SZTAL; SZTGM v Minister for Immigration and Border Protection & Anor

[2017] HCATrans 68

[2017] HCATrans 068

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S272 of 2016

B e t w e e n -

SZTAL

Appellant

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

Office of the Registry
  Sydney  No S273 of 2016

B e t w e e n -

SZTGM

Appellant

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

KIEFEL CJ
GAGELER J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 5 APRIL 2017, AT 10.20 AM

Copyright in the High Court of Australia

____________________

MR S.B. LLOYD, SC:   If it please the Court, I appear with MR B. MOSTAFA, for the appellants in both matters.  (instructed by Fragomen)

MR S.P. DONAGHUE, QC, Solicitor‑General of the Commonwealth of Australia:   If it please the Court, I appear with MR M.J. SMITH, for the first respondent in both matters.  (instructed by Australian Government Solicitor)

KIEFEL CJ:   Yes, Mr Lloyd.

MR LLOYD:   This appeal concerns the content of the intent requirement contained in key definitions in the Migration Act.  The question for the Court is whether the requirements are satisfied when the person who performs the relevant act of punishment or treatment knows that the act will, in the ordinary course of events, inflict pain or suffering or cause extreme humiliation.  We contend that that question should be answered “yes”.  The alternative, as the courts below and the Tribunal concluded and the Minister contends, that the intent requirements are met only where the acts are done with the actual subjective desire to cause harm.

Our submission will proceed as follows.  We will go directly to the key aspects of the legislation in issue, the Migration Act, we will then submit that the intent language used in the definitions is capable of bearing the meaning for which we contend.  We will then – noting that it is common ground that the intent language was drawn from the Convention against Torture, we will next consider the international jurisprudence and materials relevant to the intent language in that context and then, finally, we will consider the purpose of the so‑called “complementary protection regime” and related extrinsic material which, we say, reinforces the construction for which we contend.

May I go first to the Migration Act?  We had the version of the Act at the time as an annexure to our submissions.  I think my friends have prepared a bundle.  I am not sure if that has been provided to the Court.  But, in either case, I would start with section 36 of the Act – 36(2) sets out a familiar provision which contains:

A criterion for a protection visa –

which contains several alternatives.  Paragraph (a) is one which the Court has looked at many times and it, what was at least at the relevant time, in the form whereby a person was entitled to a protection visa if:

Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol –

So, in that way, the Act did not seek to bring in the substantive terms of the Convention but just went to the result of the Convention or, more strictly speaking, the protocol.  This case concerns paragraph (aa).  The provision is made in respect of other non‑refoulement obligations owed by Australia.  One looks to see if a necessary and foreseeable consequence of removing a person from Australia to a third country is that there is a real risk that the removed person will suffer significant harm.  Subsection 2A then – I was going to say it defines significant harm but perhaps strictly it does not do that.  It indicates five things that will constitute significant harm non‑exhaustively.

Relevant for the purposes of this matter, we draw the Court’s attention to paragraphs (c) torture, (d) cruel or inhuman treatment or punishment, and (e) degrading treatment or punishment.  Those terms are all defined in section 5.  If I can go back to section 5 and start with the definition of torture; we observe that this definition is in significant respects identical to the language of the Convention against Torture definition in Article 1 of that definition, and certainly the opening expression about:

any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted ‑

is all taken directly from the Convention against Torture.  Now, going from there to the definition of “cruel or inhuman treatment or punishment”, paragraphs (a) and (b) use the same language of “intentionally inflicted” from the definition of “torture”.  The definition refers in paragraph (c) to Article 7 of the Covenant.  The Covenant is itself defined to mean “the International Covenant on Civil and Political Rights”.  The ICCPR does not define the expression “cruel, inhuman or degrading treatment or punishment” so that is undefined in the treaty.

Article 7 simply prohibits such treatment or punishment and we say that in paragraph (c) the definition there is designed to ensure that the statutory expression in paragraphs (a) and (b) does not exceed the treaty meaning because there is no treaty definition.

What we will ultimately say is that this was Parliament’s bona fide effort to capture the content of Australia’s non‑refoulement obligations under Article 7 of the ICCPR and in fear of that language being construed too broadly, paragraph (c) is put in to ensure that it only captures people to whom Australia does have non‑refoulement obligations.

The definition of “degrading treatment or punishment” uses a slightly different expression for intent.  We do not say and we do not understand the Minister to say that “intended to cause” has any different meaning from “intentionally inflicted”.  We say it therefore has the same meaning as in the definition of “torture” which has, we say, the same meaning as in the Torture Convention, which is a codification of customary international law, as I will come to in due course.

Because the ICCPR does not contain definitions for these forms of prescribed treatment or punishment, the Migration Act could not simply draw on that language as was done with torture where the language is very similar to the Convention.  Rather, as we will develop, the language was selected to reflect existing international jurisprudence so that the visa processing system under the Migration Act could be aligned to Australia’s non‑refoulement obligations, and we develop that in the last section of my submissions.

I turn now to the oral outline – I am now moving on to what is paragraph 2.  We contend that the concept of “intent to inflict pain, suffering or humiliation” is capable of bearing the meaning that sees the intent established where the actor performs an act knowing that the act will, in the ordinary course of events, inflict pain, suffering or humiliation.

To support that, I will take the Court to several authorities.  And if I can just indicate, all we seek from these authorities is to show that “intent” can have that meaning.  What we then say is – and we do not deny that it can also have the narrower meaning for which the Minister contends – once it is accepted that there are two meanings, one then looks for which one is the correct meaning in the context of this legislation.

The first case I would go to is the decision of the High Court in Vallance v The Queen (1961) 108 CLR 56. The case involved, amongst other things, construction of section 13 of the Criminal Code of Tasmania which is set out, conveniently, in an asterisk on the bottom of the first page and it involves construction of the word “intentional”.

Then, if I take the Court to the reasons of Justice Dixon – Chief Justice Dixon – on page 59.  At about point 5 on the page, the Court will see in italics, the words:

Kenny, Outlines of Criminal Law –

that is a text.  And, his Honour quotes:

“ . . . in law it is clear that the word ‘intention’ like the word ‘malice’ covers all consequences whatever which the doer of an act foresees as likely to result from it, whether he does the act with an actual desire of producing them or only in recklessness as to whether they ensue or not”.

Then, over on to page 61, his Honour – about six lines from the top, maybe seven:

But in s. 13(1) I do not read the word “intentional” as bearing a meaning which requires that the end must be positively desired. I take it in the sense explained by Sir Courtney Kenny, an explanation he gave when he published his book in 1902.  He contrasts it with the more ordinary use of the word which excludes a result that a man does not desire but foresees as likely, one the risk of which he runs possibly with regret.

That is one example with a broader meaning.  Another instance of that can been seen ‑ ‑ ‑

EDELMAN J:   Is not the difficulty with Kenny’s approach that – particularly in this area of criminal law – is that it is using intention in a context where it runs together notions of actual intent with notions of recklessness?

MR LLOYD:   I accept it is no part of our case to say that “intent” in the criminal context will always have that meaning.  We do not say that.  We just say that “intent” can have that meaning.  That is an example of it.  I do not use it for anything ‑ ‑ ‑

EDELMAN J:   But, it is an example in a particular area of law where “intent” has been given a specialised meaning to cover situations which, in ordinary usage, would not be regarded as “intent” but might be regarded as recklessness.

MR LLOYD:   There may be three tiers of the intent in which recklessness is the third limb for which we are not, particularly, arguing for in this case.  There is intent because you actually want to bring about the result.  Intent because you have knowledge and you have knowledge that the act you want to do is likely to have a result.  Then, the third one is, a lack of care as to what the result would be.  Recklessness is usually the third one.

