DRJ v Commissioner of Victims' Rights; DRK v Commissioner of Victims' Rights; DRL v Commissioner of Victims' Rights; DRM v Commissioner of Victims' Rights; DRN v Commissioner of Victims' Rights

[2019] NSWCATAD 86

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

DRJ v Commissioner of Victims’ Rights; DRK v Commissioner of Victims’ Rights; DRL v Commissioner of Victims’ Rights; DRM v Commissioner of Victims’ Rights; DRN v Commissioner of Victims’ Rights [2019] NSWCATAD 86

Hearing dates:

10 May 2019

Date of orders:

16 May 2019

Decision date:

16 May 2019

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Judge Cole, Deputy President

Decision:

The application by Dr Callamard to be appointed as an amicus curiae in these matters is refused.

Catchwords:

ADMINISTRATIVE LAW - administrative tribunals –victims rights and support - amicus curiae

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)
Victims Rights Support Act 2013 (NSW)

Cases Cited:

Levy v State of Victoria and others (1997) ALR 248

Category:

Procedural and other rulings

Parties:

Proceedings 2018/398411:
DRJ (Applicant)
Commissioner of Victims’ Rights (Respondent)

 

Proceedings 2018/398418:
DRK (Applicant)
Commissioner of Victims’ Rights (Respondent)

 

Proceedings 2018/398420:
DRL (Applicant)
Commissioner of Victims’ Rights (Respondent)

 

Proceedings 2018/398422:
DRM (Applicant)
Commissioner of Victims’ Rights (Respondent)

  Proceedings 2018/398424:
DRN (Applicant)
Commissioner of Victims’ Rights (Respondent)

Representation:

Counsel:
Proceedings 2018/398411; 2018/398418; 2018/398420; 2018/398422; 2018/398424
K Eastman SC (Applicants)
J Emmett (Respondent)
C Palmer (Applicant to be amicus curiae)

  Solicitors:
Hogan Lovells (Applicants)
Crown Solicitor NSW (Respondent)

File Number(s):

2018/00398411; 2018/00398418; 2018/00398420; 2018/00398422; 2018/00398424

Publication restriction:

The publication of the names of each of the applicants in these matters is prohibited.

REASONS FOR DECISION

1. This decision concerns a preliminary issue which has arisen in five applications for compensation under the Victims Rights Support Act 2013 (the Act) which are being heard together.

2. The preliminary issue is that Dr Agnes Callamard, a citizen of France, who is presently resident in New York in the United States of America (‘USA’), has applied to be appointed as an amicus curiae in all five sets of proceedings.

3. The applicants support Dr Callamard’s application. The respondent opposes it.

An outline of the substantive proceedings

4. Each of the applicants applied to the Commissioner of Victims Rights (‘the Commissioner’) for victims support under the Act.

5. For the limited purpose of this preliminary decision about whether Dr Callamard should be appointed an amicus curiae, the basic facts upon which the applications were made are agreed between the parties.

6. Each of the applicants is a Yadizi woman. Each of the applicants was born in Iraq and was resident in Iraq in August of 2014. Each of the applicants was taken by members of ISIS from their family and their home and subjected to enslavement, trafficking and serious acts of violence. The acts of violence included acts of violence committed by a man who was an Australian citizen and a former resident of New South Wales.

7. The acts of violence were committed against the applicants between August 2014 and November 2014 in Raqqa, Syria and Northern Iraq.

8. The applicants escaped from ISIS in November 2014.

9. The applicants have been resettled in countries other than Australia.

10. In each case, the application was dismissed by a delegate of the Commissioner on the grounds that the acts of violence the subject of the applications occurred outside of New South Wales.

11. Each applicant sought, under the Act, an internal review of the primary decision.

12. In decisions dated 26 November 2018, Senior Assessor Baker published the outcome of the internal review in relation to each application. In accordance with s 49(4) of the Act, Assessor Baker made a fresh decision on the internal reviews. The decision was that the applications be dismissed.

13. The applicants have applied to this Tribunal pursuant to s 51 of the Act for the review of the decision on internal review.

14. The application to the Tribunal for review will require the resolution of the issue of whether the Act applies to the circumstances which give rise to the applicants’ applications.

Jurisdiction to appoint amicus curiae

15. It was assumed in the submissions made by all parties, and on behalf of Dr Callamard, that the Tribunal has the power to appoint an amicus curiae.

16. Under s 38(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act), the Tribunal has the power to determine its own procedure in relation to any matter upon which the procedural rules are silent. Under s 38(2) of the CAT Act, the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. There are no procedural rules which address the appointment of an amicus curiae. I determine that the Tribunal has the power, under s 38(1) and (2) of the CAT Act to appoint an amicus curiae.

Dr Callamard’s application to be appointed an amicus curiae

17. Written and oral submissions were made by Ms Palmer, counsel for Dr Callamard, in support of her application.

18. The following submissions were made in the written submissions on behalf of Dr Callamard:

8.   Dr Callamard respectfully submits that the Tribunal should be satisfied that it would be assisted by her involvement in these proceedings.

