Commission submissions: Al Masri

IN THE FEDERAL COURT )OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY

No. S202 of 2002

On appeal from a single Judge of the Federal Court of Australia

BETWEEN:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Appellant

and

AKRAM OUDA MOHAMMAD AL MASRI Respondent

OUTLINE OF ARGUMENT OF THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION, intervening

Leave to intervene

1. The Human Rights and Equal Opportunity Commission (the "Commission") files these written submissions pursuant to the orders entered 24 September 2002. The Commission makes no submissions on the respondent's motion of 18 September 2002. On the assumption that the appeal is competent, the Commission's submissions address the proper construction of s.196 of the Migration Act 1958 (Cth) (the "Act").

Summary of the Commission's arguments

2 The apparently unqualified duty to keep in detention imposed by s196 must be read down by reference to:

• The constitutional limitation flowing from s51(xix) and Chapter III, that the detention that may validly be required and authorized is limited to what is reasonably necessary, or capable of being seen as necessary, for the purposes, relevantly, of removal from Australia: Chu Kheng Lim & Ors v Minister for Local Government and Ethnic Affairs (1992) 176 CLR 1 ("Lim") at 10, 11-12, 30-31, 32, A
• The statutory duty in section 198 to remove as soon as reasonably practicable: if an unlawful non-citizen is not removed as soon as reasonably practicable, section 196 does not authorize the continued detention of the person, despite its apparently unqualified terms: Lim at 11-12, 34. a limitation on detention of the kind found by the trial judge in paragraph [38] is similarly to be implied into section Ä
• General principles of construction in Australia and other common law countries concerning deprivation of personal liberty, and decisions in the specific application of those principles to immigration detention powers, whether expressed in mandatory or discretionary terms;
• Australia's treaty obligations.

3. The construction contended for by the Minister, which would support indefinite detention provided that a purpose subsists of removing the person in the event that it should one day become practicable, is inconsistent with the limitations referred to above. "Purpose" in this context cannot be a merely subjective purpose of the Minister or an officer, a hope or a determination to remove as soon as it becomes practicable, even if there is only the remotest prospect of that ever occurring. The limitations implied by the trial judge give objective content to the "purpose", an objectively ascertainable standard against which indefinite detention, which would otherwise infringe both the constitutional limitations on non-judicial punishment, and the limitations properly to be implied into the statute, may be tested.

Constitutional limits on the scope of the power to detain

4. Executive or administrative powers conferred by the Act to detain a non-citizen will be constitutionally valid so long as they are limited to what is reasonably capable of being seen as necessary to effect the exclusion or deportation, or to consider the admission, of the person: Lim at 10, 11-12, 30-31, 32, 65.

5. The High Court in Lim upheld the validity of statutory powers of detention which imposed an upper limit on that detention of approximately 10 months and which (via the equivalent of section 198(1)) provided for a detainee to bring her or his detention to an end by request. [1] Each of those features was relied upon by the majority in reaching the conclusion that such detention was a valid exercise of legislative power under s 51(xix) of the Constitution. [2]

6. It is the vulnerability and exposure to exclusion or 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. [3]

7. However, restraint and detention are only associated with the power to deport because they may be "necessary to make expulsion or deportation effective". [4] 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.

As such, a valid power of detention in this context must take its character from the Executive powers to exclude, admit and deport, of which it is an incident. [5] A statute conferring power to detain that exceeds what is reasonably necessary for the exercise of those "core powers", will be invalid or should be read down by reason of Chapter III. [6]

Relevant features of the Act

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

9. The regulation of the expulsion of non-citizens from Australia occurs through the Act by either removal (in the case of unlawful non-citizens: see sections 198 and 199) or deportation (in the case of lawful non-citizens: 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 expulsion or deportation. However in respect of non-citizens subject to deportation, the Minister and the Secretary retain a discretionary power to release. [7] As Merkel J noted at first instance, [8] that feature distinguishes the statutory scheme under consideration here from that which was the subject of the Full Court's decision in Vo v Minister for Immigration and Multicultural Affairs. [9] As was observed by the majority in Lim, the presence or absence of such safeguards will be significant in determining whether the power of detention in question is capable of being seen as necessary for the purposes of admission, deportation or removal. [10] As such, the absence of a comparable safeguard within the legislative scheme under consideration in this matter may require the Court to construe the legislation so as to impose comparatively stricter limits upon the power to detain in order to ensure that the Act remains within constitutional limits: cf Minister's submissions, paragraph 31.