There is some, in our submissions, jurisprudence that suggests – or, at least, authors that suggest that “intentionally inflicted” in this context extends to recklessness.  We do not have to go that far and we do not go that far.  We say that intent can mean – can embrace the situation where somebody has a mental element of knowing that what they will do is, in the ordinary course of events, will have a result.

He Kaw Teh 157 CLR 523 is the second case I was going to go to. I will go to the judgment of Justice Brennan, in particular at page 569. At the top of that page, his Honour says:

If an “act” is described so as to include the circumstances in which the muscles are contracted, a different state of mind is applicable, ordinarily called “intent”.  Intent, in one form, connotes a decision to bring about a situation so far as it is possible to do so – to bring about an act of a particular kind or a particular result.

His Honour expands upon that idea but then about two lines down he says:

Intent, in another form, connotes knowledge. 

Further down on that page, when talking about the differences between “general” and “specific” intent, his Honour says about 8 lines from the bottom:

General intent and specific intent are also distinct mental states.  General or basic intent relates to the doing of the act involved in an offence; special or specific intent relates to the results caused by the act done.  In statutory offences, general or basic intent is an intent to do an act of the character prescribed by the statute creating the offence; special or specific intent is an intent to cause the results to which the intent is expressed to relate.  Both general intent and specific intent may be established by knowledge:  the former by knowledge of the circumstances which give the act its character, the latter by knowledge of the probability of the occurrence of the result to which the intent is expressed to relate.

Again, I do not say that this case can in any way bind the Court.  I am simply saying that the notion of intent and the two levels of the intent is a recognised phenomenon.  In our written submissions we have given other examples including the reasons of Justice McHugh in Peters v The Queen but I will not go to that now but, we say, that that also supports the notion that it has these two meanings. 

In the international law context, in particular, in the context of torture – the crime of torture, we take the Court to the decision of the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia in Prosecutor v Kunarac which I believe is No 19 on our list of authorities.  That case is a case in which the persons were convicted of rape and they advanced arguments to the effect that they did not have the intent or relevant purpose to fall within the definition of “torture”.  The Appeals Chamber addresses that at paragraph 153.  If the Court has the same version as me, that would be on page 47.  The Chamber says:

The Appellants argue that the intention of the perpetrator was of a sexual nature, which, in their view, is inconsistent with an intent to commit the crime of torture.  In this respect, the Appeals Chamber wishes to assert the important distinction between “intent” and “motivation”.  The Appeals Chamber holds that, even if the perpetrator’s motivation is entirely sexual, it does not follow that the perpetrator does not have the intent to commit an act of torture or that his conduct does not cause severe pain or suffering, whether physical or mental, since such pain or suffering is a likely and logical consequence of his conduct.  In view of the definition, it is important to establish whether a perpetrator intended to act in a way which, in the normal course of events, would cause severe pain or suffering, whether physical or mental, to his victims.

For the moment, I am relying upon that only to show “intent” has the broader meanings that we say.  I will return to it to further the significance of ‑ ‑ ‑

NETTLE J:   Mr Lloyd, is that decided before or after the amendments that brought into existence the provisions?

MR LLOYD:   Before then.

NETTLE J:   Thank you.

GORDON J:   That does not refer at all to knowledge of consequences of acts, does it?

MR LLOYD:   It refers to ‑ ‑ ‑

GORDON J:   Knowledge or awareness by the perpetrator, what would occur in the normal course of events.

MR LLOYD:   Yes.

GORDON J:   Or to the knowledge of the probable consequences of an act as an intention to cause those consequences.

MR LLOYD:   Yes, well as an intended act which in the normal course of events, which presumes that they are aware of the normal course of events.

EDELMAN J:   Yes, but it is the use of the word “intended”.  In a sense, if you are relying upon it as a definition, it is a definition which incorporates the very word which it is seeking to define.

MR LLOYD:   It may have that element but it is, we say, an example of a case where it goes beyond the idea of a desire to inflict harm.  That is the approach of the court below – the subjective actual desire to inflict pain or suffering.  That was not thought to be enough.  It was enough that you did an act which, in the ordinary course of events, we would say, and therefore the person should be expected to be aware that it would be in the ordinary course of events, that the consequence would flow.

EDELMAN J:   It does not necessarily deny that because it is whether the perpetrator intended to act in a way which in the normal course of events would cause severe pain and suffering.  There is still the question of what the Appeals Chamber meant by the word “intended”.

MR LLOYD:   I accept that, but I say in the context where the argument was that the intent requirement had to be specific, a subjective actual intention to cause pain or harm, and they were only doing the rapes, so they put it, for a sexual motivation or sexual gratification, that was rejected because intent is broader than that.

In a sense – and we say this in our submissions in reply – that would be enough for us to win the appeal without going to the ambit of what we say is the proper meaning of the word “intent”, if that is the correct meaning of it, but we do say that in this context what the court is saying is, the mere fact that you are not wanting to cause harm, you wanted to do the event, it was a voluntary act, you knew what - or should be taken to know what would happen because it would happen in the ordinary course of events, that is enough to establish the requirement of intent.

KIEFEL CJ:   The Appeals Chamber seems to be focusing, in relation to consequences, on a causation type scenario.  The discussion of intent and what is caused and what might be a consequence are divided into two things.  It says:

it does not follow that the perpetrator does not have the intent to commit an act of torture –

Then:

or that his conduct does not cause severe pain or suffering . . . since such pain or suffering is a likely and logical consequence ‑

When it is talking about the logical consequence of acts, they are only talking about causation.  That does not seem to inform any kind of meaning of intent.

MR LLOYD:   Well, we say in the case it was advanced on the basis as shown by the earlier paragraphs.  They were saying they were not doing it – that it was done for sexual gratification, not with the intent of causing physical pain or suffering, and also not with the purpose – under the definition of “torture” there are purposes as well that have to be done in addition to intent, and they took issue with that.  This paragraph only deals with the intent aspect of that argument.  Our contention is that they are rejecting the notion that not having a subjective desire to actually inflict the harm is required.  They are saying you do not have to have that; it is enough that you are doing something which, in the ordinary course of events, would lead to the pain or suffering.  That would be enough to fulfil the intent requirement.

GAGELER J:   Mr Lloyd, the sentence begins “In view of the definition”.  You might be coming back to this, but what is the definition that is being referred to?

MR LLOYD:   That is the definition of “torture”.

KIEFEL CJ:   “Any act by which severe pain or suffering . . . is intentionally inflicted”.  Reading it with the definition, what do you make of it?

MR LLOYD:   What we make of it is we say that the word “intent” can include notions of knowledge of ‑ or foreseeability of consequences of the act done, that if you have the knowledge of those consequences that is enough to constitute intent under the definition of “torture” in the Convention, which I think in this case was being used on the basis that it codifies customary international law. 

KIEFEL CJ:   Are they saying anything more?  This is written in the European style of judgments, which we find a little more obscure than our own.  Is the Appeals Chamber saying no more than, even if it is sexual, that it does not necessarily follow that there is no intent?  In a sexual crime, pain and suffering follows as a consequence of an intention to engage in a sexual crime.  Are they saying anything more than that, that there is really nothing in this fine distinction that the appellant sought to argue between intention of a sexual nature and intention in the context of torture?  Both involve the potential infliction of pain and suffering. 

MR LLOYD:   Yes, well, perhaps we do not say they are saying more than that, but we are saying that that, as your Honour put it, amounts to an acknowledgment that the infliction of pain or harm does not have to be the goal, the subjective desire of what you are doing.  If you are doing something which will have that consequence and you are doing it voluntarily then you are intending to do ‑ ‑ ‑

KIEFEL CJ:   Yes, but what I am really trying to say is that they might be saying that if you intend to rape someone you intend to cause them pain and suffering.

