Commission Submission: Ashmore

IN THE CORONER'S COURT OF
WESTERN AUSTRALIA

INQUEST INTO THE DEATH OF NURJAN HUSSEINI AND FATIMEH HUSSEINI (ASHMORE
REEF)

OUTLINE OF SUBMISSIONS OF
THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION IN SUPPORT OF APPLICATION
FOR LEAVE TO INTERVENE

1. The Coroner has
jurisdiction, relevantly, "to investigate a death". See s 19(1)
of the Coroner's Act 1996 (CI) (the Act). Also see the definition
of "investigation" in s 3 and ss 8, 25(1) - (3), 27(3) - (5),
44(2), 46(2) and 50 of the Act. Cf s 6(1) of the Coroner's Act 1920
(CI) which limited the jurisdiction of the Coroner, relevantly, "to
inquire into the manner and cause of the death of [a] person".

2. (a) In the present
case, the Coroner is sitting as the Coroner for Christmas Island.

(b) The Coroner's
authority derives from an Act of the Commonwealth Parliament which applies
the Coroner's Act 1996 (WA) as part of the law of Christmas Island.
See page 2 of the transcript of proceedings on 6 September 2002.

3. The Human Rights
and Equal Opportunity Commission Act 1986 (Cth) (the HREOC Act) provides,
relevantly:

(a) s 3(1) defines
the terms "Covenant", "Declarations", "relevant
international instrument" and "human rights";

(b) s 3(4) qualifies
the definition of "human rights" in s 3(1) but not in a manner
which is material to these proceedings;

(c) by s 4(1),
the HREOC Act is not intended to exclude or limit the operation of a
law of a State or Territory that is capable of operating concurrently
with the HREOC Act;

(d) by s 5, the
HREOC Act extends to every external Territory;

(e) by s 6(1),
the HREOC Act binds, relevantly, the Crown in right of the Commonwealth;
and

(f) by s 11(1)(o),
the functions of the Commission include:

where the Commission
considers it appropriate to do so, with the leave of the court hearing
the proceedings and subject to any conditions imposed by the court,
to intervene in proceedings that involve human rights issues.

The limitations
on the functions of the Commission set out in s 11(3) and (4) do not
apply in the present case.

4. (a) Article 6
of the Covenant (as defined in s 3(1) of the HREOC Act) provides:

Every human being
has the inherent right to life. This right shall be protected by law.
No one shall be arbitrarily deprived of his life.

(b) By article
6 of the Convention on the Rights of the Child (a "relevant international
instrument" as defined in s 3(1) of the HREOC Act):

1. State Parties
recognize that every child has the inherent right to life.

2. State Parties
shall ensure to the maximum extent possible the survival and development
of the child.

(c) The High Court
of Australia has recognised that international instruments like the
Covenant give expression to fundamental human rights which are taken
for granted by Australian society, in the sense that those rights are
valued and respected here as in other civilized countries. [1]

(d) It would be
incongruous that Australia should adhere to international human rights
treaties if Australian courts did not, in some fashion, recognise the
entitlements contained therein. [2] As Mason CJ and
Deane J stated in Minister of State for Immigration and Ethnic Affairs
v Teoh: [3]

ratification
by Australia of an international convention is not to be dismissed
as a merely platitudinous or ineffectual act, particularly when the
instrument evidences internationally accepted standards to be applied
by courts and administrative authorities in dealing with basic human
rights … Rather, ratification of a convention is a positive statement
by the executive government of this country to the world and to the
Australian people that the executive government and its agencies will
act in accordance with [those conventions].

4. Section 11(1)(o)
of the HREOC Act contains four elements:

(a) First, the
proceedings must involve human rights issues;

(b) Secondly, the
Commission must consider it appropriate to intervene in the proceedings;

(c) Thirdly, it
is necessary for the Commission to obtain leave of the court hearing
the proceedings to intervene; and

(d) Fourthly, if
the court grants leave to intervene it may impose conditions in relation
to the grant of leave.

5. As to the first
element:

(a) These proceedings
will "involve" human rights issues if human rights issues
are relevant to the Coroner's investigation of the deaths;

(b) There are human
rights issues which are relevant to the Coroner's investigation of the
death as follows:

(i) At what stage
did Commonwealth officers become aware (if it be the case) that the
Indonesian vessel was overloaded and therefore unseaworthy?

[The evidence
given by Detective Senior Constable Elvin on 6 September 2002, and
the statement of Customs Officer Bradley Mulcahy, the Master of the
Australian Customs Vessel, the Arnhem Bay, dated 15 November
2001, indicates that the Sumbar Lestari was first sighted by
the Arnhem Bay at 3.20pm on 8 November 2001.

Commonwealth
officers may have been aware of the condition of the Sumbar Lestari
prior to 3.20pm as there are indications that Coastwatch aircraft
were involved in surveillance for the interception of this vessel:
see the statement of Navy officer Brock Symmons dated 11 November
2001.

