SZTAL; SZTGM v Minister for Immigration and Border Protection & Anor [2017] HCATrans 68 (5 April 2017)

Last Updated: 5 April 2017

[2017] HCATrans 068

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S272 of 2016

B e t w e e n -

SZTAL

Appellant

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

Office of the Registry
Sydney No S273 of 2016

B e t w e e n -

SZTGM

Appellant

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

KIEFEL CJ
GAGELER J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 5 APRIL 2017, AT 10.20 AM

Copyright in the High Court of Australia

____________________

MR S.B. LLOYD, SC: If it please the Court, I appear with MR B. MOSTAFA, for the appellants in both matters. (instructed by Fragomen)

MR S.P. DONAGHUE, QC, Solicitor-General of the Commonwealth of Australia: If it please the Court, I appear with MR M.J. SMITH, for the first respondent in both matters. (instructed by Australian Government Solicitor)

KIEFEL CJ: Yes, Mr Lloyd.

MR LLOYD: This appeal concerns the content of the intent requirement contained in key definitions in the Migration Act. The question for the Court is whether the requirements are satisfied when the person who performs the relevant act of punishment or treatment knows that the act will, in the ordinary course of events, inflict pain or suffering or cause extreme humiliation. We contend that that question should be answered “yes”. The alternative, as the courts below and the Tribunal concluded and the Minister contends, that the intent requirements are met only where the acts are done with the actual subjective desire to cause harm.

Our submission will proceed as follows. We will go directly to the key aspects of the legislation in issue, the Migration Act, we will then submit that the intent language used in the definitions is capable of bearing the meaning for which we contend. We will then – noting that it is common ground that the intent language was drawn from the Convention against Torture, we will next consider the international jurisprudence and materials relevant to the intent language in that context and then, finally, we will consider the purpose of the so-called “complementary protection regime” and related extrinsic material which, we say, reinforces the construction for which we contend.

May I go first to the Migration Act? We had the version of the Act at the time as an annexure to our submissions. I think my friends have prepared a bundle. I am not sure if that has been provided to the Court. But, in either case, I would start with section 36 of the Act – 36(2) sets out a familiar provision which contains:

A criterion for a protection visa –

which contains several alternatives. Paragraph (a) is one which the Court has looked at many times and it, what was at least at the relevant time, in the form whereby a person was entitled to a protection visa if:

Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol –

So, in that way, the Act did not seek to bring in the substantive terms of the Convention but just went to the result of the Convention or, more strictly speaking, the protocol. This case concerns paragraph (aa). The provision is made in respect of other non-refoulement obligations owed by Australia. One looks to see if a necessary and foreseeable consequence of removing a person from Australia to a third country is that there is a real risk that the removed person will suffer significant harm. Subsection 2A then – I was going to say it defines significant harm but perhaps strictly it does not do that. It indicates five things that will constitute significant harm non-exhaustively.

Relevant for the purposes of this matter, we draw the Court’s attention to paragraphs (c) torture, (d) cruel or inhuman treatment or punishment, and (e) degrading treatment or punishment. Those terms are all defined in section 5. If I can go back to section 5 and start with the definition of torture; we observe that this definition is in significant respects identical to the language of the Convention against Torture definition in Article 1 of that definition, and certainly the opening expression about:

any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted -

is all taken directly from the Convention against Torture. Now, going from there to the definition of “cruel or inhuman treatment or punishment”, paragraphs (a) and (b) use the same language of “intentionally inflicted” from the definition of “torture”. The definition refers in paragraph (c) to Article 7 of the Covenant. The Covenant is itself defined to mean “the International Covenant on Civil and Political Rights”. The ICCPR does not define the expression “cruel, inhuman or degrading treatment or punishment” so that is undefined in the treaty.

Article 7 simply prohibits such treatment or punishment and we say that in paragraph (c) the definition there is designed to ensure that the statutory expression in paragraphs (a) and (b) does not exceed the treaty meaning because there is no treaty definition.

What we will ultimately say is that this was Parliament’s bona fide effort to capture the content of Australia’s non-refoulement obligations under Article 7 of the ICCPR and in fear of that language being construed too broadly, paragraph (c) is put in to ensure that it only captures people to whom Australia does have non-refoulement obligations.

The definition of “degrading treatment or punishment” uses a slightly different expression for intent. We do not say and we do not understand the Minister to say that “intended to cause” has any different meaning from “intentionally inflicted”. We say it therefore has the same meaning as in the definition of “torture” which has, we say, the same meaning as in the Torture Convention, which is a codification of customary international law, as I will come to in due course.

Because the ICCPR does not contain definitions for these forms of prescribed treatment or punishment, the Migration Act could not simply draw on that language as was done with torture where the language is very similar to the Convention. Rather, as we will develop, the language was selected to reflect existing international jurisprudence so that the visa processing system under the Migration Act could be aligned to Australia’s non-refoulement obligations, and we develop that in the last section of my submissions.

I turn now to the oral outline – I am now moving on to what is paragraph 2. We contend that the concept of “intent to inflict pain, suffering or humiliation” is capable of bearing the meaning that sees the intent established where the actor performs an act knowing that the act will, in the ordinary course of events, inflict pain, suffering or humiliation.

To support that, I will take the Court to several authorities. And if I can just indicate, all we seek from these authorities is to show that “intent” can have that meaning. What we then say is – and we do not deny that it can also have the narrower meaning for which the Minister contends – once it is accepted that there are two meanings, one then looks for which one is the correct meaning in the context of this legislation.

The first case I would go to is the decision of the High Court in Vallance v The Queen [1961] HCA 42; (1961) 108 CLR 56. The case involved, amongst other things, construction of section 13 of the Criminal Code of Tasmania which is set out, conveniently, in an asterisk on the bottom of the first page and it involves construction of the word “intentional”.

Then, if I take the Court to the reasons of Justice Dixon – Chief Justice Dixon – on page 59. At about point 5 on the page, the Court will see in italics, the words:

Kenny, Outlines of Criminal Law –

that is a text. And, his Honour quotes:

“ . . . in law it is clear that the word ‘intention’ like the word ‘malice’ covers all consequences whatever which the doer of an act foresees as likely to result from it, whether he does the act with an actual desire of producing them or only in recklessness as to whether they ensue or not”.

Then, over on to page 61, his Honour – about six lines from the top, maybe seven:

But in s. 13(1) I do not read the word “intentional” as bearing a meaning which requires that the end must be positively desired. I take it in the sense explained by Sir Courtney Kenny, an explanation he gave when he published his book in 1902. He contrasts it with the more ordinary use of the word which excludes a result that a man does not desire but foresees as likely, one the risk of which he runs possibly with regret.

That is one example with a broader meaning. Another instance of that can been seen - - -

EDELMAN J: Is not the difficulty with Kenny’s approach that – particularly in this area of criminal law – is that it is using intention in a context where it runs together notions of actual intent with notions of recklessness?

MR LLOYD: I accept it is no part of our case to say that “intent” in the criminal context will always have that meaning. We do not say that. We just say that “intent” can have that meaning. That is an example of it. I do not use it for anything - - -

EDELMAN J: But, it is an example in a particular area of law where “intent” has been given a specialised meaning to cover situations which, in ordinary usage, would not be regarded as “intent” but might be regarded as recklessness.

MR LLOYD: There may be three tiers of the intent in which recklessness is the third limb for which we are not, particularly, arguing for in this case. There is intent because you actually want to bring about the result. Intent because you have knowledge and you have knowledge that the act you want to do is likely to have a result. Then, the third one is, a lack of care as to what the result would be. Recklessness is usually the third one.

There is some, in our submissions, jurisprudence that suggests – or, at least, authors that suggest that “intentionally inflicted” in this context extends to recklessness. We do not have to go that far and we do not go that far. We say that intent can mean – can embrace the situation where somebody has a mental element of knowing that what they will do is, in the ordinary course of events, will have a result.

He Kaw Teh [1985] HCA 43; 157 CLR 523 is the second case I was going to go to. I will go to the judgment of Justice Brennan, in particular at page 569. At the top of that page, his Honour says:

If an “act” is described so as to include the circumstances in which the muscles are contracted, a different state of mind is applicable, ordinarily called “intent”. Intent, in one form, connotes a decision to bring about a situation so far as it is possible to do so – to bring about an act of a particular kind or a particular result.

His Honour expands upon that idea but then about two lines down he says:

Intent, in another form, connotes knowledge.

Further down on that page, when talking about the differences between “general” and “specific” intent, his Honour says about 8 lines from the bottom:

General intent and specific intent are also distinct mental states. General or basic intent relates to the doing of the act involved in an offence; special or specific intent relates to the results caused by the act done. In statutory offences, general or basic intent is an intent to do an act of the character prescribed by the statute creating the offence; special or specific intent is an intent to cause the results to which the intent is expressed to relate. Both general intent and specific intent may be established by knowledge: the former by knowledge of the circumstances which give the act its character, the latter by knowledge of the probability of the occurrence of the result to which the intent is expressed to relate.

Again, I do not say that this case can in any way bind the Court. I am simply saying that the notion of intent and the two levels of the intent is a recognised phenomenon. In our written submissions we have given other examples including the reasons of Justice McHugh in Peters v The Queen but I will not go to that now but, we say, that that also supports the notion that it has these two meanings.

In the international law context, in particular, in the context of torture – the crime of torture, we take the Court to the decision of the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia in Prosecutor v Kunarac which I believe is No 19 on our list of authorities. That case is a case in which the persons were convicted of rape and they advanced arguments to the effect that they did not have the intent or relevant purpose to fall within the definition of “torture”. The Appeals Chamber addresses that at paragraph 153. If the Court has the same version as me, that would be on page 47. The Chamber says:

The Appellants argue that the intention of the perpetrator was of a sexual nature, which, in their view, is inconsistent with an intent to commit the crime of torture. In this respect, the Appeals Chamber wishes to assert the important distinction between “intent” and “motivation”. The Appeals Chamber holds that, even if the perpetrator’s motivation is entirely sexual, it does not follow that the perpetrator does not have the intent to commit an act of torture or that his conduct does not cause severe pain or suffering, whether physical or mental, since such pain or suffering is a likely and logical consequence of his conduct. In view of the definition, it is important to establish whether a perpetrator intended to act in a way which, in the normal course of events, would cause severe pain or suffering, whether physical or mental, to his victims.

For the moment, I am relying upon that only to show “intent” has the broader meanings that we say. I will return to it to further the significance of - - -

NETTLE J: Mr Lloyd, is that decided before or after the amendments that brought into existence the provisions?

MR LLOYD: Before then.

NETTLE J: Thank you.

GORDON J: That does not refer at all to knowledge of consequences of acts, does it?

MR LLOYD: It refers to - - -

GORDON J: Knowledge or awareness by the perpetrator, what would occur in the normal course of events.

MR LLOYD: Yes.

GORDON J: Or to the knowledge of the probable consequences of an act as an intention to cause those consequences.

MR LLOYD: Yes, well as an intended act which in the normal course of events, which presumes that they are aware of the normal course of events.

EDELMAN J: Yes, but it is the use of the word “intended”. In a sense, if you are relying upon it as a definition, it is a definition which incorporates the very word which it is seeking to define.

MR LLOYD: It may have that element but it is, we say, an example of a case where it goes beyond the idea of a desire to inflict harm. That is the approach of the court below – the subjective actual desire to inflict pain or suffering. That was not thought to be enough. It was enough that you did an act which, in the ordinary course of events, we would say, and therefore the person should be expected to be aware that it would be in the ordinary course of events, that the consequence would flow.

EDELMAN J: It does not necessarily deny that because it is whether the perpetrator intended to act in a way which in the normal course of events would cause severe pain and suffering. There is still the question of what the Appeals Chamber meant by the word “intended”.

MR LLOYD: I accept that, but I say in the context where the argument was that the intent requirement had to be specific, a subjective actual intention to cause pain or harm, and they were only doing the rapes, so they put it, for a sexual motivation or sexual gratification, that was rejected because intent is broader than that.

In a sense – and we say this in our submissions in reply – that would be enough for us to win the appeal without going to the ambit of what we say is the proper meaning of the word “intent”, if that is the correct meaning of it, but we do say that in this context what the court is saying is, the mere fact that you are not wanting to cause harm, you wanted to do the event, it was a voluntary act, you knew what - or should be taken to know what would happen because it would happen in the ordinary course of events, that is enough to establish the requirement of intent.

KIEFEL CJ: The Appeals Chamber seems to be focusing, in relation to consequences, on a causation type scenario. The discussion of intent and what is caused and what might be a consequence are divided into two things. It says:

it does not follow that the perpetrator does not have the intent to commit an act of torture –

Then:

or that his conduct does not cause severe pain or suffering . . . since such pain or suffering is a likely and logical consequence -

When it is talking about the logical consequence of acts, they are only talking about causation. That does not seem to inform any kind of meaning of intent.

MR LLOYD: Well, we say in the case it was advanced on the basis as shown by the earlier paragraphs. They were saying they were not doing it – that it was done for sexual gratification, not with the intent of causing physical pain or suffering, and also not with the purpose – under the definition of “torture” there are purposes as well that have to be done in addition to intent, and they took issue with that. This paragraph only deals with the intent aspect of that argument. Our contention is that they are rejecting the notion that not having a subjective desire to actually inflict the harm is required. They are saying you do not have to have that; it is enough that you are doing something which, in the ordinary course of events, would lead to the pain or suffering. That would be enough to fulfil the intent requirement.

GAGELER J: Mr Lloyd, the sentence begins “In view of the definition”. You might be coming back to this, but what is the definition that is being referred to?

MR LLOYD: That is the definition of “torture”.

KIEFEL CJ: “Any act by which severe pain or suffering . . . is intentionally inflicted”. Reading it with the definition, what do you make of it?

MR LLOYD: What we make of it is we say that the word “intent” can include notions of knowledge of - or foreseeability of consequences of the act done, that if you have the knowledge of those consequences that is enough to constitute intent under the definition of “torture” in the Convention, which I think in this case was being used on the basis that it codifies customary international law.

KIEFEL CJ: Are they saying anything more? This is written in the European style of judgments, which we find a little more obscure than our own. Is the Appeals Chamber saying no more than, even if it is sexual, that it does not necessarily follow that there is no intent? In a sexual crime, pain and suffering follows as a consequence of an intention to engage in a sexual crime. Are they saying anything more than that, that there is really nothing in this fine distinction that the appellant sought to argue between intention of a sexual nature and intention in the context of torture? Both involve the potential infliction of pain and suffering.

MR LLOYD: Yes, well, perhaps we do not say they are saying more than that, but we are saying that that, as your Honour put it, amounts to an acknowledgment that the infliction of pain or harm does not have to be the goal, the subjective desire of what you are doing. If you are doing something which will have that consequence and you are doing it voluntarily then you are intending to do - - -

KIEFEL CJ: Yes, but what I am really trying to say is that they might be saying that if you intend to rape someone you intend to cause them pain and suffering.

MR LLOYD: Yes, well, can I draw the Court - - -

GORDON J: The end of paragraph 155 might help. Is not this section of the judgment dealing with whether or not there can be two purposes? There is a question about motivation for sexual conduct – sexual pleasure versus motivation to inflict.

MR LLOYD: Yes, although I think that they have gone on at that point to talk about the discriminatory purpose. So under the definition of “torture” you have to intend to inflict harm and then it has to be for a purpose and one of the purposes that would fall within the definition is a discriminatory purpose. And they are saying that it can have more than one – something can have more than one purpose and it can still have a discriminatory purpose, even if it has a sexual gratification purpose because the sexual gratification argument was put as an answer both to the intent and the purpose requirements.

EDELMAN J: Is the point one, essentially, that distinguishes between intention and desire so that one can intend an end by desiring the end or one can intend something to occur, even if one does not desire it if that something is a necessary way to achieve the end that the person does desire?

MR LLOYD: That is certainly one element and, perhaps, in support of that, if I take the Court to the Convention – I will not go to that yet.

KIEFEL CJ: But, really, Mr Lloyd, it must be - whatever one says, this must be read in the context of the nature of the act that the Appeals Chamber was dealing with and that is rape.

MR LLOYD: We accept that.

KIEFEL CJ: It gives you a somewhat simpler result than the kind of scenario, the circumstance that we are dealing with.

MR LLOYD: That is true. We will come, at the end of our submissions, to deal with a number of areas where there are differences of outcome between our construction and the Minister’s construction. One is medical experimentation. Now, in Article 7 of the ICCPR it expressly includes reference to medical experimentation as being one of the things that would fall within that expression of “cruel, inhuman or degrading treatment”.

And one can readily imagine a situation where a person undertaking the medical experimentation has awareness that in an ordinary course the experimentation is going to cause pain and suffering and/or extreme humiliation, but does not do it for that purpose. They do not want to do that; they want to develop medical knowledge for some reason.

NETTLE J: Dr Mengele.

MR LLOYD: Dr Mengele. We say, on our construction of intent, that falls within the concept and we say on the desire-based approach it would fall outside of the concept.

KIEFEL CJ: Intention just to one side for the moment, what you have just said brings this to mind. Are we talking in each case of a positive act committed by a person?

MR LLOYD: It could be an omission. I think it is defined as “acts or omissions”.

KIEFEL CJ: Quite. But, we are looking for something – because of the use of the word “inflict” or “cause” we are looking at an act which causes or has an effect upon someone.

MR LLOYD: Yes. So, in our case, it is putting somebody into a prison of substandard circumstances.

KIEFEL CJ: The act is placing them in a pre-existing situation.

MR LLOYD: Placing them in a situation that the person knows would result in suffering or severe pain. We say the finding in this case was that the government of Sri Lanka was aware of their prison conditions. So we get over that hurdle. Where we lost was on the intent requirements. The Tribunal said that the lack of resources to fix those means that it was not done with the intent to cause that harm. Yes, they knew that the harm would be caused or may be caused but they did not want to cause harm. They were not doing it to cause harm. So, therefore, on that approach no matter how long someone stays and no matter how appalling the conditions are, that never engages the provision.

KIEFEL CJ: My inquiry, really, though is that even without the question about what “intent” means, the words used in the Treaties Act and in section 5(1) - “act inflicting”, “act causing” – do not really seem to convey placing someone in a pre-existing situation. There is no act which has itself the effect – there is no causation arising from an act.

MR LLOYD: We would say that putting somebody into a prison of an appropriately horrific standard would be to inflict the pain or harm on the person.

KIEFEL CJ: Where is the act, though?

MR LLOYD: Putting them into the prison.

