2.1.1 Significance of the Case

This case is significant for two reasons. First, it is the first private law case to turn on the meaning of section 75(ii) of the Australian Constitution. As such it attracted the intervention of both the State of Victoria and the Commonwealth. Section 75(ii) provides that ‘[i]n all matters … (ii) [a]ffecting consuls or other representatives of other countries … the High Court shall have original jurisdiction.’

A central question was whether the dispute was a private matter that could be adjudicated by a tribunal or a matter ‘affecting consuls’ such that any dispute would have to be determined by a chapter III court. Second, in construing whether the dispute attracted federal jurisdiction by reason of section 75(ii), Tate JA (Beach JA agreeing) considered the Vienna Convention on Consular Relations (‘Vienna Convention’). Their Honours found that the Republic of Turkey’s (‘Turkey’) residence in Toorak, Melbourne, was a ‘consular premise’ and therefore a ‘consular post’ within the meaning of the Vienna Convention.⁴ McLeish JA reached the same conclusion but preferred a different construction of section 75(ii). An application for special leave to the High Court was scheduled for late February 2022.

2.1.2 Factual Background, the Disagreement, and Procedural History

Turkey had long kept a residence in Toorak to house its consul general and their family.⁵ In 2008, Turkey commissioned Tectura Pty Ltd (‘Tectura’), an architectural firm, to design and administer the construction of a new residence on that property.⁶ Ms Mehtap Tugtekin (‘Tugtekin’), the chief architect at the Turkish Ministry for Foreign Affairs and the person responsible for all of Turkey’s overseas missions, instructed Tectura in relation to the residence’s design.⁷ Through their engagement and consultations, detailed plans were prepared for a four level residence, including a basement carpark, backyard swimming facilities, and a large space for the purpose of entertaining visitors.⁸ The design was inspired by, and otherwise sympathetic to, certain Turkish architectural periods.⁹

Having proceeded to open tender the plans in 2009, Mackie Pty Ltd (‘Mackie’) offered a fixed contract price of $4,350,500 excluding GST to demolish the existing residence and complete the build per the design specifications.¹⁰ After meeting with Tugtekin among others at the Melbourne Turkish Consulate General’s office, Mackie’s quotation was accepted, and they were awarded the contract.¹¹ The parties to the agreement were Mackie Pty Ltd and Consul General Aydin Nurhan on behalf of Turkey.¹²

After Mackie had demolished the existing residence under the terms of the 2011 agreement, it became apparent that construction costs would far exceed the contract price. Substantial delays and difficulties ensued between the parties.¹³ The practical completion date passed unmet and Turkey withheld payments.¹⁴ In response, Mackie initiated proceedings against Turkey in the Victorian County Court in March of 2013.¹⁵ The orders sought included: a declaration that notices Turkey made to Mackie purporting to be under the agreement were invalid, specific performance of the contract price, an extension of the practical completion date, $230,000 in damages by reason of Turkey’s alleged delay and disruption, and liquidated damages in the order of $264,000.¹⁶

In December of 2012 Turkey appointed a new Consul General, Seyit Mehmet Apak (‘Apak’).¹⁷ Apak filed an affidavit in the County Court of Victoria which contained a number of observations he had made in respect of the newly constructed building while residing there.¹⁸ For example, Apak’s attested that malfunctioning locks had caused persons to become trapped in rooms, that ill-fitting doors could not be closed, and that improperly aligned windows were causing noise penetration. Taken together, Apak contended that the defects amounted to safety risks.¹⁹

The County Court proceeding were stayed under section 57 of the Domestic Building Contract Act 1995 (Vic) which renders VCAT ‘chiefly responsible for resolving domestic building disputes’. Mackie recommenced proceedings in VCAT in January 2015.²⁰ VCAT accepted Mackie’s amended statement of claim filed in the County Court as points of claim for its purposes. Turkey denied liability, filing its points of defence alongside a counterclaim for damages. It also joined Tectura to the proceedings for the purpose of seeking a contribution in the event that the Tribunal found in favour of Mackie. After some thirty sitting days, VCAT found in Mackie’s favour. It ordered that Turkey pay Mackie $693,000 and Tectura pay $120,000 in contribution to Turkey.²¹

Turkey and Tectura appealed unsuccessfully to the Victorian Supreme Court on a point of law pursuant to section 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).²² Turkey then applied to the Victorian Court of Appeal.²³ The Court raised the constitutional point as to whether VCAT had jurisdiction to make the relevant orders in the first place. It allowed Turkey to amend their application to argue that:²⁴

The Tribunal lacked jurisdiction to hear and determine the proceeding because the subject matter of the proceeding was a matter ‘affecting consuls or other representatives of other countries’ within the meaning of section 75(ii) of the Constitution and the Tribunal is not a court of the State.

2.1.3 Plurality Ruling: Tate JA (Beach JA agreeing)

VCAT cannot be defined as a chapter III ‘Court of State’ capable of determining matters falling within sections 75 and 76 of the Constitution.²⁵ If the proceeding was a ‘matter affecting consuls’, VCAT would lack jurisdiction to hear the dispute.²⁶

Tate JA found that two interconnected issues had to be considered in order to determine whether the dispute constituted a matter affecting consuls within the meaning of section 75(ii).²⁷ First, he examined whether the word ‘Consuls’ is limited to consuls acting in their official capacity as consuls, or also whether extends to a person acting in a private capacity.²⁸ The second issue turned on whether the matter was one ‘affecting consuls’.²⁹

Mackie argued that the matter at hand should be identified and that the court should then consider how resolution of the matter would affect the rights, duties, or liabilities of the consul. If resolution of the matter would have only a tenuous effect on the consul in their official capacity, then federal jurisdiction would not be attracted under section 75(ii). In support of this construction Mackie relied upon the different use of the phrase ‘relating to’ under section 76(iv). The State of Victoria supported this view.³⁰

Turkey’s position was that section 75(ii) should be given a broad interpretation, extending at least to matters which affect consuls in their official capacity.³¹ However it argued that a consul’s rights, duties, or liabilities need not be affected in the narrow, ‘official’ sense posited by Mackie.³² The only case in which section 75(ii) had previously been considered, R v Donyadideh, concerned a criminal trial of an accused who had targeted Iranian government officials because of their (diplomatic) identity.³³ In that case, Miles CJ found that a consul or other foreign representative being an alleged victim of crime made them a person ‘affected’ by the matter of prosecuting an offender.³⁴ Turkey’s arguments were supported by the submissions made by the Commonwealth which urged a broad construction.³⁵

The Commonwealth contended that the object of section 75(ii) is to bring within federal jurisdiction those matters which might prejudice Australia’s international relations.³⁶ While acknowledging that a more restrictive meaning could be given to ‘consuls’ consistent with principles of international law, it argued that the provision should be given a uniform meaning. Consular officials may enjoy no immunity in respect of conduct in their private capacity. However, consuls have greater capacity to affect international relations.³⁷ The Commonwealth argued that consuls, diplomats and ambassadors all attract federal jurisdiction, whether a relevant matter pertains to their private or official capacities.³⁸

The Commonwealth submitted that Mackie’s argument conflated the underlying ‘matter’, qua justiciable controversy, with the legal proceeding itself.³⁹ The plain meaning of section 75(ii) is that the ‘matter’ affects a consul, not the legal proceeding.⁴⁰ At a contextual level, section 75 distinguishes between those cases where federal jurisdiction is attracted by reason of the party’s nature and those with other specific features.⁴¹ The former include subsections 75(iii), 75(iv) and 75(v),⁴² which confer jurisdiction in situations where the Commonwealth is a party, where the States or residents among different States are parties, and where writs lie against officers of the Commonwealth.⁴³ The latter includes subsections 75(i) and 75(ii): matters arising under a treaty and matters affecting consuls. The Commonwealth argued that if the framers of the Australian Constitution had intended these provisions to operate more broadly, the same language would have been used.⁴⁴

Tate JA noted that Mackie had conceded that there may be instances—R v Donyadideh being an example—where federal jurisdiction might be attracted under section 75(ii) even where a consul is not a party to the proceeding. His Honour found that this concession was difficult to reconcile with the narrow view for which Mackie advocated.⁴⁵ The parties agreed that section 75(ii) extends, at the least, to consuls acting in their official capacity.⁴⁶ His Honour found it unnecessary to decide whether it extended to consuls acting in their private capacity.

2.1.4 ‘Matters Affecting’ Consuls

His Honour then considered the meaning of the word ‘affecting’ in the context of the Australian Constitution as a whole. He reasoned that ‘affecting’ is plainly more confined in scope than the phrases ‘with respect to’, ‘in respect of’ and ‘relating to’ which qualify grants of Commonwealth legislative power.⁴⁷ For a matter to ‘affect’ consuls, there has to be a relationship with a matter less rigorous than an effect on the consuls legal rights, duties, or liabilities but closer than the subject matter grants of legislative power.⁴⁸ His Honour formulated this requirement as an evaluative task involving questions of fact and degree. The aim was to identify a positive connection between the consul in their official capacity and the matter that is ‘real and substantial’.⁴⁹

2.1.5 Application and Conclusion

Having contended that federal jurisdiction will be attracted if a consul is affected in their official capacity, Turkey argued that its consul general was acting in that capacity.⁵⁰ The subject matter of the contract was the demolition of a residence and construction of a new ‘consular residence’.⁵¹ The building design was intended to project statements about Turkey’s national character, history, and culture. For this reason, the chief architect of the Turkish Ministry for Foreign Affairs oversaw its design.⁵² The person who ultimately occupied the building was there by reason of their official position as a consul.⁵³

Arguing that the residence was a private residence, Mackie sought to rely on the international legal definition of ‘consular premises’ as enshrined in the Vienna Convention. It argued that a distinction should be drawn between the Toorak residence and a separate ‘consular post’ within the meaning of the Vienna Convention which Turkey maintained in Melbourne.⁵⁴ His Honour turned to the definition of ‘consular premises’ in the Vienna Convention, which considers such premises to include ‘the buildings or parts of buildings and the land ancillary thereto, irrespective of ownership, used exclusively for the purposes of the consular post’.⁵⁵ ‘Consular post’ is defined as ‘any consulate-general, consulate, vice-consulate or consular agency’.⁵⁶ His Honour held that a ‘consular post’ within the meaning of the Vienna Convention is no physical place but rather ‘an abstract concept’, understood as an official position authorised to exercise consular functions in a receiving state.⁵⁷

Turkey relied on article 5 of the Vienna Convention, which sets out the functions of a consulate.⁵⁸ Relevantly, these include promoting friendly relations and furthering the development of cultural relations with the receiving state.⁵⁹ His Honour agreed with Turkey’s view that this was evinced in the very design of the residence, including the reception hall, lobby, gendered toilets, and Turkish architecture.⁶⁰ On Mackie’s argument, that the private residence should be distinguished from a separately maintained ‘consular post’,⁶¹ Tate JA held that article 31 of the Vienna Convention impliedly recognises that a consular premises need not be used exclusively for the undertaking of consular functions—it may also have ancillary uses. A residence also serves to house the consular general and family. It follows that the subject-matter of the contract falls within the meaning of ‘consular premises’ as provided in the Vienna Convention.⁶² Mackie’s submission was therefore rejected.

His Honour also addressed Mackie’s submission that the consul general could not be ‘affected’ because he was not a party to the contract such that orders could be made against him. His Honour accepted Turkey’s submission that this was precisely the point. Because the consul was acting in his official capacity, he was not a party to the contract, and was therefore not party to the proceeding. Rather, he was affected as Turkey’s representative in the matter. In his Honour’s view, ‘there was no requirement for a consul to be joined as a party to be “affected” by a matter’.

It followed from his Honour’s findings that VCAT could not hear and determine the building dispute. There was no reason for the County Court proceedings to be stayed—it had jurisdiction as a ‘Court of State’.

2.1.6 McLeish JA in Dissent

Like the plurality, McLeish JA found the residence to be the official home of the Turkish consul general. It functioned as a premises for conducting official consular functions. His Honour found that it could be assumed that the residence fell within the Vienna Convention meaning of consular premises. The consul general was involved in the residence’s demolition and construction.⁶³ Where his Honour diverged was in the test for determining whether a matter ‘affects a consul’ for the purposes of section 75(ii) and how the matter ought to have been characterised in fact.⁶⁴

Tate JA formulated the test as one of ‘tangible’ or ‘real or substantial connection’ between the matter and the consul. McLeish JA found that the word ‘affecting’ was not merely different in degree from ‘with respect to’ or ‘relating to’, but of a different character.⁶⁵ He held that ‘affecting’ as a verb necessarily entails ‘an impact of some kind’.⁶⁶ Coupled with ‘matter’, the requirement is that the matter has an impact on the consul of some kind.

His Honour held that whether a matter affects consuls in the requisite sense is a question of fact.⁶⁷ It requires identification of the matter that is the underlying justiciable controversy, then determination as to whether the resolution of that matter would have an impact or ‘affect’ on a consul of a kind that is not insubstantial, tenuous or distant,⁶⁸ which may be by way of affecting the consul’s rights, liabilities or interests—although other impacts may suffice.⁶⁹

Applying this formulation to the facts, his Honour found that the dispute solely involved the payment of money under a contract performed in the past.⁷⁰ As no party suggested that resolution of the dispute would have any impact on the consul, the matter could not be one ‘affecting consuls’ within the meaning of section 75(ii). A matter being connected with a consul will not suffice.⁷¹ On this basis his Honour concluded that VCAT had jurisdiction to hear and determine the matter.

