Klein, Natalie; Hughes, Nikolas --- "National Litigation and international Law: Repercussions for Australia's Protection of Marine Resources" [2009] MelbULawRw 6; (2009) 33(1) Melbourne University Law Review 163
[*] BA (Juris), LLB (Hons) (Adel), LLM, JSD (Yale); Associate Professor, Macquarie Law School, Macquarie University.
[†] BA, LLB (Macquarie); LLM Candidate, Macquarie Law School, Macquarie University. Research for this article was funded by an Australian Research Council Discovery Grant. The authors are grateful for the useful comments from the anonymous reviewers.
[1] The Timor Gap refers to an area of the Timor Sea located between Australia and Timor‑Leste — it was the ‘gap’ left in the delimitation of Australia’s maritime boundary with Indonesia in 1971 and 1972 (when Timor‑Leste was still a Portuguese colony): see Petrotimor Companhia de Petroleos SARL v Commonwealth [2003] FCAFC 3; (2003) 126 FCR 354, 380 (Beaumont J).
[2] This comprises more than six decisions, including Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2004] FCA 1510; (2005) 212 ALR 551 (‘HSI v Kyodo (First Application for Leave to Serve)’), Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2005] FCA 664 (Unreported, Allsop J, 27 May 2005) (‘HSI v Kyodo (Second Application for Leave to Serve)’), Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2006) 154 FCR 425 (‘HSI v Kyodo (Full Court)’) and Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2008) 165 FCR 510 (‘HSI v Kyodo (Injunction)’). They will be referred to collectively as ‘HSI v Kyodo’.
[3] [2006] AATA 298; (2006) 93 ALD 640.
[4] [2003] FCAFC 3; (2003) 126 FCR 354.
[5] In the Australian context, see, eg, Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562, in particular the contrasting views of McHugh and Kirby JJ on the role of international law: at 589–95 (McHugh J), 617–30 (Kirby J). See also Sir Anthony Mason, ‘The High Court as Gatekeeper’ [2000] MelbULawRw 31; (2000) 24 Melbourne University Law Review 784; Hilary Charlesworth et al, ‘Deep Anxieties: Australia and the International Legal Order’ [2003] SydLawRw 21; (2003) 25 Sydney Law Review 423 (analysing how the branches of federal government have responded to international law); Devika Hovell and George Williams, ‘A Tale of Two Systems: The Use of International Law in Constitutional Interpretation in Australia and South Africa’ [2005] MelbULawRw 3; (2005) 29 Melbourne University Law Review 95. This topic has also generated considerable interest in other jurisdictions: see, eg, Baker v Minister of Citizenship and Immigration [1999] 2 SCR 817, 841, 860–2 (L’Heureux‑Dubé J for L’Heureux‑Dubé, Gonthier, McLachlin, Bastarache and Binnie JJ), 865–6 (Iacobucci J for Cory and Iacobucci JJ); Lawrence v Texas[2003] USSC 4776; , 539 US 558, 576–7 (Kennedy J for Stevens, Kennedy, Souter, Ginsburg and Breyer JJ) (2003); Medellin v Texas, 128 S Ct 1346 (2008); Benedetto Conforti, International Law and the Role of Domestic Legal Systems (1993); Mayo Moran, ‘Authority, Influence and Persuasion: Baker, Charter Values and the Puzzle of Method’ in David Dyzenhaus (ed), The Unity of Public Law (2004) 389; Karen Knop, ‘Here and There: International Law in Domestic Courts’ (2000) 32 New York University Journal of International Law and Politics 501; Melissa A Waters, ‘Creeping Monism: The Judicial Trend toward Interpretive Incorporation of Human Rights Treaties’ (2007) 107 Columbia Law Review 628; Robert B Ahdieh, ‘Between Dialogue and Decree: International Review of National Courts’ (2004) 79 New York University Law Review 2029.
[6] ‘Our State cannot speak with two voices on such a matter, the judiciary saying one thing, the executive another’: The Arantzazu Mendi [1939] AC 256, 264 (Lord Atkin). See also Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307, 354–5 (Gummow and Crennan JJ).
[7] These doctrines are variously described as ‘abstention doctrines’ or ‘avoidance doctrines’ and include the ‘act of state’ doctrine, sovereign immunity, and non‑justiciability: see generally Richard Garnett, ‘Foreign States in Australian Courts’ [2005] MelbULawRw 22; (2005) 29 Melbourne University Law Review 704.
[8] Harold Hongju Koh, ‘Transnational Public Law Litigation’ (1991) 100 Yale Law Journal 2347, 2347.
[9] Ibid 2382–3, 2386–7.
[10] Ibid 2382–3.
[11] Eyal Benvenisti, ‘Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts’ (2008) 102 American Journal of International Law 241.
[12] Ibid 246–7.
[13] Ibid 245–52.
[14] Ibid 241 (emphasis in original).
[15] See below Part V. See also Koh, above n 8, 2382, who proposes that ‘courts should target their concerns by applying those doctrines that have been specifically tailored to address them’ rather than using overbroad rules that would eliminate all transnational cases.
[16] See, eg, Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307, 354–5 (Gummow and Crennan JJ). Cf Hicks v Ruddock (2007) 156 FCR 574, 600 (Tamberlin J).
[17] See Benvenisti, above n 11, 252–67, who notes this phenomenon of inter‑judicial cooperation for reclaiming democracy occurring particularly in relation to counter‑terrorism laws, refugee law and environmental protection in developing countries. While Australian court decisions on counter‑terrorism laws and refugee laws would be in line with his analysis, this article shows the limited application of his theory when considered in relation to other areas of law.
[18] The maritime areas in question are Antarctica and the Timor Sea in relation to HSI v Kyodo and Petrotimor, and the resources are southern bluefin tuna and petroleum in relation to Re HSI and Minister for the Environment and Petrotimor.
[19] Opened for signature 10 December 1982, 1833 UNTS 3 (entered into force 16 November 1994).
[20] See UNCLOS arts 2, 55–6, 76–7, 87; Maritime Legislation Amendment Act 1994 (Cth) pt 2.
[21] See UNCLOS arts 76–7.
[22] Fisheries Case (United Kingdom v Norway) (Merits) [1951] ICJ Rep 116, 132.
[23] Again, the level of regulation will depend on the location. For example, even on the high seas, states are required to show due regard for the rights of other users of this area: UNCLOS art 87(2).
[24] UNCLOS art 2.
[25] Different baselines are recognised within UNCLOS. For example: normal baselines are the low‑water line along the coast (art 5); straight baselines are used to encompass areas where the coastline is deeply indented and cut into or where there is a fringe of islands along the coast in its immediate vicinity (art 7); closing lines are drawn across bays meeting specified geographic criteria (art 10). The waters landward of these baselines are internal waters: art 8.
[26] UNCLOS art 3. One nautical mile is equivalent to 1.852 km. See also Commonwealth v Yarmirr [1999] FCA 1668; (1999) 101 FCR 171, 280–1 (Merkel J).
[27] UNCLOS art 2.
[28] The right of innocent passage entitles foreign vessels to traverse the territorial sea without interference from the coastal state, provided that passage is not prejudicial to the peace, good order or security of the coastal state. That passage must be continuous and expeditious, but may include stopping or anchoring as part of ordinary navigation, as well as rendering assistance to persons, ships or aircraft in danger or distress: UNCLOS arts 17–19.
[29] Namely, if the criminal activity has particular effects on the coastal state, if assistance is requested or if the vessel has been in the internal waters of the coastal state: UNCLOS arts 27(1)(a), (1)(c), (2). A coastal state may only enforce jurisdiction for civil proceedings if the foreign ship is lying in the territorial sea or has been in the internal waters of the coastal state: art 28(3). See also I A Shearer, ‘Problems of Jurisdiction and Law Enforcement against Delinquent Vessels’ (1986) 35 International and Comparative Law Quarterly 320, 326–9.