KIEFEL CJ: I see. Is the decision in Kunarac the high-water mark or is that the high-water mark of jurisprudence? I do not mean that facetiously, but it is the highest point of the jurisprudence for the purpose of your argument.

MR LLOYD: It is certainly the highest court level. There are two other examples we give in the same Tribunal but at the trial chamber rather than the appellate chamber which - - -

EDELMAN J: What has happened, though, in the decade between Kunarac and the enactment of the amendments? Has the treatment of intention in that decision been picked up in commentary or relied upon, or moved into customary international law?

MR LLOYD: Well, we say, yes. It is picked up in the two cases we cite. One of them expressly refers to Kunarac and it is put against us that were they just doing it because they were bound to do it and we say, exactly, they were bound to do it. That is what we say.

KIEFEL CJ: Do they say what it means?

MR LLOYD: I was going to go to it but I will go to it now. There are two. One is Martić which is tab 21, if your Honours have tab but also it is a decision of the Trial Chamber - The Prosecutor v Martić in 2007 and the relevant paragraph is 77.

KIEFEL CJ: I am sorry, Mr Lloyd, was that paragraph 77?

MR LLOYD: Paragraph 77. So, in this matter, the end of paragraph 77 and they are talking about what needs to be established - this is under the heading of “Torture” for the torture count in this case and the court is reciting what is required. At the end of the “Torture” section it says:

In addition, it needs to be established that the perpetrator acted or omitted to act with direct or indirect intent.

Then, one sees that expanded upon in paragraph 79. I am not saying that exact concept is expanded upon but the idea of direct and indirect intent is explained a bit. It says:

The perpetrator must be shown to have acted with direct intent or with indirect intent, that is, in the knowledge that cruel treatment was a likely consequence of his act or omission.

GORDON J: I think this raises - the point I was trying to raise before is that it seems to have been cited for the purpose question which is referable to 155, not – and it is the earlier decision, not a reference to the intent question, both at paragraph 77 talking about whether or not you would need one or two purposes.

MR LLOYD: Well, I mean, I accept it is only one sentence at the end of that paragraph but it is, kind of, in addition, it needs to be established and then they are talking about direct or indirect intent. Now, as we apprehend it, their concept of “indirect intent” embraces our meaning of “intent”.

EDELMAN J: Not necessarily. It might be the point that I put to you before that one always needs to intend an end but if something is necessary to obtain that end, even if you do not desire what it is that is necessary to obtain the end, it is not inconsistent to say that you intend it because you do not desire the pain or the suffering but if it is a necessary way to achieve an end that you do desire then it could comfortably be said to be intended. Maybe that is what is meant by “indirect intention”.

MR LLOYD: Well, what it is saying is indirect intention is enough and so to use the language from paragraph 79 here you might intend to have people held in detention so they cannot escape. You know that because of the conditions of your detention that will result in cruel treatment as the likely consequence of that act or omission and that indirect intent is enough even though you have an ultimate, grander purpose which is more beneficent, assuming caning people is beneficent. It might be in some circumstances.

NETTLE J: This is result intent within the meaning of the Criminal Code, is it?

MR LLOYD: Yes, your Honour. I should say, ultimately, I will be coming to how Australia has enacted the “torture” definition. And, Australia’s enactment of it is unambiguously clear to embrace our meaning. So, they say – the Minister’s position is, well, it is true that we would prosecute people anywhere in the world - because the offence is not limited to just Australia – we would prosecute people anywhere in the world if they do things with the knowledge that harm will happen in the likely course of events. Notwithstanding that we could prosecute them for that, we will still return them to a place where that is going to happen.

That may be how they put it. It depends, in part, on whether they accept, and there is still some ambiguity as to their position as to what they say the international law is. On one view, they dispute our view of the international law. On that position, they would say, yes, we would return them to a place to be tortured or harmed by somebody who we would, in fact, prosecute in certain circumstances which, we say, is a very curious disjunct.

Alternatively – and their argument is, well, either they might admit or they might say, even if our view of the international view is right, the Migration Act is narrower, in which case, the Minister will come to the rescue of all these people and the Minister will – on their view, the Act is narrower than the international – it does not reflect Australia’s non-refoulement obligations but that there is still scope for these people to be protected because the Minister can, under section 417, or the like, use his non-compellable powers at the end of the day. So, we will take issue with that later as well and establish that that is not what the Minister thinks he is doing.

KIEFEL CJ: I think you were going to refer to the other international case, Mr Lloyd.

MR LLOYD: The other one is Limaj. And the relevant paragraph is paragraph 238 – Prosecutor v Limaj:

As for the mens rea required for the crime of torture, the previous jurisprudence of the Tribunal establishes that direct intent is required: the perpetrator must have intended to act in a way which, in the normal course of events, would cause severe pain or suffering, whether physical or mental, to his victims.

Footnote 732 – that is citing paragraph 153.

KIEFEL CJ: That is direct intent, apparently.

MR LLOYD: Sorry, your Honour:

It is irrelevant that the perpetrator may have had a different motivation, if he acted with the requisite intent.

So, that seems to – which also refers back to paragraph 153 which, we say, captures – we say, Kunarac works to bring in – in Kunarac, they did not use the language of direct or indirect intent. Whether this language is consistent with the way it is used in Martic is questionable but it is still clear, we say, that it follows Kunarac.

GAGELER J: Is Judge Kevin Parker Justice Parker of the Supreme Court of Western Australia?

MR LLOYD: I cannot assist your Honour with that.

EDELMAN J: Yes, formerly.

MR LLOYD: Formerly. Thank you, your Honour. I have been somewhat taking a different course but I think I will go back and say that, as I have indicated earlier, we acknowledge that the word “intent” can also have the narrower meaning for which the Minister contends. That is, one looks at the actual subjective purpose or object of the action. This construction has been adopted in certain criminal contexts. It is discussed at some paragraphs in the decision of the court below. I will not take the Court to it, but in particular in paragraphs 53 through to 59 there is discussion of this Court’s decision in Zaburoni and the Queensland Court of Appeal’s decision in Ping, which we accept, in the context of those criminal contexts, the narrower meaning of “intent” was found to apply there.

As I say, we do not deny that you can have that narrower meaning in certain contexts, but we say in the criminal context the selection of the narrower meaning requiring the desire as to the outcome rather than merely the foresight of outcome may reveal a higher gradation of moral culpability. We rely upon some reasons of your Honour Justice Gageler in a case called Miller. The citations are set out in paragraph 23 of our submissions in-chief for that proposition. Obviously, in a criminal context you might have a punishment that is different for somebody who intends to cause pain than in other circumstances.

We only get out of the criminal cases the notion that “intent” can have different contexts or content in different circumstances, and we will say that the court below was wrong, in paragraph 59, to find the decision in Ping to be persuasive. That is one of the errors we say the court below made.

We then turn to what we say are the relevant contextual considerations in this case, and we say that they are the genesis of the language and the purpose of the complementary protection regime, which is to say the purpose of the 2011 amendments and in particular the mischief it was sought to redress.

If I start with the genesis of the phrase “intentionally inflicted”. It is common ground that the definition of “torture” in section 5(1) of the Migration Act and, relevantly, the words “intentionally inflicted” are drawn from the definition of “torture” in Article 1 of the Convention against Torture. I just note paragraph 37 of my friend’s submissions.

It is also common ground that the words “intentionally inflicted” in the definition of “cruel or inhuman treatment or punishment” in section 5(1) have the same meaning as they do in the definition of “torture” and, therefore, the same as in the Convention against Torture definition in Article 1 and we refer to it at paragraph 39 of my friend’s submissions.

We say that we do not understand the Minister to refute that the expression “intended to cause” in the definition of “degrading treatment or punishment” in section 5(1) has a different content - or sorry does not refute it, they have the same content, and so we will proceed on that basis. We contend that when the legislature draws language from a treaty in order to give effect to some aspect of the treaty this is relevant to the construction process. In particular, it gives rise to what has, in one instance, been called an “assumption” or in another case a “prima facie position” that the statutory language is to have the same effect or meaning as the treaty language.

I will take your Honours – I will take the Court to two cases. The first is Koowarta v Bjelke-Petersen [1982] HCA 27; 153 CLR 168 and the relevant page is 264. After referring on the bottom of page 264 to racial discrimination and the notion:

That definition of racial discrimination is reproduced precisely by the words of the sub-section. The Act thus makes part of Australia’s municipal law, enforceable by curial process, a key provision of the Convention. When Parliament chooses to implement a treaty by a statute which uses the same words as the treaty, it is reasonable to assume that Parliament intended to import into municipal law a provision having the same effect as the corresponding provision in the treaty –

I will not read any more. That is that decision which we rely upon.

KIEFEL CJ: But this is a kind of cross-fertilisation from treaties, is it not? This is not a direct taking from the ICCPR and what it says because it does not define the relevant terms that you are referring to. We are actually not concerned with a claim of torture here but the other two provisions and they are not – and they are taken – I am sorry, they are seen, those terms in Article 7.

MR LLOYD: Yes, that is so and the way we get there is we say that the definition of “torture” is taken more or less in terms – the definition of “torture” in the Act is taken more or less in terms from the definition of “torture” in the Convention. Then, we say in the Act the expression “intentionally inflicted” is taken – should have the same meaning as those same words in the definition of “torture” which, therefore, has the same meanings in the Convention against Torture definition.

KIEFEL CJ: But the question arises: why should one assume that the Migration Act in its definitions intends to take a part of a definition from the Convention against Torture to convey the same thing in the context of two other provisions arising from a different international instrument treaty?

MR LLOYD: Yes, well, where those different international treaties do not have a definition one cannot say that the language comes from those treaties. But one can say that when the same language is used in the same Act, absent some reason to do something different the same words should have the same content. So “intentionally inflicted”, as used in the Migration Act in those three different definitions should have the same meaning and they are all taken from, we say, the Convention against Torture. We do not apprehend that to be controversial.

The other case that I would take the Court to is a decision of Greentree v the Minister for Environment and Heritage [2005] FCAFC 128; (2005) 144 FCR 388, a decision of the Full Federal Court, in which the court was considering legislation that gave effect to the Ramsar Wetland Convention. The relevant discussion is in paragraph 36 of your Honour Chief Justice Kiefel’s judgment in that case, which was concurred in by the other two justices of the Court:

Section 17(1) does however borrow from the Ramsar Convention the words “designated . . . for inclusion in the List of Wetlands of International Importance” and refers to the List kept under that Article. The meaning of the word “designate” in Art 2 then assumes some importance. Where a provision of a treaty is transposed, the legislature discloses a prima facie intention that they have the same meaning –

Then there is a further reference there to Justices Brennan and Dawson’s reasons in Applicant A, which also then refer back to Koowarta. I will not go to that.

Here, the Convention against Torture has an express non-refoulement obligation in Article 3. We say the enactment of the complementary protection regime, including the language from the Convention against Torture, means that the persons facing torture meet the criterion in section 36(2)(aa) for a protection visa, thus ensuring – subject to other matters – Australia will comply with its non-refoulement obligations.

We contend that, prima facie, the language transposed from the Convention against Torture into section 5(1) of the Act should be given the same meaning as it had in the Convention against Torture. Now, before turning back to consider further materials on that Convention, I should deal with an argument in the Minister’s submissions - - -

KIEFEL CJ: Mr Lloyd, accepting that your submission that the language should be given the same meaning as it has in the Convention against Torture, if the Court were to find that the meaning was not clear in relation to the Convention against Torture, what course would you say we should take?

MR LLOYD: We put our case in two ways. The first way is we say the international material supports our view on the definition of “torture” and if that is done then that is what section 5 should be construed and then that would be the end of it. If we are wrong about that then – but we are still correct that our approach to intent is at least an available approach to the construction, then we say the Court should favour the approach which advances or better advances the purpose of the legislative provisions and for reasons which I will develop, our construction clearly achieves that end.

So, I was going to address a point before turning to the international materials. The Minister contends that the Migration Act is a code and that resort to international law materials is neither necessary nor useful based in large part upon a decision of a Full Federal Court in Minister for Immigration v MZYYL [2012] FCAFC 147; (2012) 207 FCR 211. I will take the Court to that case.

Now, that case involved section 36(2B)(b) of the Act. If the Court goes to page 214 of the report, you will see the terms of the legislation at that time and (2B) is a provision which seeks to represent the effect of international law jurisprudence in relation to complementary protection. So it makes its provision and the relevant one here is (b):

the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm –

There is a bit of a parallel with a similar idea in the Refugee Convention. There is certainly case law that discusses that idea but that idea is not anywhere expressed in any of the relevant conventions. It is not in the Convention against Torture, it is not in the ICCPR but it is in the case law that flows from that and so the Minister came along to the Federal Court and said you should construe the words that were used in (2B) to have the same effect as the international jurisprudence in the area. That is what you should do. The Court responded to that relevantly in paragraph 18 on page 215 and paragraph 20. If I can just go through that - at paragraph 18:

The Complementary Protection Regime provides criteria for the grant of a protection visa in circumstances where the Minister is not satisfied that Australia has protection obligations to that non-citizen under the Refugees Convention.

That is uncontroversial:

The regime establishes criteria “that engage” Australia’s express and implied non-refoulement obligations –

We happily agree with that. Going down to the next sentence:

The Complementary Protection Regime is a code in the sense that the relevant criteria and obligations are defined in it and it contains its own definitions –

Well, whether one might – in the context of a code in the sense that we do not deny that it has its own definitions and, for example, (2B), there is nothing in any of the treaties that replicate that. So in that sense it is a code. Then the next sentence:

Unlike s 36(2)(a), the criteria and obligations are not defined by reference to a relevant international law.

What is being said there - “by reference to” - that is because (2)(a), as I indicated earlier, in a sense simply picks up the effect of the Convention. So, they are saying, these provisions, the complementary protection provisions, are not like the Refugee Conventions which just say “or refugee under the Convention”. It has its own content and so it should be, presumably, construed accordingly. We do not dispute that. But we say that does not have any application to this case. Continuing:

Moreover, the Complementary Protection Regime uses definitions and tests different from those referred to in the International Human Rights Treaties and the commentaries on those International Human Rights Treaties. For example, the definition of “torture” in the Complementary Protection Regime is different from that in the –

Convention against Torture. Then there is a reference to paragraph [52]. That is true. I will not take the Court to it, but paragraph [52] notes that the definition in the Migration Act is broader because under the Convention against Torture the act or omission needs to be done by a public official. The public official element has not been brought into the Migration Act element.

So, in that extent, it is true that the definition is different and broader and, obviously, you would not – the Parliament having decided to make it broader and leave out an element – you would not read it down as if it was simply trying to do what the Convention against Torture did. But, again, that is not what we are doing. Then it says:

Further, the International Human Rights Treaties do not require the non-citizen to establish that the non-citizen could not avail himself or herself of the protection of the receiving country or that the non-citizen could not relocate within that country.

So that is to say there is no equivalent language in those treaties, which we accept. Then going down to 20:

It is therefore neither necessary nor useful –

This is the part that the Minister relies upon:

to ask how the CAT or any of the international law treaties would apply to the circumstances of this case.

Again, we do not have difficulty and we do not say that the court is wrong in that because in the circumstances of this case there is no language drawn from the Convention so the Convention jurisprudence does not inform the construction of language. However, that is the MZYYL Case. In our case, the words “intentionally inflicted” are drawn expressly from the Convention against Torture and we say that the Full Federal Court was not impliedly overturning the approach that I have taken the Court to in Koowarta or in the Greentree decision, that one should not seek to have regard to and give similar meaning to Convention language imported into a statute. So we say MZYYL is no - - -

EDELMAN J: It is not really a question of giving the same meaning as the language, it is a question of whether the interpretation of the Convention prior to the enactment of the amendments to the Migration Act had achieved a sufficiently widespread understanding that that would be understood to have been picked up as the meaning of the words that are used in the amending Act. In other words, that “intention” had achieved a sufficiently widespread interpretation under the Convention such that that interpretation would then be taken to be the meaning of the words in the amending Act.

MR LLOYD: Yes, although to the extent – I would not want to limit it to that – that there is a brand new Convention and the Parliament says, “We will enact this because we want to make sure we are in a position to comply with our obligations under that Convention”, and it uses the same language as the Convention, then even subsequent learning would be relevant because the purpose of the statute is to give effect to the Convention or to meet our obligations under the Convention. We would say that even subsequent learning would be a relevant consideration.

EDELMAN J: I think that is much more controversial because that would then say that the meaning of a domestic statute is potentially altered by foreign decisions or by international tribunal decisions.

MR LLOYD: We say that where the object of the statute is to allow Australia to accord with our international obligations it should be construed, absent some other language, to be consistent with that law as it develops. In this case the Parliament considered that express idea in paragraph (c) of the definition of “cruel or inhuman treatment” and “degrading treatment or punishment” by saying that the definition is not to exceed what Article 7 embraces. So to that extent they are recognising that Article 7 can develop but what they do not want is for the words that they have used to develop more broadly than Article 7 develops. We say it reflects the legislative intention to meet the obligations but not to go beyond the obligations.

Now, if I move back to the international materials, I will just give the Court a reference to this - I do not understand it to be controversial – two references. The proposition we make is that the Convention against Torture definition of “torture” is a codification of customary international law. The Full Court of the Federal Court said that in Habib v Commonwealth [2010] FCAFC 12; 183 FCR 62 at 117. In paragraph 36 of our submissions in-chief we note other people and other international entities that have said, or commentators that have said, the same thing.

Now, in terms of the international materials, I have taken the Court to the three decisions of the International Criminal Tribunal for former Yugoslavia and made my submissions as to the notion that “intent” includes both direct and indirect intent, which is to say it includes circumstances where torture is established by knowledge that an act will, in the normal course of events, cause the severe pain or suffering.

If I can take the Court to the Rome statute of the International Criminal Court. This statute confers jurisdiction on the Court in Article 5 in relation to certain criminal offences. Those offences are limited in areas under Article 7. They are limited to crimes against humanity and one of those crimes against humanity in Article 7(1)(f) is torture. Then torture there is a similar definition in 7(2)(e), but it is again, we say, a codification of customary international law.

Similar provision is made in relation to war crimes – I will not go to that. The statute also includes a section called “General principles of Criminal Law” starting at Article 22 and the relevant article we draw the Court’s attention to is Article 30. This we accept is not limited to torture but includes where that customary international law offence is being prosecuted:

For the purposes of this article, a person has intent where:

(a) In relation to conduct, that person means to engage in the conduct;

(b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.

