YYMT and FRFJ
[2010] AATA 447
•16 June 2010
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2008/6010
GENERAL ADMINISTRATIVE DIVISION )
Re:MQCR
Applicant
And:MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2008/6011
GENERAL ADMINISTRATIVE DIVISION )
Re:YYMT
Applicant
And:MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
CORRIGENDUM TO DECISION [2010] AATA 447
The Tribunal amends its decisions and reasons for decision published on 16 June 2010 as follows:
1. At page four:
(a)changing the application number from 2008/6010 to 2008/6011; and
(b)deleting FRFJ as the name of the Respondent and inserting Minister for Immigration and Citizenship;
2.At page five:
(a)changing the application number from 2008/6011 to 2008/6010;
(b)deleting SHVF as the name of the Respondent and inserting Minister for Immigration and Citizenship; and
(c)Where the names of those constituting the Tribunal are listed, insert in the next line after Deputy President S A Forgie, Senior Member E Fice; and
3.At page 112, following the certification of the decision and reasons for decision and following those listed as Counsel for the Applicants insert after Ms Debbie Mortimer SC and Mr Guy Gilbert.
S A Forgie
Deputy President
CATCHWORDS – IMMIGRATION – REFUGEES – protection visa - whether applicants are persons to whom Australia has protection obligations under refugee conventions - whether serious reasons to believe applicants have committed serious non-political crimes - decisions set aside.
Al-Habr and Minister for Immigration and Multicultural Affairs [1999] AATA 150
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Polyukhovich v The Commonwealth (1991) 172 CLR 501
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R v Finta (1994) 112 DLR (4th) 513
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DECISION AND REASONS FOR DECISION [2010] AATA 447
(PART ONE: UNRESTRICTED ACCESS)
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2008/6010
GENERAL ADMINISTRATIVE DIVISION )
Re:YYMT
Applicant
And:FRFJ
Respondent
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2008/6011
GENERAL ADMINISTRATIVE DIVISION )
Re:MQCR
Applicant
And:SHVF
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Date: 16 June 2010
Place: Melbourne
Decision:The Tribunal:
1. sets aside the decision of the respondent dated 11 December 2008; and
2.substitutes a decision that the provisions of Art 1F(b) of the 1951 Convention Relating to the Status of Refugees with the 1967 Protocol do not exclude the application of that Convention to YYMT and MQCR, i.e. there are no serious reasons for considering that YYMT and/or MQCR committed a serious non-political crime outside the country of refuge prior to their admission to that country as a refugee.
S A FORGIE
Deputy President
REASONS FOR DECISION
(PART ONE: UNRESTRICTED ACCESS)
The sole issue in this matter is whether Article 1F(b) of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951[1] as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967[2] (Refugees Convention[3]) operates to exclude the applicants, YYMT and MQCR,
or either of them from the protection of that Convention. Article 1F(b) will operate in that way if there are serious reasons for considering that they committed a serious non-political crime outside Australia before they were admitted as refugees.
A delegate of the respondent, the Minister for Immigration and Citizenship (Minister), decided on 11 December 2008 that there are serious reasons for considering that and relied on the actions of YYMT and MQCR in the course of leaving a country in earlier times. As a consequence, the delegate refused their applications for Protection (Class XA) visas lodged in 2008.
[1] Ratified by Australia on 22 January 1954 with effect from 22 April 1954; Australian Treaty Series, 1954, No. 5
[2] Acceded to by Australia on 13 December 1973; Australian Treaty Series, 1973, No. 37
[3] Refugees Convention and Refugees Protocol defined in Migration Act 1958, s 5(1)
We are mindful that an order was made on 1 October 2009 to the effect that the hearing of these applications will be in private and that evidence and documents relied on, submissions made and transcripts recorded are limited to the parties, their representatives and a limited number of other persons. The order may be varied but that is a matter to be raised at a future time. As it stands, it does not extend to the parties’ submissions regarding the law that we should apply in this case or to our interpretation of the general principles that we must apply. Even if there continue to be sound reasons to maintain the confidentiality order, we think it important that our understanding of the law we must apply be publicly available. That is not because we think our consideration to have any particular significance. It is because it is desirable that what the Tribunal does and the basis on which it proceeds and makes its decisions should be available to the public to the greatest extent possible. Only in that way can the public have some assurance that it is operating according to law and acting consistently according to that law. That the public should have that assurance and insight is inherent in the Parliament’s stipulation that the proceedings of the Tribunal should be held in public and evidence given and documents lodged with the Tribunal should be made available to the public.[4]
[4] Administrative Appeals Tribunal Act 1975, s 35(3)
In view of the current confidentiality orders, all that we can say of the facts and the decision is that we have decided that YYMT and MQCR do not come within the terms of Art 1F(b) of the Refugees Convention and we have:
1.set aside the decision of the respondent dated 11 December 2008; and
2.substituted a decision that the provisions of Art 1F(b) of the 1951 Convention Relating to the Status of Refugees with the 1967 Protocol do not exclude the application of that Convention to YYMT and MQCR, i.e. there are no serious reasons for considering that YYMT and/or MQCR committed a serious non-political crime outside the country of refuge prior to their admission to that country as a refugee.
CONSIDERATION OF LEGISLATIVE BACKGROUND
Visas
A.Visas generally
Under Part 2 of the Migration Act, the Minister may grant a non-citizen[5] permission either to travel to and enter Australia, to remain in Australia for a specified or indefinite period or to both travel and enter and remain.[6] The permission is known as a “visa”. A non-citizen who wants a visa must apply for a visa of a particular class.[7]
[5] A “non-citizen” means a person who is not an Australian citizen: Migration Act, s 5(1).
[6] Migration Act, ss 29(1), (2) and (3)
[7] Migration Act, s 45(1)
Putting aside whether they also permit a person to travel to and enter Australia, there are two kinds of visas. One permits its holder to remain in Australia indefinitely and is known as a permanent visa.[8] The other permits its holder to remain in Australia during a specified period, until a specified event happens or while the holder has a specified status.[9] Visas may also be categorised into classes. There are prescribed classes of visas as well as those classes specified in particular sections of the Migration Act.[10] The prescribed classes of visa are found in Schedule 1 of the Migration Regulations 1994 (Regulations). Those classes of visa may be of a class for which provision is made in the Migration Act itself.[11]
[8] Migration Act, s 30(1)
[9] Migration Act, s 30(2)
[10] Migration Act, ss 31(1) and (2)
[11] Migration Act, s 31(3)
B.Protection visas
Section 36 of the Migration Act provides that there is a class of visas to be known as protection visas. A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Convention. Alternatively, the person must be the spouse or a dependant of such a person and that person holds a protection visa.[12]
[12] Migration Act, s 36(2)(b)
Section 36(3) qualifies Australia’s protection obligation by providing that it is taken not to have protection obligations to a non-citizen who has not taken all reasonable steps to avail him or herself of a right to enter or reside in a country, including those of which he or she is a national, apart from Australia. A non-citizen’s nationality of a particular country must be determined solely by reference to the law of that country.[13] That requirement does not, by implication, affect the interpretation of any other provisions of the Migration Act.[14]
[13] Migration Act, s 36(6)
[14] Migration Act, s 36(7)
Should the non-citizen have a well-founded fear of being persecuted in a country apart from Australia for reasons of race, religion, nationality, membership of a particular social group or political opinion, the qualification in s 36(3) does not apply.[15] In the same way, that qualification does not apply if the non-citizen has a well-founded fear that the other country will return him or her to another country in which he or she will be persecuted for one of those reasons.[16]
[15] Migration Act, s 36(4)
[16] Migration Act, s 36(5)
Under the Regulations, provision is made for a subclass 866 (Protection) visa known also as a Protection (Class XA) visa. YYMT and MQCR each applied for this class of visa.
C.Criteria for subclass 866 (Protection) visa or Protection (Class XA) visa
Section 40(1) of the Migration Act provides that the Regulations may provide that visas or visas of a specified class may only be granted in specified circumstances. Schedule 2 of the Regulations makes provision for the grant of visas. It makes provision for the circumstances in which a visa of a particular class may be granted by specifying criteria that must be satisfied in relation to each class. The primary criteria must be satisfied at the time of the application for the visa. The secondary criteria must be satisfied at the time of decision.
A Protection (Class XA) visa comes under Subclass 866 Protection visas. Of the secondary criteria that must be satisfied at the time of the decision, the only relevant one for the purposes of this case is that found in item 866.221:
“The Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention.”
The Convention
A.Articles 1A and 1F
The Refugees Convention is concerned with the status and protection of refugees. In so far as it is relevant to this case, a “refugee” is defined in Article 1A(2) of Chapter I as a person who:
“… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
In the case of a person who has more than one nationality, the term ‘the country of his nationality’ shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national.”
Articles 1C, D, E and F set out the circumstances in which the Convention ceases to apply to a person who has come within the definition of a refugee. Article 1F is relevant in the circumstances of this case and, in particular,
Art 1F(b). In order to place Art 1F(b) in its context, we set out the whole of the Article:“The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a)he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b)he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c)he has been guilty of acts contrary to the purposes and principles of the United Nations.”