9.   The Applicants’ submissions on the extraterritorial application and interpretation of the Victims Rights and Support Act 2013 raise a range of arguments in relation to international law. These include:

(a)   Principles of international human rights law and international humanitarian law, particularly as those principles relate to armed non-State actors (ANSAs);

(b)   Human rights obligations of both State and non-State actors, including in connection to conflict-related sexual violence;

(c)   International treaties, covenants and UN resolutions evidencing recent developments in connection to reparations for civilian victims of war crimes; and

(d)   The significant protection and accountability deficits at the international level for civilian victims of war crimes perpetrated by ANSAs.

10   Submissions on the matters set out in paragraph 9 are not currently before the Tribunal. Australian jurisprudence on these matters is not well developed. Dr Callamard submits that she is ideally place to assist the Tribunal in the present matter by virtue of the activities undertaken by her which reflect, and have developed, her expertise and knowledge in relation to human rights issues involving ANSAs. These activities are set out in Dr Callamard’s curriculum vitae (Annexure A to these submissions). Furthermore, she is an expert in the operations of the United Nations committee system, and can provide clarity if requested on the issue of how various bodies of international principles relate to one another.

Dr Callamard sought leave to provide written submissions to the Tribunal on the matters outlined in paragraph 9 of her written submissions.

19. Dr Callamard’s curriculum vitae says that she was awarded a Ph.D. in Political Science from the New School for Social Research, New York, in 1995, an MA in International Relations from Howard University in Washington DC in 1988 and a Diplôme de Sciences Politiques from IEP, Grenoble, France. Her Ph.D. thesis was titled ‘Populations Under Fire, Populations Under Stress: A Study of Mozambican Refugees and Malawian villagers in Malawi’, her MA thesis was titled ‘Ethnicity, Class Hegemony and Economic Development in Kenya’ and her thesis for her Diplôme was titled ‘French Colonial and Post-Colonial Policies in the Central African Republic’.

20. Dr Callamard’s curriculum vitae says that she has, since November 2013, been the Director, Columbia Global Freedom of Expression and Information: Special Advisor to the President, Columbia University, New York City, USA. In that role she is responsible for designing and implementing a course on freedom of expression law and jurisprudence around the world and analysing global trends. She is a guest lecturer and has established a ‘global database’ ‘providing analyses of 1300 court decisions from 130 countries and [a] unique teaching portal on freedom of expression without frontiers’.

21. Since 2016, Dr Callamard has been the United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, in Geneva, Switzerland. Dr Callamard’s curriculum vitae says that, in this role, she is responsible for implementing United Nations Resolution 1982/35. This involves ‘examining situations of extrajudicial, summary or arbitrary executions, communicating with Governments, undertaking missions and submitting [her] findings on an annual basis, together with conclusions and recommendations, to the United Nations Human Rights Council and General Assembly’.

22. Dr Callamard’s curriculum vitae provides, among other things, her ‘International Human Rights Expert History’, her ‘Employment History’, her history of ‘Teaching and Guest Lectures’ and her ‘Human Rights Fieldwork and Missions’.

23. Dr Callamard is highly qualified as a political scientist. Her experience is largely in policy formulation at national and international levels, for non-government organisations, the UN and various countries, and in education. Dr Callamard does not hold a qualification in law.

24. Ms Palmer submitted, on Dr Callamard’s behalf, that Dr Callamard could assist the Tribunal to understand the context of international law and how international law operates.

Matters to be taken into account

25. In Levy v State of Victoria and others (1997) ALR 248, at 259, Brennan J said:

The hearing of an amicus curiae is entirely in the court’s discretion. This discretion is exercised in a different basis from that which governs the allowance of an intervention. The footing on which an amicus curiae is heard is that a person is willing to offer the court a submission on law or relevant fact which will assist the court in a way in which the court would not otherwise be assisted. In Kruger v Commonwealth, speaking for the court, I said in refusing counsel’s application to appear for a person as amicus curiae:

As to his application to be heard as amicus curiae, he fails to show that the parties whose cause he would support are unable or unwilling adequately to protect their own interests or to assist the court in arriving at the correct determination of the case. The court must be cautious in considering applications to be heard by persons who would be amicus curiae lest the efficient operation of the court be prejudiced. Where the court has parties before it who are willing and able to provide adequate assistance to the court it is inappropriate to grant the application.

It is not possible to identify in advance the situations in which the court will be assisted by submissions that will not or may not be presented by one of the parties nor to identify the requisite capacities of an amicus who is willing to offer assistance. All that can be said is that an amicus will be heard when the court is of the opinion that it will be significantly assisted thereby, provided that any cost to the parties or delay consequent on agreeing to hear the amicus is not disproportionate to the assistance that is expected.

Although Brennan J was dealing with an application to be appointed as an amicus curiae in the context of a court, his words are applicable to a tribunal.

