High Court Case on Deportation

By Joshua Crowther

5 September 2011

In Moti v The Queen [2011] the High Court is currently examining whether the Australian Government was complicit in aiding the deportation of former Solomon Islands Attorney-General Julian Moti.  Mr Moti, who holds Australian citizenship, was deported by the Solomon Islands Government in December, 2007 to face charges for alleged sexual assault.  His appeal, now before the High Court, is grounded upon his assertion that he was given insufficient time to appeal against his original deportation order.

Mr Moti’s lawyer, Mr Barker QC, opened the hearing by basing his case on two critical issues.  Whether Mr Moti’s deportation was legal under Solomon Islands law, and whether Australian authorities were complicit in facilitating illegal rendition.  Mr Barker emphasised throughout his opening that the court’s role was to focus upon the process of Mr Moti’s deportation and the possible abuse of Australian executive power, and to avoid discussion of Mr Moti’s alleged sexual assault.

Referring to the Solomon Island’s Amended Deportation Act of 1999, which specifies that any individual handed a deportation order by the Solomon Islands Government has a seven day period of grace to appeal to the Solomon Islands High Court, Mr Barker contended that Mr Moti was given insufficient time to appeal against his deportation, thus making his extradition illegal.  Mr Barker went on to argue that Australian authorities were complicit in the abuse of Mr Moti’s rights as outlined by the Deportation Act, by assisting the Solomon Islands Government in removing him to Brisbane before he had the chance to appeal against his deportation.

The Government, represented by Mr Agius SC, responded to the appellant’s case by disassociating itself from the decision by the Solomon Islands to deport Mr Moti.  Although the Government admitted that it had been calling for Mr Moti’s extradition for some time before his December 2007 deportation, it emphasised that it had focused on procuring Mr Moti’s legal extradition, and not help to facilitate an abuse of rights as a Solomon Islands’ citizen.  The deportation of Mr Moti was characterised by the Government as a decision taken by Solomon Islands authorities, in which the Australian Government played no part.

Although Mr Agius accepted that Mr Moti’s deportation constituted a violation of his rights under the Deportation Act, it denied that Australian officials had played any role in the abuse of the extradition process.  The Government drew the court’s attention to its belief that it is not the position of the Australian Government, under the strictures of international law, to comment upon or criticise the decisions and legal framework of another sovereign state, and it contended that the circumstance of Mr Moti’s removal from the Solomon Islands was largely irrelevant to the case.

The abuse of Mr Moti’s rights as a Solomon Islands’ citizen, as specified by the Deportation Act, is largely accepted by both sides of the case.  The critical dispute is whether the Australian Government was complicit in facilitating an illegal deportation.  Although the Government argues that it did not abuse it executive authority and merely lobbied for the legal extradtion of Mr Moti, and that its respect for the sovereignty of the Solomon Islands prevents it from commenting upon the circumstances of Mr Moti’s deportation, Mr Moti’s case hangs on implicating Australian officials in taking a direct role in the abuse of process which characterised his removal from the Solomon Islands.

Our summary of a landmark decision by the United Nations Human Rights Committee on the rights of non-citizens in relation to deportation can be found here.

 

The High Court is currently examining whether the Australian Government was complicit in aiding the deportation of former Solomon Islands Attorney-General Julian Moti. Mr Moti, who holds Australian citizenship, was deported by the Solomon Islands Government in December, 2007 to face charges for alleged sexual assault. His appeal, now before the High Court, is grounded upon his assertion that he was given insufficient time to appeal against his original deportation order.

Mr Moti’s lawyer, Mr Barker QC, opened the hearing by basing his case on two critical issues. Whether Mr Moti’s deportation was legal under Solomon Islands law, and whether Australian authorities were complicit in facilitating illegal rendition. Mr Barker emphasised throughout his opening that the court’s role was to focus upon the process of Mr Moti’s deportation and the possible abuse of Australian executive power, and to avoid discussion of Mr Moti’s alleged sexual assault.

Referring to the Solomon Island’s Amended Deportation Act of 1999, which specifies that any individual handed a deportation order by the Solomon Islands Government has a seven day period of grace to appeal to the Solomon Islands High Court, Mr Barker contended that Mr Moti was given insufficient time to appeal against his deportation, thus making his extradition illegal. Mr Barker went on to argue that Australian authorities were complicit in the abuse of Mr Moti’s rights as outlined by the Deportation Act, by assisting the Solomon Islands Government in removing him to Brisbane before he had the chance to appeal against his deportation.

The Government, represented by Mr Agius SC, responded to the appellant’s case by disassociating itself from the decision by the Solomon Islands to deport Mr Moti. Although the Government admitted that it had been calling for Mr Moti’s extradition for some time before his December 2007 deportation, it emphasised that it had focused on procuring Mr Moti’s legal extradition, and not help to facilitate an abuse of rights as a Solomon Islands’ citizen. The deportation of Mr Moti was characterised by the Government as a decision taken by Solomon Islands authorities, in which the Australian Government played no part.

Although Mr Agius accepted that Mr Moti’s deportation constituted a violation of his rights under the Deportation Act, it denied that Australian officials had played any role in the abuse of the extradition process. The Government drew the court’s attention to its belief that it is not the position of the Australian Government, under the strictures of international law, to comment upon or criticise the decisions and legal framework of another sovereign state, and it contended that the circumstance of Mr Moti’s removal from the Solomon Islands was largely irrelevant to the case.

The abuse of Mr Moti’s rights as a Solomon Islands’ citizen, as specified by the Deportation Act, is largely accepted by both sides of the case. The critical dispute is whether the Australian Government was complicit in facilitating an illegal deportation. Although the Government argues that it did not abuse it executive authority and merely lobbied for the legal extradtion of Mr Moti, and that its respect for the sovereignty of the Solomon Islands prevents it from commenting upon the circumstances of Mr Moti’s deportation, Mr Moti’s case hangs on implicating Australian officials in taking a direct role in the abuse of process which characterised his removal from the Solomon Islands.

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