquisition by Australia of Its External Territories, with Selected Documents (Commonwealth of Australia, 2009), 317 . Alan Kerr, A Federation in These Seas: An Account of the Acquisition by Australia of Its External Territories, with Selected Documents (Commonwealth of Australia, 2009), 323 .

Ch 22: AUSTRALIA’S EXTERNAL TERRITORIES AND INTERNATIONAL LAW   543

Japanese fishing activities, fears of renewed German and French territorial interests, and developing interest in trans-oceanic air service — periodic defence force visits were undertaken in the area and navigational aids were constructed. Eventually, interest in the islands and, in particular, the reefs, merged with interest in the emerging regime of the continental shelf.24 In the 1950s, the decision was taken to transfer the islands to the Commonwealth. Given the doubt as to the nature and extent of the United Kingdom’s interests, these interests (to the extent that any existed) were transferred to Australia by an exchange of notes on 16 August 1968 recognising that effective government, administration and control were already exercised over the islands by Australia. The Coral Sea Islands Act 1969 (Cth) was adopted and came into force on 30 September 1969. The Territory was subsequently extended in 1997 with the inclusion of the separately bounded Elizabeth and Middleton Reefs, which lie approximately 800 kilometres to the south.

III  THE LEGISLATIVE FRAMEWORK FOR THE EXERCISE OF SOVEREIGNTY OVER THE EXTERNAL TERRITORIES [22.100]  Just as discovery provides only inchoate title, the mere acquisition of territory does not necessarily ensure continued sovereignty over it.25 However, in the absence of competing claims, a state need only show sufficient, not better, title. What constitutes ‘sufficient’ will depend on the circumstances. The most effective assertion of sovereignty is occupation, the requirements for the demonstration of which will depend on whether a territory is inhabited or uninhabited.26 Recognition of, or acquiescence in, the assertion of sovereignty by other states will also be important.27 While the legal basis of the original UK title to some of what are now Australia’s external territories may have been questioned in the past, with the exception of the AAT (see section V below), Australia’s sovereignty over these territories is no longer contested by other states. In particular, although reservations as to Australian sovereignty over Heard and McDonald Islands were expressed by the United States in 1947, its subsequent lack of objection to Australia’s claims to maritime zones surrounding the islands and to Australia’s permitting requirements for scientific activities in the Territory would appear to indicate that these reservations have now been dropped and Australian sovereignty over the Territory is now uncontested. 24 25 26

27

See chapter 18 in this volume. Island of Palmas Case (Netherlands v United States) (1928) 2 RIAA 829. Island of Palmas Case (Netherlands v United States) (1928) 2 RIAA 829. See also Legal Status of Eastern Greenland (Denmark v Norway) [1933] PCIJ (ser A/B) No 53; Clipperton Island Case (France v Mexico) (1931) 2 RIAA 1105. See, eg, Legal Status of Eastern Greenland (Denmark v Norway) [1933] PCIJ (ser A/B) No 53.

544    INTERNATIONAL LAW IN AUSTRALIA

Australia’s sovereignty over its external territories is maintained by the implementation of comprehensive legislative jurisdiction consisting of a mixture of Commonwealth, state and territory law, with the Commonwealth retaining plenary and unlimited power28 to make laws for the territories providing for their direct administration or endowing the territory with separate political and administrative functions.29 With the exception of Cocos (Keeling) Islands and Christmas Island, Commonwealth legislation only applies to the external territories if expressly stated to do so or if it is obvious from the legislation that it was intended to do so. Since July 1992, the Cocos (Keeling) Islands and Christmas Island (collectively referred to as the ‘Indian Ocean Territories’ or ‘IOT’) have been included in the definition of ‘Australia’ in s 2B of the Acts Interpretation Act 1901 (Cth). Thus, Commonwealth laws are applicable in those territories unless specifically excluded. By virtue of ss 15B(2) and (4) of the same Act, the territories include the 12 nautical mile territorial sea adjacent to each territory. When acquired, administration in the Indian Ocean Territories was originally vested in an ‘Official Representative’ of the Australian government. In 1968, this was altered with the appointment of an Administrator for the territories. In 1992, the Territories Law Reform Act 1992 (Cth) amended the Cocos (Keeling) Islands Act 1955 (Cth) and the Christmas Island Act 1958 (Cth) to apply Commonwealth laws and such laws of Western Australia as are capable of application. The courts of Western Australia have jurisdic­ tion over, and responsibility for the enforcement of all laws applying within, the territories. However, both territories are incorporated into the Northern Territory for federal election purposes. The Administrator of the IOT is the government’s senior representative for the islands and resides on Christmas Island. Local government legislation based on that of Western Australia was enacted in 1992 and the first shire councils were elected in 1993. Services on the islands are predominantly provided by Western Australian agencies operating under contracts with the Commonwealth government. According to the Norfolk Island Act 1913 (Cth), the island was accepted as a territory separate from any state, to be administered by an Administrator, a part-elected, part-nominated Executive Council, and the GovernorGeneral, who was empowered to make ordinances for the peace, order and good governance of the island. In 1979, Norfolk Island was granted limited self-government with a view to it eventually achieving full internal selfgovernment.30 An elected Legislative Assembly was established, together with an Executive Council consisting of the Chief Minister and three other 28 29

30

Spratt v Hermes (1965) 114 CLR 226, 242. See Australian Law Reform Commission, ‘Legal Framework Applying in the External Territories’ in Legal Risk in International Transactions, ALRC Report 80 (1996) . Norfolk Island Act 1979 (Cth).

Ch 22: AUSTRALIA’S EXTERNAL TERRITORIES AND INTERNATIONAL LAW   545

Ministers. Australian authority continued to be represented by the Admin­ istrator. Over the ensuing years, Norfolk Island gradually assumed more responsibilities, including its own courts, postal service, and immigration, taxation and social security regimes. These laws remained, however, subject to the power of Commonwealth veto or override. In 2015, the Norfolk Island Legislation Amendment Act 2015 (Cth) abolished self-government, vesting all authority for the island back in the Commonwealth and making New South Wales law applicable to Norfolk Island as from 1 July 2016. With respect to the uninhabited territories, it was originally envisaged that the Ashmore and Cartier Islands would be administered as part of Western Australia. However, in 1938, the islands were placed under the authority of the Administrator of the Northern Territory. In 1978, responsibility for the Territory was vested in the Commonwealth, and Commonwealth legislation, together with the laws of the Northern Territory and ordinances made by the Governor-General, completes the body of law applicable in the Territory. The Coral Sea Islands Territory is also administered by the Commonwealth, and Commonwealth legislation, together with that of the Australian Capital Territory (ACT) and any special ordinances, applies to the Territory. With respect to its Southern Ocean territories, the Heard and McDonald Islands Act 1953 (Cth) came into effect on 24 April 1953, extending to the Territory the laws of the Australian Capital Territory insofar as they might be applicable. The Australian Antarctic Territory Act 1954 (Cth) similarly extended the law of the Australian Capital Territory to the AAT. Although the Heard and McDonald Islands are technically ‘sub-Antarctic’, rather than ‘Antarctic’,31 islands, both the HIMI Territory and the AAT are now admin­ istered as separate territories by the Australian Antarctic Division of the Department of the Environment.

IV  AUSTRALIA’S RIGHTS AND RESPONSIBILITIES IN RESPECT OF ITS EXTERNAL TERRITORIES [22.110]  With territorial sovereignty come the rights of a territorial sovereign. While the original concerns driving Australia’s quest for external territories were predominantly defence and security related,32 with the exception of the phosphate reserves on Nauru and Christmas Island, natural resources were not at the forefront of Australian thinking. Nevertheless, with the development of the law of the sea over the course of the 20th century, Australia has found itself reaping benefits from its external territories in the form of extensive maritime zones. With the exception of the AAT 31

32

The islands lie north of 60ºS and thus are not within the Antarctic Treaty area. See section V below. David Goldsworthy, ‘Australian External Policy and the End of Britain’s Empire’ (2005) 51(1) Australian Journal of Politics and History 17, 20.

546    INTERNATIONAL LAW IN AUSTRALIA

(see section V below), Australia possesses extensive continental shelf rights and claims a 12 nautical mile territorial sea, a 24 nautical mile contiguous zone and a 200 nautical mile EEZ around its external territories.33 While, admittedly, these zones bring with them the burden of enforcement, the areas are rich in fisheries, oil and gas, and mineral resource potential — the exploi­ tation of which Australia now controls. The extension of these maritime claims has given rise to a number of issues relevant to the external territories with respect to, for example, the status of low-tide elevations, reefs and islands. The extent to which these features generate maritime zones has been settled by the 1982 United Nations Convention on the Law of the Sea (‘LOSC’);34 however, the precise characteri­ sation of features is not always free from dispute. It has been suggested, for example, that because of its volcanic nature and isolated location, Heard Island is not capable of habitation or of generating an economic life of its own, and thus does not constitute an island under art 121 of the LOSC capable of generating the full range of maritime zones.35 This position does not, however, appear to be widely accepted, as evidenced by the absence of protest by the international community to the maritime zones claimed by states around their sub-Antarctic islands.36 Moreover, while the argument might be relevant in the case of the McDonald Islands, their small size and their proximity to the larger Heard Island (which has, in any event, seen some human habitation in the past) mean that they have negligible effect on the size of the zones claimed, and are thus unlikely to attract inter­ national protest.37 The status of Ashmore and Cartier Islands as islands has similarly been queried. In 1996, during negotiations between Indonesia and Australia over their maritime boundary, officials from Indonesia visited the Territory for the specific purpose of satisfying themselves that the Territory does, in fact, include islands capable of generating a territorial sea and a contiguous zone.38 That a 24 nautical mile enclave around the Territory was

33

34

35

36

37

38

Declared under the Seas and Submerged Lands Act 1973 (Cth). See Seas and Submerged Lands (Territorial Sea) Proclamation 1990 (Cth); Seas and Submerged Lands (Limits of the Contiguous Zone) Proclamation 1993 (Cth); Seas and Submerged Lands (Limits of the Exclusive Economic Zone) Proclamation 1994 (Cth). See also chapter 14 in this volume. United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 UNTS 397 (entered into force 16 November 1994) (‘LOSC’). The ‘Volga’ Case (Russian Federation v Australia) (Judgment) (2002) ITLOS Reports 10 (Judge Vukas). Alan D Hemmings and Tim Stephens, ‘The Extended Continental Shelves of SubAntarctic Islands: Implications for Antarctic Governance’ (2010) 46(239) Polar Record 312, 319. Stuart Kaye, ‘An Examination of Australian Sovereignty over the Heard and McDonald Islands Territory’ (1990) Australian International Law News 14, 24. Department of Infrastructure and Regional Development, Ashmore and Cartier Islands .

Ch 22: AUSTRALIA’S EXTERNAL TERRITORIES AND INTERNATIONAL LAW   547

included in the final delimitation treaty39 suggests that the proposition was accepted. Moreover, as a result of geography, not all territories can enjoy the full extent of the possible maritime zones generated. In areas of overlap with opposite or adjacent states, Australia has negotiated a number of maritime boundary delimitation agreements with its neighbours. Thus, continental shelf and EEZ boundaries have been delimited with Indonesia in the areas of Christmas Island and the Ashmore and Cartier Islands.40 EEZ boundaries in the Coral Sea have been delimited with Papua New Guinea,41 Solomon Islands,42 France (New Caledonia)43 and New Zealand,44 and in the Southern Ocean the EEZ boundary between Heard and McDonald Islands and the French Islands of Kerguelen and Crozet has been delimited by treaty.45 The EEZ of Norfolk Island is also limited on the south by a delimitation with New Zealand and to the north by a delimitation with France (New Caledonia). In 2012, Australia added more than 1.2 million square kilometres to its maritime domain by declaring the outer limits of its continental shelf beyond 200 nautical miles in areas adjacent to Norfolk Island (48,420 square kilometres) and Heard and McDonald Islands (1,185,000 square kilometres).46 39

40

41

42

43

44

45

46

Agreement between the Governments of Australia and the Government of the Republic of Indonesia Establishing an Exclusive Economic Zone and Certain Seabed Boundaries, signed 14 March 1997, [1997] ATNIF 4 (not yet in force). Agreement between the Governments of Australia and the Government of the Republic of Indonesia Establishing an Exclusive Economic Zone and Certain Seabed Boundaries, signed 14 March 1997, [1997] ATNIF 4 (not yet in force). See also Agreement between the Government of the Commonwealth of Australia and the Government of the Republic of Indonesia Establishing Certain Seabed Boundaries, signed 18 May 1971, [1973] ATS 31 (entered into force 8 November 1973); Agreement between the Government of the Commonwealth of Australia and the Government of the Republic of Indonesia Establishing Certain Seabed Boundaries in the Area of the Timor and Arafura Seas, supplementary to the Agreement of 18 May 1971, signed 9 October 1972, [1973] ATS 32 (entered into force 8 November 1973). Treaty between Australia and the Independent State of Papua New Guinea Concerning Sovereignty and Maritime Boundaries in the Area between the Two Countries, Including the Area Known as Torres Strait, and Related Matters, signed 18 December 1978, 1429 UNTS 207 (entered into force 15 February 1985). Agreement between the Government of Solomon Islands and the Government of Australia Establishing Certain Sea and Seabed Boundaries, signed 13 September 1988, 1536 UNTS 285 (entered into force 14 April 1989). Agreement on Marine Delimitation between the Government of Australia and the Government of the French Republic, signed 4 January 1982, 1329 UNTS 107 (entered into force 10 January 1983). Treaty between the Government of Australia and the Government of New Zealand Establishing Certain Exclusive Economic Zone and Continental Shelf Boundaries, signed 25 July 2004, [2004] ATNIF 1 (not yet in force).  Agreement on Marine Delimitation between the Government of Australia and the Government of the French Republic, signed 4 January 1982, 1329 UNTS 107 (entered into force 10 January 1983). Seas and Submerged Lands (Limits of Continental Shelf) Proclamation 2012 (Cth).

548    INTERNATIONAL LAW IN AUSTRALIA

However, with territorial sovereignty also comes the full range of respon­ sibilities binding on states under customary international law and the treaties to which they are party. Of particular relevance to the uninhabited external territories are Australia’s obligations under international environmental law. In the inhabited territories, human rights and related obligations figure more prominently.

A  Responsibilities in the Uninhabited External Territories [22.120]  The unique and fragile ecosystems of the Ashmore and Cartier Islands support critical breeding habitat for turtles, sea birds and dugong, and are important staging points and feeding areas for many migratory birds. With the islands having been exploited for phosphate in the 19th century and used as a bombing and air weapons testing range since the Second World War, in the mid-20th century concerns were raised about the overhar­ vesting of the birds and plant species that inhabited them. In 1974, Australia and Indonesia signed a memorandum of understanding recognising the traditional use of the Territory’s resources by Indonesian fishermen, but allowing them to access parts of Ashmore only for the purposes of shelter and fresh water, and to visit gravesites.47 In 1983, the Ashmore Reef National Nature Reserve (583 square kilometres) was established for the purpose of protecting the area’s outstanding and representative marine ecosystems and facilitating scientific research. A similar reserve was established for Cartier Island (172 square kilometres).48 In 2003, Ashmore was declared a Ramsar Wetland of International Importance.49 In 2014, the reserves were renamed the Ashmore Reef and Cartier Islands Commonwealth Marine Reserves.50 47

48

49

50

Memorandum of Understanding between the Governments of Australia and the Government of the Republic of Indonesia regarding the Operations of Indonesian Traditional Fishermen in Areas of the Australian Exclusive Fishing Zone and Continental Shelf (1974). For discussion, see Natasha Stacey, ‘Crossing Borders: Implications of the Memorandum of Understanding on Bajo Fishing Activity in Northern Australian Waters’ (Paper presented at the Understanding the Cultural and Natural Heritage Values and Management Challenges of the Ashmore Region Symposium, Darwin, 4–6 April 2001) . Geoscience Australia, Ashmore and Cartier Reefs ; Australian Government, Department of Infrastructure Regional Development, Ashmore and Cartier Islands . See Ramsar Secretariat, Ashmore Reef Commonwealth Marine Reserve, . See Department of the Environment and Energy, Ashmore Reef Commonwealth Marine Reserve ; Department of the Environment and Energy, Cartier Island Commonwealth MarineReserve .

Ch 22: AUSTRALIA’S EXTERNAL TERRITORIES AND INTERNATIONAL LAW   549

While some public access is permitted on a small part of Ashmore, access to the Cartier reserve is strictly prohibited without express prior written approval. The Coral Sea Islands Territory is also home to numerous important habitats and ecosystems. While the entire Territory was originally established as the Coral Sea Conservation Zone, during the 1960s and 1970s assessments of the conservation status of the islands and reefs in the Territory, together with growing fears of environmental harm from shipping and other activities, led to calls for greater protection of a representative sample of islands in the Territory. In 1982, the Lihou Reef and Coringa-Herald National Nature Reserves were established by the Commonwealth with the Elizabeth and Middleton Reefs Marine National Nature Reserves following in 1987. In 2002, the Coringa-Herald and Lihou Reserves were designated Ramsar Wetlands of International Importance.51 In 2015, the entire Territory was enclosed within the new Coral Sea Commonwealth Marine Reserve. Covering an enlarged area of 989,842 square kilometres, the new reserve is intended to conserve the biodiversity of the Territory while also allowing for the sustainable use of its resources in some areas.52 In a similar vein, in 1997 the HIMI Territory, which contains the only active volcanos in Australia, was inscribed on the World Heritage List in recognition of its outstanding geological processes and its pristine sub-Antarctic ecosystems.53 Despite extensive sealing operations on the islands from 1855 to 1880 and numerous visits by scientific expeditions since 1947, the islands are believed to be free of any species directly introduced by humans.54 The World Heritage area is contained within the 65,000 square kilometre HIMI Marine Reserve, which was declared in 2002.55 The reserve was expanded to 71,200 square kilometres in 2014.56 It is managed by the Australian Antarctic Division, which maintains strict visitation and quarantine controls to ensure the continuing integrity of the natural conditions.57 51 52

53

54

55

56

57

See Ramsar Secretariat, Coral Sea Reserves . See Department of the Environment and Energy, Coral Sea Commonwealth Marine Reserve . World Heritage Convention, WHC Decision CONF 208 VIII.A Inscription: Heard and McDonald Islands (Australia), 21st sess, UN Doc WHC-97/CONF.208/10.Rev (1997). Tony Fleming and Sandra Potter, Protecting Icy Islands — The Territory of Heard and McDonald Islands, Australian Committee for the International Union for Conservation of Nature . Environment Protection and Biodiversity Conservation (Heard Island and McDonald Islands Marine Reserve) Proclamation 2002 (Cth). Environment Protection and Biodiversity Conservation Amendment (Heard Island and McDonald Islands) Proclamation 2014 (Cth). Department of the Environment, Australian Antarctic Division, Heard Island and McDonald Islands: Marine Reserve Management Plan 2014–2024 (2014) .

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Whether these international nominations are manifestations of an envi­ ronmental consciousness or merely carefully constructed actions to bolster Australian sovereignty claims over these uninhabited territories is a nice question. Interestingly, Australia first proposed World Heritage designation for the HIMI Territory in 1990; however, its nomination was deferred pending receipt of further information on, among other things, the island’s legal status. In any event, it would appear that the acceptance of the nomination in 1997, together with the Ramsar listings in the Ashmore and Coral Sea territories, provides clear evidence of the acceptance by the international community of Australia’s sovereignty over, and international responsibility for, these territories.

B  Responsibilities in the Inhabited External Territories [22.130]  In the inhabited territories, Australia’s responsibilities include, in addition to environmental obligations, the obligation to respect the right to self-determination and other human rights, including the rights of minorities and indigenous peoples and the rights to take part in public affairs and elections, freedom of movement and residence, social security, health, and an adequate standard of living, as well as the right to work. Australia’s experience with self-determination in its external territories goes back to the decolonisation process of the 1960s and 1970s, with the Cocos (Keeling) Islands providing one of the more colourful stories in Australia’s history.58 When acquired by Australia, the Territory was listed as a non-selfgoverning territory under art 73 of the UN Charter, under the administration of the United Kingdom but effectively ‘ruled’ by the Clunies-Ross family. Australia thus became responsible for administering what has been described as ‘a feudal kingdom of Malay slaves … run by a barefoot Caucasian monarch replete with a dagger at his waist’.59 With emerging international pressure to decolonise and to grant independence to non-self-governing territories, Australia’s, albeit rather ‘leisurely’,60 approach to replacing the ‘rule’ of the Clunies-Ross family eventually culminated in a 1984 act of self-­determination supervised by the United Nations, in which the 261 eligible inhabitants voted overwhelmingly for integration with Australia. At the time, Australia committed to respect the religious beliefs, traditions and culture of the predominantly ethnic Malay population.61 58

59

60

61

Phillip Tahmindjis, ‘Australia, the Cocos Islands and Self-Determination’ (1985) 1 Queensland Institute of Technology Law Journal 177. Phillip Tahmindjis, ‘Australia, the Cocos Islands and Self-Determination’ (1985) 1 Queensland Institute of Technology Law Journal 177, 177. See also Martin Mowbray, ‘Decolonization and Community Development on the Cocos (Keeling) Islands’ (1997) 32(4) Community Development Journal 321; Martin Mowbray, ‘The Cocos (Keeling) Islands: A Study in Political and Social Change’ (1997) 51(3) Australian Journal of International Affairs 383. David Goldsworthy, ‘Australian External Policy and the End of Britain’s Empire’ (2005) 51(1) Australian Journal of Politics and History 17, 24. Phillip Tahmindjis, ‘Australia, the Cocos Islands and Self-Determination’ (1985) 1 Queensland Institute of Technology Law Journal 177, 195.

Ch 22: AUSTRALIA’S EXTERNAL TERRITORIES AND INTERNATIONAL LAW   551

For its part, Christmas Island received no such treatment. Considered nothing but a commercial phosphate concession operated with imported Chinese and Malay labour, the island was never listed as a non-selfgoverning territory.62 After transfer to Australia, the island’s residents consisted primarily of company employees. Both the national and the inter­ national community largely forgot about them. Since the Tampa affair in 2001,63 however, attention has increasingly been focused on the conditions of life of the inhabitants of the IOT. Australia views these territories as of critical strategic security importance in the unsettled Indian Ocean region and is determined to avoid any challenges to its sovereignty by any oppor­ tunistic neighbours. Thus, a major policy objective has been the achievement of Australian standards of living for the inhabitants — a difficult challenge given their size, small populations, isolation from the mainland, and reliance on limited industry (phosphate mining, tourism and the detention centre on Christmas Island, and coconuts, tourism and the government service sector in the Cocos (Keeling) Islands). Despite successive inquiries into the economic and governance arrangements in the IOT, however, there has been little traction on important issues.64 In 2009, ethnic tensions flared in the Cocos (Keeling) Islands as a result of the underpayment of Cocos Malay workers, restrictions on the use of their language in the shire council and the school, and the defacing of a Cocos Malay trade union sign65 — all acts that could constitute violations of Australia’s human rights obligations relating to civil and political rights, racial discrimination, and the rights of the child. In 2012, the Joint Standing Committee on the National Capital and External Territories (‘JSCNCET’) noted that the government’s failure to address issues relating to island governance that had been highlighted in earlier reports had irritated residents.66 In 2014, the outgoing Administrator of the Christmas 62

63

64

65

66

Alan Kerr, A Federation in These Seas: An Account of the Acquisition by Australia of Its External Territories, with Selected Documents (Commonwealth of Australia, 2009), 325 . See chapter 8 in this volume. See also, eg, Jean-Pierre L Fonteyne, ‘All Adrift in a Sea of Illegitimacy: An International Law Perspective on the Tampa Affair’ (2001) 12(4) Public Law Review 249; Alison Duxbury, ‘International Human Rights Law and the Events of 2001: Has the World Changed Forever? (Arrival of M/V Tampa in Australian Waters)’ (2012) 30 Australian Year Book of International Law 13. Joint Standing Committee on the National Capital and External Territories (‘JSCNCET’), Parliament of Australia, Governance in the Indian Ocean Territories: Interim Report: Economic Development (2015) 4. Paige Taylor, ‘Lost in Transition’, The Australian (online), 1 September 2009, . Roger Wettenhall, ‘The Lands That Democracy Forgot: Ignoring the Rights of Norfolk, Christmas and Cocos Islanders’, The Canberra Times (online), 27 November 2015, .

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and Cocos (Keeling) Islands Territories, Jon Stanhope, bluntly wrote that the territories were no better than colonies, with the inhabitants ‘denied the most fundamental right — the right to be involved in the civil and political life of their community’.67 Surprisingly, the interim report of the 2015 JSCNCET inquiry into governance in the IOT focuses on issues relating to economic development, suggesting that governance arrangement issues will be dealt with in later reports.68 The prospects for better and more participatory governance arrangements in the IOT must now be considered slim in light of the experience of Norfolk Island. Norfolk Islanders of Pitcairn descent — who consider themselves a separate and distinct ‘people’ having their own language, culture, customs and traditions69 — have never accepted Australian sovereignty over the island, believing that they were granted independence by Queen Victoria when she gave them the right to re-settle on the island.70 Petitions to the British Crown in the years following Australian Federation seeking to prevent the island being annexed to the Commonwealth, however, went unanswered.71 Petitions to the United Nations seeking support for independence or merger with the United Kingdom met with a similar lack of success.72 Nevertheless, the islanders have continued to maintain their entitlement to special status. That status was recognised by the Royal Commission established in 1975 to investigate the future status of Norfolk Island and its constitutional relationship to Australia. In its report, the Commission recommended that full Commonwealth voting rights be given to the island residents; that the then existing Council be replaced by an elected 67

68

69

70

71

72

Jon Stanhope, ‘Christmas and Cocos Islands Australian Colonies in All but Name’, The Sydney Morning Herald (online), 1 October 2014, . JSCNCET, Parliament of Australia, Governance in the Indian Ocean Territories: Interim Report: Economic Development (2015) 4. Mitchell Low, ‘Canberra Will Run Norfolk Island — but Not All the Locals Are Happy’, The Conversation, 19 May 2015, . Alan Kerr, A Federation in These Seas: An Account of the Acquisition by Australia of Its External Territories, with Selected Documents (Commonwealth of Australia, 2009), 135–8 . Robin Adams, ‘The Commonwealth of Australia and Norfolk Island: Bridging the Divide’ (2014) 2 The Parliamentarian . Fiona Hills, ‘Norfolk Island Dies while Australian Government Thieves and Thrives’, The Tasmanian Times (online), 1 September 2014, . In Berwick Ltd v Deputy Commission for Taxation (1976) 133 CLR 603, the High Court confirmed that Norfolk Island was part of the Commonwealth.