So we say that our approach to the ambit of torture is consistent with the provisions of the Rome Statute which obviously reflect a broad view of the members of the international community.

GAGELER J: I am not sure about that because if you look at the definition of “torture” in paragraph 2(e) there is an exception which at least arguably would cover a case of pain and suffering arising incidentally to incarceration. You might be right in what you say about intention but in what you say about torture you might be going too far.

MR LLOYD: That exception also appears in the Convention against Torture exception in the sense that it does not include things done under lawful sanction. I might be wrong about that; I withdraw that.

GORDON J: The definition in legislation includes a sanction but the thing it does not include is upon a person in the custody or under the control of the accused.

MR LLOYD: It does include that:

“Torture” means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused -

So putting someone in a prison in circumstances where they will suffer would fall within that. Having said that, we do not say that our case for - - -

KIEFEL CJ: It does appear in Article 1 to the Convention against Torture.

MR LLOYD: Sorry, your Honour.

KIEFEL CJ: You are right, it does - the exception does appear in Article 1.

MR LLOYD: Yes.

GAGELER J: Mr Lloyd, there may be a very simple answer to this, but I am struggling for a moment understanding the relationship between the intention and the purpose in the application of the definition of “torture” in the Convention and in the Act. So if you say that putting someone in gaol, with the knowledge that the conditions in gaol will lead that person to severely suffer, you say that is intentionally inflicting that suffering on the person?

Is that for the purpose of punishing the person? I mean is it the relationship between the act done, which is putting the person in gaol, or is it the relationship between the known consequences and the punishment that is being looked at? I am sorry, I am putting that very badly, but there is a difference putting a person in gaol as a punishment - between wanting to put a person in gaol as punishment and wanting to subject the person to suffering in the gaol as punishment. I think they are different things.

MR LLOYD: Your Honour, I just want to make something clear. This is probably already clear but in case it is not I should make it clear. Our case does not turn upon saying that our clients face the possibility of torture and this extra layer of doing something for a purpose is something which is in the definition of “torture”. It does not appear in the definition of “cruel or inhuman treatment or punishment”. So the notion of having to have the intention to inflict severe pain or suffering for a purpose is not there. It is just the intention to inflict pain or suffering.

But we would say that, for whatever reason, presumably because the parties to the Convention did not want it to be broad until the ICCPR came along, which in substance broadened it because it does not have the purposive limitations, but at the time that the torture concept was being developed there were only limited circumstances in which torture was precluded. So presumably there are other circumstances where the intentional infliction of severe pain or suffering was considered to be appropriate. We are not saying that, in our context, my client faces being placed in detention for some period between one day and two weeks, I think - - -

KIEFEL CJ: Was that actually the finding of the Tribunal? I think that is challenged by the Minister, is it not?

MR LLOYD: I am not sure; maybe it is. I understood that they disputed our facts. They wanted to supplement our facts. I do not think they said our facts were wrong. But in paragraph 79, the Tribunal says:

The applicant will be remanded for a short period of time, between one night to several nights or possibly up to 2 weeks.

KIEFEL CJ: Paragraph 83?

MR LLOYD: Sorry, paragraph 79 of SZTAL.

KIEFEL CJ: Yes, I am reading from paragraph 83:

The country information above indicates that the penalty most likely to be imposed on the applicant is a fine.

Last sentence:

Based on this information, the Tribunal finds that the likelihood of a prison sentence is remote and not a real risk.

MR LLOYD: Yes, but that is because part of the claim was that my client would be sentenced to a substantial period as a result of the offence and what they are finding here is that the prospect of being sentenced to imprisonment was remote. But our claim - the one day or two weeks is the remand.

KIEFEL CJ: I see. There would be a remand period for a short time. They are two different things, I see.

MR LLOYD: Exactly.

GORDON J: Can I ask a really basic question, why we are being taken to the Rome Statute? I mean it does not have the same purpose requirements that the Convention has. It has this additional language about being in custody or under control. What do you get from it?

MR LLOYD: In custody or under control just brings in, in effect, a subset of the broader definition of “torture”. So it does not include everything - - -

GORDON J: No, I understand that but what do you get from it when it is in different terms? Why do you rely on it?

MR LLOYD: What we get from it is it has the same “intentional infliction” term and it then expands upon what “intent” means and it says “intent” includes our notion of indirect intent. So we say that that is an example of torture which is a customary international law as well as treaty offence being treated in this statute in the way that we say it should be treated and we say is reflective of its proper construction.

KIEFEL CJ: If one looks at Article 30, paragraph 2, though, (a) would seem to be intent in relation to conduct in terms of Zaburoni - that is simply means to engage in conduct; and (b), which I think you refer to as the indirect intent, is only really talking about consequence and causation, is it not?

MR LLOYD: We say it is – if a person has the intent - - -

KIEFEL CJ: You say that captures what you are discussing?

MR LLOYD: Yes, we say that the word “or” is important because it means to cause the consequence or is aware that it will occur in the ordinary course – so, it has a knowledge and awareness of the result which is what we say the Sri Lankan Government has in the present context.

KIEFEL CJ: But the first concerns conduct and the second is consequence. Are they cumulative? They must be. “Intent” must capture both of them, conduct and consequence.

MR LLOYD: Perhaps – it depends on what the offence is. If it is an offence which goes to result – to use in the Australian Parliament which I will come to very soon – the fault elements – there are fault elements that, where an offence is turned in sense of conduct – you cannot hit somebody. Another one is you cannot hit somebody resulting in actual bodily harm so the intent element in relation to an offence which only goes to conduct is that you intend to engage in the conduct if you – for one which goes to consequence which, we say, the infliction of pain or suffering is a consequence – then it is enough that you are aware that it will occur in the ordinary course of events.

KIEFEL CJ: I am not quite sure that that is what they meant in the Rome Statute.

MR LLOYD: We accept that the act – the act, in our circumstances – the act of putting them in the gaol, they mean to put them in the gaol and they are aware of the consequence that in the ordinary course of events somebody in their gaols has to be in the circumstances specified by the Tribunal. The next matter I was going to go to is the Australian Criminal Code. If I can start at section 15.4, it simply indicates that there are some provisions in the Code where the offence applies:

(a) whether or not the conduct constituting the alleged offence occurs in Australia; and

(b) whether or not a result of the conduct constituting the alleged offence occurs in Australia.

That is to say the offence can be entirely done and with the consequences experienced outside of Australia. That would typically be offences which are like piracy and torture and the like which are unlawful at customary international law. One sees in section 274.2(5), that torture is an offence to which 15.4 extends. But going back to 274.1, one sees there a reference to the:

Convention Against Torture –

and in subsection (2), there, there is an expression:

An expression that is used both in this Division and in the Convention . . . has, in this Division, the same meaning as it has in the Convention.

We say that that goes beyond what I have described earlier as sort of the Koowarta, Greentree idea of a presumption or a prima facie view. This actually specifies that where the language is the same it should have the same meaning and, for what it is worth, to address your Honour Justice Edelman’s earlier question, we would say, and if that meaning develops in the future that is meant to be embraced as well. In 274.2(1)(a) it contains an offence with a physical element of inflicting:

severe physical or mental pain or suffering –

Then, one goes from there back to section 5.6 “Offences that do not specify fault elements” and under subsection (2):

If the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element.

Then, one goes to 5.4(4):

If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element.

Then, one goes to “Intention” 5.2(3):

A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events.

Which is another example of intention bearing the meaning we say it has and this is - - -

KIEFEL CJ: Sorry, how are you using the Commonwealth Code?

MR LLOYD: We say this is Australia; Australia is making an enactment pursuant to the Convention against Torture to give effect to what it understands to be the breadth and effect of the Convention against Torture. It has not said the Convention against Torture only is an offence in relation to harm which is subjectively desired to be inflicted. It extends to harm which is done where there is an awareness that it will occur in the ordinary course of events. So that, we say, this is, as it were, opinio juris of Australia showing that they understand the Torture Convention as having the same meaning we say it has.

KIEFEL CJ: We are meant to apply the Code and the Migration Act consistently or how does it inform the Migration Act?

MR LLOYD: We say it informs the Migration Act because it informs the proper construction of the Convention against Torture and the language in the Convention against Torture and then through that meaning it is drawn into the Migration Act. We do not say that because Australia has enacted it in these terms that the Migration Act has to somehow yield to it in some more direct way but we use it as a kind of an indicia of a relevant view of - - -

KIEFEL CJ: Of the Convention.

MR LLOYD: - - - a member of the international community as to how the Convention is done.

EDELMAN J: What was the timing of the insertion of 274.1 and 274.2?

MR LLOYD: I think I will have to make inquiries about that, your Honour.

GAGELER J: Mr Lloyd, on your construction what is it that prevents a Sri Lankan judge from being in breach of section 274.2 when sentencing someone to imprisonment where there would be severe mental or physical suffering?

MR LLOYD: It may depend on whether the judge is aware of the conditions in the prison but, we would say, that it could be an offence for somebody; whether it is the judge or whether it is the authorities who take them there on remand, because I think on remand it will not have gone to a judge, it will be some member of the Executive who will have taken them there. We would say that if it was torture - and I accept our case is primarily premised upon cruel inhuman treatment and punishment and we are just going to torture because that is where the relevant language came from, but in a - - -

GAGELER J: Yes, but it is hedged and qualified in the torture context.

MR LLOYD: Certainly. So if you imagine a situation where we were going to return someone to a situation of torture, we say it is a curious result that it could be the position that we would return somebody under a narrow view of the Torture Convention to face torture, which we would then convict somebody for or be able to prosecute somebody for. It is curious. I cannot really put it higher than that.

GAGELER J: I am wondering if the answer might be in subsection (4). It says that the offence creating provisions:

do not apply to conduct arising from, inherent in or incidental to lawful sanctions that are not inconsistent with the Articles of the -

ICCPR. It is just not obvious to me that, if you are right about “intention” in the Torture Convention, it gets automatically translated to the ICCPR.

MR LLOYD: Yes, although if they are inconsistent with the ICCPR, and that deals with appalling prison conditions, then it would apply.

NETTLE J: That is to get over the Nuremberg defence, is it?

MR LLOYD: Possibly. I think it is just to say if it is a lawful sanction which is compliant with international humanitarian standards of sanctions, so maybe caning – I do not know if that does comply or not, but let us assume it complies – then that would not be torture to send somebody to caning.

NETTLE J: But if it does not comply with the conditions then it is an offence.

MR LLOYD: But if it does not then it could, yes.

KIEFEL CJ: Do you say Article 10 of the ICCPR has anything to say about that?

MR LLOYD: Yes. Article 10 and Article 7 have both been seen to have relevance in the context of poor prison standards. Article 10 perhaps more directly but – I will take the Court a bit further a bit later on to some cases that look at Article 7 and look at poor prison conditions. I think it can be seen that Article 7 is also engaged.

KIEFEL CJ: But, as I understand it, they do not separate – they do not give Article 7 and Article 10 their own separate operation, they just tend to throw them together.

MR LLOYD: Yes. Now, I may be corrected by this and have to withdraw this but my understanding is that there is not an express non-refoulement obligation in relation to the ICCPR but it has been construed as having one in relation to certain articles, Article 7 being one where there is a non-refoulement obligation.

KIEFEL CJ: For Article 10.

MR LLOYD: I am not sure that there is a non-refoulement obligation in relation to Article 10. I could be wrong about that. That is why we have principally been directed to Article 7 and I think that is why the definitions in the Migration Act talk about Article 7, because that is the implied non-refoulement obligation provision.

The final matter of international material pertaining to the meaning of the Convention is a publication of the Immigration and Refugee Board of Canada which is called “Consolidated Grounds in the Immigration and Refugee Protection Act, Persons in need of protection”.

KIEFEL CJ: Does this have international or domestic status?

MR LLOYD: It certainly has domestic status but insofar as this is an entity of the Canadian government responsible for making decisions under the treaties, and one sees that at the beginning of page 3, it reflects a matter of opinio juris as to what they think they are bound by. So, in the Canadian law, their section 97 provides three grounds. The relevant one we are looking at here is the second one, danger of torture, and that is what the paper is all about. As the Court will see in the second paragraph on page 4 - - -

KIEFEL CJ: Is this a paper provided by a department of government for the purposes of members of an administrative body?

MR LLOYD: My understanding is the Immigration and Review Board is responsible for making the decisions whether or not to grant or to give visas and this is their document telling them how they - - -

KIEFEL CJ: What is the status of the board? Is it judicial?

MR LLOYD: No, I believe it is in the nature of the Executive.

GORDON J: As at 2002.

MR LLOYD: As at 2002, yes. To go then to page 25 of this document, one sees at the end of the second last paragraph:

In the context of s. 97(1)(a), the meaning of torture is restricted to the definition set out in Article 1 of the CAT.

So that is what the paper is looking at. Over to page 27 in the middle of the page just about 5.1 it says:

The elements of the definition of torture within the meaning of Article 1 of the CAT are discussed below.

Then there are various elements discussed. The relevant element is on page 39 and it looks at the words “is intentionally inflicted” and says:

Severe pain or suffering is considered to be intentionally inflicted if:

• it is a desired consequence; or
  
• it is known to be a likely consequence.
  

Which we say also accords with our view of intent in that Convention. So what we contend is that certainly none of the international material is consistent with the narrow view adopted by the court below. We say it is all consistent with our construction of what “intentionally inflicted” means, the broader view. We say there is an available view and that prima facie the legislation and the 2011 amendments should be given that meaning and there is nothing, we say, to undermine that prima facie position.

KIEFEL CJ: Mr Lloyd, what do you say about footnotes 106 and 107 to the Immigration Refugee Board’s papers that you referred us to on page 39?

MR LLOYD: Well, we do not - - -

KIEFEL CJ: Footnote 106 seems to take “intention” as something more than possible consequence and 107 distinguishes “torture” from “cruel, inhuman or degrading treatment” by reference to the deliberate manner in which it is inflicted.

MR LLOYD: In relation to the second of those, we certainly do not dispute that there is no intent requirement in Article 7 of the ICCPR. It is in the Australian legislation, we say, because it was thought to be a proper reflection of international law. That may or may not be correct, but that is why it was put in. As to the first, we note the substantive provision has to be read with that. Either they are rejecting what is said in Black’s Law Dictionary or they are saying that that does not apply in the context of the Convention against Torture.

KIEFEL CJ: Yes.

MR LLOYD: The second limb of the definition which says “or he believes consequences are substantially certain to” occur. So one is he desires it to occur or he believes the consequences are substantially certain to result we say is consistent with our construction in any event. It is certainly broader than the approach taken by the court below or the Tribunal.

KIEFEL CJ: It also tends to show that “intentional” is regarded as having different meanings and people resort to law dictionaries.

MR LLOYD: That is so. Now, if I can go to the last section of my oral outline. It deals first with looking at the mischief to which the complementary protection regime was addressed. I have to take the Court to some extrinsic material at this juncture - first of all, the second reading speech of 24 February 2011. It is in the Hansard, starting at page 1356. There are several important aspects of this. In the first paragraph it is said:

The Migration Amendment (Complementary Protection) Bill 2011 amends the Migration Act to eliminate a significant administrative hole in our protection visa application process.

Perhaps if I introduce the position. Prior to this Act the position was that Australia still had all of these non-refoulement obligations but there was no visa for which anybody could apply. The only way for Australia to comply with its non-refoulement obligations is a system whereby someone would apply for a visa they could not get, they would be refused. They would then seek a merits review of that. That would also be refused because they are ineligible for it. Then, at that point, the Minister’s powers under, for example, 351 and 417, the non-compellable powers, were opened up and at that point the Minister could look at Australia’s non-refoulement obligations outside of the Refugee Convention and could grant a visa if he or she chose to at that time.

That is the context. It had been that way for many years. So when they are saying there is a significant administrative hole in our protection visa application process, it is referring to the fact that there are people who we owe protection obligations to or owe protection obligations in respect of who could not actually apply for a visa in any direct way. So, dropping down a few paragraphs, the speech then says:

These people can fall outside the categories recognised by our current protection visa process.

So their applications will be rejected at first instance – and again at review – even where Australia’s non-refoulement obligations and other international treaties ensure that we cannot and will not send them back to their countries of origin.

There is then a reference to the other international treaties or some of them there including the ICCPR, the CAT, the Child Convention and then the next paragraph it is referred to by complementary protection. That is not where it comes from but that is an instance of it. The next paragraph:

Under the current system, these people, who have often fled their countries in fear of their lives, must go through our administrative processes knowing they are going to be rejected.

But at present we make them go through a process of applying, failing, seeking review and failing again, just so they are then able to apply to the minister for personal intervention.

As things stand, the decision to grant a visa in such cases may only be made by the minister personally . . .

As a result, as you can understand, the current lengthy process is very time consuming and extremely stressful -

presumably not least for the Minister. Then the next sentence we place a significant amount on:

So what this bill does is align our protection visa process with our existing international obligations and practices.

So, by aligning them, if you can get a visa that reflects our existing international obligations you can apply directly for it but if you are eligible for it you just get it and it never has to go to the Minister and you do not have to go through the apply/fail, apply/fail, non-compellable intervention route. That is what was sought to be achieved. The mischief was to bring into the Migration Act the processes whereby our existing international obligations can be met by the grant of a visa rather than by ministerial intervention.

There are then some references to the 2009 Bill. I will come to a document in relation to the Senate Legal and Constitutional Affairs Committee shortly but the 2009 Bill lapsed and then this was, in effect, the – I mean, with some changes but not relevant changes, a reintroduction of that Bill. Over on the next page 1357, down about five paragraphs:

Applicants who are found not to be refugees under the refugees convention will have their claims considered under the new complementary protection criteria.

There is some discussion of that. After the dot points – three paragraphs after that:

The bill defines many of these concepts to assist assessing officers to interpret and implement these international obligations.

So what the definitions are meant to do is assist, relevantly, the delegates of the Minister to both interpret and implement our obligations. They are not meant to be some kind of subset of the obligations:

These definitions will enable Australia to meet its non-refoulement obligations –

So that is the object and that object is achieved – the nearer the definition is to the international obligation the better it achieves the purpose of the – or addresses the mischief.

EDELMAN J: How does the rest of that sentence fit with your earlier submission that the Bill can evolve with evolving international interpretations?

MR LLOYD: Because without expanding the relevant concepts in a way that goes beyond current international interpretation there is a reference to the paragraph (c) in the two definitions to say – what we say is the first part of the definition is the best effort to reflect Australia’s international obligations and then paragraph (c) says, but not inconsistent with our Article 7 obligations. So, we do not want to go beyond it. We do not want to give visas to anybody that is beyond it.

