No. V 470 of 2002
Legal
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
No. V 470 of 2002
BETWEEN:
Applicant
VFAD of 2002
ApplicantAND:
MINISTER
FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent
OUTLINE OF ARGUMENT OF THE HUMAN
RIGHTS AND EQUAL OPPORTUNITY COMMISSION, intervening
Leave
to intervene
1.
The Human Rights and Equal Opportunity Commission (the 'Commission') files these
written submissions pursuant to the orders entered on 13 September 2002. The Commission
makes no submissions on the issue of whether the Minister should be granted leave
to appeal from the judgment and orders of Merkel J. On the assumption that such
leave is granted, the Commission's submissions address the proper construction
of s.196 of the Migration Act 1958 (Cth) (the 'Act').
Summary
of the Commission's arguments
2.
The Commission submits that, on its proper construction, s.196(3) of the Act does
not remove the powers of this Court to make an interlocutory order for the release
of a person held in immigration detention, in proceedings which raise for determination
the question whether or not such detention is lawful.
3.
Section 196 provides for the detention of persons who are in fact unlawful non-citizens.
It does not expressly or by necessary implication confer authority to detain a
person who is in fact a lawful non-citizen.
4.
In the absence of a clearly expressed legislative intention to the contrary:
(a)
section 196 should not be construed as removing or qualifying the established
jurisdiction of the Court to grant interlocutory relief pending the determination
of the substantive rights of the parties;(b)
section 196 should be construed consistently with Australia's obligations under
international treaties, including the International Covenant for Civil and Political
Rights ('ICCPR');(c)
section 196 should not be construed in a manner that detracts from fundamental
rights, including in particular the right to liberty;(d)
section 196 should be construed in accordance with a 'principle of legality'.
The
express terms of section 196
5.
It is clear from the terms of s.196(1) that it is addressed to persons who are
in fact unlawful non-citizens. [1] In contrast to s.189(1),
which allows an officer to detain a person on the basis of a reasonable suspicion
that the person is an unlawful non-citizen, s.196(1) only provides for the continued
detention of persons who are in fact unlawful non-citizens. Thus, the circumstances
set out in s.196(1) which delimit the period of detention contemplate that detention
under s.196 can end only by the removal or deportation of the detainee, or by
the grant to the detainee of a visa. Section 196(1) makes no provision in relation
to the release from detention of a lawful non-citizen or an Australian citizen
who might nevertheless have been lawfully detained under s.189 on the basis of
a reasonable suspicion which turns out to be unfounded. [2] It
follows that s.196(1) must be construed as dealing only with persons who are in
fact unlawful non-citizens.
6.
There is no reason to construe s.196(3) any more widely. Subsection 196(3) is
drafted as an elaboration of subsection 196(1), and therefore cannot have any
broader scope of operation than subsection 196(1). Accordingly, s.196(3) simply
provides that a person who is in fact an unlawful non-citizen (i.e. who is lawfully
detained pursuant to s.196(1)) cannot be released from detention, even pursuant
to a court order, except in the circumstances set out in subsection 196(1), namely
removal, deportation or the grant of a visa. [3]
7.
In a case such as the present, however, the central issues raised by the proceedings
are whether the applicant is in fact an unlawful non-citizen, and whether the
applicant has in fact been granted a visa. Those issues have not yet been judicially
determined. It has therefore not been established that subsections 196(1) and
(3) require the applicant to be kept in immigration detention, or prevent his
release from such detention. As Merkel J stated in the judgment under appeal:
[4]
'The
construction of s 196 ultimately contended for by the Minister is that in the
circumstances of the present case the Court cannot order the applicant's release
until it has declared that he has a visa and that such a declaration cannot be
made by an interlocutory order. However, that is not what s 196 says. The section
is concerned with whether the non-citizen has been granted a visa, and not with
whether a court has declared that a visa has been granted. Thus, the lawfulness
of the non-citizen's detention depends on whether and, if so, when the visa has
been granted and not on whether a court has found that a visa has been granted.
8.
In such circumstances, s.196(3) should not be given a construction that would
preclude the Court from exercising its powers to grant interlocutory relief in
accordance with ordinary principles, pending the determination of the substantive
rights of the parties. Beaumont J noted in NAMU v Minister for Immigration
and Multicultural and Indigenous Affairs that: [5]
'the
ability of the courts to determine the lawfulness of any detention remains unaffected
by the provisions of Division 7.'
