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Research Brief no. 1 2004–05
The High Court and indefinite detention: towards a national bill
of rights?
Peter
Prince
Law and Bills Digest Section
16 November 2004
Contents
Executive summary
Introduction
Conflict on the High Court
Immigration detention and the Constitution
Detention and the ‘aliens’ power
The minority view
The majority view
Analysis
Purpose and validity
Purpose and proportionality
Towards a national bill of rights?
Merits of legislation
Indefinite detention and a bill of rights
Conclusion—the necessity of detention
Parliament’s intention
Longevity of High Court decision
Endnotes
In August 2004 Australia’s High Court declared by a bare majority (4:3)
that failed asylum seekers who have nowhere to go and who pose no danger
to the community can be kept in immigration detention indefinitely.
In Al-Kateb v. Godwin(1) and Minister
for Immigration and Multicultural and Indigenous Affairs v. Al Khafaji,(2)
the majority of the High Court said that provided the Immigration Minister
retained the intention of eventually deporting such people, the detention
would be valid even if it was potentially indefinite. The minority judges,
however, said that once there was no reasonable prospect in the foreseeable
future that a failed asylum seeker could be deported, continued detention
would no longer be for a purpose within the ‘aliens’ power in the Constitution.
In this situation, detention would become ‘punishment’ that under the
Constitution can only be imposed by the courts (through charge and trial)
not by government order.
The majority indicated that the principle in Lim’s case (1992)(3)—limiting
immigration detention to what was ‘reasonably necessary’ for a valid purpose—had
been misunderstood. The Lim principle applied when a person was
detained under the government’s general executive power (e.g. for quarantine,
mental health reasons, arrest pending trial etc). In contrast, Parliament
had unlimited power to detain ‘aliens’ unless otherwise prohibited by
the Constitution.
Al-Khateb and Al Khafaji will be cited by those
who argue that basic freedoms for people within Australia’s jurisdiction
are not adequately protected and there is a need for a national ‘bill
of rights’. Proponents will focus on Justice McHugh’s contention that
the outcome for Mr Al-Khateb and Mr Al Khafaji may be ‘tragic’ but without
a bill of rights the High Court could do little.
The majority’s rejection of the Lim principle may be correct in
terms of strict constitutional interpretation. As the United Nations Human
Rights Commission said in A v. Australia (1997),(4)
however, courts should be able to consider in a particular case whether
detention is necessary. This could occur through the adoption of provisions
ensuring freedom from arbitrary detention along the lines of the International
Covenant on Civil and Political Rights or the new ACT Human Rights Act.
Alternatively, this could happen under current Australian law if it is
accepted that the notion of ‘proportionality’ is relevant to whether detention
is for a valid purpose under the ‘aliens’ power.
There is some prospect a future case could overturn the decision
in Al-Kateb and Al Khafaji, not least because the High Court
was seriously divided over important constitutional issues. Only three
of the majority judges provided substantive reasons, and there were strong
minority judgments, including from the Chief Justice.
Three High Court judgments on immigration detention in August 2004 may
well be seen as a watershed in Australian legal history. In Al-Kateb(5)
and Al Khafaji(6) Australia’s High
Court declared that people who pose no danger to the community and have
committed no crime can be detained indefinitely. In Behrooz(7)
the High Court said that even if a detainee were treated in a ‘harsh or
inhumane’ way, the detention itself would still be authorised by the Migration
Act 1958. The decisions prompted calls for a national bill of rights
and changes to the Constitution. And despite winning the cases, the Federal
Government’s response indicated discomfort with the High Court’s position.
This paper considers the issue of indefinite detention in Al-Kateb
and Al Khafaji. A further paper will look at the
judgment in Behrooz and the legality of ‘harsh and inhumane’ treatment
of detainees.