10. Section 196 appears in Part II, Division 7 of the Act, which is headed "Detention of unlawful non-citizens".

11. Section 189, which also appears in that division, confers upon "officers" [11] powers to arrest and take into immigration detention. The power of an officer to arrest and take into immigration detention is made subject to an "enlivening" condition of reasonable suspicion that a person is an unlawful non-citizen. If the suspicion of an officer is not justifiable upon objective examination of the relevant material or if the material before that officer only indicates that the person in question "may" be an unlawful non-citizen, then that condition precedent to the exercise of that power will not be satisfied and the detention will be unlawful from the outset. [12]

12. If section 189 stood alone (and was not read down) it would be invalid as being a power to indefinitely detain, having an insufficient nexus with the powers to admit, deport or exclude. The power to detain is, however, conditioned and further limited by, inter alia, section 196 and section 198.

13. The Commission made submissions upon one such additional limitation arising from section 196 in the appeal in VFAD v Minister for Multicultural Affairs ("VFAD"): [13] being that, in contrast to section 189(1), section 196(1) only provides for the continued detention of persons who are in fact unlawful non-citizens. That limitation is not relevant here as it is common ground that the respondent was an unlawful non-citizen. [14]

14. Section 196 also imposes temporal limitations upon the power to detain. The section is headed "Period of detention". [15] The power to keep in detention under section 196 has an end point, determined by reference to other provisions of the Act (being the provisions for removal under section 198 or section 199, the powers of deportation under section 200 and the provisions for the grant of a visa). As such, section 196 invites consideration of the provisions conferring those other powers to ascertain the limits of the power to continue to detain.

15. The provision which arises for consideration here is section 198(1). As noted above, the presence of the equivalent provision and the ten month limit upon the period of detention were central to the reasoning of the majority in Lim in upholding the validity of the administrative detention scheme there considered. The ten month limit no longer appears in the Act. The limitation upon section 196 detention to be implied from section 198(1) is crucial to the validity of the detention scheme.

16. The majority in Lim characterised the equivalent provision considered there as conferring:

a power upon a designated person to bring his or her detention in custody under Div. 4B to an end at any time…it is only if an alien who is a designated person elects to remain in the country as an applicant for an entry permit that detention under Div. 4B can continue…(emphasis added) [16]

Upon that "power" being exercised by a detainee, further detention was said to be authorised only for the:

limited period involved, in the circumstances of a particular case, in complying with the statutory requirement of removal 'as soon as practicable'. [17]

The Minister, in his submissions, has focused upon the duty of the Minister under section 198(1) to remove as soon as reasonably practicable. [18] However, the characterisation of section 198(1) as conferring a "power" upon a detainee, the exercise of which invokes an implied limitation upon the power to detain is, in the Commission's submission, more significant for present purposes.

17. The term "power" appears to have been used by their Honours in Lim in the sense of an ability or capacity to act so as to alter one's circumstances: one can, by its exercise, bring one's detention to an end. That characterisation invites the question (which was unnecessary for the Court to consider in Lim): how is that limitation to be construed where the detainee, by reason of circumstances, cannot by that means bring his or her detention to an end? Such circumstances arise if there is, in fact, no real likelihood or prospect of removal in the reasonably foreseeable future. The detainee does not "elect" to stay detained in those circumstances. The choice is rather foreclosed by reasons beyond their control. The protection of the power of election discussed by their Honours, which was clearly seen as central to the question of whether the detention could be characterized as "necessary for the purposes of deportation or to enable an entry application to be made and considered", [19] will be absent.

18. The work to be done by the implied limitation in confining the detention to the extent of the constitutional power is heightened by the removal of the 10 month upper limit on detention that existed at the time Lim was decided. In contrast to the case under consideration in Lim, there was on the facts before his Honour (which are the only relevant facts: cf Minister's submissions, paragraph 43) no power to end the detention by election, and no fixed time limit.

19. The Commission submits on that basis that the second implied limitation identified by Merkel J in paragraph 38 of his Honour's reasons [20] does indeed apply to the detention scheme under consideration here.

