Commission submission - Minh Dung Luu

Outline of submissions of the Human Rights and Equal Opportunity Commission intervening before the Federal Court in Luu Case

IN THE FEDERAL COURT OF AUSTRALIA VICTORIAN DISTRICT REGISTRY On appeal from a single justice of the Federal Court of Australia

No. V995 of 2001

BETWEEN:

MINH DUNG LUU Appellant

AND:

THE HONORABLE PHILLIP RUDDOCK, MINISTER FOR IMMIGRATION MULTICULTURAL AFFAIRS Respondent

AND: HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION Intervener

Outline of Submissions

INTRODUCTION

1. The Human Rights and Equal Opportunity Commission ("the Commission") was granted leave by his Honour Justice Marshall on 5 June 2001 to intervene in these proceedings pursuant to s 11(1)(o) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (the "HREOC Act").

2. The Commission made both written primary and reply submissions to Marshall J and oral submissions at the hearing of this matter.

3. The scope of the Commission's intervention is limited to issues within its area of expertise, which may not be addressed at all, or fully addressed, in the submissions of the parties. The Commission's submissions are primarily directed to the Minister's decision under s 253(9) of the Act not to release Mr Luu rather than his decision under s 206(1) not to revoke the deportation order.

4. In this appeal, the Commission's submissions address the following aspects of the decisions under review:

(a) For the purposes of the questions of law set out in paragraphs (b) and (c) and (d) below, whether Mr Luu's detention was and remains in breach of Australia's international obligations under Articles 9 and 10 of the International Covenant for Civil and Political Rights ("ICCPR") (relevant to Grounds 5(a) and (d) of the Notice of Appeal). (b) Whether Australia's treaty obligations under Articles 9 and 10 of the ICCPR were a relevant consideration for the Minister in making his decision under s 253(9) (relevant to Grounds 5(a) and (d) of the Notice of Appeal).

(c) Whether, in light of the answer to (a), the principles in Teoh should have been applied by the Minister in making his decision under s 253(9) (relevant to Grounds 2 and 3 of the Notice of Appeal).

(d) Whether s 253 (including the discretion in s 253(9)) should be construed as imposing limits on a person's detention "pending" deportation (relevant to Grounds 5(a) and (d), 10 and 11 of the Notice of Appeal).

SUMMARY OF THE COMMISSION'S ARGUMENT

5. The Commission submits that this Court should hold that particular international obligations may be relevant considerations in the exercise of certain statutory discretions and this is such a case.

6. In respect of the Minister's decision under s 253(9), the Commission submits that the Minister was obliged to take into account Australia's obligations under the International Covenant for Civil and Political Rights ("ICCPR"), Articles 9 and 10. The ICCPR is attachment A to these submissions. The Minister was required to consider:

(a) Whether Mr Luu's detention contravened any of those obligations; and

(b) If so, whether the Minister should exercise the discretion under s 253(9) in a way which was consistent or inconsistent with Australia's obligations.

7. The Commission submits that:

(a) Mr Luu's detention was inconsistent with and contrary to those Articles of the ICCPR at the time the Minister made his decisions, namely 12 March 2001. For the purposes of all three grounds proposed by the Commission (relevant considerations, Teoh[1] and statutory construction), the Court should make this finding.

(b) The purpose of Mr Luu's detention as "protection of the Australian community" is not a purpose of s 253, and therefore not a relevant consideration. That being so, Mr Luu's detention is effectively preventative detention, in breach of Article 9, and this ought to have been particularly considered by the Minister.

8. Since such inconsistency existed, if he was minded not to release the appellant under s 253(9), the Minister was obliged to accord the appellant an opportunity to be heard as to why the Minister should not make such a decision: Teoh.

9. Sub-sections 253(1), (8) and (9) should be construed consistently with principles of international law and human rights norms and, so construed, authorise detention "pending deportation" only for a reasonable time. What is a "reasonable time" will vary according to particular circumstances. In Mr Luu's case, his detention has gone beyond a reasonable time. This conclusion has the effect that Mr Luu's detention may no longer be authorized by section 253 of the Act ( a matter Marshall J decided was inappropriate to determine in this proceeding) or, at the very least, was a construction of his powers under s 253(9) which should have influenced the Minister's exercise of discretion.

OBLIGATIONS UNDER THE ICCPR AS A RELEVANT CONSIDERATION

The correct approach to the relevant considerations ground

10. The Commission does not contend that there is a general principle that a decision maker is always bound to take into account the terms of international treaties when exercising a statutory power. However the Commission does submit that the provisions of Articles 9 and 10 (the latter being interpreted in light of the United Nations Standard Minimum Rules for the Treatment of Prisoners (the "Minimum Rules")) of the ICCPR are relevant considerations in the exercise of the discretions under s 253(9) of the Migration Act.

11. What is a relevant consideration for the purposes of the exercise of a particular statutory discretion is not necessarily confined to considerations found expressly or by implication to exist by reason of an analysis of the scope, subject matter and purpose of the statute conferring the discretion. When read in context, not even the judgment of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 39-40 suggests this is so.

12. His Honour in Peko-Wallsend found that a report of the Aboriginal Land Commissioner on the four factors set out in s 50(3)(a) - (d) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) was a relevant consideration for the Minister in making his decision whether to grant land to a land trust under the Act. However his Honour went on to find that it is "but a short and logical step" to conclude that a consideration of those factors (and in particular the factor of detriment) must be based on the most recent and accurate information that the Minister has at hand and therefore includes submissions by a party who says it is adversely affected by such a grant. That is, his Honour construed as relevant considerations facts particular to the case before him namely, the mining company's submissions on detriment: cf the respondent's submissions to Marshall J in this case at para 24.

13. See Muslowie v Minister for Immigration and Ethnic Affairs (1986) 68 ALR 116 at 124-125 per Beaumont J and, generally, the cases referred to in Aronson and Dyer, Judicial Review of Administrative Action, 2nd Ed at 224-229. The decisions there referred to demonstrate that in many cases, facts particular to a case may well be a relevant consideration. However, the Commission accepts that an analysis of the scope, subject matter and purpose of the statutory discretion is the starting point for the ascertainment of what is a relevant consideration in a given context.

The scope, purpose and subject matter of the Act and the deportation power

14. The subject matter of the Migration Act is broadly set out in its objects section, s 4:

Object of Act

(1) The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.

(2) To advance its object, this Act provides for visas permitting non-citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non-citizens to so enter or remain.

(3) To advance its object, this Act requires persons, whether citizens or non-citizens, entering Australia to identify themselves so that the Commonwealth government can know who are the non-citizens so entering.

(4) To advance its object, this Act provides for the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by this Act.

15. One of the fundamental distinctions in the Act is between lawful and unlawful non-citizens: see s 5 for the definition of non-citizen, and s 13 for the distinction between lawful and unlawful non-citizens.

16. The regulation of the expulsion of non-citizens from Australia occurs through the Act by either removal (see sections 198 and 199 as to an unlawful non-citizen) or deportation (see sections 200 to 203). In both those circumstances the Act makes specific provision for the detention of non-citizens in order to achieve their removal or deportation. However in respect of unlawful non-citizens their detention is mandatory, and as to non-citizens subject to deportation, it is discretionary: see paragraph 17 below.

17. The power to deport which is given to the Minister by s 200 is circumscribed by conditions set out in sections 201, 202 and 203. Plainly the circumstances required to exist by each of those sections could be characterised as relevant considerations. However unless a person is an unlawful non-citizen and subject to mandatory detention under s 189, the fact that she or he is subject to a deportation order does not necessarily mean she or he must be detained. The wording in s 189 is quite different from s 253, which confers a power not a duty to detain: see also Tuiletufuga v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 389 at 392-393 per Lehane J.

