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
No. S134 of 2002
MINISTER FOR IMMIGRATION
AND MULTICULTURAL AND INDIGENOUS AFFAIRS
REFUGEE REVIEW TRIBUNAL
WRITTEN SUBMISSIONS MADE ON
BEHALF OF THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION 
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
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;  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. 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
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  FCAFC
228 (see French J at ) - 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". 
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 .  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
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  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).  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). 
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; 
straightforward factual assessments; 
of whether a person possesses an attribute given a particular meaning
in the Act; 
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;
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;
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. 
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,  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); 
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); 
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); 
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); 
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); 
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); 
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);
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); 
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); 
administer medical treatment to persons in detention; 
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);  and
a strip search of a detainee ( s 252AA). 
The Hickman principle
15. The Hickman
principle is a rule of statutory construction, requiring the ascertainment
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);
15.2. whether there
is any inconsistency between those provisions. 
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
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.
 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:
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
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 . 
Construction of conditions
and limitations on powers in the Act: when are they inviolable?
20. In NAAV
at  French J stated:
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:
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
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
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; 
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; 
21.3. the general
approach of the courts that Parliament will be presumed not to have
legislated contrary to the rule of law  nor inconsistently
with Australia's international obligations  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; 
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.
 That presumption is not, contrary to the views
expressed by some,  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
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 
as manifested in the international obligations imposed upon Australia
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.  This Court has
recognised that limitations upon the exercise of powers in that statutory
context are not easily ousted. 
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.
 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  is not intended to
be able to obtain a spouse visa to enter and reside in Australia.
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  on a daily basis, without much practical
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
DATED: 29 AUGUST 2002
St James' Hall
Douglas Menzies Chambers
These submissions are filed by the Commission pursuant to orders made
by Gummow J at the directions hearing held on 30 July 2002.
Prosecutors'written submissions paragraph 6.37.
Prosecutors'written submissions paragraphs 6.47-6.48; 6.49-6.51.
Minister's written submissions on constitutional validity paragraph 33.
33(1) of the Convention Relating to the Status of Refugees, opened
for signature 28 July 1951,  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,
 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,  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,  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, 
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,  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
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.
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).
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.
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).
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.
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.
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.
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.
See s 36 in its present form, cf the form prior to amendments in 2001.
As to potential breaches of international obligations in this context,
see paragraph 5, above.
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.
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.
See, eg, article 21 of the CROC: "States parties that
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.
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
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.
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".
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".
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.
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."
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.
See note 21 and article 10(1) of the ICCPR reproduced in note 25.
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.
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  FCAFC 228 at  per Black CJ, at 
per Wilcox J, at  per French J, at  per von Doussa J.
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  per French J.
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 .
Minister for Immigration and Multicultural Affairs v Eshetu (1999)
197 CLR 611at 646 , 650-654 - per Gummow J; Attorney-General
for NSW v Quin (1990) 170 CLR 1 at 36-37 per Brennan J.
Compare von Doussa J at -,, and French J at ,.
Cf Black CJ at - 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.
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 - in respect of the legislative scheme for cancellation of
visas under ss 128, 129 and 131 of the Act.
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah
(2001) 75 ALJR 889 at  per Kirby J; Suresh v Canada 2002 SCR
1 at . 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 -; R v Secretary of State
for the Home Department; ex parte Launder  3 All ER 961.
R v Home Secretary of State for the Home Department; ex Parte Pierson
 AC 539 at 589, 591 per Lord Steyn; Secretary of State, Ex Parte
Simms  2 AC 115 at 130 per Lord Steyn and at 131 per Lord Hoffman.
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  per Gummow and Hayne JJ; Minister for Immigration and Multicultural
Affairs v Yusuf (2001) 75 ALJR 1105 at paras - (Kirby J)
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.
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
See eg Aronson and Dyer "Judicial Review of Administrative Action"
LBC (2000) at 675
R v Toohey; Ex Parte Northern Land Council (1981) 151 CLR 170 at
222 per Mason CJ.
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  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 
and  and R v Secretary of State for the Home Department; Ex Parte
Simms  2 AC 115 at 125-6 per Lord Steyn and 131-2 per Lord Hoffman.
See Miah, op cit, at  per McHugh J and at  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).
Miah, op cit, at  per McHugh J,  per Kirby J.
"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
Being the key aspects of the definition of "spouse" and "married
relationship" in reg 1.15A(1A) in the Regulations.
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
in section entitled "Migration and Humanitarian Programs", 22-23
updated 2 September 2002.