Peter Tatchell has been denied entry into Australia because of his bid to use the Crimes (Torture) Act to have President Mugabe of Zimbabwe arrested on charges of torture when he attends the Commonwealth Summit in Brisbane.
Peter Tatchell submitted the following appeal against the Australian government’s refusal to grant him a visa:
Helen Wilson
Principal Migration Officer
Australian High Commission
The Strand
London WC2B 4LA 30 October 2001
Dear Helen Wilson,
VISA APPLICATION – sub-class 456 – multiple entry
Name: Peter Gary Tatchell
Date of Birth: 25 January 1952
Place of Birth: Melbourne, Australia
Nationality: I was born an Australian citizen. Both my parents were and remain Australian citizens. They reside in Australia.
My first Australian passport was G 806862, issued in Melbourne on 3 March 1971.
I inadvertently lost my Australian citizenship in 1989 when I took out British citizenship to facilitate my work in the UK. I did not wish to lose my Australian citizenship. Since many of my British friends had taken Australian citizenship and been permitted to hold dual nationality, I assumed that I could too. I was not aware that Australian citizens who take another nationality automatically lose their Australian citizenship.
Visa Purposes:I am seeking a visa for three main reasons:
1) To visit my family – all of my immediate and extended family live in Australia. In particular, I wish to visit my mother and step-mother, both of whom have been seriously ill.
2) To write a series of travel features on Victoria, Tasmania, New South Wales and Queensland for the British press, with trips to Australia scheduled for January, February, March, September and October 2002.
3) To report on the Commonwealth Heads of Government Meeting for BBC Radio 5 and other British media.
THE CASE AGAINST ME
On 15 October you informed me that the Department of Immigration and Multicultural Affairs (DIMA) was considering refusing my visa application on the grounds that I do not pass the “Character Test” under Section 501(6)(d)(ii) of the Migration Act 1958.
Namely: “there is a significant risk that the person (Peter Tatchell) would: (ii) harass, molest, intimidate or stalk another person in Australia”.
You have informed me that this is the sole grounds on which I may be refused a visa. I will therefore confine my defence solely to Section 501(6)(d)(ii).
MY DEFENCE – IN SUMMARY
The essence of my defence is this:
1) I have never threatened or intended to “harass, molest, intimidate or stalk another person in Australia”.
2) I did originally plan to attempt a lawful citizen’s arrest of President Robert Mugabe of Zimbabwe on charges of torture under the UN Convention Against Torture 1984 and Australia’s Crimes (Torture) Act 1988. The lawful basis for a citizen’s arrest of President Mugabe is Section 546(c)(d) of the Queensland Criminal Code Act 1899, which empowers a private citizen to arrest a person who they believe has committed a crime.
3) A lawful arrest – or an arrest with lawful intention – cannot be construed as harassment, molestation, intimidation or stalking.
4) My original intention to make a lawful citizen’s arrest is now, however, irrelevant. More than a month ago, I abandoned that intention.
I do not now intend a citizen’s arrest of President Mugabe. Instead, I will seek to persuade the Australian legal authorities to themselves arrest President Mugabe. If they do not, I will take no action to arrest him myself. See my enclosed statutory declaration to this effect.
5) There is, therefore, no “significant risk” that I will “harass, molest, intimidate or stalk another person in Australia”.
6) On this basis, I submit that I pass the Character Test.
7) Moreover, the Preamble to Direction 21 states that the purpose of the Character Test and the powers granted to the Minister to refuse a visa are in order to: “protect the community from criminal or other reprehensible conduct … by non-citizens whose actions are so abhorrent to the community that they should not be allowed to enter or remain within it”. I submit that nothing I have said or done, or plan to do, is sufficiently grave to fall within the extreme criterion of “reprehensible” or “abhorrent” conduct meriting exclusion from Australia.
8) A subsequent section of the above-mentioned Preamble states: “2. The purpose of refusing or cancelling a visa under section 501 is to protect the safety and welfare of the Australian community”. Since I have no intention of threatening the “safety and welfare of the Australian community” – and there is no reason why the Australian community requires protection from me – I submit there are no lawful grounds for denying my visa application.