This
includes the recognised powers of the courts to grant interlocutory relief to
protect and preserve the rights which are at issue in the proceedings.
9.
The fact that the Minister has asserted a right or even a duty to detain a person
on the basis that the person is alleged to be an unlawful non-citizen for the
purposes of s.196 cannot alter the status quo in a manner that precludes a court
from ordering the release of the person until such time as it is finally determined
that the person is not an unlawful non-citizen. In other words, s.196 should not
be construed so as to place on a detainee the burden of establishing that his
or her detention is not lawful. Nor should s.196 be construed as implicitly conferring
authority to detain that person in the interim, in the event that it is ultimately
established that the person is (and has at all relevant times been) a lawful non-citizen.
10. The common
law does not recognise any executive power to deprive either citizen or alien
of his or her freedom, other than in accordance with some positive authority conferred
by law. [6] As Deane J emphasised in Re Bolton; ex parte Beane,
[7]
'it
is the plain duty of any such officer [of the Commonwealth executive] to satisfy
himself that he is acting with the authority of the law in any case where, in
the name of the Commonwealth, he directs that a person be taken and held in custody.
The lawfulness of any such administrative direction, or of actions taken pursuant
to it, may be challenged in the courts by the person affected: by application
for a writ of habeas corpus where it is available or by reliance upon the constitutionally
entrenched right to seek in this Court an injunction against an officer of the
Commonwealth. It cannot be too strongly stressed that these basic matters are
not the stuff of empty rhetoric. They are the very fabric of the freedom under
the law which is the prima facie right of every citizen and alien in this land.
They represent a bulwark against tyranny.'
11.
In other words, the status of a person as an unlawful non-citizen is a jurisdictional
fact which must be established before the power to detain may be exercised. [8]
The existence or otherwise of such a jurisdictional fact must be determined by
the courts, rather than by any executive officer. Once an applicant has adduced
evidence that puts in issue the legality of his or her detention, the legal burden
is on the Minister to establish that such detention is lawful: 'if the legality
of the applicant's detention is dependent on facts which are in dispute or are
not admitted by the applicants, it is for the respondents to prove those facts'.
[9] Accordingly, unless and until those jurisdictional facts
are established, s.196(3) cannot deprive the Court of its power to grant interlocutory
relief to an applicant who has raised a serious issue as to whether his or her
detention by the executive is lawful.
12.
There is no reason to give precedence to subsection 196(3) over subsection 196(2).
Read together, subsections 196(2) and (3) provide that a court cannot order the
release of an unlawful non-citizen, but may order the release of a lawful non-citizen.
A court is not required to approach an application for interlocutory relief on
the assumption that the applicant is an unlawful non-citizen, so that subsection
196(3) applies to prevent any order for the applicant's release from immigration
detention.
13.
Thus, where the proceedings raise for determination the question whether the applicant
is a lawful non-citizen or an unlawful non-citizen, and where there has not yet
been any judicial determination of that question, the ordinary principles governing
the grant of interlocutory relief apply.
14.
The decision of Hely J in NAMU v. Minister for Immigration and Multicultural
and Indigenous Affairs [2002] FCA 999 does not stand for the proposition that
s.196(3) precludes the grant of interlocutory relief in a case such as the present.
NAMU involved a challenge to the constitutional validity of s.196 of the
Act, and not a challenge to the status of the applicants as unlawful non-citizens.
In NAMU, it was common ground that the applicants were unlawful non-citizens
who were liable to be detained under the Act, [10] and Hely
J was required to approach the application for interlocutory relief on the basis
that the impugned provisions of the Act were constitutionally valid. [11]
Further, Hely J took the view that, even if the applicants were ultimately successful
in their constitutional challenge to s.196(3), that would not lead to the conclusion
that their detention was unlawful. [12]
15.
The construction of s.196 advocated above is supported by rules of statutory construction
which apply here by reason of the subject matter, which relates to fundamental
rights. Those principles of statutory construction (which are discussed below)
derive from Australia's international obligations, the common law and the rule
of law, which is an assumption in accordance with which the Constitution
is framed. [13] Significantly (and despite their different origins),
those principles speak with one voice.
The
Court's established jurisdiction to grant interlocutory relief
16.
