Case: Al-Kateb v Godwin [2004] HCA 37 ; (2004) 219 CLR 562
Outcome: followed
The claim that there is a serious question to be tried as to the "sterilisation" of the applicant's common law rights to instruct legal advisers and obtain legal advice can be rejected on any one of a number of grounds. The respondent's submission was that, assuming such a common law right to exist, it could not prevail over the statutory obligation in the Act to remove the applicant. It is clear, in my opinion, that such common law right to instruct legal advisers as may exist and the applicant never articulated the precise basis or scope of this alleged right cannot entail a right in the applicant to remain in Australia. It is true, as the respondent submitted, that the statutory obligation to remove the applicant could displace the applicant's common law rights. Although I would not readily impute to the legislature an intention to displace those rights absent a clear statement of that intention, in my opinion the mandatory command of s 198 is expressed in clear and unambiguous language. In this regard, I refer to the decision of the High Court on the interpretation, in a different factual context, of ss 189 , 196 and 198 of the Act in Al-Kateb v Godwin [2004] HCA 37 ; (2004) 219 CLR 562 and, in particular, at 581 per McHugh J and at 643 per Hayne J (Heydon J agreeing at 662-3). Their Honours held that the provisions, being sufficiently clear, could not be read as subject to any intention not to affect fundamental rights. The shorter answer, however, is that neither the power to remove the applicant, nor the actual removal of the applicant, displaces any cause of action he may have against the Commonwealth or his right to instruct legal advisers in connection with such cause of action. I was told that his personal circumstances in Indonesia are such that it will be practically difficult for him to instruct legal advisers in Australia. That may be so, but does not constitute sufficient reason to restrain his proposed removal. 10 The claim that there is a serious question to be tried in relation to a right said to arise from the Convention was put on a somewhat shifting basis. It is plain that the Convention itself cannot be the source of rights under Australian law. Some provisions of the Convention have been incorporated into Australian law in the Consular Privileges and Immunities Act 1972 (Cth) but the applicant did not seek to rely upon this Act. The applicant cited Article 36 of the Convention, which deals with communication between consular officials and nationals of the officials' sending state, but that article is not incorporated into the domestic law. The applicant expressly did not contend that the rights expressed in the article had attained the status of customary international law and, even if they had, it by no means follows that they are for that reason enforceable by this Court. The applicant submitted primarily that the Convention, ratified by the Commonwealth, would be "a relevant consideration in relation to the ability of the Minister to remove" a foreign national from Australia. It was not made clear whether the applicant used the phrase "relevant consideration" in the administrative law sense, namely, a condition of the lawful exercise of the statutory power to deport, or whether the submission was as to the interpretation of the scope of the power. Counsel for the respondents evidently understood the submission against them to be of the latter form and submitted that although unincorporated treaties can be used as an extrinsic aid to interpretation, this was not an appropriate case. It matters little, for the applicant cannot succeed on either basis, as I will explain. 11 The proper use of unincorporated treaties in the interpretation of statutes is limited. The Act is not one which gives effect to the Convention. Nevertheless, Parliament is presumed to have intended to legislate in conformity with Australia's international obligations: Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64 ; (1992) 176 CLR 1 at 38 per Brennan, Deane and Dawson JJ. That presumption is, however, rebutted by unambiguous language: Polites v Commonwealth [1945] HCA 3 ; (1945) 70 CLR 60. Although ambiguity in a statute may be resolved in favour of the interpretation consistent with those obligations, no relevant ambiguity was identified by the applicant in the present case. Nor is any ambiguity discernible. I refer again to the decision of the High Court in Al-Kateb [2004] HCA 37 ; 219 CLR 562 and especially at 642 per Hayne J and at 661 per Callinan J. It is not open on the language of the Act to interpret the power to remove an unlawful non-citizen as subject to the provisions of the Convention, least of all unincorporated provisions.