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Commission submissions: Khafaji

Legal

IN THE HIGH COURT OF AUSTRALIA

ADELAIDE OFFICE OF THE REGISTRY

A 253 of 2003

SHDB

Appellant

PHILLIPPA GOODWIN

First Respondent

JULIE HELEN KEENAN

Second Respondent

MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS

Third Respondent

ATTORNEY-GENERAL (CTH)

Intervener

A 254 of 2003

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Appellant

ABBAS MOHAMMAD HASAN AL KHAFAJI

Respondent

EX PARTE: ATTORNEY-GENERAL (CTH)

Intervener

A 255 of 2003

MAHRAN BEHROOZ

Appellant

MAHMOOD GHOLANI MOGGADDAM

Second Appellant

DAVOOD AMIRI

Third Appellant

THE SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

THE ATTORNEY-GENERAL OF THE COMMONWEALTH

Second Respondent

AUSTRALASIAN CORRECTIONAL MANAGEMENT PTY LTD

Third Respondent

AUSTRALASIAN CORRECTIONAL SERVICES PTY LTD

Fourth Respondent

SUBMISSIONS OF THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION, SEEKING TO INTERVENE

INTRODUCTION

  1. The Human Rights and Equal Opportunity Commission ("the Commission") seeks leave of the Court to intervene to make submissions in SHDB v Godwin & Ors (A253/2003) ("SHDB"), Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji (A254/2003) ("Al Khafaji") and Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs (A255/2003) ("Behrooz").
  2. The application for leave to intervene is made on the grounds set out in the affidavit of Dr Sev Ozdowski affirmed 28 October 2003. The submissions the Commission seeks to make concern the statutory and constitutional limits on the length and conditions of administrative detention under the Migration Act 1958 (Cth) ("the Act"). The form of the intervention sought is the filing of written submissions and, if the Court considers it to be of assistance, the making of short oral submissions.
  3. Human rights,(1) together with rights long recognised and protected by the common law, are directly affected by the mandatory detention of unlawful non-citizens pursuant to s.196 (and s.189) of the Act. Those human rights relevantly include:
    • the right to liberty and security of the person (Art 9(1), ICCPR);
    • the requirement that no one shall be subjected to arbitrary arrest or detention (ibid);
    • the right that anyone deprived of his/her liberty by arrest or detention is entitled to take proceedings before a court in order that the court may decide without delay on the lawfulness of the detention (Art 9(4), ICCPR);
    • the requirement that people deprived or their liberty be treated with humanity and respect for the inherent dignity of the human person (Art 10(1), ICCPR);
    • the proscription of cruel, inhuman or degrading treatment (Art 7, ICCPR); and
    • the requirement that the arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time (Art 37(b), CRC).

SUMMARY OF SUBMISSIONS MADE IF LEAVE IS GRANTED

  1. The questions that arise for determination in SHDB/Al Khafaji and in Behrooz overlap. They are:
    1. Whether, as a matter of construction, s.196 of the Act (or, as the Commonwealth(2) puts it, whether Div 7 of Part 2 of the Act) authorises the detention of "unlawful non-citizens" whenever the purpose of the detention is for assessment of status, processing and final determination of visa applications or removal/deportation, without regard to either the length of time the person has been detained or the prospects of their detention coming to an end within a reasonable time (SHDB/Al Khafaji), and/or without regard to the nature and conditions of their detention (Behrooz);
    2. If the answer to (a) is "yes", whether such detention is constitutional.
  2. The Commission makes no submissions on the two additional issues in Behrooz.(3)
  3. In summary, the Commission submits:
    1. Only such detention as is reasonably necessary to enable the assessment of status, or removal/deportation, is consistent with the constitutional immunity from detention by non-judicial Commonwealth authority;
    2. What is "reasonably necessary" requires reference not merely to the purpose of detention, but to the effects and consequences of detention;
    3. So construed, in relation to persons in the position of Mr Al-Kateb and Mr Al Khafaji, detention may only be for a period which is reasonably necessary to achieve removal. Detention will not be reasonably necessary to achieve removal if there is no real likelihood of removal in the reasonably foreseeable future;
    4. Detention in conditions not reasonably necessary to enable assessment of status or removal/deportation could render the detention unlawful, which illegality could be sought to be remedied by public or private law actions;
    5. These conclusions should be arrived at in any event as a matter of statutory construction, taking account of the principle that general words are not sufficient to authorise infringement of fundamental rights, and the related principle that statutes should, where relevant, be construed consistently with obligations of international law.
  4. The final proposition shall be addressed first.

COMMON LAW PRINCIPLES OF INTERPRETATION

  1. The grant of power in s.196 of the Act to keep unlawful non-citizens in immigration detention should be construed to extend only to such detention as is reasonably necessary to enable the assessment of status or, where relevant, removal/deportation. So construed, the powers of detention would not extend to allow continued detention for removal in circumstances where there is no real likelihood of imminent removal, (4) and there would be limits as to the nature and conditions of permissible detention (the reasons why these particular limitations flow from the general principle are set out below, in the sections dealing with the application of the constitutional principles to the SHDB/Al Khafaji and Behrooz cases).
  2. Such limitations reflect the constitutional principles which are addressed below. But the same conclusion results from the application of two well-established principles of construction. These principles were correctly identified and applied by the Full Court of the Federal Court in Minister for Immigration v Al Masri.(5)