In Al-Kateb and Al Khafaji, the High Court
decided by a bare majority (4:3) that keeping an ‘unlawful non-citizen’
in ‘immigration detention’ indefinitely was not unconstitutional. Each
of the judges, except Justice Dyson Heydon, gave detailed reasons for
their decision. The cases involved ‘an unusually combative series of judgments’,(8)
highlighted in particular by strong attacks from Justices McHugh and Kirby
on each other’s reasoning.(9)
The cases involved two failed asylum seekers who have been unable to
leave Australia. Ahmed Ali Al-Kateb, a stateless Palestinian, arrived
in Australia by boat in December 2000. After legal appeals failed, he
asked to be returned to Kuwait (his birthplace) or Gaza. But this needed
cooperation from other countries (including in the latter case Israel)
which was not forthcoming. After the Federal Court’s April 2003 decision
in Al Masri (see below) Mr Al-Kateb was released
to live in Sydney—despite objections from the Federal Government—pending
the High Court’s verdict on his continued detention.
Abbas Al Khafaji is an Iraqi national who grew up in Syria and arrived
in Australia without documents in January 2000. He met the criteria in
the Migration Act for refugee status, but was denied asylum because changes
to the Act in 1999 removed any protection obligation where sanctuary could
have been sought from a third country, in this case Syria. However after
the Federal Court found that despite his request to go back there was
no real prospect of Syria or any other country accepting Mr Al Khafaji,
it ordered his release (citing the Al Masri case) subject to reporting
and other conditions.
After the High Court decision overruling their release, the Immigration
Minister ordered a review of all cases involving long-term detainees.
Despite being successful in Al-Kateb and Al Khafaji, the
Minister appeared uncomfortable with the outcome:
It (detention) is not for life; there is a ministerial
discretion and there is the opportunity for people to be given relief
and stay in Australia … I have asked for a review of all the long-term
detention cases to come to me. I will have a look at them and see if
they warrant intervention.(10)
The review was completed in a matter of weeks. The Minister used her
discretionary power under the Migration Act to grant Mr Al-Kateb and Mr
Al Khafaji bridging visas, giving them temporary permission to live in
the Australian community. However the claims of 13 others, including an
asylum seeker who had been held in detention for six years, were rejected.(11)
Commonwealth legislation—including immigration detention laws—cannot
contravene prohibitions in the Constitution.
Under the current Migration Act, people who arrive in Australia without
a valid visa are ‘unlawful non-citizens’ but—importantly—do not commit
a criminal offence. Since they have committed no crime, they cannot be
‘punished’. Under the Australian Constitution, punishment can only be
imposed by the courts after determining guilt for a particular
crime.(12) At the heart of the debate in Al-Kateb and
Al Khafaji was whether indefinite detention by immigration authorities—i.e.
by the federal government—would amount to ‘punishment’ and therefore
be unconstitutional.
Until 1994 it was a crime to enter Australia in contravention of the
Migration Act, punishable by six months in prison and deportation. The
Act also provided for detention by the government ‘without adjudication
of criminal guilt pending deportation and … determination of status’.(13)
The High Court said in Koon Wing Lau (1949) that provisions
of the latter type were valid because they did ‘not create or purport
to create a power to keep a deportee in custody for an unlimited period’.(14)
Instead they implied that ‘unless within a reasonable time [the deportee]
is placed on board a vessel he would be entitled to his release …’ (15)
Since 1994 the Migration Act has provided for mandatory detention by
the government of any unlawful non-citizen.(16) While entry
without a visa is no longer a crime, such a person ‘must be kept
in immigration detention until he or she is removed, deported or
granted a visa’.(17) Removal must occur ‘as soon as reasonably
practicable’,(18) but no time limit is specified for this to
be achieved.
Detention
and the ‘aliens’ power
In addition, the Commonwealth only has power under the Constitution to
make laws on specific subjects.(19) Commonwealth legislation
must be sufficiently connected with or, in the words of the Constitution,
be ‘with respect to’ one of these subjects to be valid.
