CHEN YUAN FA v Federal Government
Legal
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
No WAG 89 of 1995
ON APPEAL FROM HIS HONOUR, JUSTICE O'LOUGHLIN
BETWEEN:
WU YU FANG and 117 OTHERS
AppellantsAND:
MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
First RespondentAND:
COMMONWEALTH OF AUSTRALIA
Second RespondentAND:
HUMAN RIGHTS & EQUAL OPPORTUNITY COMMISSION
Intervenor
SUBMISSIONS OF THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION INTERVENING BY LEAVE
1. INTRODUCTION
The Human Rights and Equal Opportunity Commission ("the Commission") was established by the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ("the HREOC Act"). On 13 April 1995, Carr J. directed that leave be granted to the Commission, pursuant to s.11(1)(o) of the HREOC Act, to file and serve written submissions in these matters limited to the issues referred to in the application, no later than 14 days prior to the hearing.
2. SUMMARY OF ARGUMENT
The Commission's submissions are essentially the same as those at first instance and can be summarised as follows:
2.1 This submission deals primarily with the human rights issue of incommunicado detention.
2.2 International instruments are relevant to Australian domestic law firstly, in providing an influence upon the common law; secondly in so that they may be used by a domestic court to resolve any ambiguity in the common law or in a statute; and thirdly, in that in the absence of statutory or executive indications to the contrary, a person affected by the administrative conduct of the Commonwealth or its agencies is entitled to have a legitimate expectation that the Commonwealth will act in conformity with international obligations.
2.3 The primary international obligation relevant in this case is article 10 of the International Covenant on Civil and Political Rights ("ICCPR"), which deals with the treatment of persons deprived of their liberty.
2.4 The decisions made by the United Nations Human Rights Committee suggest that article 10 of the ICCPR prohibits detention incommunicado for even very short periods. These decisions are supported by pronouncements by other U. N. bodies.
2.5 Article 10 of the ICCPR has been interpreted so as to import other human rights instruments, including the Standard Minimum Rules for the Treatment of Prisoners and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment. Another international instrument, the Basic Principles on the Role of Lawyers, is also relevant to this issue.
2.6 A consideration of Article 10 of the ICCPR and the associated international instruments leads to the establishment of two principles which are fundamental to this submission:
I. A person who is being held in administrative detention must be advised of his or her right to request access to a legal adviser.
II. If a request is made for access to a legal adviser, such access must be provided without delay.
2.7 The current practice in areas of Australian domestic law relating to the detention of persons other than in immigration detention is consistent with Article 10 of the ICCPR and the associated international instruments.
2.8 The relevant sections of the Migration Act 1958 (Cth) which deal with the right of an immigration detainee to have access to a legal adviser are either silent on this question, or are ambiguous as to the extent of this right. It is submitted that in view of this silence and ambiguity, and in the absence of statutory or executive indications to the contrary, the Court is entitled to look to the international instruments which clearly impose an obligation to advise a detainee of the right to request access to a legal adviser.
3. INCOMMUNICADO DETENTION
3.1 The Commission submits that the issues in this appeal concern the human rights issue of incommunicado detention, which has been defined by Rodley as follows:
"A prisoner who is held incommunicado is simply one who is unable to communicate with the world outside the place of detention. Normally a prisoner, once taken into custody, may be expected to be allowed to have contact with a lawyer, with family members, with a doctor, and possibly with others too...One who is held incommunicado, then, is one who is denied access to all of these" [1]
3.2 The Commission submits that the issue of access to legal advice is one aspect of the issue of incommunicado detention, and it is this issue which lies at the heart of this appeal. Without proper and timely access to legal advice, detainees are unable to gain access to the information and resources to enable them to exercise their legitimate rights at both international and domestic law.
4. RELEVANT INTERNATIONAL INSTRUMENTS
4.1 APPLICATION OF INTERNATIONAL HUMAN RIGHTS NORMS IN AUSTRALIAN MUNICIPAL LAW
4.1.1 There is a now well-established principle in Australian law that whilst ratification of a treaty does not incorporate its provisions into Australia's municipal law, it is a legitimate and important influence on the common law of this country. In Mabo -v- Queensland (1992) 175 CLR 1, Brennan J as he then was, made the following points in relation to the existence of native title in place of the formerly recognised common law doctrine of terra nullius, at p.42:
"Whatever the justification advanced in earlier days for refusing to recognise the rights and interests in land of the indigenous inhabitants of settled colonies, an unjust and discriminatory doctrine of that kind can no longer be accepted. The expectations of the international community accord in this respect with the contemporary values of the Australian people. The opening up of international remedies to individuals pursuant to Australia's accession to the Optional Protocol to the International Covenant on Civil and Political Rights bring to bear on the common law the powerful influence of the Covenant and the international standards it imports. The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights. A common law doctrine founded on unjust discrimination in the enjoyment of civil and political rights demands reconsideration. It is contrary both to international standards and to the fundamental values of our common law to entrench a discriminatory rule which, because of the supposed position on the scale of social organisation of the indigenous inhabitants of a settled colony, denies them a right to occupy their traditional lands."