It has been accepted that, apart from any possible effect of s.196 of the Act,
s.23 of the Federal Court of Australia Act 1976 (Cth) gives this Court
power to make an interlocutory order for the release of an immigration detainee
in proceedings which effectively put in issue the basis of the detention. [14]
Because the final relief sought in such proceedings encompasses an order requiring
the release of the applicant from immigration detention, the release of the applicant
from detention on an interlocutory basis is incidental and appropriate to the
jurisdiction exercised by the Court in the proceedings. [15]
17. Section
196 does not contain any clear words removing or qualifying the Court's power
to grant interlocutory relief in matters over which it has jurisdiction, and therefore
should not be construed in a manner that detracts from the Court's established
jurisdiction. [16]
18.
Unlike the provision considered by the High Court in Lim, there is no need
to read down s.196(3) of the Act so that it applies only to persons who are lawfully
detained. Because s.196(3) is confined in its operation to persons who are in
fact unlawful non-citizens, it does not purport to extend to persons whose detention
is unlawful. Accordingly, s.196(3) is not drafted in a form which is apt to deny
the Court's jurisdiction to make an interlocutory order for the release of a person
who is challenging the lawfulness of his or her detention: see Lim at 12-13
per Mason CJ, 51 per Toohey J.
19.
The powers conferred by s.23 of the Federal Court of Australia Act 1976
are only displaced where the terms in which jurisdiction is conferred on
the Court expressly or impliedly deny the s.23 power to the Court in that class
of proceeding. [17] However, s.196(3) does not confer jurisdiction
on this Court in any class of matters. This Court's jurisdiction is relevantly
conferred by s.39B of the Judiciary Act 1903 (Cth), in terms which do not purport
to exclude the Court's powers under s.23 of the Federal Court of Australia Act
1976 (Cth).
International
obligations
20.
It is a long-established principle that a statute is to be interpreted and applied,
so far as its language admits, in a manner which is consistent with established
rules of international law and which accords with Australia's treaty obligations.
[18] That approach is not limited in its application to ambiguous
statutory provisions. [19] Rather, wherever the language of
a statute is susceptible of a construction which is consistent with the terms
of the relevant international instrument and the obligations which it imposes
on Australia, that construction must prevail. [20]
21.
Conversely, if the Parliament intends to legislate inconsistently with Australia's
international obligations, it should express that intention clearly. Such a requirement
does not infringe upon the principle of Parliamentary supremacy. Rather, it contributes
to greater integrity in the legislative process by ensuring that Parliament squarely
confronts situations where proposed legislation breaches binding international
obligations, being obligations which the Executive has solemnly entered into on
behalf of Australia.
22.
In the present case, s.196 of the Act should be construed in a manner which is
consistent with the following rights conferred by the ICCPR:
(a)
the right not to be detained arbitrarily or deprived of liberty except on such
grounds and in accordance with such procedures as are established by law (article
9(1) of the ICCPR);(b)
the right of any person deprived of their liberty to take proceedings before a
Court in order that the Court may decide without delay upon the lawfulness of
their detention and order their release if the detention is not lawful (article
9(4) of the ICCPR);(c)
the right to an effective remedy to persons whose rights or freedoms under the
ICCPR are violated (article 2(3) of the ICCPR).
Article
9 of the ICCPR
23.
Article 9 of the ICCPR relevantly provides:
1.
Everyone has the right to liberty and security of person. No one shall be subjected
to arbitrary arrest or detention. No one shall be deprived of his liberty except
on such grounds and in accordance with such procedures as are established by law.
4.
Anyone who is deprived of his liberty by arrest or detention shall be entitled
to take proceedings before a court, in order that court may decide without delay
on the lawfulness of his detention and order his release if the detention is not
lawful.
24.
Article 9(1) recognises a right to liberty and then provides for certain limitations
on that right. Any such limitations must satisfy the separate requirements of
'lawfulness' and absence of 'arbitrariness'. The United Nations Human Rights Committee
(the 'UNHRC') [21] has clearly indicated that those requirements
should not be conflated: [22]
The
drafting history of article 9, paragraph 1, confirms that 'arbitrariness' is not
to be equated with 'against the law', but must be interpreted more broadly to
include elements of inappropriateness, injustice and lack of predictability.
25.