[30] See generally Erik Jaap Molenaar, ‘Port State Jurisdiction: Towards Mandatory and Comprehensive Use’ in David Freestone, Richard Barnes and David M Ong (eds), The Law of the Sea: Progress and Prospects (2006) 192. Molenaar argues that port state jurisdiction may be asserted in relation to offences that have occurred in that state’s maritime zones or even, potentially, outside those maritime zones: at 196–7, 200–2. It would nonetheless be arguable that in the absence of an international agreement, port state jurisdiction is otherwise limited to offences that occur while the vessel is in port — such as not following proper port procedures.
[31] Australia proclaimed a contiguous zone under Maritime Legislation Amendment Act 1994 (Cth) s 12, inserting Seas and Submerged Lands Act ss 13A–13C, and has further given legislative force to the contiguous zone in s 245B(4) of the Migration Act 1958 (Cth), inserted by Border Protection Legislation Amendment Act 1999 (Cth) sch 1. See also UNCLOS art 33(2).
[32] UNCLOS art 33(1).
[33] UNCLOS art 76(1). A state may be able to claim a breadth of continental shelf up to 350 nautical miles if conditions set forth in art 76 are met. Australia has made such a claim, which was assessed by the Continental Shelf Commission (created under Annex II of UNCLOS), and Australia is now permitted to formally establish its rights over an extended continental shelf area: Commission on the Limits of the Continental Shelf, Summary of the Recommendations of the Commission on the Limits of the Continental Shelf (CLCS) in regard to the Submission Made by Australia on 15 November 2004 (2008). See also ‘Australian Territory Expands with Continental Shelf Ruling’, ABC News (online), 21 April 2008 <http://www.abc.net.au/news/
stories/2008/04/21/2223353.htm>.
[34] UNCLOS art 77(1). Australia initially claimed these sovereign rights in Seas and Submerged Lands Act s 11, which was later amended by Maritime Legislation Amendment Act 1994 (Cth) s 6: see Commonwealth v Yarmirr [1999] FCA 1668; (1999) 101 FCR 171, 280–1 (Merkel J).
[35] Again, this breadth is measured from the coastal state’s baselines: UNCLOS art 57.
[36] UNCLOS art 56(1).
[37] UNCLOS art 73(1). Enforcement powers also exist in relation to marine pollution: see, eg, art 220.
[38] UNCLOS art 58(1).
[39] Fisheries Amendment Act 1978 (Cth) s 3.
[40] Maritime Legislation Amendment Act 1994 (Cth) s 10, inserting Seas and Submerged Lands Act ss 10A–10C and declaring Australia’s rights over its EEZ.
[41] UNCLOS art 89.
[42] UNCLOS art 87(1). Article 87 also lists the freedoms of overflight, of laying submarine cables and pipelines, and of constructing artificial islands and other installations. This list is not exclusive.
[43] UNCLOS arts 116–20.
[44] UNCLOS art 87(2).
[45] UNCLOS art 92.
[46] See Natalie Klein, ‘The Right of Visit and the 2005 Protocol on the Suppression of Unlawful Acts against the Safety of Maritime Navigation’ (2007) 35 Denver Journal of International Law and Policy 287, discussing the constraints on the right of visit in the law of the sea. The right of hot pursuit may provide another basis for warships or designated government vessels to board and arrest a foreign vessel on the high seas: see UNCLOS art 111.
[47] In addition to powers conferred by treaty, this consent may be granted on an ad hoc basis by the flag state or the master of the vessel: see Rosemary Gail Rayfuse, Non‑Flag State Enforcement in High Seas Fisheries (2004) 61.
[48] Opened for signature 10 May 1993, 1819 UNTS 359 (entered into force 20 May 1994). See below nn 64–70 and accompanying text.
[49] UNCLOS arts 74(1), 83(1). The delimitation of overlapping territorial seas is prescribed in art 15.
[50] For a survey of the circumstances that may be taken into account in maritime boundary delimitations, see generally Malcolm D Evans, Relevant Circumstances and Maritime Delimitation (1989). State practice on maritime boundary delimitations has been compiled in an impressive series edited (initially) by Jonathan Charney and Lewis Alexander: Jonathan I Charney, Lewis M Alexander and Robert W Smith (eds), International Maritime Boundaries (1993–2002). See also Victor Prescott and Clive Schofield, The Maritime Political Boundaries of the World (2nd ed, 2005).
[51] See generally Lea Brilmayer and Natalie Klein, ‘Land and Sea: Two Sovereignty Regimes in Search of a Common Denominator’ (2001) 33 New York University Journal of International Law and Politics 703, 746–7, which argues that states have an interest in ‘quieting’ legal title to ensure marketability of the marine resources in the delimited zones.
[52] UNCLOS art 121(2).
[53] Only France, New Zealand, Norway and the United Kingdom recognise Australia’s claim to the AAT: see House of Representatives Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Australian Law in Antarctica (1992) 9.
[54] Opened for signature 1 December 1959, 402 UNTS 71 (entered into force 23 June 1961).
[55] These include: Convention for the Conservation of Antarctic Seals, opened for signature 1 June 1972, 1080 UNTS 175 (entered into force 11 March 1978); Convention on the Conservation of Antarctic Marine Living Resources, opened for signature 20 May 1980, 1329 UNTS 47 (entered into force 7 April 1982); Protocol on Environmental Protection to the Antarctic Treaty of 1 December 1959, opened for signature 4 October 1991, [1998] ATS 6 (entered into force 14 January 1998). In addition, at meetings of the parties to the Antarctic Treaty, a number of recommendations and measures governing aspects of the regime have been adopted and provide guidance for the regulation of activity in the area covered by the Antarctic Treaty System.
[56] For a general discussion on the ATS and Australia’s role therein, see Donald R Rothwell, The Polar Regions and the Development of International Law (1996) ch 4; Gillian D Triggs, International Law and Australian Sovereignty in Antarctica (1986) chs 4–7. For a more recent perspective, see Marcus Haward et al, ‘Australia’s Antarctic Agenda’ (2006) 60 Australian Journal of International Affairs 439; Lorne K Kriwoken, Julia Jabour and Alan D Hemmings (eds), Looking South: Australia’s Antarctic Agenda (2007).
[57] These debates are canvassed in Joanna Mossop, ‘When Is a Whale Sanctuary Not a Whale Sanctuary? Japanese Whaling in Australian Antarctic Maritime Zones’ (2005) 36 Victoria University of Wellington Law Review 757. See also Anna Homan, ‘Maritime Zones in Antarctica’ (2006) 20 Australia and New Zealand Maritime Law Journal 69; Chris McGrath, ‘Australia Can Lawfully Stop Whaling within Its Antarctic EEZ’ (Paper presented at the Environmental Defender’s Office New South Wales Seminar, Sydney, 21 February 2008) 4–7 <http://
www.edo.org.au/edonsw/site/pdf/workshop/whales_chris_mcgrath_paper_080225.pdf>.
[58] Seas and Submerged Lands Act ss 6, 10A, 11. Australia has also made a claim to an outer continental shelf off the AAT pursuant to UNCLOS art 76, but requested the Commission on the Limits of the Continental Shelf not to act on this aspect of Australia’s outer continental shelf submission for the present time: Australia, Continental Shelf Submission of Australia: Executive Summary (2004) <http://www.un.org/Depts/los/clcs_new/submissions_files/aus04/Documents/
aus_doc_es_web_delivery.pdf>; Australia, Note from the Permanent Mission of Australia to the Secretary General of the United Nations Accompanying the Lodgement of Australia’s Submission, Note No 89/2004 (November 2004) <http://www.un.org/Depts/los/clcs_new/
submissions_files/aus04/Documents/aus_doc_es_attachment.pdf>.
[59] For an overview of earlier regulation of whaling and whaling conservation under Australian law, see Ruth Davis, ‘Enforcing Australian Law in Antarctica: The HSI Litigation’ [2007] MelbJlIntLaw 6; (2007) 8 Melbourne Journal of International Law 142.
