IN THE HIGH COURT OF AUSTRALIA
ADELAIDE OFFICE OF THE REGISTRY
253 of 2003
JULIE HELEN KEENAN
MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS
A 254 of 2003
FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
ABBAS MOHAMMAD HASAN AL KHAFAJI
PARTE: ATTORNEY-GENERAL (CTH)
255 of 2003
SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS
THE ATTORNEY-GENERAL OF THE COMMONWEALTH
AUSTRALASIAN CORRECTIONAL MANAGEMENT PTY LTD
CORRECTIONAL SERVICES PTY LTD
SUBMISSIONS OF THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION, INTERVENING
1 The Human Rights
and Equal Opportunity Commission (“the Commission”) files
these supplementary submissions pursuant to the leave given by the Court
at the commencement of the hearing of these matters.
Construction of s 196 by reference
to international obligations
2 In all three present
proceedings the proper construction of s.196 of the Migration Act
1958 (Cth) (“the Act”) is in issue, in particular whether,
inter alia, that section authorises detention of indefinite duration,
and whether the harshness of conditions can vitiate the lawfulness of
that detention. Australia’s international obligations are relevant
to this issue.  The Commonwealth accepts the principle
that legislation should be construed in line with international treaties
and conventions, but subject to the provisos that it only applies in cases
of ambiguity, and does not require consideration of decisions of bodies
such as the United Nations Human Rights Committee (“UNHRC”).
3 The latter proviso
should be rejected. Australian courts have accepted that guidance as to
the meaning and effect of international conventions may be gathered from
the writings and decisions of learned authors, foreign courts, and expert
international bodies.  Members of this Court have
stated that Australia’s accession to the Optional Protocol and the
“opening up of international remedies to individuals” pursuant
to that instrument brought to bear on the common law the “powerful
influence of the [ICCPR] and the international standards it imports”.
 The UNHRC’s decisions have also been cited
in considering the application of the principle of construction referred
to in paragraph 2.  Similar approaches have been adopted
by other domestic Courts of high authority.  The UNHRC
is an international body of jurists, which hands down reasoned decisions,
referring to earlier precedents and manifesting consistent and principled
decision-making.  As such, the decisions of such a
body are an appropriate source of guidance as to the meaning and effect
of the ICCPR.
4 The approach of
Australian domestic Courts reflects the UNHRC’s position in international
law. The Committee was created by and provided for in the ICCPR itself
(Art.s 28-45). Article 1 of the First Optional Protocol to the ICCPR,
which Australia has ratified,  provides that State
parties recognise the competence of the UNHRC in relation to individual
complaints.  The Parliament is presumed to have taken
account of applicable international law when enacting legislation. 
Where a covenant provides a method for its own interpretation, then a
party to those provisions may be taken to have accepted the significance
and relevance of the decisions of that body in assisting to expose the
meaning and effect of the international obligations. Four UNHRC decisions
have now considered detention under s 196 of the Act and each has held
aspects of that detention to be arbitrary contrary to Art 9(1) of the
ICCPR. This Court should accept those pronouncements as persuasive of
the proposition that, at the least, indefinite and prolonged detention
is arbitrary and in breach of Art 9(1) unless tied to some appropriate
justification particular to the detainee’s case. 
Sections 196 and 189 should be read, so far as possible, not to authorise
such indefinite detention.
5 As to the Commonwealth’s
first proviso (the requirement for ambiguity), all principles of construction
apply only to the extent that provisions in question are capable of two
or more constructions. Here, the issue is whether the Parliament’s
provision of powers and duties in ss.196 and 189 of the Act should be
construed as subject to reasonable limitations, or whether the word “until”
precludes such a construction. There is sufficient ambiguity for the presumptions
to be relevant. It is commonplace to regard general and unqualified words
as impliedly subject to limitations of reasonableness. For example:
(a) Where an exercise
of power depends on the opinion of a decision-maker, such opinion is
taken to be impliedly subject to a requirement of reasonableness; 
(b) As noted in
the Commission’s primary submissions (para 18), the minority view
in Lim involved the reading down of general words so as not
to apply to particular distinctive instances (ie illegal detention);
(c) The Commonwealth
accepted in oral submissions that the broad requirements of s.36(3)
of the Act would be subject to such limitations; 
(d) The duty of
the Minister to consider and, if the criteria are met, to grant a visa,
set out in s.65(1) of the Act, must be subject to a requirement of acting
within a reasonable time. This point is material to the Al Kateb/Al
Khafaji cases for if this were not so, the Minister could hold
people in indefinite detention, postponing the determination of protection
visa applications from certain countries until the Executive considered
processing should recommence.