MR LLOYD:   Yes, well, can I draw the Court ‑ ‑ ‑

GORDON J:   The end of paragraph 155 might help.  Is not this section of the judgment dealing with whether or not there can be two purposes?  There is a question about motivation for sexual conduct – sexual pleasure versus motivation to inflict.

MR LLOYD:   Yes, although I think that they have gone on at that point to talk about the discriminatory purpose.  So under the definition of “torture” you have to intend to inflict harm and then it has to be for a purpose and one of the purposes that would fall within the definition is a discriminatory purpose.  And they are saying that it can have more than one – something can have more than one purpose and it can still have a discriminatory purpose, even if it has a sexual gratification purpose because the sexual gratification argument was put as an answer both to the intent and the purpose requirements.

EDELMAN J:   Is the point one, essentially, that distinguishes between intention and desire so that one can intend an end by desiring the end or one can intend something to occur, even if one does not desire it if that something is a necessary way to achieve the end that the person does desire?

MR LLOYD:   That is certainly one element and, perhaps, in support of that, if I take the Court to the Convention – I will not go to that yet.

KIEFEL CJ:   But, really, Mr Lloyd, it must be ‑ whatever one says, this must be read in the context of the nature of the act that the Appeals Chamber was dealing with and that is rape.

MR LLOYD:   We accept that.

KIEFEL CJ:   It gives you a somewhat simpler result than the kind of scenario, the circumstance that we are dealing with.

MR LLOYD:   That is true.  We will come, at the end of our submissions, to deal with a number of areas where there are differences of outcome between our construction and the Minister’s construction.  One is medical experimentation.  Now, in Article 7 of the ICCPR it expressly includes reference to medical experimentation as being one of the things that would fall within that expression of “cruel, inhuman or degrading treatment”.

And one can readily imagine a situation where a person undertaking the medical experimentation has awareness that in an ordinary course the experimentation is going to cause pain and suffering and/or extreme humiliation, but does not do it for that purpose.  They do not want to do that; they want to develop medical knowledge for some reason.

NETTLE J:   Dr Mengele.

MR LLOYD:   Dr Mengele.  We say, on our construction of intent, that falls within the concept and we say on the desire‑based approach it would fall outside of the concept. 

KIEFEL CJ:   Intention just to one side for the moment, what you have just said brings this to mind.  Are we talking in each case of a positive act committed by a person?

MR LLOYD:   It could be an omission.  I think it is defined as “acts or omissions”.

KIEFEL CJ:   Quite.  But, we are looking for something – because of the use of the word “inflict” or “cause” we are looking at an act which causes or has an effect upon someone.

MR LLOYD:   Yes.  So, in our case, it is putting somebody into a prison of substandard circumstances.

KIEFEL CJ:   The act is placing them in a pre‑existing situation.

MR LLOYD:   Placing them in a situation that the person knows would result in suffering or severe pain.  We say the finding in this case was that the government of Sri Lanka was aware of their prison conditions.  So we get over that hurdle.  Where we lost was on the intent requirements.  The Tribunal said that the lack of resources to fix those means that it was not done with the intent to cause that harm.  Yes, they knew that the harm would be caused or may be caused but they did not want to cause harm.  They were not doing it to cause harm.  So, therefore, on that approach no matter how long someone stays and no matter how appalling the conditions are, that never engages the provision.

KIEFEL CJ:   My inquiry, really, though is that even without the question about what “intent” means, the words used in the Treaties Act and in section 5(1) - “act inflicting”, “act causing” – do not really seem to convey placing someone in a pre‑existing situation.  There is no act which has itself the effect – there is no causation arising from an act.

MR LLOYD:   We would say that putting somebody into a prison of an appropriately horrific standard would be to inflict the pain or harm on the person.

KIEFEL CJ:   Where is the act, though?

MR LLOYD:   Putting them into the prison.

KIEFEL CJ:   I see.  Is the decision in Kunarac the high‑water mark or is that the high‑water mark of jurisprudence?  I do not mean that facetiously, but it is the highest point of the jurisprudence for the purpose of your argument.

MR LLOYD:   It is certainly the highest court level.  There are two other examples we give in the same Tribunal but at the trial chamber rather than the appellate chamber which ‑ ‑ ‑

EDELMAN J:   What has happened, though, in the decade between Kunarac and the enactment of the amendments?  Has the treatment of intention in that decision been picked up in commentary or relied upon, or moved into customary international law?

MR LLOYD:   Well, we say, yes.  It is picked up in the two cases we cite.  One of them expressly refers to Kunarac and it is put against us that were they just doing it because they were bound to do it and we say, exactly, they were bound to do it.  That is what we say.

KIEFEL CJ:   Do they say what it means?

MR LLOYD:   I was going to go to it but I will go to it now.  There are two.  One is Martić which is tab 21, if your Honours have tab but also it is a decision of the Trial Chamber - The Prosecutor v Martić in 2007 and the relevant paragraph is 77.

KIEFEL CJ:   I am sorry, Mr Lloyd, was that paragraph 77?

MR LLOYD:   Paragraph 77.  So, in this matter, the end of paragraph 77 and they are talking about what needs to be established - this is under the heading of “Torture” for the torture count in this case and the court is reciting what is required.  At the end of the “Torture” section it says:

In addition, it needs to be established that the perpetrator acted or omitted to act with direct or indirect intent.

Then, one sees that expanded upon in paragraph 79.  I am not saying that exact concept is expanded upon but the idea of direct and indirect intent is explained a bit.  It says:

The perpetrator must be shown to have acted with direct intent or with indirect intent, that is, in the knowledge that cruel treatment was a likely consequence of his act or omission.

GORDON J:   I think this raises - the point I was trying to raise before is that it seems to have been cited for the purpose question which is referable to 155, not – and it is the earlier decision, not a reference to the intent question, both at paragraph 77 talking about whether or not you would need one or two purposes.

MR LLOYD:   Well, I mean, I accept it is only one sentence at the end of that paragraph but it is, kind of, in addition, it needs to be established and then they are talking about direct or indirect intent.  Now, as we apprehend it, their concept of “indirect intent” embraces our meaning of “intent”.

EDELMAN J:   Not necessarily.  It might be the point that I put to you before that one always needs to intend an end but if something is necessary to obtain that end, even if you do not desire what it is that is necessary to obtain the end, it is not inconsistent to say that you intend it because you do not desire the pain or the suffering but if it is a necessary way to achieve an end that you do desire then it could comfortably be said to be intended.  Maybe that is what is meant by “indirect intention”.

MR LLOYD:   Well, what it is saying is indirect intention is enough and so to use the language from paragraph 79 here you might intend to have people held in detention so they cannot escape.  You know that because of the conditions of your detention that will result in cruel treatment as the likely consequence of that act or omission and that indirect intent is enough even though you have an ultimate, grander purpose which is more beneficent, assuming caning people is beneficent.  It might be in some circumstances.

NETTLE J:   This is result intent within the meaning of the CriminalCode, is it?

MR LLOYD:   Yes, your Honour.  I should say, ultimately, I will be coming to how Australia has enacted the “torture” definition.  And, Australia’s enactment of it is unambiguously clear to embrace our meaning.  So, they say – the Minister’s position is, well, it is true that we would prosecute people anywhere in the world ‑ because the offence is not limited to just Australia – we would prosecute people anywhere in the world if they do things with the knowledge that harm will happen in the likely course of events.  Notwithstanding that we could prosecute them for that, we will still return them to a place where that is going to happen.