9) In the event that I am deemed to have not passed the Character Test, I nevertheless submit that the discretionary powers in Part 2 of Direction 21 should be exercised to grant me a visa.
(a) The denial of my visa application under Primary Considerations is not necessary for the “the protection of the Australian community” (2.4 to 2.11) or to fulfil “the expectations of the Australian community”(2.12). In particular, none of my past, present or intended future words or behaviour involve any of the grave offences listed in 2.6, such as murder, arson, terrorism, kidnapping, drug trafficking, sexual assaults, armed robbery or organised crime.
(b) Refusing me a visa would cause me serious “disruption” and “hardship”, as specified in the Other Considerations set out in 2.17:
It would deny me the right to visit my family – all of whom reside in Australia – and some of whom have been seriously ill. In effect, I could never see them again.
It would also deprive me of work and income by preventing me from visiting Australia to report on CHOGM for the BBC and to write commissioned travel features on Victoria, Tasmania, New South Wales and Queensland for the British press.
10) I therefore submit that these Other Considerations, taken together with the Primary Considerations, are grounds for exercising discretion to grant me a visa.
Finally, I ask you to consider that as a result of my human rights work I was short-listed for the Martin Ennals Civil Liberties Award 1992 and the Mike Rhodes Award 1995. Next January I will deliver the prestigious Aves Memorial Lecture at the Royal Society of Arts in London. I have previously lectured at the Royal Military Academy, House of Commons, Windsor Castle, Royal Naval College, and the Universities of London, Oxford and Cambridge.
Enclosed is a selection of statements of support for my human rights work from prominent public figures in the UK.
MY DEFENCE – IN DETAIL
You cite as evidence against me the article on the www.petertatchell.net website, New Bid To Arrest Mugabe. But in this same article I reiterate several times the lawful nature of my intentions:
“I am endeavouring to enforce it (the law)”
“I will be acting alone, non-violently and in accordance with international law”
“My actions will seek to enforce the international law against torture, which Australia has promised to uphold”
“International law is on my side. I will be the law upholder”.
None of these statements suggest violence or law-breaking. On the contrary, they suggest a respect for the law and an intention to use it to prosecute President Mugabe, who stands accused of the criminal offence of torture.
Moreover, the same website specifically states my intention to present affidavits with evidence of Mugabe’s crimes to “the Attorney-General, with a request that he authorise Mugabe’s arrest and trial”.
This commitment to cooperation with the Australian Attorney-General is further evidence of my lawful intentions.
Please note: all references to me making a citizen’s arrest have now been deleted from the above-mentioned website – www.petertatchell.net. These deletions reflect the fact that I no longer intend to arrest President Mugabe.
As evidence of my consistently lawful intentions, I draw your attention to the following:
1) My three telephone calls, from mid to late August 2001, to the Australian High Commissioner in London, Michael L’Estrange, requesting to meet him to explain my plans at the Commonwealth Heads of Government Meeting (CHOGM) in Brisbane, and to reassure him of my peaceful, lawful intentions.
These attempts to set up a meeting with the High Commissioner are indicative of my lawful, honourable intent, and do not support the suggestion that I was planning any illegal form of protest. A person intent on criminality does not reveal their plans. My openness points to an intention to act within the law and to work with the Australian legal authorities – not against them.
2) My letter to Immigration Minister Philip Ruddock, dated 6 September 2001 (copy enclosed). In this letter I explicitly stated:
“Contrary to the impression given by some press reports, I have a 30-year unblemished record of peaceful protest. My political inspirations are Mahatma Gandhi and Martin Luther King … It is my intention to act within the law at all times.
“I am not coming to Australia to break the law, but to seek to have it enforced. Australia has incorporated the UN Convention Against Torture 1984 into its domestic law. In cooperation with the Brisbane police and the Federal and Queensland Attorney-Generals, I will be seeking to use this law to secure the arrest of President Mugabe on charges of torture”.