Presumption against infringement of fundamental rights

  1. Rights, freedoms and immunities appropriately recognised as fundamental will not be taken to be abolished, suspended or adversely affected in the absence of "a clear expression of an unmistakable and unambiguous intention." (6) Identification of what rights and interests are fundamental in the relevant sense should proceed from the Constitution, the common law and the exposition of principle contained in human rights treaties and Conventions to which Australia is a party. (7) It cannot be doubted that liberty is such a right. (8)
  2. The more fundamental the right or interest, the stricter should be the requirement for a clear expression of intention to affect it adversely. The more important the right, the less likely it is that Parliament intended to infringe on it. Life, liberty and bodily integrity are the most fundamental rights. (9) Moreover, on the same principles, the Full Federal Court was correct in Al Masri to hold that "the more serious the interference with liberty, the clearer the expression of intention to bring about that interference must be". (10)
  3. There are distinct aspects of the notion of liberty at issue here. There is a significant difference between temporary detention for set purposes and with a limited extent, and detention on an indefinite basis. Thus it is that the common law does not sanction preventative detention, and statutory authorisations of such "should be confined to very exceptional cases". (11)
  4. When detention is authorised there are still ongoing rights and interests relating to liberty and human dignity within the detention. These interests are recognised in articles 7 and 10(1) of the ICCPR, but could not be doubted in any event. Thus a grant of power to detain could not be taken as authorisation to torture.
  5. The Commonwealth submits that the legislation - especially s.196 - is unambiguously clear and that the principle of construction thus cannot apply. (12) To begin with, the Commonwealth's reliance in this regard on the wording of s.196(3) of the Act is misplaced. That provision is substantially the same as that held invalid in Chu Kheng Lim v Minister for Immigration.(13) Section 54R was held invalid on the basis that in the majority's view it purported to prevent judicial action to release detainees even in circumstances where detainees might be unlawfully detained. The minority read the section down so as not to apply in such circumstances. In the present cases the very issue is whether there is unlawful detention. Such is possible both because of the statutory and constitutional limitations outlined here, and also for one of the reasons expressed in Lim - namely, that failure to remove a detainee as soon as practicable following a request would render continued detention unlawful. (14) In these circumstances s.196(3) is as invalid as s.54R was if it seeks to prevent release of a person unlawfully detained. Otherwise, it would be required to be read down so as only to apply to lawful detention. (15) In either event, it cannot aid the Commonwealth in its argument.
  6. The Commonwealth's question(16) as to how the wording could have been clearer in relation to the issue in SHDB/Al Khafaji is answered thus: s.196 could have specified that detention was to continue regardless of the length of detention, or regardless whether there was any likelihood of removal/deportation. In relation to the issue in Behrooz, the Parliament could have provided that detention was authorised regardless of the conditions or effects thereof.
  7. Grants of power (in statutes and contracts) are commonly expressed in unqualified terms, yet are nevertheless taken to be subject to reasonable limitations. For example, contractual powers are often taken to be exercisable only within a reasonable time. In its submissions in Behrooz the Commonwealth itself is prepared to accept the applicability of some implied limitations on power. (17)
  8. General words of authorisation will rarely be sufficient to support interference with fundamental rights. In this light, the construction principle extends to require specific words to authorise interference with aspects of fundamental rights which are distinct by their nature or because of some significant difference of extent. Plainly s.196 authorises some interference with the right of liberty. Yet, despite its mandatory language, the nature and extent of the detention it authorises remains general.
  9. That a more nuanced approach must be taken is illustrated by the judgment of Mason CJ in Lim itself. (18) His Honour held (in the minority) that s.54R did not sufficiently manifest an intention to preclude judicial action in relation to unlawful detention, thus holding that the general words of the section did not exclude a reasonable implied limitation. That implied limitation is analogous to those supported here. This part of his Honour's judgment was cited approvingly by the majority in Coco in support of the "general words" proposition. (19)
  10. It is unlikely that the Parliament intended to exclude all reasonable limitations on a grant of power, in relation to distinct facets of the right or interest at stake, without having expressed itself clearly. (20) Further, the rule serves to "enhance the parliamentary process by securing a greater measure of attention to the impact of legislative proposals on fundamental rights", (21) which principle is equally applicable to distinct facets of a right or interest.
  11. The fact that courts of other nations have reached similar conclusions about implied limitations on grants of power to detain (as recorded in Al Masri(22) ) supports such an approach here.

Presumption against infringement of international obligations

  1. It has been long-established that statutes are to be interpreted and applied, as far as their language permits, so as to be in conformity and not in conflict with established rules of international law. (23) To the extent that the presumption against infringement of fundamental rights is guided by the relevant international instruments to which Australia is a party, that presumption will overlap with this one. The common law presumption may appropriately be guided by international law as assisting in the delineation of rights and interests which should be regarded as fundamental.
  2. The presumption applies to s.196. No high threshold of ambiguity should be set before this presumption may be invoked. Parliament should be presumed to have made laws which are consistent with Australia's international obligations (particularly in the few leading conventions on human rights) in the absence of a clear expression to the contrary. Of course, the presumption can only apply "as far as the language permits", (24) but that is true of all rules of construction. The language of s.196 permits the presumption to apply. The Commonwealth has accepted that its language is limited so as not to extend to authorising detention in inhumane conditions. (25)
  3. The Commonwealth's proposed construction of s.196(1) should not be preferred in that it conflicts with the requirements of article 9(1) of the ICCPR. Article 9(1) of the ICCPR, along with decisions of the United Nations Human Rights Committee ("UNHRC") related thereto, contemplate certain permissible limitations to one's right to liberty, being detention which is lawful and not "arbitrary".
  4. The UNHRC has indicated that detention for immigration purposes without reasonable prospect of removal will constitute arbitrary detention in breach of article 9(1) of the ICCPR. (26) Such detention will fail to meet the proportionality test applied by the UNHRC, which has been variously formulated as imposing a requirement that detention not continue "beyond the period for which a State can provide appropriate justification" (27) or if it is "not necessary in all the circumstances of the case". (28) Put simply, if there is no reasonable prospect of removal, the necessity for continued detention is not apparent, and further detention becomes disproportionate to the end being sought and thus arbitrary. A decision of the UN Working Group on Arbitrary Detention relating to the statute considered by the United States Supreme Court in Zadvydas v Davis(29) is consistent with and supports this approach. (30) The Working Group also recently visited Australia and reported on detention under the Act. The report referred to particular concerns in respect of what it characterised as the indefinite detention of people in the position of Messrs Al Khafaji and Al-Kateb. (31)
  5. Article 9(4) of the ICCPR recognises the right to bring proceedings to have the lawfulness of one's detention determined without delay. "Lawfulness" in the context of article 9(4) does not simply mean lawfulness under municipal law. This was made clear by the UNHRC in A v Australia, rejecting an argument that there had been no breach of article 9(4) because the author of the complaint had access to the courts (and was simply unable to be released by virtue of the effects of division 4B of the Migration Amendment Act 1992 (Cth)). (32) The UNHRC's decision in Baban emphasised the broader notion of lawfulness and stated: (33)

