Outline of submissions
of the Human Rights and Equal Opportunity Commission intervening before
the Federal Court in Luu Case
THE FEDERAL COURT OF AUSTRALIA
VICTORIAN DISTRICT REGISTRY
On appeal from a single justice
of the Federal Court of Australia
THE HONORABLE PHILLIP RUDDOCK, MINISTER FOR IMMIGRATION
HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
Outline of Submissions
1. The Human Rights
and Equal Opportunity Commission ("the Commission") was granted
leave by his Honour Justice Marshall on 5 June 2001 to intervene in these
proceedings pursuant to s 11(1)(o) of the Human Rights and Equal Opportunity
Commission Act 1986 (Cth) (the "HREOC Act").
2. The Commission
made both written primary and reply submissions to Marshall J and oral
submissions at the hearing of this matter.
3. The scope of the
Commission's intervention is limited to issues within its area of expertise,
which may not be addressed at all, or fully addressed, in the submissions
of the parties. The Commission's submissions are primarily directed to
the Minister's decision under s 253(9) of the Act not to release Mr Luu
rather than his decision under s 206(1) not to revoke the deportation
4. In this appeal,
the Commission's submissions address the following aspects of the decisions
(a) For the purposes
of the questions of law set out in paragraphs (b) and (c) and (d)
below, whether Mr Luu's detention was and remains in breach of Australia's
international obligations under Articles 9 and 10 of the International
Covenant for Civil and Political Rights ("ICCPR") (relevant
to Grounds 5(a) and (d) of the Notice of Appeal).
(b) Whether Australia's treaty obligations under Articles 9 and 10
of the ICCPR were a relevant consideration for the Minister in making
his decision under s 253(9) (relevant to Grounds 5(a) and (d) of the
Notice of Appeal).
in light of the answer to (a), the principles in Teoh should
have been applied by the Minister in making his decision under s 253(9)
(relevant to Grounds 2 and 3 of the Notice of Appeal).
(d) Whether s
253 (including the discretion in s 253(9)) should be construed as
imposing limits on a person's detention "pending" deportation
(relevant to Grounds 5(a) and (d), 10 and 11 of the Notice of Appeal).
SUMMARY OF THE
5. The Commission
submits that this Court should hold that particular international obligations
may be relevant considerations in the exercise of certain statutory discretions
and this is such a case.
6. In respect of the Minister's decision under s 253(9), the Commission
submits that the Minister was obliged to take into account Australia's
obligations under the International Covenant for Civil and Political
Rights ("ICCPR"), Articles 9 and 10. The ICCPR is attachment
A to these submissions. The Minister was required to consider:
Mr Luu's detention contravened any of those obligations; and
(b) If so, whether
the Minister should exercise the discretion under s 253(9) in a way
which was consistent or inconsistent with Australia's obligations.
7. The Commission
(a) Mr Luu's
detention was inconsistent with and contrary to those Articles of
the ICCPR at the time the Minister made his decisions, namely 12 March
2001. For the purposes of all three grounds proposed by the Commission
(relevant considerations, Teoh and statutory
construction), the Court should make this finding.
(b) The purpose
of Mr Luu's detention as "protection of the Australian community"
is not a purpose of s 253, and therefore not a relevant consideration.
That being so, Mr Luu's detention is effectively preventative detention,
in breach of Article 9, and this ought to have been particularly considered
by the Minister.
8. Since such inconsistency
existed, if he was minded not to release the appellant under s 253(9),
the Minister was obliged to accord the appellant an opportunity to be
heard as to why the Minister should not make such a decision: Teoh.
9. Sub-sections 253(1),
(8) and (9) should be construed consistently with principles of international
law and human rights norms and, so construed, authorise detention "pending
deportation" only for a reasonable time. What is a "reasonable
time" will vary according to particular circumstances. In Mr Luu's
case, his detention has gone beyond a reasonable time. This conclusion
has the effect that Mr Luu's detention may no longer be authorized by
section 253 of the Act ( a matter Marshall J decided was inappropriate
to determine in this proceeding) or, at the very least, was a construction
of his powers under s 253(9) which should have influenced the Minister's
exercise of discretion.
THE ICCPR AS A RELEVANT CONSIDERATION
The correct approach
to the relevant considerations ground
10. The Commission
does not contend that there is a general principle that a decision maker
is always bound to take into account the terms of international treaties
when exercising a statutory power. However the Commission does submit
that the provisions of Articles 9 and 10 (the latter being interpreted
in light of the United Nations Standard Minimum Rules for the Treatment
of Prisoners (the "Minimum Rules")) of the ICCPR are relevant
considerations in the exercise of the discretions under s 253(9) of the
11. What is a relevant
consideration for the purposes of the exercise of a particular statutory
discretion is not necessarily confined to considerations found expressly
or by implication to exist by reason of an analysis of the scope, subject
matter and purpose of the statute conferring the discretion. When read
in context, not even the judgment of Mason J in Minister for Aboriginal
Affairs v Peko-Wallsend (1986) 162 CLR 24 at 39-40 suggests this is
12. His Honour in
Peko-Wallsend found that a report of the Aboriginal Land Commissioner
on the four factors set out in s 50(3)(a) - (d) of the Aboriginal Land
Rights (Northern Territory) Act 1976 (Cth) was a relevant consideration
for the Minister in making his decision whether to grant land to a land
trust under the Act. However his Honour went on to find that it is "but
a short and logical step" to conclude that a consideration of those
factors (and in particular the factor of detriment) must be based on the
most recent and accurate information that the Minister has at hand and
therefore includes submissions by a party who says it is adversely affected
by such a grant. That is, his Honour construed as relevant considerations
facts particular to the case before him namely, the mining company's submissions
on detriment: cf the respondent's submissions to Marshall J in this case
at para 24.
13. See Muslowie
v Minister for Immigration and Ethnic Affairs (1986) 68 ALR 116 at
124-125 per Beaumont J and, generally, the cases referred to in Aronson
and Dyer, Judicial Review of Administrative Action, 2nd Ed at 224-229.
The decisions there referred to demonstrate that in many cases, facts
particular to a case may well be a relevant consideration. However, the
Commission accepts that an analysis of the scope, subject matter and purpose
of the statutory discretion is the starting point for the ascertainment
of what is a relevant consideration in a given context.
The scope, purpose
and subject matter of the Act and the deportation power
14. The subject matter
of the Migration Act is broadly set out in its objects section,
(1) The object
of this Act is to regulate, in the national interest, the coming into,
and presence in, Australia of non-citizens.
(2) To advance
its object, this Act provides for visas permitting non-citizens to enter
or remain in Australia and the Parliament intends that this Act be the
only source of the right of non-citizens to so enter or remain.
(3) To advance
its object, this Act requires persons, whether citizens or non-citizens,
entering Australia to identify themselves so that the Commonwealth government
can know who are the non-citizens so entering.
(4) To advance
its object, this Act provides for the removal or deportation from Australia
of non-citizens whose presence in Australia is not permitted by this
15. One of the fundamental
distinctions in the Act is between lawful and unlawful non-citizens: see
s 5 for the definition of non-citizen, and s 13 for the distinction between
lawful and unlawful non-citizens.
16. The regulation
of the expulsion of non-citizens from Australia occurs through the Act
by either removal (see sections 198 and 199 as to an unlawful non-citizen)
or deportation (see sections 200 to 203). In both those circumstances
the Act makes specific provision for the detention of non-citizens in
order to achieve their removal or deportation. However in respect of unlawful
non-citizens their detention is mandatory, and as to non-citizens subject
to deportation, it is discretionary: see paragraph 17 below.
