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Submission to the National Inquiry into Children in Immigration Detention from
John Tobin, Senior Fellow, Faculty of Law, University of Melbourne - Supplementary Submission
Addendum
TO: Human Rights
and Equal Opportunity Commission
RE: National Inquiry into Children in Immigration Detention
DATE: 6 June 2002
FROM: John Tobin,
Senior Fellow, Faculty of Law, University of Melbourne
Alison Duxbury, Senior Lecturer, Faculty of Law, University of Melbourne
1. In my evidence before the Commission on Friday 31 May 2002 I noted that the number of children in refugee detention centres in Australia had fallen from 582 to 184 over the past 6 months but that 351 children remained in detention on Nauru and Manus Island as part of the ‘Pacific Solution’.
2. I indicated that although little attention had been given to the legal responsibility of Australia with respect to these children, it should not be assumed that Australia is absolved from any legal responsibility for their treatment merely because they are being detained outside its territory.
3. I therefore suggested that there may be a basis on which to inquire as to legality of Australia’s implementation of the ‘Pacific Solution’ under international law by reference to the articles on Responsibility of States for Internationally Wrongful Acts as adopted by the International Law Commission: A/CN4/4/L.602/Rev1 (26 July 2001). I specifically identified the following articles as being potentially relevant in such an inquiry:
Article 16 Aid or assistance in the commission of an internationally wrongful act
A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if:
(a) the State does so with the knowledge of the circumstances of the internationally wrongful act; and(b) the Act would be internationally wrongful if committed by that State.
Article 17 Direction and control exercised over the commission of an internationally wrongful act
A State which directs and controls another State in the commission of an internationally wrongful act by the latter is internationally responsible for that act if:
(a) That State does so with knowledge of the circumstances of the internationally wrongful act; and(b) The act would be internationally wrongful if committed by that State.
4. In response the Commission requested my advice as to whether its mandate allows for a consideration of Australia’s responsibility under domestic law with respect to acts committed outside its territory. I have sought the assistance of Ms Alison Duxbury, a Senior Lecturer in the Faculty of Law at the University of Melbourne on this issue and we advise as follows.
Mandate of Commission
5. The mandate of the Commission is set out in the Human Rights and Equal Opportunity Commission Act 1986 (‘Act’). Section 11, which lists the functions of the Commission, includes:
(f) ‘to inquire into any act or practice that may be inconsistent with or contrary to any
human right, :[1]
6. Section 3(1) provides that an ‘act’ or ‘practice’ means an act or practice done:
(a) by or on behalf of the Commonwealth or an authority of the Commonwealth;
(b) under an enactment;
(c) wholly within a territory; or
(d) partly within a territory, to the extent to which the act was done within a territory.
7. This definition is to be given a disjunctive interpretation which means that the act or practice need only satisfy one of above requirements. Significantly it does not impose a requirement that the act or practice be done wholly or even partly within a territory. It will be sufficient if the act or practice is done by or on behalf of the Commonwealth or an authority of the Commonwealth or under an enactment. Although we are not privy to the exact nature of the arrangement between Nauru and the Manus Islands they were certainly facilitated by the responsible minister acting on behalf of the Commonwealth and implemented with the assistance of the Australian Defence Force, an authority of the Commonwealth.
8. Accordingly there does not appear to be any impediment to the Commission undertaking an inquiry into an act or practice merely because that act or practice is implemented outside the territory of Australia.
9. There is however a further requirement before the Commission could exercise its powers of inquiry under article 11 of the Act, namely it must form the view that the act or practice may be inconsistent with or contrary to any human right. The phrase ‘human right’ is defined under section 3 of the Act to mean ‘the rights and freedoms recognised in the Covenant declared by the Declarations or recognised or declared by any relevant international instrument’.
10. It was on the basis of this definition that the Commission initiated its current inquiry into the treatment of children in refugee detention centres in Australia. It remains for the Commission to form the view that the treatment of children in refugee centres in Nauru and Manus Islands may also be contrary or inconsistent with the same rights it has identified as the basis for its inquiry in Australia. If it were to form this view it would appear to satisfy the requirements for an inquiry under section 11 of the Act.
11. This interpretation should not be taken to mean that the Commission has the capacity to assess whether the acts of another sovereign State are consistent with human rights. Such an inquiry is warranted under articles 16 and 17 of the Articles of State Responsibility but the Act does not appear to give the Commission a general power to assess whether Australia’s actions are consistent with international law only human rights as defined under section 3 of the Act.
12. The Commission’s inquiry must therefore be confined to an assessment of whether there has been an act or practice with the necessary nexus to Australia (as required by the definitions under section 3) that is contrary to or inconsistent with human rights. The fact that the act may take place outside Australia’s territory does not preclude an inquiry as to whether Australia’s involvement in the detention of refugee children in Nauru and Manus Island is a violation of human rights as defined under the Act.
13. This interpretation while no doubt contentious is supported not only be the text of the Act but by international law which recognises that state responsibility can be attributed to wrongful acts which occur outside a State’s territorial boundaries. [2]
14. We stress that this is only a preliminary view and is intended to provide some general guidance for the Commission in determining whether it has jurisdiction to inquire into the detention of refugee children detained in Nauru and Manus Island.
John Tobin and Alison Duxbury.
1. Paragraph
(f) continues:
where the Commission considers it appropriate to do so – to endeavour
by conciliation to effect a settement of the matters that gave rise to the inquiry;
and
where the Commission is of the opinion that the act or practice is inconsistent
with or contrary to any human right and the Commission has not considered it
appropriate to endeavour to effect a settlement of the matters that gave rise
to the inquiry or has endeavoured without success to effect such a settlement
- to report to the Minister in relation to the inquiry.
2. Such responsibility can be either direct or indirect. See for example: Nicaragua v United States ICJ Reports (1984) 392 and articles 16 and 17 of the Articles on State Responsibility above para 3.
Last Updated 30 June 2003.
