Commission submission - s134
Legal
IN THE HIGH COURT OF AUSTRALIA
SYDNEY OFFICE OF THE REGISTRY
In the matter of an application for writs of prohibition, certiorari, mandamus and other relief
No. S134 of 2002
BETWEEN:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
First respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
EX PARTE:
APPLICANTS S134/2002
Prosecutors
WRITTEN SUBMISSIONS MADE ON BEHALF OF THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION [1]
Introduction
1. The Human Rights and Equal Opportunity Commission (the "Commission") makes no submissions about the constitutional validity of s 474 of the Migration Act 1958 (Cth) ("the Act"), nor about the nature of this Court's jurisdiction under s 75(v) of the Constitution. Rather, these submissions are made on the basis that the principles of statutory construction which ground the dicta of Dixon J in R v Hickman; Ex Parte Fox and Clinton (1945) 70 CLR 598 ("Hickman") are applicable to the provisions of the Act, including s 474.
2. Aside from attacks on the constitutional validity of s 474 and on the continuing authority of Dixon J's dicta in Hickman (as to which the Commission also makes no submissions), this Court is asked by the Prosecutors to find that:
2.1. the statutory scheme in the Act is intended to operate by way of legally binding criteria to be applied according to procedures imposed by law in the making of visa decisions; [2] and
2.2. in respect of both the decision of the Refugee Review Tribunal (the "RRT"), and of the Minister under s 417, s 474 does not protect those decisions. [3]
3. Any interpretation of s 474 should be guided and informed by:
3.1. an overview of the many provisions in the Act which affect the fundamental human rights of those affected by decisions made pursuant to them; and
3.2. consideration of how the notion of "inviolable limitations or conditions" on the enlivening, and on the exercise, of the powers of decision makers should operate in the context of an Act that so affects rights and freedoms recognised by the common law and international law as fundamental.
4. In the absence of such considerations, the Court should not accept the invitation of the Minister - put to the Full Federal Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 (see French J at [523]) - to make a "global judgment" about the construction to be given to conditions or limitations affecting all decision making powers in the Act. The Minister has made the same substantive submission to this Court; namely, that in light of the circumstances in which s 474(1) was enacted and the statement of intention in the Second Reading Speech, s 474 must be seen as leaving no room for any inviolable limitations on any of the powers in the Act involved in the making of "privative clause decisions". [4]
Relevant Features of the Act
5. The possession of a valid visa is the method by which a non-citizen acquires and retains permission to travel to, enter or remain in Australia (see s.29), and avoids exposure to deprivation of and interference with her or his liberty by mandatory detention and subsequent removal from Australia against her or his will (see ss.13-15, 189, 196 and 198) .
6. The removal of a person from Australia, who is in fact a person to whom Art 1A of the Refugees' Convention applies and who is not otherwise excluded from the protection afforded by the Convention, will place Australia in breach of its obligations under that Convention: in particular, the non-refoulement obligation in article 33 of the Convention . [5] The prospect that people who are in fact refugees under Art 1A will be removed is increased where decision makers are free to decide questions of law for themselves, and to construe the Convention and statutory definitions of a "refugee" without curial supervision except as to bona fides.
7. The Act establishes a detailed regime which prescribes classes and subclasses of visas for which application can be made. Those classes are prescribed either by the Act itself (see ss 32-38 inclusive) or by the Migration Regulations 1994 (Cth) (the "Regulations") in reg 2.01 and in Schedule 1. There are currently [6] 176 classes of visas listed in Schedule 1: some classes have been repealed but there may still be applications being processed in respect of these classes. For each of these classes, criteria are prescribed in the respective Item in Schedule 1 which are necessary in order for the application to be valid (see s 46 of the Act and reg 2.07). Invalid applications are not to be considered: s 47(3). [7] The criteria are extremely particular: for example, Item 1222 (Temporary Student visas Class TU) requires use of different application forms, the payment of different levels of visa application fees and different methods of making the application depending upon whether the applicant is in or outside Australia, the citizenship held by the Applicant, the age of the Applicant and so forth.