The appellants and the respondent

26. Submissions in support of Dr Callamard’s application to be appointed as an amicus curiae were made on behalf of the appellants by Ms Eastman SC. In summary, Ms Eastman submitted that Dr Callamard’s submissions may assist the Tribunal to identify what the relevant treaties and other sources of international law are and what they say or how they may apply in these matters.

27. The submissions made on behalf of the appellants related mostly to paragraph 9(c) of Dr Callamard’s outline which is quoted above.

28. Mr Emmett, counsel for the respondent, made submissions opposing the appointment of Dr Callamard as amicus curiae.

29. Mr Emmett pointed out that Dr Callamard is a political scientist, not an international lawyer. Mr Emmett said that it may be that Dr Callamard could provide useful evidence of fact as to what treaties and other instruments of international law exit, but there is no reason why that could not be achieved by having her give evidence in the applicants’ case.

30. Mr Emmett argued that the matters set out in paragraph 9(a)(b) and (d) of the written submissions provided on behalf of Dr Callamard, though very interesting, are not directly relevant to the jurisdictional question to be decided by the Tribunal. Although they may provide the factual background against which the international law has been formulated, it is not necessary for the Tribunal to consider them in answering the jurisdictional question which arises in these matters.

31. Mr Emmett pointed out that Dr Callamard is not able to assist the Tribunal by making legal submissions. In relation to the matters in paragraph 9(a)(b) and (d) of Dr Callamard’s written submissions, Dr Callamard’s evidence is likely to increase the duration of the proceedings beyond what is necessary. In addition, should Dr Callamard, in her proposed written statement, provide evidence, by way of fact or opinion, which is contested, it may be that it will be necessary for the respondent to call evidence in response, again unnecessarily prolonging the proceedings and putting the parties to unnecessary expense.

Decision

32. There is no suggestion in this matter that the applicants are unable or unwilling adequately to protect their own interests or to assist the Tribunal in arriving at the correct determination of the case. The applicants are represented by solicitors and senior counsel.

33. The Tribunal would be assisted by being directed to those sources of International law which, it is argued, bear on the issue of the application of the Act to the applicants’ circumstances. It is the applicants who argue that the Act applies to their circumstances. It is the applicants who rely on international law. There is no reason why the applicants cannot put before the Tribunal evidence of those sources of international law which, they argue, influence the interpretation of the Act. It is not necessary to appoint an amicus curiae to do that.

34. Dr Callamard argues that she only wishes to provide brief written submissions. However, her written submissions say, for example:

14.   It should also be recognized that the issue contested in these proceedings is of significant public importance. ANSAs have become a pervasive challenge to human rights protection, particularly in terms of accountability. A key question for human rights scholars is whether the conduct of ANSAs can be construed as a violation of human rights law, which has traditionally been reserved for States.

15.   On this question, Dr Callamard is able to provide submissions on why ANSAs are indeed bound by human rights obligations. First, sources of ANSAs human rights obligations and legal personality may be traced to treaty and customary law. Over the last fifty years, a range of non-State entities have been attributed some degree of legal personality. In non-international armed conflicts (NIACs), Common Article 3 of the Geneva Convention along with Additional Protocol II or customary IHL are binding on ANSAs where certain criteria are present (customary international law approach). More broadly, human rights obligations of ANSAs may be grounded if they exercise a certain degree of control over the territory and population (‘de facto’ authority approach).

The submissions go on with an argument about the extent to which ANSAs are bound by international human rights law. They continue, saying:

19.   Fourth, Dr Callamard is able to provide submissions on why the current legal framework applicable to ANSAs presents unacceptable accountability and protection deficits. There are virtually no instances where armed opposition groups have undertaken to make reparations for violations of IHL, or have made such reparations in practice. Dr Callamard is of the view that transitional justice mechanisms or compensation committees might, in the future, be tailored to better address the rights of individuals to reparation. Alternatively, the international community may decide to step in, having recognised a victim’s right to reparations irrespective of the perpetrator’s identity.

35. The question of whether any conduct of an ANSA can be construed as a violation of human rights law is not before the Tribunal in these matters.

36. Some of the submissions Dr Callamard wishes to make to the Tribunal would, in reality, be arguments as to what the policy behind schemes to compensate victims of crime in Australia ought to be in Dr Callamard’s opinion.

37. On the basis of what has been put forward on her behalf to the Tribunal, Dr Callamard’s submissions would go well beyond the issues which are relevant to the Tribunal’s task in determining its jurisdiction in these matters.

38. I agree with Mr Emmett that there is a risk that, if Dr Callamard is to be appointed as an amicus curiae in this matter, there is a realistic prospect that the respondent will be impelled to call evidence it would not otherwise have to call.

39. I determine that the relevant evidence of fact which Dr Callamard could provide could conveniently be provided in the applicants’ case.

40. The other submissions proposed by Dr Callamard are not sufficiently relevant to be of assistance and may, in some instances, for that reason, not be received by the Tribunal. They may also unnecessarily prolong these proceedings, with consequent expense and inconvenience to the parties.

41. The application of Dr Callamard to be appointed as an amicus curiae in these matters is refused.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 16 May 2019