In Lim (1992) the High Court (Justices Brennan, Deane and Dawson)
said it had long been accepted that the Commonwealth’s power under the
Constitution to make laws with respect to ‘aliens’: (20)
… includes not only the power to make laws providing
for the expulsion or deportation of aliens by the Executive but extends
to authorizing the Executive to restrain an alien in custody to the
extent necessary to make the deportation effective.(21)
On this basis detention of an alien without intervention by a court would
be within the ‘aliens’ power if it was ‘reasonably capable of being seen
as necessary’ for deportation or consideration of an entry application.(22)
Similarly Justice Gaudron said that if detention laws were ‘appropriate
and adapted’ for such purposes they would be within the ‘aliens’ power.(23)
However if a detention provision was not ‘appropriate and adapted’ to
regulating the entry or facilitating the removal of non-citizens(24)
it would not be a law with respect to the subject of ‘aliens’ and
would be invalid.(25)
The particular provisions in the Migration Act considered in Lim
included a 273 day limit on detention(26) and enabled detainees
(in theory) to end their own detention by requesting removal from Australia.
The Court in Lim concluded therefore that the detention did not
go beyond what was ‘appropriate and adapted’ or ‘reasonably capable of
being seen as necessary’ for deportation or regulating entry. (27)
In Al Masri (2003), the Federal Court applied the
principle laid down by the High Court in Lim. It approved the release
(subject to reporting and other conditions) of a person who had been refused
refugee status, and like Mr Al-Kateb had then asked to be returned to
Gaza. On the day of his departure he was informed that permission from
neighbouring countries could not be obtained. The Federal Court said that
if a deportee had nowhere to go and there was no ‘real likelihood or prospect
of removal in the reasonably foreseeable future’,(28) continued
detention may not be ‘reasonably capable of being seen as necessary’ and
‘a serious question of invalidity would arise’.(29) If there
were no real prospect of removal, the detention would have a ‘tenuous’
connection at best with the purpose of deportation and would essentially
amount to punishment.(30)
However not all members of the High Court agreed with the Lim
principle. Justice McHugh said in Lim that:
If a law of the Parliament can be characterized as a
law with respect to aliens, it is valid whatever its terms, provided
that the law does not infringe any express or implied prohibition in
the Constitution.(31)
Even if detention ‘went beyond what was reasonably necessary’ for deportation
or regulating entry it would still be a law ‘with respect to’ aliens.(32)
In a particular case it might be invalid because it amounted to ‘punishment’
that could be imposed only by the courts.(33) But beyond this
there was nothing to limit the Commonwealth’s power to detain aliens.
Justice McHugh’s position—accepted by the majority in Al-Kateb
and Al Khafaji—is consistent with orthodox constitutional theory
which says that a court will not look at the merits of legislation if
a law has a ‘sufficient connection’ with a subject in the Constitution.(34)
As Justice Dawson explained in Leask (1996):
if that connection is established, it matters not how ill-adapted,
inappropriate or disproportionate a law is or may be thought to be.(35)
The minority in Al-Khateb and Al Khafaji (Chief
Justice Gleeson and Justices Gummow and Kirby) upheld the Federal Court’s
approach in Al Masri.
Chief Justice Gleeson emphasised that the authority of
the Federal Government under the Constitution ‘to detain an alien in custody’
was limited to the purpose of removal or considering an application to
enter Australia.(36) In addition a fundamental principle of
legality came into play where indefinite detention by the executive government
was possible, namely that:
Courts do not impute to the legislature an intention
to abrogate or curtail certain human rights or freedoms (of which personal
liberty is the most basic) unless such an intention is clearly manifested
by unambiguous language, which indicates that the legislature has directed
its attention to the rights or freedoms in question, and has consciously
decided upon abrogation or curtailment.(37)
Since the Migration Act did not say what was to happen to people like
Mr Al-Kateb and Mr Khafaji if (through no fault of their own) they could
not be deported, they were entitled to be released—subject to conditions
to ensure they could be removed if this became ‘reasonably practicable’.(38)
Chief Justice Gleeson said a power to detain people indefinitely was more
likely to be valid if this was discretionary not mandatory, with individual
circumstances able to be taken into account—especially the ‘danger to
the community and likelihood of absconding’.(39)