That may be how they put it.  It depends, in part, on whether they accept, and there is still some ambiguity as to their position as to what they say the international law is.  On one view, they dispute our view of the international law.  On that position, they would say, yes, we would return them to a place to be tortured or harmed by somebody who we would, in fact, prosecute in certain circumstances which, we say, is a very curious disjunct.

Alternatively – and their argument is, well, either they might admit or they might say, even if our view of the international view is right, the Migration Act is narrower, in which case, the Minister will come to the rescue of all these people and the Minister will – on their view, the Act is narrower than the international – it does not reflect Australia’s non‑refoulement obligations but that there is still scope for these people to be protected because the Minister can, under section 417, or the like, use his non‑compellable powers at the end of the day.  So, we will take issue with that later as well and establish that that is not what the Minister thinks he is doing.

KIEFEL CJ:   I think you were going to refer to the other international case, Mr Lloyd.

MR LLOYD:   The other one is Limaj.  And the relevant paragraph is paragraph 238 – Prosecutor v Limaj:

As for the mens rea required for the crime of torture, the previous jurisprudence of the Tribunal establishes that direct intent is required: the perpetrator must have intended to act in a way which, in the normal course of events, would cause severe pain or suffering, whether physical or mental, to his victims.

Footnote 732 – that is citing paragraph 153.

KIEFEL CJ:   That is direct intent, apparently.

MR LLOYD:   Sorry, your Honour:

It is irrelevant that the perpetrator may have had a different motivation, if he acted with the requisite intent.

So, that seems to – which also refers back to paragraph 153 which, we say, captures – we say, Kunarac works to bring in – in Kunarac, they did not use the language of direct or indirect intent.  Whether this language is consistent with the way it is used in Martic is questionable but it is still clear, we say, that it follows Kunarac.

GAGELER J:   Is Judge Kevin Parker Justice Parker of the Supreme Court of Western Australia? 

MR LLOYD:   I cannot assist your Honour with that.

EDELMAN J:   Yes, formerly.

MR LLOYD:   Formerly.  Thank you, your Honour.  I have been somewhat taking a different course but I think I will go back and say that, as I have indicated earlier, we acknowledge that the word “intent” can also have the narrower meaning for which the Minister contends.  That is, one looks at the actual subjective purpose or object of the action.  This construction has been adopted in certain criminal contexts.  It is discussed at some paragraphs in the decision of the court below.  I will not take the Court to it, but in particular in paragraphs 53 through to 59 there is discussion of this Court’s decision in Zaburoni and the Queensland Court of Appeal’s decision in Ping, which we accept, in the context of those criminal contexts, the narrower meaning of “intent” was found to apply there.

As I say, we do not deny that you can have that narrower meaning in certain contexts, but we say in the criminal context the selection of the narrower meaning requiring the desire as to the outcome rather than merely the foresight of outcome may reveal a higher gradation of moral culpability.  We rely upon some reasons of your Honour Justice Gageler in a case called Miller.  The citations are set out in paragraph 23 of our submissions in‑chief for that proposition.  Obviously, in a criminal context you might have a punishment that is different for somebody who intends to cause pain than in other circumstances.

We only get out of the criminal cases the notion that “intent” can have different contexts or content in different circumstances, and we will say that the court below was wrong, in paragraph 59, to find the decision in Ping to be persuasive.  That is one of the errors we say the court below made.

We then turn to what we say are the relevant contextual considerations in this case, and we say that they are the genesis of the language and the purpose of the complementary protection regime, which is to say the purpose of the 2011 amendments and in particular the mischief it was sought to redress. 

If I start with the genesis of the phrase “intentionally inflicted”.  It is common ground that the definition of “torture” in section 5(1) of the Migration Act and, relevantly, the words “intentionally inflicted” are drawn from the definition of “torture” in Article 1 of the Convention against Torture.  I just note paragraph 37 of my friend’s submissions. 

It is also common ground that the words “intentionally inflicted” in the definition of “cruel or inhuman treatment or punishment” in section 5(1) have the same meaning as they do in the definition of “torture” and, therefore, the same as in the Convention against Torture definition in Article 1 and we refer to it at paragraph 39 of my friend’s submissions.

We say that we do not understand the Minister to refute that the expression “intended to cause” in the definition of “degrading treatment or punishment” in section 5(1) has a different content ‑ or sorry does not refute it, they have the same content, and so we will proceed on that basis.  We contend that when the legislature draws language from a treaty in order to give effect to some aspect of the treaty this is relevant to the construction process.  In particular, it gives rise to what has, in one instance, been called an “assumption” or in another case a “prima facie position” that the statutory language is to have the same effect or meaning as the treaty language.

I will take your Honours – I will take the Court to two cases.  The first is Koowarta v Bjelke‑Petersen 153 CLR 168 and the relevant page is 264. After referring on the bottom of page 264 to racial discrimination and the notion:

That definition of racial discrimination is reproduced precisely by the words of the sub‑section.  The Act thus makes part of Australia’s municipal law, enforceable by curial process, a key provision of the Convention.  When Parliament chooses to implement a treaty by a statute which uses the same words as the treaty, it is reasonable to assume that Parliament intended to import into municipal law a provision having the same effect as the corresponding provision in the treaty –

I will not read any more.  That is that decision which we rely upon.

KIEFEL CJ:   But this is a kind of cross‑fertilisation from treaties, is it not?  This is not a direct taking from the ICCPR and what it says because it does not define the relevant terms that you are referring to.  We are actually not concerned with a claim of torture here but the other two provisions and they are not – and they are taken – I am sorry, they are seen, those terms in Article 7.

MR LLOYD:   Yes, that is so and the way we get there is we say that the definition of “torture” is taken more or less in terms – the definition of “torture” in the Act is taken more or less in terms from the definition of “torture” in the Convention.  Then, we say in the Act the expression “intentionally inflicted” is taken – should have the same meaning as those same words in the definition of “torture” which, therefore, has the same meanings in the Convention against Torture definition.

KIEFEL CJ:   But the question arises:  why should one assume that the Migration Act in its definitions intends to take a part of a definition from the Convention against Torture to convey the same thing in the context of two other provisions arising from a different international instrument treaty?

MR LLOYD:   Yes, well, where those different international treaties do not have a definition one cannot say that the language comes from those treaties.  But one can say that when the same language is used in the same Act, absent some reason to do something different the same words should have the same content.  So “intentionally inflicted”, as used in the Migration Act in those three different definitions should have the same meaning and they are all taken from, we say, the Convention against Torture.  We do not apprehend that to be controversial. 

The other case that I would take the Court to is a decision of Greentree v the Minister for Environment and Heritage (2005) 144 FCR 388, a decision of the Full Federal Court, in which the court was considering legislation that gave effect to the Ramsar Wetland Convention. The relevant discussion is in paragraph 36 of your Honour Chief Justice Kiefel’s judgment in that case, which was concurred in by the other two justices of the Court:

Section 17(1) does however borrow from the Ramsar Convention the words “designated . . . for inclusion in the List of Wetlands of International Importance” and refers to the List kept under that Article.  The meaning of the word “designate” in Art 2 then assumes some importance.  Where a provision of a treaty is transposed, the legislature discloses a prima facie intention that they have the same meaning –

Then there is a further reference there to Justices Brennan and Dawson’s reasons in Applicant A, which also then refer back to Koowarta.  I will not go to that.

Here, the Convention against Torture has an express non‑refoulement obligation in Article 3.  We say the enactment of the complementary protection regime, including the language from the Convention against Torture, means that the persons facing torture meet the criterion in section 36(2)(aa) for a protection visa, thus ensuring – subject to other matters – Australia will comply with its non‑refoulement obligations.