    "In the present case, the author and his son were held in immigration detention for almost two years without individual justification and without any chance of substantive judicial review of the continued compatibility of their detention with the Covenant." [emphasis added]

  6. The Commonwealth relies upon Australia's response to the UNHRC's decision in A v Australia.(34) Nothing flows from that response. The UNHRC hears individual complaints of violations of the ICCPR (called "communications") under the First Optional Protocol to the ICCPR. (35) Australia is a party to the First Optional Protocol. (36) The decisions or "views" of the UNHRC regarding those communications do not constitute legally binding decisions in international law. (37) However, as the UNHRC has noted:

    ".by becoming a party to the Optional Protocol [each] State party has recognised the competence of the UNHRC to determine whether there has been a violation of the [ICCPR] or not ."(38)

  7. Australia may denounce the Optional Protocol. (39) However, in the absence of such drastic action, the UNHRC's communications are of "considerable persuasive authority" (40) or "highly influential, if not authoritative" (41) in relation to Australia's legal obligations under article 9. That is particularly so when the UNHRC has twice affirmed the correctness of the decision in A's Case in matters involving Australia. (42)
  8. The Commonwealth's suggested construction of s.196(1)(a) and s.198 would only require "good faith efforts" (in unspecified number and over an unspecified period of time) to remove as soon as practicable. As the Commonwealth accepts, this may involve ongoing detention for a lengthy period. (43) The Commonwealth's only suggested recourse for a person thus detained is that they seek review of a failure to make a visa processing decision or a failure to remove as soon as practicable. (44) That construction permits no review of the detention for its compliance with article 9(1) or other provisions of the ICCPR and involves a breach of paragraph 4 of article 9.
  9. Subject to questions regarding validity, the fact that s.196(1) purports to apply to children and adults without distinction raises a further relevant international obligation. Article 37(b) of the CRC imposes an obligation upon Australia not to detain a child arbitrarily, and requires that detention shall be used only as a measure of last resort and for the shortest appropriate period of time. (45)
  10. The Commonwealth's preferred interpretation of s.196 of the Act should therefore be rejected. It is not required by the language of the provision, and is inconsistent with Australia's international legal obligations.

THE CONSTITUTIONAL PRINCIPLES

  1. The constitutional separation of judicial power serves as a "guarantee of liberty". (46) It protects certain "basic rights" of persons by "ensuring that those rights are determined by a judiciary independent of the parliament and the executive". (47) In this manner the doctrine is "the bulwark of freedom". (48) It is in order to achieve this ultimate end that this Court has repeatedly held it is of fundamental importance to maintain judicial independence. But judicial independence is a means, not an end in itself. It is there to serve the ultimate goal of protecting rights by ensuring their due determination - most especially, liberty. (49)
  2. The determination of criminal guilt involves an "inalienable exercise of judicial power". (50) Involuntary detention by the State is, at least ordinarily, of its nature inherently penal or punitive. (51) As detention involves punishment, and as punishment may only be administered following an exercise of judicial power, the majority in Lim recognised a "constitutional immunity from being imprisoned by Commonwealth authority" except pursuant to an exercise of judicial power. (52)
  3. Certain exceptions to this principle were recognised, including involuntary detention in cases of mental illness or infectious disease, along with a relevant exception of detention "for the purposes of executive powers to receive, investigate and determination an application" by an alien for an entry permit, and "for the purposes of an executive power of deportation or expulsion". (53)
  4. The exceptions relating to aliens were said to be based on recognition of an historical incident of the exercise of executive power. (54) It was not said that the protection of the separation doctrine depends on whether a person is a citizen, indeed the contrary was suggested. (55) Citizenship is not a constitutional concept. (56) Constitutional protection of liberty does not depend on citizenship, (57) any more than it could depend on discrimens such as gender, race or religion. Rather, the separation doctrine is built on a separation of functions. (58) The functions are separated regardless of who seeks or causes the exercise of the power.

The appropriate formulation of the test from Lim

  1. A majority of the Court in Lim held that a law authorizing executive detention of aliens will be valid if the detention it authorizes is limited to "what is reasonably capable of being seen as necessary for the purposes of deportation or necessary to enable an application for an entry permit to be made and considered". (59) Other formulations in that case were:
    1. "what is reasonably necessary for the purposes of deportation"; (60)
    2. "what is reasonably necessary to achieve the non-punitive object". (61)
  2. The majority also used a formulation arguably even more restrictive, by reference to earlier authority such as Koon Wing Lau v Calwell,(62) namely permitting restraint of an alien in custody "to the extent necessary to make a deportation effective." (63)
  3. The majority did not discuss their reasons for choosing the formulation at page 33 of Lim. It is submitted that the more appropriate formulation is that of Gaudron J, which omits the "reasonably capable of being seen" formulation. Those words would accord too much deference to the Parliament(64) where the core purpose of the separation of judicial power is to protect basic rights, and especially liberty. The test should be whether detention is reasonably necessary to make an assessment of the status of a person (health, security, migration) and/or for removal or deportation to be effected.
  4. The Commonwealth submits(65) that this Court should import into Constitutional construction some form of the "margin of appreciation" doctrine, which is a principle derived from the jurisprudence of the European Court of Human Rights. (66) The concept was developed to accommodate the fact that the ECHR(67) applies to many countries with different cultures and different legal systems. That rationale is absent from the Australian constitutional context. (68) The Constitution assumes the rule of law and provides for a separation of powers. In that system it is for the courts to determine the limits of governmental power, and to protect and enforce constitutional principles. The concept of "margin of appreciation" was developed to suit wholly different circumstances. (69) In any event, courts applying similar concepts in other jurisdictions have held that a comparatively "narrow" margin is to be afforded in cases involving liberty. (70)