18. The powers conferred by s 253 (especially sub-sections (1), (8) and (9)) are incidents of the power to deport which is conferred primarily by s 200. That is, they have no independent operation: they are constitutionally valid and therefore lawfully exercised only insofar as they are necessary concomitants to the effective exercise of the power to deport.

Constitutional limits on the scope of the power to detain pending deportation

19. The power to detain a non-citizen pending deportation conferred by this Act is constitutionally valid so long as it is exercised in order to achieve the statutory purpose of detention or removal: Chu Kheng Lim & Ors v Minister for Local Government and Ethnic Affairs (1992) 176 CLR 1 at 10, 11-12, 30-31, 32, 65. So much is also consistent with the express terms of (d) in section 4 of the Act.

20. It should be noted that the Court in Lim was dealing with statutory powers of detention which imposed an upper limit on that detention of approximately 10 months and which included a provision for a detainee to bring her or his detention to an end by request: Lim at 33-34. Both these factors significantly influenced the majority's opinion that such detention was a valid exercise of legislative power under s 51(xix) of the Constitution.

21. It is the vulnerability and exposure to deportation as an incident of sovereignty over territory which significantly diminishes the protection which Chapter III of the Constitution provides in the case of a citizen against imprisonment otherwise than pursuant to judicial process: Lim at 29.

22. However, restraint and detention are only associated with the power to deport because they may be "necessary to make expulsion or deportation effective": Lim at Attorney-General v Cain [1906] AC 542 at ȟ Koon Wing Lau at 555-556. As Latham CJ said in Koon Wing Lau (McTiernan and Webb JJ concurring):

Section 7 does not create or purport to create a power to keep a deportee in custody for an unlimited period. The power to hold him in custody is only a power to do so pending deportation and until he is placed on board a vessel for deportation and on such a vessel and at ports at which the vessel calls. If it were shown that detention was not being used for these purposes the detention would be unauthorised and a writ of habeas corpus would provide an immediate remedy.

23. Thus an inability to deport could convert the detention under s 253 into indefinite and therefore arbitrary detention, and so detention not authorised as an incident of the power in s 200 of the Act.

The scope, purpose and subject matter of s 253

24. The subject matter of the powers in s 253 is the interference with liberty. The importance accorded by the common law to the preservation of liberty is no less because the person concerned is an alien: Lim at Re Bolton; ex parte Beane (1987) 162 CLR 514 at 529, Kioa v West (1985) 159 CLR 550 at 631. As set out above, it is an interference constitutionally confined within strict limits.

25. The content of Articles 9 and 10 of the ICCPR set out basic international norms. A breach of one or more of these norms may indicate, because of the content of these norms, that the constitutional limits of the interference with liberty have been reached: see Lim at 31- Koon Wing Lau at 555-556.

26. The scope of the power conferred by s 253 is apparent in the provisions of s 253(1), (8) and (9) themselves. The power to detain is discretionary, not mandatory: s 253(1).

27. It is a power to keep in "immigration detention" which, by reason of the definition of that phrase in s 5 of the Act, contemplates a broad range of places of detention, with varying degrees of restrictions on liberty. There is an additional and alternative power contained in s 253(8), namely for a person to be kept in "such detention as the Minister . . . directs". Since it is expressed as an alternative to immigration detention, the phrase contemplates forms of custody different from those set out in the definition of "immigration detention" in s 5. It might encompass, for example, forms of home detention or other supervised but less restrictive detention.

28. Immigration detention is administrative detention. It is neither protective nor punitive, but facultative. The High Court's decision in Lim holds that it is justified because it is necessary to achieve an end which is within Commonwealth legislative power - namely the regulation of the entry and removal of non-citizens.

29. The scope of the power in s 253 to detain is thus broad and flexible in terms of the places of possible detention, but narrow as to the end sought to be achieved. That being so, Australia's international obligations to ensure that detention is not arbitrary, indefinite, cruel or inhumane or discriminatory are considerations which should always bear on the first (s 253(1)) and the continuing (s 253 (8) and (9)) exercise of the power to detain a deportee.

30. The purposes of the power conferred by s 253 have been described by Lehane J in Tuiletufuga at 398 as twofold:

(a) to ensure the deportee is available for deportation;

(b) to protect the Australian community, where a person may be a danger to the Australian community.

31. The Commission submits that although the object in paragraph 30(a) is plainly a purpose of the section (otherwise the exercise of the power to deport could be frustrated), the object in paragraph 30(b) should not properly be considered as a purpose of the power conferred by s 253.

32. Lehane J cites as authority for this proposition the judgment of Carr J in Towers v Minister for Immigration and Ethnic Affairs [1998] 83 FCA (16 February 1998). Towers was an interlocutory judgment. In one paragraph, Carr J held it was "arguable" that the risk of danger to the Australian community could be a relevant consideration in respect of all three decisions under challenge in that case, namely the decision to deport Mr Towers, the decision to take him into custody and the decision not to release him under s 253(9). In Towers, the decision maker had not taken account of remarks by the sentencing judge that the applicant was not likely to be a danger to the community.

33. In neither Towers nor Tuiletufuga was there any analysis of the purposes of the s 253 detention power in conjunction with the constitutional limits imposed on it in Lim's case. Tuiletufuga has been considered and sometimes applied in subsequent decisions: see Nguyen v Minister for Immigration and Multicultural Affairs [2001] FCA ͷ Nguyen v Minister for Immigration and Multicultural Affairs [2001] FCA ˁ Brehoi v Minister for Immigration and Multicultural Affairs [2000] FCA ܯ Dung Chi Dang v Minister for Immigration and Multicultural Affairs (1999) 93 FCR Lokeni Hui v Minister for Immigration and Multicultural Affairs 8 December 1998 Fed Ct (NSW) 1563/b Meng Kok Te v Minister for Immigration and Ethnic Affairs 16 October 1998 Fed Ct (Vic) 1339/98.

34. None of these cases have analysed Lehane J's proposition that a purpose of s 253 is protection of the Australian community, and none has analysed the consequent proposition that a decision maker is bound to take into account protection of the Australian community in exercising the powers under s 253.

35. Consistently with basic common law principles and the limits on the power of detention pending deportation as set out in Lim's case, the Commission submits that "protection of the Australian community" cannot be a purpose of the powers in s 253 (and therefore a relevant consideration).

36. The deportation power is not punitive: Robtelmes v Brenan (1906) 4 CLR 395 at Ɵ Koong Wing Lau v Calwell (1949) 80 CLR 533 at 555-556. The power to detain, being only a necessary incident of the power to deport, therefore cannot be punitive or exercised for reasons associated with punishment.

37. By elevating protection of the Australian community as a purpose of detention where that consideration can only be directed at the fact that a person has been convicted and sentenced for a crime, the Court is sanctioning the imposition of further punishment on the individual by further detention. In Kable v DPP (1996) 189 CLR 51, McHugh J characterized the legislation introduced to continue the incarceration of Mr Kable as legislation which provided "for punishment by way of imprisonment for what the appellant is likely to do as opposed to what he has done". This is consistent with the majority's observation in Lim that, aside from exceptional cases, involuntary detention is penal or punitive in nature. In Lim, their Honours were referring to the detention of a citizen, and the Court went on to elaborate why different considerations applied to non-citizens. However, the judgment emphasises how slight a move is necessary for involuntary detention to become disconnected from a constitutionally valid basis.

38. This is particularly so when a person subject only to administrative detention is held in custody in a state prison whose regime is designed primarily as one to administer punishment to convicted offenders.