In relation to
the condition of the Sumbar Lestari, many of the asylum seekers
reported that it was leaking: see the statements of Mr Musa Husseini
dated 20 November 2001, Mr Ali Sadeqi dated 20 November 2001, Mr Mohamed
Halimi dated 19 November 2001, Mr Masaud Khazai dated 19 November
2001, Mr Hamid Dehraee dated 17 November 2001, Mr Mohammad Tarakoli
dated 21 November 2001 and Mr Mohammad Naji dated 19 November 2001.]

(ii) What information
was available to the Commonwealth, from previous experience in turning
back Indonesian vessels, that an attempt to stop the vessel might
lead to sabotage and danger to passengers and crew?

[Rear Admiral
Smith, Maritime Commander, Royal Australian Navy, gave evidence at
the Senate Select Committee Inquiry into a Certain Maritime Incident
that:

people smugglers
and unauthorised arrivals' most likely and most dangerous course
of action to overcome the revised stance [inherent in Operation
Relex] was to ignore attempts to be turned away and if necessary
provoke a safety of life at sea - SOLAS- incident, thereby obliging
the Navy to render assistance to inherently unseaworthy or deliberately
sabotaged vessels. [4]

(iii) What information
was available to the Commonwealth as to the likelihood of the vessel
carrying inadequate flotation devices?

[At the time
the Sumbar Lestari was first sighted, some of the Customs officers
aboard the Arhnem Bay observed that many of the asylum seekers
were not wearing life jackets: see the statements of Customs Officer
Andrew Cotgrove dated 13 November 2001, Customs Officer Gary Shrimpton
dated 14 November 2001 and Customs Officer Ivan Carapina dated 13
November 2001.]

(iv) What information
was available to the Commonwealth as to the likelihood of people drowning
because they could not swim, had inadequate flotation devices or absence
of training in their use, or for other reasons?

[It would appear
from the Australian Federal Police (AFP) brief that the Sumbar
Lestari was not carrying sufficient life jackets meeting minimum
standards for all persons on board. Many of the asylum seekers were
forced to use inflated inner tubes and children's pool floats. Further,
a number of the asylum seekers reported that they did not have a life
jacket at all: see the statements of Mr Bibi Raheleh dated 22 November
2001, Mr Mohammod Zani dated 18 November 2001, Mr Masoud Miraki dated
17 November 2001 and Customs Officer Ivan Carapina dated 13 November
2001.]

(v) What steps
did the Commonwealth take to minimise such risks?

[After the fire
had broken out on Sumbar Lestari all persons on board, including
the Navy officers, had to evacuate that vessel. Once in the water,
asylum seekers clung to the Navy officers and also to their boat.
The evidence in the AFP brief indicates that, instead of rescuing
as many persons as they could at this stage, the Navy officers "threw
off" all but one of those asylum seekers and returned to the
HMAS Wollongong. They later returned to participate in the
rescue operation: see the statements of Navy officers Robert McLaughlin
dated 12 November 2001, Dale Zanker dated 12 March (sic) 2001, Matthew
Philp dated 12 November 2001, Malcolm Yeardley dated 12 November 2001
and Gregory Hogarth dated 12 November 2001.]

6. As to the second
element, the Commission considers it appropriate to intervene in the present
case. See the affidavit of Professor Alice Tay.

7. As to the third
element, the Court should grant leave in that:

(a) the Act is
capable of operating concurrently with s 11(1)(o) and the other provisions
of the HREOC Act: indeed, the Commission has an "interest"
which is sufficient to entitle it to be heard within s 44(1) of the
Act;

(b) the human rights
issues identified in paragraph 5 above are of importance to the Coroner's
investigation and cannot be dismissed as merely peripheral or trivial;

(c) if leave is
not granted, the human rights issues might not be suitably explored;

(d) the Commonwealth
is represented before the Coroner and is the appropriate party to respond;

(e) if leave is
granted, the time taken to complete the inquest should not be significantly
increased: in any event, the Coroner will retain control over the proceedings;
and

(f) the Commonwealth
Parliament has conferred upon the Commission a function to seek to intervene
in any proceedings which involve human rights issues if the Commission
considers it appropriate to do so: no doubt, the Commission's decision
in any case will be guided by its perception of the importance of those
issues in the context of that case.

8. As to the fourth
element, the Coroner may, if he thinks fit, impose conditions on the grant
of leave.

Michael J Buss

Mark Ritter

1.
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
at 305 per Gaudron J; R v Swaffield; Pavic v The Queen [1998] HCA 1 at
[135] per Kirby J.

2.
Dietrich v The Queen (1992) 177 CLR 292 at 321 per Brennan J.

3.
Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995)
183 CLR 273 at 289 per Mason CJ and Deane J. See also Minister for Foreign
Affairs and Trade v Magno (1992) 37 FCR 298 at 343 and Tavita v Minister
for Immigration (1994) 2 NZLR 257 at 266.

4.
Transcript of evidence given by Rear Admiral Smith to the Senate Select
Committee Inquiry into A Certain Maritime Incident, 4 April 2002, at page
CMI 448.

Last
updated 21 January 2003.