IN THE FULL FEDERAL COURT OF AUSTRALIA
VICTORIAN DISTRICT REGISTRY No. V of 2001
On appeal from the Honourable Justice North in matters V899 of 2001 and V900 of 2001
THE HONOURABLE PHILLIP RUDDOCK, MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
THE HONOURABLE DARYL WILLIAMS, ATTORNEY-GENERAL
THE HONOURABLE PETER REITH, MINISTER FOR DEFENCE
THE COMMONWEALTH OF AUSTRALIA
THE VICTORIAN COUNCIL FOR CIVIL LIBERTIES INC
THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
AMNESTY INTERNATIONAL LIMITED
No. V of 2001
THE HONOURABLE PHILLIP RUDDOCK, MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
THE COMMONWEALTH OF AUSTRALIA
WILLIAM JOHN FARMER
THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
AMNESTY INTERNATIONAL LIMITED
SUBMISSIONS OF THE HUMAN RIGHTS AND
EQUAL OPPORTUNITY COMMISSION
1. On 1 September 2001, the Human Rights and Equal Opportunity Commission ("the Commission") was granted leave to intervene in both proceedings. For the reasons outlined in paragraphs 8 and 10 of the judgment of His Honour Justice North, the Commission has become a party.
GROUNDS OF APPEAL and THE COMMISSION'S SUBMISSION
2. The Commonwealth Appellants identify 10 grounds for appeal. The Commission's submission in these appeals will address the following issues raised by the appeals:
(1) The findings on detention: Grounds 2(a), (f), (h) and (i); and
(2) The findings on expulsion and the exercise of any prerogative power: Grounds 2(b) and (c); and
(3) Costs for interveners: Ground 3
3. In relation to the Cross-Appeal filed by the Victorian Council for Civil Liberties Inc ('VCCL') on the question of standing, the Commission supports the cross- appeal. The Commission submits that it was open to the Court to find that the VCCL had standing. The Commission submits that particularly in the context of human rights litigation the rules in relation to standing must reflect an approach which is consistent with enabling relevant human rights claims to be determined by the Court. In the case of persons detained, it may be that appropriate party to bring the claim is a body such as the VCCL. 
4. In relation to the Cross-Appeal filed by Eric Vadarlis, the Commission also supports the Cross-Appellant's contentions in relation to his standing and interest in the proceeding.
5. The Commission submits that there is no error on the part of the Judge on the question as to whether the asylum seekers were detained. The Judge correctly determined the question as one of whether the restraint on their freedom was real or illusory: see para 63. Whether there was partial or total restraint is not to the point. Indeed, no such distinction is recognized by relevant international human rights standards which recognize the right not to be unlawfully and arbitrarily detained.
6. The relevant international human rights protections include the International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Rights of the Child (CRC) which Australia is a party to.
7. By ratifying the ICCPR Australia has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the ICCPR without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Derogation from the rights in the ICCPR is only permitted "in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed."  This is not such a case.
8. Article 9(1) and (4) of the ICCPR provide that:
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 procedure 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 that court may decide without delay on the lawfulness of his detention and order his release if the detention is lawful.
9. The right in article 9(1) extends to all deprivations of liberty, whether in criminal cases or in matters concerning immigration.  The Human Rights Committee (the Committee) has also stipulated that:
If the so-called preventative detention is used, for reasons of public security, it must be controlled by the same provisions, ie it must not be arbitrary, and must be based on grounds and procedures established by law .
10. Further, the reference to arbitrariness in article 9(1) imposes a separate and distinct limitation on detention to the requirement that the detention be lawful. When the article was drafted, it was clear that the meaning of "arbitrary" contained elements of injustice, unpredictability, unreasonableness, capriciousness and unproportionality, as well as the common law principle of due process of law.  The Committee in Van Alphen v The Netherlands  confirmed that there are various factors that may render an otherwise lawful detention arbitrary. It said 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. This means that remand in custody pursuant to lawful arrest must not only be lawful but reasonable in all the circumstances. Further, remand in custody must be necessary in all the circumstances, for example, to prevent flight, interference with evidence or the recurrence of crime.