20. The determination of whether such an implied limitation has been reached in a particular case may, as the Minister observes, require consideration of negotiations between governments. [21] However, this appears to have proved no obstacle to Courts of high authority applying such limitations elsewhere. [22] Similarly, Australian Courts have not used the concept of justiciability to avoid determining sensitive matters of international interest, particularly where liberty is involved. [23] Indeed, the rule of law requires the Courts to grant whatever remedies are available and appropriate to ensure that those possessed of executive and administrative powers exercise them only in accordance with the laws that govern their exercise. [24] Moreover, the Minister's suggestion that a detainee could seek review of a failure to remove as soon as practicable [25] would require consideration of a similar body of material.

21. 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. Any such difficulties seem insignificant compared to the position the appellant seems prepared to contemplate, which would permit a person held ostensibly "until removal" (even where removal is, from the outset, unlikely to be able to be achieved), for say 50 years, provided bona fide efforts to effect removal continued. At some point, the line must be drawn.

Other relevant principles of statutory construction

22. As noted above, the implied condition upon power suggested by his Honour is also supported by rules or principles of construction derived from international law, the common law and the rule of law. As in VFAD, the Commission submits that it is significant that those principles (which are discussed below) speak with one voice despite their different origins.

International obligations

23. It is a long-established principle that a statute is to be interpreted and applied, so far as its language admits, in a manner which is consistent with established rules of international law and which accords with Australia's treaty obligations. [26] That approach is not limited in its application to ambiguous statutory provisions. [27] Rather, wherever the language of a statute is susceptible of a construction which is consistent with the terms of the relevant international instrument and the obligations which it imposes on Australia, that construction must prevail. [28]

24. Conversely, if the Parliament intends to legislate inconsistently with Australia's international obligations, it should express that intention clearly. Such a requirement does not infringe upon the principle of Parliamentary supremacy. Rather, it contributes to greater integrity in the legislative process by ensuring that Parliament squarely confronts situations where proposed legislation breaches binding international obligations, being obligations which the Executive has solemnly entered into on behalf of Australia.

25. In the present case, sections 196(1)(a) and 198 of the Act should be construed in a manner which is consistent with the following rights conferred by the ICCPR:

• the right not to be detained arbitrarily or deprived of liberty except on such grounds and in accordance with such procedures as are established by law (article 9(1) of the ICCPR); and
• the right of any person deprived of their liberty to take proceedings before a Court in order that the Court may decide without delay upon the lawfulness of their detention and order their release if the detention is not lawful (article 9(4) of the ICCPR).

26. Article 9 of the ICCPR relevantly provides:

1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law.

4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

27. Article 9(1) recognises 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 (the "UNHRC") [29] has clearly indicated that those requirements should not be conflated: [30]

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.

28. In A v Australia, [31] the UNHRC reiterated that principle:

[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.

29. The length of detention per se will not be determinative of whether there is a breach of article 9. [32] Length of detention is, however, relevant to the requirements of necessity and proportionality. This imposes upon the state a burden of "appropriate justification", which was discussed in A v Australia as follows:

… detention should not continue beyond the period for which the State can provide appropriate justification. For example, the fact of illegal entry may indicate a need for investigation and there may be other factors particular to the individuals, such as the likelihood of absconding and lack of cooperation, which may justify detention for a period. Without such factors detention may be considered arbitrary, even if entry was illegal.

30. 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….. [33]

31. The United Nations Working Group on Arbitrary Detention (the "Working Group") [34] also monitors compliance with article 9 and receives individual complaints regarding its breach. The Working Group has considered complaints made by criminal deportees, detained under the transitional provisions passed with the statute considered in Zadvydas v Davis [35] (discussed below). The persons detained were to be deported to Cuba. The Government of Cuba was not prepared to repatriate them and it therefore appeared that there was no likelihood of deportation in the reasonably foreseeable future. In those circumstances, the Working Group did not accept that the detention of those persons was necessary and found that they were arbitrarily detained. The fact that those persons were said to represent a threat to the American community was not considered sufficient to satisfy the requirement of necessity. [36]A fortiori in the current matter, where there was no evidence before Merkel J to suggest that the respondent represented any threat to the Australian community.

32. A second aspect of article 9 is the right to bring proceedings to have the lawfulness of one's detention determined without delay: see article 9(4). "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, where the Australian government sought to argue 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)). The UNHRC rejected that argument stating:

court review of the lawfulness of detention under article 9, paragraph 4, which must include the possibility of ordering release, is not limited to mere compliance of the detention with domestic law. While domestic legal systems may institute differing methods for ensuring court review of administrative detention, what is decisive for the purposes of article 9, paragraph 4, is that such review is, in its effects, real and not merely formal. By stipulating that the court must have the power to order release "if the detention is not lawful", article 9, paragraph 4, requires that the court be empowered to order release, if the detention is incompatible with the requirements in article 9, paragraph 1, or in other provisions of the Covenant.