The constitutional limitations
6 The purpose of
excluding aliens from entering the Australian community cannot be a sufficient
justification for detention of the length and nature alleged in these
cases. First, it is not consistent with the limited exceptions recognised
in the joint judgment in Lim.  Intrusions
into the Ch III guarantee of liberty should jealously be constrained.
7 Secondly, and
in any case, it may be noted that the exceptions identified in Lim (bail,
mental illness, infectious disease, immigration assessment/removal), and
the further possible exception dealt with in Kruger v Commonwealth
(ie welfare and protection of infants),  are all
directed to individual needs, characteristics and/or processes. In contrast,
the present purported exception – at least as it might apply in
relation to the Act as currently drafted – relates to detention
imposed because of certain conduct, namely, entry without a visa
that is in effect. Section 42 of the Act provides, with certain immaterial
exceptions, that “a non-citizen must not travel to Australia without
a visa that is in effect”. Usually such a provision would be followed
by words to the effect of “Penalty: XX years/ YY penalty units”.
Here, however, there is no such penalty but rather a note which states
“Section 189 provides that an unlawful non-citizen in the migration
zone must be detained”. Regardless of the form, the substance is
clear: engaging in the conduct of entry without a visa that is in effect
will lead to detention. The imposition of punitive measures (and in an
objective sense detention is self-evidently punitive) because of certain
conduct is the very hallmark of the criminal process.
8 Thirdly, the United
States position does not aid the Commonwealth’s argument. True,
an ongoing power of exclusion/detention has been held to apply to aliens
stopped at the border and made the subject of an “exclusion determination”.
Such persons are, even if then permitted physically to enter the United
States on a form of “parole”, deemed never to have entered
(the “entry fiction” doctrine).  An
alien so excluded has been held to be unprotected by the Due Process Clause.
This doctrine is not apposite here:
was a 5-4 decision of the Supreme Court, with powerful dissents.
The decision was handed down 50 years ago. Significant doubts have been
expressed about the indefinite detention of excludable aliens in the
United States.  This has recently led some American
Courts to hold that excludable aliens are protected by the
Due Process Clause.  The majority in Zadvydas
noted, but did not need to consider, arguments that subsequent legal
developments have undermined Mezei’s legal authority.
 Justice Scalia asserted the majority decision
itself was inconsistent with Mezei. 
(b) There is no
evidence that Messrs Al Khafaji, Al-Kateb or Behrooz were ever the subject
of an exercise or purported exercise of the power to exclude. They have
simply entered Australia without authorisation. 
Indeed, the very definition of “unlawful non-citizen” involves
already being in the migration zone (being a zone within Australia
borders). In the American case law such persons may rely on the Due
Process Clause. 
(c) In any case,
Australian constitutional law should not proceed by way of legal fiction,
particularly when the Ch III guarantee of liberty is at issue. The three
individuals have been held in detention within Australia, detention
to which the Commonwealth has accepted other Australian law applies
(eg law of torts, criminal law). There can be no question that Ch III
requirements do apply to all subject to the exercise of power within
Australia, even if some of the permissible exceptions to the Lim
immunity are directed to certain types of aliens. 
9 Fourthly, even
if exclusion is accepted as a legitimate justification, that does not
end the analysis. Such a purpose could not justify detention in punitive
conditions (eg involving torture, abuse or hard labour). Indefinite and
extended detention, perhaps for years or decades, could not indefinitely
retain the character of detention-for-exclusion conformably with the constitutional
10 The Commonwealth
submits that a legitimate purpose alone is sufficient to authorise indefinite
detention, and regardless of conditions.  As Lim
and Kruger indicate, the immunity from non-judicial detention
will permit some limited infringement (as for all constitutional guarantees).