Ch 22: AUSTRALIA’S EXTERNAL TERRITORIES AND INTERNATIONAL LAW   553

Legislative Assembly; that mainland services and obligations in the areas of health, justice administration, education, social security and taxation be extended to island residents; and that all Commonwealth legislation apply with the exception of immigration, customs, telephone and postal services.73 In 1979, Norfolk Island was granted limited self-governance.74 The newly elected Norfolk Island Legislative Assembly was given power to make laws for the peace, order and good government of the island, subject, albeit, to a power of disallowance vested in the Commonwealth and the ability of the Commonwealth to extend its laws to the Territory at will. Norfolk Island enjoyed its own immigration, taxation and social security regimes, as well as its own court system. As with the IOT, the Commonwealth was represented though an Administrator. However, in a striking reversal of fortunes, the Norfolk Island Legislation Amendment Act 2015 (Cth) revoked self-governance for the island. The reasons given for the revocation were lack of financial self-sufficiency and an inability to ensure the delivery of social services commensurate with Australia’s human rights obligations.75 The move came after extensive inves­ tigations and inquiries into the island’s governance, migration, taxation, social security and financial framework stretching back to at least 1999,76 and unsuc­ cessful attempts at reform initiated pursuant to the Territories Law Reform Act 2010 (Cth) and the 2011 Norfolk Island Roadmap, an agreement between the Commonwealth and the Norfolk Island governments that outlined a number of reform objectives aimed at ensuring that Norfolk Island residents could access a similar range and quality of basic services as those available to other Australians living in rural and remote communities. On 17 June 2015, the Norfolk Island Legislative Assembly and Executive Council were abolished and a local government-style Advisory Council was established as an interim body. With effect from 1 July 2016, federal legislation applies to the island which, for electoral purposes, has been incorporated into one of the federal divisions of the Australian Capital Territory.77 In other respects, the law of New South Wales applies and the island now effectively has the status of a 73 74 75

76

77

Commonwealth, Royal Commission into Matters Relating to Norfolk Island, Final Report (1976). Norfolk Island Act 1979 (Cth). JSCNCET, Parliament of Australia, Same Country: Different World: The Future of Norfolk Island (2014). See, eg, Human Rights and Equal Opportunity Commission, Territorial Limits: Norfolk Islands Immigration Act and Human Rights (1999); JSCNCET, Parliament of Australia, In the Pink or in the Red? Inquiry into the Provision of Health Services on Norfolk Island (2001); JSCNCET, Parliament of Australia, Norfolk Island Electoral Matters (2002); JSCNCET, Parliament of Australia, Quis custodiet ipsos custodes? Inquiry into Governance on Norfolk Island (2003); JSCNCET, Parliament of Australia, Norfolk Island Financial Sustainability: The Challenge — Sink or Swim (2005); JSCNCET, Parliament of Australia, Same Country: Different World: The Future of Norfolk Island (2014). See also Territories Legislation Amendment Act 2016 (Cth); Passenger Movement Charge Amendment (Norfolk Island) Act 2016 (Cth).

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local council, with the state of New South Wales providing administrative and public services. In short, the arrangements for Norfolk Island are now the same as for the IOT. The revocation of self-government has been strongly opposed by the Norfolk Islanders, albeit with little effect to date. In a non-binding referendum held in May 2015, 68 per cent of the island’s eligible voters rejected the change and emphasised their right to self-determination and consultation.78 In April 2016, the representatives of the people of Norfolk Island — consisting of the members of the abolished Norfolk Island Legislative Assembly, the Norfolk Island Council of Elders, and the Norfolk Island People for Democracy — filed a petition with the United Nations Special Committee on Decolonization requesting that the island be listed as a non-self-governing territory under art 73(e) of the UN Charter.79 Pursuant to art 73, UN member states that assume responsibility for the administration of territories whose people have not yet attained a full measure of self-government have accepted ‘as a sacred trust’ the obligation to promote the well-being of the inhabitants and, in particular, to promote self-government, taking due account of their aspirations, and to assist in the progressive development of their free political institutions. Article 73(e), in particular, requires member states to report regularly to the United Nations on the conditions existing in the non-self-governing territories for which they are responsible. According to the petition, ‘Norfolk Island is, and should always have been recognised as being, a non-self-governing territory within the meaning of Article 73’.80 That it has not been is a historical wrong that the petitioners seek to rectify.81 The petition cites, inter alia, Principle IV of General Assembly Resolution 154182 and asserts that the obligation to transmit information arises because of the ethnic and cultural distinctiveness and geographical separation of Norfolk Island from Australia, as well as the historic recognition by both the United Kingdom and Australia of Norfolk Island’s distinctiveness and its right to self-government. Australia’s revocation of self-government is claimed to violate the Norfolk Islanders’ rights to self-determination and representa­ tive democracy and to lead inexorably to the extinguishment of their unique identity and culture. The petition concludes that ‘it would be a retrograde 78

79

80

81

82

Mitchell Low, ‘Canberra Will Run Norfolk Island — but Not All the Locals Are Happy’, The Conversation, 19 May 2015, . Petition to the United Nations Special Committee on Decolonization, 22 April 2016, . Petition to the United Nations Special Committee on Decolonization, 22 April 2016, para 12 . Petition to the United Nations Special Committee on Decolonization, 22 April 2016, paras 15–19 . Principles which should guide Members in determining whether or not an obligation exists to transmit the information called for under Article 73e of the Charter, UN Doc A/Res/1541(XV), 15 December 1960.

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step, damaging to the principle of anti-colonialism, if the UN were now to turn a blind eye to a member state’s blatant attempt to re-colonise a territory which has been autonomous for decades’.83 International legal opinion supports this position.84 Coming, as it did, midway through the United Nations Third Decade on the Eradication of Colonialism,85 the revocation by Australia of selfgovernance arrangements for Norfolk Island raises serious questions as to the future of the right of self-determination and the political aspirations of Australia’s inhabited external territories.

V  THE AUSTRALIAN ANTARCTIC TERRITORY: ‘FROZEN’ IN TIME? [22.140]  As noted in section IIC above, Australia has a long history of association with the Antarctic stretching back to Borchgrevink’s 1899 expedition, which was the first to winter over on the continent.86 Australia is one of seven states that claim territory in Antarctica.87 Australia’s claim, which — unlike that of some other claimant states — does not overlap with any other claims, is based on acts of discovery and proclamations made on behalf of the United Kingdom, as well as on its own acts of discovery and proclamation, occupation and administration. From 1933, the express policy of Australia was to strengthen its claim through the establishment of effective control in the Territory.88 In the ensuing years, Australia’s occupation of the continent took the form of an increasing number of scientific expeditions and the establishment of what is now the Australian Antarctic Division (‘AAD’) to administer the Territory. In 1954, Australia opened its first permanent base on the continent, Mawson Station. Davis Station was opened in 1957 and a third base, Casey Station, was opened in 1969. Despites its pretentions, however, and the recognition of the validity of its claims by the other claimant states, Australian sovereignty over the 83

84

85 86

87

88

Petition to the United Nations Special Committee on Decolonization, 22 April 2016, para 20 . See Vaughan Lowe et al, ‘In the Matter of the Status of Norfolk Island as a Non-SelfGoverning Territory’ (Joint Opinion, 6 May 2016) . UNGA Res 65/119, 10 December 2010. For a history of Australia’s involvement in the Antarctic, see Department of the Environment, Australian Antarctic Division, Australian Antarctic History (2009) . The other Antarctic claimant states are Argentina, Chile, France, New Zealand, Norway and the United Kingdom. Gillian Triggs, ‘Australian Sovereignty in Antarctica’ (1981) 13 Melbourne University Law Review 123. See also Donald R Rothwell, The Polar Regions and the Development of International Law (Cambridge University Press, 1996) 59–61.

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AAT has never been recognised by other states and, indeed, has been expressly contested by the United States and Russia.89 In 1959, amid growing Cold War tensions and fears of potential conflict over sovereignty claims, the issue of sovereignty was effectively put ‘on hold’ with the adoption of the 1959 Antarctic Treaty.90 Article I of the treaty states that Antarctica shall be used for peaceful purposes only and prohibits the deployment of military forces in Antarctica unless used for scientific research or other peaceful purposes. Article II establishes the freedom of scientific research, while art III sets out the framework for international scientific cooperation. It is art IV, however, that has the most significant implications for Australia’s sovereignty in the continent. In a very carefully worded provision, art IV ‘freezes’ sovereign claims for the life of the treaty. No acts or activities taking place while the treaty is in force can constitute a basis for the assertion or consolidation of existing claims, and no new claims can be asserted. Thus, ‘nothing that occurs while the Treaty is in force will affect the pre-existing positions of all the interested parties’.91 Boundaries of existing territorial claims remain in force, ready to be revived if and when the treaty is terminated by its parties. In the meantime, other states are free to pursue scientific research within the AAT, within which Australia can only exercise jurisdiction over its own nationals. While art IV has put aside territorial claims, it has not put aside territorial ambitions. Although not alone in this, in the ensuing years Australia has sought continually to increase its presence in Antarctica, developing extensive scientific programs administered by the AAD. Research stations are now inhabited year-round, and in 2007 Australia opened its first air link with the continent, establishing the seasonal operations to the Wilkes runway, which is located near Casey Station. Clearly, Australia intends to be in the ‘pole position’ with respect to its claim should the treaty be terminated. Some of Australia’s actions have not, however, been well received. Australia has claimed a territorial sea off the AAT since 1973, although it has been careful not to exercise its rights against foreign vessels. Similarly, in 1979, Australian claimed a 200 nautical mile Australian Fishing Zone (‘AFZ’) off the mainland and its territories;92 however, it quickly excepted the waters off the AAT from the AFZ, ensuring that its jurisdiction could only be exercised in respect of Australian flagged vessels.93 In 1994, Australia again 89 90

91

92

93

Ben Saul and Tim Stephens (eds), Antarctica in International Law (Hart Publishing, 2015) viii. Antarctic Treaty, opened for signature 1 December 1959, 402 UNTS 71 (entered into force 23 June 1961). Donald R Rothwell, ‘Antarctica and International Law’ in Sam Blay, Ryszard Piotrowicz and Martin Tsamenyi (eds), Public International Law: An Australian Perspective (Oxford University Press, 2005) 379, 388. Proclamation Constituting Waters of 200 Nautical Miles around Australia and Its External Territories Proclaimed Waters for the Purposes of the Fisheries Act 1952 (Cth), 20 September 1979. Proclamation Declaring Waters around Australian Antarctic Territory to be Excepted Waters under the Fisheries Act 1952 (Cth), 31 October 1979.

Ch 22: AUSTRALIA’S EXTERNAL TERRITORIES AND INTERNATIONAL LAW   557

raised the ire of some when it declared an EEZ off the AAT.94 It is generally assumed that an EEZ can only adhere to a territory over which a state has sovereignty. However, Australian sovereignty over the AAT is not recognised and the (not so) fine distinction of an interpretation of the Antarctic Treaty ‘freeze’ as applying only to territorial claims and not to maritime claims was lost on others.95 Nevertheless, Australian policy continues to be not to enforce its EEZ against non-nationals and, at least as far as fisheries are concerned, the waters remain ‘excepted’ waters.96 Notably, in the Whaling in Antarctic case97 between Australia and Japan, Australia was careful to base its claim on the argument that scientific whaling was unlawful under the terms of the International Convention for the Regulation of Whaling,98 rather than on any claim to jurisdiction over whales and living resources generally within waters adjacent to the AAT. International reaction was also forthcoming in 2004, when Australia filed its submission on the limits of its extended continental shelf beyond 200 nautical miles to the Commission on the Limits of the Continental Shelf. Australia first asserted a claim to the continental shelf off the AAT in 1953.99 Like the territorial sea, the continental shelf is considered to be an inherent right of coastal states, adhering to the claimant states regardless of the sovereignty freeze. Thus, included in Australia’s submission was extensive data relating to its extended continental shelf, beyond 200 nautical miles, off the AAT. However, cognisant of the lack of recognition of its territorial claim, Australia requested the Commission not to consider the Antarctic component of its submission for the time being.100 A number of states filed objections with the Commission — including the United States, which reiterated that it does 94 95

96

97

98

99

100

Seas and Submerged Lands (Limits of the Exclusive Economic Zone) Proclamation 1994 (Cth). Patrizia Vigni, ‘Antarctic Maritime Claims: “Frozen Sovereignty” and the Law of the Sea’ in A G Oude Elferink and Donald R Rothwell (eds), The Law of the Sea and Polar Maritime Delimitation and Jurisdiction (Martinus Nijhoff, 2001) 85. Proclamation of Excepted Waters under Section 11 of the Fisheries Management Act 1991 (Cth). See generally W Fletcher, ‘Australian Law in Antarctica and the Southern Ocean’ in Sam Bateman and Donald R Rothwell (eds), Southern Ocean Fishing: Policy Challenges for Australia (Centre for Maritime Policy, University of Wollongong, 1988) 67, 69–70; Ruth A Davis, ‘Enforcing Australian Law in Antarctica: The HSI Litigation’ (2007) 8(1) Melbourne Journal of International Law 142. Whaling in the Antarctic (Australia v Japan, New Zealand intervening) (Judgment) [2014] ICJ Rep 226. International Convention for the Regulation of Whaling, opened for signature 2 December 1946, 161 UNTS 72 (entered into force 10 November 1948). Proclamation Claiming Sovereign Rights over the Continental Shelf of Australia and Its Territories, 10 September 1953, quoted in Willian Bush, Antarctica and International Law: A Collection of Inter-State and National Documents (Oceana Publications, 1982) vol 2, 172–3. Department of Foreign Affairs and Trade et al, Continental Shelf Submission of Australia: Executive Summary (15 November 2004) Commonwealth of Australia .

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not recognise any state’s claim to Antarctica or its continental shelf areas. The United States did, however, express its appreciation of ‘Australia’s request to the Commission that it not take any action on that portion of its submission relating to areas of the seabed and subsoil adjacent to Antarctica’.101 In the event, the Commission did not consider the AAT portion of Australia’s submission when making its recommendations.102 It is worth noting here that the area of application of the Antarctic Treaty is defined as south of 60ºS, which encompasses both the Antarctic continent and significant adjacent ocean areas. However, while also administered by the AAD, Heard and McDonald Islands lie to the north and outside the Antarctic Treaty area. This has important implications for the maritime entitlements generated by these islands. As noted above, Australia’s claim to an EEZ around the islands is not contested. However, the extended continental shelf around the islands extends an additional 400 nautical miles south beyond the 200 nautical mile maritime zone around the Territory and thus projects substantially into the treaty area; indeed, the Australian submission has its end point at the 200 nautical mile continental shelf limit off the AAT, thus raising significant issues as to the interaction between the extended continental shelf and the Antarctic Treaty regime.103 In the event, there were no objections to this portion of the submission and the Commission did make recommendations with respect to the area, largely agreeing with Australia’s submission. Australia has duly enacted these limits into legisla­ tion.104 Recommendations were also made in respect of the similar extended continental shelf claim relating to Macquarie Island, another sub-Antarctic island belonging to Australia (which is considered part of Tasmania and not an external territory). Given the absence of protest, it thus appears that the Antarctic Treaty may be taken as having suspended sovereignty claims to territory above the water surface south of 60ºS, but not to those relating to the seabed, at least where those claims are generated by territory lying outside the Antarctic Treaty area.105 The interaction between the HIMI Territory and the legal regime for Antarctica is also evident ‘on the water’. The 1980 Convention on the 101

102

103

104 105

Diplomatic note from the United States Mission to the United Nations, 3 December 2004, . Commission on the Limits of the Continental Shelf, Summary of the Recommendations of the Commission on the Limits of the Continental Shelf (CLCS) in Regard to the Submission Made by Australia on 15 November 2004, UN Doc CLCS/58 (9 April 2008) . Alan D Hemmings and Tim Stephens, ‘The Extended Continental Shelves of SubAntarctic Islands: Implications for Antarctic Governance’ (2010) 46(239) Polar Record 312, 321. Seas and Submerged Lands (Limits of Continental Shelf) Proclamation 2012 (Cth). Ben Saul and Tim Stephens (eds), Antarctica in International Law (Hart Publishing, 2015) xvi.

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Conservation of Antarctic Marine Living Resources (‘CCAMLR’),106 which forms part of the Antarctic Treaty system, applies to all waters south of the Antarctic convergence, a biological boundary that lies well north of 60ºS. CCAMLR establishes a regional fisheries management organisation responsible for adopting conservation measures to protect heavily targeted fish stocks and dependent and associated species. The CCAMLR area of application includes both areas over which sovereignty is not recognised or exercised and areas adjacent to sub-Antarctic islands over which sovereignty is accepted — including the territorial sea and EEZ around the HIMI Territory. In order to combat illegal, unreported and unregulated fishing in the HIMI EEZ, Australia has moved to apply and enforce CCAMLR standards against vessels fishing unlawfully in the HIMI EEZ, including engaging in high profile hot pursuit operations in the Southern Ocean involving the Viarsa (2003), the South Tomi (2001) and the Volga (2002).107 Closer to the Antarctic continent, Australia has been one of the driving forces (together with the European Union and France) behind a proposal in CCAMLR to establish marine reserves, or marine protected areas, in three areas totalling 1.6 million square kilometres in the East Antarctic region off the AAT. Originally proposed in 2011, and significantly revised over the years to accommodate the concerns of other CCAMLR members, the proposal has, however, failed to gain the support of its two main opponents, Russia and China.108 While Australia has been accused of having veiled territorial motives for its proposal, the rather less veiled motives of the opponents appear to be related to the interests of their fishing industries.109 On the continent itself, Australia can be expected to continue to strengthen its presence in the AAT. A 2014 report on a 20-year Australian Antarctic strategic plan emphasised the strategic importance of Antarctica to Australia and highlighted the risks posed to Australia by the erosion of its influence and standing as a result of chronic under-investment at a time when new players, such as China, are emerging in the Antarctic arena. The report called very clearly for Australia to ‘match its Antarctic aspirations with a clear demon­ stration of its presence and leadership in the [AAT]’ in order to become ‘the partner of choice in East Antarctic logistics’. The report considered that 106

107

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Convention on the Conservation of Antarctic Marine Living Resources, opened for signature 1 August 1980, 1329 UNTS 47 (entered into force 7 April 1982) (‘CCAMLR’). See, eg, Rachel Baird, ‘Coastal State Fisheries Management: A Review of Australian Enforcement Action in the Heard and McDonald Islands Australian Fishing Zone’ (2004) 9(1) Deakin Law Review 4. Commission for the Conservation of Antarctic Marine Living Resources, Report of the Thirty-Fourth Meeting of the Commission (19–30 October 2015) 43–5 [8.41]–[8.52] . Andrew Darby, ‘Russia Claims Australia Has Territorial Motives for Antarctic Reserves’, The Sydney Morning Herald (online), 29 August 2014, .

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there was now just a narrow window of opportunity in which to ‘underline its Antarctic strategic interests and demonstrate its leadership in Antarctic affairs’.110 Whether Australia can achieve these lofty aims remains to be seen.

VI CONCLUSION [22.150]  Australia’s external territories do provide the mainland with a level of strategic security. However, their size, their culturally and ethnically diverse populations, and their remoteness from the Australian mainland pose a number of challenges. With the possible exception of the medium to long-range future of the AAT, Australia’s sovereignty over its external territories is under no threat from without. Rather, the challenges come from within. The economic burden of keeping these territories is high, but the political cost of disregarding the aspirations — and the rights — of the inhabitants of Christmas Island, the Cocos (Keeling) Islands and Norfolk Island may be even higher. Australia gains significant benefits under inter­ national law from these territories. It must also accept the responsibilities.

110

Tony Press, 20 Year Australian Antarctic Strategic Plan, Department of the Environment, Australian Antarctic Division (2014) .

23 Australia and International Dispute Settlement Henry Burmester, Natalie Klein and Kate Miles

I INTRODUCTION [23.10]  Australia has been highly engaged in a variety of forms of dispute settlement to protect its rights and interests, and to defend its actions when necessary. International dispute settlement most typically reflects the processes that are engaged when states or non-state actors maintain different views as to international rights and obligations in relation to particular events or situations. International dispute settlement enables the actors in conflict to resolve their differences. The processes most commonly followed are those set forth in art 33 of the United Nations Charter: negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement and resort to regional agencies or arrangements.

II  NEGOTIATION AND CONSULTATION [23.20]  Negotiation and consultation are, for any country, the most frequently used methods of peacefully resolving international disputes. In Australia’s case, these methods have been used effectively to settle many disputes. Some of the outcomes of these settlements have been reflected in treaties, such as the various maritime boundary treaties concluded by Australia, all of which contained boundaries arrived at by negotiation.1 1

Agreement between the Government of Australia and the Government of the Democratic Republic of Timor-Leste Relating to the Unitisation of the Sunrise and Troubadour Fields, Australia– Timor-Leste, opened for signature 6 March 2003, [2007] ATS 11 (entered into force 23 February 2007); Treaty on Certain Maritime Arrangements in the Timor Sea, Australia– Timor-Leste, opened for signature 12 January 2006, [2007] ATS 12 (entered into force 23 February 2007); Treaty between the Government of Australia and the Government of New Zealand Establishing Certain Exclusive Economic Zone and Continental Shelf Boundaries, Australia– New Zealand, opened for signature 25 July 2004, [2006] ATS 4 (entered into force 561

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Another example of a dispute settled by negotiation is that between Australia and the United Kingdom where Australia sought compensation for the clean-up of former nuclear weapons test sites in Australia. This process led to payment of £20 million compensation.2 In other cases, when negotiation has initially failed to settle a dispute, Australia has been party to some other form of dispute settlement but ultimately resolved the matter through a negotiated settlement. One example is the treaty concluded with Nauru in settlement of the action brought against Australia in the International Court of Justice (‘ICJ’).3 This was negotiated after Australia lost its preliminary objections to the Nauru application.4

2

3 4

25 January 2006); Timor Sea Treaty between the Government of East Timor and the Government of Australia, Australia–Timor-Leste, opened for signature 20 May 2002, [2003] ATS 13 (entered into force 2 April 2003); Agreement between the Government of Australia and the Government of Solomon Islands Establishing Certain Sea and Seabed Boundaries, Australia– Solomon Islands, opened for signature 13 September 1988, [1989] ATS 12 (entered into force 14 April 1989); Agreement on Maritime Delimitation between the Government of Australia and the Government of the French Republic, Australia–France, opened for signature 4 January 1982, [1983] ATS 3 (entered into force 10 January 1983); Treaty between Australia and the Independent State of Papua New Guinea Concerning Sovereignty and Maritime Boundaries in the Area between the Two Countries, Including the Area Known as Torres Strait and Related Matters, signed 18 December 1978, [1985] ATS 4 (entered into force 15 February 1985); Agreement between the Government of the Commonwealth of Australia and the Government of the Republic of Indonesia Establishing Certain Seabed Boundaries, Australia–Indonesia, signed 18 May 1971, 974 UNTS 307 (entered into force 8 November 1973); Agreement between the Government of the Commonwealth of Australia and the Government of the Republic of Indonesia Establishing Certain Seabed Boundaries in the Area of the Timor and Arafura Seas, supplementary to the Agreement of 18 May 1971, Australia–Indonesia, opened for signature 9 October 1972, 974 UNTS 319 (entered into force 8 November 1973). A further treaty, Treaty between the Government of Australia and the Government of the Republic of Indonesia Establishing an Exclusive Economic Zone Boundary and Certain Seabed Boundaries, Australia–Indonesia, opened for signature 14 March 1997, [1997] ATNIF 4 (not yet in force). Editors, ‘Settlement of Disputes — British Nuclear Testing in South Australia — Negotiations for Compensation’ (1992) 14 Australian Year Book of International Law 646; T Reilly, ‘Disputes — Australia–United Kingdom Nuclear Test Sites Rehabilitation — Settlement’ (1994) 15 Australian Year Book of International Law 649–50; Exchange of Notes Constituting an Agreement between the Government of Australia and the Government of the United Kingdom of Great Britain and Northern Ireland Concerning Maralinga and Other Sites in Australia, Australia–United Kingdom, opened for signature 10 December 1993, [1993] ATS 40 (entered into force 10 December 1993). Certain Phosphate Lands in Nauru (Nauru v Australia) (Preliminary Objections) [1992] ICJ Rep 240. The settlement is contained in Agreement between Australia and the Republic of Nauru for the Settlement of the Case in the International Court of Justice Concerning Certain Phosphate Lands in Nauru, Australia–Nauru, opened for signature 10 August 1993, [1993] ATS 26 (entered into force 20 August 1993). Because the settlement also released the United Kingdom and New Zealand, Australia sought and obtained a contribution from those two countries respectively towards the settlement. See Exchange of Letters Constituting an Agreement between the Government of Australia and the Government of the United Kingdom of Great Britain and Northern Ireland Relating to Nauru, Australia–United Kingdom, opened for signature 24 March 1994, [1994] ATS 9 (entered into force 24 March 1994) and Exchange of Letters Constituting an Agreement between the Government of Australia and the Government of New Zealand Relating to Nauru, Australia–New Zealand, opened for signature 23 May 1994, [1994] ATS 17 (entered into force 23 May 1994), respectively.

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Another example was the settlement of the dispute with Timor-Leste over the return of certain documents, following the indication of provisional measures by the ICJ.5 Similarly, after Japan won on jurisdictional grounds in the Southern Bluefin Tuna dispute6 before the annex VII arbitral tribunal under the Convention of the Law of the Sea (‘LOSC’),7 Australia resumed negotiations with Japan and reached a settlement to its dispute on this issue with Japan.8

III  MEDIATION AND CONCILIATION [23.30]  Australia has not been party to an international mediation, so far as the authors know. It is, however, party to a number of general inter­ national dispute settlement treaties where conciliation is provided for as a possible form of dispute settlement. This includes the 1899 and 1907 Hague Conventions for the Pacific Settlement of International Disputes,9 as well as the 1928 General Act for the Pacific Settlement of International Disputes.10 Australia is also party to a number of multilateral treaties that provide for conciliation as the applicable form of dispute settlement if the parties do not agree to another form. Examples include the Vienna Convention on the Law of Treaties11 and the Vienna Convention for the Protection of the Ozone Layer,12 as well as under the LOSC for certain disputes. Timor-Leste in 2016 commenced conciliation under the LOSC in relation to its maritime boundary dispute with Australia. This is discussed further below.

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11

12

Questions Relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v Australia) (Provisional Orders) [2014] ICJ Rep 147. Southern Bluefin Tuna Cases (New Zealand v Japan; Australia v Japan) (Jurisdiction and Admissibility) (2000) 39 ILM 1359. United Nations Convention of the Law of the Sea, opened for signature 10 December 1982, 1833 UNTS 3 (entered into force 16 November 1994) annex 1 (‘LOSC’). See T Stephens, ‘The Limits of International Adjudication in International Environmental Law: Another Perspective on the Southern Bluefin Tuna Case’ (2004) 19 International Journal of Marine and Coastal Law 177, 185; Alastair Cameron, ‘Is There Hope for the Fish? The Post-Arbitration Effectiveness of the Convention for the Conservation of Southern Bluefin Tuna’ (2007) 15 New York University Environmental Law Journal 247. Convention for the Pacific Settlement of International Disputes, opened for signature 29 July 1899, [1901] ATS 130 (entered into force 4 September 1900); Convention for the Pacific Settlement of International Disputes, opened for signature 18 October 1907, 54 LNTS 435 (entered into force 26 January 1910). General Act for the Pacific Settlement of International Disputes, opened for signature 26 September 1928, 93 LNTS 343 (entered into force 16 August 1929). Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980). Vienna Convention for the Protection of the Ozone Layer, opened for signature 22 March 1985, 1513 UNTS 293 (entered into force 22 September 1988).

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IV  DISPUTE SETTLEMENT CLAUSES IN TREATIES [23.40]  While in many multilateral contexts Australia favours compulsory dispute settlement (discussed below), in many bilateral agreements it has entered into, particularly in the economic sphere, the relevant treaties have provided for consultation or negotiation as the exclusive method of dispute settlement. For instance, the Closer Economic Relations Trade Agreement with New Zealand imposes an obligation to promptly enter into consultations at the request of either party.13 Similarly, the Basic Treaty of Friendship and Co-operation between Australia and Japan provides for the parties to consult in relation to matters on which one party has made representations to the other.14 In Australia’s bilateral free trade agreements, consultation is the initial method of dispute settlement before other possibilities — such as good offices, mediation or arbitral panels — are able to be invoked.15 In Australia’s bilateral investment treaties, provision for arbitration has often been included.16 An interesting aspect of this particular international dispute settlement mechanism is that it is designed primarily to benefit individuals rather than state actors. In fact, the individual investor plays an active role as the initiator of proceedings pursuant to investor–state arbitration provisions in investment treaties. The dispute settlement clauses within bilateral investment treaties often require the use of specific sets of procedural rules to manage the conduct of proceedings, of which the most commonly referred to are the rules established under the International Convention on the Settlement of Investment Disputes between States and Nationals of Other States17 and the arbitration rules of the United Nations Commission on International Trade Law (‘UNCITRAL 13

14

15

16

17

Australia New Zealand Closer Economic Relations Trade Agreement, Australia–New Zealand, opened for signature 28 March 1983, [1983] ATS 2 (entered into force 1 January 1983) art 22. Basic Treaty of Friendship and Co-operation between Australia and Japan, signed 16 June 1976, [1977] ATS 19 (entered into force 20 August 1977) art XII. See, eg, Australia–Thailand Free Trade Agreement, opened for signature 5 July 2004, [2005] ATS 2 (entered into force 1 January 2005) art 917; Singapore–Australia Free Trade Agreement, opened for signature 17 February 2003, [2003] ATS 16 (entered into force 28 July 2003) art 16(2). See, eg, Agreement between the Government of Australia and the Government of the Argentine Republic on the Promotion and Protection of Investments, signed 23 August 1995, [1997] ATS 4 (entered into force 11 January 1997); Agreement between the Government of Hong Kong and the Government of Australia for the Promotion and Protection of Investments, signed 15 September 1993, 1748 UNTS 385 (entered into force 15 October 1993); Agreement between the Government of Australia and the Government of the Republic of India on the Promotion and Protection of Investments, signed 26 February 1999, 2116 UNTS 145 (entered into force 4 May 2000). Convention on the Settlement of Investment Disputes between States and Nationals of Other States, opened for signature 18 March 1965, 575 UNTS 159 (entered into force 14 October 1966).