[60] EPBC Act s 225(2)(a).
[61] EPBC Act ss 229–30.
[62] See Attorney‑General (Cth), ‘Outline of Submissions of the Attorney‑General of the Commonwealth as Amicus Curiae’, Submission in Humane Society International Inc v Kyodo Senpaku Kaisha Ltd, NSD 1519/2004, 25 January 2005, [10], [20]–[22], [28].
[63] UNCLOS arts 56, 73.
[64] UNCLOS Annex 1.
[65] UNCLOS art 64(1).
[66] See Moritaka Hayashi, ‘The Southern Bluefin Tuna Cases: Prescription of Provisional Measures by the International Tribunal for the Law of the Sea’ (2000) 13 Tulane Environmental Law Journal 361, 365–6.
[67] CCSBT art 3.
[68] CCSBT art 6.
[69] CCSBT art 8(3)(a).
[70] Commission for the Conservation of Southern Bluefin Tuna, About the Commission <http://www.ccsbt.org/docs/about.html> . For discussion of Taiwan’s status as a ‘Fishing Entity’, see Nien‑Tsu Alfred Hu, ‘Fishing Entities: Their Emergence, Evolution, and Practice from Taiwan’s Perspective’ (2006) 37 Ocean Development and International Law 149; Andrew Serdy, ‘Bringing Taiwan into the International Fisheries Fold — The Legal Personality of a Fishing Entity’ (2004) 75 British Year Book of International Law 183. The Philippines, South Africa and the European Communities have been formally accepted as Cooperating Non‑Members, whereby they agree to adhere to the management and conservation objectives of the CCSBT, including the agreed catch limits.
[71] UNCLOS arts 65, 120.
[72] Opened for signature 2 December 1946, 161 UNTS 72 (entered into force 10 November 1948).
[73] ICRW art 3(1). Any state may accede to the ICRW: art 10(2). See also Gregory Rose and Saundra Crane, ‘The Evolution of International Whaling Law’ in Phillippe Sands (ed), Greening International Law (1993) 159, 165. Membership currently stands at 88 contracting parties: International Whaling Commission, IWC Information (11 August 2009) <http://www.iwcoffice.org/
commission/iwcmain.htm#nations>.
[74] See Rose and Crane, above n 73, 165.
[75] International Whaling Commission, Rules of Procedure and Financial Regulations (2008) 5–6.
[76] ICRW art 8(1). The powers of the Scientific Committee in this regard are set out in IWC, International Convention for the Regulation of Whaling, 1946: Schedule (2008) 14, whereby states issuing special permits for scientific whaling are to provide them to the IWC before they are issued and in sufficient time to allow the Scientific Committee to review and comment on them.
[77] UNCLOS art 77(1). These rights were initially codified in the Convention on the Continental Shelf, opened for signature 29 April 1958, 499 UNTS 311, art 2(1) (entered into force 10 June 1964) (‘Continental Shelf Convention’).
[78] UNCLOS art 77(2). See also Continental Shelf Convention art 2(2).
[79] Treaty between Australia and the Republic of Indonesia on the Zone of Cooperation in an Area between the Indonesian Province of East Timor and Northern Australia, signed 11 December 1989, [1991] ATS 9 (entered into force 9 February 1991).
[80] The history of these agreements is traced in Petrotimor [2003] FCAFC 3; (2003) 126 FCR 354, 388–99 (Beaumont J).
[81] See Resolution on Responsibility of States for Internationally Wrongful Acts, GA Res 56/83, UN GAOR, 56th sess, 85th plen mtg, Annex, UN Doc A/RES/56/83 (2001) (‘Articles on State Responsibility’). Article 4(1) states:
The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State.
[82] Opened for signature 24 April 1963, 596 UNTS 261, art 36(1)(b) (entered into force 19 March 1967). By virtue of art 36(2), states are required to give full effect to the purposes of the obligations set forth in art 36(1). The possibility of national courts and local law enforcement agencies violating these obligations has been explored by the International Court of Justice in LaGrand (Germany v United States of America) [2001] ICJ Rep 466, 497 (‘LaGrand’) and Avena and Other Mexican Nationals (Mexico v United States of America) [2004] ICJ Rep 12, 43–4, 63 (‘Avena’).
[83] This is the situation in the United States criminal justice system, as seen in LaGrand [2001] ICJ Rep 466 and Avena [2004] ICJ Rep 12.
[84] Articles on State Responsibility art 32: ‘The responsible State may not rely on the provisions of its internal law as justification for failure to comply with its obligations’.
[85] Articles on State Responsibility art 31(1): ‘The responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act.’
[86] This is the principle of diplomatic protection, articulated in Mavrommatis Palestine Concessions (Greece v United Kingdom) (Jurisdiction) [1924] PCIJ (ser A) No 2, 12:
By taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own rights — its right to ensure, in the person of its subjects, respect for the rules of international law.
[87] For example, a national court’s failure to require an environmental impact assessment for a development project that may cause pollution in a neighbouring state’s territorial sea or EEZ could violate the rights of that neighbouring state. The failure to undertake such an assessment may be in violation of UNCLOS arts 204–6. This was one of Ireland’s allegations against the United Kingdom in MOX Plant Case (Ireland v United Kingdom) (Ireland Memorial) (Permanent Court of Arbitration, 26 July 2002) 111–37.
[88] See UNCLOS arts 92, 116.
[89] See, eg, Ian Brownlie, Principles of Public International Law (6th ed, 2003) 5.
[90] ICJ Statute art 38(1)(d).
[91] Opinio juris is a belief by states that an action is required by law. These elements are reflected in the formulation of ‘international custom, as evidence of a general practice accepted as law’, as set forth in ICJ Statute art 38(1)(b). Some commentators have argued that there are alternative ways of viewing the formation of customary international law: see, eg, W Michael Reisman, ‘International Lawmaking: A Process of Communication’ (1981) 75 American Society of International Law Proceedings 101; Anthea Elizabeth Roberts, ‘Traditional and Modern Approaches to Customary International Law: A Reconciliation’ (2001) 95 American Journal of International Law 757.
[92] See, eg, Brownlie, above n 89, 6.
[93] Chow Hung Ching v The King [1948] HCA 37; (1948) 77 CLR 449, 478 (Dixon J); Bradley v Commonwealth [1973] HCA 34; (1973) 128 CLR 557, 582 (Barwick CJ and Gibbs J); Simsek v Macphee (1982) 148 CLR 636, 641–2 (Stephen J); Koowarta v Bjelke‑Petersen [1982] HCA 27; (1982) 153 CLR 168, 211–12 (Stephen J),
224–5 (Mason J); Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 570 (Gibbs CJ); Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, 305 (Mason CJ and McHugh J).
[94] See Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273, 291 (Mason CJ and Deane J):
ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention. That positive statement is an adequate foundation for a legitimate expectation …
This decision has not been without controversy in commentary and cases before federal and state courts: see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, 10–11 (Gleeson CJ), 33–4 (McHugh and Gummow JJ), 47–8 (Callinan J); Kristen Walker and Penelope Mathew, ‘Minister for Immigration v Ah Hin Teoh’ [1995] MelbULawRw 16; (1995) 20 Melbourne University Law Review 236, 246–9; Royal Women’s Hospital v Medical Practitioners Board of Victoria [2006] VSCA 85; (2006) 15 VR 22, 39–40 (Maxwell P); Simon French, ‘How “Legitimate” Are Legitimate Expectations?’ (2006) 80(3) Law Institute Journal 54; Matthew Groves, ‘Is Teoh’s Case Still Good Law?’ (2007) 14 Australian Journal of Administrative Law 126; Michael Kirby, ‘The Impact of International Human Rights Norms: “A Law Undergoing Evolution”’ [1995] UWALawRw 3; (1995) 25 University of Western Australia Law Review 30, 45–8.