39. Further, the purpose of "protecting the Australian community" effectively involves preventative detention. This must be so, because although another phrase is used, what is at stake is preventing a person from engaging in any further criminal conduct. The Minister's reasons in this case (AB 45 paragraphs (e) and (f)) plainly state as much.

40. It is now firmly established that our common law does not authorize preventative detention. The fundamental principle of proportionality does not permit the increase of sentence imprisonment beyond what is proportional to the crime merely for the purpose of extending the protection of society from the recidivism of the offender: Chester v R (1988) 165 CLR 611, 618. It is the antithesis of judicial power to deprive an individual of her or his liberty not because she or he had breached any law (civil or criminal) but because an opinion was formed that she or he might commit such a breach in the future: Kable v DPP.

41. Article 9(1) of the ICCPR, inter alia, also proscribes preventative detention. The purposes of section 253 should not be construed so as to be inconsistent with Article 9.

42. It is a long-established presumption that a statute is to be interpreted and applied, as far as its language admits, so as not to be inconsistent with the comity of nations and established rules of international law.[2] If the Parliament intends to effect inconsistency 'it must express its intention with irresistible clearness to induce a Court to believe that it entertained it.'[3]

43. Where there is ambiguity, the High Court has held, courts should favour a construction of a statute that accords with the obligations of Australia under an international treaty.[4] The High Court has said that a common sense approach suggests that Parliament intended to legislate in accordance with its international obligations.[5] In more recent cases, the High Court has indicated that a narrow conception of ambiguity is to be rejected.[6]

44. The Commission submits that wherever the language of the statute is susceptible of a construction that is consistent with the terms of the relevant international instrument and the obligations that it imposes on Australia, that construction must prevail. Although it is open to the Australian Parliament to legislate inconsistently with these norms, ordinary processes of statutory construction mean that a domestic statute is to be interpreted and applied as far as its language admits so as not to be inconsistent with established rules of international law. In other words, where the text of a statute is susceptible of a construction consistent with the terms of the international instrument and general international law, then the Court should strain to adopt that construction.

45. Such an approach is analogous with the presumption in favour of the validity of a statute. Where the language of a statute is not so intractable as to be incapable of being consistent with the presumption that Parliament did not intend to pass beyond Constitutional bounds, then the presumption in favour of validity must prevail.[7] This approach accords in turn with section 15A of the Acts Interpretation Act 1901 (Cth).[8]

46. The Commission submits that there is no indication, in the words of section 253(9) or its statutory context, that the Commonwealth Parliament intended to legislate inconsistently with its international obligations. For that reason, in addition to the matters outlined above, the Commission submits that Lehane J was, with respect, incorrect in concluding that the protection of the Australian community is an implied statutory purpose of section 253(9) and therefore a relevant consideration.

47. In summary therefore, the Commission submits that the subject matter, scope and purpose of section 253, read in conjunction with the broader subject matter, scope and purposes of the Act and of the deportation power in general, suggest that Australia's international obligations under the ICCPR in relation to detention which is not arbitrary and which respects different treatment for unconvicted detainees were relevant considerations for the Minister to take into account.

Development of the common law?

48. If the proposition in paragraph 47 above is viewed as a proposition which requires the development of the common law in Australia, then it is submitted that the Court ought to make that development.

49. For the reasons set out below at paragraphs 51- 53, the Commission submits it is in fact not a development so much as an application of the test in Peko-Wallsend and a necessary consequence of the Teoh principle. Nevertheless there now can be no doubt that the existence of human rights treaties to which Australia is a party is a legitimate and important influence on the development of the common law of Australia: Mabo v The State of Queensland (No 2) (1992) 175 CLR 1 at 42 per Brennan J (Mason CJ and McHugh J concurring at 15); Dietrich v R (1992) 177 CLR 292 at 306, 319-321, 348- ŝ Teoh at 288.

50. Such a development (if it be one) does not involve rejection or contravention of the well established principle that international obligations are not part of Australian domestic law and that rights conferred by such international instruments are not enforceable in Australian domestic law: Chow Hung Ching v The King (1948) 77 CLR 449 at 478 per Dixon J; Bradley v The Commonwealth of Australia (1973) 128 CLR 557 at 592 per Barwick CJ and Gibbs J; Simsek v Macphee (1982) 148 CLR 636 at ʁ Teoh at 288 per Mason CJ and Deane J and Newcrest Mining (WA) Limited v The Commonwealth of Australia (1997) 190 CLR 513 at 657 per Kirby J.

51. The conclusion that a decision maker in the exercise of specific statutory discretion may be bound to take into account and consider whether a person's initial and then continuing detention pending deportation breaches relevant articles of the ICCPR does not give that individual any enforceable "right" which she or he does not already have under Australian domestic law. The enforceable right concerned is a right to have the discretions under s 253 exercised according to law. That is a well entrenched part of Australian administrative law and is not a right introduced by international instruments. The content of that right varies in each case according to the nature of the discretion to be exercised. What is a relevant consideration for one statutory discretion may or will not be a relevant consideration for another statutory discretion. The Commission submits that on the basis of the established test in Peko-Wallsend, those Articles of the ICCPR dealing with arbitrary and unlawful detention are properly characterised as relevant considerations for the purposes of the discretions in s 253(1) and (9).

52. All this proposition entails is a non-controversial approach that the exercise of a statutory discretion in relation to the detention of a person ought to be required to be influenced by consideration of whether that detention is consistent with or breaches fundamental international human rights norms. The weight to be attached to that consideration (including whether any breach of such norms ought to be determinative) remains a matter for the decision maker.

53. In this case, although without analysis, so much appears to have been accepted by the learned trial judge.[9] In practical terms, by reason of Teoh, decision makers must consider relevant international obligations as part of the process of according procedural fairness to those affected by their decisions (the Commission develops its submissions on procedural fairness in paragraphs 96 to 100 below).

Does Kioa preclude such a development?

54. To the extent that Kioa v West (1985) 159 CLR 630 has been seen as authority for the proposition that there is no general principle that a decision maker is bound (as opposed to entitled) to take into account Australia's international obligations when exercising a statutory power, the force of that general proposition has been circumvented by the practical consequences of Teoh.[10]

55. In fact, Kioa is not authority for any such proposition. The dicta of Brennan J in Kioa is just that. No other justice in Kioa made a similar observation.[11] Brennan J's point was that the HREOC Act did not impose any general obligation on repositories of statutory power to take conventions into account. That is not the Commission's contention in this case. The Commission's contention is that the scope, purpose and subject matter of s 253(1) and (9) suggest that Australia's obligations in respect of non-arbitrary, preventative or indefinite detention are the kinds of "relevant provisions" which Brennan J in Kioa (see 630.7) held had not been identified in that case.

56. Doctrinal consistency requires that applicable international obligations be regarded in a manner similar to applicable non-statutory policies.[12] As is the case with a ratified international instrument, such policies can be the sources of legitimate expectations.[13] It is also clear that if such a policy is applicable to the particular decision making situation, it is a relevant consideration that the decision maker is bound to take into account.[14] As Allars notes:

Coherence of principle suggests that applicable articles of an international convention, like a policy, are relevant considerations the decision maker is bound to take into account. In neither case is the decision maker compelled to decide in accordance with the policy. There remains a discretion to depart from the policy or the articles of the convention on account of the merits of the case, or to give the policy or the articles little weight.[15]

WHAT CONSIDERATIONS WAS THE MINISTER BOUND TO TAKE INTO ACCOUNT?

