High Court states important principles for construing statutory approvals

The High Court’s recent decision in Sunland Group Limited v Gold Coast City Council [2021] HCA 35 (Sunland), delivered on 10 November 2021, has important implications for the interpretation of statutory approvals under a wide range of legislation, including approvals under planning laws.

In Sunland, Stewart J (with whom Kiefel CJ, Keane and Gleeson JJ agreed) held , at [58], that conditions of an approval granted under Queensland’s previous planning laws:

are not to be construed like any other contract, but rather in accordance with the rules of construction governing the interpretation of Acts of Parliament and subordinate instruments.

Gordon J concurred with this approach in a separate judgment (at [21]).

Interpreting ambiguous statutory approvals

The High Court’s unanimous approach to construing statutory approvals overturns a principle that had bedeviled enforcement of ambiguous approvals for decades: that ambiguity was to be resolved in favour of the person subject to the conditions. That approach has now been resoundingly rejected.

The change is already being felt in enforcement of Queensland planning approvals. In Noosa Council v Cordwell Resources Pty Ltd & Ors [2021] QPEC 67  (Cordwell), delivered on 25 November 2021, Long SC DCJ rejected (at [24]) principles relied on by a quarry company for construing the conditions of a planning approval that:

(a) any ambiguity in the approved condition should be construed in a manner that places the least burden on the landowner, and ambiguity in a development condition should be construed against the imposing authority; and

(b) any lack of certainty “is the responsibility of the applicant who formulated the conditions and, as such, the applicant should bear the consequences”.

Long SC DCJ gave these principles short shrift, stating (at [25]) by reference to the High Court’s decision in Sunland (footnotes omitted):

It is unnecessary to dwell upon the decisions which are relied upon for these broadly stated propositions or to consider the extent to which any of those decisions represent any more than conclusions which sought to find and provide a sense of certainty of application of the provisions in issue. This is because the High Court has, very recently, determined that the conditions of a development approval are not to be construed by reference to principles applicable to the construction of contracts “but rather in accordance with the rules of construction governing the interpretation of Acts of Parliament and subordinate instruments”. In another judgment, there is also an indication that an approach to construction upon the premise that “ambiguity should be resolved against the Council, as the drafter of the [approval], is contrary to principle and precedent”.

Considering application documents when construing approvals

A second area where the High Court’s decision in Sunland has important implications is the extent to which application documents can be considered when construing statutory approvals. That too has been an important issue that has bedeviled enforcement of ambigious approvals, with courts reluctant to consider application documents unless expressly incorporated into approvals. For instance, in Brisville v Brisbane City Council [2007] QPEC 63, Rackemann DCJ stated (at [8], footnotes omitted):

the construction of a development permit is undertaken having regard primarily to the terms of the approval, as it appears on its face, together with other material, such as approved plans, where they are incorporated expressly or by necessarily implication.

That approach also now appears to be superseded by the principles in Sunland, as the application documents for a statutory approval should be able to be referred to when interpreting the approval as extrinsic material.

The correct approach now appears to be that taken by Robertson DCJ in Swan v Santos GLNG Pty Ltd & Ors [2017] QPEC 2 (Swan) at [138]-[139] when construing conditions of an environmental authority under the Environmental Protection Act 1994 (Qld):

[138] In dealing with what are essentially civil proceedings, with significant potential detriment to Santos e.g. the finding of criminal conduct albeit in a civil proceeding; it is essential that the Court construe those conditions said to be contravened in accordance with established principles of statutory construction.

[139] Environmental Authorities (EAs) are statutory instruments, pursuant to the Statutory Instruments Act 1992 (ss 6, 7(2)(c), 7(3)); and by s 14 and Sch 1 of that act, s 14A(1), s 14B(1) and s 35C of the Acts Interpretation Act 1954 applies so that:

(a) the interpretation is to be preferred that best achieves the purposes of the EA;

(b) regard may be had to extrinsic material, provided certain circumstances exist; and

(c) any heading to a provision of the EA forms part of that provision.

The approach in Swan is entirely consistent with Sunland.

Application documents are, logically, extrinsic material that may be considered where there is ambiguity in a statutory approval, particularly in relation to the extent of approval granted. Reference to application documents should not be limited to cases where they are incorporated expressly or by necessary implication. It is sufficient that ambiguity exists in interpreting the nature of the approval granted.

The principles stated in Sunland are, therefore, important to consider in construing statutory approvals in the future.