4.1.2 Ratification of an international treaty will be particularly influential when there is any uncertainty or ambiguity in either the common law or municipa1 legislation. In such a case, ratification will allow the terms of the treaty to be used by a domestic court as an aid to resolve such uncertainty or ambiguity. Thus, in Chu Cheng Lim -v- Minister for Immigration, Local Government and Ethic Affairs [2] (Lim's Case), Brennan, Deane and Dawson JJ stated:
"We accept the proposition that the courts should, in case of ambiguity, favour a construction of a Commonwealth statute which accords with the obligations of Australia under an international treaty." [3]
In Lim's Case, the provisions of the Migration Act 1958 (Cth) which were under scrutiny were however "quite unambiguous", [4] and the High Court was therefore unable to interpret the statute in accordance with Australia's international obligations.
4.1.3 The relevance of international treaty law was recently reaffirmed by the High Court of Australia in Minister of State for Immigration and Ethnic Affairs -v- Ah Bin Teoh [5] (Teoh's Case), which considered whether the Convention on the Rights of the Child should have been taken into consideration by a decision-maker who refused the grant of resident status to the appellant. Mason and Deane JJ [6] (with whom Gaudron J concurred) [7] noted:
"It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute...But the fact that the Convention has not been incorporated into Australian law does not mean that its ratification holds no significance for Australian law. Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia's obligations under a treaty or international convention to which Australia is a party.."
4.1.4 In Teoh's Case, their Honours also found that the fact that Australia had ratified the Convention on the Rights of the Child gave rise to a legitimate expectation that decision-makers will abide by the terms of the Convention:
"...ratification by Australia of an international convention is not to be dismissed as a merely platitudinous or ineffectual act, particularly when the instrument evidences internationally accepted standards to be applied by courts and administrative authorities in dealing with the basic human rights affecting the family and children. Rather, ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention. That positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the Convention..." [8]
4.1.5 On 10 May 1995 Foreign Minister Gareth Evans and Attorney-General Michael Lavarch made a Joint Statement, [9] saying (at p.2) that its purpose was to "restore the position to what it was understood to be prior to the Teoh Case". In the Joint Statement, Senator Evans and Mr Lavarch state that:
"...entering into an international treaty is not the reason for raising any expectation that government decision-makers will act in accordance with the treaty if the relevant provisions of that treaty have not been enacted into domestic Australian law. It is not legitimate, for the purpose of applying Australian law, to expect that the provisions of a treaty not incorporated by legislation should be applied by decision-makers. Any expectation that may arise does not provide a ground for review of a decision. This is so, both for existing treaties and for future treaties that Australia may join."
4.1.5 It is submitted that the Joint Statement has not extinguished any legitimate expectation in the appellants in the present case, for three reasons:
Firstly, any legitimate expectation in the appellants that the Commonwealth would comply with its obligations under Article 10(1) of the ICCPR and related instruments was created well before the Joint Statement, and the administrative conduct which is the subject of the present action also took place before this time. In these circumstances, it is submitted that the Joint Statement has not extinguished such expectation and the legal effects which flow from it.
Secondly, it is far from clear whether an executive statement simpliciter will have the effect of extinguishing legitimate expectations. This is acknowledged in the Joint Statement, which notes, at p.2, that:
"The Government intends to legislate to reinforce this statement and put beyond any doubt the status of these unlegislated international obligations." (emphasis added)
It is submitted that until such legislation is in place, and the form of that legislation is known, there remains doubt as to the effect of the executive statement, and in this circumstance, the Court should continue to interpret the legislation in a way which is consistent with the decision of the High Court in Teoh's Case.
Thirdly, it is submitted that the wording of Mason CJ and Deane J in Teoh's Case makes it clear that if at a domestic level the Commonwealth is to act in a way contrary to its international obligations, the statutory or executive indication that it is not hound by such obligations must be unequivocal, leaving no doubt as to the Commonwealth's intention. It is not therefore sufficient, in this submission, to say -as is said in the Joint Statement -that the entry of Australia into an international treaty does not create any legitimate expectation. Any departure from accepted international norms which have been accepted by a positive statement on the part of Australia can, in this submission, only be extinguished by a positive statement to the contrary. For example, a statement combined with legislation stating that "in making administrative decisions, the Commonwealth Government is not bound to conform with the Convention on the Rights of the Child", or words of a similar effect, may (but it is not conceded that it would) extinguish legitimate expectations.
4.1.6 Finally, it is important in this submission, to note that the concept of legitimate expectation is separate and distinct to the principle that international human rights norms are an important influence on the common law of this country, and in the case of ambiguity in the common law or municipal legislation, the courts should favour a construction which accords with Australia's international obligations. These principles are well-established by the cases referred to below and they are, it is submitted, unaffected by the acceptance or otherwise of the concept of legitimate expectation.
4.1.7 In this submission, the relevance of the aforementioned international instruments is therefore as follows:
1. International instruments are an important influence in interpreting both the common law and legislation when determining the appropriate duties placed upon the Commonwealth and its agencies. They are a particularly important aid to interpretation when there is any uncertainty or ambiguity in the existing law.
2. Commonwealth legislation should be interpreted in such a way that it accords with Australia's obligations under international instruments, unless there is an unambiguous intention on the part of the legislature that this not be the case.
3. Persons who are affected by the administrative conduct of the Commonwealth and its agencies have a legitimate expectation that such conduct will be in conformity with Australia's obligations under international instruments.