Ch 23: AUSTRALIA AND INTERNATIONAL DISPUTE SETTLEMENT   565

Arbitration Rules’),18 together with the 2013 Rules on Transparency designed for investor–state arbitration.19 These rules determine a raft of procedural matters, including controversial issues such as the acceptance of amicus curiae submissions, the level of participation of non-disputing parties, public access to documents, and whether or not the oral hearings will be open to the public. At last count, Australia had entered into 23 bilateral investment treaties, two of which have been terminated, and seven free trade agreements containing investor–state dispute settlement (‘ISDS’) provisions.20 In addition to these agreements, Australia, along with 11 other states, has signed the Trans-Pacific Partnership Agreement, which also includes ISDS.21 Australia has had a somewhat inconsistent relationship with ISDS. Although the position has now reverted to one of assessing the suitability of ISDS on a case-by-case basis,22 in 2011 the Australian government announced that it would no longer support the inclusion of such provisions in its investment treaties or free trade agreements.23 This shift in policy followed the 2010 recommendations of the Productivity Commission.24 However, it was also driven by a number of additional factors, the most pressing of which was a new appreciation of Australia’s vulnerability as a potential respondent in investor claims.25 In particular, in November 2009, the prospect of Australia facing ISDS was raised when foreign investors in Australian coal-fired power generators threatened to invoke the Hong Kong–Australian bilateral 18

19

20

21

22

23

24

25

Arbitration Rules of the United Nations Commission on International Trade Law, UN GAOR, 99th plen mtg, UN Doc A/Res/31/98 (15 December 1976) (‘UNCITRAL Arbitration Rules’). UNCITRAL adopted a revised version of the UNCITRAL Arbitration Rules on 29 June 2010. UNCITRAL, Rules on Transparency in Treaty-based Investor-State Arbitration, adopted 16 December 2013 (entered into force 1 April 2014) . Department of Foreign Affairs and Trade, Trade and Investment Topics ; see also the discussion in Mark Mangan, ‘Australia’s Investment Treaty Program and Investor–State Arbitration’ in Luke Nottage and Richard Garnett (eds), International Arbitration in Australia (Federation Press, 2010) 191. Trans-Pacific Partnership Agreement, opened for signature on 6 February 2016 (not yet in force); see text at Department of Foreign Affairs and Trade, Trans-Pacific Partnership Agreement . Department of Foreign Affairs and Trade, Trade and Investment Topics: Investor–State Dispute Settlement . Department of Foreign Affairs and Trade, Gillard Government Trade Policy Statement: Trading Our Way to More Jobs and Prosperity (April 2011) . Productivity Commission, Research Report: Bilateral and Regional Trade Agreements (November 2010) . See the discussion in Jürgen Kurtz, ‘The Australian Trade Policy Statement on Investor– State Dispute Settlement’ (2011) 15(22) American Society of International Law Insights .

566    INTERNATIONAL LAW IN AUSTRALIA

investment treaty if the emissions trading scheme was enacted as proposed.26 The Australian government was also aware of ISDS brought against Uruguay in February 2010 on the enactment of more restrictive regulation of tobacco. It sought legal advice itself in 2010 on Australia’s potential exposure to such claims from both an investment and a trade perspective.27 In 2011, the first investor–state claim was filed against Australia. The claim was made in relation to Australia’s intention to pass ‘plain packaging’ legislation for tobacco. The legislation was enacted28 and Philip Morris Asia Ltd pursued a claim under the Hong Kong–Australia bilateral investment treaty.29 Under the legislation, although brand names are permitted, all tobacco products are required to be packaged in plain material devoid of all logos or branding images. The essence of the claim by Philip Morris was that the legislation prevents the full use of its intellectual property and, accordingly, expropriates its investment, violates the fair and equitable treatment standard guaranteed in the Hong Kong–Australia bilateral investment treaty, and fails to provide full protection and security to its investments as required under the treaty. Philip Morris also argued that the purported public health purpose of the regulation was, in fact, not served by the specific measures taken under the legislation.30 Ultimately, however, the merits of the claim were not determined as the case stalled at the jurisdictional phase. Australia disputed the arbitral tribunal’s jurisdiction to hear the claim on several grounds, including on the basis that, as Philip Morris Asia Ltd only acquired its shareholding in Philip Morris Australia on 23 February 2011, the dispute was already on foot at the time the claimant acquired its investment in Australia, 26

27

28 29

30

Peter Smith, ‘Canberra Faces Legal Challenge over Carbon Scheme’, Financial Times, 24 November 2009, ; see the discussion in Kate Miles, ‘Arbitrating Climate Change: Regulatory Regimes and Investor–State Disputes’ (2010) 1(1) Climate Law 63; Agreement between the Government of Hong Kong and the Government of Australia for the Promotion and Protection of Investments, signed 15 September 1993, 1748 UNTS 385 (entered into force 15 October 1993). See the discussion in Jürgen Kurtz, ‘The Australian Trade Policy Statement on Investor– State Dispute Settlement’ (2011) 15(22) American Society of International Law Insights ; Philip Morris Ltd v Prime Minister [2011] AATA 556 (15 August 2011); Philip Morris Products SA v Oriental Republic of Uruguay (Jurisdiction) (ICSID Arbitral Tribunal, Case No ARB/10/7, 19 February 2010). Tobacco Plain Packaging Act 2011 (Cth). Agreement between the Government of Hong Kong and the Government of Australia for the Promotion and Protection of Investments, signed 15 September 1993, 1748 UNTS 385 (entered into force 15 October 1993); Philip Morris Asia Ltd v Commonwealth of Australia (Notice of Arbitration) (Permanent Court of Arbitration, Case No 2012/12, 21 November 2011) . Philip Morris Asia Ltd v Commonwealth of Australia (Notice of Arbitration) (Permanent Court of Arbitration, Case No 2012/12, 21 November 2011) .

Ch 23: AUSTRALIA AND INTERNATIONAL DISPUTE SETTLEMENT   567

and that the treaty did not confer jurisdiction to hear pre-existing disputes. In December 2015, the Tribunal issued an Award on Jurisdiction and Admissibility that upheld Australia’s objection to jurisdiction on the basis of there being an abuse of rights, as the investor had changed its corporate structure to gain the protection of an investment treaty at a point in time where a dispute was foreseeable.31 Arbitration also features as the agreed dispute settlement method in Australia’s bilateral air services agreements. When Australia and the United States could not resolve a dispute under the relevant bilateral air services treaty over the fifth freedom rights of Northwest Airlines in 1993, Australia initiated action under the relevant arbitration provision in the treaty. A tribunal was partly constituted, but the arbitration was then suspended pending further negotiations that ultimately led to a settlement of the dispute.32 The agreed method of dispute settlement in some of Australia’s maritime delimitation agreements is consultation rather than binding third-party mechanisms. One interesting example in this regard is contained in the Treaty on Certain Maritime Arrangements in the Timor Sea (‘CMATS Treaty’).33 Article 11 contains a general provision that any disputes about the interpretation or application of the treaty shall be settled by consultation or negotiation; it also contains in art 4 a moratorium on claims, which obliges the parties not to commence litigious proceedings.34 However, Timor-Leste has commenced 31

32

33

34

Philip Morris Asia Ltd v Commonwealth of Australia (Notice of Arbitration) (Permanent Court of Arbitration, Case No 2012/12, 21 November 2011) . See Philip Morris Asia Ltd v Commonwealth of Australia (Award on Jurisdiction and Admissibility) (Permanent Court of Arbitration, Case No 2012/12, 17 December 2015) [585] . See James Baxter, ‘Aviation and Space Law: Australia–United States Aviation Dispute’ (1994) 15 Australian Year Book of International Law 487. Treaty on Certain Maritime Arrangements in the Timor Sea, Australia–Timor-Leste, opened for signature 12 January 2006, [2007] ATS 12 (entered into force 23 February 2007) (‘CMATS Treaty’). Article 4, in particular, contains the following paragraphs:





4. Notwithstanding any other bilateral or multilateral agreement binding on the Parties, or any declaration made by either Party pursuant to any such agreement, neither Party shall commence or pursue any proceedings against the other Party before any court, tribunal or other dispute settlement mechanism that would raise or result in, either directly or indirectly, issues or findings of relevance to maritime boundaries or delimitation in the Timor Sea. 5. Any court, tribunal or other dispute settlement body hearing proceedings involving the Parties shall not consider, make comment on, nor make findings that would raise or result in, either directly or indirectly, issues or findings of relevance to maritime boundaries or delimitation in the Timor Sea. Any such comment or finding shall be of no effect, and shall not be relied upon, or cited, by the Parties at any time. 6. Neither Party shall raise or pursue in any international organisation matters that are, directly or indirectly, relevant to maritime boundaries or delimitation in the Timor Sea.

568    INTERNATIONAL LAW IN AUSTRALIA

two arbitrations against Australia in reliance on the 2002 Timor Sea Treaty.35 The first arbitration commenced under the auspices of the Permanent Court of Arbitration (‘PCA’) in 2013 seeks to have the CMATS Treaty, which amended the earlier treaty, declared void on the ground that Australia engaged in spying activities during the negotiations over the CMATS Treaty. The second arbitration, also at the PCA, commenced in 2015 and relates to a dispute over the interpretation of art 8 of the Timor Sea Treaty. Timor-Leste contests Australia’s exclusive jurisdiction over the pipeline running from the Bayu-Undan gas field in the Timor Sea to Darwin, including for purposes of taxation. At the time of writing, neither arbitration has rendered an award. In the multilateral context, Australia is party to many treaties that prescribe dispute settlement processes for disputes as to the interpretation and application of the treaty. Arbitration is provided for in a number of multilateral treaties to which Australia is a party, particularly in the area of the environment and protection of natural resources.36 Resort to arbitration still often requires consent of the parties, and is to be preceded by attempts at negotiation, or consultation or conciliation. Compromissory clauses allowing resort to the ICJ for disputes arising over the interpretation or application of a multilateral treaty may be subject to reservations. By contrast, the LOSC and the Dispute Settlement Understanding of the World Trade Organisation (‘WTO’)37 provide for compulsory jurisdiction entailing binding decisions for all states parties. Australia is party to both of these treaties and has been engaged in the dispute settlement procedures of each regime. This experience is discussed further below. Australia has also agreed to third-party dispute settlement available under core human rights treaties, allowing for submissions from individuals against the government before different human rights committees. Australia has agreed to this procedure in relation to the International Covenant on Civil and Political Rights,38 the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,39 the International Convention on 35

36

37

38

39

Timor Sea Treaty between the Government of East Timor and the Government of Australia, Australia–Timor-Leste, opened for signature 20 May 2002, [2003] ATS 13 (entered into force 2 April 2003) (‘Timor Sea Treaty’). See, eg, Convention for the Protection of the Natural Resources and Environment of the South Pacific Region, opened for signature 24 November 1986, [1990] ATS 31 (entered into force 22 August 1990) art 4, annex art 1. Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995), annex 2 (Understanding on Rules and Procedures Governing the Settlement of Disputes) 1869 UNTS 401 (‘Dispute Settlement Understanding’). International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976). Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987).

Ch 23: AUSTRALIA AND INTERNATIONAL DISPUTE SETTLEMENT   569

the Elimination of All Forms of Racial Discrimination,40 the Convention on the Elimination of All Forms of Discrimination against Women,41 and the Convention on the Rights of Persons with Disabilities.42 Australia is also a party to the Rome Statute of the International Criminal Court.43

V  AUSTRALIA AT THE INTERNATIONAL COURT OF JUSTICE [23.50]  Australia has long supported the ICJ, although this support has not meant an open-ended commitment to the Court’s jurisdiction in all circumstances.44 Australia first accepted the jurisdiction of the ICJ under art 36(2) of the Statute of the International Court of Justice in 1954 with some significant reservations, including in relation to pearl fishing on the continental shelf. This was replaced in 1975 by a wide-ranging acceptance of the jurisdiction, and replaced again in 2002 with a new declaration containing a number of reservations. Thus, Australia’s consent to jurisdiction has been limited through the use of various reservations, and these apply reciprocally between other states that have also accepted the Court’s compulsory jurisdiction. These reservations have prevented certain disputes being brought to the Court, but at the same time Australia has not taken steps to prevent certain other disputes from being taken to the Court against it. Australia’s 2002 declaration accepting compulsory jurisdiction has excluded maritime boundary disputes, disputes that may be settled through other available procedures (such as the LOSC dispute settlement procedures), disputes where another state has accepted jurisdiction only for that dispute, and disputes where a state has accepted compulsory jurisdiction for less than one year prior to instituting proceedings. Australia has appeared before the ICJ as respondent on three occasions, and twice as applicant. Australia’s experience in these cases is described in more detail below.

A  Nuclear Tests [23.60]  Australia’s first appearance as a party before the ICJ occurred in 1973, when it instituted proceedings against France, arguing that France’s 40

41

42

43

44

International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969). Convention on the Elimination of All Forms of Discrimination against Women, opened for signature 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981). Convention on the Rights of Persons with Disabilities, opened for signature 13 December 2006, 2515 UNTS 3 (entered into force 3 May 2008) (ratified by Australia 17 July 2008). Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002). Henry Burmester, ‘Australia and the International Court’ (1996) 17 Australian Year Book of International Law 19.

570    INTERNATIONAL LAW IN AUSTRALIA

atmospheric nuclear tests in the South Pacific Ocean were inconsistent with international law.45 New Zealand also commenced proceedings, arguing similarly that tests giving rise to radioactive fall-out were in violation of New Zealand’s international law rights.46 France had been carrying out atmospheric tests in the South Pacific since the early 1960s, but opposition against the tests strengthened in the early 1970s.47 Australia and New Zealand relied on France’s acceptance of the Court’s compulsory jurisdiction under the optional clause, as well as the 1928 General Act for the Pacific Settlement of Disputes as bases for jurisdiction.48 For its part, France contested the Court’s jurisdiction and refused to participate in the proceedings, leaving the matter to be resolved in absentia.49 As France’s next series of tests was scheduled to commence two months subsequent to the institution of proceedings, the applicants sought interim measures from the ICJ, requesting that France desist from any further atmos­ pheric nuclear tests pending judgment of the Court.50 The ICJ ordered that ‘the French Government should avoid nuclear tests causing the deposit of radioactive fall-out’ on Australian and New Zealand territory.51 Although France continued its tests, the French President and other officials issued statements that France would commence underground explosions, rather than atmospheric tests, upon the completion of the current round of tests.52 In light of these statements, the ICJ decided that the object of the case had been rendered moot since Australia and New Zealand had sought the end of the atmospheric tests (as characterised by the Court),53 and France had proffered a commitment to do so.54 France’s unilateral declarations thus became binding international obligations.55 45

46

47

48 49 50

51 52 53 54 55

‘Application Instituting Proceedings Submitted by the Government of Australia’, Nuclear Tests Case (Australia v France), International Court of Justice, General List No 58, 9 May 1973, 14–15. ‘Application Instituting Proceedings Submitted by the Government of New Zealand’, Nuclear Tests Case (New Zealand v France), International Court of Justice, General List No 59, 9 May 1973, 9. See Jerome B Elkind, ‘French Nuclear Testing and Article 41 — Another Blow to the Authority of the Court?’ (1974–75) 8 Vanderbilt Journal of Transnational Law 39, 39–40; W K Ris, Jr, ‘French Nuclear Testing: A Crisis for International Law’ (1974) 4 Denver Journal of International Law & Policy 111, 126–7. Nuclear Tests (Australia v France) (Judgment) [1974] ICJ Rep 457 [21]. Per Statute of the International Court of Justice art 53. ‘Request for the Indication of Interim Measures of Protection Submitted by the Government of Australia’, Nuclear Tests Case (Australia v France), International Court of Justice, General List No 58, 9 May 1973, 43, 57 [74]. Nuclear Tests Case (Australia v France) (Interim Measures) [1973] ICJ Rep 99, 106. Nuclear Tests (Australia v France) (Judgment) [1974] ICJ Rep 457 [34]. Nuclear Tests (Australia v France) (Judgment) [1974] ICJ Rep 457 [26]–[28]. Nuclear Tests (Australia v France) (Judgment) [1974] ICJ Rep 457 [59]. Nuclear Tests (Australia v France) (Judgment) [1974] ICJ Rep 457 [43].

Ch 23: AUSTRALIA AND INTERNATIONAL DISPUTE SETTLEMENT   571

The Court indicated that if France did not comply with its unilateral undertakings, Australia could return to the Court. New Zealand ultimately sought to rely on this jurisdictional savings clause in 1995, when France announced that it would resume underground tests in the South Pacific — in spite of a self-imposed moratorium that had been in place since 1992.56 Australia did not seek to do the same, but rather requested to intervene in the case, along with four other states.57 The main reason for Australia not seeking to re-open the case in its own right appears to have been due to the fact that its earlier application was clearly limited to atmospheric nuclear tests, whereas New Zealand’s claims had not been so specific.58 The Court rejected New Zealand’s efforts, applying a strict, formalistic interpretation of its earlier decision.59 It decided that the 1974 judgment only referred to atmospheric nuclear tests and so it was only in the event that France resumed that particular type of testing that the case could be resumed.60 All the applications to intervene were therefore dismissed as well.61

B  Certain Phosphate Lands in Nauru [23.70]  Nauru instituted proceedings against Australia before the ICJ in 1989,62 arguing that Australia had violated obligations under a trusteeship 56

57

58

59

60

61

62

See ‘Application Instituting Proceedings Submitted by the Government of New Zealand’, Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v France) [1995] ICJ Pleadings 1. ‘Application for Permission to Intervene under the Terms of Article 62 of the Statute Submitted by the Government of Australia’, Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v France) [1995] ICJ Pleadings, . Samoa, the Solomon Islands, the Marshall Islands and the Federated States of Micronesia also sought to intervene under arts 62 and 63. See M C R Craven, ‘New Zealand’s Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v France) Case, Order of 22 September 1995’ (1996) 45 International & Comparative Law Quarterly 725, 727. See Don MacKay, ‘Nuclear Testing: New Zealand and France in the International Court of Justice’ (1995–96) 19 Fordham International Law Journal 1857, 1875. ‘The Court assessed the case before it from the point of view of classical international law coupled with a narrow interpretation of its jurisdiction.’ See Malgosia A Fitzmaurice, ‘International Protection of the Environment’ (2001) 293 Recueil des Cours 9, 375. Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v France) (Provisional Measures) [1995] ICJ Rep 288 [65]. Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v France) (Provisional Measures) [1995] ICJ Rep 288 [67]. Certain Phosphate Lands in Nauru (Nauru v Australia) (Preliminary Objections) [1992] ICJ Rep 240.

572    INTERNATIONAL LAW IN AUSTRALIA

agreement and in relation to the administration of the territory, as well as obligations to respect the rights of the people of Nauru to self-­determination and their right to permanent sovereignty over their wealth and natural resources.63 Nauru had been placed under a mandate in 1920, with Australia, New Zealand and the United Kingdom having full power of administration and legislation over the territory, including for the mining of the phosphate deposits on the island.64 Nauru was transferred to the trusteeship system upon the establishment of the United Nations,65 and gained its independence in 1968.66 Both prior to and subsequent to its independence, Nauru sought to gain reparations from Australia for the rehabilitation of the worked-out lands.67 Australia raised preliminary objections, arguing inter alia that the dispute was inadmissible because Nauru had waived its claims regarding the rehabilita­ tion of the phosphate lands,68 that the termination of the trusteeship agreement had discharged Australia from all further responsibility,69 and that the trusteeship was held jointly by Australia, New Zealand and the United Kingdom and that any finding against Australia would also determine the responsibility of the other states without their consent.70 None of these objections prevailed, and the Court determined that the dispute was admissible and it had jurisdiction to decide the case on the merits. Following this decision, Australia undertook negotiations with Nauru and reached a without prejudice settlement of its claims.71 Australia and Nauru also made a Joint Declaration of Principles to guide relations between them in the future.72 63

64

65

66

67

68

69

70

71

72

Certain Phosphate Lands in Nauru (Nauru v Australia) (Preliminary Objections) [1992] ICJ Rep 240 [5]. Certain Phosphate Lands in Nauru (Nauru v Australia) (Preliminary Objections) [1992] ICJ Rep 240 [42]. The exploitation was managed by three ‘British Phosphate Commissioners’. Certain Phosphate Lands in Nauru (Nauru v Australia) (Preliminary Objections) [1992] ICJ Rep 240 [45]. Certain Phosphate Lands in Nauru (Nauru v Australia) (Preliminary Objections) [1992] ICJ Rep 240 [23]. Certain Phosphate Lands in Nauru (Nauru v Australia) (Preliminary Objections) [1992] ICJ Rep 240 [33]–[36]. Certain Phosphate Lands in Nauru (Nauru v Australia) (Preliminary Objections) [1992] ICJ Rep 240 [12]. Certain Phosphate Lands in Nauru (Nauru v Australia) (Preliminary Objections) [1992] ICJ Rep 240 [22]. Certain Phosphate Lands in Nauru (Nauru v Australia) (Preliminary Objections) [1992] ICJ Rep 240 [39]. Agreement between Australia and the Republic of Nauru for the Settlement of the Case in the International Court of Justice Concerning Certain Phosphate Lands in Nauru, signed 10 August 1993, [1993] ATS 26 (entered into force 20 August 1993). Nii Lante Wallace-Bruce, The Settlement of International Disputes: The Contribution of Australia and New Zealand (Martinus Nijhoff, 1998) 200, n 707.

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C  Case Concerning East Timor [23.80]  The background to Portugal’s case against Australia before the ICJ concerned Portugal’s withdrawal from its colony of East Timor and the subsequent invasion and annexation of East Timor by Indonesia in 1975. Australia had a keen interest in these events.73 By 1972, Australia had delimited its maritime boundary with Indonesia to the east and west of East Timor,74 leaving an undelimited area in the Timor Sea, which became known as the Timor Gap. Following Indonesia’s invasion of East Timor, Australia decided to recognise that East Timor was de facto part of Indonesia.75 In 1979, Australia and Indonesia commenced negotiations over the delimitation of the Timor Gap, and these discussions were viewed as de jure recognition of East Timor’s incorporation into Indonesia.76 Agreement was reached in 1989 (in the Timor Gap Treaty) on a joint exploration and exploitation regime, in what was named a Zone of Cooperation.77 When the Timor Gap Treaty entered into force in 1991 through the implementation of legislation in Australia,78 Portugal instituted proceedings against Australia at the ICJ based on each state’s acceptance of the Court’s compulsory jurisdiction.79 Portugal was unable to institute proceedings against Indonesia, as that state has not accepted the Court’s jurisdiction.80 73

74

75

76

77

78 79 80

See P Gorjão, ‘The End of a Cycle: Australian and Portuguese Foreign Policies and the Fate of East Timor’ (2001) 23 Contemporary Southeast Asia 101, 108. Agreement between the Government of the Commonwealth of Australia and the Government of the Republic of Indonesia Establishing Certain Seabed Boundaries, Australia–Indonesia, signed 18 May 1971, 974 UNTS 307 (entered into force 8 November 1973). A supplementary agreement was signed between Australia and Indonesia in 1972, which established a boundary off West Timor: Agreement between the Government of the Commonwealth of Australia and the Government of the Republic of Indonesia Establishing Certain Seabed Boundaries in the Area of the Timor and Arafura Seas, supplementary to the Agreement of 18 May 1971, Australia–Indonesia, opened for signature 9 October 1972, 974 UNTS 319 (entered into force 8 November 1973). The Minister for Foreign Affairs made a statement to this effect on 23 February 1982: Editors, ‘Self-Determination. East Timor’ (1983) 8 Australian Year Book of International Law 259, 273. East Timor (Portugal v Australia) [1995] ICJ Rep 90 [17]. See further Stuart B Kaye, ‘Australia and East Timor during the Howard Years: An International Law Perspective’ (2008) 27 Australian Year Book of International Law 69, 70. Treaty between Australia and the Republic of Indonesia on the Zone of Cooperation in an Area between the Indonesian Province of East Timor and Northern Australia, Australia–Indonesia, opened for signature 11 December 1989, [1991] ATS 9 (entered into force 9 February 1991) (‘Timor Gap Treaty’). Petroleum (Australia–Indonesia Zone of Cooperation) Act 1990 (Cth) (repealed). East Timor (Portugal v Australia) [1995] ICJ Rep 90 [1]. East Timor (Portugal v Australia) [1995] ICJ Rep 90 [21]. To the present day, Indonesia has still not accepted the Court’s compulsory jurisdiction. See International Court of Justice, Declarations Recognizing the Jurisdiction of the Court as Compulsory .

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Portugal alleged that in entering into the Timor Gap Treaty, Australia had failed to observe its obligations to respect the rights of Portugal as Administering Authority of East Timor — as well as the rights of the East Timorese to self-determination and related rights, including the right to permanent sovereignty over its wealth and natural resources. Australia sought to challenge the admissibility of the dispute and the Court’s jurisdiction over the case.81 Considering these issues to be inextricably linked to the merits, the Court, with the consent of the parties, decided to hear and determine questions of jurisdiction and admissibility at the same time as the merits.82 A central contention raised by Australia was that Indonesia was the true respondent in the case and it was not possible to rule on Portugal’s arguments without considering the legality of Indonesia’s incorporation of East Timor.83 The Court agreed that Australia’s own actions relevant to the maritime boundary could not be assessed without first judging Indonesia’s conduct and, as Indonesia had not consented to the Court’s jurisdiction for the resolution of the dispute, it could not resolve the matter.84 Even though Portugal correctly posited that the right to self-determination is erga omnes, the nature of this obligation was not able to overcome the fundamental importance of states consenting to the adjudication of their disputes.85

D  Japanese Whaling [23.90]  Australia instituted proceedings against Japan in relation to its whaling activities in Antarctic waters on 31 May 2010. The Court delivered judgment in Australia’s favour in early 2014.86 The nub of Australia’s case against Japan was that Japan’s whaling activities did not constitute whaling for purposes of scientific research. This issue arose because the International Whaling Commission (‘IWC’), established under the International Convention for the Regulation of Whaling (‘ICRW’),87 adopted a zero-catch quota, or, more colloquially, a moratorium on commercial whaling, in 1982. The moratorium does not preclude the issuance of special permits for scientific research under art VIII of the ICRW.88 Australia’s case focused on Japan’s research program in the Southern Ocean, known as JARPA II (the Second Phase of the Japanese Whale Research Program under Special Permit in the Antarctic). The first JARPA 81 82 83 84 85 86 87

88

East Timor (Portugal v Australia) [1995] ICJ Rep 90 [4]. East Timor (Portugal v Australia) [1995] ICJ Rep 90 [4]. East Timor (Portugal v Australia) [1995] ICJ Rep 90 [23]. East Timor (Portugal v Australia) [1995] ICJ Rep 90 [28]. East Timor (Portugal v Australia) [1995] ICJ Rep 90 [29]. Whaling in the Antarctic (Australia v Japan: New Zealand Intervening) [2014] ICJ Rep 226. International Convention for the Regulation of Whaling, opened for signature 2 December 1946, 161 UNTS 72 (entered into force 10 November 1948) (‘ICRW’). ICRW sch s 10(e).