But such tolerated interference does not extend to wholly undermining
the significance of the immunity. That would be the effect if any detention
measure, no matter how punitive or extreme, was permissible so long as
capable of being linked to a legitimate purpose. As Lim indicates,
a measure made pursuant to an exception must be reasonably necessary to
achieve that purpose. Application of that reasonableness test can usefully
be guided by the concept of proportionality. But whether that notion,
or “reasonable regulation”, or “reasonably appropriate
and adapted”, or “substance over form”, is adopted as
the preferable touchstone, the core principle is the same: an infringement
is only permitted insofar as it is not so significant as to lose the character
of a tolerable incidental interference.
11 The Commonwealth
provided no reasons why the protections of Ch III should be capable of
being circumvented in this way, in contradistinction to the other constitutional
guarantees for which the Court will look to issues of substance over form,
and to effects as well as purpose.  It would be
surprising if application of say the economic guarantee of free trade
should scrupulously look to practical effects, 
whilst a guarantee of liberty can more easily be sidestepped.
12 A question was
raised as to how the immunity is derived from Ch III. As this Court has
stated, the purpose of the separation of judicial power is to serve as
a guarantee of liberty.  Freedom from non-judicial
punishment – the only “right” at issue here, if such
a label must be imposed (for there is no right of the asylum-seekers in
these cases to reside in Australia) – is a corollary of that guarantee.
13 Both the purposes
of the legislature and the executive may be relevant in characterising
the validity of detention. The permissible forms of immigration detention
discussed in Lim were said to be an incident of executive
power.  Constitutional guarantees and immunities
speak both to legislative and executive action. 
It could not be doubted, analogously, that if a general administrative
discretion were exercised in some particular instance in a discriminatory
and protectionist way, that executive action would be taken to breach
14 A related question
arose as to whether the purposes of the legislation were to be found only
in s.4 of the Act. The purposes expressed in objects sections tend to
be general. Courts would not refer only to an objects section in considering
purposive construction of a particular section or measure. There is no
reason the constitutional immunity should be any more constrained. That
is especially so as such objects clauses are frequently tendentious and
15 Distinct issues
arise in relation to the construction and effect of s.197A of the Act.
Constitutional limitations on conditions of immigration detention can
be recognised even if the claimed defence to that section is rejected.
The Commission makes no submissions on that claimed defence.
D S Mortimer
SC J K Kirk
for Human Rights and Equal Opportunity Commission
Douglas Menzies Chambers
11th floor Selborne Chambers
ph (03) 9225 7170 ph (02) 9223 9477
fax (03) 9225 7293 fax (02) 9232 7626
See HREOC’s primary submissions paras 8 -30.
See transcript 13 November 2003 at page156, paras 6790-6820.
Chan v Minister for Immigration and Ethnic Affairs (1989) 169
CLR 379 at 392 per Mason CJ, 396-7 and 399-400 per Dawson J, 405 per Toohey
J, 416 per Gaudron J, 430 per McHugh J; Somaghi v Minister for Immigration,
Local Government and Ethnic Affairs (1991) 31 FCR 100 at 117 per
Gummow J; Commonwealth v Hamilton (2000) 108 FCR 378 at 388 per
Katz J; Commonwealth v Bradley (1999) 95 FCR 218 at 237 per Black
CJ. Note also Fothergill v Monarch Airlines Ltd  AC 251
at 294-5 per Lord Scarman.
Mabo v Queensland (No 2) (1992) 175 CLR 1 at 42 per Brennan J
(with whom Mason CJ and McHugh agreed).
See most recently MIMIA v Al Masri (2003) 197 ALR at 275 at .
See also Austin v Commonwealth (2003) 77 ALJR 491 at footnote
335 which appears in para 255 per Kirby J; Re Minister for Immigration
and Multicultural Affairs and Anor; ex parte Epeabaka (2001) 206
CLR 128 at 152-153 per Kirby J.