17. The power to
deport which is given to the Minister by s 200 is circumscribed by conditions
set out in sections 201, 202 and 203. Plainly the circumstances required
to exist by each of those sections could be characterised as relevant
considerations. However unless a person is an unlawful non-citizen and
subject to mandatory detention under s 189, the fact that she or he is
subject to a deportation order does not necessarily mean she or he must
be detained. The wording in s 189 is quite different from s 253, which
confers a power not a duty to detain: see also Tuiletufuga v Minister
for Immigration and Multicultural Affairs (1998) 87 FCR 389 at 392-393
per Lehane J.
18. The powers conferred
by s 253 (especially sub-sections (1), (8) and (9)) are incidents of the
power to deport which is conferred primarily by s 200. That is, they have
no independent operation: they are constitutionally valid and therefore
lawfully exercised only insofar as they are necessary concomitants to
the effective exercise of the power to deport.
limits on the scope of the power to detain pending deportation
19. The power to
detain a non-citizen pending deportation conferred by this Act is constitutionally
valid so long as it is exercised in order to achieve the statutory purpose
of detention or removal: Chu Kheng Lim & Ors v Minister for Local
Government and Ethnic Affairs (1992) 176 CLR 1 at 10, 11-12, 30-31,
32, 65. So much is also consistent with the express terms of (d) in section
4 of the Act.
20. It should be
noted that the Court in Lim was dealing with statutory powers of
detention which imposed an upper limit on that detention of approximately
10 months and which included a provision for a detainee to bring her or
his detention to an end by request: Lim at 33-34. Both these factors
significantly influenced the majority's opinion that such detention was
a valid exercise of legislative power under s 51(xix) of the Constitution.
21. It is the vulnerability
and exposure to deportation as an incident of sovereignty over territory
which significantly diminishes the protection which Chapter III of the
Constitution provides in the case of a citizen against imprisonment otherwise
than pursuant to judicial process: Lim at 29.
22. However, restraint
and detention are only associated with the power to deport because they
may be "necessary to make expulsion or deportation effective":
Lim at 30; Attorney-General v Cain  AC 542 at 543;
Koon Wing Lau at 555-556. As Latham CJ said in Koon Wing Lau
(McTiernan and Webb JJ concurring):
Section 7 does
not create or purport to create a power to keep a deportee in custody
for an unlimited period. The power to hold him in custody is only a
power to do so pending deportation and until he is placed on board a
vessel for deportation and on such a vessel and at ports at which the
vessel calls. If it were shown that detention was not being used for
these purposes the detention would be unauthorised and a writ of habeas
corpus would provide an immediate remedy.
23. Thus an inability
to deport could convert the detention under s 253 into indefinite and
therefore arbitrary detention, and so detention not authorised as an incident
of the power in s 200 of the Act.
The scope, purpose
and subject matter of s 253
24. The subject
matter of the powers in s 253 is the interference with liberty. The
importance accorded by the common law to the preservation of liberty is
no less because the person concerned is an alien: Lim at 19; Re
Bolton; ex parte Beane (1987) 162 CLR 514 at 529, Kioa v West
(1985) 159 CLR 550 at 631. As set out above, it is an interference constitutionally
confined within strict limits.
25. The content of
Articles 9 and 10 of the ICCPR set out basic international norms. A breach
of one or more of these norms may indicate, because of the content of
these norms, that the constitutional limits of the interference with liberty
have been reached: see Lim at 31-32; Koon Wing Lau at 555-556.
26. The scope
of the power conferred by s 253 is apparent in the provisions of s 253(1),
(8) and (9) themselves. The power to detain is discretionary, not mandatory:
27. It is a power
to keep in "immigration detention" which, by reason of the definition
of that phrase in s 5 of the Act, contemplates a broad range of places
of detention, with varying degrees of restrictions on liberty. There is
an additional and alternative power contained in s 253(8), namely for
a person to be kept in "such detention as the Minister . . . directs".
Since it is expressed as an alternative to immigration detention, the
phrase contemplates forms of custody different from those set out in the
definition of "immigration detention" in s 5. It might encompass,
for example, forms of home detention or other supervised but less restrictive
28. Immigration detention
is administrative detention. It is neither protective nor punitive, but
facultative. The High Court's decision in Lim holds that it is
justified because it is necessary to achieve an end which is within Commonwealth
legislative power - namely the regulation of the entry and removal of
29. The scope of
the power in s 253 to detain is thus broad and flexible in terms of the
places of possible detention, but narrow as to the end sought to be achieved.
That being so, Australia's international obligations to ensure that detention
is not arbitrary, indefinite, cruel or inhumane or discriminatory are
considerations which should always bear on the first (s 253(1)) and the
continuing (s 253 (8) and (9)) exercise of the power to detain a deportee.
30. The purposes
of the power conferred by s 253 have been described by Lehane J in Tuiletufuga
at 398 as twofold:
(a) to ensure
the deportee is available for deportation;
(b) to protect
the Australian community, where a person may be a danger to the Australian
31. The Commission
submits that although the object in paragraph 30(a) is plainly a purpose
of the section (otherwise the exercise of the power to deport could be
frustrated), the object in paragraph 30(b) should not properly be considered
as a purpose of the power conferred by s 253.
32. Lehane J cites
as authority for this proposition the judgment of Carr J in Towers
v Minister for Immigration and Ethnic Affairs  83 FCA (16 February
1998). Towers was an interlocutory judgment. In one paragraph,
Carr J held it was "arguable" that the risk of danger to the
Australian community could be a relevant consideration in respect of all
three decisions under challenge in that case, namely the decision to deport
Mr Towers, the decision to take him into custody and the decision not
to release him under s 253(9). In Towers, the decision maker had not taken
account of remarks by the sentencing judge that the applicant was not
likely to be a danger to the community.
33. In neither Towers
nor Tuiletufuga was there any analysis of the purposes of the s
253 detention power in conjunction with the constitutional limits imposed
on it in Lim's case. Tuiletufuga has been considered and
sometimes applied in subsequent decisions: see Nguyen v Minister for
Immigration and Multicultural Affairs  FCA 887; Nguyen v
Minister for Immigration and Multicultural Affairs  FCA 705;
Brehoi v Minister for Immigration and Multicultural Affairs 
FCA 1839; Dung Chi Dang v Minister for Immigration and Multicultural
Affairs (1999) 93 FCR 28; Lokeni Hui v Minister for Immigration
and Multicultural Affairs 8 December 1998 Fed Ct (NSW) 1563/98; Meng
Kok Te v Minister for Immigration and Ethnic Affairs 16 October 1998
Fed Ct (Vic) 1339/98.
34. None of these
cases have analysed Lehane J's proposition that a purpose of s 253 is
protection of the Australian community, and none has analysed the consequent
proposition that a decision maker is bound to take into account protection
of the Australian community in exercising the powers under s 253.
with basic common law principles and the limits on the power of detention
pending deportation as set out in Lim's case, the Commission submits that
"protection of the Australian community" cannot be a purpose
of the powers in s 253 (and therefore a relevant consideration).
36. The deportation
power is not punitive: Robtelmes v Brenan (1906) 4 CLR 395 at 415;
Koong Wing Lau v Calwell (1949) 80 CLR 533 at 555-556. The power
to detain, being only a necessary incident of the power to deport, therefore
cannot be punitive or exercised for reasons associated with punishment.
37. By elevating
protection of the Australian community as a purpose of detention where
that consideration can only be directed at the fact that a person has
been convicted and sentenced for a crime, the Court is sanctioning the
imposition of further punishment on the individual by further detention.
In Kable v DPP (1996) 189 CLR 51, McHugh J characterized the legislation
introduced to continue the incarceration of Mr Kable as legislation which
provided "for punishment by way of imprisonment for what the appellant
is likely to do as opposed to what he has done". This is consistent
with the majority's observation in Lim that, aside from exceptional cases,
involuntary detention is penal or punitive in nature. In Lim, their
Honours were referring to the detention of a citizen, and the Court went
on to elaborate why different considerations applied to non-citizens.