11. Article 9(1) requires that deprivation of liberty provided for by law "must not be manifestly unproportional, unjust or unpredictable".  Further, in A v Australia the Committee stated that detention was arbitrary if it was "not necessary in all the circumstances of the case" and if it was not a proportionate means to achieving a legitimate aim. 
12. The Commission submits that the rights of the child as provided for by the CRC are relevant considerations in determining the question of the status of the asylum seekers and any rights which may flow from their status so determined. Article 37(b) of the CRC provides that:
No child shall be deprived of his or her liberty unlawfully of arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with law and shall be used only as a measure of last resort and for the shortest appropriate period of time.
13. The question of the arbitrariness and lawfulness of the detention under article 9(1) of the ICCPR apply equally to this article of CRC. In addition, article 37(b) requires that such detention be as a last resort and for the shortest appropriate period of time.
14. The issue of what constitutes detention or deprivation of liberty has been considered in a number of cases regarding article 5 of the European Convention on Human Rights ("ECHR"). Unlike article 9 of the ICCPR, article 5 of the ECHR expressly permits detention in certain specified circumstances. 
15. In particular, in Amuur v France  that issue arose in the context of the confinement for twenty day, of four Somali asylum seekers in the transit zone of Paris-Orly airport. The European Court of Human Rights noted that the distinction between measures constituting "deprivation of" as opposed to "restrictions upon" liberty is merely one of degree or intensity and not one of nature or substance. Ascertaining whether a person had been deprived of their liberty involves considering criteria such as the type, duration, effects and manner of implementation of the measure in question. 
16. In finding that the asylum seekers in that case had been deprived of their liberty, the Court took particular note of matters which the Commission submits are relevant to the present matter:
(1) The fact that the Somali asylum seekers had been subjected to strict and constant police surveillance. The fact that the surveillance of the asylum seekers aboard the Tampa was undertaken by military personnel arguably means that this factor weighs more heavily in favour of a finding that a deprivation of liberty has taken place in the current matter.
(2) The fact that the asylum seekers were deprived of legal and social assistance. In particular, the Court was concerned that the applicants were denied (until 5 days prior to their deportation) assistance in relation to the completion of formalities relating to an application for refugee status. To date, no such assistance has been provided to those formerly aboard the Tampa.
17. The Court specifically rejected an argument to the effect that the asylum seekers could have removed themselves from the restrictive measures applied by the French government by flying to Syria. The Court said of this argument:
"The mere fact that it is possible for asylum-seekers to leave voluntarily the country where they wish to take refuge cannot exclude a restriction on liberty, the right to leave any country, including one's own, being guaranteed, moreover, by Protocol No. 4 to the Convention (P4). Furthermore, this possibility becomes theoretical if no other country offering protection comparable to the protection they expect to find in the country where they are seeking asylum is inclined or prepared to take them in.
Sending the applicants back to Syria only became possible, apart from the practical problems of the journey, following negotiations between the French and Syrian authorities. The assurances of the latter were dependent on the vagaries of diplomatic relations, in view of the fact that Syria was not bound by the Geneva Convention relating to the Status of Refugees." 
18. Such an analysis supports the reasoning of Justice North in rejecting the Commonwealth Appellants' contention that the asylum seekers were not detained because they could escape pursuant the Nauru/NZ arrangements. In particular, it should be noted that, like Syria, Nauru is not bound by the Convention relating to the Status of Refugees nor the Protocol Relating to the Status of Refugees. 
19. Amuur was most recently cited with approval in the United Kingdom High Court case of Saadi v Secretary of State for the Home Department  decided on 7 September 2001. In that case, Justice Collins found that the detention of four asylum seekers was unlawful by reason of the operation of article 5 of the ECHR. While the question of whether the asylum seekers were detained was not in doubt, his Honour cited with approval the decision in Amuur stating:
"The Court unsurprisingly decided that [the asylum seekers in Amuur] had been deprived of liberty and so fell within the protection of Article 5 and that the failure to allow access to legal or other advice for 15 days made the deprivation of liberty not compatible with Article 5.1."
20. The approach adopted by international courts and tribunals concerned with human rights is consistent with the operation of the common law. It is accepted that international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights: Mabo v The State of Queensland (No.2) (1992) 175 CLR 1 at 42. Further in Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 687-688 Gleeson CJ and Kirby P at 709-710 (then judges of the New South Wales Court of Appeal ) said that where the common law is uncertain conformity with international law should be preferred.