We contend that, prima facie, the language transposed from the Convention against Torture into section 5(1) of the Act should be given the same meaning as it had in the Convention against Torture.  Now, before turning back to consider further materials on that Convention, I should deal with an argument in the Minister’s submissions ‑ ‑ ‑

KIEFEL CJ:   Mr Lloyd, accepting that your submission that the language should be given the same meaning as it has in the Convention against Torture, if the Court were to find that the meaning was not clear in relation to the Convention against Torture, what course would you say we should take?

MR LLOYD:   We put our case in two ways.  The first way is we say the international material supports our view on the definition of “torture” and if that is done then that is what section 5 should be construed and then that would be the end of it.  If we are wrong about that then – but we are still correct that our approach to intent is at least an available approach to the construction, then we say the Court should favour the approach which advances or better advances the purpose of the legislative provisions and for reasons which I will develop, our construction clearly achieves that end. 

So, I was going to address a point before turning to the international materials.  The Minister contends that the Migration Act is a code and that resort to international law materials is neither necessary nor useful based in large part upon a decision of a Full Federal Court in Minister for Immigration v MZYYL (2012) 207 FCR 211. I will take the Court to that case.

Now, that case involved section 36(2B)(b) of the Act.  If the Court goes to page 214 of the report, you will see the terms of the legislation at that time and (2B) is a provision which seeks to represent the effect of international law jurisprudence in relation to complementary protection.  So it makes its provision and the relevant one here is (b):

the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm –

There is a bit of a parallel with a similar idea in the Refugee Convention.  There is certainly case law that discusses that idea but that idea is not anywhere expressed in any of the relevant conventions.  It is not in the Convention against Torture, it is not in the ICCPR but it is in the case law that flows from that and so the Minister came along to the Federal Court and said you should construe the words that were used in (2B) to have the same effect as the international jurisprudence in the area.  That is what you should do.  The Court responded to that relevantly in paragraph 18 on page 215 and paragraph 20.  If I can just go through that - at paragraph 18:

The Complementary Protection Regime provides criteria for the grant of a protection visa in circumstances where the Minister is not satisfied that Australia has protection obligations to that non‑citizen under the Refugees Convention. 

That is uncontroversial:

The regime establishes criteria “that engage” Australia’s express and implied non‑refoulement obligations –

We happily agree with that.  Going down to the next sentence:

The Complementary Protection Regime is a code in the sense that the relevant criteria and obligations are defined in it and it contains its own definitions –

Well, whether one might – in the context of a code in the sense that we do not deny that it has its own definitions and, for example, (2B), there is nothing in any of the treaties that replicate that.  So in that sense it is a code.  Then the next sentence:

Unlike s 36(2)(a), the criteria and obligations are not defined by reference to a relevant international law.

What is being said there - “by reference to” - that is because (2)(a), as I indicated earlier, in a sense simply picks up the effect of the Convention.  So, they are saying, these provisions, the complementary protection provisions, are not like the Refugee Conventions which just say “or refugee under the Convention”.  It has its own content and so it should be, presumably, construed accordingly.  We do not dispute that.  But we say that does not have any application to this case.  Continuing:

Moreover, the Complementary Protection Regime uses definitions and tests different from those referred to in the International Human Rights Treaties and the commentaries on those International Human Rights Treaties.  For example, the definition of “torture” in the Complementary Protection Regime is different from that in the –

Convention against Torture.  Then there is a reference to paragraph [52].  That is true.  I will not take the Court to it, but paragraph [52] notes that the definition in the Migration Act is broader because under the Convention against Torture the act or omission needs to be done by a public official.  The public official element has not been brought into the Migration Act element. 

So, in that extent, it is true that the definition is different and broader and, obviously, you would not – the Parliament having decided to make it broader and leave out an element – you would not read it down as if it was simply trying to do what the Convention against Torture did.  But, again, that is not what we are doing.  Then it says:

Further, the International Human Rights Treaties do not require the non‑citizen to establish that the non‑citizen could not avail himself or herself of the protection of the receiving country or that the non‑citizen could not relocate within that country.

So that is to say there is no equivalent language in those treaties, which we accept.  Then going down to 20:

It is therefore neither necessary nor useful –

This is the part that the Minister relies upon:

to ask how the CAT or any of the international law treaties would apply to the circumstances of this case.

Again, we do not have difficulty and we do not say that the court is wrong in that because in the circumstances of this case there is no language drawn from the Convention so the Convention jurisprudence does not inform the construction of language.  However, that is the MZYYL Case.  In our case, the words “intentionally inflicted” are drawn expressly from the Convention against Torture and we say that the Full Federal Court was not impliedly overturning the approach that I have taken the Court to in Koowarta or in the Greentree decision, that one should not seek to have regard to and give similar meaning to Convention language imported into a statute.  So we say MZYYL is no ‑ ‑ ‑

EDELMAN J:   It is not really a question of giving the same meaning as the language, it is a question of whether the interpretation of the Convention prior to the enactment of the amendments to the Migration Act had achieved a sufficiently widespread understanding that that would be understood to have been picked up as the meaning of the words that are used in the amending Act.  In other words, that “intention” had achieved a sufficiently widespread interpretation under the Convention such that that interpretation would then be taken to be the meaning of the words in the amending Act.

MR LLOYD:   Yes, although to the extent – I would not want to limit it to that – that there is a brand new Convention and the Parliament says, “We will enact this because we want to make sure we are in a position to comply with our obligations under that Convention”, and it uses the same language as the Convention, then even subsequent learning would be relevant because the purpose of the statute is to give effect to the Convention or to meet our obligations under the Convention.  We would say that even subsequent learning would be a relevant consideration.

EDELMAN J:   I think that is much more controversial because that would then say that the meaning of a domestic statute is potentially altered by foreign decisions or by international tribunal decisions.

MR LLOYD:   We say that where the object of the statute is to allow Australia to accord with our international obligations it should be construed, absent some other language, to be consistent with that law as it develops.  In this case the Parliament considered that express idea in paragraph (c) of the definition of “cruel or inhuman treatment” and “degrading treatment or punishment” by saying that the definition is not to exceed what Article 7 embraces.  So to that extent they are recognising that Article 7 can develop but what they do not want is for the words that they have used to develop more broadly than Article 7 develops.  We say it reflects the legislative intention to meet the obligations but not to go beyond the obligations.

Now, if I move back to the international materials, I will just give the Court a reference to this ‑ I do not understand it to be controversial – two references.  The proposition we make is that the Convention against Torture definition of “torture” is a codification of customary international law.  The Full Court of the Federal Court said that in Habib v Commonwealth 183 FCR 62 at 117. In paragraph 36 of our submissions in‑chief we note other people and other international entities that have said, or commentators that have said, the same thing.

Now, in terms of the international materials, I have taken the Court to the three decisions of the International Criminal Tribunal for former Yugoslavia and made my submissions as to the notion that “intent” includes both direct and indirect intent, which is to say it includes circumstances where torture is established by knowledge that an act will, in the normal course of events, cause the severe pain or suffering.

If I can take the Court to the Rome statute of the International Criminal Court.  This statute confers jurisdiction on the Court in Article 5 in relation to certain criminal offences.  Those offences are limited in areas under Article 7.  They are limited to crimes against humanity and one of those crimes against humanity in Article 7(1)(f) is torture.  Then torture there is a similar definition in 7(2)(e), but it is again, we say, a codification of customary international law.

Similar provision is made in relation to war crimes – I will not go to that.  The statute also includes a section called “General principles of Criminal Law” starting at Article 22 and the relevant article we draw the Court’s attention to is Article 30.  This we accept is not limited to torture but includes where that customary international law offence is being prosecuted:

For the purposes of this article, a person has intent where:

(a)In relation to conduct, that person means to engage in the conduct;

(b)In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.