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ran from 1987 until 2005. When concluded, Japan immediately issued special permits to allow for JARPA II to commence in the 2005–06 austral summer season with a two-year feasibility study. The full program began in 2007–08 and had no fixed end date. Australia argued that ‘having regard to the scale of the JARPA II program, to the lack of any demonstrated relevance for the conservation and management of whale stocks, and to the risks presented to targeted species and stocks, the JARPA II program cannot be justified under Article VIII of the [ICRW]’.89 Australia did not seek provisional measures. However, the ICJ agreed to Australia’s request that it hear both jurisdictional and substantive issues together after only one round of written pleadings. Australia and Japan devoted considerable resources to the case, and both produced expert witnesses, who were cross-examined and questioned by members of the Court. The detailed factual and expert evidence became very important in the resolution of the case. The Court held unanimously that it had jurisdiction, based on the respective optional clause declarations.90 It also held that the special permits for JARPA II did not fall within the provisions of art VIII of the ICRW. While the Court considered that, taken as a whole, JARPA II involved activities that could be broadly characterised as scientific research, it considered that the evidence did not establish that the design and implementation of the program were reasonable in achieving its stated scientific objectives. Hence, the permits were not granted ‘for purposes of scientific research’ pursuant to art VIII of the ICRW.91 The ICJ also found that by granting the special permits for JARPA II, Japan did not act in conformity with para 10(e) of the schedule to the ICRW (the moratorium on commercial whaling) and, in respect of fin whales, paras 7(b) (Southern Ocean sanctuary) and 10(d) (factory ship moratorium). The Court decided that Japan should revoke the extant special permits and refrain from granting any further permits in pursuance of the JARPA II program. The Court rejected Australia’s argument that Japan had not complied with its obligations under para 30 of the schedule to make proposed permits available to the IWC in sufficient time to permit review by the Scientific Committee before they are issued. After the decision, Japan suspended the JARPA II program, but in 2016 it launched a new and redesigned whaling program in the Southern Ocean. That program continues to be opposed by Australia as not being consistent with the requirements of art VIII of the ICRW, as interpreted by the ICJ. 89

90

91

‘Application Instituting Proceedings Submitted by the Government of Australia’, Whaling in the Antarctic (Australia v Japan; New Zealand Intervening), International Court of Justice, General List No 148, 31 May 2010, [37]. Japan in 2015 lodged a new optional clause declaration excluding disputes involving living natural resources. This will make it much more difficult to establish jurisdiction in any case before the Court challenging continued Japanese whaling. Whaling in the Antarctic (Australia v Japan: New Zealand Intervening) [2014] ICJ Rep 226 [227].

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E  Seizure and Detention of Documents [23.100]  Australia found itself a defendant before the Court once again in January 2014 when Timor-Leste sought provisional measures requiring Australia to return certain documents that had been seized from the offices of a lawyer in Canberra who acted for Timor-Leste. The documents had been seized under a warrant issued by the Attorney-General for purposes of national security. Timor-Leste alleged that the documents belonged to it or were documents that it had the right to protect under international law, including confidential communications with its legal advisers. It sought orders for the return of the documents. Australia sought refusal of these measures and argued that the proceedings should be stayed until judgment in the Timor Sea arbitration. It argued that that tribunal could make any necessary orders to deal with the issues raised by Timor-Leste. The Court considered that some of the rights for which Timor-Leste sought protection — such as the right to conduct arbitration or negotiations without interference, including in the confidentiality of communications with legal advisers — were plausible and, in the circumstances, considered that there was irreparable prejudice warranting the indication of provisional measures.92 An undertaking given to the ICJ by Australia was not seen as sufficient to negate the need for measures of protection.93 The Court, as provisional measures, ordered Australia to ensure that the contents of the seized documents were not used to the disadvantage of Timor-Leste until the case was concluded, and to keep the documents under seal pending further decision by the Court. The ICJ also ordered Australia not to interfere in any way with communications between Timor-Leste and its legal advisers in connection with the arbitration under the Timor Sea Treaty and any further bilateral negotiations.94 A short timetable was ordered by the Court for written pleadings, and hearings on the merits were scheduled for mid-September 2014. Shortly before that date, the Court agreed to adjourn at the request of both parties. In April 2015, the Court varied the provisional measures order to allow Australia to return the documents still sealed.95 In June 2015, the case was removed from the list with the agreement of the parties after Australia had returned the documents in question.96

92

93

94

95 96

Questions Relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v Australia) (Provisional Orders) [2014] ICJ Rep 147. Questions Relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v Australia) (Provisional Orders) [2014] ICJ Rep 147, 158–9 [43]–[47]. Questions Relating to the Seizure and Detention of Certain Documents and Data (Timor-Leste v Australia) (Provisional Orders) [2014] ICJ Rep 147, 160–1 [55]. Order of 22 April 2015. Order of 11 June 2015.

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VI  DISPUTE SETTLEMENT THROUGH THE WTO [23.110]  Australia has been an active participant in the WTO dispute settlement system, both as complainant and as respondent, as well as a regular third party in disputes between other states.97 As a mid-size state, Australia has long been committed to a rules-based multilateral trading system. The Dispute Settlement Body (‘DSB’), established as part of the 1995 Agreement Establishing the WTO,98 is an important part of this system. Unlike the General Agreement on Tariffs and Trade (‘GATT’) system, the DSB involves compulsory dispute settlement mechanisms, with enforcement mechanisms involving ultimately an ability to impose trade retaliation. Hence, Australia’s involvement in this system has meant that Australia, following adverse outcomes in the DSB, has been obliged to modify certain of its trade policies. This has particularly been the case in the area of quarantine restrictions. At the same time, Australia has sought to take advantage of favourable outcomes, although some commentators suggest that in the case of disputes involving powerful countries such as the United States, the dispute settlement system provides few rewards for middle powers such as Australia.99 As at the start of 2016, Australia had filed seven complaints in the DSB, and had been a respondent in 15 disputes. It had also been a third party in over 90 disputes. The cases have involved a range of issues under various WTO agreements, particularly measures restricting imports, subsidies and environmental restrictions. Participation allows Australia to make its views known and, in particular, to influence the interpretation given to particular WTO obligations. Its regular appearance as a third party is one way that Australia seeks to ensure consistent interpretation and application of the WTO agreements. Of the complaints Australia initiated, two were settled prior to the establishment of a panel, four went as far as the Appellate Body, and one involved only the panel stage. In the Korea — Beef dispute,100 the Appellate Body found that a dual retail system for local and imported beef was discriminatory, contrary to art III.4 of the GATT and a number of other agreements. Korea complied with the

97 98

99

100

See more detailed consideration in chapter 13 of this volume. Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995) (‘Agreement Establishing the WTO’). See M Rafiqul Islam, ‘WTO Dispute Settlement System: Its Underlying Motivating Factors for Adjudication’ in Natalie Klein (ed), Litigating International Law Disputes (Cambridge University Press, 2014) 375. Appellate Body Report, Korea — Measures Affecting Imports of Fresh, Chilled and Frozen Beef, WTO Doc WT/DS161/AB/R (12 January 2000).

578    INTERNATIONAL LAW IN AUSTRALIA

decision by removing the offending measures.101 In US — Lamb,102 Australia challenged restrictive quotas and tariffs imposed by the United States on lamb imports. The justification that these were permitted safeguard actions in response to a threat of serious injury to the domestic market was rejected by both the panel and the Appellate Body. The United States agreed to remove the safeguard measures following the decision of the Appellate Body. To some commentators, this was a rather hollow victory.103 Other complaints brought by Australia that were decided in Australia’s favour were disputes against the European Communities in relation to Geographical Indications104 and Export Subsidies on Sugar.105 Australia also complained against the US Continued Dumping and Subsidy Offset Act of 2000. This dispute not only went to the Appellate Body, but involved further arbitrations under arts 21.3 and 22.6 of the WTO in relation to the timely implementation of the Appellate Body decision.106 Australia has been a respondent in 10 disputes, but only three have reached the panel stage. Two cases, involving the import of salmon products from Canada and apples from New Zealand, concerned the Agreement on the Application of Sanitary and Phytosanitary Measures.107 Both cases challenged the quarantine restrictions that had been placed on the import of the particular products. 101

102

103

104

105

106

107

See Raj Bhala and David Gantz, ‘WTO Case Review 2001’ (2002) 19 Arizona Journal of International and Comparative Law 457, 472–504; Bryan Mercurio, ‘The WTO Dispute Settlement Understanding: How a Rules-based System Benefits Australia’ in Department of Foreign Affairs and Trade, Ten Years of WTO Dispute Settlement: Australian Perspectives (2006) 105, 111–15. Appellate Body Report, United States — Safeguard Measures on Imports of Fresh, Chilled or Frozen Lamb Meat from New Zealand and Australia, WTO Docs WT/DS177/AB/R, WT/ DS178/AB/R (1 May 2001). For discussion of the case, see Bryan Mercurio, ‘The WTO Dispute Settlement Understanding: How a Rules-based System Benefits Australia’ in Department of Foreign Affairs and Trade, Ten Years of WTO Dispute Settlement: Australian Perspectives (2006), 115–20; Henrik Horn and Petros C Mavroidis (eds), US — Lamb, The WTO Case Law of 2001 (2003) 72–114. Panel Report, European Communities — Protection of Trademarks and Geographical Indications for Agricultural Products and Foodstuffs, WTO Doc WT/DS290/R (15 March 2005). Appellate Body Report, European Communities — Export Subsidies on Sugar, WTO Docs WT/DS265/AB/R, WT/DS266/AB/R, WT/DS283/AB/R (19 May 2005). Appellate Body Report, United States — Continued Dumping and Subsidy Offset Act of 2000, WTO Docs WT/DS217/AB/R, WT/DS234/AB/R (16 January 2003); Decision by the Arbitrator, United States — Continued Dumping and Subsidy Offset Act of 2000 — Arbitration under Article 21.3(c) of the Understanding on Rules and Procedures Governing the Settlement of Disputes, WTO Docs WT/DS217/14, WT/DS234/22 (13 June 2003). Australia reached an understanding with the United States on 23 December 2004, and therefore did not participate in the second set of arbitral proceedings. Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995) annex 1A (‘Agreement on the Application of Sanitary and Phytosanitary Measures’).

Ch 23: AUSTRALIA AND INTERNATIONAL DISPUTE SETTLEMENT   579

In the Salmon dispute, Canada argued that the risk assessment that Australia used to impose a ban on imports of Canadian salmon was not a proper risk assessment and that there were unjustifiable inconsistencies in treatment in the way Australia dealt with disease in imported salmon as compared to other imported fish. The panel and Appellate Body upheld Canada’s complaint in this regard.108 An implementation arbitration was also held, attacking the replacement measures proposed by Australia. That panel upheld all the replacement measures except one, and also found an import ban by Tasmania to be contrary to Australia’s WTO obligations. A settlement was reached with Canada in 2000, with changes to the one measure found to be problematic and Australia undertaking to continue to seek compliance by Tasmania. This dispute highlighted the potential for trade disputes of this nature to raise Commonwealth–state issues and the significant domestic political impact of particular trade disputes.109 A similar set of issues arose in the challenge by New Zealand to the severe restrictions imposed by Australia on the importation of New Zealand apples. This dispute went as far as the Appellate Body, and Australia’s quarantine measures were found not to be scientifically justified based on a proper risk assessment.110 This dispute was particularly complex, involving three separate pests and disputed scientific expert material. Following the Appellate Body decision, Australia and New Zealand agreed to revised quarantine measures. Imports of New Zealand apples commenced in accordance with these restrictions, although certain Australian states imposed local exclusion zones for New Zealand apples. This, once again, highlighted the difficult domestic implications of these types of WTO cases. The other dispute where Australia was found to be in breach of a WTO agreement was a complaint brought by the United States that certain assistance measures provided to automotive leather manufacturers constituted export subsidies prohibited by the Agreement on Subsidies and Countervailing Measures.111 The complaint was upheld by the panel.112 The United States took 108

109

110

111

112

Appellate Body Report, Australia — Measures Affecting the Importation of Salmon, WTO Doc WT/DS18/AB/R (6 November 1998); Panel Report, Australia — Measures Affecting Importation of Salmon — Recourse to Article 21(5) by Canada, WTO Doc WT/DS18/RW (18 February 2000). Gavin Goh, ‘Australia’s Participation in the WTO Dispute Settlement System’ (2002) 30 Federal Law Review 203, 208. Appellate Body Report, Australia — Measures Affecting the Importation of Apples from New Zealand, WTO Doc WT/DS/367/AB/R (29 November 2010). Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995) annex 1A (‘Agreement on Subsidies and Countervailing Measures’). Panel Report, Australia — Subsidies Provided to Producers and Exporters of Automotive Leather, WTO Doc WT/DS126/R (25 May 1999); Panel Report, Australia — Subsidies Provided to Producers and Exporters of Automotive Leather — Recourse to Article 21(5) of the DSU by the United States, WTO Doc WT/DS126/RW (21 January 2000).

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further proceedings in relation to Australia’s implementation of the decision. This resulted in a controversial finding that Australia was required to recover past subsidies paid to the company that was beneficiary of the subsidies.113 An agreed settlement was reached removing the threat of retaliation. Australia has also, in March 2012, been the subject of a complaint by Ukraine as well as by Honduras, the Dominican Republic, Cuba and Indonesia in relation to plain packaging requirements regarding cigarettes. The complaint invokes a number of WTO agreements.114 At the time of writing, the panel proceedings requested by Ukraine had been suspended; those requested by Honduras, the Dominican Republic, Cuba and Indonesia are pending panel reports. These cases demonstrate that the WTO dispute settlement mechanism is a powerful restraint on the trade policies of Australia, including in the area of quarantine restrictions. At the same time, Australia has been able to use the same system to complain against what it considers unfair trading restrictions imposed by other countries. The existence of the WTO dispute settlement system has become a major consideration in determining how Australia conducts its own trade policies and reacts to those of other states.

VII  DISPUTE SETTLEMENT UNDER THE LOSC [23.120]  Since the entry into force of the LOSC in 2004, Australia has been engaged once as an applicant and once as a respondent under the dispute settlement procedures available in pt XV of that convention. Australia has in its declaration under art 287 of the LOSC accepted the ICJ and the International Tribunal for the Law of the Sea (‘ITLOS’) as preferred dispute settlement bodies. However, if the other party to a dispute has not accepted these bodies, the default mechanism is an ad hoc annex VII arbitral tribunal. Australia has also reserved disputes involving maritime boundary disputes from the compulsory dispute settlement provisions, as allowed by art 298.

A  Southern Bluefin Tuna [23.130]  Australia turned to litigation for the protection of southern bluefin tuna, a highly migratory species,115 at the end of the 1990s. The conservation 113

114

115

Gavin Goh, ‘Australia’s Participation in the WTO Dispute Settlement System’ (2002) 30 Federal Law Review 203, 212–13. Decision by the Arbitrator, Australia — Certain Measures Concerning Trademarks, Geographical Indications and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging, WTO Docs WT/DS434, WT/DS435, WT/DS441, WT/DS458, WT/DS467. LOSC annex 1.

Ch 23: AUSTRALIA AND INTERNATIONAL DISPUTE SETTLEMENT   581

and management of this species is regulated under the 1993 Convention for the Conservation of Southern Bluefin Tuna (‘CCSBT’).116 The CCSBT establishes a Commission (‘SBT Commission’),117 which has responsibility for determining the total allowable catch and national allocations. In 1998, Japan not only sought to increase the catch quotas, but also proposed that a joint experimental fishing program (‘EFP’) be undertaken as a means of resolving differing scientific views. Negotiations with Australia and New Zealand, the only other member states of the SBT Commission at the time, failed to produce any agreement on these issues.118 When Japan commenced its EFP and refused to suspend it pending any mediation or arbitration under the terms of the CCSBT, Australia and New Zealand decided to refer the matter to arbitration under the LOSC.119 In alleging that Japan was in violation of the LOSC, Australia and New Zealand argued that Japan had breached obligations under art 64 and arts 116–19 concerning the conservation and management of the species, particularly as the EFP would result in tuna being taken in excess of Japan’s allocation, and that Japan had failed to cooperate in good faith with a view to ensuring conservation of southern bluefin tuna.120 Japan’s position was that no legal dispute existed, but the case involved ‘the proper method for assessing the SBT stock and the formulation of an EFP that would further such an assessment and contribute necessary scientific data’.121 This dispute concerned science, according to Japan, and was not amenable to judicial resolution. In the first instance, Australia and New Zealand were successful in securing provisional measures from ITLOS.122 In prescribing provisional measures, ITLOS took into account, inter alia, the ‘scientific uncertainty regarding measures to be taken to conserve’ southern bluefin tuna,123 and that ‘the parties should in the circumstances act with prudence and caution to ensure that effective conservation measures are taken to prevent serious harm 116

117 118

119 120

121

122 123

Convention for the Conservation of Southern Bluefin Tuna, opened for signature 10 May 1993, [1994] ATS 16 (entered into force 20 May 1994) (‘CCSBT’). CCSBT art 8. See Leah Sturtz, ‘Southern Bluefin Tuna Case: Australia and New Zealand v Japan’ (2001) 28 Ecology Law Quarterly 455, 469–70 (referring to different diplomatic meetings held from November 1998 until May 1999). LOSC art 287(3). Southern Bluefin Tuna Cases (New Zealand v Japan, Australia v Japan) (Provisional Measures) (1999) 38 ILM 1624 [28], [29] (setting out New Zealand and Australia’s claims respectively). M Hayashi, ‘The Southern Bluefin Tuna Cases: Prescription of Provisional Measures by the International Tribunal for the Law of the Sea’ (2000) 13 Tulane Environmental Law Journal 361, 375. LOSC art 290. Southern Bluefin Tuna Cases (New Zealand v Japan, Australia v Japan) (Provisional Measures) (1999) 38 ILM 1624 [79].

582    INTERNATIONAL LAW IN AUSTRALIA

to the stock of southern bluefin tuna’.124 ITLOS therefore ordered Japan to halt its EFP by prohibiting the parties from exceeding the annual national allocations at the levels last agreed.125 The matter was then before an ad hoc arbitral tribunal,126 which decided that it lacked jurisdiction to resolve the dispute. The Tribunal disagreed with Australia and New Zealand that they could proceed with litigation under the LOSC given the availability of an alternative dispute settlement scheme under the CCSBT.127 Because the CCSBT had its own dispute settlement procedure, Australia and New Zealand were effectively precluded from resorting to LOSC dispute settlement procedures.128 This conclusion had to be reached irrespective of the view that the substantive aspects of the dispute arose under the LOSC as well as the CCSBT.129 The parties were thus compelled to return to the SBT Commission, where it was agreed that independent external scientists should be engaged to devise an acceptable program,130 and they were able to work towards setting new agreed catch limits.131 Although the litigation itself left a variety of legal questions unanswered, several commentators have taken the view that the 124

125

126

127

128

129

130

131

Southern Bluefin Tuna Cases (New Zealand v Japan, Australia v Japan) (Provisional Measures) (1999) 38 ILM 1624 [77]. Southern Bluefin Tuna Cases (New Zealand v Japan, Australia v Japan) (Provisional Measures) (1999) 38 ILM 1624 [90]. In accordance with the operation of art 287, which refers cases to an ad hoc tribunal where the parties in dispute have elected different forums for dispute resolution, or not made any election at all: LOSC art 287. At the time of the dispute, neither party had made a declaration under art 287. See Southern Bluefin Tuna Cases (New Zealand v Japan, Australia v Japan) (Provisional Measures) (1999) 38 ILM 1624 preamble. Southern Bluefin Tuna Cases (New Zealand v Japan, Australia v Japan) (Provisional Measures) (1999) 38 ILM 1624 [59]. Relying on LOSC art 281(1), which reads: If the States Parties which are parties to a dispute concerning the interpretation or application of this Convention have agreed to seek settlement of the dispute by a peaceful means of their own choice, the procedures provided for in this Part apply only where no settlement has been reached by recourse to such means and the agreement between the parties does not exclude any further procedure. Southern Bluefin Tuna Cases (New Zealand v Japan, Australia v Japan) (Provisional Measures) (1999) 38 ILM 1624 [52]. B Mansfield, ‘Southern Bluefin Tuna — Comments’ (Paper presented at SEAPOL InterRegional Conference on Ocean Governance and Sustainable Development in East and Southeast Asian Seas: Challenges in the New Millennium, 21–23 March 2001), as cited in Rosemary Rayfuse et al, ‘Australia and Canada in Regional Fisheries Organizations: Implementing the United National Fish Stocks Agreement’ (2003) 26 Dalhousie Law Journal 47, 71. See Tim Stephens, ‘The Limits of International Adjudication in International Environmental Law: Another Perspective on the Southern Bluefin Tuna Case’ (2004) 19 International Journal of Marine & Coastal Law 177, 185; Alastair Cameron, ‘Is There Hope for the Fish? The Post-Arbitration Effectiveness of the Convention for the Conservation of Southern Bluefin Tuna’ (2007) 15 New York University Environmental Law Journal 247, 253.

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process itself contributed to the restoration of cooperative relationships in various ways.132

B  Volga Prompt Release [23.140]  Australia’s laws relating to fisheries, and specifically Australia’s efforts relating to the management and conservation of Patagonian toothfish, were challenged indirectly before ITLOS as a result of prompt release proceedings under the LOSC. Article 292 of that treaty allows a state to challenge the detention of one of its vessels for unlawful fishing when that vessel, or its crew, has not been promptly released upon the posting of a reasonable bond or other financial security. Russia instituted proceedings against Australia, challenging the arrest, detention and bond requirements of the Volga and certain crew members in response to illegal fishing operations in Australia’s EEZ around the Territory of Heard and McDonald Islands. The Volga case followed three other prompt release cases, the Grand Prince,133 the Monte Confurco134 and the Camouco,135 and these all tested the limits of permissible actions of coastal states in arresting and detaining vessels alleged to be fishing unlawfully in the coastal state’s waters. Russia sought a declaration from ITLOS that the conditions set by Australia for the release of the Volga and three of its crew members were neither permissible nor reasonable.136 These conditions included disclosing information about the ownership of the vessel, carrying a vessel monitoring system for the duration of the Australian court proceedings, and observing prescribed conservation measures. Russia argued that conditions for release of the vessel must ‘relate to the provision of a bond or security in the pecuniary sense’.137 Thus, among the key legal issues at stake were the range of conditions that a coastal state may impose on a fishing vessel for its release to resume fishing as part of a ‘reasonable bond’ and whether those conditions may serve as a deterrent against unlawful fishing. The parameters for decision-making by ITLOS under art 292 are therefore quite limited. 132

133

134

135

136

137

See Tim Stephens, ‘The Limits of International Adjudication in International Environmental Law: Another Perspective on the Southern Bluefin Tuna Case’ (2004) 19 International Journal of Marine & Coastal Law 177, 187; W R Mansfield, ‘Correspondence’ (2001) 95 American Journal of International Law 624, 624. The ‘Grand Prince’ Case (Belize v France) (Prompt Release) (International Tribunal for the Law of the Sea, Case No 8, 20 April 2001). The ‘Monte Confurco’ Case (Seychelles v France) (Prompt Release) (International Tribunal for the Law of the Sea, Case No 6, 18 December 2000). The ‘Camouco’ Case (Panama v France) (Prompt Release) (International Tribunal for the Law of the Sea, Case No 5, 7 February 2000). The ‘Volga’ Case (Russian Federation v Australia) (Prompt Release) (International Tribunal for the Law of the Sea, Case No 11, 23 December 2002) [28], [29]. ‘Memorial of the Russian Federation’, The ‘Volga’ Case (Russian Federation v Australia) [7] .

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For the assessment of the reasonableness of the bond, Australia argued that among the circumstances to be taken into account was the serious problem of illegal fishing in the Southern Ocean, as well as ‘the role of vessels like the “Volga” in repeated and flagrant violations of applicable national and international conservation measures’.138 However, in prompt release proceedings, the rights of the coastal state must be balanced with those of the flag state.139 This balance requires consideration of the vessel being promptly released in view of the financial implications of the vessel missing part of the fishing season, as well as consideration of the efforts of the coastal state in conserving and managing its fish stocks.140 The approach of the Tribunal has tended to favour the need for prompt release over the conservation concerns of the coastal state.141 This emphasis is further seen in that Australia’s efforts to ensure greater compliance by the temporary use of a vessel monitoring system were also disallowed on the basis that bond conditions had to be financial in nature.142 Ultimately, even though Australia was not permitted to impose nonfinancial conditions on releasing the vessel, Russia was unsuccessful in convincing the Tribunal that the bond should be significantly reduced. Commentators have noted that the case therefore entailed successes and losses for each state.143 In terms of the protection of marine resources, Australia’s loss may seem greater. Setting conditions of release that create a financial disincentive to illegal fishing would constitute a stronger deterrent to this practice.144

C  Conciliation in Relation to Maritime Boundaries [23.150]  Timor-Leste in 2016 commenced conciliation action under the LOSC against Australia in relation to the maritime boundary in the Timor Sea. This form of dispute settlement is potentially available pursuant to art 298 and annex V of the LOSC if a state excludes, as has Australia, the otherwise applicable compulsory arbitration or adjudication in relation to disputes 138

139

140

141

142

143

144

‘Statement in Response of Australia’, The ‘Volga’ Case (Russian Federation v Australia) 11 [12] . See, eg, The ‘Monte Confurco’ Case (Seychelles v France) (Prompt Release) (International Tribunal for the Law of the Sea, Case No 6, 18 December 2000) [71], [72]. See The ‘Volga’ Case (Russian Federation v Australia) (Prompt Release) (International Tribunal for the Law of the Sea, Case No 11, 23 December 2002) [12] (Judge Cot). See further Tim Stephens and Donald R Rothwell, ‘Case Note: The Volga (Russian Federation v Australia)’ (2004) 35 Journal of Maritime Law & Commerce 283, 288. The ‘Volga’ Case (Russian Federation v Australia) (Prompt Release) (International Tribunal for the Law of the Sea, Case No 11, 23 December 2002) [77], [80]. See S Derrington and M White, ‘Australian Maritime Law Update: 2002’ (2002) 34 Journal of Maritime Law & Commerce 363, 366. A J Oppenheim, ‘The Plight of the Patagonian Toothfish: Lessons from the Volga Case’ (2004) 30 Brooklyn Journal of International Law 293, 298.

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concerning maritime boundaries. Australia has indicated that it considers that prior agreements require Timor-Leste not to pursue proceedings, including conciliation, in relation to the boundary dispute.145

VIII  AUSTRALIA’S CONTRIBUTION TO ADVISORY OPINIONS [23.160]  Australia’s experience is not only as a participant in contentious proceedings. Australia has also participated in a number of the advisory opinions given by the ICJ. It filed a written submission in the Conditions of Admission of a State to the United Nations advisory opinion in 1948146 and in the Interpretation of Peace Treaties advisory opinion in 1950.147 It made both written and oral submissions in the Certain Expenses advisory opinion in 1962,148 with Sir Kenneth Bailey appearing for Australia.149 It made written submissions in the World Health Organization request for an opinion on the legality of nuclear weapons and was represented by the Foreign Minister and the Solicitor-General at the oral hearings on that request and the separate related request made by the General Assembly,150 the hearings on the two requests being combined. Australia has not taken part in more recent controversial advisory opinions at the ICJ, such as the Legal Consequences of the Construction of a Wall in the Occupied Palestine Territory151 or the opinion concerning the Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo.152 Australia did, however, make a written submission in the first 145

146

147

148

149

150 151

152

Matthew Doran and Peter Lloyd, ‘East Timor–Australia Maritime Border to be Negotiated before United Nations after Protests’ ABC News (online), 11 April 2016, . Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter) (Advisory Opinion) [1948] ICJ Rep 57. See ‘Written Statement of Australia’, Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter) (Advisory Opinion), International Court of Justice, General List No 3, 9 February 1948, 30–2. Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (Advisory Opinion) (First Phase) [1950] ICJ Rep 65. See ‘Written Statement of Australia’, Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (Advisory Opinion) (First Phase), International Court of Justice, General List No 8, 7 November 1949, 205–9. Certain Expenses of the United Nations (Article 17(2) of the Charter) (Advisory Opinion) [1962] ICJ Rep 151. See ‘Oral Statement of Sir Kenneth Bailey’, Certain Expenses of the United Nations (Article 17(2) of the Charter) (Advisory Opinion), International Court of Justice, General List No 49, 18 May 1962, 372–86. Legality of the Threat of Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226. Legal Consequences of the Construction of a Wall in the Occupied Palestine Territory (Advisory Opinion) [2004] ICJ Rep 136. Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion) [2010] ICJ Rep 403.

