Commission submissions: Khafaji

IN THE HIGH COURT OF AUSTRALIA ADELAIDE OFFICE OF THE REGISTRY

A 253 of 2003

SHDB Appellant PHILIPPA GODWIN First Respondent JULIE HELEN KEENAN Second Respondent MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS Third Respondent

ATTORNEY-GENERAL (CTH) Intervener

A 254 of 2003

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Appellant ABBAS MOHAMMAD HASAN AL KHAFAJI Respondent

EX PARTE: ATTORNEY-GENERAL (CTH) Intervener

A 255 of 2003

MAHRAN BEHROOZ Appellant

MAHMOOD GHOLANI MOGGADDAM Second Appellant

DAVOOD AMIRI Third Appellant

THE SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS First Respondent THE ATTORNEY-GENERAL OF THE COMMONWEALTH Second Respondent AUSTRALASIAN CORRECTIONAL MANAGEMENT PTY LTD Third Respondent

AUSTRALASIAN CORRECTIONAL SERVICES PTY LTD Fourth Respondent

SUPPLEMENTARY SUBMISSIONS OF THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION, INTERVENING

1 The Human Rights and Equal Opportunity Commission (“the Commission”) files these supplementary submissions pursuant to the leave given by the Court at the commencement of the hearing of these matters.

Construction of s 196 by reference to international obligations

2 In all three present proceedings the proper construction of s.196 of the Migration Act 1958 (Cth) (“the Act”) is in issue, in particular whether, inter alia, that section authorises detention of indefinite duration, and whether the harshness of conditions can vitiate the lawfulness of that detention. Australia's international obligations are relevant to this issue. [1] The Commonwealth accepts the principle that legislation should be construed in line with international treaties and conventions, but subject to the provisos that it only applies in cases of ambiguity, and does not require consideration of decisions of bodies such as the United Nations Human Rights Committee (“UNHRC”). [2]

3 The latter proviso should be rejected. Australian courts have accepted that guidance as to the meaning and effect of international conventions may be gathered from the writings and decisions of learned authors, foreign courts, and expert international bodies. [3] Members of this Court have stated that Australia's accession to the Optional Protocol and the “opening up of international remedies to individuals” pursuant to that instrument brought to bear on the common law the “powerful influence of the [ICCPR] and the international standards it imports”. [4] The UNHRC's decisions have also been cited in considering the application of the principle of construction referred to in paragraph 2. [5] Similar approaches have been adopted by other domestic Courts of high authority. [6] The UNHRC is an international body of jurists, which hands down reasoned decisions, referring to earlier precedents and manifesting consistent and principled decision-making. [7] As such, the decisions of such a body are an appropriate source of guidance as to the meaning and effect of the ICCPR.

4 The approach of Australian domestic Courts reflects the UNHRC's position in international law. The Committee was created by and provided for in the ICCPR itself (Art.s 28-45). Article 1 of the First Optional Protocol to the ICCPR, which Australia has ratified, [8] provides that State parties recognise the competence of the UNHRC in relation to individual complaints. [9] The Parliament is presumed to have taken account of applicable international law when enacting legislation. [10] Where a covenant provides a method for its own interpretation, then a party to those provisions may be taken to have accepted the significance and relevance of the decisions of that body in assisting to expose the meaning and effect of the international obligations. Four UNHRC decisions have now considered detention under s 196 of the Act and each has held aspects of that detention to be arbitrary contrary to Art 9(1) of the ICCPR. This Court should accept those pronouncements as persuasive of the proposition that, at the least, indefinite and prolonged detention is arbitrary and in breach of Art 9(1) unless tied to some appropriate justification particular to the detainee's case. [11] Sections 196 and 189 should be read, so far as possible, not to authorise such indefinite detention.