So we say that our approach to the ambit of torture is consistent with the provisions of the Rome Statute which obviously reflect a broad view of the members of the international community.

GAGELER J:   I am not sure about that because if you look at the definition of “torture” in paragraph 2(e) there is an exception which at least arguably would cover a case of pain and suffering arising incidentally to incarceration.  You might be right in what you say about intention but in what you say about torture you might be going too far.

MR LLOYD:   That exception also appears in the Convention against Torture exception in the sense that it does not include things done under lawful sanction.  I might be wrong about that; I withdraw that.

GORDON J:   The definition in legislation includes a sanction but the thing it does not include is upon a person in the custody or under the control of the accused.

MR LLOYD:   It does include that:

“Torture” means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused ‑

So putting someone in a prison in circumstances where they will suffer would fall within that.  Having said that, we do not say that our case for ‑ ‑ ‑

KIEFEL CJ:   It does appear in Article 1 to the Convention against Torture.

MR LLOYD:   Sorry, your Honour.

KIEFEL CJ:   You are right, it does - the exception does appear in Article 1.

MR LLOYD:   Yes.

GAGELER J:   Mr Lloyd, there may be a very simple answer to this, but I am struggling for a moment understanding the relationship between the intention and the purpose in the application of the definition of “torture” in the Convention and in the Act.  So if you say that putting someone in gaol, with the knowledge that the conditions in gaol will lead that person to severely suffer, you say that is intentionally inflicting that suffering on the person? 

Is that for the purpose of punishing the person?  I mean is it the relationship between the act done, which is putting the person in gaol, or is it the relationship between the known consequences and the punishment that is being looked at?  I am sorry, I am putting that very badly, but there is a difference putting a person in gaol as a punishment - between wanting to put a person in gaol as punishment and wanting to subject the person to suffering in the gaol as punishment.  I think they are different things.

MR LLOYD:   Your Honour, I just want to make something clear.  This is probably already clear but in case it is not I should make it clear.  Our case does not turn upon saying that our clients face the possibility of torture and this extra layer of doing something for a purpose is something which is in the definition of “torture”.  It does not appear in the definition of “cruel or inhuman treatment or punishment”.  So the notion of having to have the intention to inflict severe pain or suffering for a purpose is not there.  It is just the intention to inflict pain or suffering. 

But we would say that, for whatever reason, presumably because the parties to the Convention did not want it to be broad until the ICCPR came along, which in substance broadened it because it does not have the purposive limitations, but at the time that the torture concept was being developed there were only limited circumstances in which torture was precluded.  So presumably there are other circumstances where the intentional infliction of severe pain or suffering was considered to be appropriate.  We are not saying that, in our context, my client faces being placed in detention for some period between one day and two weeks, I think ‑ ‑ ‑

KIEFEL CJ:   Was that actually the finding of the Tribunal?  I think that is challenged by the Minister, is it not?

MR LLOYD:   I am not sure; maybe it is.  I understood that they disputed our facts.  They wanted to supplement our facts.  I do not think they said our facts were wrong.  But in paragraph 79, the Tribunal says:

The applicant will be remanded for a short period of time, between one night to several nights or possibly up to 2 weeks.

KIEFEL CJ:   Paragraph 83?

MR LLOYD:   Sorry, paragraph 79 of SZTAL.

KIEFEL CJ:   Yes, I am reading from paragraph 83:

The country information above indicates that the penalty most likely to be imposed on the applicant is a fine.

Last sentence:

Based on this information, the Tribunal finds that the likelihood of a prison sentence is remote and not a real risk.

MR LLOYD:   Yes, but that is because part of the claim was that my client would be sentenced to a substantial period as a result of the offence and what they are finding here is that the prospect of being sentenced to imprisonment was remote.  But our claim - the one day or two weeks is the remand.

KIEFEL CJ:   I see.  There would be a remand period for a short time.  They are two different things, I see.

MR LLOYD:   Exactly. 

GORDON J:   Can I ask a really basic question, why we are being taken to the Rome Statute?  I mean it does not have the same purpose requirements that the Convention has.  It has this additional language about being in custody or under control.  What do you get from it?

MR LLOYD:   In custody or under control just brings in, in effect, a subset of the broader definition of “torture”.  So it does not include everything ‑ ‑ ‑

GORDON J:   No, I understand that but what do you get from it when it is in different terms?  Why do you rely on it?

MR LLOYD:   What we get from it is it has the same “intentional infliction” term and it then expands upon what “intent” means and it says “intent” includes our notion of indirect intent.  So we say that that is an example of torture which is a customary international law as well as treaty offence being treated in this statute in the way that we say it should be treated and we say is reflective of its proper construction.

KIEFEL CJ:   If one looks at Article 30, paragraph 2, though, (a) would seem to be intent in relation to conduct in terms of Zaburoni - that is simply means to engage in conduct; and (b), which I think you refer to as the indirect intent, is only really talking about consequence and causation, is it not?

MR LLOYD:   We say it is – if a person has the intent ‑ ‑ ‑

KIEFEL CJ:   You say that captures what you are discussing?

MR LLOYD:   Yes, we say that the word “or” is important because it means to cause the consequence or is aware that it will occur in the ordinary course – so, it has a knowledge and awareness of the result which is what we say the Sri Lankan Government has in the present context.

KIEFEL CJ:   But the first concerns conduct and the second is consequence.  Are they cumulative?  They must be.  “Intent” must capture both of them, conduct and consequence.

MR LLOYD:   Perhaps – it depends on what the offence is.  If it is an offence which goes to result – to use in the Australian Parliament which I will come to very soon – the fault elements – there are fault elements that, where an offence is turned in sense of conduct – you cannot hit somebody.  Another one is you cannot hit somebody resulting in actual bodily harm so the intent element in relation to an offence which only goes to conduct is that you intend to engage in the conduct if you – for one which goes to consequence which, we say, the infliction of pain or suffering is a consequence – then it is enough that you are aware that it will occur in the ordinary course of events.

KIEFEL CJ:   I am not quite sure that that is what they meant in the Rome Statute.

MR LLOYD:   We accept that the act – the act, in our circumstances – the act of putting them in the gaol, they mean to put them in the gaol and they are aware of the consequence that in the ordinary course of events somebody in their gaols has to be in the circumstances specified by the Tribunal.  The next matter I was going to go to is the Australian Criminal Code.  If I can start at section 15.4, it simply indicates that there are some provisions in the Code where the offence applies:

(a)whether or not the conduct constituting the alleged offence occurs in Australia; and

(b)whether or not a result of the conduct constituting the alleged offence occurs in Australia.  

That is to say the offence can be entirely done and with the consequences experienced outside of Australia.  That would typically be offences which are like piracy and torture and the like which are unlawful at customary international law.  One sees in section 274.2(5), that torture is an offence to which 15.4 extends.  But going back to 274.1, one sees there a reference to the:

Convention Against Torture –

and in subsection (2), there, there is an expression:

An expression that is used both in this Division and in the Convention . . . has, in this Division, the same meaning as it has in the Convention.   

We say that that goes beyond what I have described earlier as sort of the Koowarta, Greentree idea of a presumption or a prima facie view.  This actually specifies that where the language is the same it should have the same meaning and, for what it is worth, to address your Honour Justice Edelman’s earlier question, we would say, and if that meaning develops in the future that is meant to be embraced as well.  In 274.2(1)(a) it contains an offence with a physical element of inflicting:

severe physical or mental pain or suffering –

Then, one goes from there back to section 5.6 “Offences that do not specify fault elements” and under subsection (2):

If the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element.

Then, one goes to 5.4(4):

If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element.