[95] Nulyarimma v Thompson [1999] FCA 1192; (1999) 96 FCR 153, 162 (Wilcox J). See also Sumner v United Kingdom [2000] SASC 91 (Unreported, Nyland J, 13 April 2000) [32]; Thorpe v Kennett [1999] VSC 442 (Unreported, Warren J, 15 November 1999) [12]–[46]; Henry Burmester and Susan Reye, ‘The Place of Customary International Law in Australian Law: Unfinished Business’ [2000] AUYrBkIntLaw 3; (2000) 21 Australian Year Book of International Law 39, 44–5; Charlesworth et al, above n 5, 451–7. But see Nulyarimma v Thompson [1999] FCA 1192; (1999) 96 FCR 153, 189–91 (Merkel J), where his Honour, in dissent, set out six criteria that a court should consider in a determination as to whether customary international law should be adopted as part of the common law.
[96] Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, 321 (Brennan J); see also at 360 (Toohey J); Mabo v Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1, 42 (Brennan J). See also Cachia v Hanes (1991) 23 NSWLR 304, 313 (Kirby P); Young v Registrar, Court of Appeal [No 3] (1993) 32 NSWLR 262, 275–6 (Kirby P).
[97] These decisions were challenged before the Federal Court of Australia: see Hicks v Ruddock (2007) 156 FCR 574. See also Marley Zelinka, ‘Hicks v Ruddock versus The United States v Hicks’ [2007] SydLawRw 21; (2007) 29 Sydney Law Review 527.
[98] See, eg, Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307, 354 (Gummow and Crennan JJ). See also Buttes Gas & Oil Co v Hammer [1982] AC 888, 931 (Lord Wilberforce) (‘Buttes’).
[99] XYZ v Commonwealth [2006] HCA 25; (2006) 227 CLR 532, 578 (Kirby J).
[100] Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307, 354 (Gummow and Crennan JJ).
[101] [1994] HCA 32; (1994) 181 CLR 183, 195 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ).
[102] [2003] FCAFC 3; (2003) 126 FCR 354, 417 (Beaumont J).
[103] See also Kartinyeri v Commonwealth [1998] HCA 22; (1998) 195 CLR 337, 385 (Gummow and Hayne JJ), 418 (Kirby J) (‘Hindmarsh Island Bridge Case’); Polites v Commonwealth [1945] HCA 3; (1945) 70 CLR 60, 68–9 (Latham CJ).
[104] Horta v Commonwealth [1994] HCA 32; (1994) 181 CLR 183, 195–6 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ). See also Petrotimor [2003] FCAFC 3; (2003) 126 FCR 354, 373 (Black CJ and Hill J).
[105] Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307, 354 (Gummow and Crennan JJ).
[106] Ibid.
[107] Ibid.
[108] Buttes [1982] AC 888, 938 (Lord Wilberforce), stating that:
there are … no judicial or manageable standards by which to judge these issues, or to adopt another phrase …, the court would be in a judicial no‑man’s land: the court would be asked to review transactions in which four sovereign states were involved, which they had brought to a precarious settlement, after diplomacy and the use of force, and to say that at least part of these were ‘unlawful’ under international law.
[109] The non‑enforceable standard was applied by Beaumont J in Petrotimor [2003] FCAFC 3; (2003) 126 FCR 354, 379, 411, 414–15. See also Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85; (1999) 84 FCR 438, 447 (Sackville, North and Kenny JJ).
[110] Petrotimor [2003] FCAFC 3; (2003) 126 FCR 354, 410 (Beaumont J).
[111] This was the approach taken in Petrotimor: ibid 372–4 (Black CJ and Hill J), 414–15 (Beaumont J).
[112] One example of this is Allsop J’s decision not to exercise his discretion to allow for service of proceedings outside Australia in HSI v Kyodo (Second Application for Leave to Serve) [2005] FCA 664 (Unreported, Allsop J, 27 May 2005) [38]. See also below nn 147–59 and accompanying text.
[113] Sir Gerald Fitzmaurice has explained that an objection to the jurisdiction of the court is ‘a plea that the tribunal itself is incompetent to give any ruling at all whether as to the merits or as to the admissibility of the claim’, whereas an objection to the admissibility of a claim is ‘a plea that the tribunal should rule the claim to be inadmissible on some ground other than its ultimate merits’: Sir Gerald Fitzmaurice, ‘The Law and Procedure of the International Court of Justice, 1951–4: Questions of Jurisdiction, Competence and Procedure’ (1958) 34 British Year Book of International Law 1, 12–13 (citations omitted).
[114] See Koh, above n 8, 2387.
[115] Coe v Commonwealth [1979] HCA 68; (1979) 24 ALR 118, 128 (Gibbs J); Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347, 371–2 (Gummow J); Horta v Commonwealth [1994] HCA 32; (1994) 181 CLR 183, 195–6 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ); Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373, 422 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ) (‘Native Title Act Case’). See also Thorpe v Commonwealth [No 3] [1997] HCA 21; (1997) 144 ALR 677, 690–1, where Kirby J noted that the separation of powers generally requires that the conduct of foreign affairs be non‑justiciable.
[116] [1897] USSC 197; 168 US 250, 252 (Fuller CJ for the Court) (1897).
[117] New South Wales v Commonwealth [1975] HCA 58; (1975) 135 CLR 337, 388 (Gibbs J) (‘Seas and Submerged Lands Case’).
[118] Koowarta v Bjelke‑Petersen [1982] HCA 27; (1982) 153 CLR 168, 229 (Mason J).
[119] Seas and Submerged Lands Case [1975] HCA 58; (1975) 135 CLR 337, 388 (Gibbs J), citing Post Office v Estuary Radio Ltd [1968] 2 QB 740, 753 (Diplock LJ); Wacando v Commonwealth [1981] HCA 60; (1981) 148 CLR 1, 11 (Gibbs CJ), 21–2 (Mason J); Cook v Sprigg [1899] UKLawRpAC 44; [1899] AC 572, 579 (Earl of Halsbury LC for Earl of Halsbury LC, Lords Watson, Hobhouse, Macnaghten and Morris).
[120] Tasmanian Wilderness Society Inc v Fraser [1982] HCA 37; (1982) 153 CLR 270, 274 (Mason J); Victoria v Commonwealth (1996) 187 CLR 416, 480–2 (Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ) (‘Industrial Relations Act Case’).
[121] See Walker v Baird [1892] UKLawRpAC 41; [1892] AC 491, 496–7 (Lord Herschell for Lords Watson, Hobhouse, Herschell, Macnaghten, Morris, Hannen, Sir Richard Couch and Lord Shand); Johnstone v Pedlar [1921] UKHL 1; [1921] 2 AC 262, 272–3 (Viscount Finlay), 276–7 (Viscount Cave), 281, 284 (Lord Atkinson), 295–6 (Lord Phillimore). Both cases were approved by the High Court in Bradley v Commonwealth [1973] HCA 34; (1973) 128 CLR 557, 582 (Barwick CJ and Gibbs J).
[122] See Garnett, above n 7, 715.
[123] Baker v Carr[1962] USSC 42; , 369 US 186, 212 (Brennan J) (1962). See also Seas and Submerged Lands Case [1975] HCA 58; (1975) 135 CLR 337, 388 (Gibbs J); Post Office v Estuary Radio Ltd [1968] 2 QB 740, 753 (Diplock LJ); Petrotimor [2003] FCAFC 3; (2003) 126 FCR 354, 362 (Black CJ and Hill J).
[124] Mabo v Queensland [No 2] [1992] HCA 23; (1992) 175 CLR 1, 31 (Brennan J).
[125] A‑G (UK) v Heinemann Publishers Australia Pty Ltd [1988] HCA 25; (1988) 165 CLR 30, 42 (Mason CJ, Wilson, Deane, Dawson, Toohey and Gaudron JJ) (‘Spycatcher’).