3.1.1 Background

Section 9(1)(a) of the Protection of the Environment Administration Act 1991 (NSW) (‘POEA Act’) requires the Environmental Protection Authority (‘EPA’) to ‘develop environmental quality objectives, guidelines and policies to ensure environment protection.’⁷² The Bushfire Survivors for Climate Action (‘BSCA’) is a climate action group formed by Australians following the 2019–20 bushfires. Because climate change is one of the most significant threats to the environment, the BSCA sought a writ of mandamus to compel the EPA to develop instruments under s 9(1)(a) to ensure the protection of the environment from climate change.⁷³ Specifically, the BSCA argued that the content of the instruments should to be adapted to reducing greenhouse gas emissions consistent with limiting global temperature rise to 1.5°C above pre- industrial levels.⁷⁴ The case is significant because it involved an attempt to force compliance with international standards following reports of the Intergovernmental Panel on Climate Change (‘IPCC’).⁷⁵

While the EPA accepted its duty under s 9(1)(a) to develop instruments to ensure environment protection, it argued that this duty was of a general nature, and therefore did not require the EPA to address specific aspects of environment protection, such as the threat of climate change.⁷⁶ If s 9(1)(a) did impose such a specific duty, the EPA claimed it has already fulfilled this duty through existing instruments.⁷⁷ The EPA contended that although a mandamus can order performance of the s 9(1)(a) duty, the court cannot stipulate the exact content of the instruments the EPA will develop.⁷⁸

3.1.2 Decision

Chief Justice Preston agreed that performance of s 9(1)(a) of the POEA Act requires the development of instruments to ensure the protection of the environment in New South Wales (NSW) from climate change and, that the EPA had breached this duty.⁷⁹ A mandamus was issued to compel the EPA to fulfil its duty under s 9(1)(a).⁸⁰ However, His Honour held that s 9(1)(a) did not specifically require the instruments address limiting global temperature rise to 1.5°C above pre-industrial levels. The specific content of the instruments was for the discretion of the EPA.⁸¹

3.2.1 Significance of This Case

While Sharma is, in many ways, an example of the ordinary evolution of the law of negligence adapting to foreseeable harms, it is also extraordinary.¹¹⁰ Sharma is the first common law case in the world to recognise that a government minister owes a duty to take reasonable care in the exercise of their public power to avoid causing personal injury to children by precipitating climate hazards. The novel duty of care is founded upon internationally recognised climate science, including the evidence of the IPCC. The IPCC is ‘the leading international body for assessing scientific research on climate change and is acknowledged by governments around the world as the most reliable source of advice on climate change.’¹¹¹

The case is also reflective of developments in international human rights law. In particular, the UN Human Rights Council’s resolutions of 8 October 2021, which recognised the right to a safe, clean, healthy, and sustainable environment as a human right that is important for the enjoyment of human rights;¹¹² and established a Special Rapporteur for promoting and protecting human rights in connection with climate change.¹¹³

3.2.2 Reasonable Foreseeability of Harm

Justice Bromberg found that ‘reasonable foreseeability’ was an affirmative salient feature which strongly supported the posited duty of care. The test was whether a reasonable person in the Minister’s position would foresee that approving the Extension Project would expose each of the children to a risk of harm.¹⁵⁰ It was common ground that the CO₂ from the Extension Project would contribute to increases in the average surface temperature of the Earth, which would subsequently increase the frequency, severity, or geographic range of climatic hazards.¹⁵¹ What needed to be established was the link between CO₂ emissions and the risk to the children of each specific type of harm.¹⁵² Analysis was confined to the ‘direct impacts’ of CO₂ emissions on the children, namely, the risk of physical harm caused by extreme climatic events such as heatwaves and bushfires.¹⁵³ The ‘indirect impacts’ and ‘flow-on impacts’ put forward by the applicants were expressed at too high a level of generality for the court to be satisfied that each of the children would be exposed to a real risk of harm.¹⁵⁴

Justice Bromberg was satisfied that a reasonable person in the position of the Minister would foresee that each of the children would be exposed to a real risk of death or personal injury by reason of the effect of increased human emissions of CO₂ upon the increasing frequency and ferocity of heatwaves and bushfires.’¹⁵⁵ Evidence to support this finding was centred on uncontested expert predictions that morbidities and mortalities relating to heat-stress and bushfires will increase exponentially over the next century as a consequence of climate change.¹⁵⁶ Particular emphasis was placed on the fact that today’s children are the class of people who will be most susceptible to harm when the consequences of heatwaves and bushfires will be most severe.¹⁵⁷

However, in order to establish reasonable foreseeability a narrower assessment of foreseeability was required.¹⁵⁸ The court had to establish foreseeability that the Minister’s approval of the Extension Project, and its attendant contribution to atmospheric CO₂, would contribute to the risk of harm.¹⁵⁹ To answer this question in the affirmative, Bromberg J relied on Professor Steffen’s evidence that emissions from the Extension Project would increase the temperature at which the Earth’s surface will stabilise.¹⁶⁰ His Honour stressed the significance of the risk profile in which the 100 Mt of CO₂ would be emitted, namely the risk that a ‘tipping cascade’ could be triggered resulting in a 4°C future world trajectory.¹⁶¹ Reliance was also placed on the IPCC Report and the NSW Department Report that 100Mt of CO₂ would be ‘a significant contributor to … climate change.’¹⁶²

The conclusion that reasonable foreseeability is a strong affirmative salient feature was ‘bolstered’ by the EPBC Act, namely s 136(2)(a), which requires the Minister to consider the ‘precautionary principle.’¹⁶³ Case law authorities have interpreted the ‘precautionary principle’ to require decision-makers to account for ‘a heightened recognition … of the risk of environmental damage.’¹⁶⁴ In light of these authorities, Bromberg J found that it was not material that the risk of harm from the approval of the Extension Project would be small, because if the risk did crystallise, the resultant harm would be ‘catastrophic.’¹⁶⁵

3.2.3 Control, Responsibility, and Knowledge

Control, responsibility, and knowledge were affirmative salient features supporting the imposition of a duty of care.¹⁶⁶ The Minister’s control over the risk of harm was described as ‘very substantial, if not exclusive’ because it was her decision to approve the Extension Project that would create the risk.’¹⁶⁷ The Minister has responsibility to protect the interests of Australian Children because it is her function under the EPBC Act to do so.¹⁶⁸ This was explained by reference to the object of the EPBC Act—to protect the environment; the definition of environment which includes ‘people and communities’; and the Act’s focus on the principle of inter-generational equity.¹⁶⁹ Due to extensive and uncontested evidence, the Minister was also found to have knowledge of the risk of harm to the children should the Extension Project be approved.¹⁷⁰

3.2.4 Vulnerability, Reliance, and Recognised Relationships

Vulnerability and reliance were affirmative salient features of the posited duty of care.¹⁷¹ The extreme vulnerability of the children to the risk of harm from climate change was described as a consequence of the severity of the potential harm and their powerlessness to avoid that harm.¹⁷² A nexus between the children’s vulnerability and the Minister was established because it is the Minister’s decision to approve the Extension Project that would expose the children to harm.¹⁷³ Reliance was explained by reference to the Minister’s control over the risk of harm, and the responsibility given to the Minister by the EPBC Act to protect Australian children.¹⁷⁴

Despite there being no physical or temporal proximity between the Minister and the children, the affirmative salient features pointed to a relationship of nearness, meaning proximity was agnostic in establishing the posited duty of care.¹⁷⁵

3.2.5 Coherence of the Duty with the Statutory Scheme, Administrative Law and International Law

The Minister argued that the posited duty of care was incoherent with the EPBC Act because it would ‘distort’ or ‘skew’ her statutory discretion under ss 130 and 133 by making the avoidance of harm to the children a mandatory consideration. This, she contended, would dictate a particular outcome—the refusal of the Extension Project.¹⁷⁶ The applicants argued that a duty of care ought to be recognised, subject to the legislature’s express of implied exclusion.¹⁷⁷

Justice Bromberg rejected the applicant’s ‘restrictive approach’ to coherence,¹⁷⁸ but found that the posited duty was not inconsistent with the EPBC Act. An assessment of coherence required consideration not only of the legislature’s exclusionary intent, but also any impairment of the exercise of statutory discretion, and most importantly whether the duty of care aligned with the purpose of the statute.¹⁷⁹ While a duty of care which impairs a statutory discretion has negative consequences for coherence, the duty may nevertheless co-exist with the statute.¹⁸⁰ This is because discretion is to be exercised ‘only in accordance with the objects and policy of the Act’, rendering the statutory purpose the paramount consideration.¹⁸¹

His Honour examined the definition in s 3A of the EPBC Act of the phrase ‘ecologically sustainable development’. He noted that other objects listed in s 3(1) include ‘to assist in the co-operative implementation of Australia’s international environmental responsibilities [para (e)]’.¹⁸²

Justice Bromberg held that ‘the avoidance of death and personal injury to humans’ should be regarded as the intent of any Act conferring powers capable of posing a threat to human health and safety.¹⁸³ Nothing that in the EPBC Act suggested a legislative intent to the contrary because concern for human health and safety was reflected by a number of provisions of the Act.¹⁸⁴ Contrary to the Minister’s submissions, human safety, including the safety of the children was held to be a mandatory consideration implied from the ‘subject, scope and purpose’ of the EPBC Act.¹⁸⁵ The posited duty of care would not distort the discretion afforded to the Minister, nor would it dictate the non-approval of the Extension Project because assessment of breach considers the reasonableness of the Minister’s response.¹⁸⁶

Weighing the impact of the duty on the Minister’s discretion against the purpose of the EPBC Act, Bromberg J found enough coherence between the posited duty and EPBC Act to recognise the duty in respect of personal injury.¹⁸⁷ However, he found against including pure economic loss or property damage in the equation.¹⁸⁸ He held that economic and property rights are only relevant considerations under s 136(1)(b).¹⁸⁹ The statutory purpose did not require these rights to be protected. While the EPBC Act promotes the principle of intergenerational equity, his Honour concluded that the Act did not require the economic interests of the Children to be given priority over those of present-day adults. He held that requiring the Minister to address economic and property rights would distort the broad discretion conferred by the Act.¹⁹⁰

3.2.6 Indeterminacy

Justice Bromberg rejected the Minister’s contention that the posited duty of care ought to be rejected for indeterminacy of liability.¹⁹¹ His Honour explained that indeterminacy is problematic where a duty concerns economic loss.¹⁹² However, because the posited duty had been confined to personal injury, reasonable foreseeability is a sufficient controlling mechanism to ensure the defendant is not unfairly burdened with liability.¹⁹³ Furthermore, the Minister’s argument was posited on the size of the class of possible plaintiffs, yet this was to misconceive the meaning of indeterminate liability.¹⁹⁴ Indeterminate liability is not concerned with the number of plaintiffs, but the defendant’s ability to determine the nature and extent of prospective liability.¹⁹⁵ His Honour was satisfied that the Minister knew, or ought to have known, ‘the likely number of potential claimants and the likely nature of their claims.’¹⁹⁶ Indeterminacy of the time of future claims was not considered detrimental to recognising the proposed duty.¹⁹⁷

The court refused to reject the proposed duty of care for policy reasons, namely the Minister’s contention that she is best placed to address climate change.¹⁹⁸ His Honour explained that the duty did not address climate change but merely requires the Minister to take reasonable care to avoid causing personal injury to the children.¹⁹⁹

3.2.7 Conclusion

Justice Bromberg balanced the salient features in light of the EPBC Act to find the imposition of a duty of care was warranted.²⁰⁰ The formal declaration was ordered in Sharma (No 2) as:

[The Minister] has a duty to take reasonable care, in the exercise of her powers under s 130 and s 133 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) in respect of referral EPBC No. 2016/7649, to avoid causing personal injury or death to persons who were under 18 years of age and ordinarily resident in Australia at the time of the commencement of this proceeding arising from emissions of carbon dioxide into the Earth’s atmosphere.²⁰¹

3.3.1 Background

This class action was brought by a seaweed farmer and Group Members in Indonesia, in response to the damage of their seaweed farming activities, allegedly the result of an oil spill from an oil well operated by the respondent within Australia’s territorial waters in the Timor Sea.²⁰⁸ Before the events occurred, the respondent sought to suspend the H1 Well, a process which the Court explained in its judgment and included an application to the Director of Energy, Department of Regional Development, Primary Industry, Fisheries and Resources of the Northern Territory to suspend the well.²⁰⁹ As a part of the application, the respondent provided an Oil Spill Contingency Plan (‘OSCP’) providing the strategy that the respondent would use to mitigate environmental effects of any spills.²¹⁰ This process included the installation of a cement shoe as a primary control barrier against the release of the oil from the well, and the respondent’s application was approved on the basis that it further install a Pressure-Containing Anti-Corrosion Cap (‘PCCC’) to protect against spills.²¹¹ After being provided a report regarding the installation of the cement shoe, and no testing undertaken on the shoe, the respondent decided not to install the PCCC.²¹² A pressure-based barrier was unable to be maintained to prevent a spill, and the respondent failed to test or monitor the effectiveness of the barrier.²¹³ The cement shoe eventually failed, and oil was released uncontrollably from the H1 Well for at least 10 weeks.²¹⁴ The spill reached 81 villages located in the Rote–Kupang region,²¹⁵ and was alleged to have resulted in the damage of the applicant’s and many other business’ seaweed crops.²¹⁶

3.3.2 Issues on Application

The Court first addressed two questions when assessing the likelihood that the oil spill caused the loss described by the applicant and the Group Members: did the oil spill from the respondent’s well reach the Rote–Kupang region in which the seaweed was farmed, and if so, did the oil cause the damage to the seaweed crops of that region?²¹⁷ While it was not disputed that fresh crude oil would kill the seaweed, the Court had to decide whether the oil that eventually reached the Indonesian coast in the Rote–Kupang region could kill or damage the seaweed.²¹⁸

The Court then determined whether the respondent owed a duty of care to the applicant and other businesses and enterprises within the Rote–Kupang region which relied on the ecosystem in the area for their commercial enterprises, to avoid the risk of damage from the uncontrolled release of oil from the respondent’s well.²¹⁹ The Court subsequently turned to the question of whether the duty of care was breached, by assessing the foreseeability of harm to the commercial enterprises of the businesses using the Rote–Kupang shoreline caused by the acts and omissions of the respondent.²²⁰ Finally, the Court calculated the damages to be awarded to the applicant.

3.3.3 Reasons of the Court

The Court examined witness evidence in considerable detail on risk and ocean current modelling²²¹ in determining the likely outcome of where the oil from the spill reached.²²² While the Court expressed some caution as to the use of these modelling techniques,²²³ and the limitations of eye-witness testimony,²²⁴ the Court concluded that on the balance of probabilities, the oil from the spill reached the coastal areas of Rote–Kupang.²²⁵ Justice Yates discussed eye-witness testimony from the applicant and Group Members to the existence of a waxy or oily material, observed variations of rainbow coloured residue on the water, dead fish and itchy skin upon contact (to name a few).²²⁶ His Honour found these were useful in concluding the provenance of the oil on the shores of Rote–Kupang.²²⁷ Moreover, the combined modelling and evidence of expert witnesses make it highly likely that the oil arrived on Rote–Kupang.²²⁸

Justice Yates concluded that on the balance of probabilities, the oil from the spill caused or materially contributed to the damage and death of the seaweed along the coastal areas of Rote–Kupang.²²⁹ It was unlikely that natural oil seeps were the cause of the seaweed crop death, as the eyewitness testimony presented it as unnatural as compared to what would occur during a natural oil seep and was unlikely to have caused such a widespread impact on farming and marine life.²³⁰ For similar reasons, Yates J ruled out the likelihood of damage caused by passing ships or the toxic effects of coral spawning.²³¹ Taking into consideration the expert evidence of the witnesses, the Court also ruled out ice-ice disease, high sea temperatures or climate change, or ocean acidification, as the cause of the damage.²³² However, it was noted that it was not necessary for the Court to determine the precise mechanism or process by which the seaweed died.²³³ Taking into account the expert evidence, Yates J noted that ruling out other possibilities, as the oil reached the coastal areas in question, the crops died soon after this arrival, and given the widespread nature of the event in the Rote–Kupang region, the oil spill likely materially contributed to the death of the crops.²³⁴

Justice Yates found that the respondent owed a duty of care to the applicant and the Group Members, and that this duty was then breached by the respondent.²³⁵ This breach in turn caused or materially contributed to the death and loss of the seaweed crops.²³⁶ The duty of care that the respondent owed was the care and skill of operating and suspending the oil well, and the reasonably foreseeable consequence if this task were taken out incompetently.²³⁷ Yates J took into account reports and modelling available to the respondent before the oil spill had occurred.²³⁸ While a report provided by URS Australia Pty Ltd regarding well and drilling management and risks of oil spills from wells noted that the release of the oil would be unlikely to occur, the likelihood that it would occur was assessed on the basis that all the systems that the respondent put in place would fail.²³⁹ The report noted that assuming that in the circumstances all the barriers failed, it would be considered ‘ripe for a well blowout’,²⁴⁰ without further taking into consideration the simple gross negligence that the Court noted occurred in the respondent’s actions leading up to the blowout.²⁴¹ Moreover, the OSCP report noted that if a spill were to occur, it would be unlikely to reach Australia, Timor and Indonesia, including the Rote–Kupang region.²⁴²

Justice Yates noted that while the report accessible by the respondent concluded damage to the commercial enterprises would be unlikely to occur, the report focused on spills that could occur from ships, rather than the blowout of oil wells.²⁴³ If the respondent had received a report modelling the likely effects of an oil well blowout, they would have been aware of the reasonable foreseeable damage to the commercial exploits in the Rote–Kupang shoreline, which was calculated at a probability of 90% of the oil making contact with the shoreline.²⁴⁴ Simply not receiving a report of this kind, did not absolve the respondent from their duty of care.²⁴⁵ Moreover, the Court noted that the class of persons to whom this duty was owed to and the type of harm likely to be suffered was determinate, despite the size and number of claimants that were potentially foreseeable to the respondent.²⁴⁶

The Court then determined that the respondent breached their duty of care, as the harm to the commercial enterprises of the businesses that relied on the Rote–Kupang was foreseeable.²⁴⁷ The Court addressed this point briefly, as the foreseeable risk of harm was sufficiently reasoned in determining whether a duty of care existed.²⁴⁸

The proceedings were listed for further submissions regarding areas at which the hydrocarbons and dispersants may have reached, and which areas they cause damage to seaweed or the production of seaweed.