Then, one goes to “Intention” 5.2(3):

A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events.

Which is another example of intention bearing the meaning we say it has and this is ‑ ‑ ‑

KIEFEL CJ:   Sorry, how are you using the Commonwealth Code?

MR LLOYD:   We say this is Australia; Australia is making an enactment pursuant to the Convention against Torture to give effect to what it understands to be the breadth and effect of the Convention against Torture.  It has not said the Convention against Torture only is an offence in relation to harm which is subjectively desired to be inflicted.  It extends to harm which is done where there is an awareness that it will occur in the ordinary course of events.  So that, we say, this is, as it were, opinio juris of Australia showing that they understand the Torture Convention as having the same meaning we say it has.

I do not know if that has answered your Honour’s question, but there is some difficulty in drawing the line in the hard cases between what is just an inference from a virtually certain result and what is properly described as an intention that they blur, as I think paragraph 15 of Zaburoni recognises.

EDELMAN J:   So you say that that approach is the one that the Full Court applied?

MR DONAGHUE:   Yes.  As to Kunarac, your Honours, could I invite the Court to turn to paragraph 137?  The argument was an argument whereby the appellants were attempting to escape responsibility for their crimes by saying that their motivation was sexual rather than to inflict harm, and unsurprisingly the Court was not attracted to that argument, amongst other things, because it is an argument that tends to blur the distinction between motivation on the one hand and intent on the other in the way that Zaburoni emphasises should not occur.

If your Honours turn to paragraph 142, your Honour Justice Gageler asked my friend a question which arose from an observation in paragraph 153, where the court said:

In view of the definition, it is important ‑

The definition, in our submission, to which that passage refers is what your Honour sees in paragraph 142:  it is not the CAT.  In 142 you will see:

With reference to the Torture Convention and the case‑law of the Tribunal and the ICTR, the Trial Chamber adopted a definition based on the following constitutive elements ‑

You see essentially that same definition in other decisions of the International Criminal Tribunal, including the Furund’ija Case, which is another case we have given you in the materials.  One of the striking things about that definition, when you look at it with the eye at least of an Australian lawyer, is that it does not link the requisite intention to the result.  So in paragraph (i) there is a requirement to inflict:

by act or omission, of severe pain or suffering ‑

No difficulty there.  And then:

The act or omission ‑

that is, the act or omission that inflicts the severe pain or suffering:

must be intentional.

But nowhere does it say the result must be intentional.  That tends to illustrate the difficulty of picking up decisions decided in international legal contexts with different legal traditions and trying to apply them then in an Australian domestic context, because the analysis does not ever really fix upon the critical issue that your Honours are currently considering in terms of what intention is required in relation the result.  The Court does not identify the elements in that way and never ties its analysis to that particular point.

The next thing to note about this case, your Honours, is at paragraph 150 where the Court makes an observation that very closely parallels some questions that your Honour the Chief Justice put to my friend this morning about the particular characteristics of rape and sexual violence.  And in the last sentence, particularly, at paragraph 150:

Sexual violence necessarily gives rise to severe pain or suffering, whether physical or mental, and in this way justifies its characterisation as an act of torture.

Having said:

some acts establish per se the suffering of those upon whom they were inflicted.

I think your Honour the Chief Justice put to my friend that the particular observations that he was relying on were really reflective of that idea.  In our submission, they very much were, as is apparent from the discussion only a few paragraphs earlier – rape is a kind of conduct where intending to rape necessarily means you are intending to inflict serious harm.  There is no meaningful distinction between those ideas.

GORDON J:   So in relation to the examples that Mr Lloyd gave us does that analysis extend ‑ ‑ ‑

MR DONAGHUE:   To almost all of them, your Honour.  I think it extends to (b), (c) and (d).  And so, to that extent, there is no difference in that we submit that all of those examples are examples where it would be open to find an intentional infliction of harm.

So then, of course, when one gets to paragraph 153 in the context of the other paragraphs I have just taken your Honours to, it is, in our submission, far from apparent that what the Court is there doing is giving an authoritative international exposition of what the intent requirement is with respect to the result of inflicting pain or suffering.  And yet that is really the high point of our friend’s case when they say that international law does require, though it does have a meaning that is of the kind that they urge such that notwithstanding the ordinary meaning of intent, your Honours should find that that word extends to a situation where one does something, taking the risk that in the ordinary course of events it might have a particular consequence.  That, we submit, is not “intent” – it is not “intent” in domestic law and this case is not authority for the proposition that that is “intent” in international law, either.

The Rome Statute, in our submission, does not take our friends anywhere because the provisions for a number of reasons but, most importantly, because the wording that it uses both in qualifying and hedging about the torture prohibition but then also in defining the intent element has no parallel in the CAT.  Similarly, the Criminal Code cannot, in our submission, legitimately be used to – or the definitions in the Criminal Code cannot legitimately be used to effect the meaning of a different Act and that that is so irrespective of the order in which those definitions are passed.

I think our friend tried to use the definitions by saying, well, the enactment of those definitions is Australian opinion juris that can then be used to inform the meaning of international law.  In our submission, one difficulty with that analysis is that opinio juris is, as your Honours know, a concept about the meaning of customary international law.

The agreed position is that the CAT as an international convention was the source of the meaning of these words and to seek to use the Acts of one State party to the convention in enacting particular domestic law as a source could tell one anything about the meaning, isolated from any other evidence about State practice or opinio juris or any argument that the meaning of the convention has evolved in accordance with customary international law is, we submit, not to create a legitimate mechanism by which the definitions in one Act can affect the meaning of another.

The last point, your Honours, we seek to make is responsive to the point that Mr Lloyd sought to make from the ministerial guidelines that he handed up.  The submission seemed to be that our contention that it was possible for the Minister to respond to Australia’s non‑refoulement obligations by using other powers was inconcsistent with our own documents, in our submission, cannot be made good. 

If your Honours go to section 4 of that guideline, this is in the cases that should be referred to the Minister and go to the second last bullet point:

a person’s particular circumstances or personal characteristics provide a sound basis for believing that there is a significant threat to their personal security, human rights or human dignity if they return to their country of origin, but the mistreatment does not meet the criteria for the grant of any type of protection visa.

That is exactly the case that we put to your Honours, that they do not meet the requirement for a protection visa because of the intentional requirement.  There is no reason to read these guidelines as excluding that scenario.

It is also, in our submission, doubtful that our friend’s submission that when the next bullet point talks about people who are being excluded from the grant of a protection visa that line is properly to be read as limited only to paragraph 36(2C), which was the way Mr Lloyd invited your Honours to read it.

Paragraph 36(2C) does not talk about a person being excluded from eligibility for a protection visa; it just says a non‑citizen is taken not to meet the criteria.  So a person is no more excluded by that provision than they are by any other provision to be or the definitions that cause them not to meet the criteria. 

So, in our submission, your Honours should not accept that there is any reason that in cases that fall outside the entitlement to a protection visa that there is any reason that the Minister cannot respond to those cases in exactly the way that those situations were dealt with for several decades

before the enactment of the complementary protection regime.  Unless your Honours have any questions, those are our submissions.

KIEFEL CJ:   Yes, thank you.  Any reply, Mr Lloyd?

MR LLOYD:   Yes, your Honour.  I think an answer to your Honour Justice Edelman’s question, my friend said that the court below applied his virtual certainty approach to the matter.  That is simply not correct.  It was not even before the court below.  In paragraph 46 of our submissions in reply, we noted that there was a shift in the Minister’s position in relation to saying, well, intent is not just limited to desire; it can be made out if there is this virtual certainty that the harm will happen, and we say in paragraph 46, well, that is enough for us to win.  It is not as good as we want to win, but that is enough for us to win, because that is not what the Tribunal said.

