Commission submissions: Sakhi

IN THE HIGH COURT OF AUSTRALIA

MELBOURNE OFFICE OF THE REGISTRY

M 276 of 2003

IN THE MATTER OF an application for a writ of habeas corpus and a writ of prohibition against:

KIT WOOLLEY, MANAGER OF THE BAXTER IMMIGRATION DETENTION CENTRE

First Respondent

THE HONOURABLE SENATOR AMANDA VANSTONE,

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Second Respondent

Ex parte:

HUSSEIN SAKHI

HASSAN SAKHI

ZAHRA SAKHI

HABIBULLAH SAKHI

Applicants/Prosecutors

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SUBMISSIONS OF THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION, SEEKING LEAVE TO INTERVENE

1. The Human Rights and Equal Opportunity Commission (“the Commission”) seeks the leave of the Court to intervene to make submissions in this case.

2. The application for leave to intervene is made on the grounds set out in the affidavit of Dr Sev Ozdowski affirmed 9 January 2004. The submissions the Commission seeks to make concern the constitutional limits on the administrative detention of children under the Migration Act 1958 (Cth) (“the Act”). The form of the intervention sought is the filing of written submissions (as set out below) and, if the Court considers it to be of assistance, the making of brief oral submissions.

3. Human rights, in the sense that term is employed in the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“HREOC Act”), [1] are directly affected by the mandatory detention of unlawful non-citizen children pursuant to s.196 (and also s.189) of the Act. As the Commission suggested in its submissions put to this Court in the Al Khafaji, Al Kateb and Behrooz cases heard last November, the general human rights recognised in the ICCPR relevantly include:

• the right to liberty and security of the person, and the requirement that no one shall be subjected to arbitrary arrest or detention (Art 9(1), ICCPR);
• the right that anyone deprived of his or her liberty by arrest or detention is entitled to take proceedings before a court in order that the court may decide without delay on the lawfulness of the detention (Art 9(4), ICCPR);
• the requirement that people deprived or their liberty be treated with humanity and respect for the inherent dignity of the human person (Art 10(1), ICCPR).

4. Art 24 of the ICCPR also provides that every child shall have the right to such measures of protection as are required by his or her status as a minor, and without discrimination as to, inter alia, race, language, religion, or national/social origin.

5. The following particular human rights of children are recognised in the Convention on the Rights of the Child (CRC):

• the requirement that in all governmental actions concerning children the best interests of the child shall be a primary consideration (Art 3(1));
• the requirement that governments shall ensure the child such protection and care as is necessary for his or her well-being (Art 3(2));
• the requirement that no child shall be deprived of his or her liberty unlawfully or arbitrarily (Art 37(b));
• the requirement that the arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time (Art 37(b));
• the requirement that every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person and in a manner that takes into account the needs of persons of his or her age (Art 37(c));
• the requirement that every child deprived of his or her liberty shall have 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 (Art 37(d));
• the requirement that governments recognise the right of the child to rest, leisure, play and recreation (Art 31);
• Art 22 is also relevant, requiring in effect that appropriate measures be taken to ensure that all the rights in the Convention also apply to a child seeking refugee status.

Summary of submissions made if leave is granted

6. The questions that arise for determination in this case are:

(a) Whether the non-judicial detention of children pursuant to ss.189 and 196 of the Migration Act 1958 (Cth) (“the Act”) is unconstitutional because inconsistent with Ch III by virtue of being characterised as punitive;

(b) If so, can the two sections be read down and, if so, how?

7. If the Commission is granted leave to intervene, its submissions, in summary, will be as follows:

(a) Only such detention as is reasonably necessary to enable the assessment of status of unlawful non-citizens, or removal/deportation, is consistent with the constitutional immunity from detention by non-judicial Commonwealth authority. What is “reasonably necessary” (or proportionate) requires consideration of both purpose and effects;

(b) Children have peculiar interests and vulnerabilities which distinguish them as a group, as the law has long recognised;

(c) Because of these interests and vulnerabilities, immigration detention as authorised by ss.189 and 196 will in general have significantly greater detrimental effects on children as a group than on adults as a group;

(d) These greater effects, combined with the reduced salience of considerations of flight risk and security risk, are such that general detention of children – beyond what is required for initial assessment and for imminent removal – cannot be regarded as reasonably necessary for the achievement of the legitimating purposes of immigration assessment and removal. The Act simply fails to provide a regime whereby these peculiar interests and vulnerabilities are recognised, and is to that extent impermissibly punitive. International law dealing with human rights may assist here, as elsewhere, in informing the legal analysis;

(e) Different delineations of “children” reasonably can and have been determined for different purposes. Ch III may not provide any bright line where childhood is taken to end. It does, however, require due recognition of the peculiar interests and vulnerabilities of that distinct group;

(f) Sections 189 and 196 are invalid at least to the extent that they provide for the detention of children under 18 years, being the broadest, widely accepted delineation of “children”. However, it may be that even to make this determination would be impermissibly legislative. If that view is taken, the two sections would wholly be invalid.