4.1.1 Background

The applicant, Mr Baron Matson, was convicted of a range of fraud offences in the US on 26 October 2005. The offences include one count of conspiracy to commit mail fraud and wire fraud, five counts of mail fraud and nine counts of wire fraud. The applicant was convicted of a further money laundering offence on 21 December 2005.

On 21 May 2014, the United States of America (‘the USA’) requested the extradition of the applicant from Australia and the applicant was subsequently arrested. The four stages of extradition were completed.

On 4 August 2020, the applicant filed an application to seek relief (Action QUD254/2020) in the form of declarations, an injunction and an award of exemplary damages—all relating to the applicant’s ‘unlawful’ period of time in custody. There are five named respondents to the proceedings, namely the Attorney-General for the Commonwealth of Australia (first respondent), the Commonwealth of Australia (second respondent), the President of the USA, Donald J Trump (third respondent), the Attorney-General of the USA, the Honourable William P Barr (fourth respondent) and the USA (fifth respondent).

4.1.2 The Respondent’s Interlocutory Application

On 11 September 2020, the first and second respondents filed an interlocutory application seeking an order for summary judgment on the grounds that the applicant has no reasonable prospect of successfully prosecuting the proceeding, the proceeding is frivolous or vexatious, and the proceeding is an abuse of process of the Court. They rely on the principles of res judicata, Anshun estoppel and abuse of process.

The principle of res judicata operates to preclude a party from litigating in a second proceeding a cause of action which has merged into judgment in a prior proceeding.²⁴⁹ The Court found that contrary to the apparent belief of the applicant, a claim for relief is subject to the doctrine of res judicata even if the relief be sought in the later proceedings on new or additional grounds or information.²⁵⁰

An Anshun estoppel operates to preclude a person from raising a claim or issue in later litigation which, although not litigated in earlier litigation, was so closely connected with it that it was unreasonable for the party not to have raised it then.²⁵¹ The rationales for the Anshun estoppel include the avoidance of inconsistent judgments and multiplicity of proceedings, and the promotion of the efficient use of court resources and time.²⁵²

Finally, the Court found that the respondent could validly rely on principles of abuse of process per r 26.01 Federal Court Rules 2011 (Cth), and that the Court exercises the power to dismiss such proceedings, with caution.²⁵³

4.1.3 The Applicant’s claims

The claims made by the applicant on 4 August 2020, and their respective outcomes, can be categorised as follows:

4.1.4 The Applicant’s 6 January 2021 Application to Reopen

In the fifth interlocutory application for leave to reopen the proceedings, the applicant sought to reopen the proceedings to seek leave to file and rely upon a FAOA, to seek orders for a temporary stay and to seek an order regarding a medical and psychological assessment.²⁹⁰ The Court noted that the overriding principle upon which the Court acts when considering such applications, is the interests of the administration of justice having regard to the circumstances of the case. Here, the applicant’s application falls under the first and fourth categories of the four overlapping categories of cases where a court may grant leave to reopen as identified in Inspector-General in Bankruptcy v Bradshaw.²⁹¹

4.1.5 Second Proposed Further Amended Originating Application

The Court concluded that it was not in the interests of justice to allow the reopening with respect to the applicant’s Second Proposed FAOA.²⁹² This was firstly, because it was not reasonably arguable that any failure by the Attorney-General in December 2020 to reconsider or revoke the s 22 Decision could render the decision made by the Acting Attorney-General ‘unlawful and invalid’ as the applicant proposed to claim in Proposed order 8.²⁹³ Secondly, it is not reasonably arguable that a lack of power by the Attorney-General to reconsider and revoke a surrender decision could render invalid the Extradition Act, Pt 2 of the Extradition Act, or s 22 of the Extradition Act so as to make the claim for Proposed Order 7 reasonably arguable.²⁹⁴ Thirdly, the claim for Proposed Order 9 was not reasonably arguable as even if the Attorney-General had the power to reconsider and revoke a s 22 decision, the Attorney-General cannot be compelled to exercise it.²⁹⁵

Furthermore, the matters that the applicant claimed would compel the Attorney-General to revoke the s 22 Decision are not matters that the Extradition Act requires to be considered when making a surrender determination.²⁹⁶ Even if it were otherwise, the matters the applicant relied upon would not compel revocation of an earlier surrender determination. Lastly, the application seeking to revise the claims for Proposed Orders 1–6 were not deemed to have the effect of making the claims reasonably arguable, and rather, seeking further revision after presentation of submissions was held to be a matter counting against it being in the interests of justice to permit the reopening.²⁹⁷

4.1.6 Reopening for Psychological Assessment

In the application, the applicant sought a ‘temporary stay’ of the respondents’ interlocutory application until all respondents had been served with the Second Proposed FAOA and until the applicant had been psychologically and physically assessed.²⁹⁸ The applicant further sought an interlocutory order that the Commonwealth pay for these assessments.²⁹⁹ The Court rejected this aspect of the application.³⁰⁰

The Court acknowledged that they should not adopt a narrow view in considering the use of discretion to permit reopening as this is a matter where the applicant’s liberty is affected.³⁰¹ However, the Court ultimately concluded that in the present case, due to the public interest of litigation being conducted efficiently and expeditiously and in the finality of litigation, the bar on the number of times the applicant can agitate claims of a similar nature has been reached.³⁰²

4.1.7 Other Findings

The Court found that the originating application, the Amended Originating Application, the proposed FAOA and the Second Proposed FAOA may have a vexatious quality but do not require a concluded view from the Court regarding these matters.³⁰³ The Court rejected the applicant’s second application to reopen the 6 January interlocutory application. The time for making submissions had ended, the respondents’ consent had not been sought. The court considered the matter unfair if not vexatious to the respondents. It also noted other reasons concerning delay and the interests of justice.³⁰⁴

4.1.8 The Bail Application

The Court stated that the applicant, on his application for bail to the court, must satisfy the court that (a) the underlying application in these proceedings has strong prospects of success, (b) special circumstances exist, and (c) there is no real risk of flight as well as it being an appropriate exercise of the Court’s discretion to grant bail.³⁰⁵ Here, the Court concluded that the applicant cannot establish strong prospects of success in the underlying proceedings and thus, rejected this application.³⁰⁶

4.1.9 Conclusion

The Court concluded by making the following orders:

• 1) The interlocutory application of the applicant sent to the Court on 6 January 2021 and filed on 11 January 2021 seeking to reopen the hearing is refused.

• 2) The application of 19 February 2021 for leave to reopen the interlocutory application filed on 11 January 2021 is refused.

• 3) Each of the interlocutory applications of the applicant filed on 25 and 29 September 2020 is refused.

• 4) Pursuant to s 31A of the FCA Act, the originating application filed on 4 August 2020 is dismissed.

• 5) Subject to the following orders, the applicant is to pay the costs of the first and second respondents of and incidental to the proceedings to be taxed in default of agreement.

• 6) If either the applicant or the first and second respondents wish to contend for some different order as to costs, he or they are by 4 PM on 10 March 2021, to file and serve an outline of submissions setting out the different order for which they contend and the submissions in support of the making of that order, with those submissions not to exceed five pages.

• 7) In the event that the applicant or the first and second respondents do file submissions in accordance with the preceding order, the other party is, by 4 PM on 17 March 2021, to file responsive submissions, not exceeding five pages.

• 8) Subject to any further order, the Court will then determine the outstanding issues as to costs on the papers.

• 9) The parties do not have leave to file and serve any documents other than those referred to in Orders 6 and 7.³⁰⁷

4.2.1 Significance of the Case

Adriana Rivas was a secretary for Manual Contreas, the chief of Chile’s secret police force, Dirección de Inteligencia Nacional (‘DINA’) from 1973 to 1976. Rivas was accused by Chilean authorities of having participated in the disappearance of seven people in Chile in 1976, one of whom was the secretary-general of Chile’s Communist Party, Victor Dias. Rivas moved to Australia in 1978 and has been living and working in Sydney since. In 2014, Chile’s Supreme Court issued an extradition order for Rivas, in order to prosecute her in relation to seven counts of aggravated kidnapping, contrary to article 141 No.3 of the Criminal Code (Chile). Chile presented this extradition order to Australia on 6 August 2018. On 5 December 2018, a magistrate of the Australian Capital Territory issued an extradition arrest warrant in relation to Ms Rivas.

In February 2019, Rivas was arrested in Sydney and placed in remand. An application was made under s 39B of the Judiciary Act 1903 (Cth) for judicial review of the decision refusing her bail.³⁰⁸ Rivas argued that there were special circumstances which justified bail, however Abraham J affirmed the initial decision and refused Rivas’ bail. In 2020, Rivas made an interlocutory application for a copy of her extradition file. In May 2020, the Federal Court found that Rivas had not established that there was a basis to order discovery of the file, and hence dismissed the application.³⁰⁹ In October 2020, Rivas was found eligible for extradition by Magistrate Stewart at the Local Court of NSW in accordance with s 19 of the Extradition Act. Rivas appealed this decision to the Federal Court in June 2021,³¹⁰ with 24 substantive grounds for review. The case was heard by Abraham J. Her Honour dismissed Rivas’ appeal, upholding the Magistrate’s initial decision that Rivas was eligible for extradition. Rivas again appealed to the Full Court of the Federal Court and was heard by Justices Mortimer, Bromwich and Anderson. Rivas’ appeal was again dismissed in November 2021.

The Notice of Appeal identifies 17 grounds of appeal, which can be grouped as follows:

• 1) Ground 1 challenges the primary judge’s characterisation of the extradition offence contained in the extradition request;

• 2) Grounds 2–9 complain that the primary judge failed to recognise that a ‘principle of legality’ would be violated with respect to the requirements of s 19(2) of the Extradition Act;

• 3) Grounds 10–14 challenge the primary judge’s findings concerning supporting documentation in s 19(2)(a) and dual criminality s 19(2)(c) of the Extradition Act; and

• 4) Grounds 15–17 challenge the primary judge’s findings concerning extradition objections under s 19(2)(d) of the Extradition Act.³¹¹

4.2.2 Ground 1

Rivas contended that the primary judge mischaracterised the extradition offences contained in the extradition request by stating her position as ‘directly involved’ in the offences, rather than merely a co-perpetrator.³¹² The Court rejected this view and cited various pinpoints at which the primary judge recognised Rivas as co-perpetrator.

4.2.3 Grounds 2–9

Rivas argued that the primary judge failed to recognise that a ‘principle of legality’ would be violated with respect to the requirements of s 19(2) of the Extradition Act.³¹³ This was based on a general principle which opposes the retrospective operation of Chilean domestic criminal law. The primary judge identified that this ‘principle of legality’ referred to was not what is known as the principle of legality in Australian domestic law. Nonetheless, the Court noted that the primary judge found that kidnapping was a criminal offence at the time Rivas is accused of offending and thus rejected these grounds of appeal.

4.2.4 Grounds 10–14

Rivas contended that the primary judge erred in concluding that requirements of ss 19(2)(a) and 19(c) of the Extradition Act had been satisfied. S 19(2) of the Extradition Act states that a person is only eligible for surrender in relation to an extradition offence if:

(a) the supporting documents in relation to the offence have been produced to the magistrate or judge …

…

(c) the magistrate or Judge is satisfied that, if the conduct of the person constituting the offence in relation to the extradition country, or equivalent conduct, had taken place in the part of Australia where the proceedings are being conducted and at the time at which the extradition request in relation to the person was received, that conduct or that equivalent conduct would have constituted an extradition offence in relation to that part of Australia …

In relation to s 19(2)(a), the Court found that the primary judge analysed the supporting documents in detail and found no error in the conclusion reached by Her Honour.

Section 19(2)(c), also known as the dual criminality requirement, requires the measuring of acts and omissions in the statement of conduct against the relevant Australian criminal offences such that the offences would constitute an offence under Australian law and thus be sufficiently serious to be an extradition offence. The Court noted the submissions advanced on behalf of Ms Rivas were significantly directed at undermining the allegations that she faced in Chile, and which were the basis for her extradition. The Court emphasised that the ‘extradition process does not involve a determination of guilt or innocence’,³¹⁴ and stipulated that s 19 does not require that the offences for which the extradition is sought are made out in the material, nor is it part of the magistrate’s role to consider the appropriateness of the decision of Chilean authorities to charge Rivas.³¹⁵ The Court found no error in Her Honour’s conclusion that the extradition request satisfied the requirements under s 19(2)(c) of the Extradition Act.

4.2.5 Grounds 15–17

Rivas further contended that the primary judge erred in Her Honour’s application of s 19(2)(d), which reads (a person is only eligible for surrender in relation to an extradition offence if):

(d) the person does not satisfy the magistrate or Judge that there are substantial grounds for believing that there is an extradition objection in relation to the offence.

Rivas argued that the primary judge erred in concluding that there was no extradition objection within the meaning of s 7 of the Extradition Act, which sets out possible grounds for an objection.

Rivas made an objection based on ss 7(b) and 7(c) of the Extradition Act, namely that her prosecution was a result of international political pressure, as evidenced in an SBS program in which she could be seen as ‘supporting the Pinochet regime’.³¹⁶ However, the primary judge noted that the program post-dated the institution of her prosecution in Chile which undid the objection. The Full Court found no error in the primary judge’s analysis. A proper objection would also require a causal connection between the punishment Rivas might suffer on trial and her political opinions. The Court found that Rivas failed to adduce evidence of any relevant causal connection.

Rivas made a further extradition objection pursuant to s 7(e) of the Extradition Act, submitting that she had been ‘pardoned’ from her offences by the effect of the Amnesty Law and thus she had a valid extradition objection. Chile’s Amnesty Law was enacted by decree by Pinochet to protect those suspected of committing human rights abuses. Although the Amnesty Law is still in force in Chile, the Supreme Court of Chile has interpreted it so as to not apply to ongoing offences and crimes against humanity. Thus, the Chilean Supreme Court interpretation of the Chilean Amnesty Law coupled with the primary judge’s finding that the true purpose of s 7(e) was to prevent exposure to double jeopardy led the Court to reject this ground of appeal. The Full Court found no error in the primary judge’s analysis and agreed that even if the Amnesty law was available as a defence, that was a matter for domestic Chilean proceedings.³¹⁷

4.2.6 Held

Justices Mortimer, Bromwich and Anderson dismissed the appeal and reinstated the order of Magistrate Stewart dated 29 October 2020, made under s 19(9) Extradition Act, with the effect that Rivas is eligible for surrender. The Court further ordered that the appellant pay the respondent’s costs of the proceedings.

5.1.1 Background to the Case

On 11 November 2020, orders were made pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (‘the Regulations’), on the application of the Department of Communities & Justice (‘DCJ’), for the return of a child X who was born in 2019, to Canada. X is a citizen of Canada and of Australia.

The mother of the child, Ms Kingley, appealed against those orders and filed an application pursuant to Regulation 19A of the Regulations to discharge the return order.³¹⁸ The mother made this application on two bases: ss 19A(2)(b) and 19A(2)(c). Subsection (b) creates grounds for a discharge order if the court is satisfied that since the return order was made, circumstances have arisen that make it impracticable for the order to be carried out. Subsection (c) creates grounds for a discharge order if the court is satisfied that exceptional circumstances exist that justify the return order being discharged.