Characterisation of the detention

  1. Whether a law or exercise of power falls within one of the permitted exceptions (ie whether it is reasonably necessary to enable assessment of status or removal/deportation) involves issues of characterisation. The Commonwealth contends that the Lim test merely involves an assessment of the purpose of the measure. (71) That contention involves a gloss on the approach taken in Lim. It should be rejected in any case. The majority in Lim indicated that the issue was whether the measure was punitive or penal "in character" or "in nature." (72) Here, as elsewhere in constitutional law, the character of a measure is not to be ascertained merely from its actual or claimed purpose but also from what it does and how it does it.
  2. Whether a law offends against Ch III "does not depend upon the motives or intentions of the minister or individual members of the legislature", but it is to be assessed by reference to its effects considered in context. (73) Moreover, laws impinging on constitutional guarantees and limitations must be assessed as a matter of substance and not form. Thus the Court has held that whether or not a law infringes ss.92 or 117 of the Constitution must be assessed not only by reference to the claimed purpose or the provisions employed, but also by its effects. (74) No different approach should be applied here.
  3. It would be extraordinary if executive detention could be justified simply because of, say, some low level depression or minor flu, not constituting any significant risk to the person or the community. Questions of reasonable justification, and of degree, must therefore arise in relation to the other exceptions - extending by analogy, here, as to whether executive detention can be justified regardless of the likelihood of imminent removal and regardless of conditions.
  4. The attributes of a punitive measure include protection of society, deterrence, retribution and reform: Veen v The Queen (No. 2) .(75) Punishment also has an objective character, in that it involves the imposition of a liability or disability, or the withdrawal of some right or immunity. That is why involuntary detention is presumptively punitive, because it withdraws the basic right to liberty.
  5. That considerations broader than purpose are relevant is illustrated by tests developed by the United States Supreme Court when it is required to differentiate penal from other measures. This is required in contexts which include the very similar prohibition on punishment other than by judicial due process and the prohibition on double jeopardy (see the Fifth and Fourteenth Amendments). The Court looks to a range of factors, including:
    1. whether the measure is "reasonably related to a legitimate governmental objective"; (76)
    2. whether it is "punitive either in purpose or effect"; (77)
    3. whether the sanction has historically been regarded as a punishment, whether its operation will promote the traditional aims of punishment, and whether it appears excessive in relation to the alternative purpose assigned. (78)
  6. It is not to the point to say that Australia has no precise equivalent of the Due Process Clause or the Eighth Amendment. (79) The same imperative to distinguish penal from other measures arises in both systems. To that extent the American caselaw may offer guidance. (80)
  7. As this is an area involving a constitutional guarantee (Ch III being a guarantee of liberty), the concept of proportionality may appropriately be applied in assessing whether the prima facie infringement of a constitutional principle is permissible in pursuit of some other legitimate governmental object. (81) Put another way, the proportionality test can assist the assessment of whether a measure should be characterised as reasonably necessary to enable assessment of status, or removal or deportation. The proportionality test has been applied in relation to the s.92 guarantee of free interstate trade. (82) So, too, for the implied freedom of political communication. (83)
  8. If the means adopted in the governmental measure are disproportionate to the achievement of the claimed object, then the measure cannot be characterised as truly made in pursuance of that object. This assessment involves an examination of the nature and effects of the means adopted, along with consideration of whether any measure less restrictive of the protected interest could have been employed. (84)
  9. Even if the label "proportionality" is not employed, the same principles apply from well-established principles about "reasonable regulation." (85) As was stated in AMS v AIF(86) in relation to the s.92 guarantee of free interstate intercourse, a law should not impose upon the protected freedom "an impediment greater than that reasonably required to achieve the object of the legislation."