4.2 INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS ("ICCPR") [10]
4.2.1 The ICCPR was ratified by Australia in 1980, [11] and is set out in the Schedule 2 of the HREOC Act. Australia is bound, as a matter of international law, to comply with the terms of the ICCPR. [12]
4.2.2 Under article 40(4) of the ICCPR, the Human Rights Committee (which is established by article 28) is empowered to transmit to the States Parties general comments relating to the interpretation of matters under the Convention. In General Comment No 15/27 of 22 July 1986 (Position of Aliens), the Committee stated that the rights and obligations recognised by the ICCPR apply to all persons within the territory of a State and subject to its jurisdiction, irrespective of his or her nationality or statelessness. [13] The appellants in the present case would therefore be protected by the provisions of the ICCPR, regardless of their status as non citizens.
4.2.3 There are several articles in the ICCPR which are relevant to the issue of incommunicado detention, including articles 9(3), 14(3)(b) and 10(1). Of these, Article 10(1) is universally applicable. The Committee's General Comment No 21/44 of 6 April 1992 (Rights of Detainees) states that article 10(1) applies to:
"...anyone deprived of liberty under the laws and authority of the State who is held in prisons, hospital -particularly psychiatric hospitals -detention camps, or correctional institutions or elsewhere." [14]
4.2.4 Article 10(1) states:
"All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person."
4.2.5 There have been a number of decisions of the Human Rights Committee relating to the issue of incommunicado detention under article 10(1). [15] In general terms, the Committee has held that any such detention is in breach of article 10(1). The shortest period of detention incommunicado to bring forth a finding of violation of Article 10(1) has been fifteen days, [16] and other decisions involve detention incommunicado for periods of 44 days, [17] three months, [18] and five months. [19]
4.2.6 In addition, the UN Special Rapporteur on torture has said that incommunicado detention "should not exceed seven days", including regular visits by a doctor, followed by a right to see "a lawyer and/or doctor" of choice immediately afterwards. [20] The UN Special Rapporteur on States of Emergency has also drawn attention to the high incidence of people detained incommunicado even for short periods during states of emergency, and has called for guarantees against incommunicado detention, and the right of "habeas corpus or other prompt and effective remedy" to be treated as non-suspendible. [21]
4.2.7 The Human Rights Committee has also interpreted article 10(1) to go beyond the issue of incommunicado detention simpliciter, so as to import the obligations of a State to accord the minimum standards of humane treatment in the conditions of detention, as found in other international instruments including the Standard Minimum Rules for the Treatment of Prisoners ("the Standard Minimum Rules"), and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment ("the Body of Principles"). This is consistent with the traveaux prepatoires for the ICCPR. In its 1958 report dealing with article 10 in its draft form, the Third Committee of the General Assembly made express reference to the Standard Minimum Rules, and specifically stressed that they should be taken into account in interpreting and applying article 10. [22] Moreover, in its General Comment on the Rights of Detainees, which deals specifically with article 10, the Human Rights Committee makes the following comment:
"5. States parties are invited to indicate in their reports to what extent they are applying the relevant United Nations standards applicable to the treatment of prisoners: the Standard Minimum Rules for the Treatment of Prisoners (1957), the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (1988), the Code of Conduct for Law Enforcement Officials (1978) and the Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1982). [23]
4.2.8 As recently as April 1995, the Human Rights Committee has confirmed the relevance of the Standard Minimum Rules to Article 10 of the ICCPR. In its consideration of the Report submitted by the United States of America, the Committee called for a guarantee that persons deprived of their liberty in U.S. prisons
"...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..." [24]
4.2.9 It is therefore submitted that article 10(1) is relevant to the present case not only in itself but also because it imports the principles set out in the Standard Minimum Rules and the Body of Principles. The latter two instruments will be dealt with below.
4.3 STANDARD MINIMUM RULES FOR THE TREATMENT OF PRISONERS [25]
4.3.1 The Standard Minimum Rules were adopted by the First UN Congress on the Prevention of Crime and the Treatment of Offenders in 1955, and endorsed by the UN Economic and Social Council ("Ecosoc") two years later. [26] The Standard Minimum Rules is not per se a legal instrument, since Ecosoc has no power to legislate. However, it does provide important guidance in interpreting the requirements of specific international instruments which are themselves binding, [27] including article 10 of the ICCPR.
4.3.2 The Standard Minimum Rules are primarily directed to criminal detainees; however, they are also relevant to persons detained under any non-criminal process, which includes administrative detention. Rule 94 states that such persons shall be accorded treatment "not less favourable than that of untried prisoners". In so far as untried prisoners are concerned, Rule 93 states that:
"For the purposes of his defence, an untried prisoner shall be allowed to apply for free legal aid where such aid is available, and to receive visits from his legal adviser with a view to his defence and to prepare and hand to him confidential instructions."
4.3.3 It is submitted that the principles set out in Rule 93 are applicable in the present case to impose an obligation to provide timely access of a detainee to a legal adviser for the purposes of providing general legal advice and assisting with an application tor refugee status.