In A v Australia [23], the UNHRC expanded on that discussion
and relevantly (for present purposes) explained how the notion of arbitrary detention
might apply to a situation such as the present, where the issue is whether a person
should be detained pending a final decision of a court:
'[T]he
Committee recalls that the notion of 'arbitrariness' must not be equated with
'against the law', but interpreted more broadly to include such elements as inappropriateness
and injustice. Furthermore, remand in custody could be considered arbitrary
if it is not necessary in all the circumstances of the case, for example to prevent
flight or interference with evidence: the element of proportionality becomes relevant
in this context.' [emphasis added]
26.
By comparison, article 9(3) of the ICCPR provides specific protections to ensure
that it is not the 'general rule that persons awaiting trial shall be detained
in custody, but release may be subject to guarantees to appear for trial'. [24]
In other words, pre-trial detention is to be the exception rather than the rule
in criminal matters. The position is a fortiori in cases of administrative
detention.
27.
The principle that pre-hearing detention will be arbitrary if not necessary or
proportional imposes upon the state a burden of justification, which was discussed
in A v Australia as follows:
'
detention should not continue beyond the period for which the State can provide
appropriate justification. For example, the fact of illegal entry may indicate
a need for investigation and there may be other factors particular to the individuals,
such as the likelihood of absconding and lack of cooperation, which may justify
detention for a period. Without such factors detention may be considered arbitrary,
even if entry was illegal.'
28.
A second aspect of article 9 is the right to bring proceedings to have the lawfulness
of one's detention determined without delay: see article 9(4). 'Lawfulness' in
the context of article 9(4) does not simply mean 'lawfulness' under municipal
law. This was made clear by the UNHRC in A v Australia, where the Australian
government sought to argue that there had been no breach of article 9(4) because
the author of the complaint had access to the courts (and was simply unable to
be released by virtue of the effects of division 4B of the Migration Amendment
Act 1992 (Cth)). The UNHRC rejected that argument stating:
'court
review of the lawfulness of detention under article 9, paragraph 4, which must
include the possibility of ordering release, is not limited to mere compliance
of the detention with domestic law. While domestic legal systems may institute
differing methods for ensuring court review of administrative detention, what
is decisive for the purposes of article 9, paragraph 4, is that such review is,
in its effects, real and not merely formal. By stipulating that the court must
have the power to order release "if the detention is not lawful", article
9, paragraph 4, requires that the court be empowered to order release, if the
detention is incompatible with the requirements in article 9, paragraph 1, or
in other provisions of the Covenant.'
29.
If s.196(3) were construed so as to prevent a court from making an interlocutory
order for the release of a person held in immigration detention who had raised
a serious issue as to the lawfulness of that detention, that construction would
be inconsistent with article 9 of the ICCPR for a number of reasons.
-
First, under such a construction, a person could be detained for what might be
a lengthy period of time even in the absence of any legal authority for their
detention. - Second,
that construction violates the general principle that a person awaiting final
determination of a matter concerning their liberty shall not be deprived of their
liberty, except where the requirements of necessity and proportionality are satisfied.
The examples of the matters relevant to those requirements given by the UNHRC
in A v Australia (risk of flight and danger of interference with evidence)
are familiar to Australian courts considering interim release. [25]
The construction contended for by the Minister would preclude curial consideration
of such matters and would avoid the associated requirement that the State should
not continue to detain a person beyond the period for which it can provide appropriate
justification.
- Finally,
that construction would seriously diminish the detainee's right to take court
proceedings challenging the lawfulness of his or her detention. If s.196 were
construed so as to deprive courts of the ability to order the release of a person
whose detention may be arbitrary and unlawful, Australia would be in breach of
paragraph 4 of article 9.
30.
Accordingly, s.196(3) should not be given a construction which is inconsistent
with article 9 of the ICCPR.
Article
2(3) of the ICCPR
31.
Further, article 2(3) of the ICCPR states:
Each
State Party to the present Covenant undertakes:(a)
To ensure that any person whose rights or freedoms as herein recognized are violated
shall have an effective remedy, notwithstanding that the violation has been committed
by persons acting in an official capacity;(b)
To ensure that any person claiming such a remedy shall have his right thereto
determined by competent judicial, administrative or legislative authorities, or
by any other competent authority provided for by the legal system of the State,
and to develop the possibilities of judicial remedy;(c)
To ensure that the competent authorities shall enforce such remedies when granted.
32.
Article 2(3) obliges states to develop effective remedies to prevent future (as
well as existing) breaches of rights and freedoms guaranteed by the ICCPR. [26]
The decision of the European Court of Human Rights in Chahal v United Kingdom
(1996) 23 EHRR 413 regarding the analogous obligation under the European Convention
on Human Rights (the 'ECHR') [27] confirms that the mere
existence of a judicial remedy is not determinative - any remedy must be 'effective'.