8. Aside from the protection visa classes, there are other classes which have a specific humanitarian context to them. For example, s 37A creates a class called "Temporary Safe Haven" visas. The Minister has a power to cut short the period of a Temporary Safe Haven visa if (see s 37A(3)) "in the Minister's opinion, temporary safe haven in Australia is no longer necessary for the holder of the visa because of changes of a fundamental, durable and stable nature in the country concerned". On the Minister's construction of s 474, what that condition on his power now means is a matter of personal choice for the Minister, subject only to bona fides.
9. Detailed substantive criteria which an applicant must satisfy at the time of application and then at the time of a decision are set out in the Act (see for example ss 33 and 34), in the regulations (see s 31(3) and Schedule 2 of the Regulations) or in both (as in the case of protection visas - see s 36 and Schedule 2 sub-class 866 - permanent protection visas; sub-class 785 temporary protection visas). [8]
10. The criteria which are to be met may involve questions of fact, mixed questions of fact and law or questions of law. These include:
10.1. factual questions susceptible to definite proof; [9]
10.2. relatively straightforward factual assessments; [10]
10.3. assessments of whether a person possesses an attribute given a particular meaning in the Act; [11]
10.4. an assessment which relies on discretionary considerations of the decision maker, which may be related to a statutory power to be exercised only in certain circumstances to assist the decision maker in reaching her or his satisfaction; [12]
10.5. an assessment of whether a person falls within or outside a statutory definition seen as central to the person's entitlements to the particular visa;[13] or
10.6. an assessment of whether a person falls within or outside a definition which is partially determined by statute and partially determined by the application of a definition contained in an international treaty. [14]
11. The Minister, and his delegates, have a statutory duty to consider and determine a valid application for a visa: s 47(1) and (2).
12. Subject to a discretion exercisable only by the Minister personally (see s 48B), a person may only make one application for a protection visa while she or he is in the migration zone: s 48A. In other words, such applicants have one chance, and one chance only, to persuade the Minister that Australia owes them protection obligations.
13. Outside decisions to grant or refuse protection visas, [15] decisions under the Act affect the fundamental human and common law rights of applicants for those visas, as well as Australian citizens and permanent residents. In this sense, the provisions of the Act fall to be considered in the context of potential breaches of Australia's obligations, not only under the Refugees' Convention but also the legal obligations imposed on and assumed by Australia in a number of other international instruments.
14. Examples of such decisions include decisions to:
14.1. permit a person who is married to an Australian citizen to enter or remain in Australia (Spouse (Provisional) visa Schedule 1 Item 1220A; Schedule 2 subclass 309); [16]
14.2. permit a child to remain in Australia after turning 18 where the child has spent his or her "formative years" in Australia (Close Ties visa Schedule 1 Items 1115, 1119, Schedule 2 subclass 832); [17]
14.3. permit Australian citizens who have adopted a child to bring that child into Australia (Child Migrant (Class AH) visa Schedule 1, Item 1108, Schedule 2 Subclass 102; reg 1.04); [18]
14.4. permit a child who is an orphan to enter Australia to live with an Australian citizen (Child Migrant (AH) visa Schedule 1, Item 1108; Schedule 2 subclass 117 and reg. 1.03); [19]
14.5. permit an Australian citizen whose relative needs a visa to enter Australia in order to care for her or him because she or he has a sufficiently serious medical condition or impairment and no-one in Australia to care for her or him (Other Family (Migrant) visa, Schedule 1 Item 1123A, Schedule 2 subclass 116 and reg 1.15AA); [20]