I think the substance of it is, is they are saying – not without some experience – if a court construes the legislation more broadly than we had intended or goes beyond their international obligations, we do not want that so we have paragraph (c). So, that is why it is without expanding them. It is to achieve them but not to give visas to people who we are not bound to do.

There was then a discussion, over the page, about an express exception to that, in the middle of the page. There is in the Refugee Convention Article 1(f) which excludes certain war criminals or people who have done serious non-political crimes. There is no equivalent exception in the other international treaties. They are seen as being not subject to any derogation.

Nonetheless, the Act expressly makes provision for that and the Court will see that in section 36(2C). We accept that that is an area where ministerial involvement was intended to continue. So that if you were a war criminal but also would face torture then that would go to the Minister. One sees that in the fourth paragraph underneath the dot points on page 1358:

In the small number of instances where non-refoulement obligations would arise for persons who are excluded on security or serious character grounds, determinations as to post-decision case management will remain with the minister personally.

So that is an identification. We say it all speaks with one voice. The legislation is designed to give visas to people who are entitled to them by reference to Australia’s international obligations of non-refoulement. But, if there are security or character issues, they will not get a permanent protection visa. That will go back to the Minister and the Minister will decide what to do with those persons, not that they would be refouled but they might either be detained indefinitely – when that was lawful, but that now would not be the case, we would say, having regard to section 197(c) of the Act – but then the Minister might give a less attractive, more temporary visa, to allow constant review of war criminals, or something along those lines.

So that is what we say is an identification of the mischief. That is clearly seen and consistent with what the Act actually does by bringing in these visas. It means that the Minister does not have to use the 417 powers to do that any more.

I did mention I was going to go to the 2009 – some extrinsic material relating to that. If I can take the Court to the Legal and Constitutional Affairs Legislation Committee report, I suppose it is, on the Migration Amendment (Complementary Protection) Bill 2009. In paragraphs 3.35 and 3.36 the committee was told on behalf of the Minister’s department in their submission – look at the last sentence of that:

the definitions are consistent with current international law.

KIEFEL CJ: I am sorry, where are you reading from?

MR LLOYD: I was just reading from the last phrase in 3.36, which comes from the department’s submission. Now, the reason we say that is because, on our construction, that is right. Whether they are consistent or not is perhaps tendentious but they were attempted to be consistent so that there is a bona fide effort to reflect Australia’s international obligations. There is obviously the exception in relation to the security cases but, subject to that, the definitions are meant to align with - to use the language of the second reading speech - the international obligations.

We would say that the purpose of the Bill is also reflected in the explanatory memorandum to the 2011 Bill. I will just quickly note, on page 1 it is noted that the Bill:

amends the Migration Act . . . to introduce greater efficiency, transparency and accountability into Australia’s arrangements -

The premise, of course, is that the Minister would always, even before this, have prevented refoulement, but now it is not to be done by the Minister and instead it is going to be a more efficient, more transparent and more accountable system. That speaks of, for example, access to merit review rights and the like. That notion is then expressly stated in the next paragraph:

The purpose of the amendments in this Bill is to establish an efficient, transparent and accountable system for considering complementary protection claims, which will both enhance the integrity of Australia’s arrangements for meeting its non-refoulement obligations and better reflect Australia’s longstanding commitment -

et cetera. Then the first dot point at the bottom of that page:

the Bill amends the Act to:

. introduce complementary protection arrangements to allow all claims by visa applicants that may engage Australia’s non-refoulement obligations under the abovementioned human rights instruments to be considered under a single protection visa application process, with access to the same transparent, reviewable and procedurally robust decision-making -

That is to say, anyone who may be owed a non-refoulement obligation will be taken out of the “ministerial intervention” pile and put into the “can apply directly for a visa” pile.

Over on to page 3, the last dot point just refers to the review arrangements. The last paragraph on that page above the heading “Financial Impact Statement” just notes that this had long been considered to be a problem with the scheme and refers to various reports, and we rely upon that just to indicate mischief. I will not read it but if I just refer the Court to paragraphs 86 to 90 of the explanatory memorandum which explains what section 36(2C) is about. I have already made submissions about that but, we say, that the explanatory memorandum is entirely consistent with the idea that that is the extent to which the complementary protection regime was meant to depart from our international obligations.

We say construction that gives the definitions a meaning the same as or as close as possible to Australia’s international obligations so as to advance the purpose of the 2011 Act and to address the mischief identified. Conversely, a construction that holds significant areas outside the visa processing scheme to be determined by the ministerial intervention power tends to diminish or undermine the purpose of the 2011 amendments, and by significant areas I mean to the extent that section 5(1) is construed narrowly so that it is acknowledged the treaty obligations go substantially further than the provisions, that then means the Minister has to do more ministerial interventions which diminishes rather than achieves the purpose of the amendments.

Now, the Minister seeks to answer this by observing that the non-compellable powers have long been a method by which the Minister has ensured Australia meets its protection obligations. We accept that at least to some degree that is true and before the 2011 legislation that is clearly the position.

Now, on the Minister’s view of the legislation, the Minister retains more than a role in relation to security and character cases extends to all instances where non-refoulement obligations are owed but fall outside of section 5(1). If that was correct, one would expect to see their administrative processes reflect that and one can see – we have included in our bundle two sets of the Minister’s guidelines under 417. The first one is - if you look at the bottom of the page, it is dated 15 August 2011 to 30 September 2011. So, these were the guidelines for relevantly all those non-compellable powers at the top but relevantly section 417 prior to the complementary protection regime being enacted. So, if one goes into it, one sees in paragraph 1 that the guidelines:

• explain the circumstances in which I –
  

the Minister, because they are issued by him personally:

may wish to consider –

exercising my public powers and is to inform departmental officers when to “refer a case to me.”

If one goes down to topic 11, “Unique or Exceptional Circumstances” then one can see, over on to page 6, the fourth dot point involves the Convention Against Torture. And then the seventh dot point involves the ICCPR. So, as you would expect, prior to the complementary protection regime the Minister uses the 417 power to grant protection in some form to somebody who is owed protection obligations but is not entitled to a visa.

The second ministerial guideline is the current one, by way of example. It says on the first page it was reissued with a slight change in name on 29 March 2016. Paragraph 1 says:

The purpose of these guidelines is to –

and, relevantly, the fourth dot point:

• confirm that if a case does not meet these guidelines, I do not wish to consider intervening in that case.
  

So if he does not wish to consider, it does not go to the Minister. Then over to item 4 “Unique or exceptional circumstances”, it is much narrower than it used to be. The last dot point in item 4 is something the Minister is prepared to look at:

• the person is excluded from the grant of a protection visa –
  

Stopping there, you are excluded under section 36(2C). So if you are a security person excluded:

or has had a protection visa cancelled or refused on character grounds –

that is section 501:

and their circumstances have been assessed as engaging Australia’s non-refoulement obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed –

I will not keep reading it, but in fact what they are saying is if you are found to be owed a non-refoulement obligation under 36(2A) by reference to the ICCPR or CROC or CAT but you have been excluded because under 501 you are character refused or you are excluded by 36(2C) then the Minister will exercise or, at least, consider exercising those powers.

GAGELER J: Mr Lloyd, I am a bit lost. Why are we looking at this?

MR LLOYD: Because it is put to us that, as a practical matter, there is no practical concern in the way the Act works, or has worked this way, that the Minister can step in and fix the problem. The point, which is just one further point away, is that in this document, the current document, the cases that should not be brought to my attention in large print, on the bottom of the page, if one goes over to paragraph 7, the last dot point is:

• the request raises claims only in relation to Australia’s non refoulement obligations.
  

So the Minister’s actual approach to running the Act after the complementary protection is that the Minister – unless he is just going to allow people to be refouled – must be working on the basis that if you are owed non-refoulement obligations you would have had a chance to put in an application and get an application that reflects Australia’s non-refoulement obligations, because he does not want to hear about it.

GAGELER J: Are you saying that the submission being made is inconsistent with the Minister’s own practice?

MR LLOYD: That is so.

GAGELER J: It can go no further than that. It cannot bear legitimately on the meaning of the statutory term.

MR LLOYD: I accept that you cannot construe the statute by reference to this, but they have a submission about the practical operation of it and we want to answer that. We say that on our construction and, it seems, impliedly how the Minister also actually operates, the assumption is that the definitions do, as far as possible, allow Australia to meet its international non-refoulement obligations and as a result it should be construed accordingly.

We do note – and maybe you can sense this is the same kind of point, and this is perhaps more legitimate because it is in the extrinsic material – that the Minister’s department told the Parliament that the definitions reflect current international law but the Minister contended in the court below that they were a narrowing of international law or only a partial meeting of Australia’s international law obligations. One sees that in the court below in paragraph 62, going down a couple of sentences:

While the definition of “torture” in Art 1 of the CAT expressly requires that severe pain and suffering be “intentionally inflicted”, this requirement is not a part of the concepts of “cruel, inhuman treatment or degrading treatment or punishment” . . . Article 7 does not define these concepts by reference to intention.

Well, that is true, but it does not define it at all. After the reference to the cases:

The addition of the element of intention in the relevant definitions in s 5(1) narrows the scope of the equivalent concepts in the Migration Act. As the Minister submitted, it may be inferred from the relevantly narrower definitions in s 5(1) that the complementary protection provisions in s 36 . . . were intended to give effect to only a subset of Australia’s obligations -

That was the submission put to the court below and accepted by the court below. We say that is contrary to how the Minister’s department told Parliament that the definitions were meant to meet Australia’s current international law obligations, not only a subset of them. Now, if it is a subset of them, the bigger - - -

GORDON J: Is the last sentence of that paragraph referrable to what you have just taken us to?

MR LLOYD: Yes, it is, your Honour. So we say that is an error and just for the sake of completeness, although I am not going to backtrack on it, the errors we say were made by the court below are in paragraph 59, saying that the criminal case of Ping was persuasive on the construction point. We say that paragraph 62 reveals error in assuming that the definitions we have chosen to narrow the ambit of the protection and paragraphs 63 and 64, which are kind of related, we say reveal error in that it was inspired by what we say was a misreading of MZYYL as to the relevance of international materials and jurisprudence when you are construing language actually used as opposed to the circumstances in MZYYL.

Now, the errors are we say that there are material differences on the construction – and here I am looking at the Article 7 issues – between our construction and that of the Minister. There are four examples we would give. The first is in relation to imprisonment in substandard prison conditions and we refer the Court to the matter of Portorreal, which is a decision of the Human Rights Committee.

In paragraph 9.2 there is a reference there to the actual conditions that Mr Portorreal was to be exposed to, and then in paragraph 11 the Human Rights Committee formed the view that Articles 7 and 10 were engaged. Your Honour the Chief Justice asked me earlier. That is an example of where, in the prison context, both Articles 7 and 10 are engaged, and it did involve subjecting:

to inhuman and degrading treatment -

So that is one example. On the Minister’s position, if a lack of resources gets one out of intention then it does not matter how long someone is in an appalling prison; the non-refoulement obligations are never engaged. The second example is the non-consensual medical experimentation. That is actually in the terms of Article 7 of the International Covenant itself. It says:

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.

It is clear that that must be at least able to be engaged, and we say that it is also clear that such experimentation must be able to be done in circumstances where the person doing the experiment is not desiring – is not “intending” in that narrow sense – to inflict harm on the recipient but where they know that the harm is going to occur in the ordinary course of events.

The third example which we say is relevant is the example of rape and we rely upon Kunarac as an instance where our approach on intention would be important as opposed to an intention to inflict a requirement that there be an intention to inflict pain or suffering.

Then, fourthly, is the circumstance of female genital mutilation. That is a process obviously very likely to be very painful and also probably, albeit in some warped way, may not reflect a desire to cause pain but through the, what we would say, mistaken views that that process is either beneficial to the recipient or perhaps to the community more generally.

The House of Lords considered this in a matter called K v The Secretary of State for the Home Department [2007] 1 AC 413. All I seek to get from this case is – all I note to the Court is paragraph 8 that notes that the practice has been condemned in various places. But perhaps more saliently, paragraph 92 describes the nature of the process and then paragraph 94 indicates that it is one which is able to engage Article 7 of the ICCPR.

So, we say that that is an example which on our view would fall within the section 5(1) definition because it could be intentionally inflicted, notwithstanding that it was not done with the subjective goal of causing pain but because they would have known that in the ordinary course it would cause pain so it would fall within the ambit. We say it would fall outside of the construction advanced by the Minister.

The Minister would, no doubt, say people could apply under section 417 or the like for the ministerial intervention because if Australia’s non-refoulement obligations were engaged, as they would be on the logic of the House of Lords’ decision, he would not refoule them.

But, of course, we know from his practice that he does not want to hear about such things. If somebody has made an application and the Tribunal has said I do not think it was intended to be done to cause pain or suffering, obviously they would have known that would have happened but it was not the intent of the act, therefore the criterion is not met, we say there is a real issue there.

On our construction where the legislation is, at least as far as it can bear, aligns with our international obligations that achieves the object of bringing in the efficiency, the transparency and the accountability of the visa-processing system as compared with the non-compellability and non-natural justice processes which in S10 this Court found that natural justice is not – and people so called “at the end of the line” of making protection visa applications are not entitled to natural justice in the section 417 context even though their claim might never have been, as was the case in one of the S10 cases – their claim had not been considered earlier because there was no procedural fairness owed because of the way the Act is construed.

So we say that there was an intent to get rid of that situation and to bring in an accountable, efficient and transparent system and the broader construction for which we advance much better serves and fulfils that construction. But construing it consistently with the international instruments is an orthodox matter - that would be enough; construing it to redress the mischief is an orthodox way of construing it - that would be enough. We would ask the Court to make the orders specified in the notice of appeal.

KIEFEL CJ: Mr Lloyd, just before you sit down, the four examples that you have given in paragraph 11 of your outline, you say they would necessarily fall outside the scope of the Migration Act regime if the Minister’s construction was correct.

MR LLOYD: Yes, your Honour.

KIEFEL CJ: In the case of the first one, would that not be caught by intention because the person there involved was a political prisoner and one might infer that it was intended that he suffer, that he be punished and suffer. In the case of (b) and (d) which is non-consensual medical experimentation and female genital mutilation, there might have been other scientific or cultural purposes involved but there could have been no doubt that the persons upon whom they were practised would suffer and one would take them to have intended that suffering. There could be no other rational conclusion reached. We have discussed (c), I think.

MR LLOYD: My response to that is in relation to the first one it may be in the case of Mr Portorreal there may have been a sufficient intention but one can imagine situations where, as in the case of my client, he is put in potentially the same kind of prison cell as Mr Portorreal, not with a desire specifically to harm him or punish him but knowing that that would happen and knowing that it would be more or less inevitable or would be certainly more likely to happen in the ordinary course of events. In relation to the paragraph (b) and (d) examples, we say that yes it is true that they would know that in the ordinary course of events what they are doing would cause significant pain.

KIEFEL CJ: No, it is not causal, it is happening in front of them. It is not in the way that you put it before and that is why I said they can see it, therefore they would infer it. They would know exactly what was going to occur. It is not a question of in the ordinary course this might be a consequence. They are actually doing it.

MR LLOYD: The question arises at a time in a non-refoulement context before the thing happens and you are asking is there a real – I cannot remember the language now – is there a substantial ground for believing that if the person is removed there is a real risk that they would suffer significant harm. The significant harm is we say here, say, cruel and inhuman treatment and that would be made out if you were satisfied that the person who – that there was a real risk that there would medical experimentation or female genital mutilation and that the person who was going to do that would know that pain would be caused even though they did not particularly desire pain as an outcome - they knew it would be caused and they knew it would be the result – to put it in a non-causal way, knew it would be the result in the ordinary course of events that if they did this act then pain or suffering would happen.

EDELMAN J: Your test can still be a subjective test then, because as long as there is an end that is desired – so in the first example of imprisonment – that the end that is desired is detention, or indeed the end that is desired is the female genital mutilation. As long as there is an end that is desired, if you know that some means is going to be a necessary consequence of achieving that end, irrespective of whether you desire that means, the pain and suffering along the way, you have to intend that means because it is the only way you can get to your end.

MR LLOYD: Well, perhaps so, your Honour. Why do you have to intend it? You have to intend it because you know it is going to happen when you do the thing? Now, in our case the person who puts my client in prison knows what is going to happen. There is no dispute that they know what is going to happen. We say that is enough. That should have been enough. To know what is going to happen in the ordinary course of events that meets the requirement.

We have said that that can be called “intent” and that is our point. We accept that that is enough to establish intent, knowing that it will happen. I think your Honour put to me that there is a subjective element. We did not mean to suggest anywhere that it was only an objective test.

KIEFEL CJ: This might show that perhaps they are not so far apart, the definition that you are seeking. If one takes the definition of “intention” in Zaburoni, which is put against you, in both the cases of the medical experimentation and genital mutilation if you asked does this person mean the other to suffer the answer would have to be yes.

EDELMAN J: Irrespective of whether they desire it. They mean it because it is a necessary way of getting to their end.

MR LLOYD: Perhaps another way of looking at it is - on the proper construction of section 5(1) and for that matter the international treaties, should it be not made out that a person can say, “Okay, I knew that was going to happen; I did not want it to happen; I was doing it for some better, more beneficent, ultimate object. That was the true purpose. Yes, I knew what was going to happen along the way but that was not really why I was doing it” and that is not good enough. We say that should never be an answer.

KIEFEL CJ: It probably is not because you can still have the higher purpose but be taken to mean - the effect of what you are doing.

MR LLOYD: In the circumstances of this case, the Tribunal said that the government knew about the poor conditions and knew that my client would be in them, presumably had some other objective of detaining us and did not have, so they said, the resources, which is just a financial choice, to rectify the situation. But, nonetheless, they knew what was going to happen – well, can I say, did happen – maybe it did happen in one of the two cases. But, in the other case there is a real risk of it happening. In paragraph 80 of the SZTAL decision – the last sentence of that says:

Poor prison conditions involving inadequate resources and overcrowding do not appear to give rise to significance harm under Australian law.

That was the same paragraph as – and a result of the view of the intention approach.

GORDON J: Sorry, where was that in your submission, Mr Lloyd? Where are you reading from?

MR LLOYD: It is the last sentence in paragraph 80 on page 18 of the SZTAL appeal book. That is ultimately, although it is somewhat in less precise or less strict terms – but that is ultimately the conclusion of law which, if that is right, that because there is a lack of resources then you get to escape the consequences of the international humanitarian standards, that is where we say it is wrong.