See eg Suresh v Canada (Minister of Citizenship and Immigration)
 1 SCR 3, 2002 SCC 1 at - and at ; Nicholls v Registrar
Court of Appeal  2 NZLR 385 at 399-404 per Eichelbaum CJ with
whom Smellie J agreed at 461 (cited in footnote 40 of HREOC’s primary
submissions); Ying v. Governor in Council and Others (Hong Kong)
, Unreported, UKPC 36 (27 June 1997) at - and the decision
of the Hong Kong Court of Appeal cited in footnote 30 of Mr Al Khafaji’s
See eg cases referred to in fn 11 below. Note further Tangiora v Wellington
District Legal Services Committee (New Zealand)  1 NZLR 17;
 1 WLR 240 where the Privy Council said: “It is true that
[the Human Rights Committee’s] views are not binding on the State
party concerned, which is free to criticise them and may refuse to implement
them. Nevertheless, as Professor Tomuschat has observed, a State party
may find it hard to reject such findings when they are based on orderly
proceedings during which the State party has had a proper opportunity
to present its case. The views of the Human Rights Committee acquire authority
from the standing of its members and their judicial qualities of impartiality,
objectivity and restraint. Moreover, there is much force in [the view]
that its functions are adjudicative… when [the Committee] reaches
a final view that a State party is in breach of it obligations under the
Covenant, it makes a definitive and final ruling which is determinative
of an issue that has been referred to it” (at ).
Opened for signature 16 December 1966, 999 United Nations, Treaty
Series 302 (entered into force 23 March 1976, acceded to by Australia
25 December 1991).
A copy of the First Optional Protocol is Annexure 1 to these submissions.
See cases referred to at footnote 23 of the Commission’s primary
submissions. The present form of s.196 was introduced as s.54ZD by the
Migration Reform Act 1992 (Cth), parts of which commenced on
1 November 2003 and other parts (including s.54W (now s.189) and s.54ZD)
came into operation on 1 September 1994. Australia acceded to the First
Optional Protocol on 25 December 1991.
A v Australia at paras 9.2-9.4; C v Australia at para
8.2; Baban v Australia at para 7.2 (full references in Commission’s
primary submissions at footnotes 26-7). See also Bakhtiyari v Australia
(UNHRC Communication No. 1069/2002), at para 9.2-9.3, handed down on 29
October 2003, a copy of which is Annexure 2 to these submissions.
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant
S20/2002 (2003) 77 ALJR 1165 at  per McHugh & Gummow JJ.
See transcript 12 November 2003 at page 42.
(1992) 176 CLR 1 at 28, 32 per Brennan, Deane and Dawson JJ.
(1997) 190 CLR 1 at 84-5 per Toohey J, 162 per Gummow J.
See Shaughnessy v United States; ex rel Mezei, 345 US 206 (1953).
The label “entry fiction” has been used in subsequent cases,
eg Lin Guo v United States Immigration and Naturalization Service,
298 F.3rd 832 at 837 (2002).
See the dissenting judgments of Justices Black, Douglas and Jackson in
Mezei and the dissenting judgment of Justices Marshall and Brennan in
Jean v Nelson, 472 US 846 (1985).
Rosales-Garcia v Holland 322 F.3d 386 (6th Cir. en banc 2003)
at 408-416. Cf Benitez v Wallis 337 F.3d 1289 at 1298 (11th Cir. 2003).
Zadvydas v Davis, 533 US 678 (2001), 694.
Ibid, 704-5; see also Kennedy J at 710. Note further Edward Bates Cole,
“What Difference does it Make if You are Deportable or Excludable?”
(2003) 28 North Carolina Journal of International Law and Commercial
See Appeal Books in Al-Kateb at page 9, para 5; Al Khafaji
at page 4, para 2; Behrooz at page 101, para 13.
See Mezei at 212 and Zadvydas v Davis 533 US 678 (2001)
at 693, 720-1.
See Commission’s primary submissions, para 34.
See transcript 13 November 2003 at pages 164-167, paras 7160-7290 and
12 November 2003 at pages 16-17, pars 590-610.
See Commission’s primary submissions, para 40.
Cole v Whitfield (1988) 165 CLR 360 at 408.5 per curiam, also
See Commission’s primary submissions, paras 31-2.
(1992) 176 CLR 1 at 30-32 per Brennan, Deane and Dawson JJ.
See eg Nationwide News v Wills (1992) 177 CLR 1 at 50-1 per Brennan
J; Lange v ABC (1997) 189 CLR 520 at 560.6 per curiam.
Cf eg Hughes and Vale Pty Ltd v NSW [No. 2] (1955) 93 CLR 127
at 162-3, 165 per Dixon CJ, McTiernan and Webb JJ.
Cf the preamble considered in Australian Communist Party v Commonwealth
(1951) 83 CLR 1.
updated 14 April 2004.