 

Dr Chris McGrath

Higgins Chambers

29 December 2021

Singapore hanging would be ‘tantamount to executing a child’

An intellectually disabled man on death row in Singapore has won another short reprieve, but the global campaign to save him is growing.

An intellectually impaired Malaysian man due to be executed in Singapore on Wednesday gained a last-minute reprieve as a result of contracting COVID-19.

Nagaenthran Dharmalingam’s final legal bid to prevent being hanged was to be heard by Singapore’s High Court on Tuesday but has been postponed — and the execution further stayed — because of his illness. It is unclear when the final appeal hearing will occur.

Naga has been on death row for 10 years. He was sentenced to death in 2011 after being convicted of smuggling 42.72 grams of diamorphine into Singapore.

Naga was 21 when he was arrested and charged in 2009. He has been assessed as having an IQ of 69. Nagar’s defence team have argued that his intellectual impairment and other psychiatric conditions saw him coerced and used by drug traffickers.

Singapore’s attorney-general has rebuffed those claims as have Singapore’s courts in earlier appeals.

In a statement quoted in The Guardian, the Singapore attorney-general’s office said: “The High Court stated that it is not open to Dharmalingam to challenge the court’s findings pertaining to his mental responsibility, whether directly or indirectly, in yet another attempt to revisit and unravel the finality of those findings.”

The proposed execution has created an international chorus of condemnation for the proposed execution and excited widespread calls for Singapore President Halimah Yacob to exercise her powers under Singapore’s constitution to prevent Naga’s execution.

The United Nations High Commissioner for Human Rights published an urgent appeal by five expert rapporteurs calling on Singapore to definitively halt Naga’s execution. Its statement highlights “that death sentences must not be carried out on persons with serious psychosocial and intellectual disabilities.”

The call for clemency is echoed by numerous international bodies, including the International Bar Association Human Rights Institute (IBAHRI); Lawasia; Human Rights Watch; Amnesty International, the Anti-Death Penalty Asia Network and the Commonwealth Lawyers Association.

The proposed execution has created an international chorus of condemnation for the proposed execution and excited widespread calls for Singapore President Halimah Yacob to exercise her powers under Singapore’s constitution to prevent Naga’s execution.

The United Nations High Commissioner for Human Rights published an urgent appeal by five expert rapporteurs calling on Singapore to definitively halt Naga’s execution. Its statement highlights “that death sentences must not be carried out on persons with serious psychosocial and intellectual disabilities.”

The call for clemency is echoed by numerous international bodies, including the International Bar Association Human Rights Institute (IBAHRI); Lawasia; Human Rights Watch; Amnesty International, the Anti-Death Penalty Asia Network and the Commonwealth Lawyers Association.

Legal experts have questioned whether Naga’s execution is a breach of international law. The UN’s expert rapporteurs point out, “under international law, countries which have retained the death penalty may only impose it for the most serious crimes, that is, those involving intentional killing … Drug related offences do not meet this threshold”.

Lawasia’s plea to Yacob for clemency points out that Singapore is a signatory state to the UN Convention on the Rights of Persons with Disabilities. Article 15 prohibits “torture or cruel, inhuman or degrading treatment or punishment”.

It refers to the Law Council of Australia’s Policy Statement Against the Death Penalty which states, “the practice of the death penalty, necessarily, constitutes torture and cruel, inhuman or degrading treatment in that it is impossible to avoid torture, cruel, inhuman and degrading treatment in the methods of execution and the living conditions of people on death row”.

Long-time opponent of the death penalty Sir Richard Branson has not only added his voice to the campaign to stop Naga’s execution but, in an extensive post, also seeks to debunk the myth that the death penalty has a deterrent effect on both supply and demand of illicit drugs.  “Nothing”, he argues, “could be further from truth”.

It is a claim supported by anti-death penalty campaigners throughout the world who point out that there is no persuasive evidence that the death penalty, or indeed draconian penalties more broadly, have any impact on drug supply and usage.

Amidst these pleas on Naga’s behalf is the man himself. On Monday, The Sydney Morning Herald reported on a draft affidavit given by Naga’s brother. It speaks of Naga being “very disorientated”. He is “taking three-hour baths” and “talking to him feels like talking to a child who doesn’t comprehend much beyond the recent moment”.