14.6. detain a person and/or not to release a person on a bridging visa (ss 189, 196, ss 37, 72-76 and Schedule 2, cl 050. 051 of the Regulations); [21]
14.7. continue to detain a person who is over 75, under 18 or has a special need based on health or previous experience of torture or trauma until their protection visa application is being finally determined (see s 72, regs 2.20(5), 2.20(7), 2.20 (8) and 2.20(9); Schedule 2 cl 051.211 of the Regulations); [22]
14.8. remove a person from Australia against his or her will, and thus to return a person to the borders of another country (s 198); [23]
14.9. detain, and take a person in custody and against her or his will, to a "declared country" instead of permitting that person to make a visa application in Australia (s 198A); [24]
14.10. forcibly administer medical treatment to persons in detention; [25]
14.11. detain a person who is an unlawful non-citizen in a form of custody designed to administer punishment, such as a prison (see the definition of "immigration detention" in s 5 of the Act); [26] and
14.12. conduct a strip search of a detainee ( s 252AA). [27]
The Hickman principle
15. The Hickman principle is a rule of statutory construction, requiring the ascertainment of:
15.1. the meaning and effect of the statutory provisions in question (namely, the provision which confers the power that has been exercised and the privative clause); and
15.2. whether there is any inconsistency between those provisions. [28]
16. This process requires consideration of the relevant Act as a whole:
But if, upon the construction of the legislation as a whole, it appears that the powers conferred upon the authority are exercisable in certain cases, and definitely that they are not exercisable in other cases, and that any attempt to exercise them was intended to be ineffective, then a provision taking away prohibition will not exclude the jurisdiction of this Court under s 75(v) of the Constitution in a case of the latter description… [29]
17. The exercise being truly one of statutory construction of the legislation as a whole, and of the provisions conferring the power and limiting review for invalidity in particular, then it is a natural consequence that in any given context there may be conditions or limitations on the power which are inviolable and not capable of validation by a privative clause if they are breached. [30] This consequence requires adjudication of specific provisions, rather than a general effect on all.
18. Conditions or limitations on the power of a decision maker can occur at two stages: [31]
18.1 when the powers are enlivened, or the decision maker's jurisdiction is attracted - whichever expression is preferred; and
18.2 when the powers are exercised, the jurisdiction having been lawfully enlivened or attracted.
19. Whether breaches of inviolable conditions or limitations at both stages deprive s 474 of its protective ascendancy is the subject of differing judicial opinions in the Full Federal Court in NAAV . [32]
Construction of conditions and limitations on powers in the Act: when are they inviolable?
20. In NAAV at [500] French J stated:
The problem posed by a privative clause is one of statutory construction. That construction should have regard to the ordinary meaning of the words used in the clause and those provisions of the statute with which it has to be reconciled. The Hickman principle does not provide a narrow, one size fits all, rule of construction which has no regard to the particular context in which the task of reconciliation arises. That is evident in the varying approaches taken to the operation of such clauses in different statutory settings. The words of Sir Owen Dixon in Hickman are not to be calcified. They exhort a flexible and, indeed, ambulatory rubric for reconciling the apparently irreconcilable. To treat them otherwise is to fall into what Knox CJ, Starke and Dixon JJ in another context called:
"...the danger which attends the formulation of principles and doctrines and all reasoning a priori in matters which in the end are governed by the meaning of the language in which the Legislature has expressed its will."
- Country Roads Board v Neale Ads Pty Ltd (1930) 43 CLR 126 at 135".