B.Section 91T of the Migration Act and the interpretation of Art 1F(b)
Subdivision AL of Division 3 of Part 2 of the Migration Act makes particular provision for protection visas. Among its provisions is s 91T relating to the interpretation of Article 1F of the Refugee Convention and, in particular, relating to what is meant by a “non-political crime”. Section 91T of the Migration Act was added to the Migration Act by s 3 and item 5 of Part 1 of Schedule 1 to the Migration Legislation Amendment (No. 6) Act 2001.[17] It was one of the sections added as part of new Subdivision AL of Division 3 of Part 2 of the Migration Act and came into effect on 1 October 2001. That was before MQCR and YYMT lodged their applications for Protection (Class XA) visas in 2008. On behalf of the Minister, Dr Donaghue submitted that these sections apply to their applications and are determinative of it. We will return to those submissions and those of Ms Mortimer and Mr Gilbert to
a contrary effect after we have considered the law that applied before the enactment of
s 91T. By doing this, we consider that s 91T and its effect on the interpretation of
Art 1F(b) can best be understood.[17] No. 131 of 2001
Principles regarding the interpretation of Article 1F(b) before enactment of s 91T of the Migration Act
A.A Convention for beneficial purposes but tempered by factors concerning the protection and safety of the receiving country
It is accepted that there need be no initial determination whether a person claiming protection under the Refugees Convention is a person coming within Art 1A.[18]
[18] Minister for Immigration and Multicultural Affairs v Singh [2002] HCA 7; (2002) 209 CLR 533; 186 ALR 393 at [5]; 538 395 per Gleeson CJ; [30]-[31]; 547-548; 402 and [61]; 557; 409 per Gaudron J; [87]; 563; 414-415 per Kirby J and [162]; 592; 438 per Callinan J
In considering Art 1F(b) in Dhayakpa v Minister for Immigration and Ethnic Affairs[19] (Dhayakpa), French J said that the:
“… provisions of the Convention are beneficial and are not to be given a narrow construction. The exemption in Art 1F(b), however, is protective of the order and safety of the receiving State. It is not, in my opinion, to be construed so narrowly as to undercut its evident policy. … The operation of the exemption is not punitive. There can be no question of twice punishing a person for the same offence. Rather it is protective of the interests of the receiving State.”[20]
and, a little earlier, that:
“ The general objective of the Article 1F exemption, like similar provisions … is that the rights they create should not be abused by fugitives from justice nor interfere with the law of extradition …”[21]
[19] [1995] FCA 1653; (1995) 62 FCR 556
[20] [1995] FCA 1653; (1995) 62 FCR 556 at [29]; 565. Approved by the Full Court of the Federal Court in Ovcharuk v Minister for Immigration and Multicultural Affairs [1998] FCA 1314; (1998) 88 FCR 173; 51 ALD 549; 158 ALR 289 at 180; 555; 295 per Whitlam J; and 185; 560; 300 per Branson J.
[21] [1995] FCA 1653; (1995) 62 FCR 556 at [26]; 564
Should it be decided on the facts as found at the time the decision is made that Art 1F(b) applies to a person, the consequences are clear from its opening wording: “The provisions of this Convention shall not apply …” to that person.
In particular, the protection provisions of the Convention will not apply. If the grant or cancellation of a visa is dependent upon those protection provisions applying or not applying, as the case may be, the visa must be refused or cancelled.[22] If, on the facts as found at the time of the decision on the application for such a visa, the Convention does not apply then the protection obligations will not arise and the visa will have to be refused. The application or otherwise of Art 1F(b) is a decision that may be made from time to time. If, for example, a visa is granted but material is subsequently obtained to suggest that Art 1F(b) might apply, the visa may be cancelled or a different visa refused if a decision is made that the criteria in Art 1F(b) are met.[23][22] WAKN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1245; (2004) 138 FCR 579; (2004) 211 ALR 398; (2004) 40 AAR 223 at [56]; 593; 411; 237 per French J
[23] WAKN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1245; (2004) 138 FCR 579; (2004) 211 ALR 398; (2004) 40 AAR 223 at [55]; 593; 411; 237 per French J
B.What is a crime?
The first matter to consider is how to identify a “crime”. In Brown v Classification Review Board of the Office of Film & Literature classification[24] (Brown), Merkel J considered the meaning of the word “crime’ when reviewing a decision to refuse classification of an article in a student journal. In making that decision, the Chief Censor had applied the National Classification Code incorporated in the Schedule to the Classification (Publications, Films and Computer Games) Act 1995. Under that Code, publications would be refused classification if, among other things, they described “crime”. Merkel J said of that word:
“… The well known description or definition of what amounts to a crime was stated by Lord Atkin in Proprietary Articles Trade Association v Attorney-General for Canada [1931] AC 310 at 324:
Criminal law connotes only the quality of such acts or omissions as are prohibited under appropriate penal provisions by authority of the State. The criminal quality of an act cannot be discerned by intuition; nor can it be discovered by reference to any standard but one: Is the act prohibited with penal consequences? Morality and criminality are far from coextensive; nor is the sphere of criminality necessarily part of a more extensive field covered by morality - unless the moral code necessarily disapproves all acts prohibited by the State, in which case the argument moves in a circle. It appears to their Lordships to be of little value to seek to confine crimes to a category of acts which by their very nature belong to the domain of ‘criminal jurisprudence’; for the domain of criminal jurisprudence can only be ascertained by examining what acts at any particular period are declared by the State to be crimes, and the only common nature they will be found to possess is that they are prohibited by the State and that those who commit them are punished.
However, not all conduct which renders an individual liable to a penalty is recognised by the law as being criminal: see Gapes v. Commercial Bank of Australia Ltd (1979) 27 ALR 87 at 112 per Deane J. As was said by Brett MR in Attorney-General v. Bradlaugh (1885) 14 QBD 667 at 687:
The recovery of a penalty, if that is the only consequence, does not make the prohibited act a crime. If it did, it seems to me that that distinction which has been well known and established in law for many years between a penal statute and a criminal enactment, would fall to the ground, for every penal statute would involve a crime, and would be a criminal enactment.
Accordingly, as was demonstrated in Gapes, regulatory and many other offences that attract a penalty may not fall within the definition of a crime. Put another way it must be established that the conduct in question falls within the category of conduct stipulated by the law as constituting a crime.”[25]
[24] [1997] AATA 474; (1997) 145 ALR 464
[25] [1997] AATA 474; (1997) 145 ALR 464 at 477
The Corporations Act 2001 provides examples of legislative provisions that create crimes and of those that expose a person to civil liability only. To make a false or misleading statement contrary to s 1041E is, for example, an offence and so a crime but to engage in misleading or deceptive conduct contrary to s 1041H leads only to civil action for loss or damage under s 1041I.
C.Are charges or convictions required on the face of Article 1F(b)?
On a bare reading of the words of Article 1F(b), charges or convictions outside the receiving State are not required in order to find that a person has committed a serious non-political crime for the purposes of Art 1F(b). That Article refers only to the person’s having “committed”, and not to his or her having been “convicted”, of a serious non-political crime. It might be thought in some contexts to be drawing a fine distinction between a person’s having committed a crime and having been convicted of a crime but we do not think that is the case in the particular context of Art 1F(1)(b).
The word “commit” means “… to carry out or perpetrate (a crime, offence, error, etc) …”. To “convict” means “to prove or declare someone guilty (of
a crime). …”. A “conviction” is “the act of convicting”.[26] Committal of an offence does not necessarily lead to a conviction for that offence for are there are necessary investigative and court processes that intervene between the two events. “[W]hat amounts to a conviction admits of no single, comprehensive answer.”[27] A plea of guilty by an accused, for example, does not, of itself, constitute a conviction for an offence. As the Full Court of the Supreme Court of Victoria said in R v Tonks:[28]“… A conviction is a determination of guilt, and a determination of guilt must be the act of the court or the arm of the court charged with deciding the guilt of the accused. It may be that even a determination of guilt will not in all cases amount to a ‘conviction’, for the latter term may be used in a particular context as meaning not merely conviction by verdict where no judgment is given, but conviction by judgment. …”[29]
Examples of what a court could do to show that it had determined guilt are found in the judgment of Gibbs J in the Supreme Court of Queensland in R v Jerome and McMahon:[30]
“In the present case the court has done nothing upon the plea of guilty to indicate a determination of the question of guilt. The court might do that by imposing a punishment; by discharging a prisoner on his own recognisances; by releasing him upon parole; or even perhaps by adjourning the proceedings to enable information relevant only to the question of sentence to be obtained. Nothing of that kind occurred in the present case. The pleas of guilty, it is true, were said to be accepted, but they were never acted upon in such a way that the court finally determined the guilt of the accused persons.”[31]
[26] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
[27] Maxwell v The Queen (1996) 184 CLR 501; 135 ALR 1 at 507; 4 per Dawson and McHugh JJ
[28] [1963] VR 121
[29] [1963] VR 121 at 127
[30] [1964] Qd R 595
[31] [1963] Qd R 595 at 604 expressly adopted in Griffiths v R (1977) 137 CLR 293 at 335 per Aickin J
Bearing in mind the differences between the meanings of “commit” and “conviction”, it would seem to us that framers of Art 1F(b) have carefully chosen the word “committed” in Art 1F(b) and have chosen it on the basis that its meaning is different from a conviction. We have reached that conclusion having regard to
Art 33(2). That Article provides that a person who has “been convicted by a final judgment of a particularly serious crime” may, in certain circumstances, be returned to the State from which he or she seeks refuge. The formality of a conviction is required by that Article. No reference is made to whether or not the person concerned has committed the crime. Provided the decision-maker is satisfied that the crime of which the person has been convicted by a final judgment is a particularly serious crime, it would seem that there can be no separate enquiry as to whether the person committed the crime. By contrast, on the face of Art 1F(b), the enquiry as to whether the person committed the crime must be made but no conviction is required.