Naga’s family, too, are suffering. CNN reports Naga’s older sister, Samilia Dharmalingham as saying the family is “struggling”. And, in a more recent cruel twist, she says “we have been told by the prison that we will not be able to visit him anymore, and that we will only be allowed phone calls with him”.

When Naga’s appeal to Singapore’s High Court resumes, it will be his last chance to prevent his hanging by judicial order. If he fails there, only a presidential pardon can spare his life.

If a presidential pardon is not given, Singapore will be carrying out its first execution since 2019. It will be executing an intellectually impaired, psychologically-compromised and disorientated young man. N. Surendran, a lawyer representing Naga, described him as having “no real clue of what is going to happen to him”. He adds, with excruciating poignancy: “it would be tantamount to executing a child”.

Peter Murphy

Peter Murphy has had a distinguished career as a lawyer, advocate and judge. Having retired after 10 years as a justice of the Family Court, Peter has returned to his early love, journalism.

Originally posted on Pearls and Irritations

With campaigns against pandemic mandates the need for an Australian Human Rights Act has never been greater

After a pandemic response that required incursions on some human rights, the threat of governments expanding these powers further is high.

Why is it that no one seems to have identified the irony in the right of the Australian political and media class suddenly becoming enamoured of human rights protections, when faced with responses to Covid such as the Victorian government’s proposed pandemic law or laws curtailing entry to public spaces, including workplaces, for those who do not have proof of vaccination?

The Liberal Party and media outlets like the Herald Sun and The Australian are fulminating about human rights being trampled on by Labor state and territory governments in their responses to Covid. But these very same institutions have routinely opposed the idea that Australia should join the rest of the democratic world and embed in its Constitution, or at least have on its statute books, a human rights act.

Perhaps the conservative side of politics and its media allies are on the road to Damascus and having a Pauline conversion?

Maybe they now see that the lack of human rights protections does mean governments in Australia can get away with substantive erosions of fundamental rights because there is no chance of a strike down by the courts on the basis of such rules being unconstitutional, or through litigants successfully challenging rules that undermine liberal values.

Of course, as Senator Jacqui Lambie from Tasmania eloquently and passionately put in a speech to Parliament this week, it is a bit rich for the likes of One Nation to be championing human rights when it is so opposed to human rights protections for Indigenous Australians or the LGBTI community.

But for those of us who lament the lack of a human rights charter or law at the federal level in this country, the response by governments to the Covid pandemic does enable a rational discussion about improving human rights protections. To be clear this does not mean embracing the opportunists and the extreme right types who are hijacking the term “human rights” for their own purposes.

While the response of governments to Covid has of necessity had to involve incursions of some rights because, when balanced against the right to life, the latter wins out, the issue now becomes the fact that there is little standing in the way of governments seeking to extend these broad powers by entrenching them in law.

The use of powers to impose curfews, to control movement of individuals by confining them to particular areas or via an app, allowing police to issue on the spot fines of thousands of dollars, and banning public gatherings have been features of the Covid response by governments. But as we move out of the pandemic the fear is that some of these powers could be used in other settings in the future.

This phenomenon of using powers legislated originally in the context of, for example, anti-terrorism policies in response to other perceived threats is not new in Australia. So called anti-gang laws have used post 9/11 anti-terror law concepts such as criminalising speech, curtailing freedom of association, and imposing controls on the movements of individuals without the person being charged with an offence.

And as the University of New South Wales’ Catherine Bond showed in Law in War with an excellent survey of laws formulated in World War I, criminalising gatherings and associations and detention without charge were all enacted in the context of an nation at war but remain on the statute books today.

It is no exaggeration to say that governments might, in response to violence in particular areas, use Covid control tools to impose curfews on communities or ban gatherings of people in public areas.

What is to stop the Commonwealth government using its broad powers under the Biosecurity Act to impose controls on freedom of movement into and out of the country in the same way that former US president Donald Trump sought to do in the context of anti-terrorism policies by banning entry into the US of people from predominantly Muslim countries?

The threat of draconian laws and concepts of control being used to deal with other perceived “crises” by governments in the future in Australia is real because the ability of courts to act as a bulwark against a rampant executive or an executive controlled legislature is severely limited in the absence of a human rights law.

That, for example, the High Court could rule that immigration detention can be indefinite or that children can be detained under immigration laws, is possible because there is no constitutional protection or even legislative sanction against such laws in Australia.

In the UK, Canada and New Zealand it is doubtful such laws would withstand a human rights challenge.

