Using human rights in domestic law: Jack Thomas case study Cecilia Riebl Lawyer July 2008

SLIDE 2 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 3 Who is Jack Thomas?

SLIDE 4 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 5 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 A(1)(e).

SLIDE 6 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 7 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 8 International law vs. Jack Thomas

SLIDE 9 "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 10 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 11 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 12 Article 7 of the ICCPR "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment..."

SLIDE 13 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 14 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 15 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 16 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 17 The HRLRC: getting friendly with the Court

SLIDE 18 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 19 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 20 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 21 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 22 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 23 Outcomes: flop or flying start?

SLIDE 24 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 25 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 26 Questions?