586    INTERNATIONAL LAW IN AUSTRALIA

advisory opinion given by the Seabed Disputes Chamber of ITLOS. This concerned the responsibilities and obligations of states sponsoring persons and entities with respect to activities in the International Seabed Area. Australia also made written and oral submissions in the Advisory Opinion requested by the Sub-Regional Fisheries Commission.

IX  AUSTRALIANS AS JUDGES AND ARBITRATORS [23.170]  Australians have served as judges and arbitrators before a range of international courts and tribunals. Sir Percy Spender served at the ICJ, including as President, between 1958 and 1967, and Professor James Crawford was elected a judge of the Court from 2015. Australia has also appointed ad hoc judges at the ICJ for the Nuclear Tests case (Sir Garfield Barwick), East Timor (Sir Ninian Stephen), Whaling in the Antarctic (Professor Hilary Charlesworth) and, most recently, Questions Relating to the Seizure and Detention of Certain Documents and Data (Ian Callinan). Professor Ivan Shearer has been appointed as an ad hoc judge at ITLOS and both he and Henry Burmester have served as arbitrators in LOSC cases under the auspices of the PCA. Australia has nominated eminent jurists to its list of arbitrators at the PCA, which have typically included Australia’s current Chief Justice of the High Court and Solicitor-General, and to the list of arbitrators under the LOSC. A list of available panellists has also been submitted by Australia to the International Centre for Settlement of Investment Disputes and has included Professor James Crawford, Sir Anthony Mason, Dr Gavan Griffith and Michael Kirby. John Lockhart, a former judge of the Federal Court, served on the Appellate Body of the WTO. Australians have also served in international criminal proceedings, including in recent tribunals set up as part of reconciliation in post-conflict countries. In this regard, Australians have served on the International Criminal Tribunal for the Former Yugoslavia, the Extraordinary Chambers of the Courts of Cambodia, and the Special Tribunal for Lebanon. Professor Ivan Shearer also served as Australia’s representative on the UN Human Rights Committee and Professor Ron McCallum has chaired the UN Committee on the Rights of Persons with Disabilities.

X CONCLUSION [23.180]  Australia’s involvement with international dispute settlement procedures reflects its high level of international engagement, its belief in the rule of law in seeking to protect and defend its interests, and its willingness to use the full range of processes available in its national interests. It has long been seen as being in the interests of Australia, as a middle-size power, to promote a rules-based system of international law, and in that regard to

Ch 23: AUSTRALIA AND INTERNATIONAL DISPUTE SETTLEMENT   587

support strongly the peaceful settlement of disputes. However, this support of international courts and tribunals does not mean that Australia does not have regard to its own national interests. In appropriate cases, it will seek to avoid exposure to international litigation or, if that is not possible, it will strongly defend its interests. This approach is apparent in the WTO cases, where it has found itself a respondent. At the same time, Australia has also been willing to use international litigation to try and resolve intractable disputes, particularly in the resource/environmental area. It has been one of the most adventurous of states in this regard. In light of Australia’s previous experiences and past practices, it must be anticipated that Australia will continue to be strategic in its approach to international litigation — being a participant in litigation to promote or defend certain interests (as seen in Southern Bluefin Tuna), and avoiding litigation where possible in relation to certain select matters judged inappropriate for third-party settlement (seen through the reliance on the optional exceptions to mandatory jurisdiction under the LOSC and its exceptions to the compulsory jurisdiction of the ICJ or, most recently, a lack of enthusiasm for investor–state dispute settlement mechanisms). These exceptions are, however, relatively few. Australia can be expected to continue to be a strong supporter of wide-ranging compulsory dispute settlement, reflecting its judgment that a rules-based system is most likely to succeed when supported by strong dispute settlement mechanisms.

Index

9/11 see also Anti-terrorism; Terrorism Al Qaeda, [11.10] UN resolution freezing funds and assets, [11.50] terrorism in Australia before, [11.10], [11.150] terrorist attacks on Australians after, [11.10] UN General Assembly resolutions before and after, [11.30] Aborigines and Torres Strait Islanders see also Indigenous rights 1967 referendum and after, [7.40] cases, [7.20] early European view, [7.20] land ownership, [7.20] Mabo v Queensland, [7.40] Mabo v Queensland [No 2], [2.140], [7.20], [7.40] native title see Native title rights see Indigenous rights Royal Commission into Aboriginal Deaths in Custody, [7.140] self-determination see Self-determination of Indigenous Australians sparse population, false premise, [7.20] Accounting standards Australian Accounting Standards Board, [14.20] Agreements see Conventions, covenants, declarations, agreements and protocols AHRC see Australian Human Rights Commission (AHRC) Air carriage see International carriage by air Air law definition, [20.20] international see International air law

Air pollution international environmental law, [19.120] ozone depletion, [19.130] transboundary haze pollution, [19.120] Antarctic AAT see Australian Antarctic Territory (AAT) Antarctic Treaty, [22.140] Australian Antarctic Division (AAD), [22.100], [22.140] Convention on the Conservation of Antarctic Marine Living Resources, [15.50], [22.140] HIMI Territory see Heard and McDonald Islands (HIMI Territory) Whaling in the Antarctic case, [18.180], [19.10], [22.140], [23.90], [23.170] Antarctica nationality-based jurisdiction, [4.50] whaling, [4.110] Anti-terrorism Australia see Anti-terrorism in Australia bilateral agreements, [11.130] David Hicks case, [8.40], [9.110] jurisdiction, [4.60], [4.70] passive personality principle as jurisdiction basis, [4.60] Plastic Explosives Convention, [11.20] regional cooperation, [11.120] treaties, [11.20] UN see Anti-terrorism and the UN universal jurisdiction, [4.70] Anti-terrorism and the UN General Assembly resolutions, [11.30] 9/11, before and after, [11.30] Australia, [11.30] human rights, [11.140]

589

590    INTERNATIONAL LAW IN AUSTRALIA Anti-terrorism and the UN continued Security Council measures, [11.40] Australia, [11.50], [11.100] Australian implementation of Resolution 1373, [11.70], [11.80] Bin Laden etc funds and assets frozen, [11.50] counter-terrorism obligations imposed on states, [11.60] ‘foreign recruitment’ offences, [11.100] preparation and prevention, [11.80] Resolution 1267 (1999), [11.50] Resolution 1373 (2001), [11.60]–[11.80] Resolution 2178 (2014), [11.100] terrorism financing obligations, [11.70] weapons controls (nuclear, biological and chemical), [11.90] Security Council membership of Australia, [11.110] Anti-terrorism in Australia 9/11, before and after, [11.10], [11.20], [11.150] ADF operations, [12.90] bilateral agreements, [11.130] citizenship revocation, [8.30] conventions, [11.20] David Hicks case, [8.40], [9.110] ‘depoliticisation’ of offences, [11.20] risk re, [11.20] domestic offences, incorporation into law as, [11.80] extradition, [11.20] human rights, [11.140] legislative implementation of ratified treaties, [11.20] military forces, [11.10] overview, [11.10], [11.150] Plastic Explosives Convention, [11.20] regional cooperation, [11.120] role of Australia internationally, [11.20] terrorism financing obligations, [11.70] treason and sedition, [11.80] treaties, [11.20] UN see Anti-terrorism and the UN Anti-weaponry treaties etc anti-terrorist, [11.20], [11.90] chemical weapons, [5.50] firearms, illegal manufacturing/ trafficking, [11.20] nuclear weapons, [5.50], [11.90], [15.110] plastic explosives, [11.20] weapons of mass destruction, [11.90] Arbitration see also Dispute settlement clauses in treaties, [23.40] international commercial arbitration, [14.60]

international disputes, [23.40] Australian arbitrators, [23.170] LOSC, under, [23.120]–[23.150] maritime boundary disputes, [23.40] Archipelagic waters archipelagic baselines, [18.80] archipelagic sea lanes passage, [18.80] maritime zone, [18.80] right of navigation, [18.80] sovereignty of state, [18.70] Ashmore and Cartier Islands, [22.40] access restrictions, [22.120] Administrator, [22.100] Australian external territory, [22.10], [22.40] Australia’s responsibilities, [22.120] Commonwealth legislation, application in, [22.100] contiguous zone, [22.110] environment protection, [22.120] history of colony, [22.40] marine reserves, [22.120] maritime boundary delimitation agreements, [22.110] maritime zones, [22.110] Northern Territory laws applicable in, [22.100] Ramsar wetlands, [22.120] territorial sea, [22.110] transfer from UK to Australia, [22.40] Asylum diplomatic, [8.50] history in international law, [8.50] lawfulness, [8.60] ‘lottery’, [8.70] people smuggling see People smuggling right, [8.50] Australian legislation to the contrary, [10.90] Asylum seekers see also Boat people; Human rights in Australia; Migrants; Refugees; Refugees and Australia Australian common law human rights, [6.20] boat people see Boat people ‘chain refoulement’, [8.90] children, [8.50] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, [5.80], [8.60] criminalisation not permitted, [8.60] detention see Immigration detention deterrence, [8.90] diplomatic asylum, [8.50]

INDEX    591 human rights, [8.90] human rights treaty bodies’ concerns, [6.50] ICCPR violation, [8.50] lawfulness, [8.60] Malaysia declared to be safe third country, [8.90] mandatory and indefinite detention powers conflicting with human rights conventions, [6.40] mandatory detention policy of Australia, [8.80] migration for protection, legality, [8.60] offshore processing, [8.90] Pacific Solution, [8.90] Refugee Convention, [6.40] return, [8.90] rights deprivation due to offshore processing, [8.90] Tampa asylum seekers, [1.110], [8.90] UDHR, [8.60] UN and Australia, [5.80] UN Special Rapporteur, [6.50] unauthorised maritime arrivals see Boat people Universal Periodic Review, [6.50] Australia 1984, treaty practice since, [3.10], [3.20] Aborigines and Torres Strait Islanders see Indigenous rights ambitions, [1.100] anti-terrorism see Anti-terrorism in Australia asylum seekers see Asylum seekers Balfour Declaration, [1.30] boat people see Boat people capacity, international, [3.90] citizenship see Citizenship coastal jurisdiction see Maritime domain of Australia colonisation see Colonisation of Australia Commonwealth see Commonwealth Constitution see Australian Constitution criminal law see International criminal law and Australia; Transnational criminal law in Australia defence force see Australian Defence Force (ADF) documents of less than treaty status, [3.80] economic success, [1.40] external territories see External territories foreign policy see Australian foreign policy Geneva Conventions, [9.30] global ambitions, [1.100] ‘good international citizen’, whether, [1.110]

housing shortage, [8.80] human rights see Human rights in Australia Imperial Conference of 1926, [1.30] international crimes incorporated into domestic law, [9.120] International criminal law see International criminal law and Australia international personality see International personality of Australia jurisdiction see Australian jurisdiction maritime domain see Maritime domain of Australia middle power, as, [1.50] migration see Migration military see Australian Defence Force (ADF) multilateralism, approach to against, [5.60], [5.80] for, [5.70] mutual assistance in criminal matters, [4.140] nationality, [4.50] see also Nationality native title see Native title offshore application of law, [4.10] offshore jurisdiction see Maritime domain of Australia Parliament see Parliament personality see International personality of Australia post-WW2 sea law, [4.10] refugees see Refugees and Australia significance, [1.40] states and territories see States and territories of Australia Statute of Westminster (UK), [1.30] trading partners’ influence on economy, [4.10] transnational criminal law see Transnational criminal law in Australia treaty practice see Australian treaty practice unauthorised maritime arrivals see Boat people war declarations, [1.30] worldwide statistics, place in, [1.40] WW2, [1.30]

Australia–New Zealand Closer Economic Relations Trade Agreement dispute settlement clause, [23.40] Australia’s criminal justice cooperation relationships see also Transnational criminal law in Australia extradition, [10.110] cases, [10.110] dual criminality principle, [10.110]

592    INTERNATIONAL LAW IN AUSTRALIA Australia’s criminal justice cooperation relationships continued legislation, [10.110] regulations, [10.110] UNTOC, [10.110] formal mechanisms, [10.110] examples, [10.110] human trafficking, [10.120] importance, examples, [10.110] informal mechanisms, [10.120] migrant smuggling, [10.120] mutual legal assistance, [10.100], [10.110] legislation, [10.110] made by/responded to any country, [10.110] UNTOC, [10.110] overview, [10.100] Southeast Asia region, contributions to, [10.120] UNTOC, [10.110] Australia’s resources policies and international law biodiversity, [15.100] context, [15.20] continental shelf, [15.90] offshore petroleum resources, [15.90] exclusive economic zone, [15.20], [15.30], [15.120] illegal foreign fishing in, [15.60] marine living resources see Fish, fisheries and fishing; Marine environment protection; Maritime domain of Australia mineral resources, [15.20] uranium, [15.110] nuclear resources, [15.110] overview, [15.10], [15.120] petroleum resources, offshore, [15.90] continental shelf, [15.90] Joint Petroleum Development Area, [15.90] see also Joint Petroleum Development Area post-WW2, [15.20], [15.90] uranium export policy, [15.110], [15.120] India, [15.110] Treaty on the Non-Proliferation of Nuclear Weapons, [15.110] water resources, [15.100] Water Act 2007 (Cth), [15.100] Australian Accounting Standards Board, [14.20] Australian Antarctic Territory (AAT), [22.50], [22.140] ACT laws applicable in, [22.100] administration, [22.100]

Antarctic Treaty and, [22.140] Australian Antarctic Division (AAD), [22.100], [22.140] Australian EEZ, [22.140] Australian Fishing Zone, [22.140] Australian sovereignty not recognised, [22.140] Commonwealth legislation, application in, [22.100] continental shelf, [18.70], [22.140] environment protection, [19.20] HIMI Territory, interaction with, [22.140] history of, [22.50], [22.140] transfer from UK to Australia, [22.50] Whaling in the Antarctic case, [18.180], [19.10], [22.140], [23.90], [23.170]

Australian Constitution executive power exercise consistent with, [3.20] human rights protection, lack of, [6.20] international law’s influence on interpretation, [2.160] judicial opinion, [2.160] judicial concern with constitutionalism, [3.20] overview, [1.20], [2.50] s 51, [4.10] s 61, [3.20] High Court elaborations, [3.20] treaty entry power, [3.20] Australian Defence Force (ADF) see also Military application of Australian law to personnel overseas, [4.150] armed conflict see Australian Defence Force and armed conflict operations see Australian Defence Force operations overview, [12.190] Australian Defence Force and armed conflict international humanitarian and human rights law, [12.170] Al-Skeini case, [12.170] international humanitarian law, [12.150] interoperability, legal, [12.160] law of armed conflict, [12.150] participation, [12.150] coalition, as part of, [12.160] rules of engagement, [12.150] weapons reviews, [12.180] Australian Defence Force law enforcement operations anti-terrorism, [12.90]

INDEX    593 border protection, [12.70] international law, [12.70] LOSC, [12.70] Migration Act, [12.70] procedure, [12.70] Tampa, [12.70] Defence Act 1903 (Cth) pt IIIAAA, [12.90] executive authority and, [12.80] inadequacy of normal law enforcement, [12.90] international law, [12.60] jurisdiction, [12.60] legality, [12.60] off-shore, [12.60] overview, [12.60] Australian Defence Force operations anti-personnel land mines, [12.30] anti-terrorism, [12.90] armed conflict see Australian Defence Force and armed conflict Defence Act 1903 (Cth) pt IIIAAA, [12.90] domestic–international legal interface, [12.20] ‘soft law’, increasing importance, [12.50] treaties signed, ratified and implemented, [12.30] treaties signed but not ratified/ implemented, [12.40] domestic law, application, [12.80] executive authority and, [12.80] law enforcement see Australian Defence Force law enforcement operations legal processes, [12.10] domestic–international legal interface, [12.20]–[12.50] overview, [12.10], [12.190] peace operations see Australian Defence Force peace operations treaties impacting, [12.10] treaties signed, ratified and implemented, [12.30] anti-personnel land mines, [12.30] criminal responsibility, [12.30] Ottawa Convention, [12.30] oversights or gaps, [12.30] treaties signed but not ratified/ implemented, [12.40] ADF acting as though bound, [12.40] Australian Defence Force peace operations East Timor, [12.110] International Force for East Timor, [12.110] land, air and maritime operations, [12.130] UN Security Council Resolution 1264, [12.110], [12.120]

overview, [12.100] peace enforcement, [12.100] peacekeeping, [12.100] UN, [12.100] Charter of the United Nations, [12.100] legal and operational tools, inadequacy, [12.140] national law and, [12.140] Security Council Resolution 1264, [12.110], [12.120] Australian external territories see External territories Australian Fisheries Management Authority, [15.70] Commonwealth Fisheries Harvest Strategy Policy (2007), [15.70] directions by Minister, [15.70] Fisheries Management Act 1991 (Cth), [15.70] objectives, [15.70] Australian foreign policy see also Australian treaty practice ambitions, [1.100] ANZUS Treaty, [1.70] bilateral relationships, [1.70] junior partner, [1.70] Pacific region, [1.70] central dilemma, [1.60] climate change, [1.100] continuity, [1.60] G20, [1.100] global ambitions, [1.100] goals, [1.60] ‘good international citizen’, [1.110] Iraq War, [1.110] Japanese whaling, [1.70] middle power, [1.60], [1.110] multilateral regimes, membership, [1.90] multilateralism, [1.90] New Zealand, [1.70] overview, [1.120] Pacific region, [1.70] pre-Federation, [1.20] prosperity, [1.60] trade agreements with countries/regions, [1.70] regional organisations, membership, [1.80] regionalism, [1.80] rules-based international order, [1.60], [1.70] security, [1.60] security agreements with other countries, [1.70] trade agreements with countries/regions, [1.70] see also International trade law and Australia

594    INTERNATIONAL LAW IN AUSTRALIA Australian foreign policy continued treaty practice see Australian treaty practice US, bilateral security relationship with, [1.70] Western democracy in the Asia-Pacific, [1.80] Australian Human Rights Commission (AHRC) see also Human rights in Australia Commission rename, [6.30] complaints function, [6.40] conciliation, [6.40] functions, [6.30], [6.40] human rights treaties, application, [6.40] jurisdiction, [6.30] powers, [6.30], [6.40] reports, [6.30] support, [6.30] Australian jurisdiction see also Jurisdiction amicus curiae briefs in proceedings before US courts, [4.160] Antarctica, [4.50] whaling, [4.110] barriers to exercise, [4.100] foreign antitrust laws, [4.120] foreign blocking statutes, [4.120] Japanese whaling, [4.110] coastal sea, [4.40] native title see Native title coastal state, [4.40] contemporary issues, [4.130] effects doctrine, [4.90] expansion post-WW2, [4.10], [4.20] external territories, [4.40] extraterritoriality, presumption against, [4.40] foreign blocking statutes/antitrust laws, [4.120] law of the sea, [4.40] maritime domain see Maritime domain of Australia military, [4.150] mutual assistance in criminal matters, [4.140] nationality-based jurisdiction, [4.50] Antarctica, [4.50] multilateral conventions, [4.50] national of state, who/what is, [4.50] nationality principle, [4.50] native title see Native title non-territorial bases, [4.40] passive personality principle, [4.60] protective principle, [4.80]

territorial jurisdiction, [4.40] subjective/objective territorial jurisdiction, [4.40] territorial principle, [4.40] territorial sea, [4.40] universal jurisdiction, [4.70] Australian treaty practice see also Australian foreign policy 1984, since, [3.10], [3.20] 1996 reforms, [2.60], [3.40] acts implementing treaties, [2.70] anti-terrorism, [11.20] anti-weapons, [5.50], [11.20], [11.90] ANZUS Treaty, [1.70] Australian Constitution, [3.20] bringing treaty into force, [3.50] colonial, [1.20] Commonwealth, [3.20] Council of Australian Governments, [3.20] criticisms begun in 1980s, [3.40] ‘democratic deficit’ in treaty-making pre-1996, [3.40] ‘democratic’ reforms, [3.40] dualist and transformation approaches, [2.40] early, [1.20] effect of treaties on domestic law, [2.70] executive’s power, [2.60] external affairs power, [2.90] federal government’s implementation power, requirements for, [2.90] force, bringing treaty into, [3.50] foreign policy see Australian foreign policy human rights treaties, application, [6.40] Imperial government, [1.20] implementation of treaties, [2.80] legislation, by, [2.70], [2.90] tests, [2.90] military see Australian Defence Force operations normal process, [3.40] overview, [3.10], [3.20], [3.90] Parliament’s role, [2.60], [3.20], [3.30], [3.40] pre-WW1, [1.20] preferential trade agreements, [13.90] process, [3.40] reforms, [2.60], [3.20], [3.40] reservations to treaties, [3.60] signature of treaties, [3.50] Standing Committees, [3.40] states and territories, [3.20] treaty-making power, [2.60] achievement, [1.30] ‘treaty veil’, High Court preservation, [2.90]

INDEX    595 VCLT see Vienna Convention on the Law of Treaties (1969) (VCLT) weaponry-related, [5.50], [11.20], [11.90] Balfour Declaration, [1.30] Bali Process, [10.120]

Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, [19.70] Basic Treaty of Friendship and Co-operation between Australia and Japan dispute settlement clause, [23.40] Biodiversity conservation Ashmore and Cartier Islands, [22.120] Australia’s Biodiversity Conservation Strategy, [19.110] biodiversity, concept of, [19.110] Bonn Convention, [19.100] Convention on Biological Diversity, [19.110], [19.180] Coral Sea Islands, [22.120] ecosystem diversity, [19.110] endangered species, [19.100] external territories, [22.120] genetic diversity, [19.110] HIMI Territory, [22.120] international environment law, [19.90]–[19.110] List of Wetlands of International Importance, [19.110] marine biodiversity conservation, [17.100] marine reserves, [22.120] Nagoya Protocol, [19.110] Ramsar Convention, [19.110] Ramsar wetlands, [15.100], [19.110], [22.120] species diversity, [19.110] species protection, [19.100] threatened species, [19.110] Water Act 2007 (Cth), [15.100] Boat people see also Asylum seekers; Migrants; Refugees; Refugees and Australia ‘chain refoulement’, [8.90] detention see Immigration detention excision policy, [8.70] fast-track review system, [8.70] human rights, [8.90] mandatory detention see Immigration detention migration, excision from, [8.70] Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), [8.70]

offshore processing, [8.90] Pacific Solution, [8.90] people smuggling see People smuggling politicians, [8.70] rights deprivation due to offshore processing, [8.90] Tampa asylum seekers, [1.110], [8.90] temporary protection visas, [8.90] unauthorised maritime arrivals, [8.70] Vietnamese, 1976–1981, [8.70] waves, [8.70], [8.90] Border protection ADF operations, [12.70] international law, [12.70] LOSC, [12.70] Migration Act, [12.70] procedure, [12.70] Tampa, [12.70] British Empire see also Commonwealth of Nations Balfour Declaration, [1.30] British Commonwealth of Nations, [1.30] colonial foreign policy interests, [1.20] colonies’ autonomy, [1.30] colonies’ commercial negotiation freedom, [1.20] colonies’ political treaties, [1.20] Imperial Conferences, 1923 and 1926, [1.30] Imperial view of Australians, [1.20] post-WW1, [1.30] Statute of Westminster (UK), [1.30] treaty-making power, [1.20] Carriage by air see International carriage by air Carriage of goods by sea, [14.50] Australian legislation, [14.50] cases, [14.50] conventions, rules and protocols, [14.50] Hague–Visby Rules, [14.50] regulatory regime fragmented, [14.50] Rotterdam Rules, [14.50] uniformity, [14.50]

CEDAW see Conventions, covenants, declarations, agreements and protocols Chicago Convention, [20.10], [20.70], [20.150] absolute air sovereignty, [20.60], [20.80] application of provisions domestically, [20.70] background, [20.70] civil aircraft, application to, [20.70] economic objectives, [20.70]

596    INTERNATIONAL LAW IN AUSTRALIA

Chicago Convention continued five freedoms of the air, [20.70], [20.80] International Civil Aviation Organization, establishing, [20.90] public international air law, [20.40] sovereignty of territorial airspace, [20.60] standards and recommended practices (SARPs), [20.90] technical objectives, [20.70] Children asylum seekers, [8.50] CRC, [2.170], [6.30], [6.40], [8.20] refugees, [8.50] Teoh case, [2.170] Christmas Island, [22.80] Administrator of the IOT, [22.100], [22.130] Australian external territory, [22.10], [22.80] Australian responsibilities, [22.130], [22.150] Commonwealth legislation, application in, [22.100] definition of Australia, included in, [22.100] detention centre, [22.130] governance arrangements, [22.130] history of colony, [22.80] Indian Ocean Territories (IOT), [22.10], [22.100], [22.130] maritime boundary delimitation agreements, [22.110] phosphate reserves, [22.110], [22.130] self-determination, [22.130] transfer from Singapore to Australia, [22.80] Western Australian laws applicable in, [22.100]

CISG see United Nations Convention on Contracts for the International Sale of Goods (CISG) Citizenship see also Nationality Australian citizen, diplomatic protection, [8.40] Australian law, [8.30] allegiance to Australia, [8.30] citizenship acquisition, [8.30] citizenship by birth, descent or residence, [8.30] citizenship test, [8.30] development, [8.30] jus soli and jus sanguinis, [8.30] legislation, [8.30] multiple citizenship, [8.30]

revocation of citizenship, [8.30] terrorism, [8.30] Australians prisoners in foreign country, return of, [8.40] citizens and foreigners, rights of, [8.20] David Hicks case, [8.40] dual citizens, diplomatic immunity, [16.200] ‘good international citizen’, Australia as, [1.110] nationality, distinguished, [8.20] overview, [8.100] Climate change Australia, [1.110] Australian legislation, [19.170] Canada, [1.110] carbon net neutrality, aim of, [19.160] ‘Direct Action’ policy, [19.170] emissions reduction, [19.150] Emissions Reduction Fund (ERF), [19.170] global peaking of emissions, aim of, [19.160] good international citizenship and, [1.100] industrialised nations, [19.140] international environment law, [19.140]–[19.160] implementation in Australia, [19.170] Kyoto Protocol, [19.140], [19.150] nationally determined contributions (NDCs), [19.160] non-industrialised nations, [19.140] Paris Agreement, [19.160], [19.180] Renewable Energy Target (RET), [19.170] UN and Australia, [5.70], [5.80] UN Framework Convention on Climate Change (UNFCCC), [19.140], [19.160], [19.180] Cocos (Keeling) Islands, [22.70] Administrator of the IOT, [22.100], [22.130] Australian external territory, [22.10], [22.70] Australian responsibilities, [22.130], [22.150] Clunies-Ross family ruling, 22.130] Commonwealth legislation, application in, [22.100] definition of Australia, included in, [22.100] governance arrangements, [22.130] history of colony, [22.70], [22.130] human rights violations, [22.130] Indian Ocean Territories (IOT), [22.10], [22.100], [22.130] self-determination, [22.130]