4.4 BODY OF PRINCIPLES FOR THE PROTECTION OF ALL PERSONS UNDER ANY FORM OF DETENTION OR IMPRISONMENT [28]
4.4.1 The United Nations General Assembly adopted the Body of Principles on 9 December 1988. [29] As its title suggests, the Body of Principles apply to all persons under any form of detention or imprisonment, including those held in administrative detention. The Body of Principles is not strictly binding in international law; however, as a resolution of the principal organ of the UN, it represents an authoritative set of internationally recognised standards and may be used for guidance in interpreting other instruments which are binding, including article 10 of the ICCPR. Moreover, the Body of Principles are not merely exhortatory or advisory; they envisage concrete government action to implement and enforce the provisions. Principle 7(1) provides:
"States should prohibit by law any act contrary to the rights and duties contained in these principles, make any such act subject to appropriate sanctions and conduct impartial investigations upon such complaints."
4.4.2 The Body of Principles is explicit and unambiguous in the obligations which it places upon States. It is submitted that the most important provisions in the present context are as follows:
"Principle 13
"Any person shall, at the moment of arrest and at the commencement of detention or imprisonment, or promptly thereafter, be provided by the authority responsible for his arrest, detention or imprisonment, respectively with information on and an explanation of his rights and how to avail himself of such rights.
"Principle 15
"Notwithstanding the exceptions contained in principle 16, paragraph 4, and principle 18, paragraph 3, communication of the detained or imprisoned person with the outside world, and in particular his family or counsel, shall not be denied for more than a matter of days.
"Principle 17
"1. A detained person shall be entitled to have the assistance of a legal counsel. He shall be informed of his right by the competent authority promptly after his arrest and shall be provided with reasonable facilities for exercising it.
"Principle 18
"1. A detained or imprisoned person shall be entitled to communicate and consult with his legal counsel."
As to the meaning of "promptly", the Human Rights Committee's General Comment on Liberty and Security of the Person suggests that "delays must not exceed a few days". [30]
4.5 UN BASIC PRINCIPLES ON THE ROLE OF LAWYERS [31]
4.5.1 The Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, at its meeting in Havana, Cuba, from 27 August to 7 September 1990, adopted by consensus the Basic Principles on the Role of Lawyers ("the Lawyers' Principles"). In a resolution of 14 December 1990, the UN General Assembly "welcomed" the instruments adopted by the Congress and invited
"Governments to be guided by them in the formulation of appropriate legislation and policy directives and to make efforts to implement the principles contained therein...in accordance with the economic, social, legal, cultural and political circumstances of each country," [32]
4.5.2 The preamble to the Lawyers' Principles notes that they have been formulated:
"...to assist member States in their task of promoting and ensuring the proper role of lawyers, should be respected and taken into account by Governments within the framework of their national legislation and practice and should be brought to the attention of lawyers as well as other persons, such as judges, members of the executive and the legislature, and the public in general."
4.5.3 The preamble also notes that:
"...adequate protection of the human rights and fundamental freedoms to which all persons are entitled, be they economic, social and cultural, or civil and political, requires that all persons have effective access to legal services provided by an independent legal profession."
4.5.4 Principle 2 provides:
"Governments shall ensure that efficient procedures and responsive mechanisms for effective and equal access to lawyers are provided for all persons within their territory and subject to their jurisdiction, without distinction of any kind, such as discrimination based on race, colour, ethnic origin, sex, language, religion, political or other opinion, national or social origin, property, birth, economic or other status."
5. RELEVANT PRINCIPLES REFERRED TO IN THE AUSTRALIAN CONTEXT
5.1 CRIMES ACT 1914 (CTH)
5.1.1 Section 23G in Part IC of the Crimes Act 1914 (Cth), which was inserted by the Crimes (Investigation of Offences) Amendment Act 1991 (Cth) states (in part):
(1) Subject to section 23L, if a person is under arrest for a Commonwealth offence, and investigating officer must, before starting to question the person, inform the person that he or she may:
(a)...
(b) communicate, or attempt to communicate, with a legal practitioner of the person's choice and arrange, or attempt to arrange, for a legal practitioner of the person's choice to be present during questioning;
and the investigating official must defer the questioning for a reasonable time to allow the person to make, or attempt to make, the communication and, if the person has arranged for a legal practitioner to be present, to allow the legal practitioner to attend the questioning.
(2) Subject to section 23L, if a person under arrest for a Commonwealth offence wishes to communicate with a friend, relative or legal practitioner, the investigating official holding the person under arrest must:
(a) as soon as reasonably practicable, give the person reasonable facilities to enable the person to do so; and
(b) in the case of a communication with a legal practitioner-allow the legal practitioner or a clerk of the legal practitioner to communicate with the person in circumstances in which, as far as practicable, the communication will not be overheard. [33]
5.2 LAW REFORM COMMISSION: MULTICULTURALISM AND THE LAW
5.2.1 In its 1992 report entitled Multiculturalism and the Law, the Australian Law Reform Commission made the following recommendations:
"10.21 As a general principle, whenever an investigating official is required to inform a suspect of his or her rights in relation to an investigation procedure this information should be given in, or translated into, a language in which the suspect is reasonably fluent. Accordingly, the Commission recommends that the Crimes Act 1914 (Cth) should be amended to require that a person be informed in a language in which he or she is reasonably fluent of the right to communicate with a friend or relative and the right to consult with, and have present, a legal practitioner."