Application of constitutional principles in SHDB/Al Khafaji

  1. The specific question in these cases is whether detention may, consistently with the Constitution, be authorised even when there is no real likelihood of the removal of the person from Australia within the reasonably foreseeable future. The Commission submits that it cannot.
  2. If detention may only be for a period which is reasonably necessary to enable removal of an alien from Australia, this involves consideration of not only the stated purpose (removal), but also:
    1. the means employed by the law to achieve that purpose (mandatory and non-reviewable detention in custody); and
    2. the effects of the law (custody for lengthy and indefinite periods which could lead to permanent deprivation of liberty without charge or conviction for any criminal offence, whether or not there is a real likelihood of removal in the reasonably foreseeable future).
  3. Taking account of the fundamental nature of the interest involved (liberty), and the significant harm that may be done to a person by the deprivation thereof, a period of indefinite and perhaps permanent detention is not proportionate or reasonably related to the achievement of the purpose of removal. A person could not justifiably be deprived of her or his liberty for years because of the possibility, perhaps increasingly faint, that she or he might be removed at some stage.
  4. Crucial to the decision in Lim itself was that there was an upper limit of 273 days (nine months) on detention, that detainees were required to be removed "as soon as practicable" (87) if no application was made or if the application had finally been rejected and, most importantly, that it lay within the power of the designated person to bring their detention to an end by requesting removal, which had to be effected as soon as practicable. (88)
  5. For the detention being considered here, under s.196 of the Act, there is no upper limit. And in the particular circumstances facing Mr Al-Kateb and Mr Al Khafaji, it cannot be said that they have it within their power to release themselves. It certainly cannot be said that continued detention would be "with the concurrence or acquiescence of the 'detainee.'" (89)
  6. To continue to detain people in such circumstances is to impose a punishment (whether for their unlawful entry or for their inability to procure their own departure from Australia, or both) without exercise of judicial power and is invalid. No doubt, if there are security concerns about certain people who are, or become, "unlawful non-citizens", this may support their detention on an individual basis, subject to the necessity of having the ability to seek judicial assessment of whether they are such a security risk. Moreover, if there is a reasonable basis for believing that an individual "unlawful non-citizen" is a flight risk, then his or her detention may be justified, just as for those refused bail. Beyond this, however, whilst the detention might have had the character of detention-for-removal for a period, this character cannot persist indefinitely when there is no real likelihood of imminent removal.
  7. Of course, if the prospect of imminent removal did become likely, then detention could once again be permissible. (90)
  8. Preventing people, simply because they entered Australia unlawfully, from entering the community is not a sufficient or relevant justification of detention. (91) The status of alienage is not lost by virtue of entry or absorption into the Australian community. (92) Indeed, an alien in Australia without lawful authority may not (until such time as they regularise their status) be absorbed into the Australian community and will remain subject to laws made under s.51(xxvii). (93) Such persons do not, merely by virtue of their physical presence, become part of the Australian community as a matter of law. Hence, such considerations cannot justify their separation. To assert that mandatory and unreviewable detention is necessary for the protection of society in some way is to invest that detention with the character of punishment because no differentiation between individuals and the risks (or otherwise) which they pose is allowed.
  9. The existence of the power to exclude aliens seeking entry to Australian territory adds nothing to the Commonwealth's argument. (94) The power to exclude is nothing more than the complement of the power to deport(95) and is confined to denial of physical entry of aliens at the border. It has no ongoing application to an alien who has already physically entered Australia, whether lawfully or unlawfully.
  10. The limitation identified does not require a declaration of invalidity of s.196(1). That section may be read down to the relevant extent, taking account of s.3A of the Act and s.15A of the Acts Interpretation Act 1901 (Cth).
  11. The constitutional principles outlined above may also have more general potential consequences. It is reasonably arguable that permissible executive detention may only be for a period which is reasonably necessary for a preliminary assessment of migration status, identity and security concerns (at the time of entry) and for a period which is reasonably necessary to secure an alien's removal or deportation (at the time of forced departure). Mandatory and non-reviewable detention between these periods might be said to be punitive: it certainly appears arguable that mandatory detention with no express upper time limit involves aspects of deterrence. However, it is unnecessary to address that broader issue here.
  12. Decisions in other jurisdictions and spheres, including under international conventions, support the application of constitutional principles in the manner outlined above. This is not to suggest that international conventions or decisions of other courts could or should govern the content of the Australian Constitution or to propose a general rule of construction. (96) Rather, where lines must be drawn, and such lines are unclear, guidance may be obtained from such sources. So much has recently been implicitly acknowledged by majorities of the United States Supreme Court. (97) Such an approach is also supported by decisions and extra-curial comments of members of this Court. (98)
  13. The decisions of the UNHRC, referred to above, are thus also relevant here as offering guidance in this context. Article 9 of the ICCPR has been taken to involve notions of proportionality. (99) While the rights conferred by article 9 do not flow from an obligation to ensure a separation of powers between the judiciary and executive, the specific requirements for judicial supervision of deprivations of liberty in articles 9(3) and 9(4) are clearly related to that principle. Indeed, the UNHRC has indicated that article 9(4) and the related provisions of article 14 (right to a fair trial) require a separation of powers between the executive and the judiciary, even during declared states of emergency. (100)

Application of constitutional principles in Behrooz

  1. The principles relating to the constitutional immunity from detention operate in the same way in respect of conditions of detention as they do in respect of the length of detention. Detention in conditions that are not reasonably necessary to make an assessment of a person's status, or to enable removal or deportation if a visa application is unsuccessful, renders the detention itself unlawful because the detention assumes a punitive character and is imposed contrary to Ch III.
  2. To take an extreme example, conditions of detention involving physical or mental torture (cf article 7, ICCPR) can never be necessary for administrative detention. Further, were the conditions of detention to take on an attribute or character of retribution or deterrence, then in the absence of an exercise of judicial power such detention could not be permitted consistently with the Constitution.
  3. Again, guidance as to what conditions are "reasonably necessary" (and proportionate) may again be obtained from judicial decisions in other jurisdictions and spheres, and from international conventions.
  4. The Commonwealth itself accepts that if a law was made in terms authorising detention in brutal or inhumane conditions then a question would arise as to validity, and that the Act does not authorise detention in such conditions. (101) If that is so, then on the Commonwealth's own approach some line-drawing exercise is required. It may be that the courts should not in any event engage in precise delineation of what is required for conditions of detention to be non-punitive. (102) Having conceded that there may be some relevant limitations on the Commonwealth's legislative power, it could not be put that the same limitations do not apply to the executive power granted by statute. Were the contrary to be correct, then any constitutional limitations could be evaded with ease. The separation of judicial power prevents intrusion by either branch.
  5. Remedies for unlawful detention by reason of conditions of detention would lie through public and private law actions. A detainee in such conditions would not necessarily be entitled to release into the community. Rather, he or she would be entitled to release from being subject to the particular conditions of detention which were unlawful.
  6. The Commission refrains from addressing how s.197A - a provision creating a criminal offence relating to specific conduct - should itself be construed, or when it validly may apply to circumstances such as those in Behrooz.