The relevant Ch III principle

8. The Commission put submissions in the cases of Al Khafaji, Al Kateb and Behrooz in relation to the Ch III principle sought to be invoked by the Applicants in this case.[2] Those submissions will not be repeated, save for this summary. Involuntary detention by the State is, at least ordinarily, of its nature inherently penal or punitive.[3] As detention (ie deprivation of liberty without consent) is inherently punitive, and as punishment may only be administered following an exercise of judicial power, the majority in Lim recognised a “constitutional immunity from being imprisoned by Commonwealth authority” except pursuant to an exercise of judicial power. [4]

9. Certain exceptions to this principle were recognised in Lim, including involuntary detention in cases of mental illness or infectious disease, along with a relevant exception of detention “for the purposes of executive powers to receive, investigate and determine an application” by an alien for an entry permit, and “for the purposes of an executive power of deportation or expulsion”.[5] In this regard, the joint judgment held that a law authorizing executive detention of aliens will be valid if the detention it authorizes is limited to “what is reasonably capable of being seen as necessary for the purposes of deportation or necessary to enable an application for an entry permit to be made and considered”.[6] The question of whether the law was regarded as punitive, as or sufficiently directed to some exceptional justifying purpose, was thus treated as a matter of characterisation.

10. In Kruger v Commonwealth [7] the removal and detention of Indigenous children was held by those members of the Court who considered the issue not to be inconsistent with the Ch III principle. That was so because of the welfare or protective purpose of the law. [8] That justification has not been invoked in this case.

11. Whilst the joint judgment in Lim used the formulation of “reasonably capable of being seen as necessary” for the relevant legitimate purpose, the more appropriate formulation in light of the importance of the principle at stake is whether the detention is reasonably necessary for the purposes of assessment of the status of the person (including in relation to health and security concerns), and/or for removal if their application is finally rejected. This test reflects the formulations employed by Gaudron and McHugh JJ in Lim.[9] Assessment of what is “reasonably necessary” involves and may be guided by notions of proportionality.

12. This assessment must take account of the effects of the governmental measure, and not merely look to the claimed legitimating purpose. [10] That is so not least because if the means adopted are disproportionate to the claimed end then the measure could not be characterised as truly made in pursuance of that object – being disproportionate, they would not then be reasonably necessary.

13. The Commonwealth’s major premise here is that the issue turns on purpose alone, and that anything less than the greatest of deference would impermissibly intrude into questions of wisdom and desirability of the legislation. [11] These submissions fail to recognise that what is at issue here is a constitutional guarantee of liberty (it is notable that the cases the Commonwealth cites at footnotes 31 and 37 relate not to guarantees but the reach of federal powers) and that, as for other such guarantees, [12] the effects of the measure must be taken into account and it is for the courts to determine when permissible lines have been crossed.

The distinctive interests and vulnerabilities of children

14. Human beings are differentiated from each other in myriad ways. Some distinctions are clearer and harder than others. Age, and in particular youth, is a grouping which is founded in objective and evident characteristics. Childhood involves rapid physical development, reflected in distinctive needs for nutrition and exercise. Childhood also involves distinctive mental, intellectual, social, moral and sexual development. If any of these is interrupted or impeded, damage may be done that has consequences for the shape of the individual’s personality and the conduct of their life. A child’s interests in development are thus peculiar. These interests render them peculiarly vulnerable to harm.

15. Different classifications of the stages of development can be given – for example, the majority of this Court referred in Marion’s Case to Piaget’s leading model of childhood development. [13] No doubt particular aspects of personality mature earlier or later. Whatever the stages, and whatever the precise delineation of when childhood ends (an issue which may depend on the issue and on the individual), that children are a distinct group cannot be doubted.

16. The law, both common and statutory, has recognised the particular vulnerabilities and interests of children by according them distinctive treatment; for example:

(a) capacity to do such things as marry, enter contracts [14] or consent to medical procedures;

(b) criminal law – the principle of doli incapax, or the age of consent;

(c) the conduct of litigation; [15]

(d) the deferred operation of limitation periods. [16]

17. The lines drawn in different areas vary. Some are hard lines, typically set by statute, though sometimes also by common law – eg the doli incapax principle that children under 7 years cannot be guilty of criminal conduct, and children under 14 presumptively cannot be; or the common law rule that the minimum age for marriage was 14 years for males and 12 years for females. Members of this Court noted in Marion’s Case that modern legislation in Australia generally fixes the age of majority as 18 years. Other lines are more dependent on assessment of the individual, such as the Gillick principle that a minor can consent to medical procedures when he or she “achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed”. [20]

18. Precisely how and where the line is drawn has varied. Plainly, there is room for reasonably held various views, and different lines may be appropriate in different areas. In King v Jones this Court held that the voting rights in s.41 of the Constitution for an “adult person” referred to people over the age of 21 years. [21] Despite these differences, what does clearly emerge from the general law is a recognition of the special interests and vulnerabilities of children. [22]

19. These special interests of children have been internationally recognised, most particularly in the CRC. [23] Relevant rights recognised in that instrument are set out above. The CRC itself defines children as “every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier”: Art 1. Only two members of the United Nations have not ratified the CRC: the United States and Somalia. [24]