GAGELER J: We are not concerned with that sentence. We are concerned with the sentence before.

MR LLOYD: We are concerned with the entirety of that paragraph. But, the last sentence is a sentence which is, as it were, the conclusion of the previous couple of sentences and you draw the inference that if the reason why someone is going to be in poor resources as a lack of – sorry, poor prison standards or prison standards that are in breach of Article 7 – well, at a standard level in breach of Article 7 – if you can avoid responsibility by saying we do not have the resources then we say that is wrong.

That is how they got there in this case. We say that you cannot escape that consequence by saying it is not intentional, that you do not want that to be the result. You knew what you were doing. You do not have to put people in prison. You knew what the consequences would be. On that view, no matter how horrible the prison is or how long people are put in it, it is never engaged. May it please the Court.

KIEFEL CJ: We might adjourn, Mr Solicitor. The Court will adjourn until 2.15.

AT 12.41 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

KIEFEL CJ: Yes, Mr Solicitor.

MR DONAGHUE: Thank you, your Honour. Your Honours, I propose to start with some brief submissions about the facts then to take your Honours to some aspects of the statutory scheme and make some submissions about the appropriate approach to the construction of that scheme. Third, to then move to some submissions about the ordinary meaning of the word “intent” which is the meaning that we submit is used in the relevant definitions in the Migration Act and finally to make some submissions about the international law cases to which Mr Lloyd took your Honours concerning the meaning of “intent”, particularly in the context of Article 1.

First, the facts - could your Honours turn to the appeal book in SZTAL and go to page 14. Your Honours will understand that most of the discussion in the Tribunal’s decision in this case is not relevant because it goes to the rejection of the refugee claim that the applicant made and having rejected the refugee claim the Tribunal then moved to the question of whether the complementary protection provisions were engaged and that is our sole focus here. On page 14 under the heading “Illegal departure” you will see it noted that:

Illegal departure from Sri Lanka is an offence –

It carries a term of imprisonment but as your Honour the Chief Justice noted earlier the Tribunal’s finding relevantly at paragraph 83 was that the Tribunal was not satisfied that there was a likelihood that the prison sentence would be imposed. The penalty would be a fine. Then at paragraph 64 you see possibly the key facts recorded:

According to DFAT, persons charged with illegal departure are held in police custody at the CID Airport Office –

not at a prison:

for up to 24 hours during the investigation period. They are then produced before the Magistrate’s Court and released on bail.

So the ordinary course is held at the airport office for up to 24 hours and then released on bail. Then:

Persons needing to be held for more than 24 hours, because they arrived on a weekend or public holiday, are transferred to the [prison] until the Magistrates Court is in session.

That happens, we see in paragraph 65, “regardless of ethnicity” of the persons concerned. Over the page, in paragraph 70, there is some material recorded about prison conditions, so these are the conditions that are relevant in the event that a person arrives on the weekend or on a public holiday:

Country information indicates that prison conditions in Sri Lanka may not meet international standards. Concerns include overcrowding, poor sanitary facilities, limited access to food, the absence of basic assistance mechanisms, a lack of reform initiatives and instances of torture, maltreatment and violence. Prison conditions in Sri Lanka have been reported as likely to breach Article 3 of the European Convention on Human Rights –

which is relevantly the same as Article 7 of the ICCPR. There are concerns recorded about “severe overcrowding and antiquated infrastructure”. The Tribunal then records at paragraph 72 that:

Sri Lankan authorities have acknowledged the poor prison conditions but lack of space and resources has inhibited reform.

There was recorded a call by the president to overhaul the system and plans to construct new prisons. Against that factual backdrop, the Tribunal then made the finding recorded in paragraph 74:

places weight on the DFAT advice –

In my submission, that is the advice referred to at paragraph 64, which is supported by the December 2012 news report, which I will not go to, but that is quoted at paragraph 68, and having placed weight on those two items of evidence, records that the Tribunal:

is satisfied that the applicant will be held on remand for a short period, from between one day to several days, if he is charged . . . The Tribunal has considered whether a short period of remand gives rise to a real risk he will suffer significant harm.

So, in my submission, that paragraph records the factual foundation upon which the issue now before the Court rests. You then see in paragraphs 75 and 76 a discussion of “torture” and in 77 “Cruel or inhuman treatment or punishment” and in 78 “Degrading treatment”. So that is tracking the three relevant limbs of the complementary protection regime and in paragraph 79 an acceptance:

that prison conditions in Sri Lanka are poor and overcrowded -

The finding there recorded is not of torture or cruel, inhuman or degrading treatment but the finding is the applicant:

may suffer anxiety and discomfort whilst in prison. The applicant will be remanded for a short period of time, between one night to several nights -

One then has there the reference to “possibly up to 2 weeks”. That appears to be a reference back to one line that appears in the press report. Your Honours can see it at the top of paragraph 16. The press report said some spent up to a fortnight in gaol but, in my submission, I accept there is some tension there but a fair reading of the reasons, particularly the clear finding in paragraph 74, together with the country information at 64 suggests that the Tribunal was really concerned with a detention period of up to a couple of days when the Magistrates Court was not in session. That seems to have been the focus. It was in that context that the Tribunal then made the findings that your Honours have already looked at in paragraph 80.

The question all of that presents, in our submission, is whether, on a proper construction of the complementary protection regime, it was the intention of the Commonwealth Parliament to create an entitlement to a protection visa for someone who confronted a risk of detention of that character: detention for a short period of time – a couple of days – on remand prior to release.

GAGELER J: I am not sure about that. What you have taken us to shows the good sense of what Justice Buchanan said at paragraph 99, that really, on the findings of the Tribunal the level of harm does not rise to the requisite level in any event. The difficulty is that the court below, at least two members, decided the question on intention.

MR DONAGHUE: Yes.

GAGELER J: That is the question that is now before us, special leave having been granted.

MR DONAGHUE: Your Honour, I accept all of that but it is the question that is before this Court in the context of an attack on the Tribunal decision that was made based on the conclusion on a particular set of facts.

GAGELER J: Yes, but you have not put on a notice of contention.

MR DONAGHUE: No, I accept that.

GAGELER J: So we are dealing with a point of construction, are we not?

MR DONAGHUE: I accept that that is so, yes. I turn then to the question of construction and our starting proposition is consistent with the position that was put by our friend to your Honours this morning in relation – on the basis of Koowarta, in particular, that as a general proposition when Parliament uses words that are drawn from an international convention prima facie it intends them to have the same meaning as the international convention. Justice Brennan said that in Koowarta. As Chief Justice he said the same thing in Applicant A and Justice Dawson said much the same and your Honour the Chief Justice in the Greentree Case likewise put the matter as one of prima facie intending the same meaning.

The first issue that we submit really falls for decision by the Court is whether that prima facie position has been displaced in the particular context of the complementary protection regime by reference to what we submit are three important considerations.

The first consideration is that in enacting section 36(2)(aa), which is the visa criterion upon which all of the other provisions hang, Parliament departed from the model that it had used in paragraph (2)(a) where it identified the criterion as someone with respect to whom Australia had obligations under the international convention. So there Parliament just said if we have got international obligations with respect to you, you satisfy that criteria.

Plainly, it would have been open to Parliament to say the same thing with respect to non-refoulement obligations under the Convention against Torture or the ICCPR but it did not adopt that model that the Act had already used, it adopted a different model which was to set out in terms which are described in the extrinsic materials which I will come to later as exhaustive definitions. It set out the definitions that your Honours have seen this morning in section 5 of the Act.

In doing so, in our submission, Parliament recognised that as the argument in this case has demonstrated both in this Court and in the courts below that the proposition of what exactly international law requires in relation to the specific legal question is not always a question that is readily answered and rather than directing decision-makers under this Act who, as a matter of routine, were to be called upon as Mr Lloyd has pointed out, to make decisions under this complementary protection regime where people fail to meet the refugee definition rather than require them to delve into the international law and try to work out whether or not under that law Australia did or did not have protection obligations Parliament enacted the exhaustive definitions that you have seen - - -

EDELMAN J: There is a difference between, on the one hand having an approach to drafting legislation which picks up international obligations as they evolve and as they may be, and an approach which is defined by reference to international obligations but which might not evolve as time goes on.

MR DONAGHUE: I absolutely accept that, your Honour, and the mechanism chosen here is the latter of those mechanisms. So, we accept - - -

EDELMAN J: There may not be that much difference, then, between you and the appellant because the appellant has taken us to very little material after 2012. So, if it is the latter, then it still brings in all of the context up until 2012.

MR DONAGHUE: It is the latter, your Honour, but subject to this important qualification that – and I will make this good as I develop my submissions – in enacting the complementary protection regime, Parliament did not exactly translate the international obligations under those treaties. It modified them and adapted them in various specific respects. So, that is the difference between the two approaches.

NETTLE J: Modified them and adapted them deliberately so to restrict them?

MR DONAGHUE: That is our submission, and I will make it good. Indeed, that point I have just made in answering your Honour’s questions is the second of the three points I identified. So, the first was that a different mechanism was used to that used in (2)(a), the exhaustive definitions. The second point is that the way that it was done modified, in various respects, the obligations under the international treaties. And, the third, is a point that your Honour the Chief Justice and Justice Gageler have raised with my friend this morning, which is that the exercise of applying the approach from Koorwarta and the other authorities, is not straightforward in this case because we are not – in interpreting the definition of “cruel and inhuman treatment and punishment” – concerned with words that have been used that correspond to any international obligation with respect to cruel and inhuman treatment or punishment.

Instead of doing that – which would be a straightforward application of the interpretative rule upon which our friends rely – there is an additional step needed in the argument. So, our friends say the words “intentionally inflict” in the definition of “torture” in section 5, correspond to the words “intentionally inflict” in Article 1 of the Convention against Torture. Then they take the next step which says – and because the words “intentionally inflict” are used in section 5 in defining torture and also used in the definition of “cruel and inhuman and degrading treatment”, they must mean the same thing in that definition as they mean in the “torture” definition.

Notwithstanding the fact that our friends accept that, while that intention of infliction of harm is part of torture at international law, it is not part of cruel and inhuman and degrading treatment at international law. So, where you end up is with an odd sort of hybrid arrangement, whereas our friend’s submission, in our submission, if accepted, does not result in the definition of cruel and inhuman treatment corresponding with Australia’s obligations under international law.

NETTLE J: But, it does unless there are contrary indications in the Act to show that the word is used in a different sense in two different places.

MR DONAGHUE: With respect, no, your Honour, because – and it is a point, we submit, of some significance. While our friends in the court below had a debate with us about whether or not – as a matter of international law – the intention of an infliction of harm is part of the ICCPR prohibition on cruel and inhuman and degrading treatment, they now say no less than three times in their reply, we are right, the Minister is right about that, there is no such intentional element.

The moment they accept that, when you then look at the definition in section 5 – which does contain an intentional element requirement in relation to cruel and inhuman treatment – it is plain that there is a significant difference between the international obligation under the ICCPR and what has been enacted in the complementary protection regime. Because, to take an example, it is, we submit, uncontroversial that poor prison conditions can breach Article 7 of the ICCPR whether or not there is any intention to inflict harm, and I will take your Honours to an authority to that effect later.

So you can breach the international obligation without asking a question about intention. But if you ask that question in a Migration Act context you have to ask the intention question because the definition in section 5 says you have to ask it. By enacting that definition in that way Parliament has introduced that concept into the Act in a way that departs from its international law meaning.

So when our friends say to your Honours that the appropriate approach here is to interpret the provision in accordance with its international law meaning, there is a real artificiality about that because the international law meaning that they are talking about is the meaning of “intentionally inflict torture”. There is no international law, “intentionally inflict cruel and inhuman or degrading treatment” – that is not a concept that international law recognises.

NETTLE J: But they are right, are they not, that in the definition of “torture” or at least the definition of “intent” insofar as it applies to torture, Parliament intended to adopt the international meaning.

MR DONAGHUE: Yes, they are right about that.

NETTLE J: Why then would one not think that, because Parliament chose to use “intention” to limit cruel and inhuman treatment and use the same word “intention” as defined, it did not intend it to have that meaning in that latter context?

MR DONAGHUE: Well, your Honour, it might have intended. We accept, of course, that ordinarily one would assume, using the same phrase in the same Act, Parliament means the same thing, and we said as much in our submission. That is our submission about how it works, because we say those words have their ordinary meaning in both places. So, on our case, the words mean the same thing in both definitions and they bear the ordinary meaning in both. But if you do not use the ordinary meaning, if you use the meaning that corresponds to whatever they mean as the matter of international law, then that makes sense in the context of torture because, in the context of torture, Parliament has mirrored what the treaty says. But in the context of “cruel and inhuman treatment” it makes less sense because you are importing a concept from one international prohibition into a different international prohibition. So maybe you would do it, but you do not do it in order to give effect to international law.

NETTLE J: But it would make more sense to import that meaning than one from the 1915 Queensland Criminal Code, surely.

MR DONAGHUE: Well, yes, your Honour, but less sense in both cases than just giving them the words their ordinary and natural meaning in both places, which is the submission that we invite your Honours to accept.

NETTLE J: I am sorry to delay, but on that analysis, if what is said by the appellants about the international meaning of the word is correct, that would mean that in relation to torture Australia is not complying with its international obligations.

MR DONAGHUE: It would mean that if, on the assumption that what our friends say is correct, then that is the matter I will deal with in the last section of our submission. But on that assumption, it would mean that there is, to the extent of the difference, you do not have an entitlement to a protection visa under the complementary protection regime in the area of difference. But it does not mean Australia is not complying with its non-refoulement obligations because, in that gap, the person is in exactly the same position as they were for several decades prior to the enactment of the complementary protection regime.

Australia only breaches its non-refoulement obligations if it removes a person in that situation. It can deal with them in a way that does not involve the grant of a protection visa, which is what happened under the ministerial intervention powers for many decades, and it is what happens, in our submission, in any area of disconnect between the complementary protection regime and the international obligations.

EDELMAN J: The amendments that were intended to close the gap still left a gap.

MR DONAGHUE: They did not completely close the gap, your Honours. And can I say a couple of things about that. Perhaps the point is clearest in the context of – to maybe go slightly out of order, could I ask your Honours to go to my friend’s reply submissions. I am doing this just to endeavour to make it clear that the points I am about to make are, at least to some extent, not controversial. So, if you start at paragraph 7 of the reply:

the Minister’s submissions regarding the jurisprudence on art 7 of the ICCPR and art 3 of the European Convention on Human Rights (ECHR) –

which is, relevantly, the same:

also miss the point –

it said. Where:

The Minister is at pains to emphasise that contraventions of those provisions may occur absent intent . . . The appellants do not contend otherwise.

So the appellants do not contend that you need an intent requirement to show a breach of Article 7. That point is made even more clearly in paragraph 35 of their submissions in reply. It said, from the third line:

the key point that the Minister draws from these cases is that, leaving aside torture, contravention of art 7 of the ICCPR or art 3 of the ECHR does not require intent . . . As outlined above, that point is correct –

And, at paragraph 38:

the appellants do not submit that the CP Regime definition of CITP should be construed so that it is entirely co-extensive with international law.

I go to that, your Honours, because once it is accepted, as our friends repeatedly accepted, that those international obligations are not limited by an intent requirement, if your Honours then turn to the definition of “cruel and inhuman treatment and punishment” in section 5 of the Act and read the definitions, Parliament has expressly provided in paragraphs (a) and (b) that the “severe pain or suffering” to which Parliament there refers must be “intentionally inflicted”.

So, that definition cannot extend to the full reach of Australia’s non-refoulement obligations under Article 7 because those non-refoulement obligations will apply whether or not there is an intentional infliction of harm. But this regime gives you an entitlement to a protection visa only in the subset of cases where there is an intention to inflict the harm. In my submission, that conclusion is inevitable. If the words “intentionally inflict” have any work to do, they add an additional requirement that is not found in international law.

GAGELER J: It might not be entirely a subset because then paragraph (c) would be redundant.

MR DONAGHUE: Paragraph (c), in my submission, ensures that the Code, if I can use those words which I will try to make good, that Parliament has reflected in paragraphs (a) and (b) do not go beyond the outer boundary set by Article 7 but beyond that, in my submission, they – well, in fact, we make the affirmative submission that that drafting structure is not supportive of an intention to ensure that the defined terms meaning is co-extensive with Article 7.

If Parliament intended to make the meaning co-extensive with Article 7 it could easily have said so, rather than do that it means (a) and (b) but does not go beyond Article 7. So, Article 7 is being used in the definition to place a hard limit on the edge of the term but not otherwise to define the content of the term within that boundary.

But I say all of that, your Honours, because in answer to your Honour Justice Edelman, that is just one example where, if Parliament had intended to fully plug the gap that existed, recognising that there is no intent requirement for cruel and inhuman, degrading treatment, it would not have been.....so that – and that is just one example. There are several that can be drawn within this regime of areas where Parliament has adjusted or modified in implementing the regime, the obligation as it exists as a matter of international law.

As I said in answer to your Honour Justice Nettle, it does not follow from that that there will be a breach of international obligations because just as it did not follow prior to the enactment in 2011 of the complementary protection regime that there would be a breach of those obligations, it just means that Australia has to find some other way of not refouling people to whom those obligations relate.

Now, your Honours, could I go – I advanced three reasons why we submit that it is not a safe approach to this regime to treat it as simply reflecting the meaning of the relevant international obligations to which it responds and, in our submission, the better interpretation of the regime is to recognise, as the Full Court of the Federal Court recognised in Minister for Immigration v MZYYL [2012] FCAFC 147; (2012) 207 FCR 211 to which I will now take your Honours, that these are not definitions that require reference to international law in order to give them content.

They are instead properly to be recognised as a code, a statutory code by which Parliament has looked at the relevant international obligations and said these are the rules to be applied domestically in working out whether or not someone gets a protection visa, no doubt substantially reflecting the international law but to be given effect in accordance with their terms whether or not they reflect the international law and in that way freeing both administrative decision-makers and courts on review from any obligation to grapple with the vagaries of what the international law may be, one can instead rely on the definitions in accordance with their terms.