And similarly with laws that restrict freedom of speech or which allow for raids on journalists by police and security agencies. There is no constitutional right to freedom of speech in Australia, a point often missed when media organisations complain about state inference in their activities.

Australia has changed because of Covid.

The era of executive government expanding their powers to undermine or restrict human rights has arrived and will continue for the foreseeable future, just as it did after 9/11. The time for a human rights law at the national level has never been more obvious.

It is critical that those who believe in liberal values to assert themselves now and ensure the debate about “freedoms” and “rights” is not corrupted by the hard right in rallies and commentary opposing pandemic powers.

Greg Barns SC

National Criminal Justice Spokesman for the Australian Lawyers Alliance

This article was originally published on Pearls & Irritations

Forming a statutorily required state of satisfaction: Bettencourt v MICMSMA [2021] FCAFC 172

The Full Federal Court recently unanimously allowed an appeal involving whether a Minister had formed the “required state of satisfaction” before making a decision about whether or not to revoke the, otherwise, automatic cancellation of a permanent resident’s visa based on  the character test under section 501 of the Migration Act 1958 (Cth).

The decision, Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172, makes clear that administrative decision makers must properly engage with the material before them and must give considered reasons for their decisions.

The Court found that the Minister failed to “form the required state of satisfaction by reference to the material before him” when making the decision to not revoke the original decision to cancel Mr Bettencourt’s visa ([42]). The Court provided six reasons for its conclusion:

  1. There was no reference in the Minister’s reasons to the terminology used in the representations which described the seriousness of the likely harm to the children ([43]);
  2. There was no description of the quality of the likely harm ([44]);
  3. The reasons focused on immediate distress to the children rather than long-term harm ([45]);
  4. The Minister’s conclusion that the best interests of the children would be best served by the revocation of the decision to cancel Mr Bettencourt’s visa was not explained or evaluated in a way that demonstrated the Minister considered there was likely harm to the children should the decision not be revoked ([46]);
  5. The Minister did not engage in a process where he evaluated the significance of his conclusion that the best interests of the children required revocation of the decision. This indicated he could not have reached the required state of satisfaction to make the decision regarding revocation ([47]);
  6. In circumstances where the Executive is exercising a power with the potential consequence of separating a parent from their child and where the Minister is required to give reasons for his decision, it can be expected that a factor as serious as the separation of a child from their parent should be specifically expressed in the reasons ([48]).

In summary: a decision maker cannot just acknowledge a representation has been made and then accept or reject it. The decision maker must meaningfully engage with the representations put before him and explain how he has taken the submissions into account to reach the ultimate decision.

The article available at this link discusses the decision in more detail.

Grace Devereaux

Higgins Chambers

25 October 2021

Supreme Court of Pakistan finds carrying out the death penalty on the mentally ill to be unlawful

The death penalty is a form of punishment that has been condemned internationally. Many see it as an abuse of human rights with activists waging a decades long war against governments to see it eradicated from society. Many executions have involved prisoners with severe mental health conditions. Criminal justice systems around the world have stigmatised individuals suffering from mental illnesses, with few safeguards being put in place resulting in severe procedural deficiencies.

The Supreme Court of Pakistan recently ruled in a landmark case that the execution of severely mentally disabled prisoners is unlawful: Bano and others v Home Department of Punjab and others (unreported, Supreme Court of Pakistan, 2021).

This decision was celebrated by human rights groups around the world, most notably the United Nations, with many awaiting to see this principle applied in future practice in Pakistan and elsewhere.

A five member bench of the Supreme Court of Pakistan, in its review jurisdiction on 7 January 2021, handed down an important decision clearly ruling that, in Pakistan, it was unlawful and inhumane to execute a person who suffered from profound mental illness.

The article available at this link discusses the decision.

Andrada Kacso and Madhuri Pilla

 

Book review: Stalin’s Wine Cellar

John Baker’s story of the collection of wines that once belonged to Nicholas II, the last Tsar of Russia, and was controlled by and supplemented by Joseph Stalin, the Soviet strong man who ran Russia from 1924 to his death in 1953, took a long time in the telling. The earliest scenes, in which John Baker and his friend and colleague, Canadian, Kevin Hopko, ponder a mysterious list of something that could be wine but does not make a lot of sense, date to September 1998. The trip to Georgia, formerly part of the Soviet Union and the region in which Stalin was born, occurred in July 1999. There were twists in the tale but, in a little over four years, the grand adventure had resulted in either success or failure. It took another 17 years before the story of what is, undoubtedly, an intriguing adventure, found its way into the world’s bookstores.

