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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
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
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,
(f) ‘to inquire
into any act or practice that may be inconsistent with or contrary to any
human right, :
6. Section 3(1) provides
that an ‘act’ or ‘practice’ means an act or practice
(a) by or on behalf of
the Commonwealth or an authority of the Commonwealth;
(b) under an enactment;
(c) wholly within a territory;
(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.
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.
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;
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.
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.
Updated 30 June 2003.