"10.22 The Attorney General has undertaken to monitor the effectiveness of the Crimes Act 1914 Part IC and to review it once it has been in operation for long enough to permit proper assessment. The Commission recommends that in this review particular attention be paid to the experience of people of non-English speaking backgrounds and the effectiveness of the legislation in safeguarding their rights." [34]
5.3 STANDARD GUIDELINES FOR CORRECTIONS IN AUSTRALIA [35]
5.3.1. The Standard Guidelines for Corrections in Australia ("the Australian Guidelines") were developed as a result of a seminar conducted by the Australian Institute of Criminology in 1976, and the first edition was published in 1978. The guidelines were revised by the Conference of Correctional Administrators in Adelaide in 1992 and were republished in 1994. A national standards body, comprising Ministers responsible for Corrections throughout Australia and New Zealand, is the authority established to regularly review the Australian Guidelines. [36]
5.3.2 The Australian Guidelines are based upon the Standard Minimum Rules, and "...are not intended to be law or to be treated as absolute; they are for guidance." [37]
5.3.3 The Australian Guidelines deal primarily with prisons (defined in section 2 as "any building, enclosure or place legally declared to be a prison for the lawful custody of persons committed by lawful authority"), and as such do not deal directly with administrative detention. However, the fact that they are expressed to be based upon the Standard Minimum Rules, which in turn deals with administrative detainees under Rule 94, would in this submission make the Australian Guidelines relevant when determining the rights of persons held in immigration detention.
5.3.4 It is submitted that the relevant provisions in the Australian Guidelines are as follows:
"5.3 Every prisoner on reception must be provided with written and oral culturally relevant information about the regulations governing the treatment of prisoners, the disciplinary requirements of the prison, the authorised methods of seeking information and making complaints, and all such matters as are necessary to enable the prisoner to understand their rights and obligations and to adapt to the life of the prison."
"5.5 All prisoners must be allowed, as soon as they are imprisoned, to choose a legal representative or apply for free legal aid where such aid is available. They must be allowed to receive visits from legal advisers regarding their defence or legal actions; and to prepare and hand to the legal adviser, and to receive, confidential instructions. At their request they must be given, wherever practicable, all necessary facilities for this purpose including access to materials to allow them to prepare their own defence. In particular, where they do not understand English, they must be given the free assistance of an interpreter for all essential contacts with the prison administration, and for their defence."
5.4 JOINT STANDING COMMI1TEE ON MIGRATION REGULATIONS
5.4.1 In 1991 and 1992, the Joint Standing Committee on Migration Regulations ("the Committee") held an inquiry into refugee and humanitarian visas and entry permits. The focus of the inquiry was Australia's on-shore refugee and humanitarian system, and it took place
"...in the context of [the] changing refugee environment, both at the international and domestic level, and the rising crisis of numbers within the on-shore system." [38]
5.4.2 The Committee presented its report to Parliament in August 1992.
5.4.3 Chapter 7 -"Border Claimants: Processing and Detention Practices" - dealt with the detention and processing of refugee claimants who were held in detention, particularly in the Port Hedland detention centre. The chapter dwelt at some length on the problems which the Cambodian asylum seekers had experienced in obtaining access to legal assistance.
5.4.4 In its concluding comments to chapter 7, the Committee stated that it was of the view that
"...border claimants should have the right to obtain legal assistance, and should be advised of that right in a clear, comprehensible and timely manner" A written statement to this effect should be provided to border claimants as soon as they have indicated their intention to apply for refugee status." [39]
6. MIGRATION ACT 1958 (CTH)
6.1 Section 256
6.1.1 O'Loughlin J at pp.17-18, [40] refers to a decision of Sackville J, in Guo Wei Rang -v- Minister for Immigration and Ethnic Affairs [41] in support of the contention that there is no obligation on a custodian under s.256 of the Migration Act 1914 (Cth) to give advice as to an applicant's entitlement to seek legal advice.
6.1.2 With respect, it is submitted that this is a misreading of s.256. It is submitted that s.256 is in fact silent as to whether a detainee must be advised of his or her right to request legal advice. This is in contrast with principle 17(1) of the Body of Principles, which deals firstly with the obligation to inform the detainee of the right to legal counsel, then goes on to the obligation to provide reasonable facilities. Section 256 is silent as to the first leg, commencing its operation where the detainee is presumably aware of this right and has made the request. Where such a request has been made, the section then requires that the "reasonable facilities" be afforded. Thus the Attorney-General's Department, in evidence before the Joint Standing Committee on Migration Regulations, advised that
"'reasonable facilities' could be afforded under the Act by providing paper and writing or typewriting implements, a telephone, facsimile or postal facilities, or a room in which a lawyer could consult with the person in custody." [42]
Similarly, guideline 5.5 of the Australian Guidelines treats "necessary facilities" as being "access to materials to allow them to prepare their own defence."
6.1.3 Apart from some cosmetic changes, s.256 has survived intact from its original form as s.41 in the 1958 Act and as s.96 in the major amendments to the Act in December 1989. The current re-numbering of the section is a result of the Migration Reform Act 1993 (Cth), which commenced on 1 September 1994.
6.1.4 Whilst the 1958 Parliamentary debates surrounding the original Migration Bill shed little light on the interpretation of section 256 or its predecessors, it is clear that this aspect of the new legislation was introduced in the spirit of humanity and justice. In introducing the new legislation, then Minister for Immigration, Sir John Downer, referred to "important checks" on the Minister's authority "to ensure a further degree of justice for the individual." [43] One example of such checks, according to Mr Downer, was clause (later section) 41 of the bill, which
"...ensures that persons arrested must be given all reasonable facilities for obtaining legal advice and taking legal proceedings."
