A PURPOSIVE APPROACH TO INTERPRETING AUSTRALIA'S COMPLEMENTARY PROTECTION REGIME.

• Date: 01 December 2019
• Author: Lloyd, Alice

I Introduction II SZTAL and Intention A The 2011 Complementary Protection Amendments 1 Background and Enactment 2 The Intention Requirement (a) A Deviation from the International Definitions (b) Early Consideration of the Intention Requirement B SZTAL v Minister for Immigration and Border Protection 1 Summary of Case and Earlier Decisions 2 The High Court Decision C Interpreting 'Intention' 1 A Lack of Judicial Consensus 2 Multiple Potential Meanings: Considering Oblique Intention III The Need for a Purposive Approach to Interpreting Intention A The Primacy of Context and Purpose in Interpretation 1 The 'Modern' Approach 2 The Context and Purpose of the Complementary Protection Regime 3 Addressing the Addition of the Intention Requirement (a) The Limitations Posed by the Dualist System (b) A Purposive Approach to Interpreting 'in Substance' Implementation of International Obligations B An Alternate Justification: Consistency with Common Law Rules of Interpretation 1 The Principle of Legality and the Presumption of Consistency with International Law 2 Responding to 'Counter-Majoritarian' Arguments and Concerns for the Dualist System IV Applying the Purposive Approach A The Meaning of Intention Arising from Consideration of the International Context 1 A Settled International Meaning of Intention? 2 The Contextual Reason to Adopt a Broad Understanding of Intention B A Theory-Based Rationale for a Broad Interpretation of Intention 1 The Autonomous Meaning of the International Prohibition against Cruel, Inhuman or Degrading Treatment or Punishment 2 The Content of the Prohibition against Cruel, Inhuman or Degrading Treatment or Punishment (a) Dignity-Focused (b) Victim-Centred 3 The Archetypal Status of the Prohibition against Cruel, Inhuman or Degrading Treatment or Punishment C A Proposal for Interpreting the Intention Requirement V Conclusion I INTRODUCTION

Consider the facts of Kalashnikov v Russia, (1) a case that came before the European Court of Human Rights ('ECtHR'). A man is charged with a crime and placed in detention pending a hearing before the city court. For the duration of his incarceration, he is kept in a small cell with no ventilation. There are eight beds in the cell, but it usually holds 24 prisoners. The inmates take turns to sleep, but sleeping is difficult because the lights are always on, and the television always playing. A single toilet is located in the corner of the cell, with no screen to offer privacy to the inmates. Meals are eaten at a dining table a metre away. The cell is overrun with cockroaches and ants. The man endures these conditions for four years and 10 months.

There is no doubt that the government and local authorities are well aware of the substandard conditions of the facility. (2) Can it be said that they intend to subject the man to these conditions? The answer is not immediately clear. It depends on 'why the question is asked'. (3)

Domestic complementary protection legislation was enacted in 2011 to enhance Australia's compliance with its international non-refoulement obligations. (4) Specifically, the legislation sought to widen the scope of protection visa legislation to cover applicants who would be subjected to torture or cruel, inhuman or degrading treatment or punishment ('CIDTP') in the country that receives them. (5) Buried within the new provisions was, however, a definitional requirement at odds with the understanding of CIDTP in international law. (6) In this article, I examine the domestic requirement that, for the purpose of meeting protection visa criteria, the CIDTP an applicant would face upon return to another state be intentionally inflicted. (7) I do not seek to mount a challenge to the CIDTP definitions in the enacted complementary protection legislation. Rather, I take the law as it stands, focusing upon the role of the judiciary in its interpretation.

In three parts, I make the argument that the meaning of the intention requirement in the complementary protection regime cannot be given a textual interpretation isolated from the context and purpose of the statute. Recourse to the statute's purpose--compliance with Australia's international non-refoulement obligations (8)--is required to inform the correct interpretation of intention. I argue that an understanding of intention that sees known consequences of an act as intended should be adopted. This is on the basis that it best aligns the domestic complementary protection regime with the international complementary protection obligations that Australia has sought to implement.