The effect on children of detention in immigration detention centres

20. The distinctive interests and vulnerabilities of children make them especially vulnerable to the effects of forced detention. That that is likely to be so is obvious. Of course, children are sometimes detained for criminal behaviour. But such detention follows an exercise of judicial process, directed to the circumstances of the individual. And the courts have recognised the particular interests and vulnerabilities of children in determining such sentences for children:

“There has been universal acceptance by the courts in England, Australia and elsewhere that there is an essential difference between children and adults when they come before a court exercising criminal jurisdiction. In particular it had been accepted by the courts that the reformation of the offender is always an important, if not the dominant consideration, and that any sentence should be tailored with greater emphasis on the future welfare of the offender”. [25]

21. The Applicants here are held in immigration detention, [26] relevantly the Baxter Immigration Detention facility (they were previously held at the Woomera Centre). [27] The Commonwealth submits that it cannot be assumed that immigration detention is likely to have adverse impacts. [28] As the above quotation implies, that submission is contrary to the learned experience of the law. The law has long accepted the human reality of the peculiar interests of children, as noted above. Taking account of that experience and recognition, it is plain that detention in immigration detention centres will be particularly deleterious to children, especially given the following circumstances.

22. First, such detention is with adults. As has been stated in the criminal law context, “An adult prison is not an appropriate institution for the imprisonment of a child and a period of incarceration within one is not likely to do an adolescent person, male or female, any good”. [29] Whilst the dangers to children may be somewhat different in an immigration context, they will still exist.

23. Secondly, the occasioning of self-harm and the occurrence of traumatising experiences within immigration detention is both notorious and documented. [30] Thirdly, of the adults and children detained, a significant proportion may have been traumatised by their own past experiences. [31] Connected to this, fourthly, it is inevitable that conditions and experiences in detention may themselves cause or exacerbate mental health problems. [32]

24. The peculiar interest of children in proper and unimpeded physical, mental, intellectual, moral, spiritual and sexual development will inevitably be harmed by compulsory detention in such circumstances. [33] Such adverse effects have been discussed in international reports. [34] It is thus unsurprising that the anecdotal study by Mares, Newman et al concluded: [35]

“Immigration detention profoundly undermines the parental role, rendering the parent impotent, unable to provide adequately for their child/children physical and emotional needs, in an environment where opportunities for safe play, development and education are inadequate or unavailable. Parental depression and despair leaves children without protection in an already terrifying and unpredictable place. Children are at high risk of emotional trauma since parents are unable to provide for them adequately or to shield them from further humiliation and acts of violence in a degrading, hostile and hopeless environment.”

25. It might be said that children may legitimately be detained in some sense in other circumstances – eg being sent to boarding school against a child's will, or being denied permission to go out for social purposes for a time. It is quite unreal to compare such restrictions to mandatory immigration detention, which is vastly different in terms of the extent of deprivation of liberty, and of the significance of the effects of such detention. Further, such decisions do not involve an exercise of governmental power, and are not mandatory, in the sense that they are a choice freely made by the person/s in loco parentis.

The constitutional principle is infringed by ss.189 and 196

26. Sections 189 and 196 of the Migration Act apply to children as to adults, without any special recognition of or provision for their particular vulnerabilities or interests in relation to the fact of being detained.[36] Whilst the Minister does have the power to provide bridging visas, [37] there is no mechanism in the legislative scheme that easily facilitates the assessment of the needs or vulnerabilities of individuals or children for the provision of such visas. Nor is there any suggestion that such visas generally are granted to children. The four Applicants have been in detention for 3 years. [38] Implicit in the statutory scheme is a presumption that all unlawful non-citizens shall be detained pending recognition of refugee status or removal. There is no recognition in the Act of the strong imperative for release of children from detention.

27. Sections 189 and 196 have a distinctive effect on children, as noted above. That is not to suggest that detention of adults without individual assessment of risks and vulnerabilities, or detention of what may be other arguably distinguishable groups (eg those with mental illnesses), could not also raise significant constitutional questions. But they are not points the Commission may address in this case.

28. True it is that removal of children from their parents or carers may also cause harm. A question arises as to whether it would be in the best interests of children to be separated from their parents. In some instances, there will be a parent, guardian, relative or other potential carer available to care for the children outside immigration detention. [39] Moreover, the question assumes that if the Commonwealth is not able generally to detain children, the Parliament would still provide that the parents should be detained. Further, the issue here is mandatory detention by exercise of Commonwealth authority. If parents/carers choose for their children to remain in detention regardless that would be another matter.

29. Distinct questions may arise about unaccompanied children for whom there is no carer connected to the child available within the country. [40] The existence of that distinct subgroup serves to illustrate the unreasonableness of a scheme that does not facilitate any differentiation of unlawful non-citizens. [41]

30. The principle recognised in Lim applies in a particular manner to children. The characterisation question of whether detention is reasonably necessary for the non-punitive immigration purposes must take account of the peculiar interests and vulnerabilities of children. Immigration detention will be likely to have an impact on children different in kind and degree from that on adults. Further, justifications such as security, preventing flight, and minimising danger to the community are of reduced significance in relation to children.