33. The Minister's suggested construction of sections 196(1)(a) and 198 would only require good faith efforts to remove as soon as practicable. As the Minister concedes, this may involve ongoing detention for a lengthy period. [37] The Minister's only suggested recourse for a person thus detained is that they seek review of a failure to make a migration processing decision or a failure to remove as soon as practicable. [38] That construction would be inconsistent with article 9 of the ICCPR for a number of reasons:

• First, such a construction would permit detention which will not satisfy the requirements of necessity and proportionality. To put it simply, if there is no reasonable prospect of removal, the necessity for detention of that duration is not at all apparent, meaning that it is disproportional to the end being sought. Proportionality and necessity are not obscure international law principles. The requirement that detention be limited to what is necessary to achieve the purpose of exclusion, deportation or admission is at the heart of Lim. [39] Moreover, the Chief Justice of the High Court has recently indicated, in extra-curial remarks, that the principle of proportionality is becoming increasingly influential in Australian law. [40]
• The construction contended for by the appellant would preclude curial consideration of such matters and would therefore avoid the associated requirement that the State should not continue to detain a person beyond the period for which it can provide appropriate justification.
• Finally, that construction would seriously diminish the detainee's right to take court proceedings challenging the lawfulness of his or her detention. The indirect "challenges" envisaged by the Minister would not allow a Court to determine the core issue of the "lawfulness" of the detention in question and do not allow for the possibility of ordering release where detention is "unlawful" ("lawfulness" and "unlawfulness" are here used in the wider sense discussed in the passage from A v Australia extracted above). That involves a breach of paragraph 4 of article 9.

34. Accordingly, section 196(3) should not be given a construction which is inconsistent with article 9 of the ICCPR.

35. The requirement that the State should not continue to detain a person beyond the period for which it can provide appropriate justification also weighs in favour of a conclusion that the Minister bears the burden of establishing the facts which the Act makes a condition of the power to detain. That burden arises when a person adduces evidence putting in issue the legality of their detention. [41] There should be no requirement that that material be sufficient to make out a prima facie case. [42] For, as the Minister observes, it may be that in matters such as the present the material upon which lawfulness turns will be contained in sensitive records of intergovernmental negotiations. The Executive is best placed to demonstrate to the Court (making such confidentiality arrangements as are necessary) that that material justifies ongoing detention.

Fundamental rights

36. At paragraphs 33-40 of his submissions, the Minister criticizes Merkel J's use of comparative authorities. [43] Those criticisms appear to assume that the principles underlying those decisions are peculiar to their particular statutory contexts. Those principles are in fact manifestations of long-standing common law protections of broad application. Both in Australia and in other common law jurisdictions, those protections have been held to require clear words before legislation will be construed as removing a fundamental right or freedom. The relevant principles were discussed by Mason CJ, Brennan, Gaudron and McHugh JJ in Coco v The Queen: [44]

The insistence on express authorization of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights. [See Lim at 12 per Mason CJ.]

. . .

[C]urial insistence on a clear expression of an unmistakable and unambiguous intention to abrogate or curtail a fundamental freedom will enhance the parliamentary process by securing a greater measure of attention to the impact of legislative proposals on fundamental rights.

37. It is apparent that the comparative jurisprudence discussed by Merkel J represents a specific application of those principles or variants of them. By way of example, in Lam the Privy Council discussed the Hardial Singh principles in the following terms:

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 periods or in unreasonable circumstances. [45]

38. There has been some academic and extra-curial discussion of how a Court should identify those rights that are fundamental. [46] That is perhaps less of an issue in these proceedings as the right to personal liberty has been recognised as "the most elementary and important of fundamental law rights". [47] To similar effect, in Re Bolton; ex parte[48] Beane, Brennan J stated:

The law of this country is very jealous of any infringement of personal liberty (Cox v. Hakes (1890) 15 App Cas 506, at p 527) and a statute or statutory instrument which purports to impair a right to personal liberty is interpreted, if possible, so as to respect that right: R. v. Cannon Row Police Station (Inspector) (1922) 91 LJKB 98, at p 106. . . . The Constitution of the Australian Commonwealth does not contain broad declarations of individual rights and freedoms which deny legislative power to the Parliament, but the courts nevertheless endeavour so to construe the enactments of the Parliament as to maintain the fundamental freedoms which are part of our constitutional framework. It is presumed that that is the intention of Parliament, though the courts acknowledge that the balance between the public interest and individual freedom is struck not by the courts but by the representatives of the people in Parliament. Unless the Parliament makes unmistakably clear its intention to abrogate or suspend a fundamental freedom, the courts will not construe a statute as having that operation.