The humanitarian nature of the new bill was taken up by Mr Joske, who congratulated the Minister on his "vision and humanity" most clearly seen in the deportation safeguards, [44] and this was echoed in the Senate, where Senator Wood declared the safeguards contained in clause 41 and several accompanying clauses to be
"...in keeping with what we consider to be the liberty of the individual, and they should find favour in the hearts and minds of us all, because I an1 sure we would all wish immigrants in this country to be treated as we ourselves would wish to be treated if we were in their position." [45]
Referring to another of the Minister's safeguards in this package, Senator Wood described the introduction of detention centres in place of gaol for holding deportees as
"...a forward step, one that is in keeping with the human rights of individuals who are not guilty of any serious crime." [46]
6.1.5 It is in this spirit of justice and respect for human rights which, it is submitted, the present s.256 should be interpreted.
6.2 Section 193
6.2.1 O'Loughlin J at pp.16-17 [47] makes a finding that there is no room for ambiguity in the interpretation of s.193 of the Migration Act 1914, and he rejects any proposition that the respondents were obliged to inform the appellants that they may apply for a visa.
6.2.2 It is submitted, with respect, that there is room for ambiguity in the interpretation of s .193. This is because the wording of s.193(2) appears to be limited in its restriction to advice "in connection with applications for visas". There is no reference to a general, overall restriction on access to legal advice in s.193. A person in detention under s.189 may wish to seek access to legal advice for any number of purposes other than in connection with applications for visas. These would include "the taking of legal proceedings in relation to his or her detention" (as referred to in s.256) or simply advice as to the non-availability of access to the refugee determination process.
6.2.3 It is also submitted that the right to be advised of access to a lawyer is such a fundamental right, as set out in the above international and domestic instruments, that nothing short of the most positive and unambiguous legislative statement that a person shall not be advised of this right would suffice. A statement such as that in s .193, which is to the effect that there is no requirement to provide such advice, is, it is submitted, simply not enough to avoid this obligation.
7. CONCLUSIONS:
7.1 IS THERE AN OBLIGATION TO PROVIDE ACCESS TO LEGAL ADVICE?
7.1.1 It is submitted that where a person in immigration detention requests access to legal advice, that access must be provided. It is submitted that this obligation exists independently of s.256 and s.193, by virtue of the international obligations referred to above and by the absence of any explicitly contrary domestic law.
7.1.2 It is submitted that the international obligations require that such access be provided immediately that it is requested.
7.1.3 It is submitted that the obligation to provide access to legal advice exists regardless of whether the person in detention intends to or is lawfully able to apply for a protection visa.
7.2 IS THERE AN OBLIGATION TO ADVISE DETAINEES OF THEIR RIGHT TO REOUEST LEGAL ADVICE?
7.2.1 It has been submitted that in the present case the relevant international obligations are those under to Article 10(1) of the ICCPR, and the Standard Minimum Rules (particularly Rules 93 and 94) and the Body of Principles (particularly Principles 13, 15, 17 and 18). It is submitted that these instruments taken together unambiguously impose an obligation upon the Commonwealth to advise a detainee of the right to request a legal adviser. The Commonwealth practice as found in the Crimes Act 1914, the recommendations of the Australian Law Reform Commission, the Lawyers' Principles, the Australian Guidelines and the Joint Standing Committee on Migration Regulations are consistent with these instruments and are persuasive additional authorities in interpreting the obligation placed upon the Commonwealth.
7.2.2 It is submitted that this construction is not only in accordance with Australia's international obligations, but it also takes the common sense approach which appears to have been advocated by the Attorney-General's Department, which is quoted in the evidence Mr Mares as advising the respondents that
"It would be sensible, as a matter of practice, for the authorities to ask the detained person whether he or she desires to seek the advice of a lawyer." [48]
7.2.3 It is submitted that it is common sense that persons arriving on Australia's shores will be seeking some sort of entry, even if they do not explicitly state what type of entry they are seeking. It is common sense that such persons will need the assistance of legal advisers not only with any application which they may wish to make, but also to advise them if there is no relevant application which they are able to make. The Act and regulations are notoriously difficult to understand, and it is submitted would be incomprehensible by persons of non-English speaking background. In this context, the following remarks of Wilcox J are pertinent:
"The task of ascertaining the position in relation to a particular applicant or a particular type of visa or entry permit is akin to feeling one's way through a labyrinth. Perhaps there are officers [of the Department of Immigration] who can confidently move around this new regulatory environment, but it must be impossible for ordinary people affected by the regulations to do so; particularly as many of these people have little or no command of English or experience in legal matters." [49]
7.2.4 It is submitted that whether or not a person is seeking any form of entry to Australia, or is entitled to seek such entry, as long as that person is being held in detention he or she is entitled to be advised of the right to request a lawyer and be provided with access to a lawyer upon request. It is submitted that this is a fundamental right of all persons in detention.
