Using human rights in domestic
law: Jack Thomas case study
Cecilia Riebl
Lawyer
31 July 2008
204856085
Overview
• Who is Jack Thomas?
• How was international law relevant to Jack
Thomas’ appeal?
• How was the HRLRC involved?
• Flop or flying start? Outcomes on our first try
SLIDE 2
Who is Jack Thomas?
SLIDE 3
Background
• 2001: Jack Thomas travelled to Pakistan and
Afghanistan
• January 2003 – June 2003: detained in Pakistan
◦ Held by Pakistani authorities but no charges laid;
◦ Interrogated by Pakistani and US authorities;
◦ "We're outside the law – no one will hear you
scream";
◦ 6 ASIO interviews;
◦ 8 March 2003 interview with AFP.
• November 2004: charged in Australia
SLIDE 4
Charges
• Count 1: Intentionally receiving funds from a
terrorist organisation (Criminal Code 102.6(1));
• Counts 2 and 3: Intentionally providing resources
(himself) to that terrorist organisation that would
help it engage in preparing or planning a terrorist
act (Criminal Code 102.7(1));
• Count 4: Possessing a falsified passport:
Passports Act 1928 9A(1)(e).
SLIDE 5
Pre trial voir dire
Justice Cummins on the admissibility of evidence:
"Had your interview of 8 March 2003 derived
from torture, physical or mental, I would
unhesitatingly have rejected it. It did not".
"Normally, failure to avail an interviewee of that
right [to communicate with a lawyer] would be
fatal to the admission of a subsequent
interview. That is because the requirement is
of central importance. It is not to be danced
around ... or the subject of trammelling or
undermining. However, the requirement is not
absolute, nor can it be."
SLIDE 6
Outcome of trial and grounds of appeal
• Conviction on counts 1 and 4.
• Sentenced to 5 years imprisonment with a non
parole period of 2 years.
• Sought leave to appeal:
◦ against conviction on basis that 8 March 2003
interview should not have been admitted into
evidence;
◦ against the length of the sentence.
SLIDE 7
International law
vs.
Jack Thomas
SLIDE 8
"Human rights derive
from the inherent dignity
of people. All people are
free and equal and have
fundamental human
rights that must be
respected, protected
and fulfilled to enable
them to live with human
dignity."
Universal Declaration of Human Rights
SLIDE 9
Relevant international law provisions
•
Right to be free from torture or other cruel,
inhuman and degrading treatment (CAT, ICCPR
article 7)
•
Right to humane treatment in detention (ICCPR
article 10)
•
Right to be free from arbitrary detention (ICCPR
article 9)
•
Right to legal representation (ICCPR articles 9,
10 and 14)
•
Right to health (ICESCR article 12)
SLIDE 10
Torture or other cruel, inhuman or
degrading treatment
CAT article 1(1) - "Torture" means:
• any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a person
• for such purposes as obtaining from him … information or
a confession, punishing him for an act he … has
committed or is suspected of having committed, or
intimidating or coercing him or a third person …
• when such pain or suffering is inflicted by or at the
instigation of or with the consent or acquiescence of a
public official or other person acting in an official capacity.
SLIDE 11
Article 7 of the ICCPR
"No one shall be subjected to torture or to
cruel, inhuman or degrading treatment or
punishment..."
SLIDE 12
Right to humane treatment in detention
Article 10(1) of the ICCPR
"All persons deprived of their liberty shall be
treated with humanity and with respect for the
inherent dignity of the human person."
SLIDE 13
Arbitrary detention
Article 9 of the ICCPR
"(1) Everyone has the right to liberty and security
of person. No one shall be subjected to
arbitrary arrest or detention. No one shall be
deprived of his liberty except on such grounds
and in accordance with such procedures as are
established by law.
…
(4) Anyone who is deprived of liberty … shall be
entitled to take proceedings before a court …"
SLIDE 14
Right to legal representation
No express right to legal representation under the
ICCPR, but the right has been found to be a
necessary corollary of:
• Article 9(1) and (4) of the ICCPR;
• Article 10(1) of the ICCPR; and
• Article 14 of the ICCPR (right to a fair trial):
"All persons shall be equal before the courts
and tribunals. In the determination of any
criminal charge against him, or of his rights and
obligations in a suit at law, everyone shall be
entitled to a fair and public hearing by a
competent, independent and impartial tribunal
established by law."
SLIDE 15
Right to Health
Article 12 of the ICESCR
"The States Parties to the ICESCR recognise the
right of everyone to the enjoyment of the highest
attainable standard of physical and mental health."
SLIDE 16
The HRLRC:
getting friendly with the
Court
SLIDE 17
HRLRC amicus application
• An amicus curiae is a “friend of the court”
• Factors relevant to the granting of amicus include:
◦ whether Court will be "significantly assisted";
◦ whether amicus applicant has some expertise,
knowledge, information or insight that parties
are unable to provide;
◦ whether it is in the interests of justice to grant
the amicus application (eg in light of delays,
costs, or prejudice to the parties).
SLIDE 18
Argument 1: Right to be free from torture
or cruel treatment
• 8 March 2003 interview occurred in context of
continuous period of detention without charge
which involved torture or cruel treatment;
• Evidence obtained as a result of torture or cruel
treatment should not be used as evidence against
the persons concerned;
• Admission of such evidence into an Australian
court could amount to "condoning or encouraging"
torture;
• Relevant to the Court's discretion to exclude
evidence
SLIDE 19
Argument 2: Right to be free from arbitrary
detention
• Thomas was arbitrarily detained in Pakistan by
Pakistani authorities and Australia "took
advantage" of that arbitrary detention;
• Such conduct may amount to
◦ encouraging or condoning a breach of customary
international law; or
◦ being knowingly concerned with a breach in violation
of article 2(2) of the ICCPR;
• Australia had an obligation to ensure Thomas'
ICCPR rights recognised;
• Relevant to the Court's discretion to exclude
evidence
SLIDE 20
Argument 3: Right to legal representation
• Thomas had a right to legal representation (ICCPR
arts 9(4), 14(3), 10(1).
• Australia had right under Vienna Convention on
Consular Relations to arrange legal
representation, and obligation to do so under the
ICCPR.
• Failure to arrange legal representation relevant to
court's discretion to exclude evidence.
SLIDE 21
Argument 4: Right to health
• Thomas' treatment imposed a hardship on him
over and above that resulting from deprivation of
liberty (ICCPR art 10); and
• Thomas did not receive adequate mental health
care in Australian prisons (ICCPR art 10 and
ICESCR art 12);
• Entitlement to effective remedy, which should be
taken into account in the exercise of the
sentencing discretion.
SLIDE 22
Outcomes:
flop or flying start?
SLIDE 23
Outcome
• Amicus application denied
• BUT international law submissions filed by
Thomas' lawyers
• Appeal dismissed and conviction overturned
• Not necessary to refer to material on international
human rights law
• Application for retrial based on new evidence
• High Court Special Leave Application on 1 Aug 08
SLIDE 24
Strategies, challenges and opportunities
• Presentation of international law arguments amicus or other approaches?
• Relevance of international law arguments? How
to develop a human rights jurisprudence in
Australia?
• Impact of the Charter?
SLIDE 25
Questions?
SLIDE 26