57. The Minister was bound to consider whether Mr Luu's detention as at 12 March 2001 breached any or all of the articles of the ICCPR to which reference has been made. If the Minister found that Mr Luu's detention did breach any of those articles then the weight to be given to this consideration in the exercise of statutory discretion was a matter for the Minister, subject only to constraints of lawfulness and in particular reasonableness. For example, if the Minister were to have found that Mr Luu's detention breached Article 7 of the ICCPR in that he was being subjected to torture, it is but a logical step to conclude that no reasonable Minister could exercise his discretion under either s 206(1) or s 253(9) to do anything other than change Mr Luu's conditions of detention (see s 253(8)) or release him under s 253(9).

WHETHER MR LUU'S DETENTION DID BREACH ANY OF THE RELEVANT PROVISIONS OF THE ICCPR

58. The Commission submits that Mr Luu's detention on 12 March 2001 did breach Articles 9(1) and 10(2)(a) of the ICCPR. That is so even if the inquiry is confined to the findings of fact made by the Minister: see paragraph 30(a) of the Respondent's Contentions of Fact and Law filed before Marshall J and dated 15 June 2001. The findings of fact relevant to this determination are set out in paragraphs 66-70 below.

Mr Luu's detention was indefinite/indeterminate

59. Indeterminate detention means the same as "indefinite" detention. "Indefinite" relevantly means "vague", "undefined", "of undetermined extent, amount or number": OED on Historical Principles 3rd Ed. In Perez v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 287 at 290, Madgwick J described indeterminate detention as " detention for a long period or for an unknown period which is not acceptably short".

60. Indeterminate or indefinite detention is one kind of arbitrary detention under Article 9 of the ICCPR. Article 9(1) creates a right to liberty and then provides for certain limitations on that right. Any such limitations must satisfy the separate requirements of "lawfulness" and absence of "arbitrariness". The United Nations Human Rights Committee ("UNHRC") has clearly indicated that those requirements should not be conflated. Thus, in Van Alphen v The Netherlands[16], it was said:

The drafting history of article 9, paragraph 1, confirms that 'arbitrariness' is not to be equated with 'against the law', but must be interpreted more broadly to include elements of inappropriateness, injustice and lack of predictability.

Similarly, in A v Australia[17], the UNHRC stated:

[T]he Committee recalls that the notion of 'arbitrariness' must not be equated with 'against the law', but interpreted more broadly to include such elements as inappropriateness and injustice. Furthermore, remand in custody could be considered arbitrary if it is not necessary in all the circumstances of the case, for example to prevent flight or interference with evidence: the element of proportionality becomes relevant in this context.

61. The UNHRC has specifically considered the detention of persons being expelled or deported from a country in relation to Article 9. For example, in its concluding comments on Switzerland, the UNHRC said:

The Committee notes with concern that [Swiss law] permits the administrative detention of foreign nationals without a temporary or permanent residence permit, including asylum seekers and minors over the age of 15, for three months while the decision on the right of temporary residence is being prepared, and for a further six months, and even one year with the agreement of the judicial authority pending expulsion. The Committee notes that these time limits are considerably in excess of what is necessary, particularly in the case of detention pending expulsion…

62. The UNHRC has found breaches of Article 9 in circumstances where people have not been released after their prison sentences have been fully served.[18]

63. Further, the UNHRC has indicated, in its concluding comments on New Zealand, that:

(t)he imposition of punishment in respect of possible future offences is inconsistent with articles 9 and 14 of the [ICCPR].[19]

64. To similar effect, in its concluding comments on Peru, the UNHRC stated:

The Committee takes note with concern that provisions in article 2, para. 24 (f) of the [Peruvian] Constitution, which permits preventive detention for up to 15 days in cases of terrorism, espionage and illicit drug trafficking, as well as Decree Law 25,475, which authorizes extension of preventive detention in certain cases for up to 15 days, raise serious issues with regard to article 9 of the Covenant.[20]

65. The length of time that the applicant has been incarcerated is also relevant in the context of Article 9 of the ICCPR. While length of detention is not in itself determinative on the question of arbitrariness pursuant to Article 9[21], the UNHRC has indicated that "proportionality" is an element which must be considered in relation to that issue.[22] In other words, one must consider whether the detention (having regard to matters including its length) is proportional to the purpose or purposes sought to be achieved by the States Party. As noted above, the UNHRC has expressed grave reservations regarding the proportionality of the provisions of Swiss legislation that permitted the administrative detention of persons for up to six months (or, with the consent of a judicial authority, up to a year) pending expulsion.[23]

66. The only aspect of the length of detention of Mr Luu found as a fact by the Minister was that the deportation order was issued on 9 May 1997, and by implication and reference to the briefing note that Mr Luu had been in detention pending deportation since that date. The only other material fact found by the Minister was the "progress made towards the establishment of an MOU": page 3 of the Minister's Reasons, AB 46. At best, even in conjunction with the material contained in the briefing note at paragraph 18 (AB 53), the only event which might be said to be reasonably foreseeable was the conclusion of the Memorandum of Understanding ("MOU"). That in itself was never said to, and could not be said to, actually implement Mr Luu's deportation. His Honour Justice Marshall fell into error by assuming that that was so: paragraph 72 of his Honour's reasons, AB 177. The length of Mr Luu's detention remained unquantifiable.

67. The Commission refers to the most recent affidavit of Mr Gabriel Kuek, filed 14 September 2001. If the Court needs any further persuasion that the conclusion of the MOU could not and did not as a matter of fact bring Mr Luu's deportation any closer and make his deportation any less indefinite, it is contained in that material.

68. On the evidence before the Court, at the time of his decision of 12 March 2001:

• The respondent was or should have been aware that, even if the MOU were signed, it would not be in any way binding upon either the government of Australia or the government of Vietnam. A memorandum of understanding is, of its nature, not binding upon its signatories.
• The respondent was or should have been aware that the deportation of the applicant to Vietnam would, even if the MOU were signed, remain a matter entirely within the discretion of the Vietnamese government, being a matter subject to the exercise of its sovereign power to determine who would enter its borders. Indeed, it is open to the Court to infer, from paragraphs 8 and 10-12 of the affidavit of Mr Kuek affirmed 14 September 2001, that the draft and final terms of the MOU provided for considerable discretion on the part of the Vietnamese Government and that Vietnam has already relied on that discretion to be selective as to who it will receive and to impose a cap upon the total number of people to be deported.
• The respondent had no way of knowing when, if at all, the Government of Vietnam would exercise its discretion to include the appellant in the intake of people to be deported under the MOU. Indeed, on the basis of paragraphs 10-12 of Mr Kuek's affidavit affirmed 14 September 2001, that appears to remain the case.
• Even assuming that the Vietnamese government would exercise its discretion to allow the appellant to be deported to Vietnam, it was known to the respondent that it would be necessary to obtain travel documentation from the Vietnamese Government for the appellant (see AB 32 and 53 (paragraph 18)).
• It was known to the respondent that the issue of any travel document to the appellant would be contingent upon satisfying the Vietnamese Government of matters such as the appellant's identity (see AB 32 and 53 (paragraph 18)).
• The establishment of the appellant's identity was a matter known or which should have been known to the respondent to involve referring details to the relevant Ministries in Vietnam who would, in turn, refer the matter to the relevant Municipal authority (AB 32).

69. Had he turned his mind to the matter as at the time of his decision of 12 March 2001 (and there is no evidence to suggest he did), the respondent would have been unable to quantify with any certainty the time required for the completion of that process, other than to say that it would be "time consuming", by reason of limited communication structures in rural areas of Vietnam (AB 32).