5.1.2 Section 19A(2)(b)

The mother argues that the return order should be discharged because two circumstances have arisen which make it impracticable for the order to be carried out. Specifically, that the Government of C Province has extended a provincial State of Emergency until at least May 2021, and secondly that she cannot afford to pay the costs of the travel to return the child and the costs of quarantine.³¹⁹ The Court found that the provincial State of Emergency had been declared since 18 March 2020, which was prior to the date of the orders, being 11 November 2020 and this meant the statutory requirements were not met. In relation to the costs of travel and quarantine, the Court noted that it was not clear from the submissions whether her financial position had changed since 11 November 2020, and thus this basis was not made out.³²⁰

5.1.3 Section 19A(2)(c)

The Court noted that the word ‘exceptional’ contained in Regulation 19A(2)(c) is to be given its ordinary meaning.³²¹ The mother’s grounds for making out ‘exceptional circumstances’ in subsection (c) include her inability to meet the child’s costs of travel and quarantine, the mother’s ineligibility for a visa which would allow her to enter and work in Canada, and the Australian Smartraveller website advice to ‘not travel’ to Canada.

The orders made on 11 November 2020 provides that the mother pay the necessary travel expenses for the child to come to Canada, and for her own expenses incurred in a return trip to Canada. The mother estimated her costs to be not less than $23,298. This was estimated in December 2020, based on business class airfares and on a 14-day hotel quarantine period. In cross-examination it was revealed that economy airfares were available for $3,726, and that the hotel quarantine period was now 3 days with the remaining 11 days in self-isolation.³²² It also came to light that the father had offered to vacate his premises so that the mother and child could complete the 11 days self-isolation, however the mother claimed ‘she did not feel comfortable accepting it’.³²³ The Court found that the ‘determination cannot turn on the mother’s preferences’.³²⁴ In relation to the mother’s financial circumstances, the Court noted that she had been represented by counsel in the proceedings, and evidence of her current partner’s financial circumstances had not been provided to the Court. The Court concluded that ‘she is able to arrange funding to pay her legal fees, in an unknown amount but not less than $24,860, but she is unable to arrange funds to comply with the orders of 11 November 2020’.³²⁵ The Court emphasised that the provision of a discharge is entirely discretionary, evidenced by the use of the words ‘The Court may’ in Regulation 19A(2). The mother failed to discharge her burden by neglecting to give full and frank disclosure of her financial position, including the position of her partner, the amount she has paid in legal fees, and the resources available to her by borrowing or from other sources.³²⁶ Finally, the order was not conditional on the mother travelling with the child, and indeed the father was willing to come to Australia and collect the child. For these reasons, the Court concluded that the mother’s inability or unwillingness to travel to Canada with the child did not constitute an exceptional circumstance such to warrant a discharge of the return order.

The mother also asserted that she had a special circumstance in that she was not eligible for a visa which would allow her to enter and work in Canada. The mother annexed to her affidavit a document which had been issued by the Canadian government concerning who could travel to Canada in the circumstances of COVID-19. However, the document demonstrated that the mother would be a ‘foreign national eligible to travel to Canada’ as an immediate family member of the subject child who is a Canadian citizen.³²⁷ Alternatively, the mother could claim compassionate reasons for travel, which required authorisation from the Public Health Agency in Canada. The mother did not seek such authorisation. The Court found that there were no grounds to claim the mother’s ineligibility to travel to Canada.

Finally, the mother relied on the Australian Government Smartraveller website which advised ‘do not travel’ to Canada due to the health risks associated with the COVID-19 pandemic. However, the pandemic was not a special circumstance after the orders were made—rather, by November 2020, the pandemic was ‘world-wide and had been for many months’.³²⁸ The Court noted that the only evidence provided as to the current state of the pandemic in Canada was a newspaper article annexed to the mother’s affidavit. The court found this was not a piece of evidence that was cogent, credible, reliable and capable of proving the fact.³²⁹ In Re PT (a child) (summary return) KR v HH [2020] EWHC 834 (fam), the High Court of England and Wales stated that:

Although the course of the pandemic is clearly more advanced in Spain than in the UK, I do not have any evidence from which I can draw a conclusion that either country is any more or less safe than the other. It is clear that the pandemic is a serious public health emergency in both nations ...³³⁰

Relying on this decision, as well as some others, the Court ultimately concluded that the existence of the pandemic alone does not constitute an exceptional circumstance. The Court suggested an exceptional circumstance arising out of the pandemic might arise where the child is particularly vulnerable, medical or physically, or where the risk of infection is higher in one country and the quality of care was not of an acceptable standard.³³¹

5.1.4 Held

The application to discharge the return order, pursuant to Regulation 19A(2) of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) is dismissed.

6.1.1 Facts and Background

This case considers the nuanced differences between recognition, enforcement and execution of foreign arbitral awards under the ICSID Convention³³² in Australia. The leading judgment was provided by Perram J, with Allsop CJ and Moshinsky J agreeing. In summary, this case confirms that recognition, enforcement and execution of awards remain separate but intertwined concepts and endorses the view that a claim of foreign state immunity by a State against whom an award has been made will not prevent recognition of that award by an Australian court.

Infrastructure Services Luxembourg Sàrl (‘Infrastructure Services’) spent approximately €140m on solar power projects in Spain under a subsidy arrangement developed by the Spanish government.³³³ When the Spanish government discontinued the subsidy, Infrastructure Services contended that Spain had breached its obligations under the Energy Charter Treaty (‘ECT’).³³⁴ The ECT allowed for the dispute to be referred to arbitration under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (‘ICSID Convention’).³³⁵ Both Australia and Spain are member States of this Convention.

Infrastructure Services subsequently obtained an arbitral award of €101m against the Kingdom of Spain, and applied to the Federal Court of Australia for an order that Spain pay this amount plus interest.³³⁶ The Kingdom of Spain argued that the doctrine of foreign state immunity (as determined under s 9 Foreign States Immunities Act 1985 (Cth)) (‘Immunities Act’) operated such that Spain was immune from the jurisdiction of Australian courts, including in proceedings for the recognition and enforcement of the award.³³⁷ In response, Infrastructure Services argued that Spain’s membership of the ICSID Convention meant that it had agreed to submit to the jurisdiction of the relevant Australian courts, including the Federal Court of Australia.³³⁸ This issue, as well as the issue of foreign State immunity, formed the central issues considered by the Full Court of the Federal Court of Australia.³³⁹

6.1.2 Foreign State Immunity

The relevant provisions from the Immunities Act, being the provision of immunity (section 9), exceptions to immunity (section 10(1) and (2)) and definitions (section 3), were then considered.³⁴⁰ Importantly, foreign States are not immune from the jurisdiction of Australian courts if they have submitted to the court’s jurisdiction,³⁴¹ and a foreign State may ‘submit to the jurisdiction at any time, whether by agreement or otherwise’.³⁴² Infrastructure Services argued that the ICSID Convention was an ‘agreement’ and therefore that arts 54 and 55 of the ICSID Convention were applicable.³⁴³ Article 54 requires member States to recognise awards made under the Convention and enforce those awards as if they were made in a domestic court,³⁴⁴ and also provides that the domestic laws of the State in which execution is sought are to be used.³⁴⁵ Article 55 qualifies article 54 and specifies that the text of article 54 cannot be construed as ‘derogating’ from the laws of member States that relate to the immunity of States from execution.³⁴⁶ On this basis, Infrastructure Services argued that Spain’s agreement to the provisions of the ICSID Convention, most notably to article 54(2), means that Spain cannot claim foreign State immunity in a ‘competent’ court such as the Federal Court insofar as the proceedings were for recognition and enforcement of the award (but not for execution of the award).³⁴⁷ Whilst the Kingdom of Spain agreed that the Federal Court was ‘competent’, they maintained they were entitled to foreign State immunity due to the definitions of ‘execution’ and ‘enforcement’.³⁴⁸ Spain argued that the reference in article 55 to ‘execution’ has the same meaning as ‘enforcement’, and hence that article 54(2) (which refers to ‘recognition or enforcement’) results in the Australian domestic law relating to Spain’s immunity being non-derogable.³⁴⁹ It is on this basis that Spain submitted that a proper construction of article 54(2) would not result in Spain waiving its immunity or submitting itself to the jurisdiction of the Federal Court.³⁵⁰ In the alternative, Spain argued that even if it is held that the meaning of ‘execution’ in article 54(3) is the same as that of ‘enforcement’, the issue of the proper construction of article 55 could only be resolved by the International Court of Justice.³⁵¹

The Full Court unanimously rejected Spain’s argument on the basis that article 54(2) does in fact separate the definition of ‘recognition proceedings’ and ‘enforcement proceedings’ and therefore that article 55 has no application to ‘recognition proceedings’ as is the nature of this case.³⁵² In particular, the Full Court held that Spain had agreed, through its membership of the ICSID Convention, that award creditors such as Infrastructure Services were able to apply to the Federal Court of Australia to recognise the award issued by the ICSID tribunal, and that this constituted an agreement to submit to the jurisdiction of the Federal Court in proceedings for recognition of the award.³⁵³ Furthermore, the Full Court noted that the proceedings before the Federal Court were in the nature of a recognition proceeding and thus could not constitute proceedings for the execution of the award within the meaning of arts 54(3) and 55.³⁵⁴

The Court did not find it necessary to further discuss the differences between the meanings of ‘execution’ and ‘enforcement’ as they were not relevant to the current proceedings.³⁵⁵

6.1.3 Applicability of Article 55 to Recognition Proceedings

The judgment of Perram J provided an overview of the concepts of recognition, enforcement and execution. Whilst these ‘concepts are not hermetically sealed from one another’, recognition will usually pre-date enforcement, which in turn will generally pre-date execution.³⁵⁶ It is further noted that article 54(2) allows for recognition and enforcement by a competent court, distinguishing between these two concepts.³⁵⁷ This distinction is further recognised in article 54(1), in which the State must recognise an award as binding and enforce the award as if the award was a judgment given by a domestic court.³⁵⁸ Whilst it is possible to recognise an award without proceeding to enforce the award, it is not possible to enforce an award without at the same time recognising it.³⁵⁹

The Full Court dismissed Spain’s argument that article 55 could apply to recognition proceedings on the basis that if it did, article 55 would render article 54 useless to the extent that the award was made against a State party to the ICSID Convention, as a State could simply claim foreign State immunity to prevent recognition of the award from occurring.³⁶⁰

6.1.4 Spain’s Submission to Jurisdiction

Turning to Spain’s submission to the jurisdiction of the Federal Court, it was concluded that submission had occurred through the operation of arts 54(1) and (2) of the ICSID Convention.³⁶¹ It was further held that article 55 could not impact this submission to jurisdiction due to the fact that it does not apply to recognition proceedings.³⁶² In addition, it was noted that Spain’s contention that foreign State immunity could successfully operate in recognition proceedings was contrary to established case law.³⁶³

In order for Spain’s argument on immunity to be rejected, it is necessary that the initial proceedings before the Federal Court were in fact recognition proceedings.³⁶⁴ It was noted that determining this fact in Australia was not ‘entirely clear’, given the provisions in section 35 of the International Arbitration Act 1974 (Cth) (‘International Arbitration Act’) refer to enforcement and not recognition.³⁶⁵ If this construction is used, section 34 of the International Arbitration Act would prevent the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (‘New York Convention’) as being recognised as applicable to the award,³⁶⁶ thereby subverting the requirement in article 54(2) in which Australia must ‘provide a mechanism for a party to apply to a competent court for recognition of an award’.³⁶⁷ This goes against the general preference for construction of the International Arbitration Act that ‘gives effect to Australia’s international obligations’.³⁶⁸ Given this preference, it was concluded that section 35(4) of the International Arbitration Act should include recognition within the meaning of enforcement.³⁶⁹ Following this, it was concluded that the Federal Court has jurisdiction to hear recognition proceedings arising under section 35(4).³⁷⁰

The question of the proper procedure to ensure an award is recognised was then considered. Looking to arts 54 and 55 of the ICSID Convention, it was suggested that recognition can be achieved by entering ‘judgment in the amount of the pecuniary obligations imposed by the award.’³⁷¹ The use of an order ‘that the award be recognised “as if” it were a judgment of the Federal Court’ was also considered to be possible, although preference was given entering a judgment for the amount of the award.³⁷²

Following this conclusion, the orders of the judge at first instance were partially set aside as they did ‘not reflect a correct approach to recognition’ by omitting necessary language or requiring the Kingdom of Spain to act (whilst recognition should not require a party to do something).³⁷³

The argument raised by Spain that Infrastructure Services did not frame the proceedings as one of recognition, but instead of recognition and enforcement, and therefore that a new issue was raised on appeal was dismissed on the basis that focusing solely on the ground of recognition was simply narrowing the scope of the issues discussed during the first instance proceedings.³⁷⁴

As the first instance proceedings were determined to be recognition proceedings, consequently article 54(2) manifested the agreement by Spain not to invoke foreign state immunity in the current proceedings and to submit itself to the jurisdiction of the Federal Court.³⁷⁵

6.1.5 Determination of Meaning of Article 55

Attention was then given to the concept of ‘execution’ as contained in article 55, and whether this would include ‘enforcement’.³⁷⁶ It was held that as the initial proceedings were recognition proceedings, the answer to this question would be of no importance to the current matters. However, in the Federal Court, the judge at first instance considered that article 55 applied only to execution, and did not apply to recognition or enforcement, as article 55 only applies to steps taken after judgment.³⁷⁷ Perram J agreed with Spain, finding that ‘execution’ and ‘enforcement’ have the same meaning in both article 54 and article 55.³⁷⁸ This is due to the fact that the French and Spanish versions of the Convention (which are both as equally authoritative as the English version) use the same word to refer to both execution and enforcement.³⁷⁹ This follows the rules regarding comparison of foreign language texts in the Vienna Convention on the Law of Treaties (‘VCLT’),³⁸⁰ although it is noted that the ICSID Convention does not technically follow this Convention but rather relies on customary international law.³⁸¹

Brief note was made of Spain’s grounds for appeal and allegations of errors made by the judge at first instance. Whilst the Full Court differed in opinion in some matters (most notably in the differences between ‘execution’ and ‘enforcement’ in article 55), it was held that this would not have altered the outcome of the proceedings. The majority of Spain’s submissions of error by the judge at first instance were rejected.³⁸²

The appeal was stood over to permit further arguments by the parties with regards to the form of recognition of the ICSID award, as the form of the award provided by the judge at first instance did not adequately conform to the procedural form required for recognition³⁸³ and overstated the rights of Infrastructure Services provided by article 54.³⁸⁴ Whilst the Full Court’s judgment confirms the differences between recognition and enforcement of awards,³⁸⁵ and that State parties to the ICSID Convention cannot use foreign state immunity as a method to prevent recognition of an award, it remains to be seen whether such an argument would be successful in halting enforcement of these awards.³⁸⁶

The High Court granted leave to appeal this decision on 18 March 2022.³⁸⁷

7.1.1 Background and the Decision

This case is the most significant in a series of 2021 cases where the legislative regime governing immigration detention, refugee law and criminal deportation places Australia in apparent conflict with obligations it has assumed under international law. In a narrow decision of 4:3 reminiscent of the 2004 ruling in Al-Kateb v Godwin (‘Al-Kateb’),³⁸⁸ a majority of judges of the High Court declined to rule unlawful the indefinite detention of a non-citizen who cannot be removed from Australia. This time it was because removal of the applicant (to war torn Syria) would amount to refoulement—were it even physically possible. The result means that no end is in sight for a young man who had already been detained for seven years by the time the case was heard by the High Court.