INDEX    597 transfer from Singapore to Australia, [22.70] Western Australian laws applicable in, [22.100] Colonisation of Australia cases, early 19th century, [7.20] cultivation of land, [7.20] dispossession of natives, [7.20] foreign policy interests pre-Federation, [1.20] Imperial government and, [1.20] international personality, steps toward, [1.20] ‘settled’, [7.20] settlement and conquest, distinguished, [7.20] sovereignty, [7.20] sparse population, false premise, [7.20] terra nullius, [2.140], [7.20] treaty power absent, [1.20] Commercial law see International commercial law and Australia Commission on the Limits of the Continental Shelf recommendations, [18.70] Rules of Procedure, [18.70] Scientific and Technical Guidelines, [18.70] Common law in Australia human rights, [6.20] cases illustrating weakness, [6.20] international law’s influence on, [2.140] cases illustrating, [2.140] native title (since 1992), [7.40] Mabo v Queensland [No 2], [2.140] waters, [7.50] Commonwealth see also Australia external affairs power, dispute with states re, [2.90], [3.20] Commonwealth of Nations British Empire, [1.30] intra-Commonwealth relations not international, [1.30] Statute of Westminster (UK), [1.30] Competition law Australia, [4.90] effects doctrine, [4.90] US, [4.90] Constitution see Australian Constitution Consular relations see also Diplomatic relations consular officials diplomatic agents, distinguished, [16.140] types, [16.140]

consular posts location, [16.140] types, [16.140] convention, [16.10], [16.140] honorary consuls, [16.170] diplomatic agents distinguished from consular officials, [16.140] honorary consuls, [16.170] immunities and privileges, [16.140] jurisdiction, immunity from, [16.160] search, inviolability and immunity from, [16.150] Vienna Convention on Consular Relations, [16.10], [16.140] honorary consuls, [16.170] Contiguous zone Ashmore and Cartier Islands, [22.110] definition, [18.50] Continental shelf Australian, [15.90], [17.10], [17.70], [18.70], [22.10], [22.110], [22.140] offshore petroleum resources, [15.90] UN Convention, [17.10] Australian Antarctic Territory, [18.70], [22.140] coastal state having exclusive rights, [18.70] Commission on the Limits of the Continental Shelf, [18.70], [22.140] delimitation of, [18.100], [22.110] extended continental shelf (ECS), [18.70], [22.10] external territories and, [22.10], [22.110], [22.140] international recognition, [18.70] sovereign rights, [18.70] uninhabited islands and rocks and, [18.30]

Convention on Genocide see Conventions, covenants, declarations, agreements and protocols Convention on the Law of the Sea (LOSC), [17.10] ADF operations, [12.10], [12.60], [12.70] airspace, sovereignty of coastal state extending to, [20.60] arbitration list of Australian arbitrators, [23.170] provision for, [23.40] Australian involvement in negotiation, [18.10] background, [18.10] border protection, [12.70] Commission on the Limits of the Continental Shelf, [18.70] deep seabed, regulation of, [15.20], [18.130]

598    INTERNATIONAL LAW IN AUSTRALIA

Convention on the Law of the Sea (LOSC) continued delimitation of boundaries see Maritime boundaries dispute settlement, [23.30], [23.40], [23.120] Australia as party, [23.120]–[23.150], [23.180] Australian arbitrators, [23.170] conciliation, [23.30] ITLOS see International Tribunal for the Law of the Sea (ITLOS) maritime boundaries, [23.150] Southern Bluefin Tuna case, [18.180], [19.10], [23.130], [23.180] Volga case, [19.10], [23.140] future of, [18.200] high seas, regulation of, [18.120], [18.140] marine environment protection, [18.180] marine living resources, offshore, [15.30], [15.40] marine scientific research, [18.160], [18.170] maritime zones see Maritime zones Part XI Implementation Agreement, [18.10], [18.130] rectification of omissions, [18.200] transit passage through international straits, [18.150] Convention Relating to the Regulation of Aerial Navigation see Paris Convention Convention Relating to the Status of Refugees (Refugee Convention) Australia’s mandatory detention policy, [8.80] Australian ratification, [8.70] Bill of Rights, [8.50] Convention Relating to the Status of Stateless Persons, [8.20] court case on whether refugee, [3.70] entry into state territory, [8.60], [8.90] immigration detention, [8.80] Migration Act, [3.70], [6.40], [8.70] Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), [8.70] migration for protection, [8.60] naturalisation facilitation, [8.30] non-refoulement obligation, [8.50] Pacific Solution, [8.90] Protocol Relating to the Status of Refugees, [8.50] refugee, definition, [8.50] temporariness of refugeeism, [8.50] UNHCR see United Nations High Commissioner for Refugees (UNHCR)

Conventions, covenants, declarations, agreements and protocols Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (Moon Agreement), [21.20] air carriage, [20.100]–[20.140] Australia–New Zealand Closer Economic Relations Trade Agreement, [23.40] Bali Declaration on People Smuggling, Trafficking in Persons and Related Transnational Crime, [10.120] Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, [19.70] Bonn Convention, [19.100] Chicago Convention see Chicago Convention climate change Kyoto Protocol, [19.140], [19.150] Paris Agreement, [19.160], [19.180] UN Framework Convention on Climate Change, [19.140], [19.160], [19.180] commercial law, [14.30] consular relations, [16.10], [16.140], [16.170] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, [2.80], [5.80], [8.60] Optional Protocol to the Convention against Torture (OPCAT), [6.50], [8.80] Convention for the Conservation of Southern Bluefin Tuna, [15.50], [23.130] Convention for the Unification of Certain Rules Relating to International Carriage by Air Montreal Convention (2003), [20.100]–[20.140] Warsaw Convention (1929), [20.100]–[20.140] Convention on Biological Diversity (CBD), [19.110], [19.180] Convention on International Liability for Damage Caused by Space Objects, [21.20], [21.120] Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), [19.100] Convention on the Conservation of Antarctic Marine Living Resources, [15.50], [22.140] Convention on the Conservation of Migratory Species of Wild Animals (Bonn Convention), [19.100]

INDEX    599 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), [5.60], [6.40], [6.50] Convention on the Law of the Sea see Convention on the Law of the Sea (LOSC) Convention on the Prevention and Punishment of the Crime of Genocide (Convention on Genocide), [2.60], [2.120], [6.30] Convention on the Reduction of Statelessness, [8.20] Convention on the Rights of Persons with Disabilities (CRPD), [6.40], [6.50] Convention on the Rights of the Child (CRC), [2.170], [6.30], [6.40], [8.20] Convention on Wetlands of International Importance Especially as Waterfowl Habitat (Ramsar Convention), [19.110] Convention Relating to the Regulation of Aerial Navigation see Paris Convention Convention Relating to the Status of Refugees see Convention Relating to the Status of Refugees (Refugee Convention) Convention Relating to the Status of Stateless Persons, [8.20] Declaration on the Human Environment (Stockholm Declaration), [19.30] diplomatic relations see Vienna Convention on Diplomatic Relations dispute settlement Hague Conventions for the Pacific Settlement of International Disputes, [23.30] International Convention on the Settlement of Investment Disputes between States and Nationals of Other State, [23.40] fishing, [15.60] Geneva Conventions see Geneva Conventions Hague Conventions for the Pacific Settlement of International Disputes, [23.30] Hague Protocol, [20.100] Havana (Pan American) Convention, [20.60] hazardous substances Basel Convention, [19.70] PIC Convention, [19.80] POPs Convention, [19.80], [19.180] human right see Human rights treaties, declarations, conventions and covenants International Air Services Transit Agreement, [20.80]

International Convention for the Regulation of Whaling, [3.70], [19.100], [22.140], [23.90] International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), [6.30], [7.30] International Convention on the Settlement of Investment Disputes between States and Nationals of Other State, [23.40] International Covenant on Civil and Political Rights (ICCPR), [3.70], [6.30], [6.40], [6.50], [8.20], [8.50], [8.80], [23.40] International Covenant on Economic, Social and Cultural Rights (ICESCR), [6.30], [6.40], [6.50] Kyoto Protocol, [19.140], [19.150] marine living resources, [15.50], [22.140] Montreal Protocol, [20.100] Montreal Protocol on Substances That Deplete the Ozone Layer, [19.130] Moon Agreement, [21.20] Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from Their Utilization, [19.110] nuclear, [15.110] Optional Protocol to the Convention against Torture (OPCAT), [6.50], [8.80] ozone layer Montreal Protocol on Substances That Deplete the Ozone Layer, [19.130] Vienna Convention for the Protection of the Ozone Layer, [19.130], [23.30] Paris Agreement on Climate Change, [19.160], [19.180] Paris Convention see Paris Convention PIC Convention, [19.80] Plastic Explosives Convention, [11.20] POPs Convention, [19.80], [19.180] Protocol against the Smuggling of Migrants by Land, Sea and Air, [8.60], [10.50] Protocol Relating to the Status of Refugees, [8.50] see also Convention Relating to the Status of Refugees (Refugee Convention) Ramsar Convention, [19.110] Refugee Convention see Convention Relating to the Status of Refugees (Refugee Convention) regional fisheries management organisation establishment agreements, [15.50] Rio Declaration on Environment and Development, [18.180], [19.30]

600    INTERNATIONAL LAW IN AUSTRALIA Conventions, covenants, declarations, agreements and protocols continued Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (PIC Convention), [19.80] Seabed Agreements with Indonesia, [18.110] shipping, [17.120] Stockholm Declaration, [19.30] Stockholm Persistent Organic Pollutants Convention (POPs Convention), [19.80], [19.180] Sunrise Unitisation Agreement, [18.110] Trans-Pacific Partnership Agreement, [13.90], [13.100], [23.40] Transit Agreement, [20.80] United Nations Convention on Contracts for the International Sale of Goods (CISG), [14.40] United Nations Convention on the Law of the Sea see Convention on the Law of the Sea (LOSC) United Nations Declaration on the Rights of Indigenous Peoples (DRIP), [7.60] implementation, towards, [7.150] United Nations Framework Convention on Climate Change (UNFCCC), [19.140], [19.160], [19.180] Universal Declaration of Human Rights (UDHR), [6.30], [8.20], [8.60] UNTOC see United Nations Convention against Transnational Organized Crime (UNTOC) Vienna Convention for the Protection of the Ozone Layer, [19.130], [23.30] Vienna Convention on Consular Relations, [16.10], [16.140] honorary consuls, [16.170] Vienna Convention on Diplomatic Relations see Vienna Convention on Diplomatic Relations Vienna Convention on the Law of Treaties see Vienna Convention on the Law of Treaties (1969) (VCLT) Warsaw Convention, [20.100]–[20.140] whaling, [3.70], [19.100], [22.140], [23.90] World Heritage Convention, [19.50] Coral Sea Islands, [22.90] ACT laws applicable in, [22.100] Australian external territory, [22.10], [22.90] Commonwealth legislation, application in, [22.100] Coral Sea Commonwealth Marine Reserve, [22.120] environment protection, [22.120]

history of colony, [22.90] maritime boundary delimitation agreements, [22.110] Ramsar wetlands, [22.120] transfer from UK to Australia, [22.90] Council of Australian Governments (COAG) treaty-relevant principles, [3.20] Counter-terrorism see Anti-terrorism Courts Australian Constitution, [3.20] High Court see High Court of Australia international see International Criminal Court (ICC); International Court of Justice (ICJ) international human rights commitments ignored by, [6.40] Covenants see Conventions, covenants, declarations, agreements and protocols

CRC see Conventions, covenants, declarations, agreements and protocols Criminal law Australia see Australia’s criminal justice cooperation relationships; International law and Australia; Transnational criminal law in Australia crimes at sea, [17.90] international see International criminal law transnational see Transnational criminal law Cross-border insolvency, [14.60]

CRPD see Conventions, covenants, declarations, agreements and protocols David Hicks case, [8.40], [9.110] Declarations see Conventions, covenants, declarations, agreements and protocols Deep seabed see Seas and seabed Diplomatic relations see also Consular relations alcohol screening breath test, [16.90] archives and documents etc, inviolability, [16.80] consular officials distinguished from diplomatic agents, [16.140] convention see Vienna Convention on Diplomatic Relations diplomatic bag, [16.80]

INDEX    601 dual citizens, [16.200] immunities archives and documents etc, inviolability, [16.80] family members, [16.130] jurisdiction, immunity from, [16.90] justification for, by convention, [16.20] limited waiver, [16.100] maintenance, [16.100] meaning, [16.20] period, [16.110] search, inviolability and immunity from, [16.70] waiver, [16.100] jurisdiction, immunity from, [16.90] sending state, not, [16.100] obligations of diplomatic agents, [16.50] privileges, [16.120] justification for, by convention, [16.20] meaning, [16.20] tax exemption, [16.120] tax exemption exceptions, [16.120] reciprocity, [16.30], [16.120] recognition of diplomatic status, [16.40] Australia, [16.40] search, inviolability and immunity from, [16.70] Discrimination Aborigines and Torres Strait Islanders see Indigenous rights; Racial discrimination CEDAW, [5.60], [6.40], [6.50] CRPD, [6.40], [6.50] racial see Racial discrimination Dispute settlement advisory opinions, [23.160] arbitration, [23.40] arbitration clauses, [23.40] Australian involvement, [23.180] advisory opinions, [23.160] conciliation, [23.30] judges and arbitrators, [23.170] negotiation, [23.20] party, as, [23.50]–[23.100], [23.120]–[23.150] bilateral investment treaties, [23.40] clauses in treaties, [23.40] conciliation, [23.30] General Act for the Pacific Settlement of International Disputes, [23.30], [23.60] Hague Conventions, [23.30] human rights treaties, [23.40] ICJ see International Court of Justice (ICJ) international disputes, [23.10], [23.180] investor–state dispute settlement (ISDS), [23.40], [23.180]

LOSC, under, [23.40] Australia as party, [23.120]–[23.150], [23.180] Australian arbitrators, [23.170] conciliation, [23.30] ITLOS see International Tribunal for the Law of the Sea (ITLOS) maritime boundaries, [23.150] Southern Bluefin Tuna case, [18.180], [19.10], [23.130], [23.180] Volga case, [19.10], [23.140] mediation, [23.30] negotiation and consultation, [23.20] treaties, [23.30] UNCITRAL Arbitration Rules, [23.40] United Nations Charter, [23.10] WTO Dispute Settlement Body (DSB), [23.110] WTO Dispute Settlement Understanding, [23.40] Documents of less than treaty status, [3.80] appropriateness for purpose, assessment, [3.80] Australian practice, [3.80] benefits, [3.80] binding, politically and morally if not legally, [3.80] convenience not substance, [3.80] differentiation from treaties, [3.80] language practices, [3.80] memorandum of understanding, [3.80] parties, [3.80] shortcomings, [3.80] uses, [3.80] wording, [3.80] Domestic law relationship with international law see International and domestic law, relationship

DRIP see Conventions, covenants, declarations, agreements and protocols East Timor see Timor-Leste Economic law see International economic law EEZ see Exclusive economic zone (EEZ) Electronic transactions, [14.60] Environmental law see also Biodiversity conservation Australian law, [19.180] international see International environmental law marine environment protection see Marine environment protection

602    INTERNATIONAL LAW IN AUSTRALIA Exclusive economic zone (EEZ) Australian Antarctic Territory, [22.140] Australian EEZ, [15.20], [15.30], [15.120], [17.60], [18.60], [22.10], [22.110] illegal foreign fishing in, [15.60] coastal state having jurisdiction, [18.60] definition, [18.60] delimitation, [18.100], [22.110] treaties, [18.110], [22.110] external territories, [22.10], [22.110], [22.140] uninhabited islands and rocks, [18.30], [22.10] Export see Australia’s resources policies and international law; International trade law and Australia External territories AAT see Australian Antarctic Territory (AAT) acquisition of territorial sovereignty, [22.20]–[22.90] Ashmore and Cartier Islands see Ashmore and Cartier Islands Australia’s rights and responsibilities, [22.110], [22.150] inhabited territories, [22.130] maritime zones, [22.110] uninhabited territories, [22.120] Christmas Island see Christmas Island Cocos (Keeling) Islands see Cocos (Keeling) Islands Commonwealth legislation, application in, [22.100] constitutional power to make laws for, [22.20], [22.100] continental shelf, [18.70], [22.10], [22.110], [22.140] Coral Sea Islands see Coral Sea Islands current Australian territories, [22.10] environment protection, [22.120] exclusive economic zone (EEZ), [22.10], [22.110] former territories, [22.10] Heard and McDonald Islands see Heard and McDonald Islands (HIMI Territory) independent former territories, [22.10] Indian Ocean Territories see Christmas Island; Cocos (Keeling) Islands legislative framework for exercise of sovereignty, [22.100] marine environment protection, [22.120] maritime boundary delimitation agreements, [22.110] maritime zones, [22.10], [22.110] natural resources, rights to, [22.110]

Norfolk Island see Norfolk Island self-determination, right to, [22.130] State laws applicable in, [22.100] transferred from UK to Australia, [22.10], [22.30]–[22.60] legal basis of UK title questioned, [22.100] uninhabited, [22.10] Australia’s responsibilities, [22.120] Extradition cases, [10.110] dual criminality principle, [10.110] legislation, [10.110] regulations, [10.110] terrorist suspects, [11.20] UNTOC, [10.110] Financial law see International monetary law Fish, fisheries and fishing see also Maritime domain of Australia agreement re fish stocks, [15.40], [18.10], [18.120] Australian Fishing Zone establishment, [15.70] exempted areas, [15.80] Fisheries Management Act 1991 (Cth), [15.70] Torres Strait, [15.80] fish stocks agreement, [15.40], [18.10], [18.120] fish stocks, straddling and highly migratory, [15.40] regional fisheries management organisations, [15.50] fisheries Australian fisheries law and policy, [15.70] Australian Fisheries Management Authority, [15.70] Commonwealth Fisheries Harvest Strategy Policy (2007), [15.70] Fisheries Management Act 1991 (Cth), [15.70] foreign boats in Australian, [15.70] regional fisheries management organisations, [15.50] fishing Australian Fishing Zone, [15.70] compliance and enforcement agreements, [15.60] illegal, unreported and unregulated, [15.60] LOSC, [15.20] agreement re fish stocks, [15.40] regional fisheries management organisations, [15.50]

INDEX    603 agreements, [15.50] seabed, [15.20] Southern Bluefin Tuna Case, [18.180], [19.10], [23.130], [23.180] Torres Strait, [15.80]

Fisheries Management Act 1991 (Cth), [15.70] Australian Fisheries Management Authority, [15.70] Australian Fishing Zone, [15.70] exempted areas, [15.80] Commonwealth–state agreements, [15.70] enforcement, [15.70] extraterritorial application, [15.70] foreign boats in Australian fisheries, [15.70] international law, [15.70] Foreign policy see Australian foreign policy G20 see Group of Twenty (G20) General Agreement on Tariffs and Trade (GATT), [13.10] dispute about beef, [13.70] negotiations, Australia in, [13.20] Genetically modified organisms (GMOs) biodiversity threats, [19.110] Gene Technology Act 2000 (Cth), [19.110] regulation, [19.20], [19.110]

Geneva Conventions Australia, [9.30] Australian journalist killed in East Timor, [9.30] cases, [9.30] legislative implementation, [9.30] David Hicks case, [9.110] Fourth Geneva Convention, [9.30] grave breaches, [9.30] Iraq War prisoners, [9.30] law of the sea, [18.10] overview, [9.30] Goods air carriage see International carriage by air carriage by sea see Carriage of goods by sea CISG see United Nations Convention on Contracts for the International Sale of Goods (CISG) Group of Twenty (G20), [1.40], [1.100], [14.20]

Hague Conventions for the Pacific Settlement of International Disputes, [23.30]

Havana (Pan American) Convention, [20.60] Hazardous substances Australian waste disposal practices, [19.60] Basel Convention, [19.70] chemicals regulation, [19.80] import/export bans, [19.70] international environmental law, [19.60]–[19.80] PIC Convention, [19.80] POPs Convention, [19.80], [19.180] trade and disposal of, [19.70] transboundary harm, [19.60] Heard and McDonald Islands (HIMI Territory), [22.60] AAT, interaction with, [22.140] ACT laws applicable in, [22.100] administration, [22.100] Antarctic Treaty, outside area of, [22.140] Australian external territory, [22.10], [22.60] Commonwealth legislation, application in, [22.100] environment protection, [22.120], [22.140] history of colony, [22.60] legal basis of UK title questioned, [22.100] maritime boundary delimitation agreements, [22.110] maritime zones, [22.110] transfer from UK to Australia, [22.60] World Heritage listing, [22.120] Hicks, David, [8.40], [9.110] High Court of Australia Australian Constitution s 61, elaboration, [3.20] constitutionalism, concern with, [3.20] introduction, overview, [1.20] nationality principle, [4.50] ‘treaty veil’, preservation, [2.90] High seas see Seas and seabed HIMI Territory see Heard and McDonald Islands (HIMI Territory) Housing shortage in Australia, [8.80] Human rights Asia-Pacific region, [5.60] Australia, in see Human rights in Australia citizens and aliens, states’ obligations to, [8.20] Cocos (Keeling) Islands, issues in, [22.130]

604    INTERNATIONAL LAW IN AUSTRALIA Human rights continued David Hicks case, [8.40], [9.110] dispute settlement under treaties, [23.40] Geneva Conventions see Geneva Conventions international humanitarian and human rights law, [12.170] Al-Skeini case, [12.170] International Labour Organization, [6.30] international system see International human rights system nationality and, [8.20] nationality as human right, [8.20] treaties etc see Human rights treaties, declarations, conventions and covenants Human rights in Australia see also Human rights; Indigenous rights 1984, since, [6.10] 1984 and before, [6.10] anti-terrorism, [11.140] Asia-Pacific region, [5.60] asylum seekers, [8.90] Australia’s human rights record, [6.50] Bill of Rights, [6.30] challenges, [6.60] Charter of Human Rights and Responsibilities Act 2006 (Vic), [6.30] Cocos (Keeling) Islands, issues in, [22.130] Commissions, [6.30] Committees, [6.30] common law, [6.20] cases illustrating weakness, [6.20] Commonwealth Human Rights Act proposal, [6.30] Commonwealth/state legislation prioritisation, [6.30] concerns of treaty bodies, [6.50] constitutional protections, [6.20] courts ignoring international commitments, [6.40] David Hicks case, [8.40], [9.110] dispute settlement under treaties, [23.40] emerging issues for Australia, [6.60] executive branch of government’s power expansion, [6.60] federal state, difficulties/excuses associated with, [6.30] freedom of expression, laws impinging on, [6.60] future, [6.60] ‘good international citizen’, whether Australia is, [1.110] Human Rights Act 2004 (ACT), [6.30] immigration detention, [8.80] indefinite detention of classes of persons, [6.60]

International Labour Organization, [6.30] international laws etc applied in Australia, [6.30] international obligations deleted from domestic laws, [6.40] international scrutiny, [6.50] international standards, Australia’s relationship with, [6.10], [6.30], [6.50] international system’s implementation monitoring mechanisms, [6.50] League of Nations, [6.30] legislation, [6.30] liberty deprivation, [6.20] National Human Rights Action Plan, [6.50] overview, [6.10], [6.60] parliamentary and administrative approach, [6.20] periodic reports system, [6.50] pillars, [6.60] positive indications for the future, [6.60] race relations in Australia, commentary on and reaction to same, [6.50] Racial Discrimination Act 1975 (Cth), [6.30] refugees, [8.90] scrutiny, international, [6.50] state/territory legislation, [6.30] terrorism, [11.140] treaties, accepted and not, [6.30] treaties etc see Human rights treaties, declarations, conventions and covenants treaty bodies’ findings, [6.50] UDHR, [6.30] UN, [5.60], [5.80], [6.30] rights covenants etc ratified by Australia, [6.30] UN Special Rapporteurs in Australia, [6.50] UN’s Universal Periodic Review, [6.50] violations of human rights by Australia, [6.50] Human rights treaties, declarations, conventions and covenants see also Conventions, covenants, declarations, agreements and protocols; Human rights; Treaties AHRC’s role, [6.40] Australian law implementation of commitments under, [6.40] concerns of treaty bodies re, [6.50] CEDAW, [5.60], [6.40], [6.50] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, [2.80], [5.80], [8.60] OPCAT, [6.50], [8.80]

INDEX    605 Convention on Genocide, [6.30] conventions not signed by Australia, [6.30] CRC, [6.30], [6.40] CRPD, [6.40], [6.50] dispute settlement under treaties, [23.40] ICCPR, [3.70], [6.30], [6.40], [6.50], [8.50], [8.80] ICERD, [6.30], [7.30] ICESCR, [6.30], [6.40], [6.50] international scrutiny, [6.50] OPCAT, [6.50] periodic reports system, [6.50] Refugee Convention, [3.70], [6.40] treaty bodies’ findings re Australia, [6.50] UDHR, [6.30], [8.20], [8.60] Human trafficking Australia–Asia Program to Combat Trafficking in Persons, [10.120] Australian prevention of, [10.80], [10.120], [10.130] Bali Declaration on People Smuggling, Trafficking in Persons and Related Transnational Crime, [10.120] people smuggling, confusion with, [10.50] protocol see Trafficking in Persons Protocol ‘trafficking in persons’, definition, [10.40] ICC see International Criminal Court (ICC)

ICCPR see Conventions, covenants, declarations, agreements and protocols ICERD see Conventions, covenants, declarations, agreements and protocols ICESCR see Conventions, covenants, declarations, agreements and protocols ICJ see International Court of Justice (ICJ) IMF see International Monetary Fund (IMF) Immigration see Asylum; Asylum seekers; Boat people; Migration; Refugees; Refugees and Australia Immigration detention see also Boat people; Nauru alternatives, [8.80] arbitrary, whether, [8.80] asylum seekers, of, [8.80] Australia’s mandatory detention policy, [8.80] boat people, [8.80] case, [8.80] community detention, [8.80] human rights, [8.80]

ICCPR art 9 contravention, [8.80] Malaysia, [8.90] Nauru, [8.90] see also Nauru offshore, [8.90] oversight possibilities, [8.80] Pacific Solution, [8.90] Papua New Guinea, [8.90] Refugee Convention, [8.80] release options, [8.80] review, [8.80] Immunity see Privileges and immunities Indian Ocean Territories see Christmas Island; Cocos (Keeling) Islands Indigenous rights see also Native title; Racial discrimination 1967 referendum in Australia, [7.40] Australian Aborigines 1967 referendum and after, [7.40] cases, [7.20] early European view, [7.20] land ownership, [7.20] Mabo v Queensland, [7.40] Mabo v Queensland [No 2], [2.140], [7.20], [7.40] native title see Native title Royal Commission into Aboriginal Deaths in Custody, [7.140] self-determination see self-determination below sparse population, false premise, [7.20] Australian cases change of view, [7.20] earliest 20th century cases, [7.20] early 19th century cases, [7.20] extinguishment doctrine, [7.20] Mabo v Queensland, [7.40] Mabo v Queensland [No 2], [2.140], [7.20], [7.40] native title see Native title sovereignty, [7.20] Australian colonisation cases, early 19th century, [7.20] cultivation of land, [7.20] dispossession of natives, [7.20] ‘settled’, [7.20] settlement and conquest, distinguished, [7.20] sovereignty, [7.20] sparse population, false premise, [7.20] terra nullius, [2.140], [7.20] Australian Constitution, discrimination in, [7.40] discovery doctrine, [7.10], [7.20] Australia, [7.20] Christianity, [7.20]

606    INTERNATIONAL LAW IN AUSTRALIA Indigenous rights continued destructiveness, [7.10], [7.20] exceptions to European view, [7.20] domestic law, [7.10] DRIP, [7.60] implementation, towards, [7.150] Europeans in colonial times, [7.20] future issues, [7.160] ICERD, [6.30], [7.30] international law’s failure to benefit, [7.10] land, right to see Native title Mabo v Queensland, [7.40] Mabo v Queensland [No 2], [2.140], [7.20], [7.40] National Congress of Australia’s First Peoples, [7.150] native title see Native title racial discrimination see Racial discrimination Royal Commission into Aboriginal Deaths in Custody, [7.140] self-determination, [7.120] Australian developments, [7.140] Australian legislation, [7.140] DRIP implementation, towards, [7.150] international recognition lacking, [7.130] National Congress of Australia’s First Peoples, [7.150] Royal Commission into Aboriginal Deaths in Custody, [7.140] setbacks, [7.140] Sorry Statement, [7.150] settlement and conquest, distinguished, [7.20] UN convention and declaration, [6.30], [7.30], [7.60] DRIP implementation, towards, [7.150] waters, right to see Native title Indonesia archipelagic waters, [18.80] delimitation treaties with, [18.110] Seabed Agreements with, [18.110] Timor Gap Treaty, [19.10], [23.80] Insolvency cross-border insolvency, [14.60] International air law absolute air sovereignty, [20.60], [20.80] challenges to principle of, [20.60] Chicago Convention, [20.60], [20.80] air (aeronautical) law, definition, [20.20] aviation law, definition, [20.30] aviation regulation, [20.10] carrier’s liability see International carriage by air