D.Is conduct assessed by reference to the law of the place where it took place of by the law of the receiving State?
In Ovcharuk v Minister for Immigration and Multicultural Affairs,[32] (Ovcharuk) Branson J reviewed the principles applying to the interpretation of international treaties and the international and Australian judicial and academic writings regarding the interpretation of Art 1F(b). Her Honour concluded:
“ Article 1F(b) is, as French J pointed out in Dhayakpa’s case, intended to be ‘protective of the order and safety of the receiving State’. On this basis there is every reason for considering, in my view, that the question of whether there are serious reasons for considering that a person ‘has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee’ may be answered by reference to notions of serious criminality accepted within the receiving State. Certainly, it cannot be seen to be within the object and purpose of the Convention that the question of whether conduct undertaken in a country from which refuge is sought amounts to ‘a serious non-political crime’ should be answered solely by reference to the notions of serious criminality accepted within that country. So to construe the Convention would remove from its protection many persons with legitimate claims to be accepted as refugees and who would not be likely to pose any threat to the order and safety of a receiving State. One needs only to bring to mind regimes under which conduct such as peaceful political dissent, the possession of alcohol and the “immodest” dress of women is regarded as seriously criminal.
...
Nothing in the context, object and purpose of the Refugees Convention, in my view, requires that Article 1F(b) should be construed other than according to the ordinary meaning of the words of the article. According to such ordinary meaning, the article is not confined in its operation to fugitives from foreign justice. I am content to adopt the observations of French J in Dhayakpa’s case, which are set out above, as to the evident policy of Article 1F(b) of the Refugees Convention.
…
I have discussed above the proper construction of the expression ‘serious non-political crime’. The expression, in the context in which it is found, does not, in my opinion, require the identification of a crime committed outside of Australia which is justiciable according to the law of the foreign jurisdiction in which it was committed. There is nothing in the language of Article 1F(b) which suggests that a person with respect to whom there are serious reasons for concluding that he or she has committed, outside of Australia, a crime justiciable under Australian law which is of a serious
non-political character, does not fall within its terms. …”[33][32] [1998] FCA 1314; (1998) 88 FCR 173; 51 ALD 549; 158 ALR 289
[33] [1998] FCA 1314; (1998) 88 FCR 173; 51 ALD 549; 158 ALR 289 at 185-186; 560-561; 300-301
In his judgment in Ovcharuk, Sackville J had distinguished between two cases. In the first, the conduct outside the receiving State did not constitute a crime under its laws. In the second, it did constitute a crime against the laws of the receiving State. His Honour said:
“ In the first case, I do not think that Article 1F(b) is satisfied unless there are serious grounds for considering that the relevant person’s conduct was criminal under the laws of the country where the conduct took place.
(I leave to one side conduct taking place in two or more countries or outside the territorial limits of any one country.) In other words, it is not enough that the conduct would have been criminal had it taken place within the country of refuge.This conclusion is supported by the language of Article 1F(b). It refers to the person having ‘committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee’. This is not language which suggests that a notional exercise is to be carried out; the language requires a crime to have been committed. Furthermore, unless the conduct relied on to invoke Article 1F(b) was criminal under the law of the country where it occurred, a person who acted quite lawfully under that law, and committed no offence under the law of the receiving country, could be found to have committed a ‘crime’, thereby excluding him or her from the protection of the Refugees Convention. It is not difficult to imagine conduct that would have been regarded as a crime (and perhaps as a serious crime) had it occurred in the country of refuge, yet was not criminal in the place where it occurred. Examples of such conduct might be sexual relations with persons under a specified age, the use or supply of particular drugs and certain forms of economic activity illegal in some places but not others. It is hardly a beneficial construction of the Refugees Convention to exclude a person who has never engaged in conduct for which he or she is liable to prosecution on the ground that he or she has committed a serious crime.
Where the conduct outside the country of refuge constitutes a crime against the law of the receiving country, the position is different. In these circumstances, Article 1F(b) can apply even without a finding that there are serious reasons for considering that the person’s conduct was criminal under the law of the country where it occurred. Article 1F(b) does not evince a preference for the application of the law of that country, as distinct from the law of the receiving country. In my opinion, there is no good reason why the word ‘crime’ should be construed as excluding extra-territorial conduct rendered criminal by the receiving country, even if the conduct was not criminal under the law of the country where it occurred. If the law of the receiving country renders criminal conduct which takes place outside its borders, that is sufficient to constitute the conduct a ‘crime’ for the purposes of Article 1F(b).”[34]
[34] [1998] FCA 1314; (1998) 88 FCR 173; 51 ALD 549; 158 ALR 289 at 190-191; 564-565; 305 and see also Whitlam J at 179; 554; 294-295
In his judgment in Ovcharuk, Whitlam J addressed the place of laws of the receiving State having having extra-territorial application:
“ It must be accepted that a country of refuge, such as Australia, may proscribe as criminal conduct that takes place abroad: R v Fan (1991) 24 NSWLR 60.[[35]] Why should it be supposed that a country of refuge would then deny itself the benefit of Art 1F(b) in discharging its obligations under the Refugees Convention? No good reason has been suggested. On the contrary, the obviously humanitarian object and purpose of the Refugees Convention do not require that a country of refuge should accord refugee status to a person where it has serious reasons for considering that person has committed outside that country a serious crime against one of its own laws. Article 33 only applies once a person has been granted refugee status. The benefit of its prohibition of expulsion or return is removed in strictly limited circumstances. A country of refuge surely cannot be required at the stage where it first considers a person’s claims to be a refugee to ignore serious reasons of the type to which par (b) of Art 1F is directed. A contrary construction would not be reasonable and the context certainly does not suggest it.”
[35] R v Fan considered s 233B(1)(cb) of the Customs Act 1901, which provided at the time: “Any person who: … (cb) conspires with another person or other persons to import, bring, or cause to be brought, into Australia any prohibited imports to which this section applies or to export from Australia any prohibited exports to which this section applies … shall be guilty of an offence.”
His Honour’s later comment that “The appellant cannot wish away the fact that a nation’s laws may have extraterritorial effect”[36] tends to underline that impression as does his earlier statement that:
“… What is most striking to me about Art 1F is the plain, matter-of-fact requirement that there should be ‘serious reasons for considering that’ a person ‘has committed’ a specified type of crime (paras (a) and (b)), or ‘has been guilty’ of the proscribed acts: para (c).”[37]
[36] [1998] FCA 1314; (1998) 88 FCR 173; 51 ALD 549; 158 ALR 289 at 179; 554; 294-295
[37] [1998] FCA 1314; (1998) 88 FCR 173; 51 ALD 549; 158 ALR 289 at 179; 554; 294
In summary, it seems to us that Ovcharuk is authority for the propositions that, in considering Art 1F(b):
1.regard can be had to conduct constituting a crime under the law of the country in which the acts were committed whether or not those acts would have constituted a crime under the law of the receiving country;
2.regard can be had to conduct committed in another country and constituting a crime under the law of the receiving State having extraterritorial application; and
3.regard cannot be had to conduct committed in another country but not constituting a crime under the law of that country or under the law of the receiving State having extraterritorial application.
E.Is conduct assessed by reference to the law in force at the time the conduct occurred or when refuge is claimed?
The words of Art 1F(b) themselves tend to suggest that reference is made to a person’s having committed a serious non-political crime outside the country of refuge “prior to his admission to that country as a refugee” (emphasis added).
The passage from the judgment of Sackville J in Ovcharuk, to which we have referred, suggests that reference must be made to the law in force at the time the acts were committed and not to the law in force at the time the application for a protection visa and so, in effect, an application for refuge is made. This was the view of it taken by Merkel, Finkelstein and Weinberg JJ in SRYYY v Minister for Immigration and Multicultural and Indigenous Affairs[38] (SRYYY). In that case, the Full Court of the Federal Court considered Art 1F(a) of the Refugees Convention, which provides:
“The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a)he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes.”