AJL20 was a citizen of Syria who entered Australia on a child visa in 2005. Upon conviction of an offence, his permanent resident visa was cancelled by the Minister in 2014 on character grounds. He became an unlawful non-citizen and was detained under the Migration Act 1958 (Cth) (‘Migration Act’). AJL20 remained in detention until Bromberg J ordered his release in 2020.³⁸⁹ His Honour relied on earlier High Court obiter to hold that because the executive had failed to remove the applicant from Australia ‘as soon as reasonably practicable’, his detention was not for the purpose of removal and was therefore unlawful.³⁹⁰ Section 198 of the Migration Act requires removal where an unlawful non-citizen has exhausted all of their visa options. Section 197C provided that for the purposes of any removal process, ‘it is irrelevant whether Australia has non-refoulement obligations’. Nor was it necessary for there to have been any assessment of whether non-refoulement obligations were owed to AJL20.³⁹¹ In fact, AJL20 was left in detention because the administration could not effect his removal. The government stated that for the period of the man’s detention it was considering whether Australia’s non-refoulement obligations would be engaged on his removal to Syria. That consideration of non-refoulement was apparently contrary to the terms of s 197C,³⁹² a matter not in issue before the High Court. The question was whether the failure to remove as required by s 198 rendered AJL20’s detention unlawful and liable to be remedied by the grant of habeas corpus.

By a majority of four to three, the High Court overturned Bromberg J’s decision and held that the detention of AJL20 was lawful. Kiefel CJ, Gageler, Keane and Steward JJ held that the authorisation of detention of an unlawful non-citizen under ss 189(1) and 196(1) of the Migration Act is not conditioned on the actual achievement by the executive of removal ‘as soon as reasonably practicable’. Their Honours concluded that the only remedy for a failure to remove as soon as reasonably practicable is mandamus to compel the executive to remove, even if that removal is in breach of Australia’s non-refoulement obligations. Justices Gordon and Gleeson delivered a joint dissenting judgment and with Edelman J formed the minority.

7.1.2 Relevance of International Law

Reference to international law is notably absent from the High Court’s judgment, which rather focused on how the Australian Constitution impacted on the interpretation of the Migration Act. The Court made no mention of the clear inconsistency between the international law norm of non-refoulement and s 197C of the Migration Act. That section required officials considering removal to disregard entirely Australia’s non-refoulement obligations.

Some had anticipated that the High Court in AJL20’s case may have had cause to reconsider the correctness of Al-Kateb.³⁹³ Indeed, Gordon and Gleeson JJ noted that ‘much reference was made in argument’ to Al-Kateb.³⁹⁴ The majority in Al-Kateb (McHugh, Hayne, Callinan and Heydon JJ) had held that the clear words in ss 189, 196 and 198 of the Migration Act required and authorised indefinite detention. Because there is no ambiguity in those words, there is no place for the consideration of international law or jurisprudence from other common law jurisdictions.³⁹⁵ The minority (Gleeson CJ, Gummow and Kirby JJ) took a purposive approach to interpretation, consistent with the principles of international human rights law and placing emphasis on the right to individual liberty. It was only Kirby J, however, who explicitly relied on international law norms.³⁹⁶

In AJL20, all members of the Court declined to scrutinise the correctness of Al-Kateb.³⁹⁷ Arguably, the failure to reference international law or the right to individual liberty demonstrates that the High Court accepted the correctness of the majority approach in Al-Kateb. While the dissentients were equal in number to those in Al-Kateb, it is noteworthy that they focused exclusively on narrow constitutional arguments.

7.1.3 The Reasoning in AJL20’s Case

The High Court espoused competing constitutional lenses to the interpretation of the Migration Act. The majority held that the constitutional validity of the Migration Act depended on whether the statute, properly construed, conformed with constitutional limitations upon legislative competence without any need to read it down to save its validity.³⁹⁸ If the Act is constitutionally valid, then it is valid in all its applications and the only question that remains is whether the executive action was authorised by the statute.³⁹⁹ The terms of the Migration Act circumscribe punishment as a statutory purpose, and the constitutional validity of the Act is not affected ‘by the intents and purposes of the officers of the Executive’.⁴⁰⁰ It would be ‘heresy’ to say that ‘delay in performance of [the executive’s] duties by [its] officers can take the law outside Parliament’s competence.’⁴⁰¹

The obligation of the executive to detain non-citizens is hedged by enforceable duties, such as the duty to remove as soon as reasonably practicable, and those duties give effect to legitimate non-punitive purposes and uphold the constitutional validity of the statutory scheme.⁴⁰² Because those duties are enforceable, the lawfulness of detention is capable of determination from time to time and is not unconstrained.⁴⁰³ Provided an officer of the executive knows or reasonably suspects that the person is an unlawful non-citizen throughout the period of detention, ‘an unauthorised or prohibited purpose can affect neither the duty to detain nor the duty to remove nor the appropriate remedy for non-performance of the duty to remove,’ namely mandamus.⁴⁰⁴

In contrast, Gordon and Gleeson JJ observed that the ‘logical, and inevitable, consequence’ of any conclusion that detention remains lawful until the person is removed, and subject only to the requirement that they are a non-citizen is that, ‘perhaps absent express malice’, detention would be ‘at the unconstrained discretion of the Executive.’⁴⁰⁵ All detention and its duration must be justified, and ‘[p]rolonged detention at the unconstrained discretion of the Executive is not only harmful but unlawful, and must be able to be remedied, without delay’⁴⁰⁶ by the process of habeas corpus. Prolonged detention at the executive’s unconstrained discretion being unremedied is an ‘abdication by the Court of performance of its obligations.’⁴⁰⁷

Edelman J considered that the ‘Act does not permit the Executive to continue the detention of any unlawful non-citizen for any purpose so long as there is also an intention ultimately to remove the person.’⁴⁰⁸ The argument that detention was authorised though it contravened s 197C took the conclusion in Al-Kateb ‘one large step further’.⁴⁰⁹ The step further was considering it lawful to continue detention ‘for an objective purpose that is contrary to an express provision concerning the scope’ of the Migration Act.⁴¹⁰ Open-textured statutory powers and duties are confined ‘by the scope and purpose of the statutory enactment’,⁴¹¹ and the High Court in Al-Kateb had recognised the duty to detain within the scope and purposes of the Migration Act.⁴¹² Edelman J distinguished between the ‘duty’⁴¹³ to detain within the scope and purposes of the Act, and the duty to remove as soon as reasonably practicable.⁴¹⁴ His Honour agreed with the majority that the proper remedy for the failure to remove as soon as reasonably practicable was mandamus,⁴¹⁵ but the appropriate remedy for a failure to detain within the scope and purposes of the Migration Act would be habeas corpus.

It should be noted that this case (and others discussed in this part of the article) led to amendments to s 197C of the Migration Act as well as to accompanying policy directions. The changes clarify that it is proper for decision makers to consider non-refoulement obligations before effecting the removal of an unlawful non-citizen.⁴¹⁶

7.2.1 Background

The second case in this series also involved a long-term permanent resident facing indefinite detention because he could not be safely removed from Australia—both because he was a refugee to whom Australia owed non-refoulement obligations, and because he had a psycho-social disability. In this instance the issue facing the High Court related to the process surrounding the cancellation of his visa. Once again, the rulings are noteworthy in their failure to mention any aspect of international law, with all members of the court favouring a narrow textual approach.

The respondent, EFX17, is a citizen of Afghanistan. He arrived in Australia in 2009, and on 16 December 2009 he was granted a protection visa. In 2016, he was convicted of assault contrary to s 317 of the Criminal Code Act 1899 (Qld) and was sentenced to seven years' imprisonment. On 3 January 2017, the Minister’s delegate cancelled the respondent's visa under s 501(3A) of the Migration Act. This decision was described in a four-page letter dated 3 January 2017 that was given to the respondent in custody along with a package of other documents. The respondent’s native language is Hazaragi. He could understand spoken English and speak broken English but he was not literate in any language. The respondent had been suffering from a schizophrenic illness due to substance abuse and traumatic events at the hands of Taliban soldiers.⁴¹⁷

Section 501CA(3) of the Migration Act requires the Minister to give a person whose visa has been cancelled particular information and to invite the per- son to make representations within a time frame stipulation by regulations.⁴¹⁸ It reads:

(3) As soon as practicable after making the original decision, the Minister must:

• (a) give the person, in the way that the Minister considers appropriate in the circumstances:

  • (i) a written notice that sets out the original decision; and

  • (ii) particulars of the relevant information; and

• (b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

The Minister was appealing a Full Federal Court decision that read into this provision a requirement that the recipient be capable of understanding the information and invitation to comment given. The majority in the lower court had held that the Minister failed to ‘give’ the respondent the notice and particulars and to ‘invite’ the respondent to make representations, having regard to the circumstances of the respondent's literacy, capacity to understand English, mental capacity and health, and facilities available to him in custody.⁴¹⁹ The court also ruled that the information and invitation had be given to the recipient by the Minister, or the Minister's delegate, personally.⁴²⁰

7.2.2 Must the Recipient be Capable of Understanding the Information and Invitation?

The respondent signed a receipt for the material in question.⁴²¹ However, it later emerged that he was confused about the contents. On the respondent’s behalf, the Prisoners’ Legal Service requested the Department of Immigration and Border Protection reissue the notice of cancellation because the respondent’s capacity to understand the notice’s contents was ‘significantly impaired’.⁴²² The Department refused to do this on the basis that the original notice was already ‘legally effective’.

The Minister argued that the Full Court erred in its construction of s 501CA(3), asserting that the words ‘give’ and ‘invite’ should be given their ordinary meaning. The High Court agreed that s 28A of the Acts Interpretation Act 1901 (Cth) supports the view that the words ‘give’ and ‘invite’ connotate only the performance of an action, and not the consequences of performance, such as the recipient’s capacity to understand the content of the notice or invitation.⁴²³ The High Court held that the expression ‘the way that the Minister considers appropriate in the circumstances’ concerned only the method of delivery or invitation.⁴²⁴ It ruled that the statutory context in which s 501CA(3) appears also suggests the respondent’s circumstances were not relevant.⁴²⁵ The Minister’s decision to revoke the visa is one to which the rules of natural justice do not apply,⁴²⁶ emphasising the gravity of the consequences of such a decision.⁴²⁷

For these reasons, the High Court found that the majority of the Full Court erred in its reasoning that the capacity of a person to understand the written notice, particulars, or invitation described in s 501CA(3) was relevant to whether the written notice and particulars had been given or whether the invitation to make representations had been made.

7.2.3 Is the Minister or Delegate Required Personally to Perform the Duties in s 501CA(3)?

The second ground of appeal related to the Full Federal Court’s finding that the information and invitation must be given to the recipient by the Minster, or the Minister’s delegate, personally. The Minister relied on s 497(2) of the Act to argue that this is not the case. Section 479(2) reads:

(2) If the Minister delegates the power to cancel visas, the delegation does not require the delegate personally to perform any task in connection with the cancellation, except the taking of a decision in each case whether a visa should be cancelled.

The High Court invoked principles of administrative necessity and the express terms of the Act to find that the regime does allow delegation such that the duties contained in s 501CA(3) are not obligations of the Minister personally. The statutory duty is to ensure that the nominated acts are done—if necessary through a duly authorised officer of the Department.⁴²⁸ The High Court found this approach was supported by the Explanatory Memorandum to the Migration Legislation Amendment Bill 1994 (Cth) as well as by the terms of s 497(3) of the Act which states:

(3) Nothing in subsection (1) or (2) shall be taken to imply that:

• (a) a person on whom a power is conferred by or under this or any other Act; or

• (b) a delegate of such a person;

is required personally to perform all administrative and clerical tasks connected with the exercise of the power.

The High Court held that the duties in s 501CA(3) were ‘tasks’ to be performed as ‘substantive obligations’ attaching to all aspects of cancelling a visa.⁴²⁹ For these reasons, the High Court allowed this ground of appeal.

7.2.4 The Notice of Contention: the Incorrect Time Period

In spite of these findings, the High Court found for the respondent on the issue of the time afforded to the man to respond to the notice to cancel his visa. The Court found that the Minister had failed to invite the respondent to make representations ‘within the period and in the manner ascertained in accordance with the regulations.’⁴³⁰ The cancellation letter contained an invitation to make representations (as required) and noted the statutory 28-day timeframe for making representations. However, it stated that the respondent was ‘taken to have received [the letter] at the end of the day it was transmitted [by email]’. This was incorrect: the period should have begun from the following day when the letter was delivered to the respondent.⁴³¹

The Minister argued that s 501CA(3)(b) did not require the Minister to specify the date by which representations must be made. He submitted that the period during which representations must be made could be left for the respondent to work out independently. The High Court agreed. However, it found that the notification letter had failed to invite representations ‘within the period ascertained in accordance with the regulations’.⁴³² The High Court ruled that invitations ‘must crystalise the period either expressly or by reference to the correct objective facts from which the period can be ascertained’.⁴³³ In other words, the letter and enclosures must make clear ‘when the 28 day time limit begins or ends’. The notification letter in this case did not do this.

7.2.5 Finding

The Court allowed the Minister’s appeal on the first two grounds but dis- missed the appeal on the ground that the respondent had not been received appropriate notification of the decision to cancel his visa. The invitation to make representations did not provide a way to ascertain the period within which the representations were required to be made. The Minister undertook to pay the costs of the respondent in the High Court.

8.1.1 Background

This case involved an appeal by the Acting Minster for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘Acting Minister’) from a decision of the Federal Court to overturn his refusal to grant a Safe Haven Enterprise (Class XE) visa to the respondent on grounds of bad character under s 501A(2) of the Migration Act.⁴³⁴ Two arguments were raised in the Full Federal Court alleging the Acting Minister’s decision was tainted by jurisdictional error.⁴³⁵

The respondent was an Afghan national who arrived at Christmas Island in 2013. Released into Australia on a Bridging E (Class WE) visa, the respondent was subsequently convicted of multiple sexual offences and sentenced to 56 months’ imprisonment with a fixed term of 14 months. The respondent served his sentence and applied for a Safe Haven Enterprise (Class XA) visa while in immigration detention. The Acting Minister accepted that the respondent met the definition of refugee based on his race, religion and well-founded fear of persecution.⁴³⁶ He is a person in respect of whom Australia owes protection obligations: to remove him to Afghanistan Australia would be in breach of its international non-refoulement obligations.⁴³⁷ There was no known prospect that the respondent could be removed to either Afghanistan or another country. The respondent’s original application was rejected by a delegate of the Minister for Home Affairs on the basis that the applicant did not comply with the character provisions conditioning the grant of the visa sought. This decision was reviewed and set aside by the Administrative Appeals Tribunal (‘the Tribunal’). Following a number of legal proceedings, the Acting Minister set aside the Tribunal’s decision under s 501A(2) of the Act, being satisfied that the respondent had not passed the character test, and that it was in the national interest to refuse to grant the visa.⁴³⁸ The proceedings before Griffiths J at first instance⁴³⁹ concerned whether the Acting Minister was required to consider Australia’s non-refoulement obligations to the respondent within their assessment of Australia’s national interest under s 501A(2)(e) of the Act. He ruled that the Acting Minister made a jurisdictional error in failing to consider the implications for Australia of breaching its international non-refoulement obligations when rejecting the visa.⁴⁴⁰

8.1.2 Issues on Appeal

Justice Besanko delivered the judgement for the Court, Allsop CJ, Kenny, Kerr and Charlesworth J agreeing. His Honour:

• (1) Held that the Minister has a discretion under s 501A(2) of the Act to consider Australia’s non-refoulement obligations,⁴⁴¹ that is it is not a mandatory consideration.⁴⁴²

• (2) Affirmed the primary judge’s decision ‘the Acting Minister did not give active consideration to Australia’s non-refoulement obligations in his assessment of the national interest’.⁴⁴³