[126] Ibid 40. See also Underhill v Hernandez[1897] USSC 197; , 168 US 250, 252 (Fuller CJ for the Court) (1897); Banco Nacional de Cuba v Sabbatino[1964] USSC 48; , 376 US 398, 416 (Harlan J) (1964); Buttes [1982] AC 888, 933 (Lord Wilberforce).
[127] Underhill v Hernandez[1897] USSC 197; , 168 US 250, 252 (Fuller CJ for the Court) (1897).
[128] Kuwait Airways Corporation v Iraqi Airways Co [Nos 4 and 5] [2002] UKHL 19; [2002] 2 AC 883, 1080–1 (Lord Nicholls); see also at 1108–11 (Lord Hope).
[129] Ibid 1081 (Lord Nicholls).
[130] Ibid. Lord Nicholls noted that ‘a provision of foreign law will be disregarded when it would lead to a result wholly alien to fundamental requirements of justice as administered by an English court’: at 1078.
[131] (2007) 156 FCR 574, 600. Tamberlin J further considered the fact that the case had implications for foreign policy would not be enough to render the dispute non‑justiciable: at 586–7. See also Zelinka, above n 97, 538–9.
[132] Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391, 407 (Hutley JA). A statutory basis for the conclusiveness of facts stated within executive certification has been provided in Consular Privileges and Immunities Act 1972 (Cth) s 12, Diplomatic Privileges and Immunities Act 1967 (Cth) s 14, and International Organisations (Privileges and Immunities) Act 1963 (Cth) s 11.
[133] Duff Development Co Ltd v Government of Kelantan [1924] AC 797, 805–6 (Viscount Cave), 813 (Viscount Finlay), 826–7 (Lord Sumner).
[134] Spycatcher [1988] HCA 25; (1988) 165 CLR 30, 50–1 (Brennan J); Shaw Savill & Albion Co Ltd v Commonwealth [1940] HCA 40; (1940) 66 CLR 344, 363 (Dixon J) (‘Shaw Savill’); Engelke v Musmann [1928] AC 433, 443 (Lord Buckmaster).
[135] James Crawford and W R Edeson, ‘International Law and Australian Law’ in K W Ryan (ed), International Law in Australia (2nd ed, 1984) 71, 130.
[136] Shaw Savill [1940] HCA 40; (1940) 66 CLR 344, 364 (Dixon J). See also Ffrost v Stevenson [1937] HCA 41; (1937) 58 CLR 528, 549 (Latham CJ); A‑G (Cth) v Tse [1998] HCA 36; (1998) 193 CLR 128, 148–9 (Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ).
[137] Petrotimor [2003] FCAFC 3; (2003) 126 FCR 354, 365 (Black CJ and Hill J).
[138] A‑G (Cth) v Tse [1998] HCA 36; (1998) 193 CLR 128, 149 (Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ).
[139] Petrotimor [2003] FCAFC 3; (2003) 126 FCR 354, 366 (Black CJ and Hill J).
[140] A‑G (Cth) v Tse [1998] HCA 36; (1998) 193 CLR 128, 149 (Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ).
[141] Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391, 401 (Hutley JA).
[142] Carl Zeiss Stiftung v Rayner & Keeler Ltd [No 2] [1967] 1 AC 853, 901 (Lord Reid).
[143] EPBC Act ss 3(2)(e)(ii), 24, 225–32. But see EPBC Act s 224(2), which limits the application of div 3 (‘Whales and other cetaceans’):
A provision of [div 3] that has effect in relation to a place outside the outer limits of the Australian Whale Sanctuary applies only in relation to:
(a) Australian citizens; and
(b) persons who:
(i) are not Australian citizens; and
(ii) hold permanent visas under the Migration Act 1958; and
(iii) are domiciled in Australia or an external Territory; and
(c) corporations incorporated in Australia or an external Territory; and
(d) the Commonwealth; and
(e) Commonwealth agencies; and
(f) Australian aircraft; and
(g) Australian vessels; and
(h) members of crews of Australian aircraft and Australian vessels (including persons in charge of aircraft or vessels).
[144] EPBC Act s 5(2).
[145] EPBC Act s 5(1).
[146] EPBC Act s 225(2). See also above nn 59–60 and accompanying text.
[147] HSI v Kyodo (First Application for Leave to Serve) [2004] FCA 1510; (2004) 212 ALR 551, 553 (Allsop J). See EPBC Act s 475.
[148] HSI v Kyodo (First Application for Leave to Serve) [2004] FCA 1510; (2004) 212 ALR 551, 553 (Allsop J).
[149] Ibid 556.
[150] Allsop J noted that in accordance with international comity, courts will generally not adjudicate upon the validity of acts and transactions of a foreign sovereign state: ibid 562.
[151] Ibid 563.
[152] Attorney‑General (Cth), ‘Outline of Submissions of the Attorney‑General of the Commonwealth as Amicus Curiae’, Submission in Humane Society International Inc v Kyodo Senpaku Kaisha Ltd, NSD 1519/2004, 25 January 2005. See also HSI v Kyodo (Second Application for Leave to Serve) [2005] FCA 664 (Unreported, Allsop J, 27 May 2005) [2], [13].
[153] Attorney‑General (Cth), ‘Outline of Submissions of the Attorney‑General of the Commonwealth as Amicus Curiae’, Submission in Humane Society International Inc v Kyodo Senpaku Kaisha Ltd, NSD 1519/2004, 25 January 2005, [14].
[154] Ibid [16].
[155] Ibid [17].
[156] Ibid [20]–[21]. See also HSI v Kyodo (Second Application for Leave to Serve) [2005] FCA 664 (Unreported, Allsop J, 27 May 2005) [16].
[157] See also Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347, 370 (Gummow J).
[158] HSI v Kyodo (Second Application for Leave to Serve) [2005] FCA 664 (Unreported, Allsop J, 27 May 2005) [19].
[159] Ibid [27]. His Honour also believed the matters raised in the Attorney‑General’s submissions ‘would be compounded by the difficulty, if not impossibility’ of enforcing such a court order: at [28].
[160] Ibid [33].
[161] Ibid [37], [43].
[162] HSI, ‘Appellant’s Outline of Argument’, Submission in Humane Society International Inc v Kyodo Senpaku Kaisha Ltd, NSD 995/2005, 15 November 2005, [12].
[163] Ibid [15].
[164] Ibid [16]. See also HSI v Kyodo (First Application for Leave to Serve) [2004] FCA 1510; (2004) 212 ALR 551, 561–3 (Allsop J).
[165] HSI v Kyodo (Full Court) (2006) 154 FCR 425, 430 (Black CJ and Finkelstein J), citing R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte [2000] 1 AC 61, 107 (Lord Nicholls).
[166] HSI v Kyodo (Full Court) (2006) 154 FCR 425, 429–30 (Black CJ and Finkelstein J).
[167] Ibid 431. See EPBC Act ss 479(1)(a), (1)(c).
[168] HSI v Kyodo (Full Court) (2006) 154 FCR 425, 430 (Black CJ and Finkelstein J).
[169] Ibid 434–5.
[170] See Oceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32; (1988) 165 CLR 197, 238–9 (Brennan J).
[171] HSI v Kyodo (Full Court) (2006) 154 FCR 425, 435 (Moore J).
[172] Ibid 428 (Black CJ and Finkelstein J).
[173] Section 51(xxix) extends to matters or things geographically situated outside Australia: Seas and Submerged Lands Case [1975] HCA 58; (1975) 135 CLR 337, 471 (Mason J). The Australian Whale Sanctuary would constitute an area ‘external to the continent of Australia and the island of Tasmania’: at 360 (Barwick CJ); see also at 470–1 (Mason J), 497–8 (Jacobs J). In addition, ‘laws which regulate conduct within Australia by Australians may be laws with respect to external affairs [if they are] with respect to a subject‑matter which involved a relationship with other countries’: Koowarta v Bjelke‑Peterson [1982] HCA 27; (1982) 153 CLR 168, 191 (Gibbs CJ).