[38] [2005] FCAFC 42; (2004) 147 FCR 1; 220 ALR 394; 86 ALD 511
Speaking generally of Art 1F, it said:
“ The article seeks to balance the need to provide refuge outside of the countries of those whose human rights are at risk of violation, against the need to hold individuals accountable for their own crimes or violations of the human rights of others.”[39]
[39] [2005] FCAFC 42; (2004) 147 FCR 1; 220 ALR 394; 86 ALD 511 at [26]; 10; 402; 519
In SRYYY, the Minister had:
“… contended that Art 1F(a) permits recourse to any relevant definition found in an international instrument in existence at the time of the Art 1F(a) decision, even if it was not in existence at the time of the alleged criminal conduct. It was claimed that in order to give effect to the purpose of Art 1F(a) of preventing undeserving persons from gaining protection under the Refugees Convention, the question of exclusion of such persons is to be gauged by reference to the standards that apply at the date the decision is made, rather than the date of the conduct in question. It was argued that this approach does not impinge on the well established principle of nullum crimen sine lege (no crime without law making it so) because Art 1F(a) does not create, nor is it concerned with, criminal liability as such. Thus, so it was said, it is not a requirement that the conduct in question constitute an international crime when it is engaged in.”[40]
[40] [2005] FCAFC 42; (2004) 147 FCR 1; 220 ALR 394; 86 ALD 511 at [60]; 22-23; 414; 531
The Full Court rejected that contention saying:
“ There is a textual difficulty with the Minister’s construction. It is implicit in the phrase ‘there must be serious reasons for considering’ that the person in question has ‘committed’ a relevant international crime, that the conduct in question constituted a crime at the time that conduct was engaged in. In Ovcharuk Sackville J considered an analogous question concerning Art 1F(b) of the Refugees Convention. In considering the scope of that article his Honour held at the time the conduct was engaged in it must have constituted a crime under the local law where it occurred or under an Australian law having extraterritorial application to the place where it occurred. …”[41]
It went on to refer to the passage from the judgment of Sackville J at FCR 190-191; ALD 565; ALR 305, to which we have referred above.[42] It said that reasoning similar to that used by Sackville J in relation to Art 1F(b) is applicable to Art 1F(a) except to the extent that regard had to be had to different crimes.
[41] [2005] FCAFC 42; (2004) 147 FCR 1; 220 ALR 394; 86 ALD 511at [61]; 23; 414; 532
[42] See [24] above
F.Identifying the law in force at the time the acts were committed
F.1Identifying the law in force in Australia as the receiving State at the time the acts were committed: general principles
If Art 1F(b) applies in this case, we must identify a crime or crimes that comes within the description of “a serious non-political crime” committed by the person “outside the country of refuge prior to his admission to that country as a refugee”. Domestic Australian law is the obvious place to begin the search but what of international conventions outlawing certain acts? Australia may be a party to them and may even have ratified them but may or may not have enacted relevant legislation in order to incorporate the relevant provisions of the international conventions as part of Australian domestic law.
In SRYYY, the Full Court described the development of international criminal law following World War II on the basis that it provided an important part of the context in which Art 1F was intended to operate. It was concerned with the application of Art 1F(a), and not with Art 1F(b), but its relevance lies in the background it provides to the inclusion of Art 1F in the Refugees Convention at all. The Full Court traced the development of the law from the initial imposition of liability upon belligerent States, which left those States to regulate the activities of their own agents, to the further imposition of criminal responsibility upon individuals without the intervention of the belligerent States:
“ The concept of individual criminal responsibility under international law was not clearly established until the aftermath of the Second World War. By 1951, when the Refugees Convention was drafted, a number of instruments dealing with international crimes had come into existence. The Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and Charter of the International Military Tribunal, (82 UNTS 280, entered into force 8 August 1945) (‘the London Charter’), drafted and entered into by the four victorious powers (although it was also acceded to by a number of other states, including Australia) provided for trial of war criminals by an ‘international military tribunal’ (‘the Nuremberg IMT’) and
in Art VI defined the offences to be tried …”[43][43] [2005] FCAFC 42; (2004) 147 FCR 1; 220 ALR 394; 86 ALD 511 at [20]; 8; 400-401; 517-518
The Full Court went on in SRYYY to review the drafting of the Refugees Convention in the context of other relevant international conventions.
It noted:“ The final form of Art 1F(a) represented a rejection of the earlier approach of referring to specific international instruments that define the international crimes that would result in exclusion from the protection afforded by the Refugees Convention. Rather, the definition of such crimes was to be by reference to international instruments drawn up to make provision in respect of such crimes.
The clear purpose of Art 1F is to ensure that the protection obligations arising under the Refugees Convention are not extended to persons who were undeserving of the protection by reason of their past criminal misconduct and, if given protection, could escape prosecution for that conduct. In Pushpanathan v Canada (1998) 160 DLR (4th) 193 at 228 Bastarache J described the rationale of Art 1F as being that ‘those who are responsible for the persecution which creates refugees should not enjoy the benefits of a Convention designed to protect those refugees’. However, it is also clear that the purpose of the resort in Art 1F(a) to the definition of a crime against peace, a war crime and a crime against humanity in international instruments was premised on an important feature of international law, namely the uncertain and imprecise content of that law at any particular time. As was stated by Cardozo J in New Jersey v Delaware (1934) 291 US 361 at 383:
‘International law, or the law that governs between states, has at times, like the common law within states, a twilight existence during which it is hardly distinguishable from morality or justice, till at length the imprimatur of a court attests its jural quality.’
However, the imprimatur of a court to a rule or doctrine of international law requires a determination that the rule or doctrine in question has attained the position of general acceptance by, or assent of, the community of nations ‘as a rule of international conduct, evidenced by international treaties and conventions, authoritative textbooks, practice and judicial decisions’: see Compania Naviera Vascongado v SS Cristina [1938] AC 485 at 497 per Lord Macmillan.
Further, the rules of international law are dynamic and their content inevitably turns on the future evolution of international law: see, for example, New South Wales v The Commonwealth (1975) 135 CLR 337 at 466 per Mason J. Thus, a precise definition of the crimes the subject of Art 1F(a) can be a vexed and difficult question. The drafters of the final form of the article avoided that difficulty by enabling the decision-maker to draw upon the definitions of such crimes by reference to unspecified international instruments drawn up to provide for the crimes in question, rather than by reference to any specific international instruments or to customary international law.
It is also significant that the criterion employed in Art 1F(a) is that the definition of the relevant international crimes is to be derived from ‘the international instruments drawn up to make provision in respect of such crimes’. As was pointed out in North Seas Continental Shelf Cases (Federal Republic of Germany v Denmark; Federal Republic of Germany v Netherlands) (1969) ICJ Reports 3 at [60] – [74], an international instrument such as a treaty may reflect or codify pre-existing customary law; it may ‘crystallise’ a new rule of customary law; or subsequent state practice in accordance with the treaty may lead to the creation of a new rule of customary law after the adoption of the treaty provision.”[44]
[44] [2005] FCAFC 42; (2004) 147 FCR 1; 220 ALR 394; 86 ALD 511 at [28]-[32]; 10-11; 403; 520-521
The Full Court went on to examine various international conventions but, as the language used in Art 1F(b) to describe the crimes differs from that used in Art 1F(a), it is not appropriate to adopt the same approach in relation to Art 1F(b). The language of Art 1F(b) refers to “a serious non-political crime” and not to certain crimes “as defined in the international instruments drawn up to make provision in respect of such crimes”. There is nothing in SRYYY that means that we can, for the purposes of Art 1F(b), rely on crimes as defined in international conventions. As was decided in Ovcharuk, and approved by SRYYY, we may only rely on crimes constituted under the local law where the acts occurred or under an Australian law having extraterritorial application to the place where it occurred.
From time to time, international conventions, to which Australia is a party and which it has ratified, become part of the domestic law of Australia. Its becoming a party to the convention, its ratifying it and the convention’s becoming part of the domestic law are separate and distinct steps. The first two are actions, for which both the responsibility and power lie with the executive arm of government alone. Responsibility and power for the implementation of the convention into Australian domestic law lies with the legislative arm of government and so with Parliament.[45] The consequence is, as stated by Mason CJ and Deane J in Minister for Immigration and Multicultural Affairs v Teoh (Teoh):[46]
“… So, a treaty which has not been incorporated into our municipal law cannot operate as a direct source of individual rights and obligations under that law.”[47]
[45] Minister for Immigration and Multicultural Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273; 128 ALR 353; 69 ALJR 423; at [25] per Mason CJ and Deane J
[46] [1995] HCA 20; (1995) 183 CLR 273; 128 ALR 353
[47] [1995] HCA 20; (1995) 183 CLR 273; 128 ALR 353 at [25]; 287; 362 per Mason CJ and Deane J
The consideration in Teoh took place in the context of s 501 of the Migration Act which permits the Minister to cancel or refuse a visa in certain circumstances. On appeal to the Full Court of the Federal Court Black CJ found that the delegate had not properly considered the ramifications of the break up of
Mr Teoh’s marriage should his visa be cancelled. Carr and Lee JJ went further referring to the terms of the United NationsConventionon the Rights of the Child (“RC Convention”). Article 3.1 of thatConvention provides that “(i)n all actions concerning children ... the best interests of the child shall be a primary consideration.” Australia, through its Executive government, ratified the
RC Convention on 17 December 1990. It entered into force for Australia on 16 January 1991. That was before the Minister decided to refuse Mr Teoh a visa. After her delegate had made that decision, the Attorney-General made a declaration under
s 47(1) of the Human Rights and Equal Opportunity Act 1986 that the RC Convention was an international convention relating to human rights and human freedoms but it was common ground between the parties that the RC Convention had not been incorporated in Australian municipal or domestic law.
In their joint judgment, Mason CJ and Deane J considered the relevance of an international convention that has not been incorporated in Australian domestic law:
“ But the fact that theConventionhas not been incorporated into Australian law does not mean that its ratification holds no significance for Australian law. Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia’s obligations under a treaty or international conventionto which Australia is a party …, at least in those cases in which the legislation is enacted after, or in contemplation of, entry into, or ratification of, the relevant international instrument. That is because Parliament, prima facie, intends to give effect to Australia’s obligations under international law.