That, we submit, is the effect of the Full Court’s judgment at page 215, paragraphs 18 through to 20, to which Mr Lloyd has already taken your Honours. As we understood the appellant’s submissions, they sought really to confine these observations to observations about section (2B) of the Act and in our submission that is not a fair reading of the judgment, in particular, paragraph 18 of the judgment. If I could ask your Honours to look again at paragraph 18 – it is a long paragraph. If you look in the middle of the paragraph, after referring to the second reading speech, the Court said:

The Complementary Protection Regime is a code in the sense that the relevant criteria and obligations are defined in it and it contains its own definitions -

And far from being limited in some way to 2B:

see, by way of example –

the very definitions with which your Honours are now concerned:

the definitions in s 5 of the Act of “torture” and “cruel or inhuman treatment or punishment”.

Then the contrast is drawn that I drew earlier with 36(2):

not defined by reference to a relevant international law.

And their Honours then note that the regime uses definitions and tests that differ from the international law. An example is given of the definition of “torture”. Further, examples are then given, one of which is the (2B) example which our friends emphasise.

So it is clear that there are a number of areas of difference but, in our submission, what the Full Court was saying here, referring to the complementary regime as a whole, is that it is a self-contained code to be interpreted by reference to its own definitions and that is why in paragraph 20 the Full Court said:

It is therefore neither necessary nor useful to ask how the CAT or any of the international law treaties would apply to the circumstances of the case. The circumstances of this case are governed by the applicable provisions of the Act -

The Court went on to hold specifically in the context of (2B) that the Minister’s argument that the regime should be interpreted to align with international law was wrong and that what it should do – this is paragraphs 36 and 37 – was apply the words of the Act, notwithstanding that that gave rise to a result that, it was put, did not align with the way the international law had developed.

The court below reasoned, in our submission, in exactly the same way. If your Honours, in the appeal book, go to the bottom of 285 there is a heading “Relevance of international jurisprudence” and at 61 their Honours:

accept that at a general level it is true to say that the . . . regime was enacted to give effect to . . . international instruments –

but their Honours then examine that proposition a little more closely in paragraphs 62 and 63, which I will not read to your Honours but upon which we rely.

And referring to the explanatory memorandum, some of the case law on Article 7, their Honours accepted what at that time was a contested proposition that there was no intent requirement in relation to cruel and inhuman treatment and punishment. Having accepted that point, they then accepted that it followed that the definitions in section 5, by including that intent requirement, narrowed the implementation of those obligations.

It was in that context that their Honours then said in paragraph 63 that the general principle of construction that you construe in accordance with a treaty was of limited application and having reached all of those conclusions their Honours then in effect said that conclusion was consistent with MZYYL. In the court below, our friends submitted that MZYYL was clearly wrong. That does not seem to be a submission that has been repeated here but it was a submission, we submit correctly, rejected by the Full Court below.

That approach that the regime is a code containing its own provisions is supported by the extrinsic material. Can I take your Honours briefly back to the explanatory memorandum? Your Honours will see on the first page of the explanatory memorandum near the bottom it said:

In particular, the Bill amends the Act to –

and then the last bullet point on page 1, refers to:

provide relevant tests and definitions for identifying whether a non-citizen is eligible for a protection visa –

et cetera. That language, we submit, is totally consistent with the idea that what Parliament was here doing was enacting a code, not just providing some guidance. But where the relevant test was to be found in international law, the Act contains the test. Similarly, in paragraph 15 on page 5, specifically in the context of the definition of “cruel or inhuman treatment or punishment” you see the reference that I mentioned earlier to “exhaustively defined”. The effect of this item – inserting the section 5 definition is to exhaustively define that term and it means the act or omissions as provided in the definition. So, again, we submit, that does not suggest that one needs to look to international law to find the content of those words. They are to be found within the four corners of the Act.

So while it is true, as is reflected in paragraph 20, that the definition derives from non-refoulement obligations in the Convention, that is, we submit, quite a different thing than to say it embodies or reflects, or precisely corresponds, to those definitions. You see the same words, the same references to exhaustive definition also in the section dealing with the definition of “torture” and with degrading treatment and punishment.

Can I go from there, your Honours, to – so, our submission based on all of that, your Honours, is that the appropriate approach in interpreting this regime is the approach that was endorsed by four members of the Court in NBGM which I know your Honours heard some argument about last week. The case is in [2006] HCA 54; 231 CLR 52. The approach there explained by three members of the Court but Acting Chief Justice Gummow agreed with the joint judgment of Justices Callinan, Heydon and Crennan, was to emphasise that the appropriate approach was not to start with the international law – work out what the international law meant and then endeavour to interpret the Australian law to be consistent with it. That, their Honours said, was to invert the relevant step:

The first step is to ascertain, with precision, what the Australian law is, that is to say what and how much of an international instrument Australian law requires to be implemented, a process which will involve the ascertainment of the extent to which Australian law by constitutionally valid enactment adopts, qualifies or modifies the instrument.

We submit that it is inherent in that language that the Court is recognising that Parliament may well quite properly choose to adopt or qualify or modify the international instrument to which it gives effect. That, in our submission, is what Parliament did in various respects in enacting the complementary protection regime.

If I could note in addition to those I have already noted a few other ways in which Parliament did just that. Your Honours have already seen paragraph 36(2B) about which some submissions were made this morning. In respect of paragraphs (a) and (b) of subsection (2B) there is a reasonable argument to be made consistently with what Mr Lloyd put to your Honours this morning that while you do not see words that are reflective of the words of those two paragraphs in the Conventions anywhere, there was international law that had grown up around those international obligations which it is fair to say Parliament appears to have attempted to recognise or to embody in the Code that it was enacting, so to the extent that the international jurisprudence suggested that a person who could reasonably relocate did not get the benefit of a non-refoulement obligation under the CAT or the ICCPR Parliament recognised the same thing in (a) and (b). It is very much harder to make that kind of argument in relation to paragraph (c):

the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

Without taking your Honours to it if I could give you a reference to an academic article by Jane McAdam which is headed “Australian Complementary Protection: A Step-By-Step Approach”, a 2011 article in [2011] SydLawRw 29; 33 Sydney Law Review 687 and the relevant discussion is at 711 to 712. Professor McAdam is very critical of that provision on the basis that international human rights law does not say violations of rights are okay as long as they are sufficiently widespread. It does not require personalised mistreatment in order to engage those obligations and her argument was that that paragraph was another example of disconformity. Interestingly, Professor McAdam was, along with other submissions to the Parliament, similarly critical of the intent requirement that is at the heart of this case.

At the time the Complementary Protection Bill was first introduced in 2009 it was submitted that that intent requirement resulted in disconformity between the complementary protection regime and Australia’s international obligations. It was submitted the intent requirement should be removed in order to remove that disconformity. So the point was a live one at the time that the definition was being enacted but it did not result in any change.

Your Honours can - in the same McAdam article I just gave your Honours a reference to there is a discussion of that point at pages 698 and 700 but if I could also note the same Legal and Constitutional Affairs Committee report that Mr Lloyd took you to, the October 2009 report of the Legal and Constitutional Affairs Legislation Committee on what was then the Complementary Protection Bill, and if your Honours have that and go to page 18, paragraph 3.33 - - -

GORDON J: What is this directed at, Mr Solicitor?

MR DONAGHUE: The proposition that even before this regime was enacted, it was recognised that if an intent requirement was included in the definition of “cruel and inhuman treatment and punishment” that would mean that the Act did not line up with the international obligations.

NETTLE J: You have that in spades, though, have you not? That is agreed on all hands. This part does not line up because there is a requirement for intention.

MR DONAGHUE: Well, it seems to be now agreed, although your Honours will recall that before lunch Mr Lloyd spent quite some time submitting that the purpose of the complementary protection regime was to implement all of these unimplemented obligations and therefore it was important to interpret it to line up. We submit that that kind of submission cannot stand once it is recognised that deliberately did not line up in various respects, and so to interpret it in an effort to make it line up is to go against the qualifiers and adjustments that are found in the regime.

GAGELER J: I understood his argument to be somewhat narrower, and that was that the definition of “torture” was to be read as lining up with the obligation imposed by the Torture Convention.

MR DONAGHUE: Yes.

GAGELER J: That is as far as he goes. Then he says you take the words “intentionally inflicted” and you read them in the same way elsewhere.

MR DONAGHUE: That, your Honour, is how I understood the argument to be then put in writing, and I think that that aspect of the argument is certainly put. We understood the oral submissions to go somewhat wider, but perhaps we were wrong in understanding them in that way. But certainly - and I am referring in particular to our friend’s reliance on the second reading speech where the Minister said the purpose of this is to align the complementary protection regime - it is true that the Minister said that and it is true at a very high level of generality but it is not helpful at the level of detail because, at the level of detail, it does not line up in various different respects. But I accept I have to meet the particular lining-up point that your Honour just put to me, and that in many respects ultimately is the key point.

GAGELER J: So let us deal with that key point. Do you accept that the words “intentionally inflicted” in the definition of “torture” are to be read consistently with that terminology as interpreted in international law in respect of the Torture Convention?

MR DONAGHUE: Our primary submission is no for the code reason, that we submit that Parliament should be understood to have looked at its international obligations in enacting these provisions, but, having enacted self-contained definitions, those definitions, as a starting point, should be read in accordance with their ordinary and natural meaning.

GAGELER J: You say there is only one?

MR DONAGHUE: We say the ordinary and natural meaning is the meaning that we urge and that the Full Court adopted. The reason I answer your Honour’s question as I do is that the other answer requires you to go to the international law in order to know what the term means. Once it is said well, it means the same as Article 1 you cannot answer the question is there an intentional infliction of harm without that further inquiry and we submit that that further inquiry is inconsistent with Parliament’s intention in codifying and exhaustively defining these terms.

GAGELER J: It is a bit difficult, given that the very definition contains references to the international source.

MR DONAGHUE: I accept that, and that is a qualifier that the full Federal Court below expressly recognised in adopting the MZYYL approach. Their Honours then went on to say, in paragraph 65 of their reasons on page 287 of the appeal book, that that is subject to the qualifier that where the provisions expressly refer to the treaties then you need to refer to the treaties. So we accept that that is so. But that, in my submission, is a different exercise because that is a limiting exercise. You do not need to do it in every case, in other words.

If the international law controls the meaning of “intentionally inflicts” then you need to look at the international law potentially in every case where those words are relevant. If the international law is relevant only where Parliament says that it is relevant, which is, we submit, a reasonable way to construe these definitions, given that they use ordinary and familiar language not referable to the international law in some parts and in other places then expressly say but here you need to go and look at what the obligation under Article 7 is, that indicates that when Parliament wants you to look at Article 7 it tells you, otherwise it intends the ordinary words to be applied.

So our primary submission is you apply the ordinary natural meaning, which I am about to come to. If I am wrong about that, then the question becomes: what is the international law on this point and we have a debate about that, as it were.

GAGELER J: If he is right about “intentionally inflicted” in the definition of “torture”, is he then right about the same words as used in the definition of “cruel or inhuman treatment or punishment”? Or do you have some other argument?

MR DONAGHUE: If he is right about the definition of - about “intentionally inflicted” in the definition of “torture” he is right because of the Bjelke-Petersen interpretive approach, you assume that Parliament intended where it has used the words from a treaty to reflect the meaning of the treaty.

There is then something of an interpretive conundrum because, in our submission, there is a tension between applying that approach to a definition of “cruel and inhuman treatment” which will necessarily result in a meaning of “cruel and inhuman treatment” that does not align with international law, for the reasons I have tried to develop already. I put that badly. But if he is right about “torture”, then he has lined up the definition of “torture” and he has expressly not lined up the definition of “cruel and inhuman treatment” because he is requiring a - - -

EDELMAN J: But, on any view, the “cruel and inhuman treatment” is not going to line up with international law.

MR DONAGHUE: Indeed.

NETTLE J: But it will line up more closely if you take his definition.

MR DONAGHUE: If you take his definition as a matter of international law, that is true. I accept that that is so, but it does - - -

EDELMAN J: What could the alternative be? You have the word “intention” meaning two different things in the context of closely related provisions.

MR DONAGHUE: Well, that, your Honour, is why we, in writing, have said we think it means the same thing in both provisions and it means the ordinary meaning in both. So it would be possible to give the word its ordinary meaning in the definition of “cruel and inhuman treatment” and its special international law meaning in - that is the alternative. I accept it is not particularly attractive, but its lack of attractiveness is one of the reasons why we submit that the Code reading is the preferable one. You give it the same meaning in both and neither of those requires you to go to the international law at all, because if that is really what Parliament wanted here, the way that the definition has been structured is almost inexplicable.

It is a very convoluted way of going about saying, “Whatever the international law means is what this defined term means”. Really, we cannot do better than the reasons for rejecting that argument embodied in MZYYL.

KIEFEL CJ: It was, no doubt, known and the Parliament might have thought they were supplying a meaning in relation to “cruel and inhuman treatment, and degrading treatment” that they were not defined in the relevant international treaty.

MR DONAGHUE: I accept that that is so, your Honour, but we submit that Parliament supplied the meaning for both and the meaning that it supplied was the ordinary meaning of the words that it used. I should say, your Honours, before coming to the submissions we make about the meaning of “intent”, that while it is true there is some disconformity between the complementary protection regime and the international obligations on our approach we submit, one, as your Honours have put to me, that that is inevitable given the way Parliament defined these terms. But, two, that it is also not a surprising result because the Migration Act does that repeatedly and perhaps the most familiar definition – the most familiar way that issue will arise or arises in a matter that comes before this Court is that section 36(2)(a) makes one of the criteria for a protection visa that the person is a person with respect to whom Australia has protection obligations under the Refugees Convention.

So if you satisfy that criteria, you are a person with respect to whom Australia has protection obligations subject to some qualifications I do not need to trouble your Honours with but that is the basic starting point. Anyone who satisfies that criteria but who fails to obtain a protection visa because of some other criteria, character, national security, et cetera, will be a person who cannot get a protection visa but who nevertheless is still the object of Australia’s international obligations. So, there is a disconformity.

Perhaps even more obviously there is a disconformity for all of the people who are unauthorised maritime arrivals under the Act because those people cannot access the protection visa regime at all unless the Minister exercises discretion to allow them to do so. So while the Migration Act has there a protection visa mechanism to allow it to respond to Australia’s international non-refoulement obligations, the fact that that mechanism is there does not mean that that mechanism must be understood as applying to all of the people with respect to whom Australia has those obligations.

There are many people with respect to whom Australia has those obligations who cannot access that regime for various reasons and while initially, perhaps slightly startling that the complementary protection regime would not line up with all of the international obligations, in our submission, that consequence is a consequence with which – that your Honours encounter multiple times every year in cases arising under this Act.

Can I go, your Honours, to our submissions about intention starting with the Full Court’s reasons at page 285 of the appeal book. This is one of the paragraphs that our friends say reveals error. In a sense, I am starting at the end of the discussion but the Full Court’s conclusion was that the decision in the Queensland Court of Appeal in Ping was persuasive and their Honours say, about four lines down:

not only consistent with the authorities but, more particularly, as the Court itself said, reflected the natural and ordinary meaning of the words of the legislation, which are the same in this case. The natural and ordinary meaning of intentional infliction is actual subjective intention by the actor to bring about the victims’ pain and suffering -

So what their Honours understood that they were doing, having surveyed the various cases, was giving effect to the ordinary meaning of the words that Parliament had used in the definitions that it enacted. That, we submit, would be the usual starting point in this Court. The Court has emphasised the task of statutory interpretation must start with the words used and usually that means the ordinary meaning of the words used. Sometimes the legal meaning of the words might be different, but you would need to have a particular reason to depart from the ordinary meaning of the language. The Full Court, in this case, found no such reasons and we submit that they were correct.

In reasoning as they did the Full Court recognised – and your Honours will see this if you go back to paragraph 45 – they recognised the difference in context between the criminal law authorities that their Honours discussed and the particular context and purpose in the Migration Act. So the Full Court was not blind to that and the submissions that we make in reliance on the criminal cases, likewise are not blind to it.

But, in our submission, the criminal cases are relevant in two particular ways. The first is that to the extent that those authorities turn on the ordinary meaning of the words used they are helpful because they involve a discussion or explication of that concept. When I say “to the extent that”, in our submission the criminal law cases invariably do turn on the ordinary meaning of the words used. There is not, contrary to the appellants’ submission this morning, some special meaning of the word “intention” to reflect the higher moral culpability of people because the word is used in a criminal law context.

The criminal law context underlines the fact that very commonly the intent requirement ought to be applied by a jury. The authorities recognise, including the authorities discussed in Zaburoni, that the normal position is that the jury should not be given a direction about intent because the word “intent” carries its ordinary meaning and so it is emphasised that there are dangers sometimes in giving a direction about intention unless there is some particular feature of the case that calls for it.

EDELMAN J: Do you accept that a person can intend something that they do not desire?

MR DONAGHUE: Yes.

EDELMAN J: Then why is it not possible that if an end such as detention is intended and it is necessary, in order to obtain that end, to cause a consequence that is not desired, why is not that consequence that is caused – the treatment in prison and so on – also intended?

MR DONAGHUE: We do not say that it is not, your Honour. So it is no part of our case to deny that proposition that if a person intends to bring about a result and that - - -

NETTLE J: No, intends to put the person in prison knowing full well that it will result in the infliction of harm. Does he not intend to bring about that result?

MR DONAGHUE: This is the very discussion I was about to come to. In our submission, the short answer is very often that what your Honour puts to me would be correct. There is a line that is drawn – a useful line, in our submission, in the criminal law authorities that is somewhat blurred by the way the appellants put the case because your Honours will recall that Mr Lloyd opened this morning by saying their position is where something is intended if it will happen in the ordinary course of events.

Happening in the ordinary course of events, in our submission, is totally different to being virtually certain. In the criminal law authorities it is said that intending something that is virtually certain to have a particular result is the same as intending to do something knowing it is virtually certain to have a result is to intend the result. Your Honour Justice Nettle, in Zaburoni, surveyed some of those authorities. Anything less than a result that is virtually certain is reckless. So to run the risk that something is going to happen, even if it is a high risk that something is going to happen, is not to intend the result.

NETTLE J: It is sort of midway, is it not? There is the results intent of the kind that the Criminal Code refers to and then there is recklessness. There is knowing that it will happen in the ordinary course of events compared with there is a significant chance that it might happen.

MR DONAGHUE: The reason I qualified the answer I gave to your Honour Justice Nettle as I did is that it seems to us that the plurality in Zaburoni would deny that even doing something with the knowledge of a virtually certain consequence is the same as intent.

NETTLE J: It is not plain that they were dealing with a specific intent defence, which is the difference.

MR DONAGHUE: Yes, and on that analysis it would still be accepted that in that situation there would be a very strong inference that could be drawn of intent and so it may be that in the end the analysis ends up at much the same point, although the pathway of reasoning might be slightly different.