33.
In the present case, the removal of the Court's powers to grant interlocutory
relief to a person who has raised a serious issue as to the lawfulness of his
or her detention would deny to that person an 'effective remedy' in respect of
an arbitrary and unlawful deprivation of liberty in breach of article 9 of the
ICCPR. Accordingly, s.196(3) should be given a construction which is not inconsistent
with article 2(3) and article 9 of the ICCPR, and which preserves the Court's
power to grant interlocutory relief in accordance with ordinary principles.
Fundamental
rights
34. Clear
words are necessary before legislation will be construed as removing a fundamental
right or freedom. The relevant principles were discussed by Mason CJ, Brennan,
Gaudron and McHugh JJ in Coco v The Queen: [28]
'The
insistence on express authorization of an abrogation or curtailment of a fundamental
right, freedom or immunity must be understood as a requirement for some manifestation
or indication that the legislature has not only directed its attention to the
question of the abrogation or curtailment of such basic rights, freedoms or immunities
but has also determined upon abrogation or curtailment of them. The courts should
not impute to the legislature an intention to interfere with fundamental rights.
Such an intention must be clearly manifested by unmistakable and unambiguous language.
General words will rarely be sufficient for that purpose if they do not specifically
deal with the question because, in the context in which they appear, they will
often be ambiguous on the aspect of interference with fundamental rights. [See
Lim at 12 per Mason CJ.].
. .[C]urial
insistence on a clear expression of an unmistakable and unambiguous intention
to abrogate or curtail a fundamental freedom will enhance the parliamentary process
by securing a greater measure of attention to the impact of legislative proposals
on fundamental rights.'
35.
In particular, a court will construe strictly any statutory provision purporting
to allow the deprivation of individual liberty by administrative detention, and
will be slow to hold that statutory provisions authorise administrative detention
in unreasonable circumstances. [29] Thus, in Re Bolton; ex
parte Beane, [30] Brennan J stated:
'The
law of this country is very jealous of any infringement of personal liberty (Cox
v. Hakes (1890) 15 App Cas 506, at p 527) and a statute or statutory instrument
which purports to impair a right to personal liberty is interpreted, if possible,
so as to respect that right: R. v. Cannon Row Police Station (Inspector)
(1922) 91 LJKB 98, at p 106. . . . The Constitution of the Australian Commonwealth
does not contain broad declarations of individual rights and freedoms which deny
legislative power to the Parliament, but the courts nevertheless endeavour so
to construe the enactments of the Parliament as to maintain the fundamental freedoms
which are part of our constitutional framework. It is presumed that that is the
intention of Parliament, though the courts acknowledge that the balance between
the public interest and individual freedom is struck not by the courts but by
the representatives of the people in Parliament. Unless the Parliament makes unmistakably
clear its intention to abrogate or suspend a fundamental freedom, the courts will
not construe a statute as having that operation.'
36.
In the light of these principles, s.196 of the Act should not be construed as
conferring an authority to detain a lawful non-citizen pending the determination
of his or her status, nor should it be construed as effectively giving rise to
a presumption that a person held in immigration detention is an unlawful non-citizen
unless and until that person obtains a final judicial determination to the contrary.
Such a construction would involve an unnecessary derogation from the right to
liberty enjoyed by both citizens and non-citizens present within Australia.
Principle
of legality
37.
The House of Lords has looked to the rule of law as the basis for what has been
termed a 'principle of legality', which is a strong presumption that the words
of a statute are subject to fundamental human rights so as to enforce minimum
standards of fairness, both procedural and substantive. [31]
In Secretary of State, Ex Parte Simms, [32] Lord Hoffman
expressed that principle as follows:
'Parliamentary
sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental
principles of human rights. The constraints upon its exercise by Parliament
are ultimately political, not legal. But the principle of legality means that
Parliament must squarely confront what it is doing and accept the political cost.
Fundamental rights cannot be overridden by general or ambiguous words. This is
because there is too great a risk that the full implications of their unqualified
meaning may have passed unnoticed in the democratic process. In the absence of
express language or necessary implication to the contrary, the courts therefore
presume that even the most general words were intended to be subject to the basic
rights of the individual. In this way the courts of the United Kingdom, though
acknowledging the sovereignty of Parliament, apply principles of constitutionality
little different from those which exist in countries where the power of the legislature
is expressly limited by a constitutional document.'