However, the judgment emphasises how slight a move is necessary for involuntary
detention to become disconnected from a constitutionally valid basis.
38. This is particularly
so when a person subject only to administrative detention is held in custody
in a state prison whose regime is designed primarily as one to administer
punishment to convicted offenders.
39. Further, the
purpose of "protecting the Australian community" effectively
involves preventative detention. This must be so, because although another
phrase is used, what is at stake is preventing a person from engaging
in any further criminal conduct. The Minister's reasons in this case (AB
45 paragraphs (e) and (f)) plainly state as much.
40. It is now firmly
established that our common law does not authorize preventative detention.
The fundamental principle of proportionality does not permit the increase
of sentence imprisonment beyond what is proportional to the crime merely
for the purpose of extending the protection of society from the recidivism
of the offender: Chester v R (1988) 165 CLR 611, 618. It is the
antithesis of judicial power to deprive an individual of her or his liberty
not because she or he had breached any law (civil or criminal) but because
an opinion was formed that she or he might commit such a breach in the
future: Kable v DPP.
41. Article 9(1)
of the ICCPR, inter alia, also proscribes preventative detention. The
purposes of section 253 should not be construed so as to be inconsistent
with Article 9.
42. It is a long-established
presumption that a statute is to be interpreted and applied, as far as
its language admits, so as not to be inconsistent with the comity of nations
and established rules of international law. If the
Parliament intends to effect inconsistency 'it must express its intention
with irresistible clearness to induce a Court to believe that it entertained
43. Where there is
ambiguity, the High Court has held, courts should favour a construction
of a statute that accords with the obligations of Australia under an international
treaty. The High Court has said that a common sense
approach suggests that Parliament intended to legislate in accordance
with its international obligations. In more recent
cases, the High Court has indicated that a narrow conception of ambiguity
is to be rejected.
44. The Commission
submits that wherever the language of the statute is susceptible of a
construction that is consistent with the terms of the relevant international
instrument and the obligations that it imposes on Australia, that construction
must prevail. Although it is open to the Australian Parliament to legislate
inconsistently with these norms, ordinary processes of statutory construction
mean that a domestic statute is to be interpreted and applied as far as
its language admits so as not to be inconsistent with established rules
of international law. In other words, where the text of a statute is susceptible
of a construction consistent with the terms of the international instrument
and general international law, then the Court should strain to adopt that
45. Such an approach
is analogous with the presumption in favour of the validity of a statute.
Where the language of a statute is not so intractable as to be incapable
of being consistent with the presumption that Parliament did not intend
to pass beyond Constitutional bounds, then the presumption in favour of
validity must prevail. This approach accords in turn
with section 15A of the Acts Interpretation Act 1901 (Cth).
46. The Commission
submits that there is no indication, in the words of section 253(9) or
its statutory context, that the Commonwealth Parliament intended to legislate
inconsistently with its international obligations. For that reason, in
addition to the matters outlined above, the Commission submits that Lehane
J was, with respect, incorrect in concluding that the protection of the
Australian community is an implied statutory purpose of section 253(9)
and therefore a relevant consideration.
47. In summary therefore,
the Commission submits that the subject matter, scope and purpose of section
253, read in conjunction with the broader subject matter, scope and purposes
of the Act and of the deportation power in general, suggest that Australia's
international obligations under the ICCPR in relation to detention which
is not arbitrary and which respects different treatment for unconvicted
detainees were relevant considerations for the Minister to take into account.
the common law?
48. If the proposition
in paragraph 47 above is viewed as a proposition which requires the development
of the common law in Australia, then it is submitted that the Court ought
to make that development.
49. For the reasons
set out below at paragraphs 51- 53, the Commission submits it is in fact
not a development so much as an application of the test in Peko-Wallsend
and a necessary consequence of the Teoh principle. Nevertheless
there now can be no doubt that the existence of human rights treaties
to which Australia is a party is a legitimate and important influence
on the development of the common law of Australia: Mabo v The State
of Queensland (No 2) (1992) 175 CLR 1 at 42 per Brennan J (Mason CJ
and McHugh J concurring at 15); Dietrich v R (1992) 177 CLR 292
at 306, 319-321, 348- 349; Teoh at 288.
50. Such a development
(if it be one) does not involve rejection or contravention of the well
established principle that international obligations are not part of Australian
domestic law and that rights conferred by such international instruments
are not enforceable in Australian domestic law: Chow Hung Ching v The
King (1948) 77 CLR 449 at 478 per Dixon J; Bradley v The Commonwealth
of Australia (1973) 128 CLR 557 at 592 per Barwick CJ and Gibbs J;
Simsek v Macphee (1982) 148 CLR 636 at 641; Teoh at 288
per Mason CJ and Deane J and Newcrest Mining (WA) Limited v The Commonwealth
of Australia (1997) 190 CLR 513 at 657 per Kirby J.
51. The conclusion
that a decision maker in the exercise of specific statutory discretion
may be bound to take into account and consider whether a person's initial
and then continuing detention pending deportation breaches relevant articles
of the ICCPR does not give that individual any enforceable "right"
which she or he does not already have under Australian domestic law. The
enforceable right concerned is a right to have the discretions under s
253 exercised according to law. That is a well entrenched part of Australian
administrative law and is not a right introduced by international instruments.
The content of that right varies in each case according to the nature
of the discretion to be exercised. What is a relevant consideration for
one statutory discretion may or will not be a relevant consideration for
another statutory discretion. The Commission submits that on the basis
of the established test in Peko-Wallsend, those Articles of the
ICCPR dealing with arbitrary and unlawful detention are properly characterised
as relevant considerations for the purposes of the discretions in s 253(1)
52. All this proposition
entails is a non-controversial approach that the exercise of a statutory
discretion in relation to the detention of a person ought to be required
to be influenced by consideration of whether that detention is consistent
with or breaches fundamental international human rights norms. The weight
to be attached to that consideration (including whether any breach of
such norms ought to be determinative) remains a matter for the decision
53. In this case,
although without analysis, so much appears to have been accepted by the
learned trial judge. In practical terms, by reason
of Teoh, decision makers must consider relevant international obligations
as part of the process of according procedural fairness to those affected
by their decisions (the Commission develops its submissions on procedural
fairness in paragraphs 96 to 100 below).
preclude such a development?
54. To the extent
that Kioa v West (1985) 159 CLR 630 has been seen as authority
for the proposition that there is no general principle that a decision
maker is bound (as opposed to entitled) to take into account Australia's
international obligations when exercising a statutory power, the force
of that general proposition has been circumvented by the practical consequences
55. In fact, Kioa
is not authority for any such proposition. The dicta of Brennan J in Kioa
is just that. No other justice in Kioa made a similar observation.
Brennan J's point was that the HREOC Act did not impose any general
obligation on repositories of statutory power to take conventions into
account. That is not the Commission's contention in this case. The Commission's
contention is that the scope, purpose and subject matter of s 253(1) and
(9) suggest that Australia's obligations in respect of non-arbitrary,
preventative or indefinite detention are the kinds of "relevant provisions"
which Brennan J in Kioa (see 630.7) held had not been identified
in that case.
56. Doctrinal consistency
requires that applicable international obligations be regarded in a manner
similar to applicable non-statutory policies. As
is the case with a ratified international instrument, such policies can
be the sources of legitimate expectations. It is
also clear that if such a policy is applicable to the particular decision
making situation, it is a relevant consideration that the decision maker
is bound to take into account. As Allars notes:
principle suggests that applicable articles of an international convention,
like a policy, are relevant considerations the decision maker is bound
to take into account. In neither case is the decision maker compelled
to decide in accordance with the policy. There remains a discretion
to depart from the policy or the articles of the convention on account
of the merits of the case, or to give the policy or the articles little
WAS THE MINISTER BOUND TO TAKE INTO ACCOUNT?