31. An important issue in the consideration of permissible infringement of constitutional principles is whether any less intrusive means is available to achieve the desired end. This “necessity” factor is commonly considered to be one of the elements of proportionality in international and municipal law,[42] and has been applied in Australian constitutional law. [43] The Commonwealth’s legitimate interests (in relation to security, flight and other dangers to the community) could be achieved in relation to children by some other means than detention.

32. A general rule for mandatory detention of all children is not reasonably necessary or proportionate to achievement of the claimed justifying ends of assessment of immigration status and/or removal. That is not to say that detention for short periods upon arrival (for initial assessment in relation to security, flight and health concerns) and prior to any imminent removal or deportation would not be permissible. In those instances the period of detention is short and may be justified by the competing legitimate considerations.

33. There is a particularly punitive aspect to mandatory detention of the children of asylum-seekers because those children may be presumed to have been brought or have come here because of the choices of their parents or carers. As the Applicants note (subs para 44), it will generally, or at least frequently, lie beyond the power of children to effect their own release by requesting return to their country of origin. To detain children brought here as a result of the choices of others may be seen as punishing them for the actions of their parents. In the Al Khafaji¸ Al Kateb and Behrooz cases the Commission submitted that the purpose of excluding illegal aliens from the Australian community cannot be a sufficient justification for indefinite immigration detention. [44] Yet even if such a justification were held to be available in relation to adults, that could not reasonably extend to children brought here because of the choices of others.

34. This argument does not suggest that a single instance of detention in punitive circumstances would invalidate the whole operation of ss.189 and 196. [45] The infringement here arises because of the material failure of the legislative scheme to address adequately peculiar interests and vulnerabilities of a distinct grouping. The scheme cannot be characterised as reasonably necessary for the claimed immigration purposes in those circumstances (at least to that extent); the material failure renders the law broader than reasonable necessity would permit. The failure is not mere oversight, for the scheme does contemplate the detention of children (eg see ss.252A, 252B). The failure is significant in light of the size and vulnerable nature of the group concerned, along with the importance of the constitutional principle – protecting, as it does, liberty of the individual.

35. In McGraw-Hinds (Aust) Pty Ltd v Smith a majority of this Court held that a consumer protection law was invalid for breach of s.92 of the Constitution (as then construed) because some of the conduct to which it applied was quite innocent, hence the restriction on interstate trade could not be justified as made in the public interest and thus constitutionally permissible in that respect. The provision in question travelled “beyond what might be thought necessary to regulate the trade with a view to protecting the public from malpractice”, [46] and thus could not be characterised as merely regulatory. So, here, the Act travels beyond what may be thought to be justified by failing to address adequately the peculiar interests and vulnerabilities of the distinct grouping of children.

36. That a Ch III principle might have differential application for persons with distinct characteristics and interests is unsurprising. The foundation of the principle at issue is that in light of Ch III, punishment may only be administered under federal law following an exercise of judicial power. Central to the notion of justice which guides the exercise of the judicial process are twin principles: “Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect”. [47] Thus it is that when children are sentenced for crimes their age and maturity are invariably important factors to be considered.

37. Decisions in other jurisdictions and spheres, including under international conventions, support the application of constitutional principles in the manner outlined above. As the Commission submitted in the Al Khafaji, Al Kateb and Behrooz cases, this is not to suggest that international conventions or decisions of other courts could or should govern the content of the Australian Constitution. [48] Rather, where lines must be drawn, and such lines are unclear, guidance may be obtained from such sources. In particular, in the judicial technique of characterisation for constitutional purposes, that which is reasonably necessary (or in a s.51 power context, what is sufficiently connected) must be informed by the nature of the things in question.[49] That appreciation in turn will be informed by the international obligations Australia has assumed in the area in question.

38. Article 3(1) of the CRC provides that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. [50] The United Nations Committee on the Rights of the Child has indicated that the obligation imposed by article 3(1) is one of the general principles of the CRC. [51] Compliance with article 3(1) requires consideration of the best interests of individual children in particular circumstances. [52] These provisions are thus consistent with, and supportive of, the need to provide at least some recognition to the unique interests and vulnerabilities of children.

39. In addition to that general principle, the CRC makes specific provision for children who stand to be deprived of their liberty. Like article 9 of the ICCPR, [53] article 37(b) of the CRC states that “no child shall be deprived of his or her liberty unlawfully or arbitrarily”. Article 37(b) also includes two additional obligations which have no comparable provision in the ICCPR: detention of children should be a “measure of last resort” and should only be for the “shortest appropriate period of time”. [54]

40. Under the Act, children are detained without distinction and without any consideration of individual needs and circumstances. This plainly is inconsistent with the above obligations. It does not permit the individual consideration of the particular interests of individual children as required by article 3(1). Nor does it permit the use of less restrictive measures as a “first resort” for children as required by article 37(b).

The consequences of the infringement

41. The conclusion that mandatory immigration detention of children infringes the constitutional principle does not mean that Ch III necessarily requires distinctive treatment for all those under 18 years of age.