Justice Gummow noted the US Supreme Court decision in Hamdi
v. Rumsfeld (2004) where Justice Scalia stated:
The very core of liberty secured by our Anglo-Saxon system
of separated powers has been freedom from indefinite imprisonment at
the will of the Executive.(40)
Like Chief Justice Gleeson, Justice Gummow said that it was important
if possible to avoid an interpretation of the Migration Act that authorised
detention for an unlimited time.(41) The Act required removal
of unlawful non-citizens ‘as soon as reasonably practicable’, with detention
until this occurred. Once it became unlikely that Mr Al-Kateb or Mr Al
Khafaji could be removed there was no basis under the Act for detaining
them. Continued detention was not justified ‘by the hope of the Minister,
triumphing over present experience’ that at some time in the future some
country might accept the detainees.(42) This would allow the
executive government to declare that detention was still for the constitutionally
permissible purpose of deportation. As the landmark Communist Party
Case (1951)(43) established, it is for the courts not the
executive to decide the constitutional validity of government actions.(44)
According to eminent constitutional lawyer Professor Leslie Zines:
… no law can give power to any person (other than a court)
to determine conclusively any issue upon which the constitutional validity
of the law depends. The second doctrine is sometimes metaphorically
summed up in the maxim 'the stream cannot rise above its source' …(45)
Justice Gummow said the key issue was not whether immigration detention
was ‘punitive’ or ‘non-punitive’ but what its purpose was. ‘Aliens’ could
not be deprived of their liberty for unlimited purposes.(46)
If there was no criminal offence, detention would only be valid if it
was for ‘the entry, investigation, admission or deportation of aliens.’(47)
Justice Kirby strongly backed the relevance of the Communist
Party Case, declaring ‘I would not have this Court surrender the power
of unlimited executive detention to a Minister’s intention’.(48)
Stating that ‘indefinite detention at the will of the Executive … is alien
to Australia’s constitutional arrangements’,(49) he went beyond
the words of the Migration Act to find constraints in international law
on detention without charge or trial.(50) In his view, the
High Court:
… should be no less vigilant in defending those arrangements
… than the United States Supreme Court has lately been in responding
to similar Executive assertions in that country.(51)
While Australia has no equivalent of the US Fifth Amendment (prohibiting
deprivation of liberty without ‘due process of law’) he said the requirement
in our Constitution that only courts can impose punishment has a similar
effect.(52) Citing cases from the United Kingdom and Hong Kong
as well as the United States,(53) he said:
… the common thread that runs through all these cases
is that judges of our tradition incline to treat unlimited executive
detention as incompatible with contemporary notions of the rule of law.(54)
In Justice Kirby’s view, the isolation of Australian constitutional law
‘from the dynamic impact of international law is neither possible nor
desirable’.(55) National courts have a duty to interpret legislation
such as the Migration Act as far as possible to be consistent with ‘human
rights and fundamental freedoms of humanity’ as stated in international
law.(56) A failure to do so would lead to decisions that would
be viewed in the future ‘with a mixture of curiosity and embarrassment’.(57)
In contrast, the majority judges rejected the approach in Al
Masri. Far from requiring the release of detainees if there
was no real prospect they could leave Australia, Justices McHugh, Hayne
and Callinan (supported by Justice Heydon) said the Migration Act clearly
stated they must be detained until they were removed or given a
visa—however long that might take.(58) Since the Act was unambiguous,
there was no room for finding an intention not to abrogate basic freedoms
or for resorting to international law.(59)
Justice McHugh indicated that the principle in Lim—limiting
detention to what was ‘reasonably necessary’ for a valid purpose—had been
misunderstood. The Lim principle applied when a person was detained
under the government’s general executive power (e.g. for quarantine, mental
health reasons, arrest pending trial etc)(60) or where detention
was merely ‘incidental’ to some other constitutional head of power.(61)
But it was not relevant when a specific provision in the Constitution
such as the ‘aliens’ power authorised detention. Parliament had unlimited
power to make laws affecting aliens unless the Constitution otherwise
prohibited this.(62) In other words, provided detention was
for a purpose relevant to the ‘aliens’ power it would be valid—unless
it became ‘punishment’ that only courts could impose.
