OF THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION, SEEKING LEAVE TO
Human Rights and Equal Opportunity Commission (“the Commission”)
seeks the leave of the Court to intervene to make submissions in this
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.
rights, in the sense that term is employed in the Human Rights and
Equal Opportunity Commission Act 1986 (Cth) (“HREOC Act”),  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
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),
the requirement that people deprived or their liberty be treated with
humanity and respect for the inherent dignity of the human person (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.
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
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
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));
requirement that governments recognise the right of the child to rest,
leisure, play and recreation (Art 31);
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
questions that arise for determination in this case are:
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;
If so, can the two sections be read down and, if so, how?
the Commission is granted leave to intervene, its submissions, in summary,
will be as follows:
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;
Children have peculiar interests and vulnerabilities which distinguish
them as a group, as the law has long recognised;
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;
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;
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
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.
Ch III principle
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.
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. 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. 
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”.
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”.
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.
In Kruger v Commonwealth
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.  That justification has
not been invoked in this case.
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.
Assessment of what is “reasonably necessary” involves and
may be guided by notions of proportionality.
This assessment must take account of the effects of the governmental measure,
and not merely look to the claimed legitimating purpose. 
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.
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.  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, 
the effects of the measure must be taken into account and it is for the
courts to determine when permissible lines have been crossed.
interests and vulnerabilities of children
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.
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. 
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.
The law, both common and statutory, has recognised the particular vulnerabilities
and interests of children by according them distinctive treatment; for
capacity to do such things as marry, enter contracts 
or consent to medical procedures;
criminal law – the principle of doli incapax, or the age of consent;
the deferred operation of limitation periods. 
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”. 
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. 
Despite these differences, what does clearly emerge from the general law
is a recognition of the special interests and vulnerabilities of children. 
These special interests of children have been internationally recognised,
most particularly in the CRC. 
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. 
The effect on
children of detention in immigration detention centres
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:
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”. 
The Applicants here are held in immigration detention, 
relevantly the Baxter Immigration Detention facility (they were previously
held at the Woomera Centre). 
The Commonwealth submits that it cannot be assumed that immigration detention
is likely to have adverse impacts. 
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.
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”. 
Whilst the dangers to children may be somewhat different in an immigration
context, they will still exist.
Secondly, the occasioning of self-harm and the occurrence of traumatising
experiences within immigration detention is both notorious and documented. 
Thirdly, of the adults and children detained, a significant proportion
may have been traumatised by their own past experiences. 
Connected to this, fourthly, it is inevitable that conditions and experiences
in detention may themselves cause or exacerbate mental health problems. 
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. 
Such adverse effects have been discussed in international reports. 
It is thus unsurprising that the anecdotal study by Mares, Newman et al
detention profoundly undermines the parental role, rendering the parent
impotent, unable to provide adequately for their child(ren)’s
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.”
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.
principle is infringed by ss.189 and 196
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.
Whilst the Minister does have the power to provide bridging visas, 
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. 
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
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.
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. 
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.
Distinct questions may arise about unaccompanied children for whom there
is no carer connected to the child available within the country. 
The existence of that distinct subgroup serves to illustrate the unreasonableness
of a scheme that does not facilitate any differentiation of unlawful non-citizens. 
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.
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,
and has been applied in Australian constitutional law. 
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.
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
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. 
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.
This argument does not suggest that a single instance of detention in
punitive circumstances would invalidate the whole operation of ss.189
and 196. 
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.
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”, 
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.
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”. 
Thus it is that when children are sentenced for crimes their age and maturity
are invariably important factors to be considered.
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. 
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.
That appreciation in turn will be informed by the international obligations
Australia has assumed in the area in question.
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. 
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. 
Compliance with article 3(1) requires consideration of the best interests
of individual children in particular circumstances. 
These provisions are thus consistent with, and supportive of, the need
to provide at least some recognition to the unique interests and vulnerabilities
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, 
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”. 
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).
of the infringement
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.
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. 
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).
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.
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. 
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”, 
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.
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.
The constitutional flaw identified might be cured in a number of ways,
such as by:
providing for real individual assessment of the risks and justifications
for and against detaining children;
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
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, 
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. 
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.
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
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).
Primary submissions, paras 31-47.
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.
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.
Lim at 32.
Lim at 33.
(1997) 190 CLR 1.
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.
At 58 and 71 respectively. See Commission’s primary submissions
in Al Khafaji et al, paras 35-8.
See Commission’s primary submissions in Al Khafaji et al, paras
39-47; also Commission’s further submissions in reply, paras 10-11.
. 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.
Cf eg Cole v Whitfield (1988) 165 CLR 365 at 408.5, 399-400, 401, 407-8.
Secretary, Department of Health & Community Services (NT) v JWB &
SMB (1992) 175 CLR 218 at 238, fn 74.
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
Eg High Court Rules, O 16 r 18, re the need for a litigation guardian.
See eg The Queen v M (1977) 16 SASR 589 at 590.5 per Bray CJ; C v DPP
 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.
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.
(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”.
See Gillick v West Norfolk Health Authority  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
(1972) 128 CLR 221.
Note also the values underlying this recognition: see Cattanach v Melchior
(2003) 77 ALJR 1312 at - per McHugh & Gummow JJ.
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.
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
“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.
Agreed Facts para 4, AB 17-18.
Submissions para 4.
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).
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”).
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 ).
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).
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.
Australian Psychiatry, vol 10 no. 2, June 2002, at p96.
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,.
Sections 72-76, and reg 2.20 in Migration Regulations 1994.
Agreed Facts paras 4 and 16, AB 18-19.
Cf the Bakhtiyari case: see UN Human Rights Committee, Bakhtiyari v Australia,
UNHRC Communication No. 1069/2002, 29 October 2003, para 3.5.
Cf Reno v Flores, 507 US 292 (1993).
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.
Eg Australia v Bakhtiyari, para 9.3; R v Oakes  1 SCR 103 at 139;
Commission v Germany (178/84)  ECR 1227 at ; R v Minister for
Agriculture, Fisheries and Food; Ex parte Fedesa (C-331/88)  ECR
I-4023 at ; Handyside (1976) 24 Eur Ct HR (series A) at , ;
Young, James & Webster (1981) 44 Eur Ct HR (series A) at .
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.
Further written submissions in reply, paras 6-9. Cf Commonwealth submissions
in this case, para 20.
Cf Commonwealth submissions, paras 21 and 24.
(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.
Wong v The Queen (2001) 207 CLR 584 at  per Gaudron, Gummow &
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  per Callinan J.
Note Zines, “Characterisation of Commonwealth Laws” in Lee
& Winterton, Australian Constitutional Perspectives (1992, Law Book)
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.
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.
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  AC 251 at 294-5
per Lord Scarman.
Discussed in paragraphs 23-27 of the Commission’s primary submissions
in Al Khafaji, Al Kateb and Behrooz.
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).
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
Re US Supreme Court acceptance: http://www.cnn.com/2004/LAW/01/26/scotus.death.penalty/index.html
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.
Marbury v Madison, 5 US 87 at 111, 1 Cranch 137 at 177 (1803).
Cf Pidoto v Victoria (1943) 68 CLR 87 at 108 per Latham CJ; Victoria v
Commonwealth (1996) 187 CLR 416 at 502.
Pidoto at 111 per Latham CJ; Victoria v Commonwealth, ibid.