39. Nevertheless, to the extent that the scope of that right may require some more precise identification, regard may be had to established common law doctrines (which can be discerned from the decisions of both Australian and overseas Courts) and international norms, which:

[i]n a world of unidentified values…would seem to offer an identifiable landfall [49]

Use of the corpus of international law to identify fundamental rights is supported by the principle that international treaties ratified by Australia constitute a "legitimate influence" upon the development of the common law. [50] Indeed, the High Court has stated that international instruments like the ICCPR give expression to fundamental human rights which are taken for granted by Australian society, in the sense that those rights are valued and respected here as in other civilized countries. [51]

40. The fundamental rights that emerge from the comparative authorities cited by Merkel J may be distilled as being rights not to be detained:

for unreasonable periods or in unreasonable circumstances. [52]

In discerning what is reasonable for the purposes of the fundamental right so articulated, it is permissible and appropriate to have regard to the notions of necessity and proportionality in international law. The application of those principles to the construction of section 196(1) and 198 were discussed above.

41. The comparative authorities cited by Merkel J also disclose a general antipathy towards administrative detention, which might be characterised as a right not to be detained other than as punishment, as an incident of the judicial process, for a breach of the law of the land. [53] Again, international law manifests similar concerns regarding administrative detention, which may be used to confirm and clarify that fundamental right. [54]

42. What the Minister must demonstrate is an "unmistakable and unambiguous" intention to curtail those fundamental rights in the manner suggested. Such an intention might be found to exist if, for example, Parliament had expressly provided that the power to detain would not be affected by the fact that there was no reasonable prospect of removal. No such provision is to be found within the Act.

43. Section 196(3) does not disclose such an intention. [55] As was noted by Beaumont J in NAMU v Secretary, Department of Immigration, Indigenous and Multicultural Affairs, [56] that provision leaves untouched the ability of Courts to determine the lawfulness of any detention. Section 196(3) merely confirms that, until the limits of lawfulness are reached, a Court may not order release of a person detained under sections 189 and 196. Any wider construction raises validity issues.

44. Moreover, contrary to submissions of the Minister, Hardial Singh and Lam are not relevantly distinguishable for the following reasons:

• The fact that the legislation considered by Woolf J in Hardial Singh provided for discretionary powers of detention (or, in the case of a person already detained, a duty to detain subject to a dispensation) [57] appears to have played no part in his Honour's approach to the construction of the power to detain. Such matters may have been relevant had his Honour adopted a construction whereby the power to detain imposed upon the "Executive a duty to exercise a measured discretion in its use". [58] However, it is apparent that his Honour was simply considering the limits of the powers in question. Moreover, as noted above, the absence of similar safeguards in relation to the detention scheme provided for by the Act gives greater significance to other limits upon the power.
• Similarly, there is no indication in Woolf J's judgment that his Honour placed any significance upon the fact that the detention power dealt specifically with a situation in which a deportation order was in force.
• The words "pending his removal" which appeared in the legislation considered in Lam are in substance identical to the words "until he or she is …removed from Australia" (which appear in section 196).

45. As regards Zadvydas v Davis, [59] United States Courts have applied the Zadvydas doctrine to "inadmissible aliens". [60] That is because, although influenced by the due process clause in the American Constitution (which applies only to those persons who have effected an "entry" to the United States), the Supreme Court in Zadvydas dealt with the construction of the statute in question, which made no distinction between "inadmissible aliens" as opposed to other aliens subject to removal or deportation. Indeed, the majority's characterisation of the limitation upon the power to detain in Zadyvdas pointedly uses the term "alien" without specifying particular categories of aliens to whom the doctrine applies. [61] In other words, the doctrine in Zadvydas, appears to reflect a more general and fundamental concern, going beyond constitutional limitations, regarding the indefinite detention of aliens. The Commission similarly submits that the constitutional context and the principles of construction derived from other sources should lead this Court to conclude that the power to detain under consideration in this matter is subject to the limitations discussed above.