21. In the context of the Act, whether a condition or limitation on a power (either at the time of its enlivenment or exercise) is inviolable should be ascertained from:
21.1. the plain meaning of the words imposing the condition or limitation. This may include considerations of whether the language is imperative or permissive and the statutory context in general, with emphasis on whether it can be said it is a purpose of the legislation that an act done in breach of the particular provision should be invalid; [33]
21.2. the nature of the interests affected, namely whether they are interests traditionally treated by both the common law and international law as most deserving of protection - life, liberty, privacy, freedom of speech, thought and expression and so forth; [34]
21.3. the general approach of the courts that Parliament will be presumed not to have legislated contrary to the rule of law [35] nor inconsistently with Australia's international obligations [36] where the subject matter of the provision involves fundamental human rights;
21.4. the presumption, well established in both Australian and English law, that an intention to remove fundamental rights and freedoms must be manifested by Parliament in language which is unmistakable and unambiguous; [37] and
21.5. the related general rule that statutory provisions are not to be interpreted as depriving superior courts of power to prevent an unauthorised assumption of jurisdiction unless the intention to do so appears clearly and unmistakably. [38] That presumption is not, contrary to the views expressed by some, [39] motivated by self interest. It is nothing more than an appropriate recognition of the role of the courts in protecting individual rights and freedoms under the rule of law. [40]
22. The well known reminders to courts to have regard to Australia's international obligations recognise that international conventions, and the development of jus cogens, illustrate and reflect agreement in the most difficult of contexts (relationships between sovereign states) about rights and freedoms which are inviolable and which all nations who acknowledge the rule of law accept must be respected. Applying the principles referred to in paragraph 21 to the values affected by the Act as set out in paragraphs 5 to 14 above, the special or transcendent status of those values [41] as manifested in the international obligations imposed upon Australia is clear.
23. The analysis set out at paragraphs 5 to 14 above demonstrates the breadth and significance of decision making under the Act. The rights of individuals, including Australian citizens and permanent residents to found a family, to live with their family unit intact, to personal and bodily privacy, and to liberty are all diminished (and indeed effectively removed if they cannot be enforced through curial supervision) by a global construction of s 474 based only on the three "Hickman provisos" cited by the Minister in his second reading speech.
24. More generally as regards statutory context, the humanitarian character of the protection obligations assumed by Australia through s 36 of the Act and their source in the text of an international treaty, is accepted as a relevant consideration in the construction of this Act. [42] This Court has recognised that limitations upon the exercise of powers in that statutory context are not easily ousted. [43]
25. It is clear from the analysis at paragraphs 5 to 14 above that Parliament has specified the conditions upon the exercise of the powers conferred by the Act and Regulations with a significant degree of precision and specificity. The fact that such detailed criteria remain an integral part of decision making under the Act suggests that Parliament did not intend the powers to be exercised other than in accordance with those criteria, properly construed. [44] If the Act, the Regulations and the Schedules to the Regulations are reduced to the status of unenforceable guidelines (subject only to bona fides), then the careful and painstakingly detailed inclusions and exclusions, upon which permission to enter and remain in Australia is founded, are rendered nugatory. For example, a person who does not have a "mutual commitment to a shared life" with an Australian citizen and who is not in a "genuine and continuing" relationship with that person [45] is not intended to be able to obtain a spouse visa to enter and reside in Australia.
Conclusion
26. In this country the enforcement of legal limits on powers conferred on the Executive by statute is committed to courts under Chapter III of the Constitution. A global approach to s 474 will authorize and sanction continual and significant interferences with the lives, liberty, privacy and human rights of thousands of people [46] on a daily basis, without much practical curial supervision.
27. This is the first time that this Court has considered the application of Hickman to legislation that affects such a wide variety of fundamental rights to such a significant degree. In those circumstances, to the extent that the approach suggested by the Commission involves rearticulating the Hickman principle to meet those needs, that is a development wholly consistent with Dixon J's rationale for developing the principle: namely, to return to the language of the statute, in the context of the whole legislation, and from this standpoint to reconcile the prima facie inconsistencies introduced by a privative clause.
DATED: 29 AUGUST 2002
Bret Walker
Debbie Mortimer
St James' Hall
Douglas Menzies Chambers
1. These submissions are filed by the Commission pursuant to orders made by Gummow J at the directions hearing held on 30 July 2002.