But on our reading, none of your Honours in Zaburoni would have accepted that to do something knowing that there was a probability alone that that consequence would follow from doing of the act could be treated as demonstrating an intent to achieve the result, a probability is not enough. There are cases referred to in Zaburoni where it has been held to be a serious misdirection to a jury to tell them that a probability of something occurring is enough to ground an inference of intention.

NETTLE J: There is no doubt that is right but you are talking about specific intent offences in the criminal law. The question is why the Parliament would not conceive of intent in this application as being more akin to results intent of the kind referred to in 5.2(3) of the Criminal Code.

MR DONAGHUE: Well, in our submission your Honour, accepting the specific intent context and accepting that the definition of “torture” and “cruel, inhuman and degrading treatment” refers to a result, so that the intent that we are looking for is an intent to bring about the result, in our submission, the plurality in Zaburoni and the plurality in the court below were right when they said that the ordinary meaning of the word “intent” does not extend to that concept, that they are just different concepts, that intending to bring about a result is not the same as running a risk, even a high risk, that the result will occur.

In our submission Parliament, notwithstanding the difference in context, here legislated in accordance with the ordinary meaning of the words in a context where the way that the Court’s understanding ordinary meaning of these words is well understood, so that if Parliament intended to use these well-understood words in a way that departed from the widespread understanding of them it would not have used those words. There were other words readily available to achieve the different result.

Of course Parliament from time to time does deliberately change the ordinary meaning of the words and that is what you see in the Criminal Code provisions, to which your Honour Justice Nettle refers. In my submission, the word “intent” in that context bears a different meaning because Parliament gave it a different meaning but not because the ordinary meaning of the word so extends.

GAGELER J: You nail your colours to the mast of a fixed ordinary meaning. If you started with contextual meaning you are in a bit of trouble, are you not?

MR DONAGHUE: Not in my submission because the context is a context where Parliament is conferring entitlement to a visa on a certain category of person. The category of person is defined in part by the question of whether they face a particular kind of harm and in defining that kind of harm Parliament has used a word, “intent”, that, in our submission, has an ordinary meaning. That ordinary meaning does not extend to doing something that might have a – to intend the result does not extend to doing something that might have that consequence. To use that word in its ordinary meaning is to do something meaning to cause the result, not taking the chance that the result will follow and we submit that there is no contextual reason here to treat that word as meaning anything different.

Can I take your Honours to Zaburoni [2016] HCA 12; 256 CLR 482 because the analysis in Zaburoni was an analysis, in our submission, that hung off the ordinary meaning of the word. So, accepting that the discussion occurred in the context of a particular kind of offence, starting at paragraph 488 in the reasons of your Honour Chief Justice Kiefel and Justices Bell and Keane - - -

KIEFEL CJ: Perhaps page 48 - paragraph?

MR DONAGHUE: Sorry, paragraph 8, page 488, in the Commonwealth Law Reports.

KIEFEL CJ: Thank you.

MR DONAGHUE: So your Honours quote there from the judgment of Justice Connolly in Willmot who refers to the ordinary natural meaning of the words:

“The ordinary and natural meaning of the word ‘intends’ is to mean, to have in mind.

It refers to The Shorter Oxford Dictionary for that purpose and then, going on in paragraph 10, still discussing Willmot:

Connolly J went on to say that if there was direct evidence of the accused’s awareness of death or grievous bodily harm as the probable result of his act, the jury might properly be directed that, if they accepted that evidence, it was open to infer from it that the accused intended to kill or to do grievous bodily harm –

and your Honours point out the tension between that approach:

There is an evident tension between this statement and his Honour’s earlier embrace of the ordinary meaning –

So the tension to which your Honours are there referring is a tension between giving effect to the ordinary meaning and to say that intending to do something that had a probable result was sufficient:

To engage in conduct knowing that it will probably produce a particular harm is reckless . . . foresight of risk of harm is distinct in law from the intention to produce that harm.

There are then references to Reid and R v Ping near the end of paragraph 11 which, in my submission, was implicitly endorsed by the plurality in this case. Then, at paragraph 14:

Where proof of the intention to produce a particular result is made an element of liability for an offence under the Code, the prosecution is required to establish that the accused meant to produce that result by his or her conduct. As the respondent correctly submits, knowledge or foresight of result, whether possible, probable or certain, is not a substitute in law for proof of a specific intent under the Code . . .

Where the accused is aware that, save for some supervening event, his or her conduct will certainly produce a particular result, the inference that the accused intended, by engaging in that conduct, to produce that particular result is compelling.

So that is why I answered your Honour Justice Nettle as I did. Foresight, whether possible, probable or certain, is not, on the ordinary meaning of the word “intent”, but it will, as paragraph 15 acknowledges, often produce an irresistible inference that intent is satisfied.

The other aspect of Zaburoni that we submit is particularly helpful is that, in paragraphs 16 through to 18, there is a discussion that picks up or that is redolent of some of your Honour Justice Edelman’s observations this morning about the difference between desire and motive on the one hand and intent on the other. In paragraph 17, the second sentence:

in law motive describes the reason that prompts the formation of the accused’s intention. The accused may fire a pistol at his business partner. His intention or purpose in pulling the trigger may be to kill. His motive . . . may be to avoid repaying a debt -

So the distinction is drawn. And then in paragraph 18 it is expressly recognised. The second sentence:

It is true that in law a person may intend to produce a particular result without desiring that result.

Which is the answer I gave to your Honour earlier and one that we completely accept. There is then:

the example of the accused who sets fire to his enemy’s house so as to spite the enemy even though he regrets the destruction of the house because it is a masterpiece of period architecture. Accepting the accused’s refined sense of regret, it hardly seems apt to say that in setting fire to the house he did not desire to destroy it.

That kind of example, we submit, really deals with the rape and the FGM examples that our friends gave earlier. It may not be desired to cause the harm in that way but, by setting fire to the house, where the consequence is an immediate and inevitable result of the action that is taken, there is not a meaningful distinction between intending to do the thing and intending to bring about the result; they are one and the same.

KIEFEL CJ: Is there only one inference available?

MR DONAGHUE: There is only one.

NETTLE J: Why must it be immediate rather than just inevitable? Take the female genital mutilation, for example, that was referred to this morning. As I understand it, the consequences could be used down the track.

MR DONAGHUE: I think, your Honour, the answer to that – and this is a matter that we have given some reflection to – if it is immediate there is no concept of causation being called into play between the intention to do the act that has the consequence right then and there versus the intention to do the act that, by a sequence of causal events, will then have a consequence.

It may be that there is no difference. I accept that in the case of the inevitable consequence, to the extent that it is ever really meaningful to speak of an inevitable consequence, that analytically they might be the same, and that is - - -

KIEFEL CJ: You might also be talking about suffering at that point and for a very long period of time.

MR DONAGHUE: A long period afterwards. In our submission, it does not matter to my argument whether you draw a distinction between “immediate” and “inevitable” as long as you draw a distinction between those categories and “merely probable”. What our friends seek to do is to invite your Honours to take “intent” beyond the “inevitable” consequence to the “probable” or “will happen in the ordinary course of events”. That, in our submission, is to stretch the language of intention further than it will go.

NETTLE J: As I understood his submission this morning, he put it as high as saying that he contends and you agree that the imprisonment authorities, whoever they may be, in the foreign country know that the results will be the infliction of the sort of thing which would constitute cruel and inhuman punishment.

MR DONAGHUE: The evidence is the evidence I took your Honours to in opening, so there was evidence that the conditions may be substandard. In my submission, that evidence falls well short of the inevitability-type example. But I think, as our friends put it – they will no doubt correct me in reply if I am wrong – they do not, I think, say that the evidence goes so far as to show that severe pain and suffering is inevitable. Their complaint is that the Tribunal should have undertaken a further examination of the facts in order to ascertain that question but that it did not because it erred in the construction of “intent”. That is, I think, how they put it. But certainly, in our submission, just on the factual record, recorded by the Tribunal, it falls well short of what - that the inevitable infliction of harm that would be required in order to satisfy that test.

The approach that the Full Court took, in our submission, was entirely consistent with that of the judgment of this Court in Zaburoni of which the Full Court was aware. Your Honours will see in the reasoning, starting at page 280 of the appeal book, in paragraph 48, their Honours record that the parties were agreed that the relevant definitions each “contained an element akin to specific intent to cause” the result, and that there needed to be, therefore, an intention to inflict pain or suffering.

In dealing with that question their Honours derived some assistance from the criminal law authorities, we submit for the reasons that I have already identified, not making the error of failing to understand the contextual difference but using those authorities to inform the meaning of the words. There is a discussion in paragraph 50 of Crabbe in this case, recognising that acting with probable knowledge it is comparable to intention but not equating acting with knowledge of a probable consequence as being the same as intention.

GAGELER J: Mr Solicitor, if you had the Criminal Code in one hand and the Migration Act in the other, is it the result of your submission that the torturer can be criminally liable in circumstances where the victim is not entitled to protection?

MR DONAGHUE: This is our friend’s disconformity point, based on the Criminal Code. The consequence of the submission is that not that the victim will be refouled because the victim – a person who fears torture will, by definition, also fear cruel and inhuman or degrading treatment and there is no intentional requirement for that obligation. So Australia’s non-refoulement obligations would extend to benefit the victim, but the victim would not be entitled to a protection visa. That is the consequence of my submission – not that we send the person back to be tortured by the torturer, who could then be prosecuted, but that the inclusion of the “intention” requirement has the consequence that follows. And the reason for that is that Parliament, in the Criminal Code, legislated to extend the ordinary meaning of “intention” in the specific way that your Honours have seen and did not do so in the Migration Act.

EDELMAN J: What was the timing of the Criminal Code amendments, compared with the amendments to the Migration Act?

MR DONAGHUE: I think the Criminal Code amendments preceded the Migration Act amendments, I believe, but I will need to check the date – my apologies, your Honour. Yes, thank you. I am indebted to my friend – the amendments to the Criminal Code were assented to on 13 April 2010 and the complementary protection provisions in the Migration Act were enacted in 2011 and commenced in March 2012. So, the complementary protection provisions followed the Criminal Code. Thank you.

Staying with the Full Court, if your Honours turn to page 283 of the appeal book, paragraph 53, there is – immediately after a reference to a number of other cases, including Zaburoni:

The preponderance of authorities to which the Court was referred establishes that intention with respect to result means to have it in mind to achieve the result.

There is, in paragraph 54, a particular discussion of R v Ping which, of course, was a torture case. And, in that case, as well – as your Honours will see in the long quote in paragraph 56, particularly the second paragraph of the quote, the Queensland Court of Appeal, again, was not giving some special meaning to “intention”:

“Intention” has no specific legal definition. It is to be given its ordinary, everyday, meaning. “Intention” is the act of “determining mentally upon some result”.

The criminal law cases were used by the Full Court in supporting its conclusion that the ordinary meaning of the language the Parliament used in section 5 was to require a person to mean to bring about the result, and those authorities, in our submission, do support that conclusion.

The case upon which our friends rely – Vallance Case – is, we submit, appropriately explained in the way that your Honour Justice Edelman put to my friend this morning. The particular way in which intent was used by Justice Kenny in the articles that Chief Justice Dixon referred to was really as a proxy or substitute for the mental element of the offence. It was giving a specialised meaning to the word “intent” in that context rather than reflecting its ordinary more natural meaning.

In writing, our friends have emphasised that one of the principles to inform the interpretation of this regime is its protective or beneficial effect. Plainly, it is correct that the persons who benefit from the complementary protection regime do receive a benefit in that they receive an entitlement to remain in Australia and to avoid refoulement to face a threat of severe harm. But, in our submission, it is not useful to apply that presumption to definitions that define the group who are to receive the protective benefit of the legislation because it becomes circular.

Parliament only intends to be protective or benefit a particular group of people and one cannot change the group of people in order to then increase the class who are to benefit. So if, for example, Parliament legislates to benefit single mothers, it cannot be said because the legislation is beneficial, it should be extended to include single women or single fathers because – while that would extend the benefit – it would not give effect to a presumption that the legislation is to benefit the group that Parliament has identified.

To some extent, that reasoning is – well, before I come to it, one would, if our friend’s approach was correct, expect to find in the migration context decisions giving effect to that presumption because the complementary protection regime is no more beneficial than the refugee visa regime. One would think that whenever an interpretive question arises in the context of those regimes, if a beneficial interpretation is to be adopted, then it should equally be adopted in resolving interpretive dilemmas in the context of the refugee parts of the Act.

Our friends do not cite, and we have been unable to locate, any authority applying that presumption in that context, we submit, appropriately for the reasons that I just gave. We have, however, located a decision of the Full Federal Court which we have given to your Honours in the case of H v Minister for Immigration and Citizenship [2010] FCAFC 119; (2010) 188 FCR 393.

This was actually a case about the Citizenship Act rather than refugee issues, but on page 404, paragraph 42, in a joint judgment of Justices Moore, Kenny and Tracey, their Honours rejected the application of this presumption to the interpretative question that arose in that case as to the reach of the Citizenship Act provisions because, while they accepted that – and reading the middle of paragraph 42:

the Citizenship Act was “intended to benefit those people who seek to be Australian citizens” –

their Honours said near the end of the paragraph:

however, the provision is not intended to benefit a person who does not fall within s 16 and, if a person does not have a citizen parent within the meaning of the provision, then the benefit of the provision does not extend to him or her. That is, so far as the present question is concerned, the principle to which counsel referred has no useful application.

We submit, by parity of reasoning, the same follows here.

KIEFEL CJ: As a question of general principle, there were a number of comments in recent years made in decisions of this Court about the limits for the use of beneficial purposes to extend the reach of legislation.

MR DONAGHUE: Yes.

KIEFEL CJ: But I understand you are trying to find something within a particular statutory regime.

MR DONAGHUE: Something more specific, indeed, your Honour, and we of course embrace that analysis. Your Honours, can I come finally to the international law? Your Honours will of course understand that our primary submission is that your Honours should interpret the definitions as a code and therefore that the international law cases do not advance the task of construing the meaning of the words “intentionally inflicts” as recorded in the relevant definitions.

If that is incorrect, then it would seem to follow that it is necessary in giving effect to the words “intentionally inflict” to try to work out the meaning of those words in international law and, as the materials marshalled below and here demonstrate, that may require recourse to material as diverse as the non-binding recommendations of the Committee Against Torture established under the CAT decisions of the European Court of Human Rights, decisions of the International Criminal Tribunal for the former Yugoslavia - Human Rights Committee decisions.

As one would expect, they do not speak with one voice. So one does not readily find a single identifiable answer to the question what does international law on this topic require? That difficulty in and of itself is one reason why the Code interpretation is to be preferred, because it overcomes the need for contestable judgments to be reached about the criteria that are required to be applied.

There is a body of material; there is also some academic commentary referred to in the materials we have put before the Court that tries to pull together some of the international learning on the topic. We have given your Honours - and I will not take your Honours to the references - but we have given some extracts from texts by Cassese who is a former President of the International Tribunal for the former Yugoslavia. In his book, International Criminal Law, he writes at paragraph 56:

criminal intent (dolus) is always required for torture to be an international crime. Other less stringent subjective criteria (recklessness, culpable negligence) are not sufficient -

In Nowak and McArthur, The United Nations Convention Against Torture: A Commentary at paragraphs 106 and 107 the point is made that the United States in drafting of the torture conventions sought to include within the Convention a reference to:

‘deliberately and maliciously’ inflicting extremely severe pain or suffering.

That proposal was not successful, but the learned authors say that the interpretation that the United States sought to have included does not:

go beyond the requirement of intention as spelled out in . . . Article 1 –

in any event. So:

The intention must be directed at the conduct of inflicting severe pain or suffering as well as at the purpose to be achieved by such conduct –

is what the learned authors there wrote. So, there are some materials – I think our friends have given your Honours an extract from Joseph and Castan on the ICCPR. The authors of that text say that perhaps recklessness is sufficient. They do not cite any authority or decisions of any courts or tribunals to support that view, but that view is there reflected.

I want to take your Honours to two cases. One, you have already gone to, Kunarak. But can I start with the decision of the European Court of Human Rights in Kalashnikov v Russia [2002] ECHR 596; (2002) 36 EHRR 34. This is a case about prison conditions under Article 3 of the European Convention on Human Rights which, as I have mentioned, the same as Article 7, relevantly; the same as Article 7 of the ICCPR. If your Honours, once you have got that case, go to page 17.

KIEFEL CJ: I am sorry, page?

MR DONAGHUE: Page 17, paragraph 92.

NETTLE J: I think our pagination may be different to yours.

KIEFEL CJ: You have got the EHRR.

EDELMAN J: It is 607.

MR DONAGHUE: Thank you, your Honour. If I could work from paragraph numbers, then, that might be convenient. So, paragraph 92, hopefully under the heading “Alleged violation of Article 3 of the Convention”. Your Honours will see the terms of Article 3 there recorded and the point to note for present purposes is that it refers to torture and to inhuman and degrading treatment, so it includes all of those prohibitions.

The facts of the case are extraordinary in that it is a prison detention case involving – and your Honours will see this in paragraph 96 - a period of detention of the applicant for a period of some four years and 10 months. The conditions in which he was detained are explained by the Court in paragraph 97 in particular, and they include a cell of around 17 to 20 square metres - there was a contest on the evidence - designed for eight inmates. Throughout the period of time there were between 18 and 24 persons in that cell. Each bed was used by two to three inmates. They had to sleep in shifts. You will see about two-thirds of the way down paragraph 97, it is suggested that the space available to the prisoners at:

any given time there was 0.9 to 1.9m2 of space per inmate –

The lights were left on all the time and people slept in shifts. Near the end of paragraph 97:

the applicant was allowed outdoor activity for one or two hours a day, the rest of the time he was confined to his cell –

which was “infested with pests”. The conditions were, on any view of it, poor. To detain someone in that state for a period of nearly five years can, in my submission, readily be seen to result in the conclusion that that person suffered severe pain and suffering – or degrading treatment – which is what the Court, ultimately, found.

The way that the Russian government defended the case, your Honours will see in paragraph 93, and it is redolent of the remarks recorded by the Tribunal in this case about what was said by the Sri Lankan government about the prison officials. So, it was said:

The conditions did not differ from, or at least were no worse than those of most detainees in Russia. Overcrowding was a problem in pre-trial detention facilities in general. The authorities had had no intention of causing physical suffering to the applicant or of harming his health.