3) My letter to DIMA, dated 12 September 2001 (copy enclosed). Appended to my visa application, it reiterated:
“I will not be involved in any illegal or violent protests.
“Additionally, I will seek meetings with the Brisbane police and the Federal and Queensland Attorney-Generals to press the case for them to arrest President Mugabe on charges of torture, under Australian law – the Crimes (Torture) Act 1988.
“I will not be seeking to arrest President Mugabe myself, but to persuade the Australian law enforcement authorities to do so.
“Having further considered the matter: if the Australian authorities do not arrest President Mugabe, I pledge that I will make no attempt to arrest him myself.
“I give a solemn undertaking that I will be of good character and obey the laws of Australia during my visit.
“You have my cast-iron guarantee that I will not engage in any unlawful activities, nor do anything to threaten any visiting Heads of State. It is my intention to act within the law at all times. I hope this reassures you of my peaceful, law-abiding intentions”.
4) My record of past behaviour during my 19 years of full-time residence in Australia and during my subsequent visits. On all the previous occasions that I visited Australia, most recently in 1999, I was of good character and did not commit any illegal acts. Nothing about my behaviour during my past visits justifies my exclusion from the country of my birth.
The legality of a citizen’s arrest
In the website article, New bid To Arrest Mugabe, I state that if the Australian law enforcement authorities refuse my request to arrest President Mugabe “I will attempt a citizen’s arrest”. After arresting the President, it was my intention to hand him over to the Australian police for charging and prosecution under the anti-torture laws.
Although I no longer intend to attempt a citizen’s arrest, my previous plan was always based on the assumption that my proposed citizen’s arrest was a lawful act. I was intending to arrest President Mugabe, in full compliance with international and Australian law, when he attends CHOGM in Brisbane.
On legal advice, accepted by me in good faith, it was my understanding that I have a legal right to arrest a person, where there is evidence they have committed a crime.
My proposed arrest of President Mugabe was to have taken place in Brisbane, Queensland. Under Queensland law, a citizen’s arrest is lawful in cases where a person has committed a crime. This is set out in Section 546(d), Criminal Code Act 1899.
546.When an offence is such that the offender may be arrested without warrant generally–
(d) if the offence has been actually committed–it is lawful for any person who believes on reasonable ground that another person has committed the offence to arrest that person without warrant, whether that other person has committed the offence or not;
In other words, a private citizen has the power of arrest to apprehend a person, where there are reasonable grounds for believing the person has committed a crime.
There is ample evidence from Amnesty International and the Zimbabwe High Court that President Mugabe has authorised or condoned the use of torture. I have signed affidavits from two Zimbabwean journalists, Ray Choto and Mark Chavunduka, who were allegedly tortured on President Mugabe’s orders.
Collusion with torture is a crime under Australia’s Crimes (Torture) Act 1988 and under the UN Convention Against Torture 1984, which Australia has signed, ratified and pledged to enforce.
Under the 1984 UN Convention, no one is immune from prosecution, not even Heads of State. It is customary international law, since the Nuremburg judgements, that Heads of State are not exempt in cases involving crimes against humanity, such as torture.
Since torture is a crime under international and Australian law, and I have evidence of President Mugabe’s implication in acts of torture, it would be lawful under Queensland law for me (or anyone else) to make a citizen’s arrest of President Mugabe.
Although I do not now intend to make a citizen’s arrest of President Mugabe, I offer you this background information as evidence that my planned citizen’s arrest was always understood by me to be within the law – and should not therefore be misrepresented as evidence of law-breaking intent.
Under these circumstances, I submit that a citizen’s arrest – intended in good faith as a lawful act – cannot be construed as harassment, molestation, intimidation or stalking within the meaning of Section 501(6)(d)(ii).
A citizen’s arrest was my original intention. It is not now my intention.
The issue of a citizen’s arrest is now irrelevant to this visa application.
It had been intimated to me that unless I abandon my planned citizen’s arrest of President Mugabe I would not be allowed into Australia. I have responded by reconsidering my position. In order to get my visa and be permitted to enter Australia, I have agreed that I will not attempt to arrest President Mugabe or anyone else. This is my current and future position.