2. Prosecutors' written submissions paragraph 6.37.
3. Prosecutors' written submissions paragraphs 6.47-6.48; 6.49-6.51.
4. Minister's written submissions on constitutional validity paragraph 33.
5. Article 33(1) of the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, [1954] ATS 5, (entered into force for Australia 22 April 1954) as applied in accordance with the Protocol Relating to the Status of Refugees, opened for signature on 31 January 1967, [1973] ATS 37, (entered into force for Australia 13 December 1973) ("Refugees' Convention") proscribes expulsion or return ('refoulment') of a refugee to a place where his or her life or freedom would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion in. See also, article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, [1989] ATS 21, (entered into force for Australia 8 August 1989); articles 6, 7, 9(1), 10(1) of the International Covenant on Civil and Political Rights, opened for signature 16 December 1966, [1980] ATS 23, (entered into force for Australia 13 November 1980) ("ICCPR"); articles 6(1) and 37 of the Convention on the Rights of the Child, opened for signature 20 November 1989, [1991] ATS 4 , (entered into force for Australia 16 January 1991) ("CROC"). The ICCPR's proscription upon refoulement arises from the general principle that a States party will be held responsible for foreseeable breaches of the ICCPR (see United Nations Human Rights Committee ("UNHRC"), General Comment 20, "Article 7", 1992, in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev.4, 7 February 2000; T.T. v Australia, Communication No. 706/96, UN Doc CCPR/C/61/D/706/1996 also referred to as G.T. v Australia - complaint brought by Mrs G.T. on behalf of her husband T; Kindler v Canada, Communication No. 470/91, Un Doc CCPR/C/48/D/470/1991. Sarah Joseph et al, The International Covenant on Civil and Political Rights (2000) 162). As such, if a State party removes a person within its jurisdiction in circumstances such that as a result there is a real risk that his or her rights under the ICCPR (particularly the rights conferred by articles 6, 7, 9(1) or 10(1) of the ICCPR) will be violated in another jurisdiction, the State party itself may be in violation of the ICCPR (Kindler v Canada, above). The similarly worded provisions of CROC should be interpreted in the same manner. The prohibition of refoulment is widely accepted as a rule of customary international law, that is, as binding on all States independent of specific assent: Guy Goodwin-Gill, The Refugee in International Law (2nd ed 1996) 167. The prohibition on torture in article 7 of the ICCPR (see also article 5 of CAT and article 37(a) of CROC) is widely accepted as a rule of jus cogens, a peremptory norm of general international law, that is, a norm "accepted and recognised by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of international law having the same character": Vienna Convention on the Law of Treaties 1969, opened for signature 23 May 1969, [1974] ATS 2, (entered into force 27 January 1980), art 53; Theodor Meron, Human Rights Law-Making in the United Nations (1986) 109-110; Oscar Schachter, International Law in Theory and Practice (1991) 85.
6. These figures are taken from the classes as listed in the current version of Schedule 1, reprinted in Butterworths' Australian Immigration Law, Butterworths Australia 2001.
7. Although by s 47(4) a decision that an application is not valid and cannot be considered is said not to be a decision to refuse a visa, it is nevertheless purportedly covered by the definition of "privative clause decision" in s 474(3).
8. The importance of these criteria is plain from the terms of 498(1) of the Act: The powers conferred by or under this Act shall be exercised in accordance with any applicable regulations under this Act.
9. Such as whether a child who has been adopted by an Australian citizen (eg under the Adoption Convention) is under 18 years of age: see Schedule 2, Subclass 102 cl102.211(4)(a).
10. Such as whether a person is an "aged dependent relative" within the meaning of that phrase in reg 1.03 and so will qualify for a visa to enter Australia to be cared for by an Australian citizen on whom the person claims to be dependent: see Schedule 2, Subclass 114, cl114.211.
11. For example, whether a person was "immigration cleared" (as defined in s 172(1) of the Act) determines whether she or he can obtain a permanent or only a temporary three year protection visa - see Schedule 2, cl866.212(1)(a). Whether a person is an "offshore entry person" determines if that person can apply for a protection visa in Australia at all: see s 46A and s 5.
12. For example, whether an applicant for a bridging visa releasing him or her temporarily from immigration detention will or will not comply with conditions to be attached to that visa; and whether the imposition of a security (ie a bond) pursuant to s 269 of the Act will assist in securing compliance with those conditions: see Schedule 2, cl050.223 and 050.224.