38.
While that principle may be more broadly expressed than the Australian requirement
for clear words to extinguish fundamental rights and liberties, it is plainly
related to that requirement. [33] Moreover, like the principles
of statutory construction discussed above, the principle of legality enhances
rather than detracts from parliamentary processes by ensuring that Parliament
clearly articulates its intention to derogate from fundamental rights (including
those guaranteed by international instruments).
39.
The development and application of the principle of legality should be seen as
part of a broader trend, in which English Courts have come to see themselves as
a significant element amongst the protective mechanisms provided for by the ECHR.
Prior to the introduction of the Human Rights Act 1998 (UK), English Courts
accepted the proposition that the ECHR had not been incorporated into domestic
law. [34] Nevertheless, those same Courts have had close regard
to the obligation upon the United Kingdom to provide an effective remedy for breaches
of the ECHR [35] in expanding and protecting domestic common
law and statutory remedies dealing with fundamental human rights. [36]
As discussed above, Australia has similar obligations under article 2(3) of the
ICCPR to provide effective domestic remedies for breaches of fundamental human
rights.
40. Understood
in that context, it is unsurprising that in determining and characterising the
rights which attract the benefit of the principle of legality, the House of Lords
has given close consideration to the United Kingdom's international human rights
obligations. In particular, their Lordships have had regard to the obligations
of the ECHR, which are largely said to be reflected in the common law. [37]
Similarly, the High Court has stated that international instruments like the ICCPR
give expression to fundamental human rights which are taken for granted by Australian
society, in the sense that those rights are valued and respected here as in other
civilized countries. [38] It has also held that grounds for
review of administrative decisions [39] and other important
procedural and substantive rights [40] are rooted in or closely
related to fundamental human rights.
41.
For the reasons discussed above, the Minister's proposed construction of s.196
infringes upon rights and protections recognised as fundamental in both international
and domestic law. Such a construction is not mandated by the express words of
the section or by necessary implication. This Court should, in those circumstances,
apply the principle of legality (or some similar principle or rule) and presume
that Parliament did not intend to take such a drastic step via the use of general
words.
Constitutional
issues
42. If
s.196(3) were construed so as to prevent a Court from exercising its jurisdiction
to make an interlocutory order in appropriate circumstances for the release of
a person from immigration detention pending the determination of proceedings challenging
the lawfulness of that detention, s.196(3) would be beyond the legislative power
of the Commonwealth Parliament.
43.
It is clear that s.196(3) does not purport to define this Court's jurisdiction
with respect to any particular class of matter. The Court retains jurisdiction
under s.39B of the Judiciary Act 1903 (Cth) to hear and determine (for
example) matters arising under the Act, and matters in which an injunction is
sought against an officer of the Commonwealth. Such jurisdiction attracts the
powers conferred on the Court by s.23 of the Federal Court of Australia Act
1976 (Cth), including the power to grant interlocutory relief.
44.
If s.196(3) purported to prevent the Court from making interlocutory orders for
the release of a person held in immigration detention, in circumstances where
such orders would otherwise be appropriate to the exercise of the jurisdiction
conferred on the Court, the section would be inconsistent with Chapter III of
the Constitution because:
(a)
the subsection would purport to direct the Court as to the manner and outcome
of the exercise of its jurisdiction. [41](b)
the subsection would potentially prevent the Court from giving effect to the substantive
rights of the parties, albeit on an interlocutory basis, in circumstances where
the detention of the applicant was in fact unlawful.(c)
to the extent that s.196 purports to require the detention of a lawful non-citizen
or an Australian citizen pending the determination of a challenge to the lawfulness
of his or her detention, such detention would not be appropriate and adapted to
a legitimate non-punitive purpose such as the processing of visa applications.
[42]
45.
Accordingly, even if the Court found that s.196(3) was intended to preclude the
Court from making an interlocutory order for the release of a person held in immigration
detention, the subsection should be read down within the limits of constitutional
power. [43]
C
J Horan
Counsel for the Human Rights and Equal Opportunity Commission
Dated:
16 September 2002
1. See NAMU v Minister for Immigration and Multicultural and Indigenous
Affairs [2002] FCA 907 at [14]-[15] per Beaumont J; Al Masri v Minister for Immigration
and Multicultural and Indigenous Affairs [2002] FCA 1009 at [54]-[55] per Merkel
J.