Principle of legality

46. The House of Lords has looked to the rule of law as the basis for what has been termed a "principle of legality", which is a strong presumption that the words of a statute are subject to fundamental human rights so as to enforce minimum standards of fairness, both procedural and substantive. [62] In Secretary of State, Ex Parte Simms, [63] Lord Hoffman expressed that principle as follows:

Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. … The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.

47. While that principle may be more broadly expressed than the Australian requirement for clear words to extinguish fundamental rights and liberties, it is plainly related to that requirement. [64] However, it appears that their Lordships view the principle as an "assumption" rather than a "presumption", [65] meaning that it is more readily applied and less easily displaced. Like the principles of statutory construction discussed above, the principle of legality enhances rather than detracts from parliamentary processes by ensuring that Parliament clearly articulates its intention to derogate from fundamental rights (including those guaranteed by international instruments).

48. The development and application of the principle of legality should be seen as part of a broader trend, in which English Courts have come to see themselves as a significant element amongst the protective mechanisms provided for by the ECHR. Prior to the introduction of the Human Rights Act 1998 (UK), English Courts accepted the proposition that the ECHR had not been incorporated into domestic law. [66] Nevertheless, those same Courts have had close regard to the obligation upon the United Kingdom to provide an effective remedy for breaches of the ECHR [67] in expanding and protecting domestic common law and statutory remedies dealing with fundamental human rights. [68] Australia has similar obligations under article 2(3) of the ICCPR to provide effective domestic remedies for breaches of fundamental human rights. [69]

49. Understood in that context, it is unsurprising that in determining and characterising the rights which attract the benefit of the principle of legality, the House of Lords has given close consideration to the United Kingdom's international human rights obligations. In particular, their Lordships have had regard to the obligations of the ECHR, which are largely said to be reflected in the common law. [70] As noted above, the High Court has similarly indicated that international human rights instruments give voice to rights which are fundamental to Australian society. It has also held that grounds for review of administrative decisions [71] and other important procedural and substantive rights [72] are rooted in or closely related to fundamental human rights.

50. For the reasons discussed above, the Minister's proposed construction of the power to detain infringes upon rights and protections recognised as fundamental in both international and domestic law. Such a construction is not mandated by the express words of the section or by necessary implication. This Court should, in those circumstances, apply the principle of legality (or some similar principle or rule) and assume or presume that Parliament did not intend to take such a drastic step via the use of general words.

Neil Williams SC

1. Lim at 33-34

2. Indeed, the passages from Lim relied upon by the Minister at paragraph 30 of his submissions of 24 September 2002 focus upon these very matters: see Lim at page 33 per Brennan, Deane and Dawson JJ and at page 74 per McHugh J.

3. Lim at 29

4. Lim at Attorney-General v Cain [1906] AC 542 at ȟ Koon Wing Lau v Calwell (1949) 80 CLR 533 ("Koon Wing Lau") at 555-556

5. Lim at 10 per Mason CJ, and 32 per Brennan, Deane and Dawson JJ.

6. See Lim at 10 per Mason CJ, 26-32 per Brennan, Deane and Dawson JJ and 65-6 per McHugh J.

7. See section 253(9) of the Act.

8. [2002] FCA 1009 at [23]

9. (2000) 98 FCR 371

10. See Lim at 33, per Brennan, Deane and Dawson JJ

11. "Officer" is broadly defined in section 3 of the Act to include, inter alia, officers of the Department, members of the Australian Federal Police or the police force of a State or an internal or external territory and other persons given written authorization by the Minister.

12. Goldie v Commonwealth of Australia (2002) 188 ALR 708 per Gray and Lee JJ at [4]-[6].

13. Heard by this Court on 17 September 2002 in Melbourne, decision reserved.

14. See [60] of Merkel J's reasons.

15. Acts Interpretation Act 1901, s15AB(2)(a).

16. See at 34 per Brennan, Deane and Dawson JJ, with whom Mason CJ and Gaudron J agreed.

17. Ibid.

18. See paragraphs 20 and 21 of the Minister's submissions.

19. Lim at 33 per Brennan, Deane and Dawson JJ

20. That is "the removal of the removee from Australia is 'reasonably practicable', in the sense that there must be a real likelihood or prospect of removal in the reasonably foreseeable future".