[174] [1991] HCA 32; (1991) 172 CLR 501, 632.
[175] Ibid 632 (Dawson J):
the power extends to places, persons, matters or things physically external to Australia. The word ‘affairs’ is imprecise, but is wide enough to cover places, persons, matters or things. The word ‘external’ is precise and is unqualified. If a place, person, matter or thing lies outside the geographical limits of the country, then it is external to it and falls within the meaning of the phrase ‘external affairs.’
See also the discussion of the other members of the Court: at 528–31 (Mason CJ), 599–603 (Deane J), 695–6 (Gaudron J), 712–14 (McHugh J). The modern doctrine as to the scope of the external affairs power has been subsequently applied in Industrial Relations Act Case (1996) 187 CLR 416, 485 (Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ); XYZ v Commonwealth [2006] HCA 25; (2006) 227 CLR 532, 552 (Gummow, Hayne and Crennan JJ).
[176] See also Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1, 300–1 (Dawson J) (‘Tasmanian Dam Case’).
[177] XYZ v Commonwealth [2006] HCA 25; (2006) 227 CLR 532, 547 (Gummow, Hayne and Crennan JJ).
[178] R v Burgess; Ex parte Henry [1936] HCA 52; (1936) 55 CLR 608, 669 (Dixon J).
[179] Zachariassen v Commonwealth [1917] HCA 77; (1917) 24 CLR 166, 181 (Barton, Isaacs and Rich JJ); Polites v Commonwealth [1945] HCA 3; (1945) 70 CLR 60, 68–9 (Latham CJ), 77 (Dixon J), 80–1 (Williams J).
[180] Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273, 287 (Mason CJ and Deane J). See also Yager v The Queen [1977] HCA 10; (1977) 139 CLR 28, 43–4 (Mason J).
[181] Re Woolley; Ex parte Applicant M276/2003 (2004) 225 CLR 1, 71 (Kirby J); Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, 38 (Brennan, Deane and Dawson JJ); Yager v The Queen [1977] HCA 10; (1977) 139 CLR 28, 43–4 (Mason J). Cf Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273, 287 (Mason CJ and Deane J).
[182] Hindmarsh Island Bridge Case [1998] HCA 22; (1998) 195 CLR 337, 417–18 (Kirby J). See also Polites v Commonwealth [1945] HCA 3; (1945) 70 CLR 60, 69 (Latham CJ), 79 (McTiernan J).
[183] See Hindmarsh Island Bridge Case [1998] HCA 22; (1998) 195 CLR 337, 417–18 (Kirby J) (‘[i]t does not authorise the creation of ambiguities by reference to international law where none exist’); ICI Australia Operations Pty Ltd v Fraser [1992] FCA 120; (1992) 34 FCR 564, 569–70 (Black CJ, Neaves and von Dousa JJ); Minister for Foreign Affairs and Trade v Magno [1992] FCA 566; (1992) 37 FCR 298, 304 (Gummow J).
[184] Polites v Commonwealth [1945] HCA 3; (1945) 70 CLR 60, 69 (Latham CJ), 78 (Dixon J), 81 (Williams J); Horta v Commonwealth [1994] HCA 32; (1994) 181 CLR 183, 195 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ); Al‑Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562, 591 (McHugh J).
[185] Cf Shipping Corporation of India Ltd v Gamlen Chemical Co (A/Asia) Pty Ltd (1980) 147 CLR 142, 158–60 (Mason and Wilson JJ).
[186] Acts Interpretation Act 1901 (Cth) s 15AB(2)(d).
[187] Acts Interpretation Act 1901 (Cth) s 15AB(1)(b)(i).
[188] Acts Interpretation Act 1901 (Cth) s 15AB(1)(b)(ii).
[189] Commonwealth, Parliamentary Debates, Senate, 2 July 1998, 4795–8 (Robert Hill, Minister for the Environment).
[190] Acts Interpretation Act 1901 (Cth) s 15AB(2)(f). See, eg, ICI Australia Operations Pty Ltd v Fraser [1992] FCA 120; (1992) 34 FCR 564, 568–70 (Black CJ, Neaves and von Dousa JJ).
[191] EPBC Act ss 196–196E, 207B.
[192] EPBC Act s 9(2). ATEP Act s 3 defines a permit as ‘a permit in force under Part 2 [‘Conservation of Antarctic fauna and flora’] of this Act’ and a ‘recognised foreign authority’ as including:
a permit, authority or arrangement that … authorises the carrying on of an activity in the Antarctic and … has been issued, given or made by a Party (other than Australia) to the Madrid Protocol that has accepted under that Protocol the same obligations as Australia in relation to the carrying on of that activity in the Antarctic.
[193] [1982] AC 888, 938 (Lord Wilberforce). The ‘embarrassment’ principle was articulated in Moore v Mitchell, 30 F 2d 600, 604 (Learned Hand J) (2nd Cir, 1929) and was accepted by Kingsmill Moore J in Peter Buchanan Ltd v McVey [1955] AC 516, 528–9 (High Court of Eire). See also Spycatcher [1988] HCA 25; (1988) 165 CLR 30, 43–4 (Mason CJ, Wilson, Deane, Dawson, Toohey and Gaudron JJ); Garnett, above n 7, 724.
[194] Cf below Part V(C).
[195] HSI v Kyodo (Full Court) (2006) 154 FCR 425, 428–9 (Black CJ and Finkelstein J). In dissent, Moore J stated that but for one consideration, he would have granted leave. Even though the applicant had demonstrated an arguable case involving issues of great public importance, the ‘almost certain futility of the litigation the applicant [sought] to pursue’ did not satisfy Moore J that leave should be granted: at 436.
[196] Namely, intentionally treating and possessing whales in contravention of the EPBC Act
ss 229–30: HSI v Kyodo (First Application for Leave to Serve) [2004] FCA 1510; (2004) 212 ALR 551, 553 (Allsop J).
[197] See HSI v Kyodo (Full Court) (2006) 154 FCR 425, 429 (Black CJ and Finkelstein J). See also EPBC Act ss 229–30.
[198] HSI v Kyodo (Full Court) (2006) 154 FCR 425, 429 (Black CJ and Finkelstein J). See also EPBC Act s 224(2).
[199] Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307, 354 (Gummow and Crennan JJ).
[200] HSI v Kyodo (First Application for Leave to Serve) [2004] FCA 1510; (2004) 212 ALR 551, 553 (Allsop J).
Cf Bradley v Commonwealth [1973] HCA 34; (1973) 128 CLR 557, 582–3 (Barwick CJ and Gibbs J); Koow-
arta v Bjelke‑Petersen [1982] HCA 27; (1982) 153 CLR 168, 224 (Mason J); Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292, 305 (Mason CJ and McHugh J).
[201] EPBC Act ss 475(6)–(7).
[202] Re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257, 265 (Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ).
[203] HSI v Kyodo (Full Court) (2006) 154 FCR 425, 432–3 (Black CJ and Finkelstein J).
[204] Ibid 433.
[205] HSI v Kyodo (Injunction) (2008) 165 FCR 510, 522.
[206] Ibid 525.
[207] Ibid.
[208] EPBC Act ss 303DB, 303DD.
[209] Commonwealth, Gazette: Special, No S 489, 1 December 2004.
[210] Re HSI and Minister for the Environment [2006] AATA 298; (2006) 93 ALD 640, 641 (Olney DP, Senior Member J Kelly and Member I R Way). See also Commonwealth, Gazette: Government Notices, No 48, 1 December 2004, 4033; EPBC Act ss 303FN, 303GJ(1)(h).
[211] Re HSI and Minister for the Environment [2006] AATA 298; (2006) 93 ALD 640, 644 (Olney DP, Senior Member J Kelly and Member I R Way); EPBC Act s 303FN(3)(b).
[212] See EPBC Act s 303FT(4)(c).