The explanation for such a delay is never fully explained but may be sketched in very soft outline in the acknowledgements at the end of the text. Nick Place is a professional writer with impressive portfolios in the fields of fiction; non-fiction; and sports journalism. John Baker, on the other hand, is of an entrepreneurial bent with an emphasis on making a profit while enjoying life and having an adventure. At the end of the twentieth century, his chosen trade was to take run of the mill liquor stores and to turn them into meccas (unfortunate word, perhaps) for those whose taste in alcohol veered towards the expensive and high quality end of the continuum.

The acknowledgements suggest that Baker had tried to write the story of the adventure but was unimpressed with the results of his efforts. Eventually, Place turned out to be the co-author who could turn Baker’s recollections into the exciting read they deserved to be. It is not, ultimately, clear whether the delay was due to this logistical difficulty in the telling; whether the publishers insisted on waiting for the passing of some of the less heroically portrayed characters so as to make defamation a less likely prospect; or some other reason. Two decades later, the story loses nothing for the waiting.

Eventually, Baker and Hopko solved the riddle of the list by realizing that it was a cellar list of amazing wines resulting from one person writing down the words of another spoken in a language with which the scribe was unfamiliar. The list contained the name of fine, famous and expensive wines, written, phonetically, by a person who had no idea what the other person was intending to say. The list included the name of the wine maker, the year of the vintage and the number of bottles thereof held in the cellar. If one knew the French vineyards which produced the best and most expensive wines in the world, one could, with some difficulty, make sense of the bad phonetic spellings of the wines on the list.

The reward for solving the riddle of the list was to be told that there was a winery in Tbilisi, the capital of Georgia, that held a substantial part of what had, in turn, been the wine and spirits collections of Czar Nicholas II and Joseph Stalin. The source of this information was Harry, a fellow wine traveler with whom Baker had done deals in the past but whom he never fully trusted. Harry’s source of information was a mining magnate with investments in Georgia named Neville. Neville claimed to have been in the cellar of the winery and to have seen some of the wines.

Baker and Hopko did not know whether to trust Neville any more than they should trust Harry. But it turned out that both men needed the expertise of both Baker and Hopko to examine the contents of the cellar and to verify the reality and value of the wines said to be contained, therein. The list suggested wines from the best wine making vineyards in Bordeaux which were more than a hundred years old. They would obviously be very valuable if they, indeed, existed and if they were in tolerable condition. It was Baker and Hopko’s task to work out whether and how much of these requirements could be confirmed.

And, so, in a flash forward, the prologue has Baker and Hopko arriving at Tbilisi airport being welcomed by characters who wore guns in their belts; spoke varying levels of English; and generally confirmed the fears of Baker and Hopko that they were arriving in a modern Caucasian version of the wild west.

Stalin’s Wine Cellar is a story of modern adventure in a world of commerce where no deal is certain until every card has been played. It is also a travel book where every cityscape is carefully described and every meal is explained in meticulous detail. Since Georgia is the primary subject of the travel elements of the book, Georgian history and Georgian sensibilities and sensitivities are explained through the mouths of the Georgian characters who serve as Baker and Hopko’s hosts.

First and foremost, Stalin’s Wine Cellar is a tale of adventure. Baker and Hopko are the primary protagonists in the adventure and they hold centre stage. But Stalin’s Wine Cellar is also a book about the finest of the world’s wines and, so, the human adventurers must make space for the wines which they examine; they carry around the world; and some of which they get to consume.

The story of Stalin’s Wine Cellar is a rare story, indeed, only made possible by the long existence of, and eventual collapse, of the Soviet Union. Place has done a wonderful job in taking Baker’s life experience and telling it as the rollicking yarn it deserves to be.

Yet, in some respects, the strengths of Stalin’s Wine Cellar were lost on me. Most stories of fine wine serve to cure any insomnia from which I may be suffering at the time. The same may be said of stories of fine food served in expensive restaurants. And there is a certain blokeyness in the telling of Stalin’s Wine Cellar intended to add to the adventurous feel that left me a little cold. The voice of Baker, as articulated by Place, seemed to be assuming that every person spends their life trying to find expensive wines going for a song and in order to sell them at a lucrative profit; everyone wants to troop off to a strange new/old country to make deals with mafia and ex-military types; and every person in the world wants to hob nob with the aristocracy of French wine making, just for the hell of it.