5 As to the Commonwealth's first proviso (the requirement for ambiguity), all principles of construction apply only to the extent that provisions in question are capable of two or more constructions. Here, the issue is whether the Parliament's provision of powers and duties in ss.196 and 189 of the Act should be construed as subject to reasonable limitations, or whether the word “until” precludes such a construction. There is sufficient ambiguity for the presumptions to be relevant. It is commonplace to regard general and unqualified words as impliedly subject to limitations of reasonableness. For example:

(a) Where an exercise of power depends on the opinion of a decision-maker, such opinion is taken to be impliedly subject to a requirement of reasonableness; [12]

(b) As noted in the Commission's primary submissions (para 18), the minority view in Lim involved the reading down of general words so as not to apply to particular distinctive instances (ie illegal detention);

(c) The Commonwealth accepted in oral submissions that the broad requirements of s.36(3) of the Act would be subject to such limitations; [13]

(d) The duty of the Minister to consider and, if the criteria are met, to grant a visa, set out in s.65(1) of the Act, must be subject to a requirement of acting within a reasonable time. This point is material to the Al Kateb/Al Khafaji cases for if this were not so, the Minister could hold people in indefinite detention, postponing the determination of protection visa applications from certain countries until the Executive considered processing should recommence.

The constitutional limitations

6 The purpose of excluding aliens from entering the Australian community cannot be a sufficient justification for detention of the length and nature alleged in these cases. First, it is not consistent with the limited exceptions recognised in the joint judgment in Lim. [14] Intrusions into the Ch III guarantee of liberty should jealously be constrained.

7 Secondly, and in any case, it may be noted that the exceptions identified in Lim (bail, mental illness, infectious disease, immigration assessment/removal), and the further possible exception dealt with in Kruger v Commonwealth (ie welfare and protection of infants), [15] are all directed to individual needs, characteristics and/or processes. In contrast, the present purported exception – at least as it might apply in relation to the Act as currently drafted – relates to detention imposed because of certain conduct, namely, entry without a visa that is in effect. Section 42 of the Act provides, with certain immaterial exceptions, that “a non-citizen must not travel to Australia without a visa that is in effect”. Usually such a provision would be followed by words to the effect of “Penalty: XX years/ YY penalty units”. Here, however, there is no such penalty but rather a note which states “Section 189 provides that an unlawful non-citizen in the migration zone must be detained”. Regardless of the form, the substance is clear: engaging in the conduct of entry without a visa that is in effect will lead to detention. The imposition of punitive measures (and in an objective sense detention is self-evidently punitive) because of certain conduct is the very hallmark of the criminal process.

8 Thirdly, the United States position does not aid the Commonwealth's argument. True, an ongoing power of exclusion/detention has been held to apply to aliens stopped at the border and made the subject of an “exclusion determination”. Such persons are, even if then permitted physically to enter the United States on a form of “parole”, deemed never to have entered (the “entry fiction” doctrine). [16] An alien so excluded has been held to be unprotected by the Due Process Clause. This doctrine is not apposite here:

(a) Mezei was a 5-4 decision of the Supreme Court, with powerful dissents. The decision was handed down 50 years ago. Significant doubts have been expressed about the indefinite detention of excludable aliens in the United States. [17] This has recently led some American Courts to hold that excludable aliens are protected by the Due Process Clause. [18] The majority in Zadvydas noted, but did not need to consider, arguments that subsequent legal developments have undermined Mezei's legal authority. [19] Justice Scalia asserted the majority decision itself was inconsistent with Mezei. [20]

(b) There is no evidence that Messrs Al Khafaji, Al-Kateb or Behrooz were ever the subject of an exercise or purported exercise of the power to exclude. They have simply entered Australia without authorisation. [21] Indeed, the very definition of “unlawful non-citizen” involves already being in the migration zone (being a zone within Australia borders). In the American case law such persons may rely on the Due Process Clause. [22]

(c) In any case, Australian constitutional law should not proceed by way of legal fiction, particularly when the Ch III guarantee of liberty is at issue. The three individuals have been held in detention within Australia, detention to which the Commonwealth has accepted other Australian law applies (eg law of torts, criminal law). There can be no question that Ch III requirements do apply to all subject to the exercise of power within Australia, even if some of the permissible exceptions to the Lim immunity are directed to certain types of aliens. [23]

9 Fourthly, even if exclusion is accepted as a legitimate justification, that does not end the analysis. Such a purpose could not justify detention in punitive conditions (eg involving torture, abuse or hard labour). Indefinite and extended detention, perhaps for years or decades, could not indefinitely retain the character of detention-for-exclusion conformably with the constitutional imperatives.