21. The Commission submits that if the Migration Act 1958 (Cth) does not apply to the asylum seekers then there is no lawful basis to detain them or restrict their movement. In Re Bolton: ex parte Beane (1987) 162 CLR 514 at 528 Deane J makes plain:
The common law of Australia knows no lettre de cachet or executive warrant pursuant to which either citizen or alien can be deprived of his freedom by mere administrative decision or action. Any officer of the Commonwealth Executive who, without judicial warrant, purports to authorize or enforce the detention in custody of another person is acting lawfully only to the extent that his conduct is justified by clear statutory mandate. That being so, it is the plain duty of any such officer 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. ….
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. They provide the general context of the present case. (Emphasis added)
22. Also the observations at 521 and 522 per Brennan J makes clear that:
It is established that statutory authority is necessary for the surrender of any person to another country and to provide for his custody and conveyance: per Barwick C.J. in Barton v The Commonwealth (1974) 131 CLR 477 at 483.
23. In Chu Kheung Lim v Minister for Immigration and Ethnic Affairs (1992) 176 CLR 1, the Court affirmed these principles. At page 63, McHugh J says:
Absent a statutory power of detention, no public official has any power to detain an alien who has entered the country, whether or not that person's entry constitutes an illegal entry.
Application of relevant international guidelines
24. The United Nations High Commissioner for Refugees' Guidelines on Applicable Criteria and Standards relating to the Detention of Asylum-Seekers, Geneva dated 10 February 1999 are relevant when considering whether an asylum seeker is in 'detention'. The UNHCR considers detention to be confinement within a narrowly bounded or restricted location, including prisons, closed camps, detention facilities or airport transit zones, where the only opportunity to leave this limited area is to leave the territory.  These Guidelines apply to the situation of the asylum seekers aboard the Tampa.
25. The Guidelines affirm that the only permissible grounds for detention are the four grounds provided for in EXCOMM Conclusion No.44 (XXXVII). 
26. Importantly, detention cannot be used to inhibit a person's opportunity to apply for asylum: see Guideline 5.
27. Detention of asylum seekers for any other purpose, "for example as part of a policy to defer future asylum seekers, or to dissuade those who have commenced their claims from pursuing them, is contrary to the norms of refugee law. It should not be used as a punitive or disciplinary measure for illegal entry or presence in the country, and should be avoided for failure to comply with administrative requirements or breach of reception centre, refugee camp, or other institutional restrictions". 
28. In summary, the Commission submits that the Judge's findings on the issue of detention are correct.
EXPULSION OF ALIENS
29. No error of law is disclosed in relation to the Judge's findings on the power to expel: see paras 110 - 122 of the Judgment.
30. If it is accepted that the asylum seekers are in the territorial jurisdiction of Australia, which the Commission submits is the case because they are within the territorial waters of Australia,  then the asylum seekers are subject to the same guarantees in relation to expulsion. This is confirmed by the passages in Re Bolton, Lim's Case and Mayer referred to in paras 114 to 119 and 121 in the reasons for judgment. See also Znaty v Minister for Immigration (1972) 126 CLR 1.
31. The Commission submits that the intention of sections 198-199 of the Migration Act which authorise the removal of an unlawful non-citizen is intended to operate as the basis on which the Executive may remove a non-citizen from Australia: see Kopiev v Minister for Immigration & Multicultural Affairs  FCA 1831 (15 December 2000) and Re Minister for Immigration and Multicultural Affairs & Anor; Ex Parte SE  HCA 72 (25 November 1998). The Commission submits that Judge's finding at para 122 that the operation of the Migration Act leaves 'no room for the exercise any prerogative power' discloses no error. The approach is correct and the principles developed in Attorney-General v De Keyser's Royal Hotel Ltd  AC 508 were confirmed in Laker Airways v Department of Trade  QB 643. As Roskill LJ observed at 722 where the operation of the terms of the statute and the prerogative power are inextricably interwoven, it is not possible for them to 'march side by side'. This is particularly so where the question concerns one of the interaction of international obligations and the operation of a domestic statute: see Lawton LJ at 728.