57. The Minister
was bound to consider whether Mr Luu's detention as at 12 March 2001 breached
any or all of the articles of the ICCPR to which reference has been made.
If the Minister found that Mr Luu's detention did breach any of those
articles then the weight to be given to this consideration in the exercise
of statutory discretion was a matter for the Minister, subject only to
constraints of lawfulness and in particular reasonableness. For example,
if the Minister were to have found that Mr Luu's detention breached Article
7 of the ICCPR in that he was being subjected to torture, it is but a
logical step to conclude that no reasonable Minister could exercise his
discretion under either s 206(1) or s 253(9) to do anything other than
change Mr Luu's conditions of detention (see s 253(8)) or release him
under s 253(9).
WHETHER MR LUU'S
DETENTION DID BREACH ANY OF THE RELEVANT PROVISIONS OF THE ICCPR
58. The Commission
submits that Mr Luu's detention on 12 March 2001 did breach Articles 9(1)
and 10(2)(a) of the ICCPR. That is so even if the inquiry is confined
to the findings of fact made by the Minister: see paragraph 30(a) of the
Respondent's Contentions of Fact and Law filed before Marshall J and dated
15 June 2001. The findings of fact relevant to this determination are
set out in paragraphs 66-70 below.
Mr Luu's detention
detention means the same as "indefinite" detention. "Indefinite"
relevantly means "vague", "undefined", "of undetermined
extent, amount or number": OED on Historical Principles 3rd
Ed. In Perez v Minister for Immigration and Multicultural Affairs
(1999) 94 FCR 287 at 290, Madgwick J described indeterminate detention
as " detention for a long period or for an unknown period which is
not acceptably short".
or indefinite detention is one kind of arbitrary detention under Article
9 of the ICCPR. Article 9(1) creates a right to liberty and then provides
for certain limitations on that right. Any such limitations must satisfy
the separate requirements of "lawfulness" and absence of "arbitrariness".
The United Nations Human Rights Committee ("UNHRC") has clearly
indicated that those requirements should not be conflated. Thus, in Van
Alphen v The Netherlands, it was said:
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
Similarly, in A
v Australia, the UNHRC stated:
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
61. The UNHRC has
specifically considered the detention of persons being expelled or deported
from a country in relation to Article 9. For example, in its concluding
comments on Switzerland, the UNHRC said:
notes with concern that [Swiss law] permits the administrative detention
of foreign nationals without a temporary or permanent residence permit,
including asylum seekers and minors over the age of 15, for three months
while the decision on the right of temporary residence is being prepared,
and for a further six months, and even one year with the agreement of
the judicial authority pending expulsion. The Committee notes that these
time limits are considerably in excess of what is necessary, particularly
in the case of detention pending expulsion
62. The UNHRC has
found breaches of Article 9 in circumstances where people have not been
released after their prison sentences have been fully served.
63. Further, the
UNHRC has indicated, in its concluding comments on New Zealand, that:
of punishment in respect of possible future offences is inconsistent
with articles 9 and 14 of the [ICCPR].
64. To similar effect,
in its concluding comments on Peru, the UNHRC stated:
takes note with concern that provisions in article 2, para. 24 (f) of
the [Peruvian] Constitution, which permits preventive detention for
up to 15 days in cases of terrorism, espionage and illicit drug trafficking,
as well as Decree Law 25,475, which authorizes extension of preventive
detention in certain cases for up to 15 days, raise serious issues with
regard to article 9 of the Covenant.
65. The length of
time that the applicant has been incarcerated is also relevant in the
context of Article 9 of the ICCPR. While length of detention is not in
itself determinative on the question of arbitrariness pursuant to Article
9, the UNHRC has indicated that "proportionality"
is an element which must be considered in relation to that issue.
In other words, one must consider whether the detention (having regard
to matters including its length) is proportional to the purpose or purposes
sought to be achieved by the States Party. As noted above, the UNHRC has
expressed grave reservations regarding the proportionality of the provisions
of Swiss legislation that permitted the administrative detention of persons
for up to six months (or, with the consent of a judicial authority, up
to a year) pending expulsion.
66. The only aspect
of the length of detention of Mr Luu found as a fact by the Minister was
that the deportation order was issued on 9 May 1997, and by implication
and reference to the briefing note that Mr Luu had been in detention pending
deportation since that date. The only other material fact found by the
Minister was the "progress made towards the establishment of an MOU":
page 3 of the Minister's Reasons, AB 46. At best, even in conjunction
with the material contained in the briefing note at paragraph 18 (AB 53),
the only event which might be said to be reasonably foreseeable was the
conclusion of the Memorandum of Understanding ("MOU"). That
in itself was never said to, and could not be said to, actually implement
Mr Luu's deportation. His Honour Justice Marshall fell into error by assuming
that that was so: paragraph 72 of his Honour's reasons, AB 177. The length
of Mr Luu's detention remained unquantifiable.
67. The Commission
refers to the most recent affidavit of Mr Gabriel Kuek, filed 14 September
2001. If the Court needs any further persuasion that the conclusion of
the MOU could not and did not as a matter of fact bring Mr Luu's deportation
any closer and make his deportation any less indefinite, it is contained
in that material.
68. On the evidence
before the Court, at the time of his decision of 12 March 2001:
- The respondent
was or should have been aware that, even if the MOU were signed, it
would not be in any way binding upon either the government of Australia
or the government of Vietnam. A memorandum of understanding is, of its
nature, not binding upon its signatories.
- The respondent
was or should have been aware that the deportation of the applicant
to Vietnam would, even if the MOU were signed, remain a matter entirely
within the discretion of the Vietnamese government, being a matter subject
to the exercise of its sovereign power to determine who would enter
its borders. Indeed, it is open to the Court to infer, from paragraphs
8 and 10-12 of the affidavit of Mr Kuek affirmed 14 September 2001,
that the draft and final terms of the MOU provided for considerable
discretion on the part of the Vietnamese Government and that Vietnam
has already relied on that discretion to be selective as to who it will
receive and to impose a cap upon the total number of people to be deported.
- The respondent
had no way of knowing when, if at all, the Government of Vietnam would
exercise its discretion to include the appellant in the intake of people
to be deported under the MOU. Indeed, on the basis of paragraphs 10-12
of Mr Kuek's affidavit affirmed 14 September 2001, that appears to remain
- Even assuming
that the Vietnamese government would exercise its discretion to allow
the appellant to be deported to Vietnam, it was known to the respondent
that it would be necessary to obtain travel documentation from the Vietnamese
Government for the appellant (see AB 32 and 53 (paragraph 18)).
- It was known
to the respondent that the issue of any travel document to the appellant
would be contingent upon satisfying the Vietnamese Government of matters
such as the appellant's identity (see AB 32 and 53 (paragraph 18)).
- The establishment
of the appellant's identity was a matter known or which should have
been known to the respondent to involve referring details to the relevant
Ministries in Vietnam who would, in turn, refer the matter to the relevant
Municipal authority (AB 32).
69. Had he turned
his mind to the matter as at the time of his decision of 12 March 2001
(and there is no evidence to suggest he did), the respondent would have
been unable to quantify with any certainty the time required for the completion
of that process, other than to say that it would be "time consuming",
by reason of limited communication structures in rural areas of Vietnam
70. There is nothing
to suggest that prior to, at the time of or subsequent to the respondent's
decision of 12 March 2001, the respondent, his department or the Commonwealth
have had any success in obtaining travel documents for the applicant (see
AB 20, 30, 32, 53), have made any progress in that regard or are able
to provide any estimate of when (if at all) such documentation might be
able to be obtained for the appellant.