It is accepted that a statute is to be interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with the established rules of international law …. The form in which this principle has been expressed might be thought to lend support to the view that the proposition enunciated in the preceding paragraph should be stated so as to require the courts to favour a construction, as far as the language of the legislation permits, that is in conformity and not in conflict with Australia's international obligations. That indeed is how we would regard the proposition as stated in the preceding paragraph. In this context, there are strong reasons for rejecting a narrow conception of ambiguity. If the language of the legislation is susceptible of a construction which is consistent with the terms of the international instrument and the obligations which it imposes on Australia, then that construction should prevail. So expressed, the principle is no more than a canon of construction and does not import the terms of the treaty or convention into our municipal law as a source of individual rights and obligations ….
Apart from influencing the construction of a statute or subordinate legislation, an international conventionmay play a part in the development by the courts of the common law. The provisions of an international convention to which Australia is a party, especially one which declares universal fundamental rights, may be used by the courts as a legitimate guide in developing the common law …. But the courts should act in this fashion with due circumspection when the Parliament itself has not seen fit to incorporate the provisions of a convention into our domestic law. Judicial development of the common law must not be seen as a backdoor means of importing an unincorporatedconvention into Australian law. A cautious approach to the development of the common law by reference to international conventionswould be consistent with the approach which the courts have hitherto adopted to the development of the common law by reference to statutory policy and statutory materials …. Much will depend upon the nature of the relevant provision, the extent to which it has been accepted by the international community, the purpose which it is intended to serve and its relationship to the existing principles of our domestic law.
In the present case, however, we are not concerned with the resolution of an ambiguity in a statute. Nor are we concerned with the development of some existing principle of the common law. The critical questions to be resolved are whether the provisions of the Conventionare relevant to the exercise of the statutory discretion and, if so, whether Australia's ratification of the Conventioncan give rise to a legitimate expectation that the decision-maker will exercise that discretion in conformity with the terms of theConvention. The foregoing discussion of the status of the Convention in Australian law reveals no intrinsic reason for excluding its provisions from consideration by the decision-maker simply because it has not been incorporated into our municipal law.”[48]
[48] [1995] HCA 20; (1995) 183 CLR 273; 128 ALR 353 at [26]-[29]; 287-288 362-363
We are concerned neither with a statutory discretion nor with an ambiguity in a statutory provision enacted by Parliament. Our task is to identify
a crime constituted under the local law where the acts occurred or under an Australian law having extraterritorial application to the place where it occurred. In the case of Australian law, the fact that an international convention, to which Australia is a party and which it has ratified, provides for a criminal offence is irrelevant unless Parliament has incorporated it in domestic law by passing legislation.
F.2Identifying the law in force in the country at the time the acts were committed: general principles applicable in Australian courts
This was not a question that was particularly addressed by the parties. Rather, it seemed to be assumed on the part of the Minister that the law in the overseas country or countries concerned is the same as the law in Australia. Rather than make that assumption, we have looked to the authorities regarding foreign law and its recognition in the courts. While it is true that the Tribunal is not bound by the rules of evidence,[49] those rules have been developed with an eye to assessing what is and what is not probative evidence that can safely be relied upon. We seek guidance from them and from any principles they have established. Having done that, we can ascertain whether those principles are equally applicable to our assessment of the material and evidence before us or whether they should be modified or even not applied. By beginning with the principles and then moving to a decision in this case, we can put the decision we make into a context and so hope to contribute to consistency in administrative decision-making. Unlike a court which must decide
a case in adversarial proceedings based on the pleadings, the Tribunal’s decisions must fit neatly into the overall spectrum of administrative decision-making.[49] AAT Act, s 33(1)(c)
The fundamental proposition is that “The courts of Australia are not presumed to have any knowledge of foreign law.”[50] “Proof of foreign law is, of course, a matter for evidence”[51] as it is a matter of fact. That means that it may be the subject of agreement between the parties or, at common law, be established by expert opinion.[52] In more recent times, evidence of a statute, proclamation, treaty or act of state of a foreign country may be given in a proceeding by producing one or other of the documents referred to in s 174(1) of the Evidence Act 1995 (Evidence Act). Evidence of the unwritten or common law of a foreign country or the interpretation of its statutes may be given by producing a book containing judgments of its courts if that book is, or would be, used by its courts to inform them about that law or interpretation of those statutes.[53] “If the foreign law actually confers a discretion on the courts, then one may consider the authorities relating to how the courts in that country have applied the discretion.”[54] Decisions about the content of foreign law create no precedent.[55]
[50] Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54; (2005) 223 CLR 331; 221 ALR 213; 79 ALJR 1736 at [115]; 370; 241; 1757 per Gummow and Hayne JJ
[51] Amaca Pty Ltd v Bernard George Frost [2006] NSWCA 173; (2006) 67 NSWLR 635 at [102]; 652 per Spigelman CJ
[52] Sussex Peerage Case (1844) 11 Cl & F 85; 8 ER 1034; Baron de Bode’s Case (1845) 8 QB 208; 115 ER 854 applied in, for example, Mond v Berger (2004) 10 VR 534; Dodds-Streeton J
[53] Evidence Act, s 174
[54] R v Mokbel (Ruling No 4) [2006] VSC 137 at [30] per Gillard J
[55] [2005] HCA 54; (2005) 223 CLR 331; 221 ALR 213; 79 ALJR 1736 at [115]; 370; 241; 1757 per Gummow and Hayne JJ
Where expert evidence of a foreign law is given, it must meet the standards expected of all expert evidence. As Gillard J noted in R v Mokbel (Ruling No 4),[56] the expert may be cross-examined. An expert:
“… is entitled to state his opinion based upon his knowledge and practical experience of the foreign law and of course he may refer to statutory provisions, decisions or codes for the purpose of doing so. But in any such event, the Court is at liberty to examine the particular law or code or decision in order to determine the correct statement of the law. In De Beeche v South American Stores Ltd and Chilean Stores Ltd … [[1935] AC 148], Viscount Sankey LC stated:
‘Whilst it is true that the witnesses called to prove foreign law may refer to any passages in the code of their country as containing the law applicable to the case, the Court is at liberty to look at those passages and consider what is their proper meaning.’
… If there is a conflict of testimony, … the Court must reach its own interpretation of the foreign law taking into account the evidence given. See Lazard Bros v Midland Bank. [[1933] AC 279 at 298]. Lord Wright in that case summarised the law as follows:
‘What the Russian Soviet law is in that respect is a question of fact, of which the English court cannot take judicial cognisance even though the foreign law has already been proved before it in another case. The court must act upon the evidence before it in the actual case. … No earlier decision of the court can relieve the judge of the duty of deciding the question of the actual evidence given in the particular case. On what evidence of the foreign law a court can act has often been discussed. The evidence it is clear must be that of a qualified expert in the foreign law. If the law is contained in a code or written form, the question is not as to the language of the written law, but what the law is as shown by its exposition interpretation and adjudication: so in effect it was laid down by Coleridge J in Baron d Bode’s case. In the Sussex peerage case, Lord Denman stated his opinion as to the same effect as he had done in the Bardon de Bode’s case. He said that if there be a conflict of evidence of the experts, “you (the judge) must decide as well as you can on the conflicting testimony, but you must take the evidence from the witnesses.” Hence the court is not entitled to construe a foreign code itself: it has not “organs to know and to deal with the text of that law” (as was said by Lord Brougham in the Sussex peerage case). The text of the foreign law if put in evidence by the experts may be considered, if at all, only as part of the evidence and is a help to decide between conflicting expert testimony.’
(Emphases added)
In my respectful opinion, that summarises the law and the principles that must be applied in this proceeding.’[57]
[56] [2006] VSC 137
[57] [2006] VSC 137 at [24]-[26]
Gillard J concluded that, although the principles had been developed in civil proceedings, they applied equally to criminal proceedings.[58] The defence had raised the issue of foreign law in that case. It would seem that it did so in order to challenge whether actions taken by a US Federal Customs Officer in the United States of America to locate and check for two cocaine packages were actions taken in what would amount to a controlled operation under various provisions of the Commonwealth and State laws. If they were and the prescribed procedures followed, the officer would have been permitted to locate and check the packages without committing an offence. Gillard J found that the defence had to prove the foreign law on the balance of probabilities and said:
“… the Court would not accept evidence that is unpersuasive, or reveals that the whole law which bears on the factual matters has not been placed before the Court. Like any other finding of fact, the Court must do its best on the evidence but if the evidence does not satisfy the Court as to what the relevant law was, its application and effect, then the defence, as the party seeking to prove the foreign law, fails. …
… [I]f the court seeks to examine the foreign sources to form some opinion, it would only reach a conclusion if the evidence established that the Court had all the law relevant to the topic in evidence and that the Court felt a degree of confidence that its decision on what was the foreign law was soundly based. ”[59]
[58] [2006] VSC 137 at [28]
[59] [2006] VSC 137 at [45]-[46]
In the case before him, Gillard J decided that the defence had not established what the foreign law was at the time and the Court was not in a position to determine what it was. Therefore, it was not open to the defence to rely upon it.