7.2.5 It is an extremely simple process to advise a detainee that he or she may request access to a legal adviser. This is not an onerous task for decision-makers to discharge. It does not require a decision- maker to undertake a search of international instruments to ascertain which treaty provisions will be relevant and to what decisions the provisions might be relevant, a concern recently expressed by the Attorney-General. [50] The right to be advised of the availability of a legal adviser, and the right to be then given access to a legal adviser, is fundamental right which can easily be discharged.
7.2.6 Yet if the first respondent's policy of is taken to its logical extent, it is proclaiming to persons held in detention: "you have fundamental rights, but we won't tell you about them unless you ask us". One could well ask what is the purpose of having rights, if affected persons are not made aware of them? It is submitted that fundamental human rights should not be undermined by semantic niceties such as whether or not a person has thought or even possesses the relevant knowledge to request access to such rights.
7.2.7 In a similar vein in 1958, Senator Wright queried a provision in clause 39, which provided that an arresting officer shall "if that person so requests", furnish particulars of any deportation order to an arrestee:
"It is the words 'if that person so requests' with which I am concerned. It is surely good procedure, where a deportation order warrants an arrest, that the particulars of that deportation order, in writing, should be furnished immediately to the person arrested. Having regard to the illiteracy and language difficulties of some migrants, I submit that it is not in accord with our ideas of British justice that we should furnish them with an order only if they so request." [51]
7.2.8 It is submitted that this concept of justice, now overlaid with almost forty years of human rights development, must apply in the interpretation of the rights and obligations before this Court.
Dated the 28th day of September 1995
NICK POYNDER
Senior Legal Officer
SUPPLEMENTARY SUBMISSION
1. The Commission has submitted at pp. 10-11 of Part I that, as a result of Teoh's Case, [52] the applicant and group members have a legitimate expectation that the administrative conduct of the Commonwealth and its agencies will be in conformity with Australia's obligations under international instruments, including the obligations under Article 10(1) of the ICCPR and related instruments.
2. It has occurred to the Commission that there is a further matter that is relevant in this context. This relates to the Joint Statement by Senator Evans and Attorney-General Michael Lavarch of 10 May 1995, [53] which states (at p.2) that its purpose is to "restore the position to what it was understood to be prior to the Teoh Case"
3. In Teoh's case, the High Court stated that:
"...ratification of a convention is a positive statement by the Executive Government of this country to the world and to the Australian people that the Executive Government and its agencies will act in accordance with the Convention. That positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision- makers will act in conformity with the Convention and treat the best interests of the children as 'a primary consideration'" (emphasis added) [54]
4. In the Joint Statement, Senator Evans and Attorney-General Lavarch stated, at p.2:
"We now make such a clear and express statement. We state on behalf of the Government, that entering into an international treaty is not the reason for raising any expectation that government decision-makers will act in accordance with the treaty if the relevant provisions of that treaty have not been enacted into domestic Australian law. It is not legitimate, for the purpose of applying Australian law, to expect that the provisions of a treaty not incorporated by legislation should be applied by decision-makers. Any expectation that may arise does not provide a ground for review of a decision. This is so, both for existing treaties and for future treaties that Australia may join."
5. It may be argued that the Joint Statement has extinguished any legitimate expectation in the applicant and group members in the present case. It is submitted that this is not the case, for three reasons:
(i) Firstly, any legitimate expectation in the applicant and group members that the Commonwealth would comply with its obligations under Article 10(1) of the ICCPR and related instruments was created well before the Joint Statement, and the administrative conduct which is the subject of the present action also took place before this time. In these circumstances, it is submitted that the Joint Statement has not extinguished such expectation and the legal effects which flow from it.
(ii) Secondly, it is far from clear whether an executive statement simpliciter will have the effect of extinguishing legitimate expectations. This is acknowledged in the Joint Statement, which notes, at p.2, that:
"The Government intends to legislate to reinforce this statement and put beyond any doubt the status of these unlegislated international obligations." (emphasis added)
It is submitted that until such legislation is in place, and the form of that legislation is known, there remains doubt as to the effect of the executive statement, and in this circumstance, the Court should continue to interpret the legislation in a way which is consistent with the decision of the High Court in Teoh's Case.
(iii) Thirdly, it is submitted that the wording of Mason CJ and Deane J in Teoh's Case makes it clear that if at a domestic level the Commonwealth is to act in a way contrary to its international obligations, the statutory or executive indication that it is not bound by such obligations must be unequivocal, leaving no doubt as to the Commonwealth's intention. It is not therefore sufficient, in this submission, to say - as is said in the Joint Statement - that the entry of Australia into an international treaty does not create any legitimate expectation. Any departure from accepted international norms which have been accepted by a positive statement on the part of Australia can, in this submission, only be extinguished by a positive statement to the contrary. For example, a statement combined with legislation stating that "in making administrative decisions, the Commonwealth Government is not bound to conform with the Convention on the Rights of the Child", or words of a similar effect, may (but it is not conceded that it would) extinguish legitimate expectations.
6. Finally, it is important in this submission, to note that the concept of legitimate expectation is separate and distinct to the principle that international human rights norms are an important influence on the common law of this country, and in the case of ambiguity in the common law or municipal legislation, the courts should favour a construction which accords with Australia's international obligations. These principles are well-established by the cases referred to at pp.9-10 of the Commission's submission and are, it is submitted, unaffected by the acceptance or otherwise of the concept of legitimate expectation.
