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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.