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.