8.1.3 Reasoning

Besanko J stated the respondent would be refouled as a result of the Acting Minister’s decision.⁴⁴⁴ Accordingly, in this particular case,⁴⁴⁵ in relation to a protection visa of a recognised refugee it was important (although not mandatory) to actively consider Australia’s non-refoulement obligations in determining whether pursuant to s 501A(2)(e) it was in the national interest to reject the respondent’s visa application.⁴⁴⁶ His Honour noted that ‘[t]hose circumstances will not be present in every case’ where a decision under s 501A(2) is made.⁴⁴⁷

Besanko J agreed with the primary judge that ‘[c]ompliance with international law obligations was an aspect of the national interest,’⁴⁴⁸ and thus a consideration under s501A(2)(e). His Honour found there was a possibility that the Acting Minister’s decision may have been different had he ‘considered the implications of Australia breaching its non-refoulement obligations as part of his consideration of the national interest’.⁴⁴⁹

His Honour also noted that while Australia’s non-refoulement obligations are an irrelevant consideration under s 197C of the Act, this provision does not bear on whether it was legally unreasonable to not consider Australia’s non-refoulement obligations under s 501A.⁴⁵⁰

8.1.4 Relevance to International Law

In his judgment, Besanko J emphasised that Australia’s ratification of the Convention relating to the Status of Refugees as modified by the Protocol relating to the Status of Refugees (‘Refugee Convention’),⁴⁵¹ alongside other international treaties, are a ‘positive statement by the executive government of [Australia] not only to the world, but also to the Australian people that the executive government and its agencies will act in accordance with the [Refugee] convention.’⁴⁵² Australia’s commitment to non-refoulement is positively stated in the ‘the Explanatory Memorandum, Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth) (the Explanatory Memorandum) and in Direction 79 issued by the Minister under s 499 of the Act (Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA).’⁴⁵³

Accordingly, Besanko J affirmed the primary judge’s finding that the Court is entitled to take judicial notice that Australia’s non-compliance with its international law obligations may be against the national interest by undermining Australia’s reputation internationally.⁴⁵⁴

Alongside Besanko J’s judgment, Allsop CJ also reaffirmed the importance of international law when determining the national interest. His Honour stated that ‘Australia has always (by its conduct, and by express statements) accepted that international law is law’.⁴⁵⁵ His Honour further found that Australia’s international obligations can ‘be seen to bear directly and naturally on the conception of the “national interest”’,⁴⁵⁶ and that ‘part of the national interest can be seen necessarily to be the question of whether a decision [is] … in breach of international law’.⁴⁵⁷

Thus, this case establishes that while Australia’s non-refoulement obligations are not a mandatory consideration in determining if it is in the national interest to refuse to grant a visa pursuant to s 501A(2), it will be an important consideration, especially in relation to protection visa applications, which the Minister will need to actively consider when making a decision under s 501A(2).

8.2.1 Background

The appellant is a citizen of Fiji, who arrived in Australia at the age of four in 1985. He was granted a Certain Unlawful Non-Citizens (Class AG Subclass 833) Visa.⁴⁵⁸ In 2001, the appellant was sentenced to 16 years of imprisonment for murder. Released from prison in 2016, Ratu was convicted of various offences against his partner, including assault occasioning bodily harm and sentenced to 14 months in prison.⁴⁵⁹ On 21 May 2018, a delegate of the Minister cancelled the applicant’s visa pursuant to the mandatory cancellation provisions in s 501(3A) of the Migration Act.⁴⁶⁰ Under s 501CA(3)(b) of the Act, the appellant was invited to make representations seeking revocation of the cancellation decision.

On 22 July 2020, the Minister decided not to revoke the mandatory cancellation decision pursuant to s 501CA(4) of the Act.⁴⁶¹ The Minister was not satisfied that the applicant passed the ‘character test’ under s 501CA(4)(b)(i) of the Act as a result of his ‘substantial criminal record’, being sentenced to a term of imprisonment of 12 months or more.⁴⁶² Second, the Minister was not satisfied that there was ‘another reason’ why the cancellation decision should be revoked under s 501CA(4)(b)(ii) of the Act. The appellant sought judicial review of the Minister’s non-revocation decision in the Federal Court. Amongst other things, Ratu argued that procedural fairness required consideration of the extent to which his deportation would place Australia in breach of article 12(4) of the ICCPR. This reads: ‘[n]o one shall be arbitrarily deprived of the right to enter his own country’. He argued that as he had lived in the country since the age of 4 Australia was his ‘own country’ for the purposes of article 12(4). This argument and Ratu’s application was dismissed by Davies J on 11 December 2020.⁴⁶³

8.2.2 Grounds of Appeal

Two grounds of appeal were raised before the Full Federal Court. Both focused on article 12(4) of the ICCPR. The appellant argued that Davies J erred in failing to hold that the appellant was denied procedural fairness by the Minister’s failure to allow submissions on article 12(4) before making a decision that would arbitrarily deprive the appellant of the right to enter or remain in Australia. The appellant argued that the reasoning and ratio decidendi in Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 (‘Teoh’) extends to article 12(4) of the ICCPR. That is, the Minister was obliged to invite comment from the visa holder upon a proposed departure from that article. Second, the appellant argued that article 12(4) is a mandatory relevant consideration which the Minister failed to take into account.

8.2.3 Ratio Decidendi in Teoh

The Full Court held that the ratio in Teoh is that:

subject to any contrary intention expressed by the legislature or executive, a legitimate expectation arises that the decision-maker will act in conformity with Australia’s international treaty obligations, irrespective of whether or not the affected person is aware of such obligations; and if the decision-maker proposes to make a decision inconsistent with any such obligations, the decision-maker must notify the affected person of the proposed departure and give the person an opportunity to make submissions against that course.⁴⁶⁴

8.2.4 Decision of the Full Court

The Full Court conceded that the ratio in Teoh has not been overruled and thus lower courts are bound by it. However, the Court accepted the narrow approach taken by Edmonds J in Amohanga v Minister for Immigration and Citizenship,⁴⁶⁵ namely that the ratio in Teoh is limited to decisions involving the Convention on the Rights of the Child.⁴⁶⁶ It ruled that Teoh does not apply to a decision involving the ICCPR. The Court ruled that even if the ruling in Teoh is interpreted broadly, the Court in that case made it clear that a legitimate expectation is subject to any contrary indication by the legislature or executive. The Full Federal Court found that the intention of ss 501(3A) and 501CA(4) of the Migration Act is clearly to override the right of certain non-citizens to enter or remain in Australia. Therefore, these sections are not consistent with an obligation on the part of the Minister to draw article 12(4) of the ICCPR to the attention of the relevant person and give the person an opportunity to make submissions as to why the Minister should not depart from that article.⁴⁶⁷

The Court also rejected the contention that ‘unenacted international obligations are mandatory relevant considerations’. As there was nothing in the text, subject matter, scope or purpose of s 501CA(4) of the Migration Act which requires that article 12(4) must be taken into account, the second ground of appeal was rejected.⁴⁶⁸

8.2.5 Relevance of International Law

The Court noted that there are strong indications that Parliament considered that decisions made under ss 501(3A) and 501CA(4) would not be arbitrary and, therefore, would not be inconsistent with article 12(4) under international law. These are that Parliament intends to give effect to Australia’s obligations under international law in combination with the purpose of s 501(3A) to protect the Australian community, the confinement of the provisions to persons who have committed serious criminal offences and are currently serving a sentence of imprisonment on a full-time basis, the opportunity to seek revocation, the ability of the Minister to revoke the cancellation, and other legal protections. In addition, the Statement of Compatibility with Human Rights for the Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth) which introduced ss 501(3A) and 501CA into the Act, made no mention on article 12(4). The Court thus drew the inference that Parliament did not consider the Bill to be incompatible with article 12(4).⁴⁶⁹

9.1.1 Background

This case concerned an Iraqi national seeking a protection visa on the basis that he feared persecution as a refugee pursuant to section 36(2)(a) of the Migration Act. When his refugee claim failed, he invoked the complementary protection criterion in section 36(2)(aa) of the Migration Act and was again rejected. This decision was the subject of the appeal in the High Court.⁴⁷⁰

The appellant claimed he would suffer significant harm if returned to Iraq due to his sale of alcohol in Iraq. The Immigration Assessment Authority (‘the Authority’) affirmed the Minister’s decision to refuse the visa sought. The Authority found the appellant had not been personally targeted for the sale of alcohol; he did not face a ‘real risk’ of harm because he had sold alcohol previously;⁴⁷¹ and importantly, he would not continue to sell alcohol if he returned to Iraq.⁴⁷²

9.1.2 Submission Based on Appellant S395

The appellant contended that the Authority made a jurisdictional error by failing to ask why the appellant would not sell alcohol if he returned to Iraq. This argument was based on the principle from Appellant S395 v Minister for Immigration and Multicultural Affairs (‘Appellant S395’),⁴⁷³ that the applicant will have a well-founded fear of persecution if they cannot reasonably change the behaviour for which they will be persecuted.⁴⁷⁴ This principle has been maintained despite the qualification in section 5J(3) of the Migration Act that a person does not have a well-founded fear of persecution if they ‘could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution.’ If a characteristic is fundamental, innate or immutable then the person still has a well-founded fear of persecution.⁴⁷⁵

9.1.3 Decision

The Court held that the principle in Appellant S395 does not apply to complementary protection claims pursuant to s36(2)(aa) of the Migration Act,⁴⁷⁶ because the ‘statutory questions are different … [and] not interchangeable.’⁴⁷⁷

9.1.4 Reasoning

The Court found that the reasoning in Appellant S395 related only to the criterion of a well-founded fear of persecution and that hiding a ‘Convention characteristic’ to avoid the persecution was only inconsistent with the purpose of the Refugee Convention.⁴⁷⁸ Further, the rationale of the principle in Applicant S395 is to not undermine the protections enshrined in the Refugee Convention. Section 5J defining a ‘well-founded fear of persecution’ follows s 5H which provides a definition of ‘refugee’ such that the modification of behaviour issue is directly connected to whether the applicant is a refugee, not to the secondary question of whether the person is alternatively owed complementary protection by Australia.⁴⁷⁹

In determining whether Australia owes an applicant complementary protection, the decision-maker does not need to find a nexus between the significant harm (defined in s 36(2A) of the Migration Act) and any characteristic, unlike a refugee claim. Therefore, the Court held that where a modification of behaviour can avoid the risk of ‘significant harm’, this modification is not ‘a manifestation of the very harm’ at which s 36(2)(aa) is directed.⁴⁸⁰ Where this modification of behaviour is possible, then it will not be a ‘necessary and foreseeable consequence’ that if the applicant is returned, they will be at risk of significant harm.⁴⁸¹

9.1.5 Relevance to International Law

The complementary protection criterion in section s 36(2)(aa) of the Migration Act incorporates Australia’s non-refoulement obligations under the ICCPR and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (‘the CAT’).⁴⁸² These differ from the obligations under the Refugee Convention. The Court described in this decision how s 36(2A), which defines ‘significant harm’, incorporates article 6 of the ICCPR in paragraphs (a) and (b)⁴⁸³ and article 7 of the ICCPR in paragraphs (d) and (e).⁴⁸⁴

This decision clarifies that the statutory schemes for protection visa claims are distinct. Section 36(2)(a) gives effect to Australia’s non-refoulement obligations under the Refugee Convention, which necessitates preserving the five Refugee Convention characteristics that found a refugee claim. Section 36(2)(aa), however, gives effect to Australia’s non-refoulement obligations under the ICCPR and the CAT, which does not involve consideration of any characteristics.

9.2.1 Background

The appellant is a single 25-year-old male born on 19 November 1995 in Parachinar in the Northwest Frontier Province of Pakistan. The appellant adheres to the Shia Muslim faith and is of Hazara ethnicity. The appellant holds Afghan citizenship as a result of being the child of Afghan citizens who are refugees. Before coming to Australia, he had lived his entire life in Pakistan. The appellant departed Pakistan in early 2013 and arrived on Christmas Island on 1 May 2013 as an unauthorised maritime arrival.⁴⁸⁵

On 16 June 2016, the Minister lifted the bar placed on applications by unauthorised maritime arrivals such as the appellant under s 46A of the Migration Act. Invited to apply for a visa, the appellant lodged an application for a Temporary Protection (Subclass 785) visa on 7 May 2017. The application was refused by the delegate on 14 February 2018. He appealed to the Immigration Assessment Authority, which affirmed the delegate’s decision on 24 August 2018, although on different grounds. The Authority made its decision on the papers and declined to accept new evidence from the appellant relating to the safety of assumptions that he could safely relocate from his home district in Logar province to Mazar-e-Sharif. The appellant’s subsequent application for judicial review in the Federal Circuit Court was dismissed on 6 March 2020.

The present appeal to the Full Court is centred on two grounds: (i) whether the Federal Circuit Court erred in failing to find that the Authority’s failure to consider whether to exercise its discretion to seek further information pursuant to s 473DC of the Migration Act was legally unreasonable, and (ii) whether it erred in failing to find that the Authority failed to consider the risk of harm the appellant would face in Afghanistan as a failed asylum seeker from a western country.⁴⁸⁶

9.2.2 The Delegate’s Decision

In her decision, the delegate focused on Australia’s complementary protection obligations under s 36(2)(aa) of the Migration Act, considering whether ‘there is a real risk’ that the appellant would suffer ‘significant harm’ if he was returned to his home area in Logar Province.⁴⁸⁷ Pursuant to s 36(2B)(a) of the Migration Act, the delegate stated that it would be reasonable for the appellant to relocate to Mazar-e-Sharif, where there was not a real risk that the appel- lant will suffer significant harm in the foreseeable future. Thus, the delegate was ‘not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Afghanistan, there is a real risk [the appellant] will suffer significant harm’ under s 36(2)(aa). Therefore, Australia does not have complementary protection obligations in respect of the appellant.

In her reasons the delegate also identified the ‘unarticulated claim’ that the appellant would face a real chance of serious harm as a failed asylum seeker from a western country.

9.2.3 The Immigration Assessment Authority

The Authority rejected the delegate’s finding that the appellant’s home area was Logar Province and instead decided it should be Kabul. The Authority concluded that the appellant did not face a real risk of significant harm in Kabul, and therefore the appellant does not meet s 36(2)(aa).

While the delegate considered the issue of whether the appellant would face harm as a failed asylum seeker from a western country, the Authority concluded that it was not obligated to consider such a claim as it did not arise on the material and was not made by the appellant.⁴⁸⁸

9.2.4 Federal Circuit Court

The primary judge considered that ‘it was reasonable … for [the Authority] to not exercise, or consider exercising, the discretion in s 473DC(3)’ and to not seek information from the appellant ‘on whether Kabul was his “home area” and the risk of harm he faces in Kabul.’⁴⁸⁹ In particular, the primary judge noted that the delegate specifically asked the appellant to provide information as to why he could not reside in Kabul and therefore the Authority had the relevant information.

Regarding the unarticulated claim, the primary judge concluded that while it was ‘at least arguable’ that a claim arose on the review material, the appellant had withdrawn or abandoned that claim before the Authority.⁴⁹⁰ The primary judge reached this conclusion on the basis that: (i) the claim was not pressed by the appellant, (ii) the appellant’s submissions did not address the unarticulated claim in any way, and (iii) the appellant made no submissions disagreeing with the delegate’s finding that he would not face harm because of the unarticulated claim.⁴⁹¹

9.2.5 Full Court Decision

The Full Court dismissed ground 1 of the appeal but the appeal was allowed on ground 2 of the appeal. The Full Court ordered that the appellant’s application for judicial review be remitted to the Federal Circuit Court of Australia to be reheard according to the law.