13. Such as whether a person is or is not an "orphan relative", or a "spouse" as in the Regulations: see reg 1.14 and reg 1.15A; or whether a person has suffered "persecution", in part now defined by the Act in s 91R.
14. See s 36 in its present form, cf the form prior to amendments in 2001.
15. As to potential breaches of international obligations in this context, see paragraph 5, above.
16. See, eg, the right to protection of the family unit in article 17(1) of the ICCPR: "No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation" and article 23(1) of the ICCPR: "The family is the natural and fundamental group unit of society and is entitled to protection by society and the State." See also article 12 and 16(3) of the Universal Declaration of Human Rights adopted and proclaimed by GA Res 217A (III), UN Doc A/Res/217A (1948) (UDHR). Many international law scholars suggest that the UDHR has become part of customary international law and is binding on all States independent of specific assent - see, eg, Thomas Buergenthal, International Human Rights in a Nutshell, (1988); Louis Sohn, 'The New International Law: Protection of the Rights of Individuals Rather Than States' (1982) 32(1) American University Law Review 16.
17. See, eg, the best interests of the child principle in article 3 of the CROC: "In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration." See also article 16 of the CROC, articles 9 and 17 of the ICCPR and articles 12 and 16(3) of the UDHR.
18. See, eg, article 21 of the CROC: "States parties that … permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration …" See also article 3 of the CROC reproduced in note 17 and articles 17 and 23 of the ICCPR reproduced in note 16.
19. See, eg, article 3 of the CROC reproduced in note 17, article 23 of the ICCPR reproduced in note 16 and article 16(3) of the UDHR. The UNHRC has indicated that the term "family" should be given a broad interpretation (see UNHRC, General Comments 16, "Article 17", 1988, in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev.4, 7 February 2000; UNHRC, General Comments 19, "Article 23", 1990, in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev.4, 7 February 2000). While this depends in part upon conceptions of "family" within the State party in question, this does not mean that the State party has exclusive jurisdiction over the definition. For example, a State party cannot limit the definition by applying structures or values which breach international human rights standards which include proscriptions on discrimination on the ground of religion.
20. See, eg, articles 17 and 23 of the ICCPR reproduced in note 16 and article 16(3) of the UDHR. See comments in relation to the broad interpretation to be given to the term "family" in note 19.
21. See eg, the right to liberty in article 9 of the ICCPR: "Everyone has the right to liberty and security of the person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds as and in accordance with such procedure as are established by law. See also articles 37(b) and (c) of the CROC and articles 3 and 9 of the UDHR. See generally the discussion of article 9 by Gray and Lee JJ in Goldie v Commonwealth, (2002) 188 CLR 708. See also Van Alphen v The Netherlands, Communication No. 305/88, UN Doc CCPR/C/39/D/305/1988 and A v Australia, Communication No. 560/93, Un Doc CCPR/C/59/D/560/1993 where the UNHRC has noted that "arbitrariness' is not to be equated with 'against the law', but must be interpreted more broadly to include elements of inappropriateness, injustice and lack of predictability". Note that the guarantee of liberty in article 37(b) of CROC is more stringent than that in article 9 of the ICCPR, in that it requires that detention shall be used "only as a measure of last resort" and "for the shortest appropriate period of time".
22. See note 17 and note 21. See also article 39 of the CROC: "States Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, self-respect and dignity of the child".
23. See, eg, the prohibition on expulsion in article 13 of the ICCPR: "An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority". See also UNHRC, General Comment 15, "The position of aliens under the Covenant", 1986, in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev.4, 7 February 2000 and Hammel v Madagascar, Communication No. 155/83, UN Doc CCPR/C/29/D/155/1983.
24. See note 21 and note 23. See also article 9(4) of the ICCPR: "Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful"; article 37(d) of the CROC: "Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action."
25. Reg 5.35. As to relevant international legal obligations, see, eg, the right to privacy in article 17(1) of the ICCPR reproduced in note 16 above. See also article 10(1) of the ICCPR: "All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person"; article 16 of the CROC and article 12 of the UDHR.