71. The Court should,
on the basis of the above matters, infer that the length of the appellant's
detention was, as at 12 March 2001, entirely unquantifiable. To the extent
that it is relevant, the Court should further infer that that remains
the case today.
72. By 12 March 2001,
the applicant had been incarcerated for approximately four years since
becoming eligible for release (ie a period longer than the Victorian County
Court determined was an appropriate sentence for the applicant's crime).
The applicant's ongoing detention was disproportionate to the respondent's
stated purposes in keeping him in custody pending deportation.
73. It is important
to remember that the determination whether detention is indefinite and
therefore arbitrary, alternatively inappropriate or unjust and therefore
arbitrary is not a determination which necessarily affects the power to
deport an individual. That is why the discretions in sub-sections
253(1), 253(8), and 253(9) exist. To this extent, the observations of
the Full Court in Vo v Minister for Immigration and Multicultural Affairs
(2000) 98 FCR 371 at  go to a different and presently irrelevant point.
74. Although it is
conceivable that a determination that a person's detention is in breach
of Article 7 and 9 of the ICCPR because it is arbitrary might in some
circumstances affect the lawfulness of the deportation, that is
a more difficult argument to make in the face of the existence of statutory
discretions such as those contained in s 253(8) and (9). In this case
the Commission confines itself to a submission that breaches of Article
9 of the ICCPR ought to have formed part of the considerations the Minister
was bound to take into account in exercising his discretion under s 253.
Mr Luu's detention was preventative detention
75. As noted above,
the UNHRC has also stated that detention will be arbitrary in circumstances
where the purpose of that detention is to prevent future offences or impose
punishment in respect of such future offences.
76. The Commission
has submitted above that it cannot be a purpose of s 253 to keep a person
in detention to "protect the community"; although that might
be a legitimate purpose of the power to deport itself. If this was the
purpose of the detention, then it is arbitrary and contrary to Article
77. The respondent
has indicated, in his Statement of Reasons, that the risk of the applicant
committing future offences and the risk the applicant represented to the
Australian community (particularly the applicant's victims) were matters
he took into account in refusing to exercise his discretion to release
the applicant. It is submitted that this discloses that the ongoing detention
of the applicant was in substance preventative.
Mr Luu's detention
is in breach of Article 10(2)(a) of the ICCPR
78. Nowak has argued
that the protective provisions of Article 10(2)(a) apply to all persons
79. Article 10(2)(a)
has two limbs: one relating to segregation of convicted and unconvicted
prisoners, and one relating to separate treatment for unconvicted prisoners.
At the time of ratification of the ICCPR in 1980, Australia entered the
following reservation in respect of Article 10
the principle stated in paragraph 1 of article 10 and the general principles
of the other paragraphs of that article, but makes the reservation that
these and other provisions of the Covenant are without prejudice to
laws and lawful arrangements, of the type now in force in Australia,
for the preservation of custodial discipline in penal establishments.
In relation to paragraph 2(a) the principle of segregation is accepted
as an objective to be achieved progressively. In relation to paragraphs
2(b) and 3 (second sentence) the obligation to segregate is accepted
only to the extent that such segregation is considered by the responsible
authorities to be beneficial to the juveniles or adults concerned.
On 6 November 1984,
the Government of Australia notified the Secretary-General of the United
Nations of its decision to withdraw the reservations and declarations
made upon ratification with the exception of, inter alia, the reservations
to paragraphs 2(a), 2(b) and 3 of article 10. As such the reservation
to article 10 now reads:
In relation to paragraph 2(a) the principle of segregation is accepted
as an objective to be achieved progressively. In relation to paragraphs
2(b) and 3 (second sentence) the obligation to segregate is accepted
only to the extent that such segregation is considered by the responsible
authorities to be beneficial to the juveniles or adults concerned.
80. The principle
of segregation is also provided for in the Minimum Rules, which state,
in paragraph 8:
categories of prisoners shall be kept in separate institutions or parts
of institutions taking account of their sex, age, criminal record, the
legal reason for their detention and the necessities of their treatment.
a. Men and women shall so far as possible be detained in separate institutions;
in an institution which receives both men and women the whole of the
premises allocated to women shall be entirely separate;
b. Untried prisoners shall be kept separate from convicted prisoners;
c. Persons imprisoned for debt and other civil prisoners shall be kept
separate from persons imprisoned by reason of a criminal offence;
d. Young prisoners shall be kept separate from adults
and (d) closely resemble the provisions of article 10(2)(a) and (b) of
the ICCPR. However, the Minimum Rules are, on their
face, broader than the ICCPR in relation to the segregation of prisoners,
in that they:
- set out the general
principle of segregation as a general inclusive rule (of which the sub-paragraphs
appear to be examples); and
- include sub-paragraphs
8(a) and 8(c), which find no equivalent in the ICCPR.
81. The Minimum Rules
were developed by the United Nations as a non-binding code. However, the
UNHRC appears to have elevated those standards to norms of international
treaty law, by incorporating them into its interpretation and consideration
of articles 7 and 10(1) of the ICCPR. By way of example, in the General
Comment relating to article 10, the UNHRC invited States Parties to submit
with their reports details of the extent to which they were complying
with the Minimum Rules. This clearly implies that
the Minimum Rules are relevant in considering States Parties' compliance
with article 10. The UNHRC has adopted a similar position in a number
of Concluding Comments on States Parties. By way of example, in its Concluding
Comments on the United States of America, the UNHRC stated:
detention in prisons, in particular in maximum security prisons, should
be scrutinized with a view to guaranteeing that persons deprived of
their liberty be treated with humanity and with respect for the inherent
dignity of the human person, and implementing the United Nations Standard
Minimum Rules for the Treatment of Prisoners and the Code of Conduct
for Law Enforcement Officials therein.
82. In Mukong
v Cameroon, the UNHRC referred to the Minimum
Rules in finding a breach of Article 7 of the ICCPR.
83. In Potter
v New Zealand, the UNHRC noted that the Minimum
Rules constituted valuable guidelines for the interpretation of the ICCPR.
84. In the context
of paragraph 8 of the Minimum Rules, this implies that Article 10(2)(a)
of the ICCPR should be read in a beneficial manner so as to impose a general
inclusive rule against non-segregated detention, which applies, in particular,
to the circumstances referred to in sub-paragraphs 8(a)-(d) of the Minimum
Rules. If Article 10(2)(a) requires segregation of accused and convicted
prisoners, then the requirement relating to civil prisoners (such as Mr
Luu) in sub-paragraph 8(c) of the Minimum Rules must also be included
in the spirit if not the letter of Article 10(2)(a).
85. The ICCPR came
into force in Australia in November 1980. The reservation in its altered
form has been in place for 17 years.
86. The effect of
a reservation such as that made by Australia is provided for in Article
22 of the Vienna Convention, which provides that a reservation:
the reserving State in its relations with that other party the provisions
of the treaty to which the reservation relates to the extent of
the reservation (emphasis added).
87. The reservation
to Article 10(2)(a) is limited in its terms to the principle of segregation.
It does not affect the second limb of Article 10(2)(a), being the obligation
to ensure that people in the position of the appellant are subject
to separate treatment appropriate to their status as unconvicted persons.
As is the case in domestic law, reservations to the ICCPR (being derogations
from fundamental human rights) are construed narrowly: Maleki v Italy
88. The affidavits
of Gabriel Kuek and Hieu Tan Nguyen, both affirmed 18 June 2001 (see AB
143-146), establish that:
- people detained
in Port Phillip Prison are required to wear a green overall garment,
whereas people detained in Maribyrnong Detention Centre may wear ordinary
- people detained
in Maribyrnong Detention Centre may have food brought to them by visitors,
whereas people detained in Port Phillip Prison may not;
- people detained
in Maribyrnong Detention Centre have ready access to telephone facilities
for the purposes of incoming calls, whereas people detained in Port
Phillip Prison do not;
- people detained
in Port Phillip Prison are subject to very intensive constraints on
their freedom of movement (including being locked in their cells for
10 hours every night);
- people detained
in Port Phillip Prison have only limited rights to receive visitors.