The Tribunal rejected our case.  It did not make all of the factual findings that needed to be made.  My friend was right in saying that is what we say because it came to the view that there was no intent, and there was no intent because there was a lack of resources.  They really wanted to stop pain and suffering, but there was a lack of resources.  So, it did not look whether something was a virtual certainty or likely.  On either of those positions, we succeed, admittedly on one not as helpfully upon remitter as on the other.  But on any view, the Tribunal did not apply that.  All the court below did was find no error in what the Tribunal did.  So, to that extent, we make that point upfront.

Our case fell into three broad propositions.  The first proposition is we said that the word “intent” is broad enough to have more than one meaning, or is able to have more than one meaning, and at no point has the Minister rejected that proposition. 

I think your Honour Justice Gageler specifically asked if he is saying that is the only meaning, and he says it is the ordinary meaning.  We have not disputed that there are lots of criminal law cases that say it is the ordinary meaning and no doubt in the criminal law context it may well be the ordinary meaning.  That is neither here nor there.

We then say there are two other ways we get to the solution that we say is the correct solution.  The two ways are materially independent and the way my friend sought to answer them runs them together in a way which we think tends to conflate the issues. 

The first way we get to our answer is we say what do the words “intentionally inflicted” mean?  We say that they were all brought in the same Act at the same time.  We know that the words are used in the Convention against Torture.  They are drawn from the Convention against Torture.  That is common ground.  Then, in relation to two other definitions or two other things which are not defined in the treaties, they are implemented and inserted into those two other things. 

Now, our first proposition is to say in an Act the same language inserted at the same time should have the same meaning.  It is not a radical proposition.  In fact, in their paragraph 39, we thought they even agreed with that, but it is not clear that they agree with that, so let me make that point.

We then say, well, what does it mean?  It means what it means in the Convention against Torture.  That is where it is drawn from.  They say no, because of MZYYL it is a code and the Code excludes the Torture Convention meaning, and they say, well, when you look at the complementary protection regime there is a number of things in it that are not ad idem with the underlying or the related international instruments.

We agree.  The security point that I pointed out in section 36(2C) is an express exception, treated in all the extrinsic material as an express exception, that is one.  Another, posited by my friend, is section 36(2B)(c) – maybe that is true.  It is not a matter in this case.  What is clear, we say, is that there is no modification.  So even accepting, of course, that the Parliament can modify the language, they did not modify the language of the definition of “torture” in relation to intentionally inflicted.  In those circumstances, we say that the normal approach should apply.  The purpose of the definition of “torture” is to fulfil Australia’s non‑refoulement obligations.  There is no reason, whatsoever, to read it down in some way.  We say that it should have the international meaning.

Then, there is a dispute as to what the international meaning is.  I will not take the Court to it – we address all of those matters of dispute in our submissions in reply.  There is the Kalashnikov Case.  The Kalashnikov Case was not a torture case.  So, query what it can actually tell us about the definition of “torture” because – although as an Article 3 case there was – nowhere did Mr Kalashnikov assert that there was intention.  He knew that under the cruel or inhuman or degrading treatment, intent is not a requirement.  He did not assert that it was a requirement and, not surprisingly, the Court did not rule on whether or not there was intent because it was never advanced in that way.  So, the case tells nothing about what the intent requirement in the Convention against Torture says.

Then, reliance is placed upon what is said by Professor Cassese and Nowak.  We respond to that in our reply in submissions 49 to 51.  But in both of those passages they deal with different issues.  They do not actually say what “intent” means and they certainly do not say anything inconsistent with our construction of “intent” and we rely upon that.  The publicists that we rely upon are criticised for not citing any authorities and yet their publicists also do not cite authorities, for what that is worth, as a passing shot.

So, then we say at least in an Australian court, the behaviour of the Australian government to give effect to its Torture Convention obligations is relevant opinio juris.  I thought I made it clear this morning that I was not saying that what is in one Act necessarily affects the construction of another Act, but it is relevant in the way I have indicated, as is the Canadian approach.  They are all sources of international law.

Now, that I think is all I want to say about that.  Now, the other and separate way we get there to our construction is we say, well, putting aside the Convention against Torture, there is a need to construe the word “intention” in this context where it serves a particular purpose.  What purpose does it serve?  There is a beneficial purpose.  The beneficial purpose is not the granting of protection visas. 

We did not say it was.  The purpose is so that people to whom Australia owes non‑refoulement obligations do not have to go through the application/fail, application/fail ministerial intervention path but instead have access to an accountable, efficient and transparent process.  We say that was the mischief that it was designed to achieve and so one should ask in construing the word “intent”, accepting that our view of “intent” is open as a possible way of construing the word, which one better achieves the purpose of the legislation.

And I think my friend accepted that our construction would lead to more people who are owed non‑refoulement obligations going through the efficient, accountable, transparent process than his system which he says will result in the Minister having to use the ministerial intervention power which was the exact way it used to be and was a move away from that.  They take issue with our notion that their documents lead to the view that they do not actually apply it in the way that they have submitted, but my friend did not explain the notion that the Minister does not want to hear any request that raises claims in relation to Australia’s non‑refoulement obligations.  So, we say, that is not cogent at all.

In relation to our second way of putting it, we acknowledge, as my friend pointed out, that – it is common ground between us that Article 7 of the ICCPR does not require intent.  Now, where there is a difference between us is that they say, in fact, Parliament knew this or had to know it.  We say, your department told them it was reflective of current international law.  Why should the Court assume Parliament knew were experts on international law when the departmental submission said that it was co‑extensive?  Their definitions gave effect to existing current international

law, and the Minister in his second reading speech indicated that the definitions were to give effect to those obligations. 

So there is a point there but perhaps ultimately nothing turns on that, except that we say that it should not be construed on the basis that Parliament knew they were doing something narrower and therefore one should then entirely disregard the ambit of the non‑refoulement obligations.  We say that, in any event, the intention was to get people out of the secret ministerial intervention system and into an open, transparent system, and a construction which does that broadly is consistent with the object of the provisions.

EDELMAN J:   Does that construction depend upon accepting your view about what “intention” means at international law?

MR LLOYD:   That construction is completely irrelevant to “intention” because the first construction turns under the CAT meaning of “intention”.  On any view, our view of “intent” will embrace more people into the transparent and open system than the Minister’s view.  It does not give any additional people.  There are no people who come in that would not be in, because there is no intent requirement; it just brings in more people into the open scheme.

Our submissions in paragraph 28 in reply have made it abundantly clear that at all times we said in relation to this argument that construction should be preferred because it goes as far as possible - as far as the language can properly bear, it avoids the disjunction, not that there will be no disconformity.  We accept there will be disconformity, but a construction that reduces that disconformity advances the policy of the legislation. 

One point again was put against us that there are many instances where disconformity arises and they gave the example of the offshore entry person or the unauthorised maritime arrival.  I note that in the extrinsic material on page 1 of the explanatory memorandum that is expressly identified as being a group that is outside that, but then said that they are doing a mirror administrative scheme to have the same result, whatever that means.

So, it is not a situation where Parliament was uninterested in the level of disconformity.  The disconformities, so far as the legislative extrinsic material suggested, was the security character cases and the offshore entry person cases.  There is no suggestion that – and by the way, our definitions are really quite different to our international obligations so there will still be a bunch of other cases where the Minister’s intervention will be used.  May it please the Court, they are our submissions.

KIEFEL CJ:   The Court reserves its decision in this matter and adjourns to 9.45 am tomorrow for pronouncement of orders and otherwise until 10 am.

AT 4.13 PM THE MATTER WAS ADJOURNED