70. There is nothing to suggest that prior to, at the time of or subsequent to the respondent's decision of 12 March 2001, the respondent, his department or the Commonwealth have had any success in obtaining travel documents for the applicant (see AB 20, 30, 32, 53), have made any progress in that regard or are able to provide any estimate of when (if at all) such documentation might be able to be obtained for the appellant.

71. The Court should, on the basis of the above matters, infer that the length of the appellant's detention was, as at 12 March 2001, entirely unquantifiable. To the extent that it is relevant, the Court should further infer that that remains the case today.

72. By 12 March 2001, the applicant had been incarcerated for approximately four years since becoming eligible for release (ie a period longer than the Victorian County Court determined was an appropriate sentence for the applicant's crime). The applicant's ongoing detention was disproportionate to the respondent's stated purposes in keeping him in custody pending deportation.

73. It is important to remember that the determination whether detention is indefinite and therefore arbitrary, alternatively inappropriate or unjust and therefore arbitrary is not a determination which necessarily affects the power to deport an individual. That is why the discretions in sub-sections 253(1), 253(8), and 253(9) exist. To this extent, the observations of the Full Court in Vo v Minister for Immigration and Multicultural Affairs (2000) 98 FCR 371 at [12] go to a different and presently irrelevant point.

74. Although it is conceivable that a determination that a person's detention is in breach of Article 7 and 9 of the ICCPR because it is arbitrary might in some circumstances affect the lawfulness of the deportation, that is a more difficult argument to make in the face of the existence of statutory discretions such as those contained in s 253(8) and (9). In this case the Commission confines itself to a submission that breaches of Article 9 of the ICCPR ought to have formed part of the considerations the Minister was bound to take into account in exercising his discretion under s 253. Mr Luu's detention was preventative detention

75. As noted above, the UNHRC has also stated that detention will be arbitrary in circumstances where the purpose of that detention is to prevent future offences or impose punishment in respect of such future offences.[24]

76. The Commission has submitted above that it cannot be a purpose of s 253 to keep a person in detention to "protect the community"; although that might be a legitimate purpose of the power to deport itself. If this was the purpose of the detention, then it is arbitrary and contrary to Article 9.

77. The respondent has indicated, in his Statement of Reasons, that the risk of the applicant committing future offences and the risk the applicant represented to the Australian community (particularly the applicant's victims) were matters he took into account in refusing to exercise his discretion to release the applicant. It is submitted that this discloses that the ongoing detention of the applicant was in substance preventative.

Mr Luu's detention is in breach of Article 10(2)(a) of the ICCPR

78. Nowak has argued that the protective provisions of Article 10(2)(a) apply to all persons in custody.[25]

79. Article 10(2)(a) has two limbs: one relating to segregation of convicted and unconvicted prisoners, and one relating to separate treatment for unconvicted prisoners. At the time of ratification of the ICCPR in 1980, Australia entered the following reservation in respect of Article 10[26] :

Australia accepts the principle stated in paragraph 1 of article 10 and the general principles of the other paragraphs of that article, but makes the reservation that these and other provisions of the Covenant are without prejudice to laws and lawful arrangements, of the type now in force in Australia, for the preservation of custodial discipline in penal establishments. In relation to paragraph 2(a) the principle of segregation is accepted as an objective to be achieved progressively. In relation to paragraphs 2(b) and 3 (second sentence) the obligation to segregate is accepted only to the extent that such segregation is considered by the responsible authorities to be beneficial to the juveniles or adults concerned.

On 6 November 1984, the Government of Australia notified the Secretary-General of the United Nations of its decision to withdraw the reservations and declarations made upon ratification with the exception of, inter alia, the reservations to paragraphs 2(a), 2(b) and 3 of article 10. As such the reservation to article 10 now reads:

Article 10 In relation to paragraph 2(a) the principle of segregation is accepted as an objective to be achieved progressively. In relation to paragraphs 2(b) and 3 (second sentence) the obligation to segregate is accepted only to the extent that such segregation is considered by the responsible authorities to be beneficial to the juveniles or adults concerned.[27]

80. The principle of segregation is also provided for in the Minimum Rules, which state, in paragraph 8:

The different categories of prisoners shall be kept in separate institutions or parts of institutions taking account of their sex, age, criminal record, the legal reason for their detention and the necessities of their treatment. Thus, a. Men and women shall so far as possible be detained in separate institutions; in an institution which receives both men and women the whole of the premises allocated to women shall be entirely separate; b. Untried prisoners shall be kept separate from convicted prisoners; c. Persons imprisoned for debt and other civil prisoners shall be kept separate from persons imprisoned by reason of a criminal offence; d. Young prisoners shall be kept separate from adults[28]

Sub-paragraphs (b) and (d) closely resemble the provisions of article 10(2)(a) and (b) of the ICCPR.[29] However, the Minimum Rules are, on their face, broader than the ICCPR in relation to the segregation of prisoners, in that they:

• set out the general principle of segregation as a general inclusive rule (of which the sub-paragraphs appear to be examples); and
• include sub-paragraphs 8(a) and 8(c), which find no equivalent in the ICCPR.

81. The Minimum Rules were developed by the United Nations as a non-binding code. However, the UNHRC appears to have elevated those standards to norms of international treaty law, by incorporating them into its interpretation and consideration of articles 7 and 10(1) of the ICCPR. By way of example, in the General Comment relating to article 10, the UNHRC invited States Parties to submit with their reports details of the extent to which they were complying with the Minimum Rules.[30] This clearly implies that the Minimum Rules are relevant in considering States Parties' compliance with article 10. The UNHRC has adopted a similar position in a number of Concluding Comments on States Parties. By way of example, in its Concluding Comments on the United States of America, the UNHRC stated:

Conditions of detention in prisons, in particular in maximum security prisons, should be scrutinized with a view to guaranteeing that persons deprived of their liberty be treated with humanity and with respect for the inherent dignity of the human person, and implementing the United Nations Standard Minimum Rules for the Treatment of Prisoners and the Code of Conduct for Law Enforcement Officials therein.[31]

82. In Mukong v Cameroon[32], the UNHRC referred to the Minimum Rules in finding a breach of Article 7 of the ICCPR.

83. In Potter v New Zealand[33], the UNHRC noted that the Minimum Rules constituted valuable guidelines for the interpretation of the ICCPR.

84. In the context of paragraph 8 of the Minimum Rules, this implies that Article 10(2)(a) of the ICCPR should be read in a beneficial manner so as to impose a general inclusive rule against non-segregated detention, which applies, in particular, to the circumstances referred to in sub-paragraphs 8(a)-(d) of the Minimum Rules. If Article 10(2)(a) requires segregation of accused and convicted prisoners, then the requirement relating to civil prisoners (such as Mr Luu) in sub-paragraph 8(c) of the Minimum Rules must also be included in the spirit if not the letter of Article 10(2)(a).

85. The ICCPR came into force in Australia in November 1980. The reservation in its altered form has been in place for 17 years.

86. The effect of a reservation such as that made by Australia is provided for in Article 22 of the Vienna Convention, which provides that a reservation:

modifies for the reserving State in its relations with that other party the provisions of the treaty to which the reservation relates to the extent of the reservation (emphasis added).

87. The reservation to Article 10(2)(a) is limited in its terms to the principle of segregation. It does not affect the second limb of Article 10(2)(a), being the obligation to ensure that people in the position of the appellant are subject to separate treatment appropriate to their status as unconvicted persons. As is the case in domestic law, reservations to the ICCPR (being derogations from fundamental human rights) are construed narrowly: Maleki v Italy UNHRC 699/96.