42. An argument is open that some bright line can be implied from the Constitution as it operates in contemporary Australia. It might be suggested that those whom Australia generally treats as minors (ie those under 18 years) may not be detained except in relation to initial assessment and final removal, and that ss.189 and 196 can and should be read down to that extent. The United States Supreme Court itself set a bright line in a related context in creating an effective presumption that more than 6 months detention was not permissible in the circumstances in Zadvydas v Davis. [55] Further, an alternative argument here might be that if a bright line is implied, it is at an age less than 18 years – say the generally accepted age up to which schooling is compulsory (15 years), or the age long recognised by the common law as presumptively when a child is sufficiently mature to be capable of criminal conduct (14 years).

43. However, for the purposes of the argument made by the Commission it is not necessary to assert that a bright line is implied or required by the Constitution. Indeed, it may be that given the nature of the constitutional principle at issue – and the reasonably necessary/proportionality test involved – bright lines cannot be drawn. Some persons under 18 years might constitute a security or flight risk, giving additional particular justification for their detention. As cases such as Gillick recognise, children develop at varying rates, thus their individual interests and vulnerabilities will vary. The concept of “childhood” has been viewed as ending at different times for different purposes by different lawmakers (and, indeed, different psychologists). Minds can reasonably differ on these issues.

44. On that view, the constitutional imperative not to detain “children” depends on the individual circumstances. This does not undermine the fact that children – whether defined as persons under 18 years or some other age – do have distinct interests and vulnerabilities. That there is some significant blurring at the edges of the class does not alter the fact of the distinction. In any case, it is hardly surprising that there should be requirements (and room) for judgment in constitutional questions of characterisation here, just as for questions of whether a measure is sufficiently connected to a head of power. [56]

45. The Parliament itself no doubt has some room for adaptability in this respect. Yet in the end it is “emphatically the province and duty of the judicial department to say what the law is”, [57] and thus to determine when constitutional limitations have been infringed – especially where the principle at stake is a guarantee of liberty, and in particular as considered in relation to a vulnerable group.

46. Here, the constitutional flaw in ss.189 and 196 is that they – and the Act as a whole – create a scheme of mandatory detention for all, with no sufficient provision taking account of the distinct interests and nature of children as a class, nor any adequate provision for individual assessment of the relevant interests. In so doing and to that extent the provisions cannot be characterised as reasonably necessary (proportionate) to the claimed justifying ends of immigration assessment and/or removal. They must instead be characterised as punitive and thus invalid as involving an impermissible exercise of judicial power.

47. The constitutional flaw identified might be cured in a number of ways, such as by:

(a) providing for real individual assessment of the risks and justifications for and against detaining children;

(b) providing that children not be detained, or not generally detained (ie unless particular justifications require their mandatory detention), except for the short periods involved in initial assessment or imminent removal.

48. The question then is whether ss.189 and 196 can be read down. To read them down in some manner requiring individual assessment would directly contradict the plain intention of those sections, [58] which are intended to be undifferentiated in application. Further, it is not for the Court to seek to carve out a regime from ss.189 and 196 which could operate consistently with the Constitution, especially given that such consistency could be achieved in various ways. [59]

49. It may be open to the Court to hold that the sections are invalid only insofar as they apply to children on the broadest reasonable definition of that term – ie 18 years. Such a holding would not prevent the Commonwealth later seeking to introduce its own regime dealing with the detention of children, nor indeed to prevent it defining “children” in some other way.

50. If, however, such a holding was itself regarded as intruding into legislative activity, then ss.189 and 196 must wholly be invalid because of their impermissible operation in relation to children.

Bret Walker and J K Kirk

Counsel for the Commission

28 January 2004

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1. This includes the rights recognised in the International Covenant on Civil and Political Rights (ICCPR) (opened for signature 16 December 1966, 999 United Nations Treaty Series 171; entered into force 23 March 1976 except article 41 which came into force 28 March 1979; ratified by Australia 13 August 1980 except article 41 which was ratified by Australia 28 January 1993), and the Convention on the Rights of the Child (CRC) (opened for signature 20 November 1989, 1577 United Nations Treaty Series 3; entered into force 2 September 1990; ratified by Australia 17 December 1990; declared an international instrument for the purposes of s 47(1) of HREOC Act on 22 December 1992; gazetted 3 January 1993) (see s 3 HREOC Act).

2. Primary submissions, paras 31-47.

3. Note Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 27.8 per Brennan, Deane & Dawson JJ; see also 71.3 per McHugh J.

4. Lim at 28-9; Mason CJ agreeing at 10; Gaudron J generally agreeing at 53, see also 58.1; McHugh J at 71; note also Kruger v Commonwealth (1997) 190 CLR 1 at 61-2 per Dawson J (McHugh J agreeing at 141-2), 84-5 per Toohey J, 109-11 per Gaudron J, 161-2 per Gummow J.

5. Lim at 32.

6. Lim at 33.

7. (1997) 190 CLR 1.

8. Kruger v Commonwealth (1997) 190 CLR 1 per Toohey J at 85, Gummow J at 162, also Dawson J at 62, note Gaudron J at 109-11.