A statutory declaration to this effect is enclosed with this submission.
I have abandoned my intention to make a citizen’s arrest of President Mugabe.
As evidence of this abandonment, I cite:
1) My meeting with the Deputy Australian High Commissioner in London, David Ritchie, and the First Secretary, Adam Robertson, which took place, at my request, on 11 September 2001.
At this meeting I repeated my intention to act lawfully at all times. In response to their concern regarding my intention to attempt a citizen’s arrest of President Mugabe, I told Mr Ritchie and Mr Roberston that I had revised my intention. I would now no longer personally seek to arrest the Zimbabwean President but would work solely through the Australian law enforcement and judicial authorities in a bid to have them arrest him. If the authorities decline to arrest the President, I assured Mr Ritchie and Mr Robertson that I would not seek to arrest him myself. I reiterated this assurance to Mr Robertson in a follow-up phone call the next day, 12 September 2001.
2) The 12 September 2001 letter to David Ritchie from my BBC production
company editor, Jo Phillips, where she states: “Peter Tatchell has given an absolute undertaking that he will not seek to arrest Robert Mugabe, that he will not in any way embarrass or pose a security risk to any CHOGM delegates. … I have … absolute trust in him (Peter Tatchell) as a man of integrity and honour. He will stand by his word … I am totally confident that he will not engage in any illegal activity and will obey the laws of Australia” (copy enclosed).
3) My letter to the Commonwealth Secretary General, Don McKinnon, dated 18 September 2001, where I give my categorical assurance that “I will not attempt to arrest, abuse, threaten or harm President Mugabe or other CHOGM delegates” (copy enclosed).
4) The letter from my MP, Simon Hughes, where he states: “There is no doubt in my mind that he (Peter Tatchell) is an honest person who can be trusted to keep his word. If he says he will obey the law and not attempt to arrest President Mugabe then I am confident that he will stand by that commitment”.
5) Letters from my mother Mardi Nitscke, the National Union of Journalists, McCluskey & Associates International, and the BBC production company 10 Alps – all of which attest to my undertaking not to arrest President Mugabe and to the belief that I can be trusted to honour my assurances to this effect (copies enclosed).
6) Media stories mentioning my change of intention, including The Guardian, 8 October 2001, and Gay Times, October 2000: “I reluctantly abandoned my plan to arrest Mugabe. I promised not to harass or harm him” (copies enclosed).
DIRECTION UNDER SECTION 499 OF THE MIGRATION ACT 1958
DIRECTION 21 – PART 2 – EXERCISING THE DISCRETION
In the event that I am deemed to have not passed the Character Test, I nevertheless submit that the discretionary powers in Part 2 of Direction 21 should be exercised to grant me a visa.
According to 2.1 of Direction 21 “decision-makers must have regard to the following considerations”:
Primary Considerations
2.3 (a) “the protection of the Australian community”
(b) “the expectations of the Australian community”
I submit that nothing in my past or present words or behaviour – or in my future intentions – threaten or endanger the Australian community, as set out in 2.4 to 2.11, and that the Australian community does not therefore require protection from me. In particular, none of my past, present or intended future words or behaviour involve any of the grave offences listed in 2.6: murder, arson, terrorism, kidnapping, drug trafficking, sexual assaults, armed robbery or organised crime. It would be unreasonable, and contrary to the intention of the legislation, to equate my peaceful human rights campaigning with these grave crimes.
I have only one minor conviction. It was in England in 1998 for speaking without authorisation in a church, contrary to the Ecclesiastical Courts Jurisdiction Act 1860 (formerly part of the Brawling Act 1551). The Magistrate expressed his contempt for the prosecution by fining me a mere £18.60 (the maximum penalty for the offence is six months jail and a fine of £5,000). MPs, peers, writers, academics and other prominent public figures condemned my prosecution.
This conviction does not fall within the scope of any of the serious crimes cited in 2.6.