In Part II of this article, I discuss the 2017 case of SZTAL v Minister for Immigration and Border Protection ('SZTAL'), (9) in which the High Court of Australia upheld the rejection of two protection visa applications by the Refugee Review Tribunal ('RRT') on the basis of the intention requirement. The applicants were two Sri Lankan men who credibly claimed that upon return to Sri Lanka they would be imprisoned in 'shocking conditions'. (10) The Court confirmed the RRT's finding that the Sri Lankan authorities did not intend--in the actual, subjective sense of the word--to subject the applicants to these conditions. (11) Following an analysis of the case, I argue that the appropriate meaning of intention cannot be ascertained in the abstract, because intention is capable of multiple meanings. One possible meaning of intention encompasses knowledge of practically certain consequences, which can be described as 'oblique intention'. (12) The correct interpretation of the intention requirement in the complementary protection regime is dependent on the statute's context and purpose.

On this basis, I then proceed in Part III to advocate for a 'purposive approach' to interpreting the intention requirement. I use the term 'purposive approach' to refer to purposive theory, which calls for judicial consideration of a statute's purpose and context in interpretation, as compared to a strictly literalist approach. (13) The argument for a purposive approach builds on the dissenting judgment of Gageler J in SZTAL, who interpreted the intention requirement in light of the expressed purpose of the Australian complementary protection regime: alignment with Australia's international nonrefoulement obligations. (14) In contrast, the majority paid only lip-service to international law, finding that the absence of a settled meaning of intention in the international context marked the end of its relevance. (15) As distinct from existing academic discussion, I focus specifically on the implications of the purposive approach for judicial engagement with international human rights law. (16) I argue that the proposed approach ensures that the judiciary has regard to international law when interpreting the complementary protection regime--a statute that purports to implement international obligations but deviates in its terms from those obligations. My argument is reinforced by a second proposition, founded in the normative understanding of the principle of legality and the presumption of legislative consistency with international law. I propose that the judiciary should only accept legislative interference with the right to non-refoulement where clear statutory language to this effect is discernible. (17)

Finally, in Part IV of this article, I apply the purposive approach to ascertain the correct meaning of the intention requirement, informed by the international human rights law context of the complementary protection regime. Firstly, I argue that regardless of whether a settled meaning of intention exists under international law, the international context of Australia's complementary protection regime is central to its interpretation, and necessitates a broad understanding of intention. Secondly, I argue that the Australian judiciary should seek to uphold the international 'autonomous' meaning of the CIDTP prohibition at the core of Australia's complementary protection obligations. I unpack the nature of this autonomous meaning, before proposing a reading of intention that does not detract from it. A normative facet to this argument is developed by drawing upon Jeremy Waldron's theory that the international CIDTP prohibition is 'archetypal' of the international human rights law regime, (18) providing strong reason not to diminish its integrity in domestic law. I conclude that a broad interpretation of intention, which better facilitates the purpose of the complementary protection regime, is available on the text. This interpretation should be preferred to a narrow one that causes the legislation to depart significantly from the international human rights obligations it is designed to implement.

II SZTAL AND INTENTION

A The 2011 Complementary Protection Amendments

1 Background and Enactment

Section 36(2)(aa) of the Migration Act was introduced by the Migration Amendment (Complementary Protection) Act 2011 (Cth) to 'align' Australia's protection visa process with its complementary protection obligations under international law. (19) 'Complementary protection' is a technical term of international law referring to a state's obligations not to return an individual to another state where they will suffer significant harm. (20) The complementary protection principle extends beyond, and is complementary to, the obligation for a state to protect those who meet the legal status of 'refugee' pursuant to the 1951 Convention Relating to the Status of Refugees ('Refugee Convention') and the 1967 Protocol Relating to the Status of Refugees. (21) This expanded set of non-refoulement obligations is inferred from a number of international agreements that prohibit the subjection of a person to torture or CIDTP, including the International Covenant on Civil and Political Rights ('ICCPR') (22) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ('CAT'). (23)

Australia's complementary protection legislation...