Then, in 94:

It was acknowledged that, for economic reasons, conditions of detention in Russia were very unsatisfactory and fell below the requirements set for penitentiary establishments in other Member States . . . the Government was doing its best to improve conditions –

As I mentioned, the court found in this case that there was a contravention of the prohibition on degrading, humiliating and degrading treatment. Your Honours will see that in paragraph 101. But, in paragraph 101, the Court records:

that in the present case there is no indication that there was a positive intention of humiliating or debasing the applicant. However, although the question whether the purpose of the treatment was to humiliate or debase the victim is a factor to be taken into account, the absence of any such purpose cannot exclude a finding of violation of Art. 3.

So, this is one of the authorities that shows there is no intent requirement in relation to that prohibition:

It considers that the conditions of detention, which the applicant had to endure for approximately 4 years and 10 months, must have caused him considerable mental suffering, diminishing his human dignity and arousing in him such feelings as to cause humiliation and debasement.

On that basis, their Honours find a breach of Article 3. Their Honours do not, expressly, explain why they did not find torture. On our friend’s case, they should have found torture because it is said that, as a matter of international law, an intention to bring about a foreseeable consequence is sufficient to meet the elements of that definition.

KIEFEL CJ: Would the purposes for the detention have been not aligned with torture?

MR DONAGHUE: Sorry, your Honour, I accept that. I should.....“cruel”. So, there would have been a question that needed to be raised about whether or not the torture definition was satisfied. But, certainly, in the context of that set of facts, one ends up in a – as a matter of international law on this set of facts, one does not need to ask an intentional question. One just says that is a breach of the obligations.

On our friend’s case, under the complementary protection regime, you do ask a question about intention and you then infer the intention. The court seems to have dealt with this set of facts not by inferring an intention or identifying that something that will happen in the ordinary course of events is to be regarded as intentional. Their Honours just say you do not need intention and therefore find the breach on that basis.

Now, I do not seek to overplay what we get from that case, but that case is closer than any of the other authorities before the Court as to the factual situation here although, obviously, the conditions are far more severe than were found by the Tribunal to exist here.

GAGELER J: And Mr Kalashnikov would not get protection under this regime – under our regime on - - -

MR DONAGHUE: He could not be refouled under our regime.

GAGELER J: Well, he would not face cruel or inhuman treatment or punishment, according to the statutory definition as you read it?

MR DONAGHUE: Yes, but he would have the protection of Australia’s international obligations under Article 7 of the ICCPR because we accept that that is an accurate statement of those international obligations, so he is in the category of person who would need ministerial intervention in order to obtain a visa. But he could not be removed without breaching Australia’s non-refoulement obligations. The other case, your Honours, and the final case I wish to take your Honours to, is Kunarac.

EDELMAN J: Just before you move from Kalashnikov, why is it that you say that the Russian authorities would not intend that as a result, even if they did not desire it as the result? In other words, the Russian authorities would have known of the conditions in the sense that they would have known those conditions were inevitable, so, given that they intended the result of detention, why do you say that they did not also intend the inevitable suffering as a consequence of what they knew the conditions were?

MR DONAGHUE: Part of the answer to that, your Honour, is that it is difficult to apply these concepts in the abstract at the level of a government rather than at the level of a person who might commit torture or inflict cruel or inhuman degrading treatment. Once one starts to try to move the level of analysis from the level of the authorities generally to the level of particular people, such as the judge who orders, for example, a person to be detained, a Russian judge faced with a serious criminal might find that the serious criminal has committed an offence that requires the person to be sent to gaol.

That judge might then order a sentence of imprisonment but have no idea which gaol the relevant person is going to end up being sent to. Some of the gaols may have the appalling conditions; some of the gaols may not. In that situation, we submit it cannot be concluded that the suffering of the conditions is the inevitable consequence of sending the person to gaol, and so it is the causal issue I was addressing earlier in answer to the Chief Justice’s question. We submit that, at least at the level of the immediate result, then I accept the analysis that your Honour puts, that one can just say, well, because you intend the result the putting of the person in gaol if – well, no, that is not a good example, but the rape example or the FGM example we submit is accommodated within that.

But as one starts to get to consequences of the Act rather than direct or immediate components of the Act, then in our submission unless the person means to bring about the consequence or perhaps, as I have said in answer to Justice Nettle, it is an inevitable consequence, then we submit that the person does not intend it. If the facts got to the point where all of the prisons were so bad that it was an inevitable consequence of the sentencing order that the consequence would follow, then we might be in that territory, but that, we submit, is a long way short of our friend’s “what might happen in the ordinary course of events” analysis.

I do not know if that has answered your Honour’s question, but there is some difficulty in drawing the line in the hard cases between what is just an inference from a virtually certain result and what is properly described as an intention that they blur, as I think paragraph 15 of Zaburoni recognises.

EDELMAN J: So you say that that approach is the one that the Full Court applied?

MR DONAGHUE: Yes. As to Kunarac, your Honours, could I invite the Court to turn to paragraph 137? The argument was an argument whereby the appellants were attempting to escape responsibility for their crimes by saying that their motivation was sexual rather than to inflict harm, and unsurprisingly the Court was not attracted to that argument, amongst other things, because it is an argument that tends to blur the distinction between motivation on the one hand and intent on the other in the way that Zaburoni emphasises should not occur.

If your Honours turn to paragraph 142, your Honour Justice Gageler asked my friend a question which arose from an observation in paragraph 153, where the court said:

In view of the definition, it is important -

The definition, in our submission, to which that passage refers is what your Honour sees in paragraph 142: it is not the CAT. In 142 you will see:

With reference to the Torture Convention and the case-law of the Tribunal and the ICTR, the Trial Chamber adopted a definition based on the following constitutive elements -

You see essentially that same definition in other decisions of the International Criminal Tribunal, including the Furund’ija Case, which is another case we have given you in the materials. One of the striking things about that definition, when you look at it with the eye at least of an Australian lawyer, is that it does not link the requisite intention to the result. So in paragraph (i) there is a requirement to inflict:

by act or omission, of severe pain or suffering -

No difficulty there. And then:

The act or omission -

that is, the act or omission that inflicts the severe pain or suffering:

must be intentional.

But nowhere does it say the result must be intentional. That tends to illustrate the difficulty of picking up decisions decided in international legal contexts with different legal traditions and trying to apply them then in an Australian domestic context, because the analysis does not ever really fix upon the critical issue that your Honours are currently considering in terms of what intention is required in relation the result. The Court does not identify the elements in that way and never ties its analysis to that particular point.

The next thing to note about this case, your Honours, is at paragraph 150 where the Court makes an observation that very closely parallels some questions that your Honour the Chief Justice put to my friend this morning about the particular characteristics of rape and sexual violence. And in the last sentence, particularly, at paragraph 150:

Sexual violence necessarily gives rise to severe pain or suffering, whether physical or mental, and in this way justifies its characterisation as an act of torture.

Having said:

some acts establish per se the suffering of those upon whom they were inflicted.

I think your Honour the Chief Justice put to my friend that the particular observations that he was relying on were really reflective of that idea. In our submission, they very much were, as is apparent from the discussion only a few paragraphs earlier – rape is a kind of conduct where intending to rape necessarily means you are intending to inflict serious harm. There is no meaningful distinction between those ideas.

GORDON J: So in relation to the examples that Mr Lloyd gave us does that analysis extend - - -

MR DONAGHUE: To almost all of them, your Honour. I think it extends to (b), (c) and (d). And so, to that extent, there is no difference in that we submit that all of those examples are examples where it would be open to find an intentional infliction of harm.

So then, of course, when one gets to paragraph 153 in the context of the other paragraphs I have just taken your Honours to, it is, in our submission, far from apparent that what the Court is there doing is giving an authoritative international exposition of what the intent requirement is with respect to the result of inflicting pain or suffering. And yet that is really the high point of our friend’s case when they say that international law does require, though it does have a meaning that is of the kind that they urge such that notwithstanding the ordinary meaning of intent, your Honours should find that that word extends to a situation where one does something, taking the risk that in the ordinary course of events it might have a particular consequence. That, we submit, is not “intent” – it is not “intent” in domestic law and this case is not authority for the proposition that that is “intent” in international law, either.

The Rome Statute, in our submission, does not take our friends anywhere because the provisions for a number of reasons but, most importantly, because the wording that it uses both in qualifying and hedging about the torture prohibition but then also in defining the intent element has no parallel in the CAT. Similarly, the Criminal Code cannot, in our submission, legitimately be used to – or the definitions in the Criminal Code cannot legitimately be used to effect the meaning of a different Act and that that is so irrespective of the order in which those definitions are passed.

I think our friend tried to use the definitions by saying, well, the enactment of those definitions is Australian opinion juris that can then be used to inform the meaning of international law. In our submission, one difficulty with that analysis is that opinio juris is, as your Honours know, a concept about the meaning of customary international law.

The agreed position is that the CAT as an international convention was the source of the meaning of these words and to seek to use the Acts of one State party to the convention in enacting particular domestic law as a source could tell one anything about the meaning, isolated from any other evidence about State practice or opinio juris or any argument that the meaning of the convention has evolved in accordance with customary international law is, we submit, not to create a legitimate mechanism by which the definitions in one Act can affect the meaning of another.

The last point, your Honours, we seek to make is responsive to the point that Mr Lloyd sought to make from the ministerial guidelines that he handed up. The submission seemed to be that our contention that it was possible for the Minister to respond to Australia’s non-refoulement obligations by using other powers was inconcsistent with our own documents, in our submission, cannot be made good.

If your Honours go to section 4 of that guideline, this is in the cases that should be referred to the Minister and go to the second last bullet point:

a person’s particular circumstances or personal characteristics provide a sound basis for believing that there is a significant threat to their personal security, human rights or human dignity if they return to their country of origin, but the mistreatment does not meet the criteria for the grant of any type of protection visa.

That is exactly the case that we put to your Honours, that they do not meet the requirement for a protection visa because of the intentional requirement. There is no reason to read these guidelines as excluding that scenario.

It is also, in our submission, doubtful that our friend’s submission that when the next bullet point talks about people who are being excluded from the grant of a protection visa that line is properly to be read as limited only to paragraph 36(2C), which was the way Mr Lloyd invited your Honours to read it.

Paragraph 36(2C) does not talk about a person being excluded from eligibility for a protection visa; it just says a non-citizen is taken not to meet the criteria. So a person is no more excluded by that provision than they are by any other provision to be or the definitions that cause them not to meet the criteria.

So, in our submission, your Honours should not accept that there is any reason that in cases that fall outside the entitlement to a protection visa that there is any reason that the Minister cannot respond to those cases in exactly the way that those situations were dealt with for several decades

before the enactment of the complementary protection regime. Unless your Honours have any questions, those are our submissions.

KIEFEL CJ: Yes, thank you. Any reply, Mr Lloyd?

MR LLOYD: Yes, your Honour. I think an answer to your Honour Justice Edelman’s question, my friend said that the court below applied his virtual certainty approach to the matter. That is simply not correct. It was not even before the court below. In paragraph 46 of our submissions in reply, we noted that there was a shift in the Minister’s position in relation to saying, well, intent is not just limited to desire; it can be made out if there is this virtual certainty that the harm will happen, and we say in paragraph 46, well, that is enough for us to win. It is not as good as we want to win, but that is enough for us to win, because that is not what the Tribunal said.

The Tribunal rejected our case. It did not make all of the factual findings that needed to be made. My friend was right in saying that is what we say because it came to the view that there was no intent, and there was no intent because there was a lack of resources. They really wanted to stop pain and suffering, but there was a lack of resources. So, it did not look whether something was a virtual certainty or likely. On either of those positions, we succeed, admittedly on one not as helpfully upon remitter as on the other. But on any view, the Tribunal did not apply that. All the court below did was find no error in what the Tribunal did. So, to that extent, we make that point upfront.

Our case fell into three broad propositions. The first proposition is we said that the word “intent” is broad enough to have more than one meaning, or is able to have more than one meaning, and at no point has the Minister rejected that proposition.

I think your Honour Justice Gageler specifically asked if he is saying that is the only meaning, and he says it is the ordinary meaning. We have not disputed that there are lots of criminal law cases that say it is the ordinary meaning and no doubt in the criminal law context it may well be the ordinary meaning. That is neither here nor there.

We then say there are two other ways we get to the solution that we say is the correct solution. The two ways are materially independent and the way my friend sought to answer them runs them together in a way which we think tends to conflate the issues.

The first way we get to our answer is we say what do the words “intentionally inflicted” mean? We say that they were all brought in the same Act at the same time. We know that the words are used in the Convention against Torture. They are drawn from the Convention against Torture. That is common ground. Then, in relation to two other definitions or two other things which are not defined in the treaties, they are implemented and inserted into those two other things.

Now, our first proposition is to say in an Act the same language inserted at the same time should have the same meaning. It is not a radical proposition. In fact, in their paragraph 39, we thought they even agreed with that, but it is not clear that they agree with that, so let me make that point.

We then say, well, what does it mean? It means what it means in the Convention against Torture. That is where it is drawn from. They say no, because of MZYYL it is a code and the Code excludes the Torture Convention meaning, and they say, well, when you look at the complementary protection regime there is a number of things in it that are not ad idem with the underlying or the related international instruments.

We agree. The security point that I pointed out in section 36(2C) is an express exception, treated in all the extrinsic material as an express exception, that is one. Another, posited by my friend, is section 36(2B)(c) – maybe that is true. It is not a matter in this case. What is clear, we say, is that there is no modification. So even accepting, of course, that the Parliament can modify the language, they did not modify the language of the definition of “torture” in relation to intentionally inflicted. In those circumstances, we say that the normal approach should apply. The purpose of the definition of “torture” is to fulfil Australia’s non-refoulement obligations. There is no reason, whatsoever, to read it down in some way. We say that it should have the international meaning.

Then, there is a dispute as to what the international meaning is. I will not take the Court to it – we address all of those matters of dispute in our submissions in reply. There is the Kalashnikov Case. The Kalashnikov Case was not a torture case. So, query what it can actually tell us about the definition of “torture” because – although as an Article 3 case there was – nowhere did Mr Kalashnikov assert that there was intention. He knew that under the cruel or inhuman or degrading treatment, intent is not a requirement. He did not assert that it was a requirement and, not surprisingly, the Court did not rule on whether or not there was intent because it was never advanced in that way. So, the case tells nothing about what the intent requirement in the Convention against Torture says.

Then, reliance is placed upon what is said by Professor Cassese and Nowak. We respond to that in our reply in submissions 49 to 51. But in both of those passages they deal with different issues. They do not actually say what “intent” means and they certainly do not say anything inconsistent with our construction of “intent” and we rely upon that. The publicists that we rely upon are criticised for not citing any authorities and yet their publicists also do not cite authorities, for what that is worth, as a passing shot.

So, then we say at least in an Australian court, the behaviour of the Australian government to give effect to its Torture Convention obligations is relevant opinio juris. I thought I made it clear this morning that I was not saying that what is in one Act necessarily affects the construction of another Act, but it is relevant in the way I have indicated, as is the Canadian approach. They are all sources of international law.

Now, that I think is all I want to say about that. Now, the other and separate way we get there to our construction is we say, well, putting aside the Convention against Torture, there is a need to construe the word “intention” in this context where it serves a particular purpose. What purpose does it serve? There is a beneficial purpose. The beneficial purpose is not the granting of protection visas.

We did not say it was. The purpose is so that people to whom Australia owes non-refoulement obligations do not have to go through the application/fail, application/fail ministerial intervention path but instead have access to an accountable, efficient and transparent process. We say that was the mischief that it was designed to achieve and so one should ask in construing the word “intent”, accepting that our view of “intent” is open as a possible way of construing the word, which one better achieves the purpose of the legislation.

And I think my friend accepted that our construction would lead to more people who are owed non-refoulement obligations going through the efficient, accountable, transparent process than his system which he says will result in the Minister having to use the ministerial intervention power which was the exact way it used to be and was a move away from that. They take issue with our notion that their documents lead to the view that they do not actually apply it in the way that they have submitted, but my friend did not explain the notion that the Minister does not want to hear any request that raises claims in relation to Australia’s non-refoulement obligations. So, we say, that is not cogent at all.

In relation to our second way of putting it, we acknowledge, as my friend pointed out, that – it is common ground between us that Article 7 of the ICCPR does not require intent. Now, where there is a difference between us is that they say, in fact, Parliament knew this or had to know it. We say, your department told them it was reflective of current international law. Why should the Court assume Parliament knew were experts on international law when the departmental submission said that it was co-extensive? Their definitions gave effect to existing current international

law, and the Minister in his second reading speech indicated that the definitions were to give effect to those obligations.

So there is a point there but perhaps ultimately nothing turns on that, except that we say that it should not be construed on the basis that Parliament knew they were doing something narrower and therefore one should then entirely disregard the ambit of the non-refoulement obligations. We say that, in any event, the intention was to get people out of the secret ministerial intervention system and into an open, transparent system, and a construction which does that broadly is consistent with the object of the provisions.

EDELMAN J: Does that construction depend upon accepting your view about what “intention” means at international law?

MR LLOYD: That construction is completely irrelevant to “intention” because the first construction turns under the CAT meaning of “intention”. On any view, our view of “intent” will embrace more people into the transparent and open system than the Minister’s view. It does not give any additional people. There are no people who come in that would not be in, because there is no intent requirement; it just brings in more people into the open scheme.

Our submissions in paragraph 28 in reply have made it abundantly clear that at all times we said in relation to this argument that construction should be preferred because it goes as far as possible - as far as the language can properly bear, it avoids the disjunction, not that there will be no disconformity. We accept there will be disconformity, but a construction that reduces that disconformity advances the policy of the legislation.

One point again was put against us that there are many instances where disconformity arises and they gave the example of the offshore entry person or the unauthorised maritime arrival. I note that in the extrinsic material on page 1 of the explanatory memorandum that is expressly identified as being a group that is outside that, but then said that they are doing a mirror administrative scheme to have the same result, whatever that means.

So, it is not a situation where Parliament was uninterested in the level of disconformity. The disconformities, so far as the legislative extrinsic material suggested, was the security character cases and the offshore entry person cases. There is no suggestion that – and by the way, our definitions are really quite different to our international obligations so there will still be a bunch of other cases where the Minister’s intervention will be used. May it please the Court, they are our submissions.

KIEFEL CJ: The Court reserves its decision in this matter and adjourns to 9.45 am tomorrow for pronouncement of orders and otherwise until 10 am.

AT 4.13 PM THE MATTER WAS ADJOURNED