9. At 58 and 71 respectively. See Commission’s primary submissions in Al Khafaji et al, paras 35-8.

10. See Commission’s primary submissions in Al Khafaji et al, paras 39-47; also Commission’s further submissions in reply, paras 10-11.

11. . Commonwealth submissions at paras 14-16, 23, 25-6. For convenience, the submissions of the Respondents and the Commonwealth Attorney-General shall be referred to as those of the Commonwealth.

12. Cf eg Cole v Whitfield (1988) 165 CLR 365 at 408.5, 399-400, 401, 407-8.

13. Secretary, Department of Health & Community Services (NT) v JWB & SMB (1992) 175 CLR 218 at 238, fn 74.

14. At common law contracts made by children are voidable at their election: Zouch d Abbot and Hallet v Parsons (1765) 3 Burr 1794 at 1801, 97 ER 1103 at 1106-7. The capacity of children to enter into contracts is now commonly governed by statute – eg Minors (Property and Contracts) Act 1970 (NSW), ss.18-19.

15. Eg High Court Rules, O 16 r 18, re the need for a litigation guardian.

16. Limitation Act 1985 (ACT) ss.8(3)(a), 30; Limitation Act 1981 (NT) ss.4(1), 36; ss.50F, 52 Limitations Act 1969 (NSW); Limitation of Actions Act 1974 (Qld) ss.5(2), 29; Limitation of Action Act 1936 s.45 (SA); Limitation Act 1974 (Tas) ss.2(2)(a), 26, 28; Limitation of Actions Act 1958 (Vic) ss.3(2), 23; Limitation Act 1935 (WA) ss.16, 40.

17. See eg The Queen v M (1977) 16 SASR 589 at 590.5 per Bray CJ; C v DPP [1996] 1 AC 1; R v CRH (unreported, NSW Court of Criminal Appeal, 18.12.96). This principle has been part of the common law since the reign of King Edward III: Blackstone, Commentaries, 19th edn, vol 4 at 22-3. Note in many States the principle has been modified in that children under 10 (instead of 7) are conclusively deemed to be incapable of committing an offence: eg Children (Criminal Proceedings) Act 1987 (NSW), s.5.

18. Kenn’s Case (1606) 7 Co Rep 42b, 77 ER 474; Arnold v Earle (1758) 2 Lee 529, 161 ER 428; R v Gordon (1803) Russ & Ry 48, 168 ER 677. See now Marriage Act 1961 (Cth), ss.11-13.

19. (1992) 175 CLR 218 at 237 of joint judgment, 290 per Deane J. Cf King v Jones (1972) 128 CLR 221 at 263.2 per Gibbs J: “The rule of the common law which, during mediaeval times, fixed the age of majority at twenty-one remained unaltered for many centuries”.

20. See Gillick v West Norfolk Health Authority [1986] AC 112 at 189, also 169, 194-5; approved Marion’s Case (1992) 175 CLR 218 at 237-8 per Mason CJ, Dawson, Toohey & Gaudron JJ, also 311 per McHugh J. Note Deane J in Marion at 290, citing Blackstone, Commentaries, 17th edn (1830), vol 1, at 463: “The common law has long recognized that the transition from the complete legal disability of the newly-born baby to the full capacity of the mentally competent adult is, in many respects, a gradual one”.

21. (1972) 128 CLR 221.

22. Note also the values underlying this recognition: see Cattanach v Melchior (2003) 77 ALJR 1312 at [76]-[77] per McHugh & Gummow JJ.

23. For discussion of other such instruments, dating back to 1924, see eg Douglas Hodgson, “The Historical Development and ‘Internationalisation’ of the Children’s Rights Movement” (1992) 6 Australian Journal of Family Law 252.

24. See www.unicef.org/cfc/cfc.htm.

25. Yorkshire v Smith (WA CCA, unreported, 20 June 1988, per Wallace & Smith JJ), quoted approvingly by Malcolm CJ in Ainsworth v D (a child) (1992) 7 WAR 102 at 117. See also eg H v C (1976) 15 SASR 251 at 253; R v G D P (NSW CCA, unreported, 22 April 1991, per Mathews J, Gleeson CJ & Samuels JA agreeing); R v Smith (1988) 33 A Crim R 95 at 97 per Young CJ.

26. “Immigration detention” is defined in s.5(1) of the Act. Section 273 authorises the establishment of detention centres. Aspects of immigration detention are dealt with in Part 2 Division 13.

27. Agreed Facts para 4, AB 17-18.

28. Submissions para 4.

29. Hallam v O’Dea (1979) 22 SASR 133 (Full Court) at 136 per King CJ; note also R v Petrov (Vic CCA, unreported, 3 September 1980).