21. See paragraphs 22-23 of the Minister's submissions.

22. See eg Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97 ("Lam").

23. See eg Ruddock v Vardarlis (2001) 183 ALR 1.

24. Corporation of the City of Enfield v Development Assessment Commission (1999) 199 CLR 135 at 158 per Gaudron J.

25. See paragraph 26 of the Minister's submissions.

26. Jumbunna Coal Mine NL v Victorian Coal Miners' Association (1908) 6 CLR 309 at ū Lim at 38 per Brennan, Deane and Dawson JJ. See also Maxwell on the Interpretation of Statutes (7th Ed, 1929) at  Pearce, Statutory Interpretation In Australia (5th ed. 2001) at [5.14].

27. See eg Brown v Classification Review Board (1998) 154 ALR 67 at 78 per French J; Secretary of State, Ex Parte Simms [2000] 2 AC 115 at 130 per Lord Steyn, 131 per Lord Hoffman. Even if the principle is confined to ambiguous statutory provisions, the concept of 'ambiguity' in this context is construed broadly: Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287.

28. Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287 per Mason CJ and Deane J. See also Kartinyeri v Commonwealth (1998) 195 CLR 337 at 384 per Gummow and Hayne JJ; Spigelman, 'Access to Justice and Human Rights Treaties' (2000) 22 Sydney Law Review 141 at 149.

29. The UNHRC is the United Nations human rights treaty body created under article 28 of the ICCPR. Amongst other things, the UNHRC hears complaints submitted by individuals under the Optional Protocol to the ICCPR. While the decisions or 'views' of the United Nations human rights treaty bodies are not binding on this Court, Australian courts and tribunals give weight to the views of specialist international courts and the human rights treaty bodies established to supervise implementation by States parties of their obligations under the provisions of particular human rights treaties. See, as examples of references to the jurisprudence of human rights treaty bodies by Australian courts: 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 307 per Mason CJ and McHugh J; Johnson v Johnson (2000) 174 ALR 655 at 665 para [38] per Kirby J; Commonwealth v Bradley (1999) 95 FCR 218, per Black CJ at í Commonwealth v Hamilton [2000] 108 FCR 378 per Katz J at p387, paragraph [36].

30. Van Alphen v The Netherlands UNHRC 305/88.

31. UNHRC 560/93.

32. See S Joseph "The International Covenant on Civil and Political Rights" 2000 OUP at 217.

33. (1996) UN Doc CCPR/C/79/Add.70.

34. The Working Group was established by resolution 1991/42 of the Commission on Human Rights, which extended and clarified its mandate in resolution 1997/50. The Working Group is composed of five independent experts appointed following consultations by the Chairman of the Commission on Human Rights. Like the UNHRC, the Working Group has an individual complaints procedure and publishes "decisions" or "opinions" on the website of the High Commissioner for Human Rights (http://www.unhchr.ch). Although not a treaty body like the UNHRC, the Working Group is similar to the Committee of Experts appointed by the Governing Board of the International Labour Organisation, upon whose views Katz J relied in Hamilton at 387. See also Black CJ in Bradley at 237, [39].

35. 533 US 678 (2001). The opinions of the Working Group in those complaints appear in a document entitled "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).

36. See at pages 41 and 45.

37. See paragraph 21 of the Minister's submissions.

38. See paragraph 26 of the Minister's submissions.

39. See above.

40. M Gleeson "Global Influences on the Australian Judiciary", paper presented to the Australian Bar Association Conference in Paris, 8 July 2002, published at www.highcourt.gov.au/speeches. See also, for application of the principle of proportionality to constitutional matters, Commonwealth v Tasmania (1983) 158 CLR 1 at 260 per Deane J, Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 29-32 per Mason CJ and Leask v The Commonwealth (1996) 187 CLR 579. Note also that Deane J suggested, in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367, that proportionality might be a separate ground for judicial review of administrative action.

41. See Re Chung Tu Quan & Ors [1995] 1 HKC 566 at ɇ affirmed in Lam at 114.

42. Compare with the Minister's submissions at paragraph 42.

43. In particular, R v Governor of Durham Prison ex parte Singh (1984) 1 All ER 983 ("Hardial Singh") and Lam.

44. (1994) 179 CLR 427 at 436-437, see also at 446 per Deane and Dawson JJ. See also Potter v Minahan (1908) 7 CLR 277 at İ Re Bolton; Ex parte Beane (1987) 162 CLR 514 at ȋ Bropho v Western Australia (1990) 171 CLR 1 at 18.