2.
Cf. s.191 of the Act, which deals with persons detained as a result of a failure
to comply with immigration clearance.
3.
It may be noted that the last-mentioned circumstance is in itself superfluous,
given that a person will no longer be an unlawful non-citizen once he or she is
granted a visa.
6.
Re Bolton; ex parte Beane (1987) 162 CLR 514 at 528-9; Chu Kheng Lim v The Commonwealth
(1992) 176 CLR 1 ('Lim') at 13 per Mason CJ, 19 per Brennan, Deane and Dawson
JJ, 67 per McHugh J; Koon Wing Lau v. Calwell (1949) 80 CLR 533 at 555.
7.
Re Bolton; ex parte Beane (1987) 162 CLR 514 at 528-9.
8.
See Al Masri v Minister for Immigration and Multicultural and Indigenous Affairs
[2002] FCA 1009 at [26]-[27] per Merkel J, discussing Tan Te Lam v Superintendent
of Tai A Chau Detention Centre [1997] AC 97 at 111, R v Home Secretary; ex parte
Khawaja [1984] AC 74, and Re Chung Tu Quan [1995] 1 HKC 566.
9.
Re Chung Tu Quan [1995] 1 HKC 566 at 583, quoted in Al Masri v Minister for Immigration
and Multicultural and Indigenous Affairs [2002] FCA 1009 at [27].
12.
[2002] FCA 999 at [23], [30].
13.
Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 193 per Dixon
J; Kartinyeri v The Commonwealth (1998) 195 CLR 337 at 381 per Gummow and Hayne
JJ.
14.
See Minister for Immigration, Local Government and Ethnic Affairs v. Msilanga
(1992) 34 FCR 169 (Full Court), which has subsequently been applied in many cases.
These cases arose in the context of persons who were the subject of criminal deportation
orders, where the Minister has a discretionary power to place the deportee in
immigration detention (s.253), and who were bringing judicial review proceedings
by way of judicial review to challenge the decision to make the deportation order
or the decision to detain the applicant.
15.
Cf. Peniche v. Vanstone (1999) 169 ALR 157 at [5]-[9], [26]-[27] per Kenny J.
The grant of interlocutory relief in circumstances such as the present case is
appropriate to the protection and enforcement of the right or subject matter in
issue (Jackson v Sterling Industries Limited (1987) 162 CLR 612 at 620-621), and
is necessary to ensure the effective exercise of the jurisdiction invoked (Patrick
Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR
1 at 33).
16.
See Pearce, Statutory Interpretation In Australia (5th ed. 2001) at [5.29].
17.
Patrick Stevedores Operations No 2 Pty Ltd v. Maritime Union of Australia (1998)
195 CLR 1 at [27] per Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ. The example
given by their Honours is where the relevant statute which confers jurisdiction
on the Court provides 'an exhaustive code of the available remedies and that code
does not authorise the grant of an injunction'.
18.
Jumbunna Coal Mine NL v Victorian Coal Miners' Association (1908) 6 CLR 309 at
363; Lim at 38 per Brennan, Deane and Dawson JJ. See also Maxwell on the Interpretation
of Statutes (7th Ed, 1929) at 127; Pearce, Statutory Interpretation In Australia
(5th ed. 2001) at [5.14].
19.
See eg Brown v Classification Review Board (1998) 154 ALR 67 at 78 per French
J; Secretary of State, Ex Parte Simms [2000] 2 AC 115 at 130 per Lord Steyn, 131
per Lord Hoffman. Even if the principle is confined to ambiguous statutory provisions,
the concept of 'ambiguity' in this context is construed broadly: Minister for
Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287.
20.
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287 per
Mason CJ and Deane J. See also Kartinyeri v Commonwealth (1998) 195 CLR 337 at
384 per Gummow and Hayne JJ; Spigelman, 'Access to Justice and Human Rights Treaties'
(2000) 22 Sydney Law Review 141 at 149.
21.