But do not let me put you off. Stalin’s Wine Cellar is a story worth telling, told very well. Many a reader will enjoy the elements of style that I could have done without. And many a reader will be enthralled by the histories of Georgian and Bordeaux wine making that are interwoven with the adventurous deal making in which Baker and Hopko are engaged.

Stalin’s Wine Cellar is published by Penguin Random House Australia

Authors: John Baker and Nick Place

 

Reviewer: Stephen Keim

Clayfield

11 September 2021

 

Federal Court considers costs following case on Constitutional definition of Aboriginality

In Helmbright v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3) [2021] FCA 955, Mortimer J ordered each party bear its own costs of proceedings in which a New Zealand citizen of Australian Aboriginal descent unsuccessfully sought a declaration that he was not an alien for the purposes of section 51(xix) of the Australian Constitution after learning the Minister was considering cancelling his visa.

The proceedings involved one of the first applications of the High Court’s decision in Love v Commonwealth; Thoms v Commonwealth [2020] HCA 3 and the majority finding that Aboriginal Australians (as understood according to the tripartite test in Mabo (No 2)) cannot be declared aliens pursuant to section 51(xix) of the Constitution.

The article available at this link discusses the decisions in the proceedings.

Matthew Coe

Barrister at Law

Afghans fleeing the Taliban deserve our protection

In 2015 the Abbott government established what it said was a fast-track asylum seeker process to deal with around 30,000 individuals from Afghanistan and other countries and who were not detained in offshore facilities like Manus Island and Nauru.

It is called the Independent Assessment Authority (IAA) and its role is to deal with cases when the Immigration Department has refused to grant a protection visa to an asylum seeker.

As someone who has acted for asylum seekers from Afghanistan over a number of years, if any conclusion can be drawn about how the Immigration Department and IAA has dealt with claims from Afghan citizens it is that it is either naive or too conservative about the risks to any persons who belong to groups such as the ethnic Hazara which are the target of the Taliban.

According to the IAA’s own figures between July 1, 2015 and June 30, 2021, of the 625 cases it has dealt with involving Afghan applicants seeking protection in Australia, an astonishing 83 per cent have confirmed the departmental decision to refuse the issuing of a visa.

The IAA process relies on what is termed country information. This means reports, in the case of Afghanistan, from Australia’s Department of Foreign Affairs and Trade, other governments and some NGOs, as well as media reports.

The legislation which introduced the IAA process handicaps asylum seekers. The review process is carried out without interviews.

There is only a limited capacity for an applicant for a protection visa to submit new and up-to-date information which was not given to, or available to, the Immigration Department official who first dealt with the case. You have to explain why that information was not handed over at that initial stage.

In the circumstances of Afghanistan in the past six years, this legislative hurdle preventing the taking into account of alternative information about those groups persecuted by Taliban, has prejudiced the chances of being accepted as a refugee.

A couple of examples provides a flavour of the mindset of the IAA process reviewers. In one case an individual of Hazara ethnicity and Shia religion feared harm from the Taliban because as a long-distance truck driver he had been regularly stopped, searched and even shot at by the Taliban.

His brother had been seriously injured in a terrorist attack. The IAA reviewer in essence said that the Taliban wasn’t deliberately targeting this man, and that if he returned to Afghanistan, so long as he kept his head down, he would not be targeted by them.

Reports from experts like Professor William Maley of the ANU, a leading scholar on the security situation in Afghanistan, were not taken into account by the reviewer.

In another case the IAA reviewer was of the view that a man who had previously driven transport for the Afghan government did not require protection because while there was violence by the Taliban in Kabul it was generally aimed at government officials and high-profile individuals.

In a third case the IAA reviewer concluded the risk of harm to Hazara Shia in Afghanistan was “confined to the credible but remote risk from infrequent high casualty attacks”. It is hard to know what “credible and remote” means.

The difficulty with the IAA process is that despite the country information indicating that Afghanistan has been a very dangerous place for many years, when the reviewer looks at the profile of the individual seeking asylum, there is a tendency to disbelieve aspects of the narrative and assume the person hasn’t got the sort of profile which will place them at risk of what is termed a “real chance” of persecution if they are forced back to Afghanistan.

This emphasis on the individual case means that the IAA review process often misses, or ignores, the big picture.