10 The Commonwealth submits that a legitimate purpose alone is sufficient to authorise indefinite detention, and regardless of conditions. [24] As Lim and Kruger indicate, the immunity from non-judicial detention will permit some limited infringement (as for all constitutional guarantees). But such tolerated interference does not extend to wholly undermining the significance of the immunity. That would be the effect if any detention measure, no matter how punitive or extreme, was permissible so long as capable of being linked to a legitimate purpose. As Lim indicates, a measure made pursuant to an exception must be reasonably necessary to achieve that purpose. Application of that reasonableness test can usefully be guided by the concept of proportionality. But whether that notion, or “reasonable regulation”, or “reasonably appropriate and adapted”, or “substance over form”, is adopted as the preferable touchstone, the core principle is the same: an infringement is only permitted insofar as it is not so significant as to lose the character of a tolerable incidental interference.

11 The Commonwealth provided no reasons why the protections of Ch III should be capable of being circumvented in this way, in contradistinction to the other constitutional guarantees for which the Court will look to issues of substance over form, and to effects as well as purpose. [25] It would be surprising if application of say the economic guarantee of free trade should scrupulously look to practical effects, [26] whilst a guarantee of liberty can more easily be sidestepped.

12 A question was raised as to how the immunity is derived from Ch III. As this Court has stated, the purpose of the separation of judicial power is to serve as a guarantee of liberty. [27] Freedom from non-judicial punishment – the only “right” at issue here, if such a label must be imposed (for there is no right of the asylum-seekers in these cases to reside in Australia) – is a corollary of that guarantee.

13 Both the purposes of the legislature and the executive may be relevant in characterising the validity of detention. The permissible forms of immigration detention discussed in Lim were said to be an incident of executive power. [28] Constitutional guarantees and immunities speak both to legislative and executive action. [29] It could not be doubted, analogously, that if a general administrative discretion were exercised in some particular instance in a discriminatory and protectionist way, that executive action would be taken to breach s.92. [30]

14 A related question arose as to whether the purposes of the legislation were to be found only in s.4 of the Act. The purposes expressed in objects sections tend to be general. Courts would not refer only to an objects section in considering purposive construction of a particular section or measure. There is no reason the constitutional immunity should be any more constrained. That is especially so as such objects clauses are frequently tendentious and self-serving. [31]

15 Distinct issues arise in relation to the construction and effect of s.197A of the Act. Constitutional limitations on conditions of immigration detention can be recognised even if the claimed defence to that section is rejected. The Commission makes no submissions on that claimed defence.

D S Mortimer SC J K Kirk Counsel for Human Rights and Equal Opportunity Commission

Douglas Menzies Chambers 11th floor Selborne Chambers ph (03) 9225 7170 ph (02) 9223 9477 fax (03) 9225 7293 fax (02) 9232 7626

20 November 2003

1. See HREOC's primary submissions paras 8 -30.

2. See transcript 13 November 2003 at page156, paras 6790-6820.

3. Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 392 per Mason CJ, 396-7 and 399-400 per Dawson J, 405 per Toohey J, 416 per Gaudron J, 430 per McHugh J; Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 at 117 per Gummow J; Commonwealth v Hamilton (2000) 108 FCR 378 at 388 per Katz J; Commonwealth v Bradley (1999) 95 FCR 218 at 237 per Black CJ. Note also Fothergill v Monarch Airlines Ltd [1981] AC 251 at 294-5 per Lord Scarman.

4. Mabo v Queensland (No 2) (1992) 175 CLR 1 at 42 per Brennan J (with whom Mason CJ and McHugh agreed).

5. See most recently MIMIA v Al Masri (2003) 197 ALR at 275 at [148]. See also Austin v Commonwealth (2003) 77 ALJR 491 at footnote 335 which appears in para 255 per Kirby J; Re Minister for Immigration and Multicultural Affairs and Anor; ex parte Epeabaka (2001) 206 CLR 128 at 152-153 per Kirby J.

6. See eg Suresh v Canada (Minister of Citizenship and Immigration) [2002] 1 SCR 3, 2002 SCC 1 at [66]-[67] and at [73]; Nicholls v Registrar Court of Appeal [1998] 2 NZLR 385 at 399-404 per Eichelbaum CJ with whom Smellie J agreed at 461 (cited in footnote 40 of HREOC's primary submissions); Ying v. Governor in Council and Others (Hong Kong) [1997], Unreported, UKPC 36 (27 June 1997) at [36]-[39] and the decision of the Hong Kong Court of Appeal cited in footnote 30 of Mr Al Khafaji's submissions.