Principles of this sort were applied in Mond v Berger[60] when Dodds-Streeton J considered an appeal from an arbitrator’s decision in which Rabbinical law had been applied. The parties had agreed that Rabbinical law was to be proved by expert evidence but her Honour did not accept the evidence of the expert saying:
“The value of expert evidence on foreign law depends upon the stated assumption of fact. Where incomplete facts were assumed, rather than a complex web of facts in context, little weight could be attributed to [the expert’s] evidence. Further, his affidavit in many instances failed to expose the basis of the expert’s conclusions for critical assessment by the court. It frequently failed to define key terms with sufficient precision to allow the court to ascertain the relevance of any conclusion to the disputed issues before it.”[61]
[60] [2004] VSC 45; (2004) 10 VR 534
[61] [2004] VSC 45; (2004) 10 VR 534 at [123]; 561
Where foreign law is not established either by agreement or by expert evidence, there is authority that:
“… Absent any expert evidence, as a general rule there is a presumption that the law of a foreign country is the same as that of the forum. The application of this presumption has certain surreal qualities about it when dealing with non-common law countries, especially those which profess to be ruled by religious codes, but be that as it may, the principle still applies …”[62]
[62] In Marriage of RK and SK (aka Khademollah) [2000] FamCA 1045; (2000) 159 FLR 42 at [157]; 84 per Kay and Holden JJ
The New South Wales Court of Appeal decided in Markisic v AEA Ethnic Publishers Pty Ltd & Ors[63] (Markisic) that the trial Judge had been entitled to presume that Macedonian law was the same as New South Wales law. The trial Judge had done so in proceedings for defamation brought by Mr Markisic against those publishing articles that he had taken his daughter from Macedonia to Australia without the consent of the child’s mother. The Court of Appeal held that the trial Judge had been entitled to determine the substantial truth of an imputation that the appellant committed the criminal offence of kidnapping by removing his daughter from Macedonia to Australia by reference to ss 90A and 91 of the Crimes Act 1900 (NSW). The appellant had not been required to plead those sections or otherwise particularise them.[64]
[63] [2006] NSWCA 378
[64] [2006] NSWCA 378 at [171] per Tobias JA with whom Beazley and Basten JJA agreed
In the course of his judgment, Tobias JA, with whom Beazley and Basten JJA agreed, said in Markisic:
“ So far as the question of Macedonian law relating to kidnapping was concerned, the Full Court of the Family Court in its judgment of 29 September 1998 in the matter of Markisic v Director-General Department of Community Services, Nicholson CJ, with whom Kaye and O’Ryan JJ agreed, observed (at [28]):
‘It is also perhaps of interest to note that, in the absence of evidence of foreign law, or if the evidence in relation to foreign law is unsatisfactory, so far as Australian law is concerned ... one must assume that foreign law is the same as Australian law. The relevant principle is contained in the judgment of Slesser J in The Tourni [1932] P 78 at 91 and was adopted by this Court in Toric v Toric (1981) FLC 91-046 at 76,395.’
This proposition also finds support in the joint judgment of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in Regie Nationale Renault
v Zhang [2002] HCA 10; (2002) 210 CLR 491 at 518 [70] where their Honours, when considering whether it was necessary for a plaintiff to plead foreign law in order to establish a cause of action, referred without disapproval to the following passage from the judgment of Hutley JA inWalker v W A Pickles Pty Ltd [1980] 2NSWLR 281 at 284-285 where his Honour observed:
‘An action of tort may be brought in New South Wales courts irrespective of where the facts found in the action may have occurred, even if they occurred in a place where there may be no law at all ... On the basis of the utmost economies enjoined by the rules, it would seem to me that pleading of a foreign element in the initiating process and a claim in tort can never be necessary ...
This approach is reinforced by the principle that foreign law, which is, except between the States and Territories of the Commonwealth, a fact, is presumed to be the same as local law; and a fact presumed to be true does not have to be pleaded: see Supreme Court Rules Pt 15 r.10(a).’
…”[65]
[65] [2006] NSWCA 378 at [169]-[170] ] per Tobias JA with whom Beazley and Basten JJA agreed citing Walker v W A Pickles Pty Ltd [1980] 2NSWLR 281 at 284-285
When read in context in the judgment of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in Regie Nationale Renault v Zhang[66] (Zhang), it becomes clear that their adoption of the passage from Hutley JA’s judgment is in response to one confined question. That question was whether it was necessary for the plaintiff to plead foreign law in order to establish a cause of action. The cause of action was tort and was said to have arisen when Mr Zhang, a resident of New South Wales, was injured in a motor vehicle accident in New Caledonia involving a motor vehicle designed and manufactured by the defendants.
[66] [2002] HCA 10; (2002) 210 CLR 491 at [70]; 518
Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ first decided that it was the law of the place where the wrong was alleged to have occurred (lex loci delicti) that governed questions of substance. The selection of that law is governed by Australian law but the rights and duties of the parties were to be determined in that case by the law of New Caledonia.[67]
[67] [2002] HCA 10; (2002) 210 CLR 491 at [61]-[67]; 515-517
Their Honours then adopted the passage from the judgment of Hutley JA and decided that it was not necessary to plead foreign law in order to establish a cause of action. By way of contrast, though, “… if the defendant seeks to rely upon a foreign lex causae, then, in the ordinary way, it is for the defendant to allege and prove the law as an exculpatory fact ….”[68] Although a plaintiff is not obliged to plead the law in its initiating proceeding, there remained a question whether a plaintiff who saw an advantage in the foreign law, was required to plead that law. Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said:
“… It cannot be beyond the competence of the plaintiff to invoke that rule and be solely for the defendant to rely upon it for any exculpation it offers. …
Where, as here, the applicant on a stay motion seeks to rely upon a foreign lex causae as providing an advantage, then, at a level of specificity, the applicant should advance appropriate evidence as to the foreign law and particular features of that law which provide that advantage to the applicant.”[69]
[68] [2002] HCA 10; (2002) 210 CLR 491 at [70]; 518 (citation omitted)
[69] [2002] HCA 10; (2002) 210 CLR 491 at [71]-[72]; 519
Once the context in which the passage from Hutley JA’s judgment in Walker v W A Pickles Pty Ltd is used, we respectfully suggest that it is difficult to see that the proposition that, in the absence of evidence of foreign law or in the presence of unsatisfactory evidence of foreign law, one must assume that foreign law is the same as Australian law finds support in the judgment of the majority in Zhang. On our understanding of Zhang, the majority proceeded on the basis that the law of New Caledonia would be established by evidence. They specifically said that the New South Wales Court of Appeal had erred in its concentration on the law of New South Wales as the determinative law. The determinative law was not that of New South Wales as it was not the law of the place of the wrong.[70]
[70] [2002] HCA 10; (2002) 210 CLR 491 at [76]; 520
In Versace v Monte,[71] Tamberlin J considered whether Mr Monte was entitled to invoke the privilege against self-incrimination when being cross-examined about two statements appearing in his book, “The Spying Game”. One statement concerned an alleged payment made in Australia to kill a wealthy New York banker and the other concerned his conduct in allegedly bribing hotel staff, entering hotel rooms in Rome and planting listening devices in those rooms. The applicants argued that Mr Monte could not claim the privilege as it did not come within s 128 of the Evidence Act. That section arose for consideration as Mr Monte had objected on the ground that his evidence might tend to prove that he had committed an offence against or arising under a law of a foreign country. Among other matters, Tamberlin J had to be satisfied under s 128(5) that the evidence did not tend to prove that Mr Monte had committed such an offence under foreign law if he were to require him to give evidence. His Honour concluded that he was so satisfied saying:
“… The terms of the foreign law have not been proven in evidence as a question of fact. In my view, however, it is highly likely having regard to experience and common sense that the entry into an agreement to kill someone or illegally enter hotel rooms and place listening devices could amount to an offence against the law of the foreign country; namely, in the first case, the law of the United States and, in the second case, the law of Italy. For this reason alone, s 128(5) does not apply. …”[72]
[71] [2001] FCA 1572
[72] [2001] FCA 1572 at [11]
In BP Exploration Co. (Libya) Ltd v Hunt,[73] Hunt J considered whether a foreign judgment had been properly registered in New South Wales. Mr Hunt had applied to have its registration set aside on the basis, among others, that notice of the registration of the judgment had not been served on him in accordance with the law of the country in which service was effected as required by Part 10, rule 5 of the Supreme Court Rules (NSW). Hunt J said of an argument that the presumption that New South Wales law applied until the contrary is shown:
“ In my view, the application of the presumption is intended to operate against, not in favour of, the party whose obligation it is to prove the foreign law, so that he is deprived of the benefit of a right or, exemption given by that foreign law, but not by New South Wales law, if he does not establish that foreign law in the proper way. It would, in my opinion, be an absurd interpretation of the requirements of Pt 10, r. 5 (that non-personal service be in accordance with the law of the country in which service is to be effected) which enabled a judgment creditor, by mere non-disclosure on the ex parte application for registration, to obtain the benefit of a more advantageous New South Wales provision as to service, which is in fact not available in the foreign jurisdiction in which service is to be effected. Such an interpretation would render the requirement in r. 5 otiose.’[74]
[73] [1980] 1 NSWLR 496; (1980) 47 FLR 317
[74] [1980] 1 NSWLR 496; (1980) 47 FLR 317 at [26]; 503; 325-326
We note that the majority of the High Court applied the presumption in Neilson v Overseas Projects Corporation of Victoria Ltd[75] (Neilson). That was a case concerning a claim for damages for personal injuries suffered as a result of negligence by Mrs Neilson. She fell down the stairs while living in accommodation provided in the People’s Republic of China (PRC) for Mr Neilson and his family. She claimed that the stairs were dangerous, and that the respondent which owed her a duty to take reasonable care for her safety, was in breach of that duty. The appellant said that he would lead no evidence at the trial regarding PRC law and did not. The respondent relied on PRC law and tendered English translations of the General Principles of Civil Law of the PRC (General Principles) and of the Code of Civil Procedure of the PRC as well as an opinion of the Supreme People’s Court (in Mandarin) on the implementation of the General Principles and a law journal article on PRC personal injury law. It also relied on evidence given by a Chinese lawyer, who had law degrees from Shanghai University and from an Australian university. Mr Liu referred to, and translated portions of, the Supreme People's Court opinion. The respondent argued that the respondent’s liability should be determined by reference to the law of the PRC.