The UNHRC is the United Nations human rights treaty body created under article
28 of the ICCPR. Amongst other things, the UNHRC hears complaints submitted by
individuals under the Optional Protocol to the ICCPR. While the decisions or 'views'
of the United Nations human rights treaty bodies are not binding on this Court,
Australian courts and tribunals give weight to the views of specialist international
courts and the human rights treaty bodies established to supervise implementation
by States parties of their obligations under the provisions of particular human
rights treaties. See, as examples of references to the jurisprudence of human
rights treaty bodies by Australian courts: Mabo v Queensland (No 2) (1992) 175
CLR 1 at 42 per Brennan J (with whom Mason CJ and McHugh J agreed); Dietrich v
The Queen (1992) 177 CLR 292 at 307 per Mason CJ and McHugh J; Johnson v Johnson
(2000) 174 ALR 655 at 665 para [38] per Kirby J; Commonwealth v Bradley (1999)
95 FCR 218, per Black CJ at 237; Commonwealth v Hamilton [2000] 108 FCR 378 per
Katz J at p387, paragraph [36].
22.
Van Alphen v The Netherlands UNHRC 305/88.
24.
See also Hill and Hill v Spain UNHRC 526/93.
25.
See eg Tuiletufuga v Minister for Immigration and Multicultural Affairs (1998)
87 FCR 389 per Lehane J, where his Honour had regard to the possibility that the
applicant would make himself available for deportation.
26.
Herrara Rubio v Colombia UNHRC 161/1983. See also M Nowak UN Covenant on Civil
and Political Rights: CCPR Commentary (1993), NP Engel p.62; cf. CF v Canada UNHRC
113/1981.
27.
That obligation is set out in article 13 of the ECHR which provides: 'Everyone
whose rights and freedoms as set forth in this Convention are violated shall have
an effective remedy before a national authority notwithstanding that the violation
has been committed by persons acting in an official capacity.'
28.
(1994) 179 CLR 427 at 436-437, see also at 446 per Deane and Dawson JJ. See also
Potter v Minahan (1908) 7 CLR 277 at 304; Re Bolton; Ex parte Beane (1987) 162
CLR 514 at 523; Bropho v Western Australia (1990) 171 CLR 1 at 18.
29.
See Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97 at
111.
30.
(1987) 162 CLR 514 at 523; see also Deane J at 532 and Gaudron J at 547. See also
Papazoglou v Republic of the Philippines (1997) 74 FCR 108 at 128-129.
31.
R v Home Secretary; Ex Parte Pierson [1998] AC 539 at 591 per Lord Steyn.
33.
See NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002]
FCAFC 228 at [448] per French J.
34.
See Brind v Secretary of State for the Home Department [1991] 1 AC 696. The introduction
of the Human Rights Act 1998 has altered that position with many, but not all,
of the rights conferred by the ECHR now guaranteed by that legislation.
36.
See R v Khan [1996] 3 All ER 289 at 298 per Lord Nolan; Rantzen v Mirror Group
Newspapers (1986) Ltd and others [1994] QB 670 at 686 per Neill LJ; R v Secretary
of State for the Home Department; ex parte Launder [1997] 3 All ER 961 at 988
per Lord Craighead, with whom the other Law Lords agreed; R v Ministry of Defence,
Ex Parte Smith [1996] QB 517 at 555-6 per Bingham MR (with whom Henry and Thorpe
LJJ agreed).
37.
See Pierson [1998] AC 539 at 587 per Lord Steyn; Simms [2000] 2 AC 115 at 125-6
per Lord Steyn, 131-32 per Lord Hoffman.
38.
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 305 per
Gaudron J; R v Swaffield; Pavic v The Queen [1998] HCA 1 at [135] per Kirby J.
39.
See Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001)
75 ALJR 889 at [128] per McHugh J and at [186] per Kirby J, both of whom there
referred to the fact that the Act implements Australia's international obligations
as a reason for concluding that the rules of procedural fairness had not been
excluded. Similarly, in Suresh v Canada (Minister of Citizenship and Immigration)
2002 SCC 1 at [118], the Supreme Court of Canada indicated that Canada's international
obligations will be relevant when determining what procedural protections will
be required to be made available to a person at risk of deportation.
40.
By way of example, in Carter v Nothmore Hale Davy & Leake (1995) 183 CLR 121
at 161, McHugh J accepted that legal professional privilege is 'a practical guarantee
of fundamental constitutional or human rights'.
42.
In particular, the detention of a person who has in fact already been grated a
valid visa cannot be justified as being incidental to the purpose of visa processing.
43.
Acts Interpretation Act 1901 (Cth), s.15A; Migration Act 1958, s.3A.
Last
updated 20 May 2003.