7. See eg cases referred to in fn 11 below. Note further Tangiora v Wellington District Legal Services Committee (New Zealand) [2000] 1 NZLR [2000] 1 WLR 240 where the Privy Council said: “It is true that [the Human Rights Committee's] views are not binding on the State party concerned, which is free to criticise them and may refuse to implement them. Nevertheless, as Professor Tomuschat has observed, a State party may find it hard to reject such findings when they are based on orderly proceedings during which the State party has had a proper opportunity to present its case. The views of the Human Rights Committee acquire authority from the standing of its members and their judicial qualities of impartiality, objectivity and restraint. Moreover, there is much force in [the view] that its functions are adjudicative… when [the Committee] reaches a final view that a State party is in breach of it obligations under the Covenant, it makes a definitive and final ruling which is determinative of an issue that has been referred to it” (at [14]).

8. Opened for signature 16 December 1966, 999 United Nations, Treaty Series 302 (entered into force 23 March 1976, acceded to by Australia 25 December 1991).

9. A copy of the First Optional Protocol is Annexure 1 to these submissions.

10. See cases referred to at footnote 23 of the Commission's primary submissions. The present form of s.196 was introduced as s.54ZD by the Migration Reform Act 1992 (Cth), parts of which commenced on 1 November 2003 and other parts (including s.54W (now s.189) and s.54ZD) came into operation on 1 September 1994. Australia acceded to the First Optional Protocol on 25 December 1991.

11. A v Australia at paras 9.2-9. C v Australia at para 8. Baban v Australia at para 7.2 (full references in Commission's primary submissions at footnotes 26-7). See also Bakhtiyari v Australia (UNHRC Communication No. 1069/2002), at para 9.2-9.3, handed down on 29 October 2003, a copy of which is Annexure 2 to these submissions.

12. Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 at [54] per McHugh & Gummow JJ.

13. See transcript 12 November 2003 at page 42.

14. (1992) 176 CLR 1 at 28, 32 per Brennan, Deane and Dawson JJ.

15. (1997) 190 CLR 1 at 84-5 per Toohey J, 162 per Gummow J.

16. See Shaughnessy v United States; ex rel Mezei, 345 US 206 (1953). The label “entry fiction” has been used in subsequent cases, eg Lin Guo v United States Immigration and Naturalization Service, 298 F.3rd 832 at 837 (2002).

17. See the dissenting judgments of Justices Black, Douglas and Jackson in Mezei and the dissenting judgment of Justices Marshall and Brennan in Jean v Nelson, 472 US 846 (1985).

18. Rosales-Garcia v Holland 322 F.3d 386 (6th Cir. en banc 2003) at 408-416. Cf Benitez v Wallis 337 F.3d 1289 at 1298 (11th Cir. 2003).

19. Zadvydas v Davis, 533 US 678 (2001), 694.

20. Ibid, 704- see also Kennedy J at 710. Note further Edward Bates Cole, “What Difference does it Make if You are Deportable or Excludable?” (2003) 28 North Carolina Journal of International Law and Commercial Regulation 567.

21. See Appeal Books in Al-Kateb at page 9, para Al Khafaji at page 4, para Behrooz at page 101, para 13.

22. See Mezei at 212 and Zadvydas v Davis 533 US 678 (2001) at 693, 720-1.

23. See Commission's primary submissions, para 34.

24. See transcript 13 November 2003 at pages 164-167, paras 7160-7290 and 12 November 2003 at pages 16-17, pars 590-610.

25. See Commission's primary submissions, para 40.

26. Cole v Whitfield (1988) 165 CLR 360 at 408.5 per curiam, also 399-400, 401,407-8.

27. See Commission's primary submissions, paras 31-2.

28. (1992) 176 CLR 1 at 30-32 per Brennan, Deane and Dawson JJ.

29. See eg Nationwide News v Wills (1992) 177 CLR 1 at 50-1 per Brennan J; Lange v ABC (1997) 189 CLR 520 at 560.6 per curiam.

30. Cf eg Hughes and Vale Pty Ltd v NSW [No. 2] (1955) 93 CLR 127 at 162-3, 165 per Dixon CJ, McTiernan and Webb JJ.

31. Cf the preamble considered in Australian Communist Party v Commonwealth (1951) 83 CLR 1.

Last updated 14 April 2004.