10.1.1 Background

Cotterill v Romanes (‘Cotterill’)⁵⁰² concerns the legality of directions made under the Public Health and Wellbeing Act 2008 (Vic) (‘PHW Act’) in response to the COVID-19 pandemic. On 27 August 2020, the first defendant, in his capacity as Deputy Public Health Commander, made the ‘Stay at Home’ Direction.⁵⁰³ The ‘Stay at Home’ Direction required all persons in a ‘restricted area’ to remain home unless they left for a specified reason. The ‘Stay at Home’ Direction also restricted public gatherings.⁵⁰⁴ On 28 October 2020, the ‘Stay Safe’ Direction eased the restrictions, by removing the ‘stay at home’ requirement, although continuing to prevent public gatherings.⁵⁰⁵ The ‘Stay at Home’ Direction and the ‘Stay Safe’ Direction (‘the Directions’) were a purported exercise of sections 200(1)(b) and (d) of the PHW Act:

b. restrict the movement of any person or group of persons within the emergency area;

[…]

d. give any other direction that the authorised officer considers is reasonably necessary to protect public health.

On 13 September 2020, while the ‘Stay at Home’ Direction was in force, the plaintiff Cotterill was issued an infringement notice alleging that she was in breach of the Direction by leaving the house for a non-specified reason—to protest the Victorian Premier’s response to COVID-19.⁵⁰⁶ Cotterill then challenged the Directions on the basis that they were ultra vires for impermissibly burdening the implied freedom of political communication in the Australian Constitution, by preventing individuals from both leaving their house to engage in political communication and attending public gatherings for the purpose of political communication.⁵⁰⁷

10.1.2 Preliminary Issue: Standing and Utility

The defendants submitted that the plaintiff lacked standing, as the plaintiff’s infringement notice had been withdrawn and the ‘Stay at Home’ Direction had been repealed. Therefore, the defence submitted, the plaintiff is no longer liable, and her actions are no longer restricted, under the Directions. Alternatively, the defendants submitted that the Court should use its discretion to dismiss the proceedings as they lacked utility.⁵⁰⁸

However, Niall JA decided that the plaintiff had standing. Despite the withdrawal of the infringement notice, his Honour considered that the restriction of the plaintiff’s private right to leave her residence was sufficient to satisfy the requirements of standing. His Honour considered this freedom of movement a ‘critical right’, which the Directions restricted in a way ‘rarely, if ever, […] seen in Victoria’. Further, as his Honour considered that the questions the plaintiff raises are likely to recur as restrictions continue in Victoria, his Honour found for the plaintiff on standing and utility.⁵⁰⁹

10.1.3 Preliminary Issue: Level of Analysis

The plaintiff submitted that the Court’s analysis should be applied at the level of the Directions themselves, despite the implied freedom of political communication being a limitation on legislative power. The plaintiff’s reasoning for this was that it would be inappropriate to analyse at the level of the authorising provisions, due to the wide breadth of the provisions. As such, the plaintiff submitted that the question for the Court is whether the Directions would have been compliant with the implied freedom of political communication if they had been enacted as legislation.⁵¹⁰

Niall JA disagreed with the plaintiff’s submission. His Honour found that the authorities, especially Palmer v Western Australia (‘Palmer’),⁵¹¹ weighed in favour of analysis at the level of the statutory provisions.⁵¹² His Honour considered that the power to restrict movement in section 200(1)(b) the PHW Act, similar to the power analysed in the Emergency Management Act 2005 (WA) in Palmer, is not sufficiently broad or general to warrant confining analysis to the Directions themselves.⁵¹³ Further, his Honour considered that the broader power to authorise ‘any direction’ in section 200(1)(d) should also be analysed at the level of the statute because, although the power is general, it is sufficiently constrained by the prerequisite that the authorised officer believes the direction to be reasonably necessary to protect public health.⁵¹⁴

10.1.4 Decision

Niall JA found that sections 200(1)(b) and (d) of the PHW Act did not impermissibly burden the freedom of political communication. In his Honour’s reasoning, he closely followed the High Court’s approach in Palmer, noting that the statutory powers in issue are largely similar.⁵¹⁵ His Honour applied the McCloy test to sections 200(1)(b) and (d) to determine whether the provisions impermissibly burdened the freedom of movement. Firstly, his Honour acknowledged that the provisions are capable of burdening political communication by restricting movement, and therefore the freedom to protest and exercise political expression.⁵¹⁶

Secondly, his Honour considered that the purpose of the law was ‘to reduce or eliminate serious public health risks in the context of an emergency that has been declared by a responsible minister and reported to the Parliament’.⁵¹⁷ His Honour considered this to be ‘a purpose of the government of the first order’; it was therefore compatible with the maintenance of representative government.⁵¹⁸

In considering whether the provisions were reasonably appropriate and adapted, his Honour determined that the provisions were suitable. This is because restriction of movement is rationally connected to the purpose of eliminating public health risks. His Honour referenced Australia’s long history of quarantine practices and the statutory constraints which ensure that emergency powers are exercised for their proper purpose.⁵¹⁹ In deciding whether the provisions were necessary, his Honour found that there were no obvious and compelling alternatives that would impose less of a burden. Allowing persons to engage in political communication would not provide the same level of public health protection.⁵²⁰ Lastly, his Honour decided that the provisions were adequate in their balance as, when read in their context, with their attached limitations, they are ‘well calibrated’ to meet their purpose.⁵²¹ Provided the PHW Act’s statutory conditions are complied with, his Honour found the burden on political communication justified and the provisions, and therefore their directions thereunder, valid.⁵²²

In the alternative, his Honour also applied the same analysis at the level of the Directions, as the plaintiff submitted. Firstly, his Honour considered that the Directions, in so far as they prevented persons leaving their home to express political communications and attend political public gatherings, burdened the freedom.⁵²³ Secondly, his Honour was satisfied that the Directions were made for the proper purpose of protecting public health.⁵²⁴ As above, his Honour considered that the provisions were suitable, as preventing persons from leaving their home is rationally connected with preventing the spread of COVID-19.⁵²⁵ Again, his Honour considered that the Directions were necessary; changing the Directions to allow for political communication was not an obvious or compelling alternative. Allowing a person ‘to engage in political communication’, while increasing chances of community transmission of the virus, would also add a high level of uncertainty to the measures and therefore counteract their overall effectiveness.⁵²⁶ Lastly, his Honour found that the Directions were adequate in the balance. Quoting Kiefel CJ and Keane J in Palmer, Niall JA considered that ‘it cannot be denied that the importance of the protection of health and life amply justifies the severity of the measures’.⁵²⁷ Therefore, his Honour found that the Directions were valid, and dismissed the proceedings.⁵²⁸ An application for leave to appeal to the High Court was dismissed on 12 May 2022.⁵²⁹

10.2.1 Background

This case concerned a challenge by LibertyWorks Inc of the validity of the Health Minister (‘the Minister’) to exercise their power under s 477 of the Bio- security Act 2015 (Cth) (‘the Act’) to determine emergency requirements during a human biosecurity emergency period.⁵³⁰ At the declaration of the existence of a human biosecurity emergency as a result of COVID-19 by the Governor- General, the Minister made the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Overseas Travel Ban Emer- gency Requirements) Determination 2020 (Cth) (‘the Determination’).⁵³¹ The Determination prevented any Australian citizen, permanent resident, or operator of an outgoing aircraft or vessel from leaving Australian territory unless granted an exemption from the Australian Border Force Commissioner or an ABF employee in ‘exceptional circumstances’ with ‘a compelling reason for needing to leave Australian territory’.⁵³² Employees of LibertyWorks were denied exemptions to attend conferences overseas.⁵³³ LibertyWorks sought to appeal from the decision to not grant exemptions by challenging the exercise of the power by the Minister under s 477 of the Act to make the Determination based on the proper interpretation of the section.

10.2.2 Issues on Application

LibertyWorks sought to challenge the restrictions placed on overseas travel by the Determination such that they argued that overseas travel was of the kind that could not be included in the Determination.⁵³⁴ The basis for this argument, was that s 477(6) of the Act limited the ability of the Minister to make a determination of the kind set out within Subdivision B of Division 3 of Part 3 of Chapter 2 of the Act, of which s 96 was a part of.⁵³⁵ Section 96 allows the prevention of an individual from leaving Australia as a result of a biosecurity control order.⁵³⁶ Therefore, LibertyWorks argued, the determination under s 477 could not include the a biosecurity order preventing an individual or groups of individuals from leaving Australia for overseas travel.⁵³⁷ This argument was rejected by the Court.

10.2.3 Reasons of the Court

The Court employed basic tools of statutory construction, by looking at the Act as a whole, including its structure, purposes, and objects.⁵³⁸ On its proper construction, s 477 is intended to allow the Minister to prevent or restrict movements of persons within Australia, and outside Australia.⁵³⁹ If on LibertyWorks’ submissions, s 477 would not allow determinations regarding restrictions on overseas travel, the Court argued that the alternative would be to use s 96 on each single individual who attempted to travel overseas during the pandemic.⁵⁴⁰ If this construction were accepted, the Court argued that this would frustrate the purpose and objects of the Act to allow the Minister to use Chapter 8 for biosecurity emergencies at a national level.⁵⁴¹ The Court concluded that Parliament intended that the Minister could act swiftly in such circumstances to prevent the spread of a pandemic inside and outside Australia by controlling the movements of large amounts of people, rather than specific individuals.⁵⁴²

LibertyWorks further argued that their construction of s 477 conformed with Australia’s international obligations, such as Australia’s obligation to allow the right to freedom of movement within article 12 of the ICCPR which had been ratified by Australia in 1980.⁵⁴³ Liberty Works submitted that the right to leave a country, including one’s own country, was an aspect of the freedom enshrined in article 12.⁵⁴⁴ As the Court noted, in conformity with the Human Rights Compatibility Statement included within the Biosecurity Bill 2014 (Cth), that within Australia, freedom of movement enshrined within article 12 is not an absolute right, and as such may be limited to protect public health where it is reasonable and proportionate to the purpose for which it is imposed.⁵⁴⁵ This is consistent with article 12(3), which states that a government may curtail the right in instances, such as for public health reasons. This limitation on an enshrined human right within the ICCPR, while it may be abused by a state for nefarious reasons, allows states to consider real world instances that may deflect from community protection against dangers, such as pandemics. In a broader context, what this case does present, is the tension between different recognised human rights, as well as individual rights and community safety, in which one may prevail over the other.

Application dismissed per Katzmann, Wigney and Thawley JJ.

10.3.1 Significance of this Case

This case is significant because it concerns Australia’s ‘India travel bans’ which the office of the United Nations High Commissioner for human rights queried the consistency of in respect of Australia’s human rights obligations.⁵⁴⁶ In particular article 12 of the ICCPR.⁵⁴⁷ Which provides that ‘no one shall be arbitrarily deprived of the right to enter his own country’.⁵⁴⁸ It is also worth noting that Rupert Colville, a spokesperson for that office explained that assessments of whether a person has been ‘arbitrarily deprived’ within the meaning of article 12 involves considerations as to whether a measure is necessary to achieve a legitimate object and the proportionality and intrusiveness of the measure.⁵⁴⁹ Which the case touches on, albeit in the context of Australian domestic law.

10.3.2 Background

On April 30th 2021 the Minister for Health and Aged Care made a Determination under subsection 477(1) of the Biosecurity Act 2015 (Cth) (‘the Act’).⁵⁵⁰ Section 6 of the Determination provided that ‘a person who is a passenger of an aircraft on a relevant international flight must not enter Australian territory at a landing place if the person had been in India within 14 days before the day the flight was scheduled to commence’ unless relevantly exempt under s 7.⁵⁵¹ The Determination commenced on May 3rd 2021 and contained a May 15th 2021 sunset clause.⁵⁵² Having been made under s 477, by force of ss 477(1) and 479, s 6 introduced an offence which would catch all persons seeking to fly into Australia who had been in India in the preceding 14 days regardless of their final point of departure.⁵⁵³ The maximum penalty was 5 years imprisonment or 300 penalty units, or both.⁵⁵⁴

On 5 May 2021 Australian citizen Gary Newman (‘the applicant’), at that time residing in India and wishing to re-enter Australia, challenged the Determination on four prayers and sought interlocutory injunctive relief.⁵⁵⁵ Prayers one and two were ordered to be heard separately by reason of not raising constitutional grounds.⁵⁵⁶

10.3.3 First Prayer for Relief—Invalidity of Determination

The applicant’s first prayer for relief posited that, inter alia the Minister had failed to be lawfully satisfied of the ss 477(4)(a) and 477(4)(c) mandatory considerations which were necessary to enliven the Determination making power under s 477(1).⁵⁵⁷ In respect of ss 477(4)(a), the applicant contended that because nothing in the evidence suggested that the Minister considered the Commonwealth or State capacities to manage the spread of COVID-19 in prison populations where people would be placed should they contravene the Determination, the Minister had not been satisfied that the Determination would ‘likely to be effective in, or to contribute to, achieving the purpose for which is to be determined.’⁵⁵⁸ In respect of ss 477(4)(c), the applicant contended that the evidence does not support an inference that the Minister had considered less restrictive and onerous means for managing the risk COVID-19 poses to public health other than prohibiting Australian citizens from entering Australia, the Minister could not have been satisfied that the Determination was ‘… no more restrictive or intrusive than is required in the circumstances’.⁵⁵⁹

In the alternative, the applicant posited that even had the Determination making power been enlivened, it was unlawful because it purported to restrict travel between India and Australia when Chapter 8 provides that the Act does not operate extraterritorially.

His Honour held that the applicant was correct in the contention that ss 477(4)(a) and 477(4)(c) were mandatory considerations. However, in respect of s 477(4)(a), the applicant had not proved that per Pako-Wallsend,⁵⁶⁰ the statute correctly construed required the Minister to consider the State and Commonwealth capacities to manage the possible spread of COVID-19 in prison populations.⁵⁶¹ They were merely permissible considerations.⁵⁶² In respect of ss 477(4)(c), his Honour found that the Minister had read the Chief Medical Officer’s advice which recognised the potential consequences and risks that the Determination would pose to Australian citizens and permanent residents.⁵⁶³ He found the definition of ‘relevant international flight’ carved out from the travel ban ‘emergency medical evacuation flights’ and those ‘facilitated’ by the Government such that the risks to Australian citizens and permanent residents could be mitigated.⁵⁶⁴ From which his Honour drew the inference that the Minister had been satisfied that they were no more restrictive nor intrusive than the circumstances required, and accordingly dismissed the considerations arguments.⁵⁶⁵

The applicant’s final contention under prayer 1 was that the Determination was nevertheless invalid by reason of purporting to operate extraterritorially and was therefore inconsistent with the Act.⁵⁶⁶ His Honour reasoned that properly construed, the Determination merely related to extraterritorial events and that no offence is committed until a person ‘enter[s] Australian territory’.⁵⁶⁷

10.3.4 Second Prayer for Relief—Common Law Right for Citizens to Re-enter Australia

The second prayer for relief was premised upon the assumption that the Australian common law recognised a fundamental right for citizens to enter the country.⁵⁶⁸ From which it followed, the applicant contended, that ‘prevent’ in ss 477(1)(a) and 477(1)(b) should be construed as applying only to non-citizens.⁵⁶⁹ Because the legislature should not be taken to have intended for determinations made under the Act to abrogate this fundamental right by reason of s 477(2) disapplying s 42 of the Legislation Act 2003 (Cth), and thus parliamentary disallowance.⁵⁷⁰

The Minister conceded the existence of an Australian common law right of citizen entry but disputed the applicant’s contention that parliament did not intend to confer a power which could abrogate that right.⁵⁷¹ He submitted that the broad drafting of s 477 alongside the object, scope, and purpose of the Act suggested that Parliament did intend to because if determinations made under the Act could only apply to non-citizens than its object would be frustrated.⁵⁷²

His Honour accepted the Minister’s submissions to be correct. For while the High Court have recognised a common law right to enter the country in considered dicta,⁵⁷³ Parliament, having conferred a power to make determinations which prevent or control the movement of persons for the purpose of protecting against human biological emergencies, would not be efficacious if they could not apply to citizen and non-citizen alike.⁵⁷⁴ The fact that s 477(4) requires the Minister to undertake what is, in substance, a proportionality analysis so that interferences with rights are minimal, rational, and justified, supports the holding that it was in Parliament’s contemplation that a … ‘common law right of entry or exit would be effected.’⁵⁷⁵

10.3.5 Prayers Three and Four

Prayers 3 and 4, pled as alternatives, posited the existence of an implied constitutional right of citizen entry or that s 477 of the Act was unsupported by a constitutional head of power, among other things.⁵⁷⁶ These arguments had not proceeded to a hearing at the time of writing.