45. Lam at 111.

46. See eg J Kirk "Constitutional Guarantees, Characterisation and Proportionality" (1997) 21 MULR The Hon Justice Ronald Sackville "Continuity and Judicial Creativity - Some observations" (1997) 20(1) UNSWLJ ‘ Sir Anthony Mason "Judicial Review" at pp38-61 in "The Brennan Legacy" R Creyke and P Keyzer (eds) Federation Press (2002).

47. Trobridge v Hardy (1955) 94 CLR 147 at 152 per Fullagar J.

48. (1987) 162 CLR 514 at ȋ see also Deane J at 532 and Gaudron J at 547. See also Papazoglou v Republic of the Philippines (1997) 74 FCR 108 at 128-129.

49. Sir Anthony Mason , op cit, p43. See also the Hon Justice Ronald Sackville, op cit, page 162 and J Kirk, op cit pp45-47.

50. 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 306-07 per Mason CJ and McHugh J, at 319-321 per Brennan J, at 360 per Toohey J; Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 499 per Mason CJ and Toohey J; Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 288-289 per Mason CJ and Deane J. See also Saadi and Ors v Secretary of State for the Home Department [2001] 4 All ER 961 where the Court of appeal stated (at [68]-[69]): "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."

51. Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 305 per Gaudron J; R v Swaffield; Pavic v The Queen [1998] HCA 1 at [135] per Kirby J.

52. See Lam at 111.

53. Ibid. See also Lim at 27-8

54. See, by way of example, the UNHRC's concluding comments on the Ukraine (1995) UN Doc CCPR/C/79/Add.52, condemning the "administrative detention" of vagrants. See also the concluding comments on Switzerland extracted above.

55. Cf the Minister's submissions at paragraph 37.

56. [2002] FCA 907

57. See paragraph 36(b) of the Minister's submissions.

58. See the approach of Baragwanath J in Refugee Council of New Zealand Inc and others v The Attorney General (No 2), unreported, High Court Auckland, M1881-AS01, 18 June 2002 at [201].

59. 533 US 678 (2001)

60. See Xi v US Immigration and Naturalisation Service 298 F.3d 832 and Borrero v Aljets 178 F.Supp.2d 1034. Compare with the Minister's submissions at paragraph 38.

61. "In our view, the statute, read in light of the Constitution's demands, limits an alien's post-removal-period detention to a period reasonably necessary to bring about that alien's removal from the United States. It does not permit indefinite detention" (at 689).

62. R v Home Secretary; Ex Parte Pierson [1998] AC 539 at 591 per Lord Steyn.

63. [2000] 2 AC 115 at 131.

64. See NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 at [448] per French J.

65. Pierson, op cit, at 587 per Lord Steyn.

66. See Brind v Secretary of State for the Home Department [1991] 1 AC 696. The introduction of the Human Rights Act 1998 has altered that position with many, but not all, of the rights conferred by the ECHR now guaranteed by that legislation.

67. That obligation is set out in article 13 of the ECHR which provides: "Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."

68. See R v Khan [1996] 3 All ER 289 at 298 per Lord Nolan; Rantzen v Mirror Group Newspapers (1986) Ltd and others [1994] QB 670 at 686 per Neill LJ; R v Secretary of State for the Home Department; ex parte Launder [1997] 3 All ER 961 at 988 per Lord Craighead, with whom the other Law Lords agreed; R v Ministry of Defence, Ex Parte Smith [1996] QB 517 at 555-6 per Bingham MR (with whom Henry and Thorpe LJJ agreed).

69. Article 2(3) states: "Each State Party to the present Covenant undertakes: (a)To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;(b)To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c) To ensure that the competent authorities shall enforce such remedies when granted."

70. See Pierson [1998] AC 539 at 587 per Lord Steyn; Simms [2000] 2 AC 115 at 125-6 per Lord Steyn, 131-32 per Lord Hoffman.

71. See Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 75 ALJR 889 at [128] per McHugh J and at [186] per Kirby J, both of whom there referred to the fact that the Act implements Australia's international obligations as a reason for concluding that the rules of procedural fairness had not been excluded. Similarly, in Suresh v Canada (Minister of Citizenship and Immigration) 2002 SCC 1 at [118], the Supreme Court of Canada indicated that Canada's international obligations will be relevant when determining what procedural protections will be required to be made available to a person at risk of deportation.

72. By way of example, in Carter v Nothmore Hale Davy & Leake (1995) 183 CLR 121 at 161, McHugh J accepted that legal professional privilege is 'a practical guarantee of fundamental constitutional or human rights'.

Last updated 20 May 2003.