[75] [2005] HCA 54; (2005) 223 CLR 331; (2005) 221 ALR 213; (2005) 79 ALJR 1736 at [125]; 372; 242; per Gummow and Hayne JJ; [249]; 411; 275 per Callinan J and [267]; 416-417; 280 per Heydon J
Art 146 of the General Principles set out choice of law rules. McHugh J described its effect:
“… Article 146 mandates that the law that ‘shall be applied’ is ‘the law of the place in which the infringement occurred’. However, Art 146 also states that, ‘[i]f both parties are nationals of the same country or domiciled in the same country, the law of [the parties’] own country or of their place of domicile may also be applied.’ This discretionary aspect makes China’s choice of law rule different from the choice of law rules that apply in Australia. In Zhang …,[[76]] this Court rejected the argument that our choice of law rules in international tort cases should be subject to a flexible exception.”[77]
The majority of the High Court invoked a presumption that, where the content of foreign law is significant for the resolution of the matters in issue, and that law is either not proved or not proved adequately, an Australian court may presume the foreign law to be the same as Australian law.
Section 91T is clear on its face and we do not think that there is any room to move to have regard to anything other than motives that are wholly or mainly non-political in nature in deciding whether a crime is non-political.
The provisions relating to the time from which s 91T has effect are, to us, equally clear. There is no room on the face of the provision or of Item 7 of Part 2 of Schedule 1 to read into it a qualification of the sort argued for by YYMT and MQCR. Section 91T is intended to operate from the date of its commencement with respect to applications for protection visas made after that date, applications for protection visas unresolved at that date and, in essence, a decision on an application for a protection visa that was subject to review in either the Refugee Review Tribunal or the Tribunal at its commencement i.e. 1 October 2001. That does represent a change in the law that YYMT and MQCR would have expected to have applied to their applications for protection visas had they applied for them and had they been decided before 1 October 2001 rather than in 2008 when they did. It represents a change from the law that applied to those who came before them and applied for protection visas before 1 October 2001.
Certainly, regard must be had to events in the past but that is not a consequence of s 91T but a consequence of Art 1F(b) itself. Art 1F(b), like so much of the Refugees Convention, focuses upon events and circumstances that have occurred in the past. It requires a consideration of whether there are serious reasons for considering whether a crime of one or other of two descriptions has been committed by the person now seeking refuge. It is clear from our earlier discussion of this issue that it requires a consideration of whether acts in the past constituted a crime under the local law where they occurred or under an Australian law having extraterritorial application.[275] It must be recognised that the applicable law may be law that has a retrospective effect, as was the case in Polyukhovich v The Commonwealth in the context of war crimes, but, if it is to have that effect, it must do so in the clearest terms. There is nothing in s 91T that alters the law in this regard. Section 91T only comes into play once the decision-maker has decided that there are serious reasons for considering that a crime has been committed.
[275] See [23]-[27] above
C.3Section 91T(1) and the “motive” for committing a non-political crime
Beginning with the word “motive”, its ordinary meaning when used as a noun in the context of s 91T is “… a reason for, or underlying cause of, action of certain kind. …”[276] It could be thought to be the same as an intention and, in some circumstances, it is but, in others, it is not. This is apparent from the extract referring to motive from the Encyclopaedic Australian Legal Dictionary:
“A circumstance or thing which induces a person to act. Although motive may in some circumstances have the same factual meaning as intention, its legal significance is different. Intention is the label for the mental element of certain offences, whereas there is a general rule that unless there is an express provision to the contrary, motive does not constitute an element of criminal responsibility. The motive by which a person is induced to do or omit to do an act, or to form an intention, is generally immaterial so far as regards criminal responsibility …”.
[276] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
Kirby P and Hope JA examined the difficulties that accompany any interpretation of the word “motive” when they considered a matter in which Mr Rajski had sued the partners in a firm of solicitors for defamation.[277] The firm had written to the Director of the Legal Aid Commission asking it to review and terminate its grant of legal aid to Mr Rajski for reasons it set out in the letter. During the course of the appeal, the Court of Appeal considered whether the firm’s letter had been written, and so published, to the Legal Aid Commission “for the purpose of the execution or administration of the …” Legal Aid Commission Act 1979 (NSW). If written for that purpose, s 17F of the Defamation Act 1974 (NSW) provided a defence of absolute privilege against an action for defamation. At first instance, Hunt J had drawn a sharp distinction between “purpose” and “motive”. “Motives might be complex and multitudinous. But for the requirements of s 17F of the Defamation Act a single ‘purpose’ was required …”[278]
[277] Rajski v Carson (1988) 15 NSWLR 84; Kirby P and Hope JA; Mahoney JA dissenting
[278] (1988) 15 NSWLR 84 at 90
Kirby P and Hope JA rejected any hard and fast distinction between “purposes” and “motives” finding it:
“… elusive and unsatisfactory. One observer’s ‘purpose’ is another’s ‘motive’. But purposes, like motives, can be complex. This truism about complex human conduct has been recognised in many cases. So has the difficulty of determining one ‘motive’ or ‘purpose’ for a particular objective of the law. In Crofter Hand Woven Harris Tweed Co Ltd & Ors v Veitch and Anor [1942] AC 435, the House of Lords, in a Scottish appeal, had to determine the character of the objectives of the officials of a trade union. Had they combined together with an object to do harm to an employer (which was unlawful) or simply to exercise their own just rights (which was not)? The case is an instructive one because the conspiracy alleged, like libel, developed (as Viscount Simon LC pointed out (at 444)) in the Court of Star Chamber. But the difficulty which dogged the courts was that of designating the ‘object’ or ‘purpose’ of the combiners. The Lord Chancellor said (at 445):
‘Next it is to be borne in mind that there may be cases where the combination has more than one “object” or “purpose”. The combiners may feel that they are killing two birds with one stone, and, even though their main purpose may be to protect their own legitimate interests not withstanding that this involves damage to the plaintiffs, they may also find a further inducement to do what they are doing by feeling that it serves the plaintiffs right. The analysis of human impulses soon leads us into the quagmire of mixed motives, and even if we avoid the word “motive”, there may be more than a single “purpose” or “object”. It is enough to say that if there is more than one purpose actuating a combination, liability must depend on ascertaining the predominant purpose. If that predominant purpose is to damage another person and damage results, that is tortious conspiracy. If the predominant purpose is the lawful protection or promotion of any lawful interest of the combiners (no illegal means being employed), it is not tortious conspiracy, even though it causes damage to another person.’
Viscount Maugham (at 452) suggested that in such a case the question could be asked what was the ‘real purpose’ or ‘true motive’. He declared that they were ‘the same thing’.
‘… I should add that “motive” is clearly not the same thing as “intention”, but in many cases the one is the parent of the other, and they are so closely related that they cannot be separated.’
Lord Wright (at 469) also turned to the meaning of these words:
‘The courts have repudiated the idea that it is for them to determine whether the object of the combiners is reasonable calculated to achieve their benefit. The words ‘motive’, ‘object’, ‘purpose’, are in application to practical matters difficult strictly to define or distinguish. Sometimes mere animus such as spite or ill will, malevolence or a wanton desire to harm without any view to personal benefit is meant. But motive is often used as meaning purpose, something objective, and external as contrasted with a mere mental state.’