Counsel for Human Rights and Equal Opportunity Commission

D S Mortimer

Douglas Menzies Chambers

ph (03) 9225 7170

fax (03) 9225 7293

J K Kirk

11th floor Selborne Chambers

ph (02) 9223 9477

fax (02) 9232 7626

28 October 2003

  1. In the sense such rights are defined in the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (HREOC Act). This includes the rights recognised in the International Covenant on Civil and Political Rights (ICCPR) (opened for signature 16 December 1966, 999 United Nations Treaty Series 171; entered into force 23 March 1976 except article 41 which came into force 28 March 1979; ratified by Australia 13 August 1980 except article 41 which was ratified by Australia 28 January 1993), and the Convention on the Rights of the Child (CRC) (opened for signature 20 November 1989, 1577 United Nations Treaty Series 3; entered into force 2 September 1990; ratified by Australia 17 December 1990; declared an international instrument for the purposes of s 47(1) of HREOC Act on 22 December 1992; gazetted 3 January 1993) (see s 3 HREOC Act).
  2. Submissions in SHDB/Al Khafaji, paragraph 1. For reasons of convenience, and in light of the representation involved, the submissions by the Minister (in SHDB and Al Khafaji), by the First and Second Respondents (in SHDB), by the Secretary of the Department (in Behrooz) and by the Attorney-General of the Commonwealth (intervening in all three proceedings) will be referred to as submissions of the Commonwealth.
  3. Namely, the Commonwealth's Notice of Contention (AB 282) that the subpoenas should have been set aside in any event; and the construction of s.197A of the Act.
  4. See Minister for Immigration v Al Masri (2003) 197 ALR 241 at [136].
  5. (2003) 197 ALR 241 at [82]-[155].
  6. Coco v R (1994) 179 CLR 427 at 438; see also for example Daniels Corporation v ACCC (2002) 77 ALJR 40 at [43] per McHugh J, also at [11] per Gleeson CJ, Gaudron, Gummow & Hayne JJ.
  7. Swaffield v R (1997) 192 CLR 159 at 213 per Kirby J.
  8. Note Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 523 per Brennan J; Williams v R (1986) 161 CLR 278 at 292 per Mason & Brennan JJ.
  9. For example, Secretary, Department of Health and Community Services v JWB (1992) 175 CLR 218 at 265-6 per Brennan J; Williams v R at 292; Re Bolton; Ex parte Beane at 520-523 per Brennan J; Cattanach v Melchior (2003) 77 ALJR 1312 at [6] per Gleeson CJ; Trobridge v Hardy (1955) 94 CLR 147 at 152 per Fullagar J. To the extent this requires confirmation, the United Nations Human Rights Committee has indicated that the corresponding rights conferred by the ICCPR (under articles 6, 7 and 9(1)) represent principles of customary international law in respect of which reservations cannot be validly entered (see General Comment No 24 in Compilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies HRI/GEN/1 Rev.6 (12 May 2003) page 161 at paragraph 8). Indeed, the rights conferred by articles 6 and 7 may not be derogated from, even in declared states of emergency (see article 4(2) ICCPR). It has also been suggested that the rights conferred by article 9(1) may be "effectively non-derogable" (S Joseph, et al, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary, Oxford University Press 2000, page 627)
  10. 197 ALR at [92].
  11. Chester v R (1988) 165 CLR 611 at 619; Lowndes v R (1999) 195 CLR 665 at 670-1. Kirby J stated in McGarry v R (2001) 207 CLR 121 at [61] that: "In part, the reason why the system of criminal justice treats an order of indefinite imprisonment as a serious and extraordinary step, derives from the respect which the law accords to individual liberty and the need for very clear authority, both of law and of fact, to deprive a person of liberty, particularly indefinitely."
  12. Submissions in SHDB/Al Khafaji, paragraphs 26 and 30.
  13. (1992) 176 CLR 1.
  14. At 12.1 per Mason CJ, 36.1 per Brennan, Deane and Dawson JJ.
  15. This issue was considered by the Full Federal Court in Minister for Immigration and Multicultural and Indigenous Affairs v VFAD (2003) 196 ALR 111 at [139]-[141], [159] and also NAMU v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 401.
  16. Submissions in SHDB/Al Khafaji, paragraph 26.
  17. Submissions in Behrooz at paragraphs 47-48.
  18. (1992) 176 CLR at 12.
  19. Coco at 437.
  20. cf Coco at 437.
  21. Ibid at 437-438; see similarly R v Home Secretary; Ex parte Simms [2000] 2 AC 115 at 131 per Lord Hoffman; Plaintiff S157/2002 v Commonwealth (2003) 195 ALR 24 at [30] per Gleeson CJ.
  22. (2003) 197 ALR 241 at [96]-[113].
  23. Jumbunna Coal Mine NL v Victorian Coalminers' Association (1908) 6 CLR 309 at 363 per O'Connor J; Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287 per Mason CJ and Deane J; Kartinyeri v Commonwealth (1998) 195 CLR 337 at [97] per Gummow and Hayne JJ.
  24. Kartinyeri at [97].
  25. Submissions in Behrooz at paragraph 48.
  26. Baban v Australia (UNHRC Communication No. 1014/2001) at paragraphs 4.12 and 7.2; Jalloh v The Netherlands (UNHRC Communication No 794/1998) at paragraph 8.2; Concluding Observations on United Kingdom CCPR/CO/73/UK (6/12/01) at paragraph 16.
  27. A v Australia (UNHRC Communication No. 560/1993) at paragraph 9.4, C v Australia (UNHRC Communication No. 1014/2001) at paragraph 8.2, Baban v Australia at paragraph 7.2.
  28. A v Australia at paragraph 9.2.
  29. 533 US 678 (2001).