89. The Commission
submits that, on the basis of that evidence, the Court should conclude
that the appellant's ongoing detention involved a breach of the second
limb of article 10(2)(a) of the ICCPR.
90. Australia's reservation
to the first limb of Article 10(2)(a) is not an unconditional rejection
of the principle contained therein. Australia accepted, by that reservation,
that the principle of segregation is one to be achieved progressively.
Given that Australia embarked on the progressive achievement of that principle
some 20 years ago, some significant progress might be expected.
91. The notion that
Australia has committed itself to ongoing efforts to the achievement of
segregation is supported by the terms of Australia's Third Periodic Report
to the UNHRC (submitted 28 August 1998), where it was stated:
jurisdictions accept the principles and objectives set out in article
10, Australia has maintained its reservation to this article in relation
to paragraphs 2 and 3.
For these reasons
law or practice may not be fully consistent with the segregation
provisions under the second paragraph of this article. However, since
the submission of Australia's second periodic report further steps have
been taken towards the segregation envisaged.
92. The decisions
in the Cabal litigation cited by the respondent to Marshall J are
distinguishable. Cabal concerned the interpretation of the word
"prison" in the context of the Extradition Act (1998)
Cth. Gray J (in a judgment approved by the Full Court
) held that the term "prison" could not be read down in light
of Article 10, so as to render it inapplicable to Port Phillip Prison
or the Melbourne Assessment Prison. His Honour
arrived at that view because he quite correctly noted that the reservation
to Article 10 rendered Australia's obligations under that article non-absolute.
It was therefore his Honour's view that through s 53 of the Extradition
Act 1988 (Cth), the Commonwealth parliament had complied with Australia's
international obligations by providing for a regime whereby persons to
be extradited were, to the extent possible under state prison systems,
treated in the same manner as remand prisoners.
93. However, it does
not follow nor did his Honour suggest, that Australia has no relevant
obligations under the first limb of Article 10(2)(a). The obligation,
as modified by the reservation, is one of "progressive achievement".
Such an obligation might be considered to be analogous to a best endeavours
clause in a commercial contract. The Commonwealth will plainly not live
up to an obligation of that nature if its Ministers and other decision
makers do not even consider whether, in the circumstances of a particular
case, a person's custody conditions breach this article and whether it
is possible to achieve the principle of segregation.
94. That is particularly
relevant in the context of section 253 because the Minister may exercise
the power conferred by section 253(8) to direct a different form of detention
to that set out in section 5 of the Migration Act. As Gray J's
judgment in Cabal (2000) 177 ALR 306 at  makes plain the conditions
in which Mr Luu is held in Victoria (ie at Port Phillip Prison) are the
result of a deliberate policy of the Victorian Government not to pursue
segregation of remand and convicted prisoners. The Minister should have
had regard to that fact and should have considered the possibility of
alternative forms of detention. It is clear that he did not. By reason
of that approach, the Minister foreclosed even the possibility of the
Commonwealth achieving segregation in Mr Luu's case, rendering the Commonwealth
incapable of advancing towards that goal in that instance.
95. Of course in
Mr Luu's case the situation is worse than that of the applicants in the
Cabal litigation because he cannot in any sense now be considered
an "accused" person. Although a person subject to extradition
proceedings might be considered an accused person (see Wiest v DPP
23 FCR 472) the same cannot be said of a deportee. Mr Luu is simply in
administrative detention and the only statutory authorisation for the
place of his detention being Port Phillip Prison is the definition of
immigration detention in s 5 of the Act. One might wonder whether it was
even contemplated by the framers of Article 10(2)(a) that a signatory
to the ICCPR would hold persons no longer even accused of a crime in a
maximum security prison system designed to administer punishment.
96. If the Commission's
submissions in relation to breaches of any or all of the Articles of the
ICCPR are correct, then if the Minister proposed to exercise his discretion
under s 253(9) adversely to Mr Luu and therefore inconsistent with Australia's
international obligations, the principles in Teoh required the
Minister to afford Mr Luu the opportunity to be heard as to why the Minister
should not exercise his discretion in that way.
97. It is plain on
the facts that no such opportunity was given to Mr Luu.
98. This highlights
how closely aligned the principles in Teoh are with the principle
submitted in this case by the Commission to be applicable: namely that
the obligations under the ICCPR are relevant considerations in the exercise
of the statutory discretions under s 253. See the comments of Mason and
Deane JJ in Teoh at page 292 where their Honours stated:
It may also
entail, though this was not argued, a failure to apply relevant principle
in that the principle enshrined in Article 3.1 may possibly have a counterpart
in the common law as it applies to cases where the welfare of the child
is a matter relevant to the determination to be made.
99. In other words,
what underlies the decision in Teoh is that international obligations
can be a relevant consideration in the exercise of particular statutory
discretions and that is why a decision maker, being bound to take them
into account, is bound by a corresponding obligation to afford an opportunity
to be heard to the person affected by the proposal to act contrary to
100. Should it be
submitted by the Minister to be relevant, the Commission contends that
the argument that the joint Ministerial statements made after the decision
in Teoh are to be regarded as "executive indications to the
contrary" of a legitimate expectation should be, and have been rejected
on many occasions by Justices of this Court: see Department of Immigration
and Ethnic Affairs v Ram (1996) 69 FCR 431 per Hill J; Browne v
Minister for Immigration and Multicultural Affairs (1998) 566 FCA
per Wilcox J; Tien v Minister for Immigration and Multicultural Affairs
(1998) 89 FCR 80 per Goldberg J.
SECTION 206(1) AND 253(9)
101. The final substantive
submission made by the Commission is that in order to give effect to the
now well established proposition that domestic statutes should be construed
consistently with the terms of international instruments and the obligations
those instruments impose upon Australia, s 253(9) of the Act must be construed
as imposing some upper limits on the length of detention when a decision
maker is considering the question of release. The same argument applies
to the initial discretion to detain in s 253(1), although the exercise
of this discretion is not under review in this proceeding.
102. That submission,
while not expressly put by the Commission before Marshall J, is based
largely upon recent US Supreme Court and UK Court of Appeal authority,
handed down since the hearing of this matter before his Honour.
103. The Commission
first relies on the decision of the US Supreme Court in Zadvydas v
Davis (2001) 121 S.Ct.2491; 2001 U.S. LEXIS 4912. A copy of the judgment
is attached to these submissions (attachment B). The Court was determining
whether the detention of an alien after the statutory 90 day removal period
set out in United States Federal law could be unlawful in the context
of a habeas corpus application based on the Fifth Amendment of the United
States Constitution. A majority of the Court held, inter alia:
(a) There is an
implicit limitation in the domestic statute which authorises detention
beyond the 90 day removal period to a period "reasonably necessary
to bring about" the alien's removal from the United States: p 3.
(b) Despite there
being no express limit on the length of time beyond the 90 day removal
period that an alien may be detained, the statute does not permit indefinite
detention. The test is whether the goal of the detention - namely the
removal of the alien - is "no longer practically attainable":
(c) The question
the Court must ask is whether the detention in question exceeds a period
reasonably necessary to secure removal, and the Court should measure
reasonableness primarily in terms of the statute's basic purpose, namely
assuring the alien's presence at the moment of removal. Thus if removal
is not reasonably foreseeable, the Court should hold continued detention
unreasonable and no longer authorised by statute: pp 9-10.
(d) The relevant
standard is not whether "good faith efforts to effectuate...deportation
continued", nor whether the alien can show that deportation will
be "impossible". The Supreme Court held those phrases set
the standard too high, because they required an alien seeking release
to show the absence of any prospect of removal, no matter how unlikely
or unforeseeable: at p 10.