[213] HSI, ‘HSI Calls for Specialist Environment Court after Tribunal Abandons Endangered Southern Bluefin Tuna to Extinction’ (Press Release, 3 April 2006). However, as the Tribunal noted, Australia has a ‘power to veto any proposed decision by the [SBT Commission] on total allowable catch or quota allocation’: Re HSI and Minister for the Environment [2006] AATA 298; (2006) 93 ALD 640, 645 (Olney DP, Senior Member J Kelly and Member I R Way).
[214] Ibid 648.
[215] Fisheries Management Act 1991 (Cth) s 17; EPBC Act ss 146, 148(1)(a).
[216] EPBC Act s 148(1)(b). Section 153 also provides for the endorsement and accreditation of a plan of management under the Fisheries Management Act 1991 (Cth), which has been made pursuant to an agreement within the meaning of EPBC Act s 146.
[217] Australian Fisheries Management Authority (Cth), Assessment Report — Southern Bluefin Tuna (2002) (‘AFMA Assessment Report’). See also Department of Environment and Heritage (Cth), Strategic Assessment of the Southern Bluefin Tuna Fishery (2004) (‘Strategic Assessment Report’).
[218] AFMA Assessment Report, above n 217, iv. See also Strategic Assessment Report, above n 217, 32; Re HSI and Minister for the Environment [2006] AATA 298; (2006) 93 ALD 640, 649 (Olney DP, Senior Member J Kelly and Member I R Way).
[219] AFMA Assessment Report, above n 217, iii. See also Re HSI and Minister for the Environment [2006] AATA 298; (2006) 93 ALD 640, 650 (Olney DP, Senior Member J Kelly and Member I R Way).
[220] Strategic Assessment Report, above n 217, 8. See also Re HSI and Minister for the Environment [2006] AATA 298; (2006) 93 ALD 640, 650 (Olney DP, Senior Member J Kelly and Member I R Way).
[221] Strategic Assessment Report, above n 217, 8.
[222] Re HSI and Minister for the Environment [2006] AATA 298; (2006) 93 ALD 640, 648 (Olney DP, Senior Member J Kelly and Member I R Way).
[223] EPBC Act s 303FN.
[224] Re HSI and Minister for the Environment [2006] AATA 298; (2006) 93 ALD 640, 651−6 (Olney DP, Senior Member J Kelly and Member I R Way).
[225] Ibid 647. See also CCSBT arts 8(3)(a), (5).
[226] Re HSI and Minister for the Environment [2006] AATA 298; (2006) 93 ALD 640, 655 (Olney DP, Senior Member J Kelly and Member I R Way).
[227] Ibid, paraphrasing Mr Hurry.
[228] Ibid, quoting Mr Hurry.
[229] Ibid 655–6.
[230] Ibid 656.
[231] Ibid.
[232] Ibid 657.
[233] Timor‑Leste was first a Portuguese colony, which was then subsumed within Indonesia before coming under United Nations administration, after which it finally gained independence. The history of Timor‑Leste in this regard, including the various delimitation agreements that have been in place, is set out in the judgment of Beaumont J in Petrotimor [2003] FCAFC 3; (2003) 126 FCR 354,
388–99.
[234] The Timor Sea ‘is estimated to contain the world’s 23rd largest oil field, with reserves of five billion barrels of oil and 50 trillion feet of liquid natural gas’: Katsumi Ishizuka, ‘Australia’s Policy towards East Timor’ (2004) 93 The Round Table 271, 277. Australia and Timor‑Leste have agreed to defer the delimitation of the continental shelf for 50 years, during which time it is anticipated that the Greater Sunrise gas field will be fully exploited under the terms of a bilateral treaty between Australia and Timor‑Leste: see Treaty between Australia and the Democratic Republic of Timor‑Leste on Certain Maritime Arrangements in the Timor Sea, signed 12 January 2006, [2007] ATS 12 (entered into force 23 February 2007). See generally Clive Schofield, ‘Minding the Gap: The Australia–East Timor Treaty on Certain Maritime Arrangements in the Timor Sea (CMATS)’ (2007) 22 International Journal of Marine and Coastal Law 189.
[235] Signed 11 December 1989, [1991] ATS 9 (entered into force 9 February 1991).
[236] Timor Gap Treaty art 2.
[237] Timor Gap Treaty art 2.
[238] Namely, ConocoPhillips (91‑12) Pty Ltd, ConocoPhillips JPDA Pty Ltd and Phillips Petroleum Timor Sea Pty Ltd: Petrotimor [2003] FCAFC 3; (2003) 126 FCR 354, 355 (Beaumont J).
[239] See ibid 385 (Beaumont J).
[240] Ibid 383.
[241] Ibid 368–9 (Black CJ and Hill J).
[242] This question had been raised before the High Court in Horta v Commonwealth [1994] HCA 32; (1994) 181 CLR 183. There, the Court did not decide on the validity of the Timor Gap Treaty as it was enough in the context of that judgment to determine that the laws adopted on the basis of the treaty were constitutionally valid: at 195 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ). As a result of this decision, the Court was not required to address issues related to justiciability: at 195–6.
[243] Namely, the Petroleum (Australia–Indonesia Zone of Cooperation) Act 1990 (Cth) and the Maritime Legislation Amendment Act 1994 (Cth): see Petrotimor [2003] FCAFC 3; (2003) 126 FCR 354, 380 (Beaumont J).
[244] Petrotimor [2003] FCAFC 3; (2003) 126 FCR 354, 386 (Beaumont J).
[245] Ibid 360 (Black CJ and Hill J).
[246] Ibid 409 (Beaumont J).
[247] Ibid 383.
[248] Ibid 360–2 (Black CJ and Hill J).
[249] Ibid 361–2.
[250] Ibid 369–70. See above n 193 and accompanying text.
[251] Ibid 369–72. See also Buttes [1982] AC 888, 938 (Lord Wilberforce).
[252] Petrotimor [2003] FCAFC 3; (2003) 126 FCR 354, 373–4 (Black CJ and Hill J).
[253] Ibid 373.
[254] Ibid 414–15.
[255] Ibid 415.
[256] Ibid 415–16. In taking this approach, Beaumont J was well aligned with the approach advocated by Koh in addressing separation of powers questions: Koh, above n 8, 2383–6.
[257] [1975] HCA 58; (1975) 135 CLR 337, 388.
[258] [1992] HCA 23; (1992) 175 CLR 1, 31–2.
[259] Petrotimor [2003] FCAFC 3; (2003) 126 FCR 354, 362 (Black CJ and Hill J).
[260] Ibid 361 (Black CJ and Hill J). Beaumont J disputed that the delimitation principles of the Continental Shelf Convention had been incorporated into the Seas and Submerged Lands Act, considering instead that only the definition had been drawn into the Australian legislation: at 412.
[261] Continental Shelf Convention art 6(1) reads:
Where the same continental shelf is adjacent to the territories of two or more States whose coasts are opposite each other, the boundary of the continental shelf appertaining to such States shall be determined by agreement between them. In the absence of agreement, and unless another boundary line is justified by special circumstances, the boundary is the median line, every point of which is equidistant from the nearest points of the baselines from which the breadth of the territorial sea of each State is measured.
This formula was changed with the adoption of UNCLOS to permit states even more freedom in determining their maritime boundaries: see above nn 49–50 and accompanying text.
[262] See, eg, Continental Shelf (Libyan Arab Jamahiriya v Malta) [1985] ICJ Rep 13; Land, Island and Maritime Frontier Dispute (El Salvador v Honduras) [1992] ICJ Rep 351; Delimitation of the Continental Shelf between the United Kingdom of Great Britain and Northern Ireland, and the French Republic (United Kingdom v France) (1977) 18 RIAA 3; Delimitation of the Continental Shelf between the United Kingdom of Great Britain and Northern Ireland, and the French Republic (United Kingdom v France) (1978) 18 RIAA 271; Delimitation of the Maritime Boundary between Guinea and Guinea‑Bissau (Guinea v Guinea‑Bissau) (1985) 19 RIAA 149; Delimitation of Maritime Areas between Canada and France (Canada v France) (1992) 21 RIAA 265.