  30. "Opinions adopted by the Working Group on Arbitrary Detention" E/CN.4/2001/14/Add.1 9 November 2000 at page 38 (opinion no. 33/1999) and 42 (opinion no 34/1999). As to reference to this body, note Commonwealth v Hamilton (2000) 108 FCR 378 at 388 per Katz J, and Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 at 117 per Gummow J and Commonwealth v Bradley (1999) 95 FCR 218 at 237 per Black CJ.
  31. Report of Working Group on Arbitrary Detention: Visit to Australia E/CN.4/2003/8/Add.2 24 October 2002 at paras 16-18. See also recommendation 2 at paragraph 64.
  32. A v Australia.at paragraph 9.5.
  33. Baban v Australia at paragraph 7.
  34. See paragraph 32 of the submissions of the Commonwealth in SHDB/Al Khafaji.
  35. See articles 2 and 5.
  36. Opened for signature 16 December 1966, 999 United Nations, Treaty Series 302 (entered into force 23 March 1976, acceded to by Australia 25 December 1991).
  37. McGoldrick, The Human Rights Committee: Its Role in the Development of the International Covenant on Civil and Political Rights, Clarendon Press 1994, at page 151, paragraph 4.39.
  38. This form of words is currently used by the UNHRC where it finds a breach of the ICCPR - see, for example, Baban v Australia at paragraph 10. See also article 1 of the Optional Protocol.
  39. See article 12(1) of the Optional Protocol. Even then, given that the UNHRC is the pre-eminent interpreter of the ICCPR, one would expect Australian Courts to have regard to the UNHRC's views where questions of interpretation of the ICCPR arose.
  40. Nicholls v Registrar Court of Appeal [1998] 2 NZLR 385 at 404 per Eichelbaum CJ. See also R Rishworth "The Rule of International Law" in G Hushcroft and R Rishworth Litigating Rights: Perspectives from Domestic and International Law Hart Publishing 2002 pp267-279 at 275.
  41. E Evatt "The Impact of International Human Rights on Domestic Law" in G Hushcroft and R Rishworth Litigating Rights: Perspectives from Domestic and International Law Hart Publishing 2002 pp281-303 at 295. See also S Joseph, et al, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary, Oxford University Press 2000 at page 14 [1.33]. Examples of references to the jurisprudence of human rights treaty bodies by Australian courts include: Mabo v Queensland (No 2) (1992) 175 CLR 1 at 42 per Brennan J (with whom Mason CJ and McHugh J agreed); Dietrich v The Queen (1992) 177 CLR 292 at 306-307 per Mason CJ and McHugh J and Johnson v Johnson (2000) 201 CLR 488 at 501 [38] per Kirby J.
  42. In C v Australia and Baban v Australia.
  43. Commonwealth submissions in SHDB/Al Khafaji at paragraphs 25-26 .
  44. Commonwealth submissions in SHDB/Al Khafaji at paragraph 28.
  45. Note that the Committee on the Rights of the Child specifically raised the placement of children in immigration detention centres as one of its "Principal Subjects of Concern" in Concluding Observations on Australia CRC/C/15/Add.79 (10/10/97) paragraph 20. See similarly Concluding Observations on Austria CRC/C/15/Add.98 (7/7/99 paragraph 27). Note in addition that articles 7, 10(1) and 9(4) of the ICCPR also have equivalents in the Convention on the Rights of the Child, being, respectively, articles 37(a), 37(c) and 37(d).
  46. Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 at 11; note also R v Davison (1954) 90 CLR 353 at 381 per Kitto J; R v Trade Practices Tribunal; Ex parte Tasmanian Breweries (1970) 123 CLR 361 at 390, 392 per Windeyer J.
  47. R v Quinn; Ex parte Consolidated Foods (1977) 138 CLR 1 at 11.8; Attorney-General (Cth) v Breckler (1999) 197 CLR 83 at [40].
  48. Quinn at 11.9.
  49. Note Wilson at 11.5; Harris v Caladine (1991) 172 CLR 84 at 135 per Toohey J.
  50. HA Bachrach Pty Ltd v Queensland (1998) 195 CLR 547 at [15]; note also Waterside Workers Federation v JW Alexander Ltd (1918) 25 CLR 434 at 444 per Griffiths CJ.
  51. Note Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 27.8 per Brennan, Deane & Dawson JJ; see also 71.3 per McHugh J.
  52. Lim at 28-9; Mason CJ agreeing at 10; Gaudron J generally agreeing at 53, see also 58.1; McHugh J at 71; note also Kruger v Commonwealth (1997) 190 CLR 1 at 61-2 per Dawson J (McHugh J agreeing at 141-2), 84-5 per Toohey J, 109-11 per Gaudron J, 161-2 per Gummow J.
  53. Lim at 32.
  54. Lim at 29-32.
  55. Note Lim at 19, 29.
  56. Lim at 54 per Gaudron J; Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at [3] per Gleeson CJ, at [42] per Gaudron J, at [118] per McHugh J. Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Te (2002) 193 ALR 37 at [26] and[31] per Gleeson CJ, at [53] per Gaudron J.
  57. Te at [28]-[29] per Gleeson CJ and at [125] per Gummow J.
  58. Wilson at 12.4.
  59. At 33.
  60. Gaudron J at 58.
  61. McHugh J at 71.
  62. (1949) 80 CLR 533.
  63. Lim at 31.1.
  64. cf submissions of Commonwealth in SHDB/Al Khafaji at paragraph 21.
  65. Ibid.
  66. Note Leask v Commonwealth (1996) 187 CLR 579 at 595 per Brennan CJ.
  67. That is the European Convention for the Protection of Human Rights and Fundamental Freedoms.