30. Zachary Steel, “The Politics of Exclusion and Denial: The Mental Health Costs of Australia’s Refugee Policy”, keynote address presented to 38th Congress of Royal Australian and New Zealand College of Psychiatrists, 12-15 May 2003 (“the Steel Study”; available at www.chilout.org/files/RANZCP10-14May2003%20Paper.doc), see at pp8-11 (headings “Trauma Exposure in Detention” and “Psychiatric Disorders”). The study notes that the researchers could not independently verify allegations made by asylum-seekers, especially those directed against detention officers; note also discussion of the strength and limitations of the study at pp11-13. See also Dr Sarah Mares and Dr Jon Jureidini, “Forgotten Rights – Responding to the Crisis of Asylum Seeker Health Care: Children and Families Referred from a Remote Immigration Detention Centre”, paper presented on 12 November 2003, (“Mares & Jureidini”; (available at www.nswiop.nsw.edu.au/Resources/Asylum_paper.pdf), see at pp3-4 (under heading “Results”).

31. Steel Study, p9; see also Mares and Jureidini, p3; Lisa Navarro, “An Analysis of Treatment of Unaccompanied Immigrant and Refugee Children in INS Detention and other forms of Institutionalized Custody” (1998) 19 Chicano-Latino Law Review 589 at 602-3, and works there cited. See also section headed “Research Studies”, and also “Discussion”, in Steel & Silove, “The Mental Health Implications of Detaining Asylum Seekers”, Medical Journal of Australia, 2001, vol 175: 596-9 (available at www.mja.com.au/public/issues/175_12_171201/steel/steel.html). See also Human Rights and Equal Opportunity Commission, Those Who’ve Come Across the Seas: Report of the Commission’s Inquiry into the Detention of Unauthorised Arrivals, 1998, pp167, also 153-4, 218 (available at www.hreoc.gov.au/pdf/human_rights/asylum_seekers/h5_2_2.pdf ).

32. Steel Study, p9-11 (heading “Psychiatric Disorders”); Mares & Jureidini, p4 (heading “Results”); Dudley & Gale, “Seeking Refuge, Losing Hope: Parents and Children in Immigration Detention”, Australian Psychiatry, vol 10 no. 2, June 2002, 91 (“Mares, Newman et al”, available at www.amnesty.org.au/airesources/docs/refugee/Detaineesfamilies.pdf), pp92-4 (Vignettes 1 and 2).

33. See the material referred to in Mares, Newman et al, p92 and footnotes 8-15; also see materials referred to in Mares and Jureidini 2003, p2, footnotes 3-7; also see Discussion section and materials there referred to in Zwi, Herzberg, Dossetor & Field, “A Child in Detention: Dilemmas Faced by Health Professionals”, Medical Journal of Australia, vol 179(6): 319-22 (www.mja.com.au/public/issues/179_06_150903/zwi10115_fm.pdf). Note problems with boredom and isolation noted in Steel Study, p11; also Mares & Jureidini, p3. Note also discussion in Adrienne McEntee, “The Failure of Domestic and International Mechanisms to Redress the Harmful Effects of Australian Immigration Detention” (2003) 12 Pacific Rim Law and Policy Journal 263 at 267-9.

34. UN Working Group on Arbitrary Detention, Civil and Political Rights Including the Question of Torture and Detention: Addendum - Visit to Australia, UN Doc E/CN.4/2003/8/Add.2 (2002) at [28]-[35] ( www.unhchr.ch/Huridocda/Huridoca.nsf/0/6035497b015966fec1256cc200551f19…); Justice PN Bhagwati (Regional Adviser for Asia and the Pacific of the UN Commissioner for Human Rights), Human Rights and Immigration Detention in Australia (2002) at 16-17 (available at: www.unhchr.ch/huricane/huricane.nsf/424e6fc8b8e55fa6802566b0004083d9/bc…); UN Committee on the Rights of the Child, Concluding Observations on Australia, UN Doc CRC/C/15/Add.79 (1997), at [20] (available at: www.unhchr.ch/tbs/doc.nsf/MasterFrameView/3d744477ea59fdaf8025653200508…).

35. Australian Psychiatry, vol 10 no. 2, June 2002, at p96.

36. As opposed to some limited particular incidents thereof – note eg special provision re strip-searching, ss.252A(3) and 252B; note also ss.192(7)(b) and 197(8), 211, 212,.

37. Sections 72-76, and reg 2.20 in Migration Regulations 1994.

38. Agreed Facts paras 4 and 16, AB 18-19.

39. Cf the Bakhtiyari case: see UN Human Rights Committee, Bakhtiyari v Australia, UNHRC Communication No. 1069/2002, 29 October 2003, para 3.5.

40. Cf Reno v Flores, 507 US 292 (1993).

41. The Immigration (Guardianship of Children) Act 1946 (Cth) provides for the special status of unaccompanied minors to a very limited extent, but does not solve the issues considered here.

42. Eg Australia v Bakhtiyari, para 9.3; R v Oakes [1986] 1 SCR 103 at 139; Commission v Germany (178/84) [1987] ECR 1227 at [28]; R v Minister for Agriculture, Fisheries and Food; Ex parte Fedesa (C-331/88) [1990] ECR I-4023 at [13]; Handyside (1976) 24 Eur Ct HR (series A) at [49], [58]; Young, James & Webster (1981) 44 Eur Ct HR (series A) at [63].