32. Having regard to the consequences of an order to expel a person, it is submitted that such orders should be made only where there is strict compliance with the law  and in the present case in accordance with the Migration Act.
COSTS FOR INTERVENERS
33. The Commission submits that there was no error on the part of the Judge in ordering the Commonwealth Appellants to pay the costs of the interveners.
34. In Corporate Affairs Commission v Bradley (1974) 1 NSWLR 391 at 396, Hutley J said:
A person accepted as an intervener becomes a party to the proceedings with all the privileges of a party. Thus he can appeal, tender evidence and participate fully in all aspects of the argument. His position is quite different from that of an amicus curiae.
35. Once leave to intervene is granted, the intervener participates in the proceedings on such terms and conditions as determined by the Court, as Brennan CJ noted in Levy v State of Victoria (1997) 189 CLR 579 at 604-605.
36. The Court's discretion under section 43 of the Federal Court of Australia Act is broad and there should be no fetter on the Court determining that costs be ordered in favour of an intervenor. See generally in relation the principles for intervenor's costs in O'Keeffe Nominees Pty Ltd v BP Australia Ltd (No.2) (1995) 55 FCR 591.
37. In summary, the Commission submits that the Commonwealth Appellants' appeal be dismissed.
38. The Commission requests that if appropriate it be permitted to make submissions in response to the Commonwealth Appellants' submissions which may not be addressed in these written submissions.
13 September 2001
John Basten QC
Counsel for the Second Respondent in both Commonwealth Appeals
Filed on behalf of the Human Rights and Equal Opportunity Commission
Ms Susan Mary Elizabeth Roberts
Solicitor, Human Rights and Equal Opportunity Commission
133 Castlereagh Street Tel: (02) 9284 9600
SYDNEY NSW 2001
1.Croome v State of Tasmania (1997) 191 CLR 119. In relation to comparable organisations in the United States, the American Civil Liberties Union appears as a party and amicus. See recently in Zadvydas, Kestutis v. Underdown, Lynne, et al., No. 99-7791 and Reno et al. v. Ma, Kim Ho, No. 00-0038 in the Supreme Court decided on 28 June 2001 where the ACLU appeared in proceedings concerning immigration detention.
2.Article 4 of the ICCPR.
3.United Nations Human Rights Committee, General Comment No. 8 (1982), paragraph 1.
4.United Nations Human Rights Committee, General Comment No. 8 (1982), paragraph 4.
5.M Nowak, UN Covenant on Civil and Political Rights CCPR Commentary, 1993 at page 172.
6.United Nations Human Rights Committee, Communication No. 305/1988 adopted on 23 July 1990.
7.Nowak above n 4 at page 173.
8.United Nations Human Rights Committee, Communication No. 560/1993, adopted 30 April 1997.
9.Including for the purposes of preventing a person effecting an unauthorised entry into a country (see article 5(1)(f)).
10.(1992) 22 EHRR 533
11.See paragraph 42
12.See paragraph 45
15.See paragraph 81 of Victorian Council for Civil Liberties Incorporated v Minister for Immigration and Multicultural Affairs  FCA 1297.
16.See re the Convention AB 126.34, per WJ Farmer. Note in addition that evidence was given to the effect that it is not anticipated that there will be a review process for unsuccessful applicants for refugee status in Nauru (see AB 127.28, per WJ Farmer).
17.Unreported CO/0074/01, CO/4559/00, CO/4553/00, 7 September 2001, Collins J.
19.Being (i) to verify identity; (ii) to determine the elements on which the claim for refugee status or asylum is based; (iii) in cases where asylum-seekers have destroyed their travel and/or identity documents or have used fraudulent documents in order to mislead the authorities of the State in which they intend to claim asylum and (iv) to protect national security and public order.
21.Section 15B of the Acts Interpretation Act 1902 (Cth).
22.Re Bolton: Ex parte Beane (1987) 162 CLR 514 at 521, 528-529, Barton v Commonwealth (1974) 131 CLR 477 at 483. See also the Human Rights Committee's General Comment on Article 13 of the ICCPR - No.15.
Last updated 7 January 2002.