Moreover, I have consistently pledged to be of good character and obey the laws of Australia during my visits.
I also submit there is no evidence that the Australian community would expect that I be refused a visa, as set out in 2.12 of Part 2 of Direction 21. What is more, there is no evidence that the Australian community would be alarmed or aggrieved if I was granted permission to enter the country. Nor is there any significant risk that I would breach the laws of Australia, given my fore-mentioned commitment to act lawfully at all times.
I therefore submit that I do not violate the Primary Considerations criterion 2.3 (a) and (b).
Other Considerations
Under Part 2 of Direction 21, the decision-makers must also take into account:
2.17 (a) “the extent of disruption to the non-citizen’s family, business and other ties to the Australian community” … .
(c) “the degree of hardship which would be caused to immediate family members lawfully resident in Australia”
I submit that refusing me a visa would cause me serious “disruption” and “hardship” as specified in 2.17 (a) and (c):
A) It would deny me the right to visit my family. All are Australian citizens residing in Australia. They are either too old, too ill or too poor to travel outside Australia to visit me. A visa refusal would effectively mean that I could never see them again. My mother and step-mother have both been seriously ill in recent months. They are now out of hospital, but require on-going treatment and care.
My immediate family members in Australia are:
Mother – Mardi Nitscke, age 74
Father – Gordon Tatchell, age 75
Step-Mother – Nellie Tatchell, age 75
Step-Father – Edwin Nitscke, age 87
Step-Brother – Paul Tatchell, age 45
Step-Sister – Jennifer Nitscke, age 41
Step-Sister – Heather Kniese, age 39
My mother, Mardi Nitscke, wrote a personal letter to the Immigration Minister, Philip Ruddock, at the DIMA in Canberra, on 2 October 2001, appealing for me to granted a visa. I request that you consider her appeal.
My mother also wanted to send a signed letter for inclusion with this submission. But owing to ill-health, she was unable to post her letter to me in time to meet your deadline. Instead, she dictated a letter to me by phone on 29 October 2001 (copy enclosed).
B) Denying me a visa would also deprive me of work and income by preventing me from visiting Australia to report on CHOGM for the BBC and to write commissioned travel features on Victoria, Tasmania, New South Wales and Queensland for the British press. My commissioned travel writing trips are scheduled for January, February, March, September and October 2002. These trips and articles are being organised by McCluskey & Associates International in cooperation with the Australian Tourist Commission (ATC). I have previously, in 1999, worked with the ATC to promote Sydney and the Blue Mountains. My forthcoming visits and travel features will encourage tourism and benefit Australia. If I am denied a visa, I will be unable to write my commissioned travel features, and none of the planned articles will appear.
See the enclosed supporting letters from my mother Mardi Nitiscke, Simon Hughes MP, McCluskey & Associates International, the BBC production company 10 Alps, and the National Union of Journalists.
I therefore submit that these Other Considerations, taken together with the Primary Considerations, are grounds for exercising the discretion to grant me a visa.
Please note: Because I am commissioned to do a lot of work in Australia in 2002 and beyond, involving a number of trips, I am requesting a multiple entry visa valid for the lifetime of my passport.
Yours sincerely,
Peter Tatchell
The following documents are enclosed with this submission:
Letters
My letter to Immigration Minister, Philip Ruddock, 6 September 2001
My visa application letter to DIMA, 12 September 2001
My letter to the Commonwealth Secretary General, Don McKinnon, 18 September 2001
And letters from
Mardi Nitscke, mother, 29 October 2001
Simon Hughes MP, 29 October 2001
John Fray, Deputy General Secretary, National Union of Journalists, 22 October 2001
Jo Phillips, 10 Alps, editor of the BBC’s Sunday Service programme, 19 October 2001
David Rose, McCluskey & Associates International, 18 October 2001
Statements of support for my human rights work from prominent UK public figures.
Jo Phillips fax to Deputy Australian High Commissioner, David Ritchie, 12 September 2001
News clippings:
The Guardian, 8 October 2001
Gay Times, October 2001