104. The Commission
relies also upon the decision of the Honourable Collins J in Saadi
and Ors v Secretary of State for the Home Department, High Court of
Justice, 7 September 2001. Copies of Saadi, at first instance and on appeal,
are also attached to these submissions (attachment C).
105. This was a case
in which four unsuccessful asylum seekers argued that their detention
in a "fast track" asylum claim processing institution called
the Oakington Reception Centre was unlawful. At first instance, the Court
held that the detention was unlawful on the basis that it was not proportionate
and therefore inconsistent with the right to liberty enshrined in Article
5 of the European Convention on Human Rights. That is, Collins
J held the detention was not required to achieve the purpose of speedy
resolution of their applications, being the only legitimate purpose for
106. In Saadi
his Lordship referred to a decision of the Privy Council in Tan K Te
Lam v Superintendent of Tair A Chau Detention Centre  AC and
also the decision of Woolf J in R v Governor of Durham Prison ex parte
Hardil Singh  1 WLR 704. At page 111 of the decision in Tan
Te Lam Lord Browne - Wilkinson giving judgment on behalf of the Privy
confers a power to detain a Vietnamese migrant "pending his removal
from Hong Kong." Their Lordships have no doubt that in conferring
such a power to interfere with individual liberty, the legislature intended
that such a power cold be exercised reasonably and that accordingly
it was implicitly so limited. The principles enunciated by Woolf J in
the Hardal Singh case  1 WE.L.R. 704 are statements of the limitations
on a statutory power of detention pending removal. In the absence of
contrary indications in the statute which confers the power to detain
"pending removal" their Lordships agree with the principles
stated by Woolf J. First, the power can only be exercised during the
period necessary, in all the circumstances of the particular case, to
effect removal. Secondly, if it becomes clear that removal is not
going to be possible within a reasonable time, further detention is
not authorised. Thirdly, the person seeking to exercise the power
of detention must take all reasonable steps within his power to ensure
the removal within a reasonable time.
restrictions are to be implied where a statute confers simply a power
to detain "pending removal" without more, it is plainly possible
for the legislature by express provision in the statute to exclude such
implied restrictions. Subject to any constitutional challenge (which
does not arise in this case) the legislature can vary or possibly exclude
the Hardial Singh principles. But in their Lordships' view the courts
should construe strictly any statutory provision purporting to allow
the deprivation of individual liberty by administrative detention and
should be slow to hold that statutory provisions authorise administrative
detention for unreasonable period or in unreasonable circumstances
107. The decision
of Collins J was overturned by the Court of Appeal on 19 October 2001:
 EWCA Civ 1512. The Court of Appeal found that detention of asylum
seekers for the "short period" of "about 7 days" was
lawful both under the Immigration Act 1971 and under the European
Convention on Human Rights especially Article 5(1)(f).
108. However in respect
of the need to place reasonable limits on any period of administrative
detention, the Court of Appeal endorsed the principles of construction
upon which the Commission seeks to rely: see ; ; ; -;
; ; . At - the Court of Appeal stated:
We started this
judgment by remarking that it was artificial to consider English domestic
law and the Human Rights Convention separately. The Human Rights Act
has made the Convention part of the constitution of the United Kingdom,
but the Convention sets out values which our laws have reflected
over centuries. The need, so far as possible, to interpret and give
effect to statutory provisions in a matter which is compatible with
Convention rights is now a mandatory discipline, but it is not a novel
that have constrained, and still constrain, the exercise of the statutory
power to detain aliens who arrive on our shores do not result from any
conscious application of Article 5 of the Convention. They result
from a recognition, that is part of our heritage, of the fundamental
importance of liberty. The deprivation of liberty with which this
appeal is concerned falls at the bottom end of the scale of interference
with that right. It is right, nonetheless, that its legitimacy should
have received strict scrutiny. Our conclusion is that it is lawful.
This appeal is, accordingly, allowed.
109. As Deane J observed
in Re Bolton; ex parte Bean, this approach,
and these principles, are no empty rhetoric. As early as 1949, the High
Court of Australia made it clear that the power to keep a deportee in
custody did not create a power to detain for an unlimited period: see
Koon Wing Lau v Calwell (1949) 80 CLR 533 at 555-556.
110. It is submitted
that there must be similar limits imposed on the power to detain under
s 253 of the Act. Such limits would also be consistent with Article 9
of the ICCPR. The Commission submits that the governing considerations
should be whether deportation in fact is going to be possible within a
reasonable time. In this context the provisions of s 206(2) are not relevant.
The delay referred to in s 206(2) goes to the validity of the order for
deportation. That is not the point the Commission seeks to make. A person
may be subject to a valid order for deportation and yet not be detained
under s 253. The power to detain conferred by s 253(1) and by s 253(8),
being discretionary, is a further reason that the provisions ought to
be subject to concepts of reasonableness. See also the terms of s 253(8)(b)
111. With respect
to the Full Court in Vo v Minister for Immigration and Multicultural
Affairs, it is not correct to state (  FCA 803 at ) that
the two criteria of the making of the deportation order and its execution
are "matters of formal record which are readily ascertainable by
all". The point is that in Mr Luu's case, the time for the execution
of the deportation order is not ascertainable at all, let alone readily.
112. It is true that
an approach based on reasonableness does involve some uncertainty, as
the Full Court in Vo also pointed out (at ). However, "reasonableness"
is a concept familiar to the law in many areas ("reasonable doubt",
"reasonable care", an "unreasonable" administrative
decision) and whilst susceptible of different applications, it is used
as a standard by Courts every day in different jurisdictions.
113. In terms of
the construction of s 253, and the continued exercise of the discretion
to detain in the face of a refusal to release under s 253(9), it is submitted
that the initial determination of whether the time a person had been detained
in custody pending deportation had become unreasonable, or indefinite,
would be one for the decision maker (here, the Minister) on the particular
facts of the case. Whether his determination was lawful would be subject
to ordinary processes of judicial review.
114. For example,
it could not be the case that a person could be held ostensibly "pending
deportation" for 50 years. Nor that a person could be held "pending
deportation" to a country who had repeatedly refused to take that
person, or to provide travel papers for that person. The difficulty is
where to draw the line. In Perez, Madgwick J suggested an approach
there is a reasonable
prospect of the deportation order being effectuated within a reasonable
[which] would, no doubt, need to be considered in all of the
circumstances, which are apt to be very variable.
115. His Honour there
was in fact speaking of the validity of the deportation order itself:
see (1999) 94 FCR 287 at 292. However, the Commission submits there is
a different approach, which the Court can properly consider in the context
of the current proceeding - namely, whether the Minister erred in law
by not construing s 253 as inherently containing some limits on the time
over which a person could be held in custody purportedly "pending
deportation": (and especially custody in a prison set up to administer
punishment, which Port Phillip plainly is).
116. Unless a decision
maker exercising the power under s 253(9) is required to construe the
detention power in s 253(1) as containing some implicit limitations as
to reasonableness, and certainty of period, then when she or he is exercising
the power it will be without turning her or his mind to whether the purpose
of the power is likely to be or capable of being achieved - that is, to
effect the deportation of a particular individual from Australia. Without
an implicit limitation of reasonableness to which a decision maker is
required to advert, there is a risk that the power will be exercised for
an improper purpose or not bona fide (see the comments of the Full Court
in Vo at ), precisely because the period of detention is otherwise
unlimited. A person is not held "pending deportation" if it
is uncertain whether they can or will ever be deported.