26. See note 21 and article 10(1) of the ICCPR reproduced in note 25.
27. Presently, a decision to conduct a strip search is not a "privative clause decision": see s 474(5) and Reg 5.35AA, but this could of course be changed at any time, subject to disallowance. As to relevant international legal obligations, see note 25. Where the person is a child, see also article 3 of the CROC reproduced at note 17 and article 39 of the CROC reproduced in note 22.
28. Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 302 at 631 per Gaudron and Gummow JJ. Brennan CJ, Dawson and Toohey JJ expressed no view of the privative clause under consideration in this case. See also O'Toole v Charles David Pty Ltd (1991) 171 CLR 232 at 248-9 per Mason CJ, at 273-4 per Brennan J, at 304 per Dawson J (Toohey J agreeing); Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 at 180 per Mason CJ, at 194-195 per Brennan J, at 222 per Dawson J, at 233 per Toohey J; R v Coldham,;Ex Parte The Australian Workers 'Union (1982) 153 CLR 415 at 418 per Mason CJ and Brennan J, at 423 per Murphy J; NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 at [11] per Black CJ, at [332] per Wilcox J, at [381] per French J, at [615] per von Doussa J.
29. R v Commonwealth Rent Controller; Ex Parte National Mutual Life Association of Australasia Ltd (1947) 75 CLR 361 at 369 per Latham CJ and Dixon J, Rich and Williams JJ agreeing. See also R v Murray; Ex Parte Proctor (1949) 77 CLR 387 at 399 per Dixon J; Richard Walter at 195 per Brennan; J; NAAV at [486] per French J.
30. Hickman at 618 per Dixon J; R v Metal Trades Employers Association; Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208 at 248 per Dixon J; Coldham at 419 per Mason CJ and Brennan J; O'Toole at 274 per Brennan J; Darling Casino at 633-4 per Gaudron and Gummow JJ .
31. Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611at 646 [115], 650-654 [127]-[137] per Gummow J; Attorney-General for NSW v Quin (1990) 170 CLR 1 at 36-37 per Brennan J.
32. Compare von Doussa J at [624]-[625],[630],[639] and French J at [499],[524]. Cf Black CJ at [30]-[31] whose judgment poses the question in different language, but who also appears to suggest that there may be inviolable limitations or conditions upon the exercise of a power.
33. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 390-391. See for example, the analysis by French J in NAAV at [590]-[592] in respect of the legislative scheme for cancellation of visas under ss 128, 129 and 131 of the Act.
34. Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 75 ALJR 889 at [186] per Kirby J; Suresh v Canada 2002 SCR 1 at [118]. Courts in the UK and the European Court of Human Rights have emphasised this feature: Vilvarajah v United Kingdom (1991) 14 EHRR 248 at 290. The approach in Vilvarajah has been followed in the recent cases of Smith and Grady v United Kingdom (1999) 29 EHRR 493 and Hilal v United Kingdom (2001) 33 EHRR 2. See also Chahal v United Kingdom (1996) 23 EHRR 413 at [151]-[152]; R v Secretary of State for the Home Department; ex parte Launder [1997] 3 All ER 961.
35. R v Home Secretary of State for the Home Department; ex Parte Pierson [1998] AC 539 at 589, 591 per Lord Steyn; Secretary of State, Ex Parte Simms [2000] 2 AC 115 at 130 per Lord Steyn and at 131 per Lord Hoffman.
36. Chu Kheng Lim v Minster for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 38 per Brennan, Deane and Dawson JJ.; Dietrich v The Queen (1992) 177 CLR 292 at 306-07 per Mason CJ and McHugh J; Minister for Foreign Affairs and Trade v Magno (1992) 112 ALR 529 at 534 per Gummow J; Minister for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273 at 289; Kartinyeri v The Commonwealth (1998) 195 CLR 337 at [97] per Gummow and Hayne JJ; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 75 ALJR 1105 at paras [142]-[144] (Kirby J) .