Dated the 2nd day of June 1995
NICK POYNDER
Legal Officer
1. N.Rodley, The Treatment of Prisoners Under International Law, (Oxford: Clarendon Press), 1987, p264.
3. Ibid, p.38. See also Dietrich -v- R (1992-93) 177 CLR 292 per Mason CJ and McHugh J at p.306; and M. Kirby, "The Australian Usage of International Human Rights Norms: From Bangalore to Balliol -A view from the Antipodes" (1993) 16(2) UNSWLJ 363.
4. (1992) 176 CLR 1. p.38. per Brennan Deane and Dawson JJ
8. Ibid. p.365. See also Toohey J at p.374; Gaudron J at p.375
9. International Treaties and the High Court Decision in Teoh, Joint Statement by the Minister for Foreign Affairs, Senator Gareth Evans, and the Attorney-General, Michael Lavarch, 10 May 1995. See Appendix 6.
11. Department of Foreign Affairs and Trade ("DFAT") Treaty Series 1980, No 1, 10
12. N. O'Neill and R. Handley. Retreat from Injustice: Human Rights in Australian Law (Annandale: Federation Press), 1994, p.118
13. Reproduced in M.Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (Kehl and Rhein: Engel) 1993. p.86l; see also article 2(1)
14. Reproduced in M.Nowak. Ibid. pp.873-874
15. Under the First Optional Protocol to the ICCPR participating States undertake to permit persons subject to their jurisdiction to bring complaints of human rights violations by that State to the Human Rights Committee, which publishes its decisions and presents a summary of its activities in its annual report. Australia has ratified the First Optional Protocol, which came into force for Australia on 25 December 1991.
16. Arzuaga (Gilboa) -v- Uruguay (147/1983), Selected Decisions of the Human Rights Committee under the Optional Protocol, UN doc.CCPR/C/OP/2 1990 p.176
17. Penarrieta -v- Bolivia (176/84), ibid, p201
18. Conteris -v- Uruguay (139/1983), ibid. p.168
19. Machado -v- Uruguay (83/1981), ibid. p.108
20. UN docE/CN.41/1986//15. para. 151
21. Cited in S. Marks, "Civil liberties at the Margin: the UK Derogation and the European Court of Human Rights", (1995) 15 Oxford Journal of Legal Studies p.69 at pp.82-83
22. United Nations, Official Records of the General Assembly, Thirteenth Session. Third Committee, 16 September to 8 December 1958, pp.160-173 and 227-241. Some States in fact called for an express reference to these rules in article 10, although this was not included in the final draft.
24. Human Rights Committee, Consideration of Reports Submitted by States parties Under Article 40 of the Covenant, UN doc CCPR/C/79/Add 50, 1413rd meeting, fifty-third session. 6 April 1995
26. Ecosoc res. 663 C (XXIV), 31 July 1957
29. UN General Assembly Resolution 43/173
30. General Comment 8/16 of 27 July 1982, reproduced in M. Nowak. op cit p 853
32. UN General Assembly Resolution 45/121
33. See also Crimes Act 1958 (Vic), ss.464-464ZG; Summary Offences Act (SA), s.79a, s.83a
34. Law Reform Commission, Multiculturalism and the Law (Alken Press. Smithfield: 1992), pp.206-207
36. Standard Guideline far Corrections in Australia, (Queensland: Corrective Services Ministers' Conference,1994), Preface
38. Joint Standing Committee on Migration Regulations, Australia's Refugee and Humanitarian System: Achieving a Balance Between Refuge and Control, (1992) Canberra: AGPS, p.3
39. Ibid, paragraph 7.131, p.179
40. Wu Yu Fang -v- Minister for Immigration and Ethnic Affairs and Commonwealth of Australia (unreported, Federal Court of Australia, 27 July 1995)
41. Unreported, Federal Court of Australia, 4 May 1995
42. Joint Standing Committee on Migration Regulations, op cit note 62
43. 43House of Representatives Hansard, 7 Eliz II Vol H of R 19, I May 1958, p.1397
44. Ibid. Vol H of R 20, 5 August 1958, p.63
45. Senate Hansard, 7 Eliz II Vol S 13, pp.707-708
47. WU Yu Fang -v- Minister for Immigration and Ethnic Affairs and Commonwealth of Australia (unreported, Federal Court of Australia. 27 July 1995)
48. Affidavit of Peter William Mares sworn 5 May 1995, Annexure A
49. Eremin -v- Department of Immigration and Ethnic Affairs, unreported decision of the Federal Court of Australia, I August 1990
50. International Treaties and the High Court Decision in Teoh. Joint Statement by the Minister for Foreign Affairs, Senator Gareth Evans, and the Attorney-General, Michael Lavarch. 10 May 1995, p.2 (Appendix 6)
51. Senate Hansard, 7 Eliz II Vol S 13, p.72l
52. Minister of State for Immigration and Ethnic Affairs -v- Ah Hun Teoh, (1995) 125 ALR 353
53. International Treaties and the High Court Decision in Teoh, Joint Statement by the Minister for Foreign Affairs, Senator Gareth Evans, and the Attorney-General, Michael Lavarch, 10 May 1995 (copy annexed)
54. (l995) 128 ALR 353 at p.305 per Mason CJ and Deane J
Last updated 20 May 2003.