117. Mr Luu has been
in immigration detention under s 253 since 18 June 1997. That is more
than four years, which is longer than the head sentence (three years,
six months) imposed for the crime about which the Minister has seen fit
to issue a deportation order. Despite evidence that a MOU was likely to
be concluded at the time he made his decision, the Minister had no yardstick
at all by which to measure the length of Mr Luu's detention after 12 March
118. In this case
the Minister gave no consideration to whether Mr Luu's detention (including
the conditions of his detention) had become disproportionate, unreasonable
or indefinite. He did not construe his discretion under s 253(9) as requiring
any such consideration. Nor did he appear to construe any such limit in
s 253 generally. The Commission submits the Minister erred in law in not
construing s 253(9) in this way. The Minister did not address this consideration
at all. At most all he addressed was whether it was possible that the
MOU (as opposed to Mr Luu's detention) would be concluded within
a reasonable time. As the evidence adduced on behalf of the appellant
demonstrates, the two are not the same.
the Applicant's submissions.
119. In respect of
the Applicant's submissions dated 2 November 2001 at paragraph 9 -13,
the Commission directs the Court's attention to the following passage
of the judgment of Mason J in Peko-Wallsend at page 45:
It would be
a strange result indeed to hold that the Minister is entitled to ignore
material of which he has actual or constructive knowledge and which
may have a direct bearing on the justice of making the land grant, and
to proceed instead on the basis of material that may be incomplete,
inaccurate or misleading. In one sense the conclusion may be seen as
an application of the general principle that an administrative decision
maker is required to make his decision on the basis of material available
to him at the time the decision is made. But that principle is itself
a reflection of the fact that there may be found in the subject matter,
scope and purpose of nearly every statute conferring power to make an
administrative decision an implication that the decision is to be made
on the basis of the most current material available to the decision
120. Although it
is not strictly part of the aspect of the case upon which the Commission
addresses the Court, the Commission notes that this observation applies
to the argument before Marshall J concerning the Minister's failure to
obtain and assess any current material about Mr Luu's risk of flight
Dated: 5 November
D. S. Mortimer
Counsel for the Human Rights and Equal Opportunity Commission
For and on behalf of the Human Rights and Equal Opportunity Commission
Minister for Immigration and Ethnic Affairs v Teoh
(1995) 183 CLR
273 - referred to in these submissions as "Teoh
2. Leroux v Brown
(1852) 12 C.B. 801; The Zollverein
(1856) Swab. 96; The Annapolis
(1861) Lush. 295; Jumbunna Coal
Mine NL v Victorian Coal Miners' Association
(1908) 6 CLR 309; Zachariassen
(1917) 24 CLR 166. See also Maxwell on the Interpretation
7th Ed, 1929, at 127.
v Charming Betsy (1804) 2 Cranch 64, 118; also United States v
Fisher (1805) 2 Cranch 390 and the authorities cited in footnote 2.
Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs
(1992) 176 CLR 1 at 38 per Brennan, Deane and Dawson JJ.
v The Queen (1992) 177 CLR 292 at 306-07 per Mason CJ and McHugh J;
also Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR
298 at 304 per Gummow J.
for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287
per Mason CJ and Deane J. Generally A Simpson & G Williams, 'International
Law and Constitutional Interpretation' (2000) 11 Public Law Review
205 at 208; J Spigelman, 'Access to Justice and Human Rights Treaties'
(2000) 22 Sydney Law Review 141 at 149.
res magis valeat quam pereat: Davies and Jones v Western Australia
(1904) 2 CLR 29 at 43 per Griffith CJ; Federal Commissioner of Taxation
v Munro; British Imperial Oil Co Ltd v Federal Commissioner of
Taxation (1926) 38 CLR 153 at 180 per Isaacs J. Also Maxwell on
the Interpretation of Statutes 7th Ed, 1929, at 127.
Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs
(1992) 176 CLR 1 at 14 per Mason CJ.
paragraphs 86 and 88 of his Honour's reasons at AB 181-182.
10. cf the respondent's submissions to Marshall J in
this case at para 32.
11. Neither Mason J (as he then was) nor Deane J expressly
addressed the issue. Gibbs CJ (at 570-571) and Wilson J (at 603-604) seemed
to view the submission raised by the appellant as being whether the decision
maker was obliged to ensure that their decision conformed with
principles of international law (rather than whether the decision maker
was bound to take such matters into consideration). Their Honours, in
separate judgments, held that a decision maker was not so obliged. They
each further said that, in any event, the decision maker had conformed
with the relevant principles. Gibbs CJ was in dissent in Kioa.
12. Allars, M. "International Law and Administrative
Discretion" in B Opeskin and D Rothwell (eds) International Law
and Australian Federalism (1997) Melbourne University Press at page
13. See eg Haocher v Minister for Immigration and
Ethnic Affairs (1990) 169 CLR 648.
14. Drake v Minister for Immigration and Ethnic Affairs
(1979) 24 ALR 577; Nicak v Minister for Immigration, Local Government
and Ethnic Affairs (1988) 92 ALR 167.
15. Allars at page 265
16. UNHRC 305/88
17. UNHRC 560/93
18. See eg Weisman and Perdomo v Uruguay UNHRC
19. "Concluding Comments on New Zealand"
(1995) UN doc CCPR/C/79/Add. 47 para 14.
20. "Concluding Comments on Peru" (1996)
UN doc CCPR/C/79/Add. 67 para 18.
21. A v Australia, op cit.
22. See the passage from A v Australia extracted
at paragraph 60 above.
23. It is also instructive, in relation to the issue
of proportionality, to consider jurisprudence regarding Article 5 of the
European Convention on Human Rights (which provides "Everyone
has the right to liberty and security of person. No one shall be deprived
of his liberty save in the following cases and in accordance with a procedure
prescribed by law"). Unlike Article 9 of the ICCPR, Article 5
of the European Convention on Human Rights expressly permits detention
in certain specified circumstances (including of a person against whom
action is being taken with a view to deportation or extradition: Article
5(1)(f)). Nevertheless, the application of that exception requires a consideration
of proportionality. Most recently in Secretary of State for the Home
Department v Saadi and Ors  EWCA Civ 1512 (a copy of which decision
is annexed to these submissions and discussed in further detail below),
the UK Court of Appeal characterised the test of whether detention is
proportionate as requiring the Court to consider "whether the process
of considering an asylum application, or arranging a deportation, has
gone on too long to justify the detention of the person concerned having
regard to the conditions in which the person is detained and any special
circumstances affecting him or her": see paragraph . In that
case, the detention in question was only 7 days and was not found to be
24. See paragraphs 63-64
25. Manfred Nowak "UN Covenant on Civil and
Political Rights CCPR Commentary" (1993) NP Engel at page 190.
26. 'Ibid p.748, 749.
27. Ibid, p. 773.
28. Standard Minimum Rules for the Treatment of Prisoners,
adopted Aug. 30, 1955 by the First United Nations Congress on the Prevention
of Crime and the Treatment of Offenders, U.N. Doc. A/CONF/611, annex I,
E.S.C. res. 663C, 24 U.N. ESCOR Supp. (No. 1) at 11, UN doc. E/3048 (1957),
amended E.S.C. res. 2076, 62 U.N. ESCOR Supp. (No. 1) at 35, UN doc. E/5988
29. Article 10(2)(b) of the ICCPR provides: "Accused
juvenile persons shall be separated from adults and brought as speedily
as possible for adjudication"
30. General Comment 21 (UN doc HRI\GEN\1\Rev.1 at 33
31. UNHRC UN doc CCPR/C/79/Add/50 (1995)
32. UNHRC 458/91, see paragraphs 9.3 and 9.4.
33. UNHRC 632/1995, see paragraph 6.3
34. Third periodic reports of States Parties due
in 1991 : Australia. 22/07/99. CCPR/C/AUS/98/3
35. Cabal v Secretary Department of Justice (Victoria)
 FCA 1227
36. Cabal v Secretary Department of Justice (Victoria)
 FCA 949
37. (1987) 162 CLR 514 at 529.
updated 7 January 2002.