37. Potter v Minahan (1908) 7 CLR 277; Arthur v Bokenham 11 Mod, 150 and Harbert's Case 3 Rep 12a at 13b. See also Coco v R (1994) 179 CLR 427 at 437 per Mason CJ, Brennan, Gaudron and McHugh JJ; Re Bolton; Ex Parte Beane (1987) 162 CLR 514 at 523 per Brennan J and Bropho v Western Australia (1990) 171 CLR 1 at 18.
38. Magrath v Goldbrough Mort & Co Limited (1932) 47 CLR 121 at 134 per Dixon J. See also Public Service Association of South Australia v Federated Clerks' Union (1991) 173 CLR 132 at 160 per Dawson and Gaudron JJ.
39. See eg Aronson and Dyer "Judicial Review of Administrative Action" LBC (2000) at 675
40. R v Toohey; Ex Parte Northern Land Council (1981) 151 CLR 170 at 222 per Mason CJ.
41. Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 687-88 per Gleeson CJ and 699, 709-710 per Kirby P; Teoh, op cit, at 304-305 per Gaudron J; Dietrich v R (1992) 177 CLR 292 at 321 per Brennan J and 337 per Deane J; R v Swaffield; Pavic v R (1998) 192 CLR 159 at 213-4 [135] per Kirby J; J v Lieshke (1987) 162 CLR 447 at 463-4 per Deane J and Chow Hung Ching v R (1948) 77 CLR 449 at 472 per Latham CJ and 477 per Dixon J. See also, as examples of relevant comparative international jurisprudence of high authority Suresh v Canada (Minister of Citizenship and Immigration) 2002 SCC 1 at [46] and [60] and R v Secretary of State for the Home Department; Ex Parte Simms [2000] 2 AC 115 at 125-6 per Lord Steyn and 131-2 per Lord Hoffman.
42. See Miah, op cit, at [128] per McHugh J and at [186] per Kirby J. Recent amendments to the Act have introduced statutory limitations to aspects of the traditional convention definitions: see ss 91A-91U. Nevertheless, ss.36 and 65 of the Act still constitute a statutory acceptance by Australia of obligations, in the circumstances identified in the Refugees Convention, to protect persons who qualify as refugees. The Refugees' Convention, like the ICCPR, gives practical effect to the 1948 UDHR, and particular to Article 14(1).
43. Miah, op cit, at [126] per McHugh J, [181] per Kirby J.
44. "The grant of a limited and qualified power in derogation of a private right necessarily implies an intention that the power shall not be exercisable free of the qualifications and limitations imposed": Magrath v Goldbrough Mort & Co Limited (1932) 47 CLR 121 at 134 per Dixon J.
45. Being the key aspects of the definition of "spouse" and "married relationship" in reg 1.15A(1A) in the Regulations.
46. By way of example, as at 12 April 2002, there were 1,618 people in immigration detention. Of those, 184 were minors. During the period 1 July 2001-12 April 2002, 11,805 people were in, or were taken into, immigration detention. Of those, 1,871 were minors (DIMIA submission to the Commission's National Inquiry into Children in Immigration Detention available on DIMIA's website at http://www.dima.gov.au/illegals/hreoc/index.htm 29-30). During the 2000-2001 year, 13,076 applications were lodged for Protection Visas. During that same period, 13,733 visas were granted under the "Humanitarian Programme" (excluding safe haven), comprising 7,992 "offshore" Permanent Protection Visas, 1,125 "onshore" Permanent Protection Visas, 4,452 Temporary Protection Visas and 164 visas of Temporary Humanitarian Concern. The "Family Stream" for the 2000-2001 period included 28,880 "partner category" visas , 2,124 "child category" visas and 1,066 "parent category" visas ("Population Flows: Immigration Aspects 2001 Edition", available on DIMIA's website at http://www.immi.gov.au/statistics/publications/popflows2001/popflows200… in section entitled "Migration and Humanitarian Programs", 22-23 and 26-28)
Last updated 2 September 2002.