  68. Brennan CJ's suggestions to the contrary (see Australian Capital Television Pty Limited v Commonwealth (1992) 177 CLR 106 at 159; Cunliffe v Commonwealth (1994) 182 CLR 272 at 325 and Leask v Commonwealth (1996) 187 CLR 579 at 595) were not endorsed in Lange v Australian Broadcasting Commission (1997) 189 CLR 520. Note also the apparent doubts regarding the doctrine expressed by Kirby J in Levy v Victoria (1996) 189 CLR 579 at 648: "assuming that such exists". See also Regina v. British Broadcasting Corporation (Appellants) ex parte Profile Alliance (Respondents) [2003] UKHL 23; [2003] All ER 977 where Lord Hoffman (at page 977 [74]-[77]) and Lord Walker of Gestingthorpe (at page 1015-6 [144]) doubted Laws LJ's discussion of deference in the decision in Prolife below and in International Transport Roth GmbH v Secretary of State for the Home Department [2003] QB 728 (cited by the Commonwealth in footnote 35).
  69. See C Ward "The Margin of Appreciation in Australian Jurisprudence" [2003] 23 Australian Bar Review 189 at 197. See also Regina v British Broadcasting Corporation (Appellants); Ex parte Profile Alliance (Respondents) [2003] UKHL 23; [2003] All ER 977 per Lord Hoffman (at page 997 [75]-[76]).
  70. See eg Amirthanathan,R (on the application of) v Secretary of State for the Home Department [2003] EWHC 1107 (Admin) at [54]. See also The Queen v Secretary of State for the Home Department ex parte Khawaja [1984] AC 74 at 108-111 per Lord Scarman.
  71. Submission in Behrooz at paragraph 46, and in SHDB/Al Khafaji at paragraphs 15-16.
  72. See Lim at 27.8, 28.7, 32.6.
  73. HA Bachrach Pty Ltd v Queensland (1998) 195 CLR 547 at [12].
  74. For example, Cole v Whitfield (1988) 165 CLR 365 at 399-400, 407-8; Street v Queensland Bar Association (1989) 168 CLR 461.
  75. (1987) 164 CLR 465 at 47.
  76. Bell v Wolfish, 441 US 520 at 538 (1979).
  77. Hudson v United States, 522 US 93 at 99 (1997).
  78. Kennedy v Mendoza, 372 US 144 at 168 (1963).
  79. cf Commonwealth Submissions in Behrooz, paragraph 52.
  80. See similarly the use made of American cases in Polyukhovich v Commonwealth (1991) 172 CLR 501 at 536 per Mason CJ, 612 per Deane J, 645-50 per Dawson J, 685-6 per Toohey J, 705-7 per Gaudron J, and 721 per McHugh J.
  81. Note Leask v Commonwealth (1996) 187 CLR 579 at 593-5 per Brennan CJ; 606 per Dawson J.
  82. Castlemaine Tooheys v South Australia (1990) 169 CLR 436 at 473-4 - which case the Commonwealth itself relies on: Submissions in SHDB/Al Khafaji at paragraph 21, footnote 34.
  83. Note discussion in Lange v Australian Broadcasting Commission (1997) 189 CLR 520 at 561-2; Levy v Victoria (1997) 189 CLR 579 at 645-6 per Kirby J.
  84. See analysis in Kirk, 'Constitutional Guarantees, Characterisation and the Concept of Proportionality' (1997) 21 MULR 1 at 3-9.
  85. Ibid at 12-13.
  86. (1999) 199 CLR 160 at [36] per Gleeson CJ, McHugh and Gummow JJ.
  87. The word "reasonably" first appeared in the context of the removal provisions when s.198 was added to the Act in 1992 (as s.54ZF) by the Migration Reform Act 1992 (Cth).
  88. See Brennan, Dean and Dawson JJ at 33-4, Gaudron J at 58 and McHugh J at 71-2.
  89. cf Lim at 72.5 per McHugh J.
  90. As occurred in the Al Masri proceedings: Al Masri v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1099 per Merkel J.
  91. cf Commonwealth's Submissions in SHDB/Al Khafaji paragraph 20; note Lim at 71 per McHugh J.
  92. Re Minister for Immigration and Multicultural and Indigenous Affairs Ex Parte Te (2002) 77 ALJR 1 at [39]-[42] per Gleeson CJ; [58] per Gaudron J, [90] per McHugh J, [119]-[136] per Gummow J and [211] per Hayne J. Cf Kirby J at [200]-[201] and Callinan J at [229].
  93. R v Forbes; ex parte Kwok Kwan Lee (1971) 124 CLR 168 per Barwick CJ at 173 (with whom McTiernan, Windeyer, Owen and Gibbs JJ agreed); R v McKellar; Ex Parte Ratu (1977) 137 CLR 461 at 478 per Mason J; Te at [227] per Callinan J.
  94. Commonwealth's Submissions in SHDB/Al Khafaji paragraph 20 - see also the reference to "exclude" in the passage from McHugh J's judgement in Lim at 71 cited by the Commonwealth at footnote 31.
  95. Robtelmes v Brenan (1906) 4 CLR 395 at 400 per Griffith CJ and 415 per Barton J and Attorney General for Canada v Cain [1906] AC 542 at 547.
  96. See Polites v Commonwealth (1945) 70 CLR 60; Kartinyeri v Commonwealth (1998) 195 CLR 337 at 383-6 per Gummow and Hayne JJ; AMS v AIF (1999) 199 CLR 160 at 180 per Gleeson CJ, McHugh and Gummow JJ; Western Australia v Ward (2002) 76 ALJR 1098 at [961] per Callinan J.
  97. Atkins v Virginia, 536 US 304 (2002) at footnote 21; Laurence v Texas, 539 123 S.Ct 2472 (2003), at 2481 and 2483.
  98. See Polyukhovich v Commonwealth (1991) 172 CLR 501 at 612 per Deane J; Nationwide News Pty Limited v Wills (1992) 177 CLR 1 at 47 (footnote 53) per Brennan J; Australian Capital Television Pty Limited v Commonwealth (1992) 177 CLR 106 at 140 per Mason CJ and 211 (footnote 2) per Gaudron J. See also The Hon Justice Michael McHugh AC "Does Chapter III of the Constitution protect substantive as well as procedural rights?" (2001) 21 Australian Bar Review 235 at 241 and the Hon Chief Justice Murray Gleeson AC "Global Influences on the Australian Judiciary", paper presented to the Australian Bar Association Conference in Paris, 8 July 2002, published at .
  99. A v Australia; C v Australia; Baban v Australia.
  100. General Comment No 29 in Compilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies HRI/GEN/1 Rev.6 (12 May 2003), page 161 at paragraph 16 and Concluding Comments on Israel CCPR/C/79/Add.93 (18/08/98) at paragraph 21.
  101. Submissions in Behrooz, paragraph 47
  102. cf Bell v Wolfish , 441 US 520 at 547-8 (1979)

Last updated 14 April 2004.