[263] Petrotimor [2003] FCAFC 3; (2003) 126 FCR 354, 365–6 (Black CJ and Hill J). Their Honours further considered, without deciding the issue, that there was a role for the Court under the Seas and Submerged Lands Act since Parliament had implicitly excluded the executive from its traditional role of declaring boundaries in setting out the manner of exercise of its power through proclamation: at 363, 365.
[264] Ibid 368.
[265] Ibid.
[266] Ibid 369.
[267] Ibid 415–16.
[268] Ibid 416–18. The exception was the claim for breach of confidence.
[269] Ibid 370.
[270] Ibid 370–2.
[271] Ibid 416.
[272] See generally Sam Blay and Karen Bubna‑Litic, ‘The Interplay of International Law and Domestic Law: The Case of Australia’s Efforts to Protect Whales’ (2006) 23 Environmental and Planning Law Journal 465, 482–3, discussing various ways by which the courts may take account of international law in their judgments.
[273] UNCLOS art 64.
[274] It may well be the case that a state will wish to take into account a broad range of factors, including political, economic and social as well as legal factors, in managing its fisheries.
[275] Benvenisti, above n 11, 273. This interaction between national courts has been analysed by other commentators: see, eg, Anne‑Marie Slaughter, ‘A Typology of Transjudicial Communication’ (1994) 29 University of Richmond Law Review 99; Knop, above n 5.
[276] Benvenisti, above n 11, 247, 249–51.
[277] Ibid 249: ‘If only one national court adopted assertive policies, it would face the danger of being singled out as an individual troublemaker whose jurisprudence does not reflect general state practice.’
[278] Commentators have noted the international controversies provoked by the case: see generally Blay and Bubna‑Litic, above n 272; Donald K Anton, ‘False Sanctuary: The Australian Antarctic Whale Sanctuary and Long‑Term Stability in Antarctica’ (2008) 8 Sustainable Development Law and Policy 17; Davis, above n 59. While acknowledging this controversy, Chris McGrath, junior counsel for HSI, has argued that there exist bases under international law justifying Australia’s enforcement of its legislation in the maritime area adjacent to the AAT: Chris McGrath, ‘The Japanese Whaling Case’ (2005) 22 Environmental and Planning Law Journal 250; McGrath, ‘Australia Can Lawfully Stop Whaling within Its Antarctic EEZ’, above n 57.
[279] See generally Andrew Hutchinson, ‘Baleen Out the IWC: Is International Litigation an Effective Strategy for Halting the Japanese Scientific Whaling Program?’ (2006) 3 Macquarie Journal of International and Comparative Environmental Law 1.
[280] EPBC Act s 475.
[281] This is a point that was recognised throughout the proceedings. The applicant maintained that this point did not, however, make the order futile as a matter of Australian law: see, eg, HSI v Kyodo (Full Court) (2006) 154 FCR 425, 437 (Moore J).
[282] Under international law, a coastal state’s law does not usually apply to vessels entering a port due to distress or force majeure: see R R Churchill and A V Lowe, The Law of the Sea (3rd ed, 1999) 68.
[283] This is one of the points used by the applicants to justify the injunction: HSI, ‘Applicant’s Outline of Submissions for Leave to Serve outside the Jurisdiction’, Submission in Humane Society International Inc v Kyodo Senpaku Kaisha Ltd, NSD 1519/2004, 12 November 2004, [31]; HSI, ‘Applicant’s Reply to the Submissions of the Attorney‑General and to the Court’s Questions’, Submission in Humane Society International Inc v Kyodo Senpaku Kaisha Ltd, NSD 1519/2004, 10 February 2005, [10]; HSI, ‘Appellant’s Outline of Argument’, Submission in Humane Society International Inc v Kyodo Senpaku Kaisha Ltd, NSD 995/2005, 15 November 2005, [35].
[284] See also Blay and Bubna‑Litic, above n 272, 481, commenting on the persuasiveness of Allsop J’s judgment and stating that it ‘accord[ed] with the reality of the regulation of whaling.’
[285] HSI v Kyodo (First Application for Leave to Serve) [2004] FCA 1510; (2004) 212 ALR 551, 562.
[286] HSI v Kyodo (Full Court) (2006) 154 FCR 425, 429 (Black CJ and Finkelstein J):
The Parliament may be taken to know about the remoteness and general conditions pertaining to the [Australian Whale] Sanctuary which its legislation has established. It may also be taken to have appreciated that the circumstances under which its laws may be enforced in relation to the Sanctuary are quite exceptional. It nevertheless made no provision for the exclusion of the general enforcement provisions of the EPBC Act to matters occurring within the Sanctuary, even where those matters relate to conduct by foreign persons aboard foreign vessels.
[287] HSI v Kyodo (Injunction) (2008) 165 FCR 510, 515 (Allsop J).
[288] ‘[T]he primary judge was in error in attaching weight to what we would characterise as a political consideration’: HSI v Kyodo (Full Court) (2006) 154 FCR 425, 430 (Black CJ and Finkelstein J). See also HSI v Kyodo (Injunction) (2008) 165 FCR 510, 516–17, where Allsop J notes that the Full Court broadly characterised both international law questions and non‑justiciable political positions flowing from the uncertain legal situation as being ‘political’.
[289] See ‘Customs Ship to Shadow Japanese Whalers’, ABC News (online), 19 December 2007 <http://www.abc.net.au/news/stories/2007/12/19/2122840.htm> .
[290] See Chris Griffith, Elizabeth Gosch and Mark Dodd, ‘Two Activists Captured on a Japanese Whaling Vessel Have Been Returned to Their Ship the Steve Irwin’, The Australian (online), 18 January 2008 <http://www.theaustralian.news.com.au/story/0,25197,23069680-601,00.html> .
[291] See McGrath, ‘Australia Can Lawfully Stop Whaling within Its Antarctic EEZ’, above n 57, 2, 20.
[292] See above n 193 and accompanying text.
[293] HSI, ‘Appellant’s Outline of Argument’, Submission in Humane Society International Inc v Kyodo Senpaku Kaisha Ltd, NSD 995/2005, 15 November 2005, [29].
[294] Nor does it present an instance of a clear violation of international law, which was the exception to the Buttes principle (of non‑justiciability where there are no judicial or manageable standards by which to judge the issues) set forth in Kuwait Airways [2002] UKHL 19; [2002] 2 AC 883, 1080–1 (Lord Nicholls): see above Part IV.
[295] ICRW art 8(1).
[296] HSI v Kyodo (Injunction) (2008) 165 FCR 510, 516 (Allsop J).
[297] See HSI, ‘Applicant’s Outline of Submissions for Leave to Serve outside the Jurisdiction’, Submission in Humane Society International Inc v Kyodo Senpaku Kaisha Ltd, NSD 1519/2004, 12 November 2004, [32].
[298] Anton, above n 278, 19, quoting Letter from Tony Burslem, Australian Government Solicitor, to Ngaire Ballment, Associate to Justice Allsop, 12 December 2007, which stated that the ‘Government believes that the matter would best be considered by the Court without the Government expressing its view.’ See also McGrath, ‘Australia Can Lawfully Stop Whaling within Its Antarctic EEZ’, above n 57, 2.
[299] See, eg, Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347, 373 (Gummow J).
[300] See, eg, Spycatcher [1988] HCA 25; (1988) 165 CLR 30, 47 (Mason CJ, Wilson, Deane, Dawson, Toohey and Gaudron JJ).
[301] Petrotimor [2003] FCAFC 3; (2003) 126 FCR 354, 415.
[302] Cf Blay and Bubna‑Litic, above n 272, 486, 488, arguing this point in relation to HSI v Kyodo (Full Court) (2006) 154 FCR 425.