Cf Lord Hailsham in Hyam v Director of Public Prosecutions [1974] 2 All ER 41, 51; Lewis v The Queen [1979] 2 SCR 821 (SCC). For these reasons we do not believe that the hard and fast distinction between ‘motives’ and ‘purpose’ drawn by Hunt J is viable. Nor do we believe that it is helpful in construing s 17F of the Defamation Act or in delineating those ‘motives’ which the appellant alleges from the ‘purpose’ which the respondents assert.”[279]
[279] (1988) 15 NSWLR 84 at 93-94
Having regard to s 91T as a whole, it seems to us that the word “motive” should be understood according to its ordinary meaning i.e. “… a reason for, or underlying cause of, action of certain kind. …”. It should not be read as referring to intention. Our reason lies not only in Parliament’s choice of the word “motive” rather than “intention” but in the particular motives to which s 91T refers. They are the “person’s motives for committing the crime”. A “crime” includes an “offence”.[280] We have already referred to the authorities establishing that a crime is a reference to conduct that falls within the category of conduct stipulated by the law as constituting a crime.[281]
[280] Migration Act, s 5(1)
[281] See [18]-[19] above
Examples of crimes can be found in the law of the Commonwealth. Under that law:
“The only offences against laws of the Commonwealth are those offences created by, or under the authority of, this Code or any other Act.”[282]
The “Code” is a reference to the Criminal Code Act 1995 (CC Act) and the “Act” is a reference to any Act passed by the Parliament of the Commonwealth.[283] An “offence” generally consists of physical elements and fault elements.[284] That requirement may be modified[285] but, where there is a fault element for an offence, the fault element for a particular physical element of that offence may be intention, knowledge, recklessness or negligence.[286] Where a Commonwealth law creates an offence for a physical element that consists only of conduct but neither specifies a fault element nor specifies that there is no fault element, the fault element is intention.[287] Where it creates an offence for a physical element that consists of a circumstance or result but neither specifies a fault element nor specifies that there is no fault element, the fault element is recklessness.[288] If that is the case, intention and knowledge will also satisfy the fault element.[289]
[282] Criminal Code Act 1995, s 1.1
[283] Acts Interpretation Act 1901, s 38(1)
[284] CC Act, s 3.1(1)
[285] CC Act, ss 3.1(2) and (3) and see also offences of strict liability (s 6.1) and absolute liability (s 6.2)
[286] CC Act, s 5.1 and see also ss 5.2-5.5 expanding upon each of those fault elements
[287] CC Act, s 5.6(1)
[288] CC Act, s 5.6(2)
[289] CC Act, s 5.4(4)
This brief outline of crimes under the law of the Commonwealth illustrates that, unless an offence is one of strict liability, a person’s particular state of mind will be an essential element in determining whether a person has committed a crime. Given that is so, it would seem that, in using the word “motive” in s 91T of the Migration Act, Parliament is using the word in the sense of the reason for the person’s committing the crime or what induced that person to commit it. An enquiry regarding a person’s motive takes us beyond an enquiry whether the person had the necessary mental element that is essential for a finding that a crime has been committed at all.
C.4 Section 91T(3) and a “non-political crime”
Before a decision-maker can characterise the crime as either political or non-political, regard must be had to the meaning that s 91T(1) now gives to the expression “non-political crime” and to those crimes that are characterised as
non-political crimes by virtue of s 91T(3). There is a question whether non-political offences are limited to those set out in paragraphs 5(1)(a), (b), (c) or (d) of the definition of “political offence” in the Extradition Act or whether s 91T(3) is intended to ensure that those crimes are treated as non-political but is not otherwise intended to curtail the ordinary meaning of the expression “non-political crime”.
Parliament has said that Art 1F has effect as if the “reference” to a non-political offence “included a reference” to one of the offences specified in
s 91T(3). In this context, a “reference” to a non-political offence in Art 1F is the “mention” of it.[290] There can be no other meaning given to it and it must be given the same meaning when s 91T(3) uses it to refer to the offences specified in paragraphs 5(1)(a), (b), (c) or (d) of the definition of “political offence” in the Extradition Act.
A reference to those offences must be a mention of them.[290] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
The ordinary meaning of the word “include” is “…1 to take in or consider something or someone along with other things or people, as part of a group … 2 to contain or be made up of something, or to have it as part of its contents …”.[291] Its ordinary meanings do not suggest that one thing is exclusively made up of something if it “includes” that thing. That thing is one of the things that it includes.
It may be in some instances that it is the only thing but, in the case of s 91T(3), we consider that Parliament has wanted to specify certain crimes that must be taken to be non-political crimes (and so included in the reference in Art 1F to a non-political crime) but has not otherwise limited the meaning of the expression “non-political crime”. The meaning of that expression is still to be gleaned by reference to the authorities.[291] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
Section 91T(3) provides that, for the purposes of the Migration Act, Art 1F has effect as if the reference in that Article to a non-political crime included a reference to an offence that, under paragraph (a), (b), (c) or (d) of the definition of “political offence” in s 5 of the Extradition Act, is not a political offence in relation to a country for the purposes of that Act. In a particular case relating to a particular offence committed by a person, the reference to “a country” must be read as a reference to the country in which the offence was committed or, at least, in which there are serious reasons for considering that it was committed.
This interpretation is consistent with the definition of “political offence” in s 5 of the Extradition Act. It is a definition that is given “in relation to a country”. It means an offence against the law of “the country” that is of a political character unless it is an offence constituted by the conduct in paragraphs (a) to (d) to the definition. The definition contains a qualification to the description “political character”. The qualification has two aspects. The second is that the offence has a political character whether or not there are competing political parties in “the country”. This underlines that the offence that is a non-political offence must be an offence in a particular and identifiable country. Paragraphs (b), (c) and (d) further emphasise that fact. Each is drafted in terms of first identifying the conduct that constitutes the offence that is a non-political offence but then requiring that the offence be declared by regulations for the purpose of the paragraph concerned “not to be a political offence in relation to the country” (emphasis added). Therefore, it is not enough that the offence be declared to be a non-political offence in a country or even in many countries if it is not declared to be such in relation to the country in which it was committed or there are serious reasons for considering that it was committed.
C.5Section 91T(1) and a “non-political crime”
As we understand the law as it stood before the enactment of s 91T, in deciding whether a crime was, or was not, a political crime, it required us to consider more than the motive of the person who committed the crime. It required us to consider also matters such as the target of the crime, its consequences and the circumstances in which it was committed. The objective of the action and the strength of the connection between the act and the achievement of the objective was also relevant. Killing a person as a political act ordinarily required a close and direct connection between the act and the achievement of an objective. That objective might be a change of government, or a change of government policy, which might include relief from government sponsored or condoned oppression of a social group. It might also include escaping from the jurisdiction of a government whose political policies the person disapproved but despaired of altering so long as the person remained there. That is the effect of the passage from the judgment of Lord Diplock in R v Governor of Pentonville Prison; Ex parte Cheng,[292] which was expressly approved of by Gaudron J in Minister for Immigration and Multicultural Affairs v Singh.
[292] [1973] AC 931
It seems to us that s 91T(1) has altered the law in two ways. First, the motive must now be “wholly or mainly non-political in nature” rather than simply “significant”. Second, reference is now to be had only to the person’s motives for committing the crime and not to the circumstances. Whether the second alteration is an alteration of substance is questionable. In order to determine whether a motive is “wholly or mainly non-political in nature” will require a consideration of all of the circumstances including the nature of the crime, the events in the country concerned at the time, the prior experiences of the person committing the crime, the proportionate nature or otherwise of the action constituting the offence when assessed against the claimed objective and any personal relationship between the offender and the victim or victims.
C.6 Section 91T(1) and a “serious non-political crime”
Section 91T does not alter the fact that it is not enough simply to have serious reasons for considering that a person has committed a non-political crime in order to exclude the operation of the Refugees Convention. There must be serious reasons for considering that the non-political crime that has been committed is a serious non-political crime. Whether it was serious is to be considered according to the law as stated in the authorities.[293]
[293] See [162]-[171] above
I certify that the two hundred and twenty four paragraphs are a true copy of Part One of the reasons for the decision herein of
Deputy President S A Forgie and Senior Member E Fice
Signed: ....................................................................
Kate Conners Associate
Dates of Hearing 26 and 28 October 2009
11 and 14 December 2009
Date of Decision 16 June 2010
Counsel for the Applicants Ms Debbie Mortimer SC
Mr Guy Gilbert
Solicitor for the Applicant Ms Kelly Griffiths and Ms Dora Banyasz
Allens Arthur Robinson
Counsel for the Respondent Dr Stephen Donaghue
Solicitor for the Respondent Ms Maria Ngo
Australian Government Solicitor
Parsons
v Martin. The Full Court of the Federal Court constituted by Bowen CJ, Northrop and Toohey JJ, considered whether a Court of Petty Sessions had inherent or other power to cause the issue of a letter of request to the courts of other countries. The Court said;
“ It would not be right to say that, because it is a court of limited jurisdiction, a Court of Petty Sessions has no power to regulate its own procedures. But the submission of the appellants that if a matter is not truly one of jurisdiction it must be one of procedure and within the competence of the court to regulate goes too far. The relevant distinction for present purposes is not between jurisdiction on the one hand and procedure on the other but rather between matters of substantive law and adjectival law, a distinction adverted to by Wickham J in Sparks v Bellotti (1981)
WAR 65. His Honour said (at 68-69);
‘The jurisdiction of a court to hear and determine in respect to subject matter, parties and territorial limits, and in respect to the substantive law to be applied, is to be distinguished from the manner in which that jurisdiction may be exercised ... Where, however, the enabling statute, or rules or regulations lawfully made thereunder, is silent as to adjectival or procedural matters - that is the manner of the exercise by the court of its duties and powers - then the court has an unexpressed power to control its procedures.’
Whether a matter is truly adjectival may not always be capable of ready determination. We do not regard the issue of a letter of request as merely adjectival. In a very real sense it seeks to extend the power of the court beyond its territorial jurisdiction even though it may be that the letter of request does no more than ask the court of another country to exercise its power to require persons to attend before it, give evidence and produce documents.” [1984] FCA 408; (1984) 5 FCR 235; 58 ALR 395 at [36]-[37]; 241; 401
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