10.3.6 Orders

Accordingly, his Honour dismissed prayers one and two and made no orders in respect of interlocutory relief.⁵⁷⁷

10.4.1 Background

Larter v Hazzard (No 2) (‘Larter’)⁵⁷⁸ concerned the validity of two public health orders mandating COVID-19 vaccination among health care workers in NSW.⁵⁷⁹ The Public Health (COVID-19 Vaccination of Health Care Workers) Order 2021 (NSW) (‘the Order’) prohibited a health care worker from working as a health care worker in NSW unless the worker had received at least 1 dose of a COVID-19 vaccine by 30 September 2021 and two doses by 30 November 2021.⁵⁸⁰ The Order was amended, repealed, and replaced by Public Health (COVID-19 Vaccination of Health Care Workers) Order (No 2) 2021 (NSW) (‘Order 2’) which is of substantially similar effect requiring healthcare workers to be fully vaccinated before 30 November 2021, but with a more elaborate explanation of the grounds for concluding COVID-19 poses a risk to public health.⁵⁸¹ The Minister made the orders pursuant to s 7 of the Public Health Act 2010 (NSW) (‘Public Health Act’), and in response to the advice and evidence of the Chief Health Officer of NSW, Dr Kerry Chant.⁵⁸² Section 7 of the Public Health Act states that ‘if the Minister considers on reasonable grounds that a situation has arisen that is, or is likely to be, a risk to public health’, then the Minister ‘may take such action, and give such directions as the Minister considers necessary to deal with the risk and its possible consequences.’⁵⁸³

The plaintiff, John Larter was a paramedic who has been employed by the NSW Ambulance Service for 25 years.⁵⁸⁴ For religious reasons, he made the decision not to be vaccinated. His decision stemmed from his concern that the AstraZeneca vaccine was the result of research and experimentation on cell lines derived from the foetus of an aborted child, and abortion is against his Catholic beliefs. He objected to the Pfizer and Moderna vaccines for similar reasons.⁵⁸⁵ While the Catholic Church made public statements encouraging Catholics to be vaccinated against COVID-19, the plaintiff’s vaccine hesitancy was described as derived from his own conscience.⁵⁸⁶

As a healthcare worker to whom the orders applied, the plaintiff sought a declaration that the orders were invalid and he sought injunctive relief.⁵⁸⁷ He contended the public health orders were legally unreasonable in that they were not ‘logically targeted’ and ‘not proportionate to the risks they purported to mitigate.’⁵⁸⁸ Unreasonableness was argued on the basis that the ambit of the Order and Order 2 were cast too wide, so to capture persons who did not pose a sufficient risk to public health.⁵⁸⁹ This followed from the claim that, because of already high vaccination rates among health care workers and the broader community, those who were unvaccinated were ‘mathematically irrelevant’, making an abrogation of individual rights unjustified.⁵⁹⁰ Emphasis was placed on the principle of legality,⁵⁹¹ and Australia’s obligations under the ICCPR.⁵⁹²

To further his argument, the plaintiff claimed that requiring a small percentage of ‘conscientious objectors’ working for NSW Health to be vaccinated, but not enforcing the same requirement on private practitioners and pharmacists demonstrated unreasonableness,⁵⁹³ as did the disparity between the grounds for making the Order and Order 2.⁵⁹⁴ Additionally, it was alleged that the orders exceeded the 90 day limitation period, and provided for permanent consequences which was inconsistent with this important constraint on the statutory power.⁵⁹⁵

10.4.2 Decision

The issue to be determined was whether it was open to the Minister to make the Order and Order 2 considering the risk the COVID-19 virus poses to public health.⁵⁹⁶ Adamson J referred to the authority of Beech-Jones CJ in Kassam v Hazzard; Henry v Hazzard⁵⁹⁷ that ‘necessary’ for the purpose of s 7 of the Public Health Act did not mean indispensable, vital or essential, but rather ‘appropriate and adapted.’⁵⁹⁸ Therefore, to invalidate a decision made under s 7 on the ground of legal unreasonableness, the plaintiff had to show that ‘no Minister acting reasonably could have considered the relevant orders necessary, that is appropriate and adapted, to deal with the risk to public health and its possible consequences.’⁵⁹⁹

Her Honour held that on the basis of Dr Kerry Chants evidence, it was reasonably open to the Minister to make the public health orders.⁶⁰⁰ Emphasis was placed on evidence of the high transmissibility of the virus, the risks posed by COVID-19 including the increased likelihood of severe COVID-19 illnesses for vulnerable persons who are over-represented in health facilities, the reduced efficacy of the vaccine for vulnerable persons, and the operational impacts of outbreaks in health care settings.⁶⁰¹

10.4.3 The Ambit of the Order

In reaching her decision, her Honour explained that the power afforded to the Minister under s 7 is, for a number of reasons, a wide one.⁶⁰² She noted that, even if the risk of transmission were low for those who did not provide in person health care, a reasonable assessment of the risk should not be limited to the consideration of the likelihood that harm would eventuate but extended to the possible seriousness of the harm—the death of vulnerable individuals.⁶⁰³ This reasoning is consistent with Beech-Jones CJ in Kassam who highlights that because the power under s 7 is conferred to address the risk of COVID-19 ‘and its possible consequences’, the power permits the creation of orders ‘dealing with contingencies, including those which are highly unlikely, or which may never eventuate.’⁶⁰⁴

It followed from the recognition that a wide range of decisions were reasonably open to the Minister under s 7, that the Order and Order 2 only needed to fall within the ambit of this range.⁶⁰⁵ It was not relevant that the Minister could have taken more restrictive measures, such as by requiring private practitioners to also be vaccinated, or that the Minister could have extended exemptions beyond those with a medical contraindication to those who are ‘conscientious objectors.’⁶⁰⁶ Her Honour explained that decisions between available alternatives was a policy question for the Minister’s discretion.⁶⁰⁷

Her Honour also rejected the plaintiff’s additional arguments. She viewed the change in the explanation of the grounds between the Order and Order 2 as immaterial because the crucial ground—that COVID-19 is a potentially fatal condition and is highly contagious—was explained in clause 3(b) of both the Order and Order 2.⁶⁰⁸ Her Honour did not see any merit in the plaintiff’s contention that the Order was invalid because the requirement to be double vaccinated by 30 November 2021 exceeded the 90-day period. She explained that the Minister included the direction as to the vaccination deadlines to ensure employees of NSW Health were put on sufficient notice.⁶⁰⁹ As for fact that the termination of the plaintiff’s employment could engender permanent consequences, her Honour did not consider the 90-day limitation period relevant. This, she said, was an ‘inevitable consequence of the breadth of the power in s 7’ and ‘the risk posed by the virus.’⁶¹⁰

10.4.4 Interference with Fundamental Human Rights

The case is important in an international law context because it showed the extent to which COVID-19 orders made under s 7 of the Public Health Act may interfere with fundamental human rights. In concluding that the Orders were not invalid on human rights grounds, her Honour explained that because s 7 is expressed to permit interference with individual rights, including freedom of movement, the principle of legality could not aid construction of the provision.⁶¹¹ Instead, Her Honour pointed to s 3(2) of Public Health Act which states, ‘the protection of the health and safety of the public is to be the paramount consideration in the exercise of functions under this Act.’⁶¹² She turned to Kassam for authority that the objects and subject matter of the Act, the terms of s 7, and the criminal sanctions imposed for breach of an order made it clear that ‘the Act contemplates the making of orders that … severely curtail an individual’s rights.’⁶¹³

In considering articles 18 and 19 of the ICCPR which protect freedom of religion and provide for freedom of thought and expression, her Honour found no inconsistency with the public health orders.⁶¹⁴ This, she explained, is because the freedoms are subject to such limitations necessary to protect public health,⁶¹⁵ and therefore interference with the plaintiff’s right to work was not unwarranted. The orders were not found to infringe article 26 of the ICCPR which prevents discrimination on the grounds of religion,⁶¹⁶ nor article 17 of the ICCPR which prohibits arbitrary or unlawful interference with privacy because in Kassam it was found that the orders did not involve the compulsory acquisition of medical services by vaccination.⁶¹⁷

Attention was drawn to Australia’s obligations under article 12 of the International Covenant on Economic, Social and Cultural Rights to ‘prevent, treat and control epidemics.’⁶¹⁸ With the effect of the public health orders being to ‘remove the increased risk of transmission posed by unvaccinated NSW Health workers,’⁶¹⁹ the orders were consistent with Australia’s international law obligations.

11.1.1 Background

Ms Addy is a UK national who entered Australia in 2015 on a Working Holiday (Temporary) (Class TZ) (Subclass 417) visa [1]. From 2015 to 2017, she lived and worked in Australia. Relevantly, she earned Australian taxable income of approximately $27,000 during the 2017 financial year.⁶²⁰

As a holder of a working holiday visa, Ms Addy was impacted to the changes made to the Income Tax Rates Act 1986 (Cth) (‘the Act’) that were effected by the insertion of a new Part III into Schedule 7 of this Act. These changes applied to income derived on or after 1 January 2017.⁶²¹ Part III places a tax of 15% on a working holiday visa holder’s first $37,000 of income,⁶²² equating to a ‘minimum tax liability of $5,500’.⁶²³ In contrast, the minimum tax liability for Australian nationals on their first $37,000 of income equates to $3,572 due to the combination of the tax-free threshold and a 19% taxation rate on amounts above $18,200.⁶²⁴

Ms Addy argued that this difference in minimum tax liabilities amounted to a contravention of the Convention between the Government of Australia and the Government of the United Kingdom of Great Britain and Northern Ireland for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income and on Capital Gains (‘the Convention’).⁶²⁵ The Convention entered into force in Australian domestic law on 17 December 2003⁶²⁶ and is largely based on the OECD Model Convention on Income and on Capital. Article 25(1) of the Convention states that UK nationals in Australia should not be subject to ‘other or more burdensome taxation’ than is imposed on Australian nationals ‘in the same circumstances, in particular with respect to residence.’⁶²⁷ This article overrides any domestic legislative provisions that differentiate between nationals and non-nationals of Australia to the detriment of non-nationals.⁶²⁸

It was under the new Part III that Ms Addy was issued with an amended notice of assessment for the 2017 financial year by the Commissioner of Taxation applying the new rate scale to the income derived by Ms Addy after 1 January 2017.⁶²⁹ Ms Addy objected to this amended notice of assessment on the grounds that this contravened article 25(1) of the Convention.⁶³⁰ The Commissioner disallowed the objection on the basis that Ms Addy was a tax resident of Australia for the relevant financial year, fulfilled the definitions of ‘working holiday maker’ and ‘working holiday taxable income’, and was therefore subject to the rates specified under Part III.⁶³¹

Ms Addy then appealed against the Commissioner’s objection to the Federal Court of Australia, which allowed the appeal.⁶³² The Commissioner then successfully appealed to the Full Court of the Federal Court of Australia.⁶³³ Ms Addy was granted special leave to appeal to the High Court of Australia on the ground that the Full Court was incorrect in its finding that article 25(1) should not relieve Ms Addy of the additional tax burden imposed by Part III.

The issue in these proceedings was whether the operation of article 25(1) of the Convention was contravened by Part III such that Ms Addy was subject to a more burdensome tax rate than that of an Australian national in the same position,⁶³⁴ and that it was on the basis of her nationality that Ms Addy was subject to this burden.⁶³⁵ There was no dispute that Ms Addy was a UK national and Australian tax resident for the relevant period or that Part III imposes a heavier tax burden on non-Australian nationals.⁶³⁶

The Commissioner argued that article 25(1) of the Convention deals only with differential rates imposed on the taxpayer on the basis of nationality, but Ms Addy was subject to a differential rate on the basis of her status as the holder of a working holiday visa.⁶³⁷ As an Australian national would never be in the same position as Ms Addy (as they would never be required to hold a visa to live and work in Australia), the words ‘identical in all matters to the imposition of taxation except nationality’ in the Convention means that the Convention would not apply to someone in Ms Addy’s position due the lack basis for comparison with an Australian national.⁶³⁸ The Commissioner relied on the New Zealand case of Commissioner of Inland Revenue v United Dominions Trust Ltd (‘United Dominions’)⁶³⁹ as the basis for this argument. In United Dominions, the New Zealand Court of Appeal upheld differential treatment of individuals as the different tax rates were imposed on the basis of the individuals’ tax residency status and not their nationality.⁶⁴⁰

Ms Addy argued that article 25(1) of the Convention does not prevent discrimination between individuals solely on the basis of nationality, but extends to other differences such as ethnicity.⁶⁴¹ In addition, Ms Addy stated that despite this, Part III does discriminate on the basis of nationality and thus contravenes article 25(1).⁶⁴²

11.1.2 Decision

The Court construed the text of the treaty in a ‘more liberal manner than would be adopted if the court was required to construe exclusively domestic legislation’⁶⁴³ whilst still considering the ‘context, object and purpose of treaty provisions’.⁶⁴⁴ In considering what is meant by an Australian tax resident being in the ‘same circumstances’ as Ms Addy, the Court interpreted this phrase as meaning ‘the same circumstances apart from those circumstances attached to the prohibited basis for discriminatory taxation’.⁶⁴⁵ The Commissioner was held to have erred in their reliance on United Dominions Trust in which ‘in the same circumstances’ was held to equate to ‘uniformity’ and ‘exactness in comparison’.⁶⁴⁶ Furthermore, in United Dominions Trust, as well as in the Convention, the fact that an individual is a non-resident for tax purposes is a legitimate basis to impose a discriminatory tax rate scale. However, as the Commissioner had accepted that Ms Addy was an Australian tax resident in the relevant period, Ms Addy could be considered to be in ‘the same circumstances’ as an Australian national.⁶⁴⁷ On this basis, the Commissioner’s argument that a comparison between a person in Ms Addy’s position and an Australian national could not occur due to the impossibility of an Australian national holding a working holiday visa was rejected.⁶⁴⁸

The Court also considered the commentary produced by the OECD in the creation of the OECD Model Convention on article 25(1), which reinforces the requirement that individuals cannot be differentiated between for tax purposes on the sole basis that they are of different nationalities.⁶⁴⁹ The Commentary further mentions that tax rates between nationals and non-nationals must be the same ‘when a tax is imposed on nationals and foreigners in the same circumstances, it must be in the same form as regards both the basis of charge and the method of assessment, its rate must be the same’.⁶⁵⁰

The Court concluded that both the basis of charge and method of assessment were identical for both residents and non-residents. However, the tax rate imposed on Ms Addy as a non-national was more burdensome than the rate that would be imposed on an Australian national.⁶⁵¹ Because the tax rate was more ‘onerous’ for Ms Addy as a UK national in comparison to an Australian national ‘doing the same work, earning the same income, under the same ordinary taxation laws’,⁶⁵² the High Court of Australia allowed the Appeal. The orders of the Full Court of the Federal Court were partially set aside.⁶⁵³