88. The affidavits of Gabriel Kuek and Hieu Tan Nguyen, both affirmed 18 June 2001 (see AB 143-146), establish that:

• people detained in Port Phillip Prison are required to wear a green overall garment, whereas people detained in Maribyrnong Detention Centre may wear ordinary clothes;
• people detained in Maribyrnong Detention Centre may have food brought to them by visitors, whereas people detained in Port Phillip Prison may not;
• people detained in Maribyrnong Detention Centre have ready access to telephone facilities for the purposes of incoming calls, whereas people detained in Port Phillip Prison do not;
• people detained in Port Phillip Prison are subject to very intensive constraints on their freedom of movement (including being locked in their cells for 10 hours every night);
• people detained in Port Phillip Prison have only limited rights to receive visitors.

89. The Commission submits that, on the basis of that evidence, the Court should conclude that the appellant's ongoing detention involved a breach of the second limb of article 10(2)(a) of the ICCPR.

90. Australia's reservation to the first limb of Article 10(2)(a) is not an unconditional rejection of the principle contained therein. Australia accepted, by that reservation, that the principle of segregation is one to be achieved progressively. Given that Australia embarked on the progressive achievement of that principle some 20 years ago, some significant progress might be expected.

91. The notion that Australia has committed itself to ongoing efforts to the achievement of segregation is supported by the terms of Australia's Third Periodic Report to the UNHRC (submitted 28 August 1998), where it was stated:

While Australian jurisdictions accept the principles and objectives set out in article 10, Australia has maintained its reservation to this article in relation to paragraphs 2 and 3. …1!1!

For these reasons law or practice may not be fully consistent with the segregation provisions under the second paragraph of this article. However, since the submission of Australia's second periodic report further steps have been taken towards the segregation envisaged.[34] (emphasis added)

92. The decisions in the Cabal litigation cited by the respondent to Marshall J are distinguishable. Cabal concerned the interpretation of the word "prison" in the context of the Extradition Act (1998) Cth. Gray J (in a judgment approved by the Full Court[35] ) held that the term "prison" could not be read down in light of Article 10, so as to render it inapplicable to Port Phillip Prison or the Melbourne Assessment Prison.[36] His Honour arrived at that view because he quite correctly noted that the reservation to Article 10 rendered Australia's obligations under that article non-absolute. It was therefore his Honour's view that through s 53 of the Extradition Act 1988 (Cth), the Commonwealth parliament had complied with Australia's international obligations by providing for a regime whereby persons to be extradited were, to the extent possible under state prison systems, treated in the same manner as remand prisoners.

93. However, it does not follow nor did his Honour suggest, that Australia has no relevant obligations under the first limb of Article 10(2)(a). The obligation, as modified by the reservation, is one of "progressive achievement". Such an obligation might be considered to be analogous to a best endeavours clause in a commercial contract. The Commonwealth will plainly not live up to an obligation of that nature if its Ministers and other decision makers do not even consider whether, in the circumstances of a particular case, a person's custody conditions breach this article and whether it is possible to achieve the principle of segregation.

94. That is particularly relevant in the context of section 253 because the Minister may exercise the power conferred by section 253(8) to direct a different form of detention to that set out in section 5 of the Migration Act. As Gray J's judgment in Cabal (2000) 177 ALR 306 at [22] makes plain the conditions in which Mr Luu is held in Victoria (ie at Port Phillip Prison) are the result of a deliberate policy of the Victorian Government not to pursue segregation of remand and convicted prisoners. The Minister should have had regard to that fact and should have considered the possibility of alternative forms of detention. It is clear that he did not. By reason of that approach, the Minister foreclosed even the possibility of the Commonwealth achieving segregation in Mr Luu's case, rendering the Commonwealth incapable of advancing towards that goal in that instance.

95. Of course in Mr Luu's case the situation is worse than that of the applicants in the Cabal litigation because he cannot in any sense now be considered an "accused" person. Although a person subject to extradition proceedings might be considered an accused person (see Wiest v DPP 23 FCR 472) the same cannot be said of a deportee. Mr Luu is simply in administrative detention and the only statutory authorisation for the place of his detention being Port Phillip Prison is the definition of immigration detention in s 5 of the Act. One might wonder whether it was even contemplated by the framers of Article 10(2)(a) that a signatory to the ICCPR would hold persons no longer even accused of a crime in a maximum security prison system designed to administer punishment.

APPLICATION OF TEOH

96. If the Commission's submissions in relation to breaches of any or all of the Articles of the ICCPR are correct, then if the Minister proposed to exercise his discretion under s 253(9) adversely to Mr Luu and therefore inconsistent with Australia's international obligations, the principles in Teoh required the Minister to afford Mr Luu the opportunity to be heard as to why the Minister should not exercise his discretion in that way.

97. It is plain on the facts that no such opportunity was given to Mr Luu.

98. This highlights how closely aligned the principles in Teoh are with the principle submitted in this case by the Commission to be applicable: namely that the obligations under the ICCPR are relevant considerations in the exercise of the statutory discretions under s 253. See the comments of Mason and Deane JJ in Teoh at page 292 where their Honours stated:

It may also entail, though this was not argued, a failure to apply relevant principle in that the principle enshrined in Article 3.1 may possibly have a counterpart in the common law as it applies to cases where the welfare of the child is a matter relevant to the determination to be made.

99. In other words, what underlies the decision in Teoh is that international obligations can be a relevant consideration in the exercise of particular statutory discretions and that is why a decision maker, being bound to take them into account, is bound by a corresponding obligation to afford an opportunity to be heard to the person affected by the proposal to act contrary to them.

100. Should it be submitted by the Minister to be relevant, the Commission contends that the argument that the joint Ministerial statements made after the decision in Teoh are to be regarded as "executive indications to the contrary" of a legitimate expectation should be, and have been rejected on many occasions by Justices of this Court: see Department of Immigration and Ethnic Affairs v Ram (1996) 69 FCR 431 per Hill J; Browne v Minister for Immigration and Multicultural Affairs (1998) 566 FCA per Wilcox J; Tien v Minister for Immigration and Multicultural Affairs (1998) 89 FCR 80 per Goldberg J.

CONSTRUCTION OF SECTION 206(1) AND 253(9)

101. The final substantive submission made by the Commission is that in order to give effect to the now well established proposition that domestic statutes should be construed consistently with the terms of international instruments and the obligations those instruments impose upon Australia, s 253(9) of the Act must be construed as imposing some upper limits on the length of detention when a decision maker is considering the question of release. The same argument applies to the initial discretion to detain in s 253(1), although the exercise of this discretion is not under review in this proceeding.

102. That submission, while not expressly put by the Commission before Marshall J, is based largely upon recent US Supreme Court and UK Court of Appeal authority, handed down since the hearing of this matter before his Honour.

103. The Commission first relies on the decision of the US Supreme Court in Zadvydas v Davis (2001) 121 S.Ct.঻ 2001 U.S. LEXIS 4912. A copy of the judgment is attached to these submissions (attachment B). The Court was determining whether the detention of an alien after the statutory 90 day removal period set out in United States Federal law could be unlawful in the context of a habeas corpus application based on the Fifth Amendment of the United States Constitution. A majority of the Court held, inter alia:

(a) There is an implicit limitation in the domestic statute which authorises detention beyond the 90 day removal period to a period "reasonably necessary to bring about" the alien's removal from the United States: p 3.

(b) Despite there being no express limit on the length of time beyond the 90 day removal period that an alien may be detained, the statute does not permit indefinite detention. The test is whether the goal of the detention - namely the removal of the alien - is "no longer practically attainable": p 6.