43. Eg Castlemaine Tooheys v South Australia (1992) 169 CLR 436 at 477; see also Uebergang v Australian Wheat Board (1980) 145 CLR 266 at 305-6 per Stephen & Mason JJ; North Eastern Dairy Co v Dairy Industry Authority of NSW (1975) 134 CLR 559 at at 578-9 per Barwick CJ, 601 per Gibbs J, 615-16 per Mason J, 634 per Jacobs J.

44. Further written submissions in reply, paras 6-9. Cf Commonwealth submissions in this case, para 20.

45. Cf Commonwealth submissions, paras 21 and 24.

46. (1979) 144 CLR 633 at 660.8 per Mason J, see also 647-8 per Gibbs J, 667 and 670 per Murphy J, 671 per Aickin J.

47. Wong v The Queen (2001) 207 CLR 584 at [65] per Gaudron, Gummow & Hayne JJ.

48. See Polites v Commonwealth (1945) 70 CLR 60; Kartinyeri v Commonwealth (1998) 195 CLR 337 at 383-6 per Gummow and Hayne JJ; AMS v AIF (1999) 199 CLR 160 at 180 per Gleeson CJ, McHugh and Gummow JJ; Western Australia v Ward (2002) 76 ALJR 1098 at [961] per Callinan J.

49. Note Zines, “Characterisation of Commonwealth Laws” in Lee & Winterton, Australian Constitutional Perspectives (1992, Law Book) at 54-7.

50. Article 3 makes it clear that the best interests of the child need only be a rather than the primary consideration: G Van Bueren, The International Law on the Rights of the Child, 1995, Martinus Nijhoff Publishers, London, at page 46; Minister of State of Immigration and Ethnic Affairs v Ah Hin Teoh, (1995) 183 CLR 273 per Mason CJ and Deane J at 289.

51. See General Guidelines Regarding the Form and Contents of Periodic Reports to be Submitted by States Partes under Article 44, paragraph 1(B), of the Convention, adopted by the Committee on the Rights of the Child at its 343rd meeting (thirteenth session) on 11 October 1996. See also Committee on the Rights of the Child, General Comment No. 5 (2003), para 12, UN Doc CRC/GC/2003/5. The Commission addressed the relevance of the communications of the United Nations Human Rights Committee to the interpretation of the ICCPR in paragraphs 26 to 27 of its primary submissions to this Court in Al Khafaji, Al Kateb and Behrooz and in paragraphs 3 to 4 of its further submissions in that matter. For similar reasons, the communications of the Committee on the Rights of the Child are of considerable persuasive authority or highly influential, if not authoritative in relation to Australia’s legal obligations under the CRC.

52. Implementation Handbook for the Convention on the Rights of the Child, United Nations Children Fund (UNICEF), 2002, at p43. The CRC makes specific reference to the role of UNICEF in providing expert advice to the Committee on the Rights of the Child on matters relating to the implementation of the CRC (see Art 45(a)) and technical advice and assistance to parties to the CRC (see Art 45(b)). Guidance as to the meaning and effect of international conventions may be gathered from the writings of expert international bodies such as UNICEF: Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 392, 396-7, 399-400, 405, 416, 430; 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 [1981] AC 251 at 294-5 per Lord Scarman.

53. Discussed in paragraphs 23-27 of the Commission’s primary submissions in Al Khafaji, Al Kateb and Behrooz.

54. Emphasis added. Note that the Committee on the Rights of the Child specifically raised the placement of children in immigration detention centres as one of its “Principal Subjects of Concern” in Concluding Observations on Australia CRC/C/15/Add.79 (10/10/97) paragraph 20. See similarly Concluding Observations on Austria CRC/C/15/Add.98 (7/7/99 paragraph 27). Note in addition that articles 7, 10(1) and 9(4) of the ICCPR also have equivalents in the Convention on the Rights of the Child, being, respectively, articles 37(a), 37(c) and 37(d).

55. 533 US 678 (2001), 700-2. For the apparent drawing of a line in another constitutional context (re the non-permissibility of executing “mentally retarded” people), see Atkins v Virginia, 536 US 304 (2002), note at footnotes 3, 5, 20 and 22. But the Court left legislatures room for adaptation (judgment transcript at 12), quoting Ford v Wainwright, 477 US 399, 405, 416-17 (1986) to the effect that “we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction”. On 26 January 2004 the US Supreme Court decided to hear an appeal from Simmons v Roper, 26 August 2003, a decision of the Supreme Court of Missouri holding unconstitutional the execution of juveniles (which it defined as persons under 18 years). Missouri decision available at: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=mo&vol=/supreme/…)

Re US Supreme Court acceptance: http://www.cnn.com/2004/LAW/01/26/scotus.death.penalty/index.html

56. See eg the Court’s division in Re Dingjan; Ex parte Wagner (1995) 183 CLR 323; discussed Zines, The High Court and the Constitution (4th edn, Butterworths, 1997), 98.

57. Marbury v Madison, 5 US 87 at 111, 1 Cranch 137 at 177 (1803).

58. Cf Pidoto v Victoria (1943) 68 CLR 87 at 108 per Latham CJ; Victoria v Commonwealth (1996) 187 CLR 416 at 502.

59. Pidoto at 111 per Latham CJ; Victoria v Commonwealth, ibid.

Last updated 14 April 2004.