In 2018, writing on the Lowy Institute website, Professor Maley and Deakin University’s Dr Niamatullah Ibrahimi observed that the “vast majority of asylum seekers from Afghanistan who have sought protection in Australia in the last two decades have been of Hazara background, and many have come from the very districts now under attack”.

They rightly observed, “[s]o far, there has been an inclination among decision-makers who process asylum claims to treat areas such as Jaghori as safe. This view, always somewhat naive, is now completely unsustainable.”

Maley and Niamatullah argued for a complete moratorium on asylum seekers who have had their protection claims rejected being threatened with return to Afghanistan.

With millions likely to flee from Afghanistan now that the Taliban are back in control there is an urgent need for Australia to unwind its unfair laws and processes, such as the IAA, which are designed to make it as difficult as possible for asylum seekers to succeed in seeking our protection.

The expertise and independence of decision-making must be improved so that those who arrive in this country from Afghanistan from now are given every opportunity to make their case for asylum.

 

Greg Barns SC

Originally published in The Age on 18 August 2021.

 

Stunning Federal Court decision blows open duty of care for climate change in Australia

Justice Bromberg of the Federal Court today delivered a stunning decision that blows open the duty of care for climate change in Australia.

The decision, Sharma v Minister for the Environment [2021] FCA 560, will reverberate for many years to come.

The case was brought by a group of eight brave children led by Anjali Sharma (with the assistance of 86 year-old litigation guardian Sister Brigid Arthur), against the Federal Minister for the Environment to protect young people from the future harm caused by the climate change impacts of a proposed coal mine extension project in NSW known as the Vickery Extension Project.

The applicants argued that in deciding whether the approve the coal mine expansion under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act), the Minister has a duty to protect young people from the devastating impacts of climate change. They asked  the Court to grant an injunction to prevent the Minister from doing so.

Bromberg J found (at [491] and [513]):

… the applicants have established that the Minister has a duty to take reasonable care to avoid causing personal injury to the Children when deciding, under … the EPBC Act, to approve or not approve the [coal mine expansion].

Even though Bromberg J didn’t grant the injunction, the value of seeking it and declarations (rather than wait for judicial review) is now obvious: it allowed the applicants to call evidence and run a merits case rather than waiting for the Minister to make biased factual findings.

Bromberg J carefully considered the climate science in the decision, which lays the foundation for an excellent factual basis to defend (the certain) appeal.

Bromberg J’s judgement is clearly written with appeal in mind. It carefully dealt with the facts and made an extensive analysis of the law on establishing a novel duty of care.

Even though the case involved a duty of care under a statute (the EPBC Act), its implications are far, far wider.

It opens the way for mining companies and fossil fuel polluters to be held liable for damages in negligence due to their emissions contributing to climate change.

The implications of this decision are enormous and hard to understate.

Separate landmark decision in the Hague against Royal Dutch Shell

This Australian decision comes a day after the District Court in the Hague ordered Royal Dutch Shell (RDS) to cut its global carbon emissions by 45% by the end of 2030 compared with 2019 levels, in a landmark case brought by Friends of the Earth and over 17,000 co-plaintiffs.

The English version of the decision is available here.

The Court found (at 4.4.55):

The court concludes that RDS is obliged to reduce the CO2 emissions of the Shell group’s activities by net 45% at end 2030, relative to 2019, through the Shell group’s corporate policy. This reduction obligation relates to the Shell group’s entire energy portfolio and to the aggregate volume of all emissions (Scope 1 through to 3).

In summary, the main points of that case (in the Hague) were:

1 Royal Dutch Shell had a duty of care and that the level of emission reductions of Shell and its suppliers and buyers should be brought into line with the Paris climate agreement.

2 Royal Dutch Shell must reduce its emissions by 45% net by the end of 2030.

3 Shell is also responsible for emissions from customers (scope 3) and suppliers.

4 There is a threat of human rights violations to the ‘right to life’ and ‘undisturbed family life’.

5 Shell must comply with the judgment immediately, because Shell’s current climate policy is not concrete enough.

These two amazing decisions on opposite sides of the world in two days are not just groundbreaking: they are magnitude 8.0 earthquakes for climate liability globally.

Case study and Podcast

A case study of Sharma is available at this link.

A (15 minute) Podcast discussing Sharma is available at this link.

 

Dr Chris McGrath

Higgins Chambers

27 May 2021