(c) The question the Court must ask is whether the detention in question exceeds a period reasonably necessary to secure removal, and the Court should measure reasonableness primarily in terms of the statute's basic purpose, namely assuring the alien's presence at the moment of removal. Thus if removal is not reasonably foreseeable, the Court should hold continued detention unreasonable and no longer authorised by statute: pp 9-10.

(d) The relevant standard is not whether "good faith efforts to effectuate...deportation continued", nor whether the alien can show that deportation will be "impossible". The Supreme Court held those phrases set the standard too high, because they required an alien seeking release to show the absence of any prospect of removal, no matter how unlikely or unforeseeable: at p 10.

104. The Commission relies also upon the decision of the Honourable Collins J in Saadi and Ors v Secretary of State for the Home Department, High Court of Justice, 7 September 2001. Copies of Saadi, at first instance and on appeal, are also attached to these submissions (attachment C).

105. This was a case in which four unsuccessful asylum seekers argued that their detention in a "fast track" asylum claim processing institution called the Oakington Reception Centre was unlawful. At first instance, the Court held that the detention was unlawful on the basis that it was not proportionate and therefore inconsistent with the right to liberty enshrined in Article 5 of the European Convention on Human Rights. That is, Collins J held the detention was not required to achieve the purpose of speedy resolution of their applications, being the only legitimate purpose for their detention.

106. In Saadi his Lordship referred to a decision of the Privy Council in Tan K Te Lam v Superintendent of Tair A Chau Detention Centre [1997] AC and also the decision of Woolf J in R v Governor of Durham Prison ex parte Hardil Singh [1984] 1 WLR 704. At page 111 of the decision in Tan Te Lam Lord Browne - Wilkinson giving judgment on behalf of the Privy Council said:

Section 13D(1) confers a power to detain a Vietnamese migrant "pending his removal from Hong Kong." Their Lordships have no doubt that in conferring such a power to interfere with individual liberty, the legislature intended that such a power cold be exercised reasonably and that accordingly it was implicitly so limited. The principles enunciated by Woolf J in the Hardal Singh case [1984] 1 WE.L.R. 704 are statements of the limitations on a statutory power of detention pending removal. In the absence of contrary indications in the statute which confers the power to detain "pending removal" their Lordships agree with the principles stated by Woolf J. First, the power can only be exercised during the period necessary, in all the circumstances of the particular case, to effect removal. Secondly, if it becomes clear that removal is not going to be possible within a reasonable time, further detention is not authorised. Thirdly, the person seeking to exercise the power of detention must take all reasonable steps within his power to ensure the removal within a reasonable time.

Although these restrictions are to be implied where a statute confers simply a power to detain "pending removal" without more, it is plainly possible for the legislature by express provision in the statute to exclude such implied restrictions. Subject to any constitutional challenge (which does not arise in this case) the legislature can vary or possibly exclude the Hardial Singh principles. But in their Lordships' view the courts should construe strictly any statutory provision purporting to allow the deprivation of individual liberty by administrative detention and should be slow to hold that statutory provisions authorise administrative detention for unreasonable period or in unreasonable circumstances [emphasis added].

107. The decision of Collins J was overturned by the Court of Appeal on 19 October 2001: [2001] EWCA Civ 1512. The Court of Appeal found that detention of asylum seekers for the "short period" of "about 7 days" was lawful both under the Immigration Act 1971 and under the European Convention on Human Rights especially Article 5(1)(f).

108. However in respect of the need to place reasonable limits on any period of administrative detention, the Court of Appeal endorsed the principles of construction upon which the Commission seeks to rely: see [13]; [14]; [27]; [48]-[54]; [64]; [65]; [66]. At [68]-[69] the Court of Appeal stated:

We started this judgment by remarking that it was artificial to consider English domestic law and the Human Rights Convention separately. The Human Rights Act has made the Convention part of the constitution of the United Kingdom, but the Convention sets out values which our laws have reflected over centuries. The need, so far as possible, to interpret and give effect to statutory provisions in a matter which is compatible with Convention rights is now a mandatory discipline, but it is not a novel approach.

The policies that have constrained, and still constrain, the exercise of the statutory power to detain aliens who arrive on our shores do not result from any conscious application of Article 5 of the Convention. They result from a recognition, that is part of our heritage, of the fundamental importance of liberty. The deprivation of liberty with which this appeal is concerned falls at the bottom end of the scale of interference with that right. It is right, nonetheless, that its legitimacy should have received strict scrutiny. Our conclusion is that it is lawful. This appeal is, accordingly, allowed. [emphasis added]

109. As Deane J observed in Re Bolton; ex parte Bean[37], this approach, and these principles, are no empty rhetoric. As early as 1949, the High Court of Australia made it clear that the power to keep a deportee in custody did not create a power to detain for an unlimited period: see Koon Wing Lau v Calwell (1949) 80 CLR 533 at 555-556.

110. It is submitted that there must be similar limits imposed on the power to detain under s 253 of the Act. Such limits would also be consistent with Article 9 of the ICCPR. The Commission submits that the governing considerations should be whether deportation in fact is going to be possible within a reasonable time. In this context the provisions of s 206(2) are not relevant. The delay referred to in s 206(2) goes to the validity of the order for deportation. That is not the point the Commission seeks to make. A person may be subject to a valid order for deportation and yet not be detained under s 253. The power to detain conferred by s 253(1) and by s 253(8), being discretionary, is a further reason that the provisions ought to be subject to concepts of reasonableness. See also the terms of s 253(8)(b) and (c).

111. With respect to the Full Court in Vo v Minister for Immigration and Multicultural Affairs, it is not correct to state ( [2000] FCA 803 at [12]) that the two criteria of the making of the deportation order and its execution are "matters of formal record which are readily ascertainable by all". The point is that in Mr Luu's case, the time for the execution of the deportation order is not ascertainable at all, let alone readily.

112. It is true that an approach based on reasonableness does involve some uncertainty, as the Full Court in Vo also pointed out (at [12]). However, "reasonableness" is a concept familiar to the law in many areas ("reasonable doubt", "reasonable care", an "unreasonable" administrative decision) and whilst susceptible of different applications, it is used as a standard by Courts every day in different jurisdictions.

113. In terms of the construction of s 253, and the continued exercise of the discretion to detain in the face of a refusal to release under s 253(9), it is submitted that the initial determination of whether the time a person had been detained in custody pending deportation had become unreasonable, or indefinite, would be one for the decision maker (here, the Minister) on the particular facts of the case. Whether his determination was lawful would be subject to ordinary processes of judicial review.

114. For example, it could not be the case that a person could be held ostensibly "pending deportation" for 50 years. Nor that a person could be held "pending deportation" to a country who had repeatedly refused to take that person, or to provide travel papers for that person. The difficulty is where to draw the line. In Perez, Madgwick J suggested an approach of whether

there is a reasonable prospect of the deportation order being effectuated within a reasonable time…[which] would, no doubt, need to be considered in all of the circumstances, which are apt to be very variable.

115. His Honour there was in fact speaking of the validity of the deportation order itself: see (1999) 94 FCR 287 at 292. However, the Commission submits there is a different approach, which the Court can properly consider in the context of the current proceeding - namely, whether the Minister erred in law by not construing s 253 as inherently containing some limits on the time over which a person could be held in custody purportedly "pending deportation": (and especially custody in a prison set up to administer punishment, which Port Phillip plainly is).