Chicago Convention, [20.10], [20.40], [20.70]–[20.90], [20.150] commercial aviation regulation, [20.10] definition, [20.40] five freedoms of the air, [20.80] globalisation of aviation, [20.150] harmonisation, requirement for, [20.10] Havana (Pan American) Convention, [20.60] ICAO see International Civil Aviation Organization (ICAO) International Air Services Transit Agreement, [20.80] international carriage see International carriage by air international conventions, [20.40], [20.100] Montreal Convention see International carriage by air Paris Convention, [20.10], [20.40], [20.60], [20.80] permission to into or over foreign territories, [20.80] private international air law, [20.100] public international air law, [20.40] sovereignty of territorial airspace, [20.60] standards and recommended practices (SARPS), [20.90] Transit Agreement, [20.80] treaty law, [20.50] Warsaw Convention see International carriage by air what constitutes, [20.40] International Air Transport Association (IATA), [20.40] International and domestic law, relationship Australian practice, [2.40], [2.180] constitutional framework, [2.50] customary international law, relationship, [2.100]–[2.120] indirect effect of international law on domestic law, [2.130]–[2.170] transformation approach, [2.40], [2.120] complexity increase, [2.20] factors, [2.20] customary international law and Australian domestic law, relationship, [2.100] Australian authority, extent, [2.120] cases, [2.120] historical background, [2.110] differences, [2.30] dualism, [2.30] Australia, [2.40] criticism, [2.40] transformation approach, [2.40]

INDEX    607 incorporation approach, [2.40], [2.110] UK, [2.110] indirect effect of international law on domestic law, [2.130] administrative power and executive discretion exercise affected, [2.170] Australian Constitution, interpretation, [2.160] common law development influenced, [2.140] statutory interpretation presumptions, informing, [2.150] monism, [2.30] criticism, [2.40] incorporation approach, [2.40] overview, [2.180] theories traditionally used, [2.30] transformation approach, [2.40], [2.110] Australia, [2.40], [2.120] International carriage by air air waybill, [20.130] baggage and cargo, [20.130] carrier’s liability for death, injury or damage, [20.100] Australian current arrangements, [20.120] deep vein thrombosis, whether ‘accident’, [20.140] limits on liability, [20.100], [20.110] two-tiered compensation scheme, [20.120] contracts of, [20.130] Convention for the Unification of Certain Rules Relating to International Carriage by Air Montreal Convention (2003), [20.100]–[20.140] Warsaw Convention (1929), [20.100]–[20.140] determining if flight domestic or international, [20.130] EU Regulation (EC) No 261/2004, [20.110] Hague and Montreal Protocols, [20.100] interpretation of international conventions, [20.140] Montreal Convention, [20.100]–[20.140] amendments to Warsaw Convention, [20.110] application, [20.110], [20.120] countries yet to adopt, [20.120] difference from Warsaw Convention, [20.120] English text, [20.120] exclusive right of action, whether provides, [20.130]

guiding principles, [20.110] international carriage, applicable only to, [20.110], [20.130] interpretation, [20.140] ratification by Australia, [20.110] special drawing rights, [20.120] two-tiered compensation scheme, [20.120] Warsaw Convention, [20.100]–[20.140] application of, [20.130] difference from Montreal Convention, [20.120] interpretation, [20.140] still applicable, [20.120] Warsaw System, [20.100], [20.110], [20.120] International Civil Aviation Organization (ICAO), [20.90] Council, [20.80], [20.90] establishment of, [20.90] functions, [20.90] International Air Law Conference, [20.100] international personality, [20.40] technical and operational standards developed by, [20.10] Transit Agreement disputes, [20.80] International commercial arbitration, [14.60] International commercial law and Australia see also International trade law and Australia business participation, [14.80] Convention on Choice of Court Agreements, [14.30] convention ratification caution, [14.30] conventions adopted, [14.30] economic law see International economic law government participation, [14.80] harmonisation, [14.30], [14.40], [14.60], [14.70] legal principle and practice, sources, [14.30] lex mercatoria/law merchant, [14.30] model laws, harmonisation via, [14.60] monetary law see International monetary law overview, [14.10], [14.30], [14.80] principles, guidelines, rules, trade terms and standard contracts, [14.70] UNCITRAL, [14.10], [14.30], [14.60] unification, [14.30]

International Convention for the Regulation of Whaling, [3.70], [19.100], [22.140], [23.90] International Convention on the Settlement of Investment Disputes between States and Nationals of Other State, [23.40]

608    INTERNATIONAL LAW IN AUSTRALIA International Court of Justice (ICJ) see also International law advisory opinions, [23.160] arbitration clauses allowing resort to, [23.40] Australia as party, [23.50]–[23.100] environmental issues, [19.10] Japanese whaling case, [1.70], [3.70], [18.180], [19.10], [22.140], [23.90], [23.170] Nauru Phosphate Lands case, [19.10], [23.70] Nuclear Test case, [18.190], [19.10], [23.60] Timor Gap Treaty case, [19.10], [23.80], [23.170] Timor-Leste documents case, [23.100], [23.170] Australian acceptance of jurisdiction, [18.100], [23.50] exceptions, [23.50], [23.180] maritime boundary disputes excluded, [18.100], [23.50] Australian involvement advisory opinions, [23.160] judges and arbitrators, [23.170] party, [23.50]–[23.100] environmental law disputes, [19.10] international humanitarian and human rights law, [12.170] Al-Skeini case, [12.170] law of the sea disputes, [18.190] marine environment protection, [18.180], [19.10] maritime boundaries, [18.100], [23.50] negotiated settlements and, [23.20] International Criminal Court (ICC) Australia and, [9.70], [9.90] attempts to charge Australians before ICC, [9.100] concerns, [9.90] implementation in domestic law and practice, [9.80] Iraq War, [9.100] legislation, [9.80] reticence, [9.90] complementarity principle, [9.80] Iraq War, [9.100] Rome Statute of the International Criminal Court, [9.70], [9.90], [23.40] International criminal law see also International law Australia and see International criminal law and Australia core crimes, [9.10]

David Hicks case, [8.40], [9.110] definitions, [9.10] developments post-WW2, [4.20] International Criminal Tribunals, [9.60] International Military Tribunal, [9.20] mutual assistance, [4.140] overview, [9.10] proceedings against visiting officials/ leaders, [9.140] transboundary/-national crimes see Transnational criminal law universal jurisdiction, [4.70] war crimes see War crimes International criminal law and Australia see also Transnational criminal law in Australia Geneva Conventions see Geneva Conventions ICC see International Criminal Court (ICC) international crimes immunity under Australian law, [9.130] incorporation into domestic law, [9.120] investigation and prosecution, [9.130] overview, [9.150] proceedings against visiting officials/ leaders, [9.140] war crimes see War crimes International criminal proceedings Australian involvement, [23.170] visiting officials/leaders, against, [9.140] International Criminal Tribunals Australian legislation, [9.60] Mechanism, [9.60] Rwanda, [9.60] Yugoslavia, [9.60] International dispute settlement see Dispute settlement International economic law see also International commercial law and Australia definition, [14.10] domestic implementation, [14.80] features, [14.10] international agreements, [14.10] international organisations, [14.10] participants, [14.10] UN Monetary and Financial Conference, [14.20] International environmental law Agenda 21, [18.180], [19.30] air pollution, [19.120]

INDEX    609 Australian engagement with, [19.20] Australian law and policy influenced by, [19.30], [19.180] Australia’s performance against standards of, [19.180] biodiversity conservation, [19.90]–[19.110] chemicals regulation, [19.80] climate change, [19.140]–[19.170] common but differentiated responsibility, [19.40] cooperation principle, [19.40] development of, [19.30]–[19.170] duty to avoid or minimise harm, [19.40] ecologically sustainable development, [19.30], [19.40] foundational principles, [19.40] genetically modified organism (GMO) regulation, [19.20] hazardous substances, [19.60]–[19.80] Basel Convention, [19.70] chemicals regulation, [19.80] ICJ cases, [19.10] intergenerational equity, [19.30], [19.40] international supervision of Australian measures, [19.180] marine environment protection, [18.180] ‘mega­diverse’ countries, [19.20] Nuclear Test Case, [18.190], [19.10], [23.60] origins, [19.30] ozone depletion, [19.130] Paris Agreement, [19.160], [19.180] polluter pays principle, [19.40] pollution, [19.60]–[19.80] atmospheric, [19.120] POPs Convention, [19.80], [19.180] transboundary environmental damage, [19.10], [19.30] precautionary principle, [19.30], [19.40] public international law, [19.10] Rio Declaration, [18.180], [19.30] ‘soft’ law instruments, [19.30] sovereignty and responsibility principle, [19.40] species protection, [19.100] Stockholm Declaration, [19.30] Trail Smelter Case, [19.30] transboundary environmental damage, [19.10] cases, [19.30] duty to avoid or minimise, [19.40] treaty-based, [19.40] world heritage, [19.50] International financial law see International monetary law

International human rights system see also Human rights Australia in see Human rights in Australia Australians’ significant roles, [6.50] implementation monitoring mechanisms, [6.50] treaties etc see Human rights treaties, declarations, conventions and covenants UN’s Universal Periodic Review, [6.50] International Labour Organization Australia and, [6.30] human rights, [6.30] International law anti-terrorism see Anti-terrorism application of Australian law to military personnel overseas, [4.150] asylum, [8.50] asylum seeking, legality, [8.60] Australia and, overview, [1.110], [2.10] commercial law see International commercial law and Australia Commission see International Law Commission Commonwealth of Nations, application within, [1.30] court see International Court of Justice (ICJ) criminal see International criminal law David Hicks case, [8.40], [9.110] developments post-WW2, [4.20] domestic law, relationship see International and domestic law, relationship nationality, [4.50], [8.20] human right, as, [8.20] overview, [2.10] passive personality principle, [4.60] post-WW2 developments, [4.20] refugees, [8.10] Australia’s distancing from international law on, [8.70] trade law see International trade law and Australia treaties binding under, [3.40] International Law Commission, [3.60] Guide to Practice on Reservations to Treaties, [3.60] International Maritime Organization (IMO) pilotage scheme endorsed by, [18.150] International Monetary Fund (IMF), [14.20] Articles of Agreement, [14.20] Australia, [14.20] benchmarks of good practices, [14.20] enforcement of country commitments, [14.20] powers, [14.20]

610    INTERNATIONAL LAW IN AUSTRALIA International monetary law see also International commercial law and Australia Australian Accounting Standards Board, [14.20] Financial Action Task Force, [14.20] Financial Stability Board, [14.20] G20, [14.20] ‘hard’ law, not, [14.20] IMF, [14.20] international regulatory committees, [14.20] overview, [14.20] ‘soft law’, [14.20] UN Monetary and Financial Conference, [14.20] World Bank, [14.20] International organisations Australia and see International organisations and Australia economic, [14.10], [14.80] financial see International monetary law International Labour Organization, [6.30] International Maritime Organization, [18.150] International Refugee Organization, [8.50] privileges and immunities, [16.10], [16.180] WTO see World Trade Organization (WTO) International organisations and Australia Australian Wheat Board scandal in 2004, [5.60] Commission for the Conservation of Antarctic Marine Living Resources, [5.40] dynamic relationship, [5.10] International Labour Organization, [6.30] League of Nations, [5.10], [5.20] organisation based in Australia, [5.40] overview, [5.10], [5.90] politics influencing engagement, [5.10], [5.90] regional engagement, [1.80], [5.10], [5.30], [5.40], [5.60], [5.70] UN, [5.10], [5.30] Abbott Government, [5.80] Fraser Government, [5.40] Gillard Government, [5.70] Hawke–Keating Labor Government, [5.50] Howard Government, [5.60] Rudd Government, [5.70] Turnbull Government, [5.80] Whitlam Government, [5.40]

war crimes prosecutions, [9.20] WTO see World Trade Organization and Australia International personality of Australia 1920s, [1.30] 1930s, [1.30] Australia’s significance, [1.40] contemporary, [1.40] development, [1.10] economic success, [1.40] foreign policy see Australian foreign policy G20, [1.40] ‘good international citizen’, [1.110] historical events, [1.10], [1.20] human rights see Human rights in Australia legal groundwork, [1.20] middle power, [1.50] normative use, [1.50] overview, [1.10], [1.40], [1.120] post-WW1, [1.30] postal agreements with foreign states, [1.20] pre-Federation steps toward, [1.20] San Francisco Conference 1945, [1.30] today, [1.40] ‘top 20 nation’, [1.40] treaty-making power, [1.20], [1.30] UN Security Council, [1.40] WW2, [1.30] International space law see Space law International straits Australian coastline abutting, [18.150] LOSC regime, [18.150] pilotage schemes, [18.150] transit passage through, [18.150] International trade law and Australia see also International commercial law and Australia agriculture, [13.20] anti-dumping system, [13.80] culture and trade, [13.20] export of resources see Australia’s resources policies and international law foreign policy re trade agreements, [1.70] General Agreement on Tariffs and Trade, [13.10], [13.20], [13.70] open trade, [13.80] overview, [13.10], [13.100] preferential trade agreements see Preferential trade agreements (PTAs) of Australia WTO see World Trade Organization and Australia

INDEX    611 International Tribunal for the Law of the Sea (ITLOS) dispute settlement under LOSC, [18.190], [23.120] marine environment protection cases, [18.180] Seabed Dispute Chamber, [18.130] Southern Bluefin Tuna case, [18.180], [19.10], [23.130], [23.180] Volga case, [19.10], [23.140] International tribunals International Criminal Tribunals, [9.60] International Military Tribunal, [9.20] International Military Tribunal for the Far East, [9.20] law of the sea see International Tribunal for the Law of the Sea (ITLOS) International Union for the Conservation of Nature (IUCN) world heritage protection, [19.50] Interpretation of treaties context, [3.70] disagreements, [3.70] examples, [3.70] general rule, [3.70] supplementary means, [3.70] VCLT, [3.70] Investor–state dispute settlement (ISDS) arbitration clauses, [23.40] Australia’s position on, [23.40], [23.180] first claim against Australia, [23.40] preferential trade agreement provisions, [13.90] Rules on Transparency, [23.40] Trans-Pacific Partnership Agreement, [23.40] treaties providing for, [23.40] Iraq War of 2003, [1.110] Geneva Conventions application to prisoners, [9.30] ICC, [9.100] Irregular maritime arrivals see Boat people Japan Basic Treaty of Friendship and Co-operation between Australia and Japan, [23.40] International Military Tribunal for the Far East, [9.20] Southern Bluefin Tuna case, [18.180], [19.10], [23.130], [23.180] Tokyo Tribunal, [9.20] war crimes prosecutions post-WW2, [9.20] categories of suspects, [9.20] trials and sentences, [9.20]

whaling, [1.70], [3.70], [4.110], [18.180], [19.10], [22.140], [23.90] Joint Petroleum Development Area, [15.90] delimitation of maritime zones, [18.110] marine scientific research, [18.170] Joint Standing Committee on Treaties (JSCOT) ICC, [9.70], [9.90] introduction, [3.40] recommendation against treaty not binding, [3.40] role, [3.40] Rome Statute of the International Criminal Court, [9.70] Judiciary Australian Constitution, [3.20] High Court see High Court of Australia Jurisdiction ‘active personality’ principle, [4.50] Antarctica, [4.50] Australian see Australian jurisdiction blocking statutes, [4.120] connection between subject matter and state, [4.30] connection principles, [4.30] effects doctrine, [4.90] nationality principle, [4.50] passive personality principle, [4.60] protective principle, [4.80] territorial principle, [4.40] universality principle, [4.70] consular immunity, [16.160] diplomatic immunity, [16.90] effects doctrine, [4.90] extraterritorial conduct having ‘effects’ within state, [4.90] extraterritorial jurisdiction asserted by US, excess, [4.160] extraterritorial jurisdiction exercised over foreigners, [4.80] extraterritoriality, presumption against, [4.40] immunity from consular immunity, [16.160] diplomatic immunity, [16.90] importance, [4.10] international law re, development, [4.10] nationality jurisdiction, [4.50] Antarctica, [4.50] national of state, who/what is, [4.50] passive personality principle, [4.60] nationality principle, [4.50] passive personality principle, [4.60] terrorism, [4.60] post-WW2, [4.10], [4.20]

612    INTERNATIONAL LAW IN AUSTRALIA Jurisdiction continued protective principle, [4.80] requirements for, [4.30] territorial principle, [4.40] application difficulties, [4.40] subjective/objective territorial jurisdiction, [4.40] terrorism, [4.60], [4.70] universal criminal jurisdiction post-WW2, [4.20] universal jurisdiction, [4.70] crimes attracting, [4.70] universality principle, [4.70] US, [4.160]

Kyoto Protocol, [19.140], [19.150] Law of outer space see Space law Law of the sea Australian involvement in negotiation, [18.10] dispute settlement, [18.190] fish stocks agreement, [18.10], [18.120] future of, [18.200] Geneva Conventions, [18.10] history of, [18.10] marine scientific research, [18.160], [18.170] maritime zones see Maritime zones transit passage through international straits, [18.150] UN Conference on the Law of the Sea (UNCLOS III), [18.10], [18.130] UN Convention see Convention on the Law of the Sea (LOSC) League of Nations see also United Nations (UN) achievements, [5.20] Australia and, [5.10], [5.20], [6.30] contributions of Australia to, [5.20] creation, [5.20] human rights, [6.30] policy ideas opposed by Australia, [5.20] refugees, [8.50] non-refoulement obligation, [8.50] UN influenced by, [5.20]

LOSC see Convention on the Law of the Sea (LOSC) Marine environment protection Antarctica, [22.140] Ashmore and Cartier Islands, [22.120] Australian legislation, [18.180] Convention on the Conservation of Antarctic Marine Living Resources, [22.140]

Coral Sea Islands, [22.120] HIMI Territory, [22.120], [22.140] international cases, [18.180], [19.10] international initiatives, [18.180] marine environment, definition, [18.180] treaty obligations, [18.180] Marine living resources see Fish, fisheries and fishing Marine scientific research (MSR) approval in Australian waters, [18.170] Australian Antarctic Territory, [22.140] Australian practice, [18.170] freedom of, [18.160] LOSC regulation, [18.160] Maritime boundaries see also Maritime domain of Australia; Maritime zones; Maritime zones of Australia delimitation, [18.90]–[18.110] agreements, [18.110], [22.110] Australian, [18.110], [22.110] EEZs, [18.100] ICJ jurisdiction, [18.110] principles, [18.100] provisional, [18.100] dispute settlement, [23.30], [23.40] arbitration, [23.40] conciliation, [23.30], [23.150] ICJ jurisdiction, [18.100], [23.50] LOSC, under, [23.150] negotiation, [23.20] Timor-Leste cases, [23.40], [23.80], [23.100], [23.150] external territories and, [22.110] single maritime boundary, [18.100] treaties, [18.110], [22.110] negotiation, [23.20] Maritime domain of Australia see also Australian jurisdiction; Maritime zones of Australia 1990s, before, [17.10] ADF border protection, [12.70] ADF law enforcement, [12.60] areas see Maritime zones of Australia Australian Whale Sanctuary, [4.110], [17.100] baselines, [17.10], [17.30], [17.40] biodiversity protection, [17.100] ‘coastal sea’ of Australia, [4.40] native title, [7.50], [17.150] coastal state, [4.40] Commonwealth marine pollution, [17.130] offshore enforcement, [17.140] responsibilities, [17.80]

INDEX    613 continental shelf, [15.90], [17.10], [17.70] see also Continental shelf offshore petroleum resources, [15.90] UN Convention, [17.10] crimes at sea, [17.90] enforcement, offshore, [17.140] exclusive economic zone, [15.20], [15.30], [15.120], [17.60] illegal foreign fishing in, [15.60] external territories, [4.40] fish, fisheries and fishing see Fish, fisheries and fishing Great Barrier Reef protection, [17.10], [17.20] marine park, [17.100] heritage, [17.100], [17.110] historic wrecks, [17.110] jurisdiction assertion, [17.10] law of the sea, [4.40] UN Convention, [15.20], [15.40], [17.10] legislation, [17.10], [17.20] marine living resources see Fish, fisheries and fishing marine parks and reserves, [17.100] marine pollution, [17.130] fund for cost of cleaning, [17.130] maritime officers, [17.140] maritime zones see Maritime zones of Australia native title, [7.50], [17.150] officers, [17.140] offshore application of Australian law, [4.10] Offshore Constitutional Settlement, [17.20] offshore enforcement, [17.140] offshore native title, [7.50], [17.150] overview, [4.10], [17.10], [17.160] past attitude, [17.10] petroleum resources, offshore, [15.90] pollution, [17.130] fund for cost of cleaning, [17.130] post-WW2 sea law, [4.10] regional fisheries management organisations, [15.50] regulatory arrangements, [17.20] reserves, [17.100] resources, [17.10] see also Australia’s resources policies and international law responsibilities, Commonwealth–state division, [17.80] seabed outside, international management, [15.20] Seas and Submerged Lands Act 1973 (Cth), [17.10] case, [17.10], [17.20]

shipping, [17.120] conventions, [17.120] legislation, [17.120] regulation, [17.120] states and territories, of, [4.10] limits of the states, [17.30] marine parks and reserves, [17.100] marine pollution, [17.130] offshore enforcement, [17.140] powers and title, [17.20] responsibilities, [17.80] territorial sea, [4.40], [17.10] baselines, [17.10], [17.30], [17.40] limits, [17.40] Torres Strait exception, [17.40] UN Conventions relevant, [17.10] underwater heritage, [17.100], [17.110] wrecks, historic, [17.110] zones see Maritime zones; Maritime zones of Australia Maritime zones archipelagic baselines, [18.80] archipelagic waters, [18.80] areas beyond national jurisdiction deep seabed, [18.130] high seas, [18.120], [18.140] Australian Fishing Zone, [18.60], [22.140] boundaries see Maritime boundaries classification of, [18.20] contiguous zone, [18.50] continental shelf, [18.70], [22.10] Australian Antarctic Territory, [18.70], [22.140] external territories and, [22.10], [22.110] uninhabited islands and rocks and, [18.30] deep seabed, [18.130] delimitation see Maritime boundaries exclusive economic zone (EEZ), [18.60] Australian EEZ, [18.60], [22.10], [22.110], [22.140] delimitation, [18.100], [22.110] uninhabited islands and rocks, [18.30], [22.10] extended continental shelf (ECS), [18.70], [22.10] external territories and, [22.10], [22.110] high seas, [18.120] maritime enforcement on, [18.140] internal waters, [18.40] Joint Petroleum Development Area, [18.110], [18.170] LOSC creating, [18.20], [22.110] overlapping jurisdiction, [18.110], [22.110] small and isolated features, [18.30]

614    INTERNATIONAL LAW IN AUSTRALIA Maritime zones continued territorial sea, [18.40] Australian, [18.40], [22.110] baseline, [18.30] uninhabited islands and rocks, [18.30], [22.110] Maritime zones of Australia, [17.20] Australian Fishing Zone, [17.60] contiguous zone, [17.50] continental shelf, [15.90], [17.70] see also Continental shelf exclusive economic zone, [17.60], [15.20], [15.30] illegal foreign fishing in, [15.60] internal waters, [17.30] extension, [17.30] limits of the states, [17.30] state and Commonwealth, difference, [17.30] territorial sea limits and baselines, [17.10], [17.30], [17.40] historic bays in South Australia, [17.40] proclamation, [17.40] Torres Strait exception, [17.40] Mediation see also Dispute settlement international disputes, [23.30] Memorandum of understanding, [3.80] status clarification, [3.80] Migrants see also Asylum seekers; Boat people; Refugees; Refugees and Australia Australia’s quota for, [8.60] boat people see Boat people economic, [8.60] human rights, [8.90] ‘illegal’ refugees and migrants, [8.60] people smuggling see People smuggling protocol see Smuggling of Migrants Protocol Teoh case, [2.170] unauthorised maritime arrivals see Boat people Migration see also Asylum; Immigration detention Australia excision policy, [8.70] fast-track system, [8.70] international law, distancing from, [8.70] mandatory detention policy, [8.80] Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), [8.70] migration quota, [8.60]

Pacific Solution, [8.90] protection obligations not owed, [8.70] protection visas, [8.70] unauthorised maritime arrivals see Boat people boat people see Boat people detention see Immigration detention ‘illegal’ refugees and migrants, [8.60] legality of migration for protection, [8.60] legislation, [3.70], [6.40] refugee and humanitarian migration program, [8.60] visas outside, scrutiny, [8.60] refugee migration, insufficient legal mechanisms, [8.60] Teoh case, [2.170] unauthorised maritime arrivals see Boat people

Migration Act 1958 (Cth) Malaysia declared to be safe third country, [8.90] non-citizens having no legal right of entry into Australia, [10.90] offshore processing amendment, [8.90] protection obligations not owed, [8.70] protection visas, [8.70] permanent, [8.70] Refugee Convention, [3.70], [6.40], [8.70] Tampa asylum seekers, [8.90] Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), [8.70] Military Australian see Australian Defence Force (ADF) David Hicks case, [8.40], [9.110] International Military Tribunal, [9.20] US Military Commissions, trial by, [8.40], [9.110] Model laws cross-border insolvency, [14.60] electronic transactions, [14.60] harmonisation through, [14.60] international commercial arbitration, [14.60] Monetary law see International monetary law

Montreal Convention, [20.100]–[20.140] Montreal Protocol on Substances That Deplete the Ozone Layer, [19.130] Moon Agreement, [21.20]

INDEX    615 Mutual legal assistance in criminal matters, [10.100], [10.110] legislation, [10.110] made by/responded to any country, [10.110] UNTOC, [10.110] National Broadband Network, [13.80] Nationality see also States Australian, [4.50] Australian citizenship see Citizenship citizens and foreigners, rights of, [8.20] citizenship, distinguished, [8.20] human right, as, [8.20] human rights, [8.20] international law, [4.50], [8.20] treaties, covenants, conventions and declaration relevant, [8.20] jurisdiction basis, as, [4.50] jus sanguinis, [8.20] jus soli, [8.20] overview, [8.10], [8.20], [8.100] protection source, as, [8.20] statelessness, [8.20] states’ powers, [8.20] treaties, covenants, conventions and declaration relevant, [8.20] Native title see also Indigenous rights; Racial discrimination Akiba Determination, [7.50], [7.70] High Court decision, [7.110] issues, [7.80]–[7.100] Blue Mud Bay Case, [7.50], [7.60] cases, [7.40], [7.50] Akiba Determination, [7.50], [7.70]–[7.110] Blue Mud Bay Case, [7.50], [7.60] coastal seas, [7.50] common law since 1992, [7.40] waters, [7.50] definition, [7.40] extension, [7.50] extinguishment, [7.40] Mabo v Queensland, [7.40] Mabo v Queensland [No 2], [2.140], [7.20], [7.40] Native Title Act 1993 (Cth), [7.40] non-exclusivity, [7.40], [7.50] offshore, [7.50], [17.150] overview, [7.40] waters, [7.50] Nauru, [8.90] see also Immigration detention detention centres, [22.10] former Australian territory, [22.10] independence, [22.10], [23.70]