116. Unless a decision maker exercising the power under s 253(9) is required to construe the detention power in s 253(1) as containing some implicit limitations as to reasonableness, and certainty of period, then when she or he is exercising the power it will be without turning her or his mind to whether the purpose of the power is likely to be or capable of being achieved - that is, to effect the deportation of a particular individual from Australia. Without an implicit limitation of reasonableness to which a decision maker is required to advert, there is a risk that the power will be exercised for an improper purpose or not bona fide (see the comments of the Full Court in Vo at [14]), precisely because the period of detention is otherwise unlimited. A person is not held "pending deportation" if it is uncertain whether they can or will ever be deported.

117. Mr Luu has been in immigration detention under s 253 since 18 June 1997. That is more than four years, which is longer than the head sentence (three years, six months) imposed for the crime about which the Minister has seen fit to issue a deportation order. Despite evidence that a MOU was likely to be concluded at the time he made his decision, the Minister had no yardstick at all by which to measure the length of Mr Luu's detention after 12 March 2001.

118. In this case the Minister gave no consideration to whether Mr Luu's detention (including the conditions of his detention) had become disproportionate, unreasonable or indefinite. He did not construe his discretion under s 253(9) as requiring any such consideration. Nor did he appear to construe any such limit in s 253 generally. The Commission submits the Minister erred in law in not construing s 253(9) in this way. The Minister did not address this consideration at all. At most all he addressed was whether it was possible that the MOU (as opposed to Mr Luu's detention) would be concluded within a reasonable time. As the evidence adduced on behalf of the appellant demonstrates, the two are not the same.

Supplement to the Applicant's submissions.

119. In respect of the Applicant's submissions dated 2 November 2001 at paragraph 9 -13, the Commission directs the Court's attention to the following passage of the judgment of Mason J in Peko-Wallsend at page 45:

It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading. In one sense the conclusion may be seen as an application of the general principle that an administrative decision maker is required to make his decision on the basis of material available to him at the time the decision is made. But that principle is itself a reflection of the fact that there may be found in the subject matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision maker.

120. Although it is not strictly part of the aspect of the case upon which the Commission addresses the Court, the Commission notes that this observation applies to the argument before Marshall J concerning the Minister's failure to obtain and assess any current material about Mr Luu's risk of flight or behaviour.

Dated: 5 November 2001

D. S. Mortimer Counsel for the Human Rights and Equal Opportunity Commission

Craig Lenehan For and on behalf of the Human Rights and Equal Opportunity Commission

1.Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 - referred to in these submissions as "Teoh". 2. Leroux v Brown (1852) 12 C.B. ̡ The Zollverein (1856) Swab. ` The Annapolis (1861) Lush. ħ Jumbunna Coal Mine NL v Victorian Coal Miners' Association (1908) 6 CLR ĵ Zachariassen v Commonwealth (1917) 24 CLR 166. See also Maxwell on the Interpretation of Statutes 7th Ed, 1929, at 127.

3.Murray v Charming Betsy (1804) 2 Cranch 64, v also United States v Fisher (1805) 2 Cranch 390 and the authorities cited in footnote 2.

4. Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 38 per Brennan, Deane and Dawson JJ.

5. Dietrich v The Queen (1992) 177 CLR 292 at 306-07 per Mason CJ and McHugh J; also Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298 at 304 per Gummow J.

6.Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287 per Mason CJ and Deane J. Generally A Simpson & G Williams, 'International Law and Constitutional Interpretation' (2000) 11 Public Law Review 205 at Ð J Spigelman, 'Access to Justice and Human Rights Treaties' (2000) 22 Sydney Law Review 141 at 149.

7. Ut res magis valeat quam pereat: Davies and Jones v Western Australia (1904) 2 CLR 29 at 43 per Griffith CJ; Federal Commissioner of Taxation v Munro; British Imperial Oil Co Ltd v Federal Commissioner of Taxation (1926) 38 CLR 153 at 180 per Isaacs J. Also Maxwell on the Interpretation of Statutes 7th Ed, 1929, at 127.

8. Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 14 per Mason CJ.

9. See paragraphs 86 and 88 of his Honour's reasons at AB 181-182. 10. cf the respondent's submissions to Marshall J in this case at para 32. 11. Neither Mason J (as he then was) nor Deane J expressly addressed the issue. Gibbs CJ (at 570-571) and Wilson J (at 603-604) seemed to view the submission raised by the appellant as being whether the decision maker was obliged to ensure that their decision conformed with principles of international law (rather than whether the decision maker was bound to take such matters into consideration). Their Honours, in separate judgments, held that a decision maker was not so obliged. They each further said that, in any event, the decision maker had conformed with the relevant principles. Gibbs CJ was in dissent in Kioa. 12. Allars, M. "International Law and Administrative Discretion" in B Opeskin and D Rothwell (eds) International Law and Australian Federalism (1997) Melbourne University Press at page 232. 13. See eg Haocher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648. 14. Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR Ɂ Nicak v Minister for Immigration, Local Government and Ethnic Affairs (1988) 92 ALR 167. 15. Allars at page 265 16. UNHRC 305/88 17. UNHRC 560/93 18. See eg Weisman and Perdomo v Uruguay UNHRC 8/1977. 19. "Concluding Comments on New Zealand" (1995) UN doc CCPR/C/79/Add. 47 para 14. 20. "Concluding Comments on Peru" (1996) UN doc CCPR/C/79/Add. 67 para 18. 21. A v Australia, op cit. 22. See the passage from A v Australia extracted at paragraph 60 above. 23. It is also instructive, in relation to the issue of proportionality, to consider jurisprudence regarding Article 5 of the European Convention on Human Rights (which provides "Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law"). Unlike Article 9 of the ICCPR, Article 5 of the European Convention on Human Rights expressly permits detention in certain specified circumstances (including of a person against whom action is being taken with a view to deportation or extradition: Article 5(1)(f)). Nevertheless, the application of that exception requires a consideration of proportionality. Most recently in Secretary of State for the Home Department v Saadi and Ors [2001] EWCA Civ 1512 (a copy of which decision is annexed to these submissions and discussed in further detail below), the UK Court of Appeal characterised the test of whether detention is proportionate as requiring the Court to consider "whether the process of considering an asylum application, or arranging a deportation, has gone on too long to justify the detention of the person concerned having regard to the conditions in which the person is detained and any special circumstances affecting him or her": see paragraph [66]. In that case, the detention in question was only 7 days and was not found to be disproportionate. 24. See paragraphs 63-64 25. Manfred Nowak "UN Covenant on Civil and Political Rights CCPR Commentary" (1993) NP Engel at page 190. 26. 'Ibid p.748, 749. 27. Ibid, p. 773. 28. Standard Minimum Rules for the Treatment of Prisoners, adopted Aug. 30, 1955 by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, U.N. Doc. A/CONF/611, annex I, E.S.C. res. 663C, 24 U.N. ESCOR Supp. (No. 1) at 11, UN doc. E/3048 (1957), amended E.S.C. res. 2076, 62 U.N. ESCOR Supp. (No. 1) at 35, UN doc. E/5988 (1977). 29. Article 10(2)(b) of the ICCPR provides: "Accused juvenile persons shall be separated from adults and brought as speedily as possible for adjudication" 30. General Comment 21 (UN doc HRI\GEN\1\Rev.1 at 33 (1994)). 31. UNHRC UN doc CCPR/C/79/Add/50 (1995) 32. UNHRC 458/91, see paragraphs 9.3 and 9.4. 33. UNHRC 632/1995, see paragraph 6.3 34. Third periodic reports of States Parties due in 1991 : Australia. 22/07/99. CCPR/C/AUS/98/3 35. Cabal v Secretary Department of Justice (Victoria) [2000] FCA 1227 36. Cabal v Secretary Department of Justice (Victoria) [2000] FCA 949 37. (1987) 162 CLR 514 at 529.

Last updated 7 January 2002.