Joint Declaration of Principles, [23.70] phosphate reserves, [22.110] ICJ Phosphate Lands case, [19.10], [23.70] negotiated settlement, [23.20] self-determination, right to, [23.70] Negotiation international dispute settlement, [23.20] maritime boundary treaties, [23.20] New Zealand Australia–New Zealand Closer Economic Relations Trade Agreement, [23.40] bilateral relationship with Australia, [1.70] Norfolk Island, [22.30] abolition of self-government, [22.100], [22.130] Administrator, [22.100], [22.130] Australian external territory, [22.10], [22.30] Australian responsibilities, [22.130], [22.150] Commonwealth legislation, application in, [22.100], [22.130] governance arrangements, [22.130] history of colony, [22.30] maritime boundary delimitation agreement, [22.110] non-acceptance of Australian sovereignty, [22.130] Norfolk Island Roadmap, [22.130] NSW laws applicable in, [22.100], [22.130] Pitcairn Islanders, [22.30], [22.130] Royal Commission, [22.130] self-government, [22.100], [22.130] abolition of, [22.100], [22.130] transfer from UK to Australia, [22.30] Nuclear material anti-weapons treaties and controls, [5.50], [11.90], [15.110] Australia’s bilateral nuclear cooperation agreements, [15.110] Nuclear Test Case, [18.190], [19.10], [23.60] Treaty on the Non-Proliferation of Nuclear Weapons, [15.110] uranium export policy of Australia, [15.110], [15.120] India, [15.110] Oceans Australian see Maritime domain of Australia generally see Seas and seabed marine environment protection see Marine environment protection marine living resources see Fish, fisheries and fishing

616    INTERNATIONAL LAW IN AUSTRALIA

Offshore Constitutional Settlement, [17.20] OPCAT see Conventions, covenants, declarations, agreements and protocols Organisations see International organisations

Outer Space Treaty, [21.10], [21.20] authorisation of space activity, [21.70] liability provisions, [21.120] weapons restrictions, [21.60] Overseas missions privileges and immunities, [16.10], [16.190] Ozone depletion Australian legislation, [19.130] international cooperation, [19.130] Montreal Protocol, [19.130] Vienna Convention, [19.130]

People smuggling asylum seeking via, [8.60] Australian policymaking against, [8.90], [10.90], [10.130] Bali Declaration on People Smuggling, Trafficking in Persons and Related Transnational Crime, [10.120] Bali Process, [10.120] human trafficking see Human trafficking confusion with, [10.50] illegality, [8.60] mandatory sentencing of offenders, [10.90] protocol see Protocol against the Smuggling of Migrants by Land, Sea and Air; Smuggling of Migrants Protocol role, [8.90]

Papua New Guinea former Australian territory, [22.10] independence, [22.10]

People Smuggling Protocol see Protocol against the Smuggling of Migrants by Land, Sea and Air; Smuggling of Migrants Protocol

Paris Agreement on Climate Change, [19.160], [19.180]

Personality see International personality of Australia

Paris Convention, [20.10], [20.40], [20.60] exclusive air sovereignty, [20.60], [20.80] public international air law, [20.40] sovereignty of territorial airspace, [20.60]

Pollution atmospheric, [19.120] ozone depletion, [19.130] Basel Convention, [19.70] chemicals regulation, [19.80] international environmental law, [19.60]–[19.80] persistent organic pollutants (POPs), [19.60] Stockholm POPs Convention, [19.80], [19.180] transboundary environmental damage, [19.10] cases, [19.30] duty to avoid or minimise, [19.40]

Parliament external affairs, [4.10] treaty approval, [3.30] not formally required, [3.40] treaty-making role approval of treaties, [3.30] domestic application, [3.40] formal role, absence, [3.20], [3.30] treaty text tabled in Parliament, [3.40] Peace operations ADF, [12.100]–[12.140] East Timor, [12.110] International Force for East Timor, [12.110] land, air and maritime operations, [12.130] UN Security Council Resolution 1264, [12.110], [12.120] overview, [12.100] peace enforcement, [12.100] peacekeeping, [12.100] UN, [12.100] Charter of the United Nations, [12.100] legal and operational tools, inadequacy, [12.140] national law and, [12.140] Security Council Resolution 1264, [12.110], [12.120]

Preferential trade agreements (PTAs) of Australia controversy, [13.90] governments’ agendas, [13.90] investor–state dispute settlement, [13.90] see also Investor–state dispute settlement (ISDS) list of Australian PTAs, [13.90] overview, [13.10], [13.90], [13.100] ratification, bipartisan support for, [13.90] table of Australian PTAs, [13.90] Trans-Pacific Partnership Agreement, [13.90] Prisoners Australians in foreign country, return of, [8.40] David Hicks case, [8.40], [9.110]

INDEX    617 Geneva Conventions application to Iraq War prisoners, [9.30] International Transfer of Prisoners Act 1997 (Cth), [9.60] Privileges and immunities consular see Consular relations conventions’ justification for, [16.20] diplomatic see Diplomatic relations dual citizens, [16.200] international organisations, [16.10], [16.180] meanings, [16.20] overseas missions, [16.10], [16.190] reciprocity, [16.30]

Protocol against the Smuggling of Migrants by Land, Sea and Air assistance/protection of smuggled migrants, [10.50] Australian implementation, [10.90] asylum, no right to, [10.90] boat people, response to, [10.90] cases, [10.90] legislative differences from protocol, [10.90] mandatory sentencing of offenders, [10.90] maritime arrivals, response to, [10.90] motives of offenders, irrelevance, [10.90] non-citizens having no legal right of entry into Australia, [10.90] people smuggling and related offences, [10.90] policy misalignment with protocol, [10.90] questions and concerns over Australia’s policies, [10.90] cooperation at sea, requirements, [10.50] cooperation generally, requirements, [10.50] criminalisation requirements, [10.50] mens rea, [10.50] overview, [8.60] prevention requirements, [10.50] purposes, [10.50] smuggling of migrants, definition, [10.50] trafficking in persons, confusion with, [10.50] Protocols see Conventions, covenants, declarations, agreements and protocols Racial discrimination see also Indigenous rights Aborigines and Torres Strait Islanders, [7.30] Australian Constitution, discrimination in, [7.40]

ICERD and Australia, [6.30], [7.30] Racial Discrimination Act 1975 (Cth), [7.30] international criticism of Australia, [7.30] Racial Discrimination Act 1975 (Cth), [7.30] Northern Territory, [7.30] suspension/‘dis-application’, [7.30] terra nullius, [2.140]

Ramsar Convention, [19.110] Ramsar wetlands, [19.110] Ashmore Reef, [22.120] Coral Sea Islands, [22.120] Water Act 2007 (Cth), [15.100]

Refoulement ‘chain refoulement’, [8.90] non-refoulement obligation, [8.50] Refugee Convention see Convention Relating to the Status of Refugees (Refugee Convention) Refugees see also Asylum seekers; Boat people; Migrants Australia see Refugees and Australia Bill of Rights, [8.50] boat people see Boat people ‘chain refoulement’, [8.90] children, [8.50] common law human rights, cases illustrating weakness, [6.20] convention see Convention Relating to the Status of Refugees (Refugee Convention) definitions and derivation of term, [8.50], [8.70] detention see Immigration detention human rights, [8.90] ‘illegal’ refugees and migrants, [8.60] indefinite term of refugeeism, [8.90] international law, [8.10] International Refugee Organization, [8.50] League of Nations, [8.50] migration for protection, legality, [8.60] non-refoulement obligation, [8.50] ‘chain refoulement’, [8.90] overview, [8.100] paradox of law, [8.60] refugee migration, insufficient legal mechanisms, [8.60] temporariness of refugeeism, [8.50], [8.90] temporary protection visa expiry court case, [3.70] UN, [8.50] unauthorised maritime arrivals see Boat people

618    INTERNATIONAL LAW IN AUSTRALIA Refugees continued UNHCR see United Nations High Commissioner for Refugees (UNHCR) ‘warehoused’, [8.90] whether refugee, [3.70] Refugees and Australia see also Asylum seekers; Boat people; Migrants; Refugees ‘chain refoulement’, [8.90] deterrence, [8.90] excision policy, [8.70] fast-track system, [8.70] human rights, [8.90] mandatory detention policy, [8.80] offshore processing, rights deprivation due to, [8.90] protection obligations not owed, [8.70] recognition as refugee in, [8.70] resettlement arrangements with other countries, [8.90] status and protection in, [8.70], [8.90] unauthorised maritime arrivals see Boat people Reservations to treaties Australian policy, [3.60] distinction from other devices, [3.60] International Law Commission’s Guide to Practice on Reservations to Treaties, [3.60] interpretative declarations, distinguished, [3.60] other states’ reservations affecting Australia, [3.60] VCLT, [3.60] Resources see Australia’s resources policies and international law

Rio Declaration on Environment and Development, [18.180], [19.30] Rome Statute of the International Criminal Court, [9.70], [9.90] dispute settlement provisions, [23.40] Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (PIC Convention), [19.80] Sale of goods see United Nations Convention on Contracts for the International Sale of Goods (CISG) Satellite Utilisation Policy, [21.180]

Search consular immunity, [16.150] diplomatic immunity, [16.70] Seas and seabed Australian see Maritime domain of Australia deep seabed definition, [18.130] international management, [15.20] International Seabed Authority, [18.130] LOSC regulation of, [15.20], [18.130] mining, [18.130] fish see Fish, fisheries and fishing high seas definition, [18.120] fish stocks agreement, [15.40], [18.10], [18.120] maritime enforcement on, [18.140] Maritime Powers Act 2013 (Cth), [18.140] rights and freedoms under LOSC, [18.120] treaties, [18.120] marine environment protection see Marine environment protection marine living resources see Fish, fisheries and fishing Seabed Agreements with Indonesia, [18.110]

Seas and Submerged Lands Act 1973 (Cth) see also Maritime domain of Australia case, [17.10], [17.20] overview, [17.10] Self-determination of Indigenous Australians, [7.120] Australian developments, [7.140] Australian legislation, [7.140] DRIP implementation, towards, [7.150] international recognition lacking, [7.130] National Congress of Australia’s First Peoples, [7.150] Royal Commission into Aboriginal Deaths in Custody, [7.140] setbacks, [7.140] Sorry Statement, [7.150] September 11 terrorist attacks see 9/11 Shipping, [17.120] Slavery see Human trafficking

Smuggling of Migrants Protocol see also United Nations Convention against Transnational Organized Crime (UNTOC)

INDEX    619 assistance/protection of smuggled migrants, [10.50] Australian implementation, [10.90] asylum, no right to, [10.90] boat people, response to, [10.90] cases, [10.90] legislative differences from protocol, [10.90] mandatory sentencing of offenders, [10.90] maritime arrivals, response to, [10.90] motives of offenders, irrelevance, [10.90] non-citizens having no legal right of entry into Australia, [10.90] people smuggling and related offences, [10.90] policy misalignment with protocol, [10.90], [10.130] questions and concerns over Australia’s policies, [10.90] cooperation at sea, requirements, [10.50] cooperation generally, requirements, [10.50] criminalisation requirements, [10.50] mens rea, [10.50] overview, [8.60] prevention requirements, [10.50] purposes, [10.50] smuggling of migrants, definition, [10.50] trafficking in persons, confusion with, [10.50]

Southern Bluefin Tuna Case, [18.180], [19.10], [23.130], [23.180] Space law Australian law, [21.30] 2013 Space Policy, [21.180] criminal offences, [21.80] Defence White Paper, [21.150] definitions, [21.100] geographical ambit, [21.100] incorporating international obligations, [21.40] liability regime, [21.120] licensing regime, [21.70]–[21.90] national activities, meaning, [21.50] national register, [21.110] Principles for a National Space Industry Policy, [21.170] recent developments, [21.130]–[21.190] Satellite Utilisation Policy, [21.180] Senate Inquiry Report, [21.140], [21.160] separation of powers, [21.40] Space Activities Act, [21.30], [21.50]–[21.120], [21.190]

Space Activities Regulations, [21.60], [21.90] Space Policy Unit (SPU), [21.90], [21.160] weapons restrictions, [21.60] Australian National Broadband Network, [21.180] Australia’s international obligations, [21.40] incorporation into Australian law, [21.40]–[21.120] Australia’s participation in space, [21.10], [21.200] authorisation of return, [21.70] authorisation of space activity, [21.70] customary international law, [21.20] Defence White Paper, [21.150] European Launcher Development Organisation (ELDO), [21.10] European Space Agency (ESA), [21.10] exemption certificate, [21.70] fissionable material, [21.60] foundational principles, [21.20] international law of outer space, [21.20] international register, [21.110] international responsibility for national activities, [21.20] national activities, meaning, [21.50] launch permit, [21.70] Liability Convention, [21.20], [21.120] liability regime, [21.120] licensing regime for non-governmental entities, [21.70] criminal offences for non-compliance, [21.80] government agency to administer, [21.90] Space Licensing and Safety Office (SLASO), [21.90] Moon Agreement, [21.20] multilateral treaties, [21.20] national register, [21.110] outer space beyond territorial sovereignty, [21.20] definition, [21.100] Outer Space Treaty, [21.10], [21.20] authorisation of space activity, [21.70] liability provisions, [21.120] weapons restrictions, [21.60] overseas launch certificate, [21.60], [21.70] Register of Space Objects, [21.110] Registration Convention, [21.10], [21.20], [21.110] Senate Inquiry Report, [21.140], [21.160] soft law, [21.20] Space Activities Act 1998 (Cth), [21.30], [21.50]–[21.120] review, [21.190], [21.200]

620    INTERNATIONAL LAW IN AUSTRALIA Space law continued Space Activities Regulations 2001 (Cth), [21.60] space licence, [21.70] Space Licensing and Safety Office (SLASO), [21.90] space object, definition, [21.100] Space Policy Unit (SPU), [21.90], [21.160] Sputnik mission, [21.10], [21.20] third party claims, liability for, [21.120] UN Committee on the Peaceful Uses of Outer Space (COPUOS), [21.10], [21.20] UN General Assembly (UNGA) resolutions, [21.20] weapons restrictions, [21.60] draft treaty, [21.100] Woomera launch, [21.10] Space Licensing and Safety Office (SLASO), [21.90] Species protection endangered species, [19.100] international treaties, [19.100] migratory species, [19.100] threatened species, [19.110] whaling regulation, [19.100] States Australian see States and territories of Australia human rights obligations to citizens and aliens, [8.20] international interests, expansion, [4.10] jurisdiction see Jurisdiction nationality see Nationality overview, [8.100] post-WW2, [4.10] States and territories of Australia see also Australia Commonwealth’s external affairs power, disputes re, [2.90], [3.20] extraterritorial effect of laws/regulations, [4.10] jurisdiction see Australian jurisdiction maritime domain see Maritime domain of Australia

Stockholm Declaration, [19.30] Stockholm Persistent Organic Pollutants Convention (POPs Convention), [19.80], [19.180] Tampa, [1.110], [8.90], [12.70] Terra nullius, [2.140], [7.20]

Territorial sea Ashmore and Cartier Islands, [22.110] Australian, [18.40], [22.110] baseline, [18.30] coastal state having regulatory control, [18.40] airspace, extension to, [20.60] external territories and, [22.110] international straits, [18.150] transit passage through, [18.150] maritime zone, [18.40] width, [18.40] Terrorism 9/11, before, [11.10] Al Qaeda, [11.10] anti- see Anti-terrorism Australia pre-9/11, [11.10] Australians killed 2001–2015, [11.10] David Hicks case, [8.40], [9.110] transnational offence, as, [10.30] Timor-Leste ICJ cases against Australia, [23.40] Australian judges, [23.170] return of documents, [23.100] Timor Gap Treaty, [19.10], [23.80] Joint Petroleum Development Area, [18.110], [18.170] marine scientific research treaties, [18.170] maritime boundary delimitation disputes, [23.40], [23.80], [23.150] treaties, [18.110], [23.40] Sunrise Unitisation Agreement, [18.110] Timor Gap Treaty (former), [18.110], [23.80] Timor Sea Treaty, [18.110], [23.40], [23.100] Treaty on Certain Maritime Arrangements in the Timor Sea, [18.110], [23.40] Zone of Cooperation, [23.80] Torres Strait Islanders see Aborigines and Torres Strait Islanders; Indigenous rights Trade see Australia’s resources policies and international law; International trade law and Australia Trade disputes see also Investor–state dispute settlement (ISDS) WTO disputes, [13.40] beef, [13.70] sanitary and phytosanitary disputes, [13.50] subsidies and trade remedies, [13.60]

INDEX    621

Trafficking in Persons Protocol see also Human trafficking; United Nations Convention against Transnational Organized Crime (UNTOC) Australian implementation, [10.80], [10.130] cases, [10.80] convictions under protocol, [10.80] exploitation, definition, [10.80] legislation, [10.80] legislative differences from protocol, [10.80] policy alignment with protocol, [10.90], [10.130] victim’s consent no defence, [10.80] cooperation requirements, [10.40] mandatory requirements, [10.40] protection and assistance requirements, [10.40] purposes, [10.40] ‘trafficking in persons’ definition, [10.40] smuggling of migrants, confusion with, [10.50] Trans-Pacific Partnership Agreement, [13.90], [13.100], [23.40] Transnational criminal law see also International criminal law Australia see Transnational criminal law in Australia Bali Declaration on People Smuggling, Trafficking in Persons and Related Transnational Crime, [10.120] conventions, [10.20] UN see United Nations Convention against Transnational Organized Crime (UNTOC) objective, [10.20] overview, [4.20], [9.10], [10.10], [10.20], [10.130] threshold, [10.10] transnational offence definition, [10.30] purpose, [10.30] terrorism as, [10.30] UNTOC see United Nations Convention against Transnational Organized Crime (UNTOC) Transnational criminal law in Australia see also International criminal law and Australia criminal justice cooperation relationships see Australia’s criminal justice cooperation relationships implementation, [10.60]–[10.90]

overview, [10.10], [10.130] Smuggling of Migrants Protocol, [10.90] asylum, no right to, [10.90] boat people, response to, [10.90] cases, [10.90] legislative differences from protocol, [10.90] mandatory sentencing of offenders, [10.90] maritime arrivals, response to, [10.90] motives of offenders, irrelevance, [10.90] non-citizens having no legal right of entry into Australia, [10.90] people smuggling and related offences, [10.90] policy misalignment with protocol, [10.90] questions and concerns over Australia’s policies, [10.90] Trafficking in Persons Protocol implementation, [10.80] cases, [10.80] convictions under protocol, [10.80] exploitation, definition, [10.80] legislation, [10.80] legislative differences from protocol, [10.80] policy alignment with protocol, [10.90] victim’s consent no defence, [10.80] UNTOC implementation, [10.70] legislation, [10.70] Treaties Antarctic Treaty, [22.140] anti-terrorism, [11.20] ANZUS Treaty, [1.70] appropriateness for purpose, assessment, [3.80] arbitration clauses, [23.40] Australian practice see Australian treaty practice British Empire, [1.20] definition, [3.80] dispute settlement clauses in, [23.40] documents of less than treaty status, [3.80] high seas treaties, [18.120] human rights see Human rights treaties, declarations, conventions and covenants implementation, [2.80] interpretation, [3.70] marine boundary delimitation, [18.110], [22.110], [23.20] marine scientific research, [18.170] negotiation, [23.20] outer space see Outer Space Treaty

622    INTERNATIONAL LAW IN AUSTRALIA Treaties continued preferential trade agreements see Preferential trade agreements (PTAs) of Australia reservations, [3.60] space law, [21.20], [21.100] species protection, [19.100] Timor Gap Treaty (former), [18.110], [23.80] Timor Sea Treaty, [18.110], [23.40], [23.100] traditional view of treaty-making, [3.40] Treaty on Certain Maritime Arrangements in the Timor Sea, [18.110], [23.40] Treaty on the Non-Proliferation of Nuclear Weapons, [15.110] VCLT see Vienna Convention on the Law of Treaties (1969) (VCLT) Tribunals see International tribunals

UDHR see Universal Declaration of Human Rights (UDHR) Unauthorised maritime arrivals see Boat people UNCITRAL see United Nations Commission on International Trade Law (UNCITRAL) UNHCR see United Nations High Commissioner for Refugees (UNHCR) United Nations (UN) anti-terrorism see Anti-terrorism and the UN anti-weaponry treaties etc supported by Australia, [5.50], [11.20], [11.90] Australia and, [5.10], [5.30]–[5.80], [6.30] Australian interest in, reawakened, [5.40], [5.70] charter, Australia’s influence on draft, [5.30] climate change and Australia, [5.70], [5.80] conventions and covenants etc see Conventions, covenants, declarations, agreements and protocols conventions etc supported by Australia, [5.40], [5.50], [6.30] East Timor intervention, [5.60] General Assembly, [5.30] anti-terrorism resolutions see Anti-terrorism and the UN Australia’s H V Evatt as President, [5.30] human rights and Australia, [5.60], [5.80], [6.30], [6.50] League of Nations’ influence on, [5.20] military assistance by Australia, [5.60] military operation lead by Australia, [5.60]

Monetary and Financial Conference, [14.20] peace, [5.50] peace operations, [12.100] Charter of the United Nations, [12.100] legal and operational tools, inadequacy, [12.140] national law and, [12.140] Security Council Resolution 1264, [12.110], [12.120] post-Cold War, [5.50] preventive diplomacy, [5.50] refugee commissioner (UNHCR), [8.50] role of Australia, [5.30]–[5.60], [6.30] Security Council anti-terrorism measures see Anti-terrorism and the UN Australia on, [5.30], [5.40], [5.70], [11.40], [11.110] Australia’s loss of seat, [5.60] Special Rapporteurs in Australia, [6.50], [8.50], [8.80] support by Australia, [5.40], [5.50] United Nations High Commissioner for Refugees, [8.50] Universal Periodic Review of human rights obligations compliance, [6.50] United Nations Commission on International Trade Law (UNCITRAL), [14.10], [14.30], [14.60] arbitration Rules, [23.40] United Nations Committee on the Peaceful Uses of Outer Space (COPUOS), [21.10], [21.20] United Nations Conference on the Law of the Sea (UNCLOS III) Australia participation, [18.10] deep seabed mining, [18.130]

United Nations Convention against Transnational Organized Crime (UNTOC) Australian implementation, [10.70] legislation, [10.70] criminalisation requirements, [10.30] extradition, [10.110] mutual legal assistance, [10.110] overview, [10.30] purpose, [10.30] supplementary protocols, [10.30] human trafficking see Trafficking in Persons Protocol migrant smuggling see Smuggling of Migrants Protocol transnational offence, definition, [10.30]

INDEX    623

United Nations Convention on Contracts for the International Sale of Goods (CISG) aim, [14.40] Australia cases, [14.40] commencement, [14.40] implementation, [14.40] cases, [14.40] content, [14.40] interpretation, [14.40] United Nations Convention on the Law of the Sea see Convention on the Law of the Sea (LOSC) United Nations Framework Convention on Climate Change (UNFCCC), [19.140], [19.160], [19.180] United Nations High Commissioner for Refugees (UNHCR) donations to fund humanitarian assistance, [8.50] durable solutions, [8.50] International Refugee Organization, replacement, [8.50] protection functions, [8.50] refugee, definition, [8.50] Refugee Convention, [8.50] refugee protection mandate, [8.50] temporariness of refugeeism, [8.50] United States of America (US) 9/11 see 9/11 ANZUS Treaty, [1.70] Australia, bilateral security relationship with, [1.70] competition law, [4.90] effects doctrine, [4.90] extraterritorial jurisdiction, excessive assertions, [4.160] Iraq War, [1.110] September 11 terrorist attacks see 9/11

Universal Declaration of Human Rights (UDHR), [6.30] asylum seeking right protection, [8.60] nationality right, [8.20] VCLT see Vienna Convention on the Law of Treaties (1969) (VCLT) Vienna Convention for the Protection of the Ozone Layer, [19.130], [23.30] Vienna Convention on Consular Relations, [16.10], [16.140] honorary consuls, [16.170]

Vienna Convention on Diplomatic Relations alcohol screening breath test, [16.90] archives and documents etc, inviolability, [16.80] Australian implementation, [16.60] search immunity, [16.70] dual citizens, [16.200] immunities archives and documents etc, inviolability, [16.80] family members, [16.130] graduated regime, [16.40] jurisdiction, immunity from, [16.90] justification for, [16.20] maintenance, [16.100] period, [16.110] search, inviolability and immunity from, [16.70] waiver, [16.100] jurisdiction, immunity from, [16.90] obligations of diplomatic agents, [16.50] overview, [16.10], [16.40] privileges, [16.120] graduated regime, [16.40] justification for, [16.20] tax exemption, [16.120] tax exemption exceptions, [16.120] search, inviolability and immunity from, [16.70] Vienna Convention on the Law of Treaties (1969) (VCLT) interpretation of treaties, [3.70] overview, [3.50] reservations to treaties, [3.60] significance, [3.50] steps required to bring treaties into force, [3.50] treaty, definition, [3.80] treaty development formalities, [3.50] Visas protection visas, [8.70] permanent, [8.70] temporary, [3.70], [8.70], [8.90] War see Iraq War of 2003; World War One (WW1); World War Two (WW2) War crimes 1980s prosecutions, [9.50] Australia, [9.50] cases, [9.50] failures, [9.50] Menzies review, [9.50] Australian Defence Forces, allegations against, [9.40] international criminal law developments post-WW2, [4.20]

624    INTERNATIONAL LAW IN AUSTRALIA War crimes continued International Military Tribunal, [9.20] Nazi war criminals, escaped, [9.50] post-WW2 prosecutions, Australia and, [9.20], [9.50] categories of suspects, [9.20] International Military Tribunal, [9.20] legislation and regulations, [9.20] trials and sentences, [9.20] universal jurisdiction, [4.70]

Warsaw Convention, [20.100]–[20.140] application of, [20.130] difference from Montreal Convention, [20.120] interpretation, [20.140] still applicable, [20.120] Water Act 2007 (Cth) biodiversity, [15.100] international law, [15.100] Murray–Darling Basin Plan, [15.100] Ramsar wetlands, [15.100] relevant international agreements, [15.100] Weapons see Anti-weaponry treaties etc Whaling Antarctica, [4.110] Australia’s ICJ case against Japan re, [1.70], [3.70], [18.180], [19.10], [22.140], [23.90], [23.170] Australian Whale Sanctuary, [4.110], [17.100] cases against Japanese company under Australian law, [4.110] International Convention for the Regulation of Whaling, [3.70], [19.100], [22.140], [23.90] Japan, [1.70], [3.70], [4.110], [23.90] moratorium, [3.70] ‘scientific’ or ‘special purposes’, [3.70] species protection treaties, [19.100] Whaling in the Antarctic case, [18.180], [19.10], [22.140], [23.90], [23.170]

Dispute Settlement Body (DSB), [23.110] dispute settlement through, [23.110] apples from New Zealand case, [13.50], [23.110] Australian involvement, [23.110], [23.180] environmental issues, [19.10] Korea – beef dispute, [13.70], [23.110] salmon from Canada case, [23.110] US – lamb dispute, [23.110] Dispute Settlement Understanding, [23.40] World Trade Organization and Australia anti-dumping system, [13.80] Australian trade law and policy, WTO review, [13.80] committees, [13.30] technical barriers to trade, [13.30] complaints against Australia, [13.40]–[13.60] complaints by Australia, [13.40], [13.70] disputes, [13.40] beef, [13.70], [23.110] sanitary and phytosanitary disputes, [13.50], [23.110] subsidies and trade remedies, [13.60] geographical indications, [13.20] National Broadband Network, [13.80] negotiations, [13.20] open trade, [13.80] overview, [13.10], [13.100] subsidies, [13.60] trade remedies, [13.60], [13.80] WTO review of Australian trade law and policy, [13.80] World War One (WW1) Australia’s international personality after, [1.30] Australian treaty practice before, [1.20] British Empire after, [1.30]

World heritage listing conflicts over, [19.50] HIMI Territory, [22.120] identifying and nominating suitable areas for, [19.50]

World War Two (WW2) Australia, [1.30] Australian declarations of war, [1.30] Australian jurisdiction expansion after, [4.10], [4.20] international law and international criminal law after, [4.20] jurisdiction after, [4.10], [4.20] sea law after, [4.10] states after, [4.10] universal criminal jurisdiction after, [4.20] war crimes prosecutions after, Australia and, [9.20], [9.50]

World Trade Organization (WTO) Australia see World Trade Organization and Australia

WTO see World Trade Organization (WTO); World Trade Organization and Australia

World Bank, [14.20]

World Heritage Convention background, [19.50] significance in Australia, [19.50]