In his view immigration detention would cease to be for the valid purpose
of deportation only if it continued after removal had become ‘reasonably
practicable’.(63) Moreover detention for the purpose of deportation
or to prevent aliens entering the Australian community was ‘protective’
and did not amount to punishment.(64)
It was ‘not true’ that indefinite detention at the will of the executive
government was an alien concept in this country. In the First and Second
World Wars many people had been detained under National Security Regulations
because the government considered them disloyal or a threat to the security
of the country.(65) This ‘protective’ detention was not limited
to people born overseas. It had been upheld by the High Court, and ‘there
was no reason to think that this Court would strike down similar regulations
if Australia was again at war …’(66)
Justice McHugh said Justice Kirby’s view that the Australian Constitution
should be read consistently with international law was ‘heretical’.(67)
He accepted that ambiguous legislation should be interpreted in
conformity with the rules of international law that existed when the
law was enacted.(68) And he agreed that political, social
and economic developments inside and outside Australia since 1900 could
help elucidate the meaning of particular provisions in the Constitution.(69)
But he refused to accept that the meaning of the Constitution
could be altered when, for example, the Australian Government signed a
new international treaty, much less that it could be ‘affected by rules
created by the agreements and practices of other countries’.(70)
Making the Constitution subject to the rules of international law would
in turn make the Australian Parliament subject to international rules
and conventions. This would be contrary to autonomous national government,
and would amount in practice to amending the Constitution without consulting
the people.(71)
Justice McHugh said the outcome for Mr Al-Khateb and Mr Al Khafaji was
‘tragic’(72) and suggested the remedy lay in adopting a bill
of rights for Australia. Without this there was little the High Court
could do about indefinite detention:
As long as the detention is for the purpose of deportation
or preventing aliens from entering Australia or the Australian community,
the justice or wisdom of the course taken by the Parliament is not examinable
in this or any other domestic court. It is not for courts, exercising
federal jurisdiction, to determine whether the course taken by Parliament
is unjust or contrary to basic human rights.(73)
Justice Hayne said more directly than Justice McHugh that
the principle from Lim’s case was wrong. He said that the power
to make laws with respect to ‘aliens’ and ‘immigration’ extends to:
… permitting exclusion from the Australian community—by
prevention of entry, by removal from Australia, and by segregation
from the community by detention in the meantime.(74)
On this basis, there was no need to ask whether provisions in the Migration
Act authorising indefinite detention were ‘appropriate and adapted’ or
‘reasonably necessary’ or ‘reasonably capable of being seen as necessary’.(75)
He accepted that there was ‘no real likelihood or prospect’ of Mr Al-Kateb’s
deportation in the foreseeable future, but this did not mean removal would
never occur:
Whether and when it occurs depends largely, if not entirely,
upon not only the course of events in the Middle East … but also upon
the willingness of other countries to receive stateless Palestinians.(76)
Justice Hayne said there must be doubt whether mandatory detention of
unlawful non-citizens complies with the International Covenant on Civil
and Political Rights (ICCPR).(77) But the meaning of the Migration
Act was clear so there was no basis for referring to ‘opinions expressed
by the (United Nations) Human Rights Committee’ or other sources of international
law.(78)
Justice Hayne also said there was no existing statutory basis for allowing
conditional release of immigration detainees.(79) He noted,
however, that no objection had been raised with the court about the introduction
of legislation to permit this.(80)
Justice Callinan rejected the approach of the United States Supreme
Court in Zadvydas v. Davis (2001)(81) which said that
under current US law ‘aliens’ could only be ‘held in confinement until
… there is no significant likelihood of removal in the reasonably foreseeable
future’.(82) Justice Callinan said Australia did not have the
constitutional ‘complication’ of the US Fifth Amendment and that in any
case he preferred the view of the minority in Zadvydas, which affirmed
that:
Due process does not invest any alien with a right to
enter the United States, nor confer on those admitted the right to remain
against the national will. Nothing in the Constitution requires admission
or sufferance of aliens hostile to our scheme of government.(83)
Justice Callinan said the reasoning in Al Masri
was ‘flawed’.(84) It would only be if the government ‘formally
and unequivocally abandoned’ the aim of removing a particular individual
that detention would no longer be for the valid purpose of deportation:(85)
The fact that deportation may not be imminent, or even
that no current prediction as to a date and place of it can be made,
does not mean that the purpose of the detention, deportation, has been
or should be regarded as abandoned.(86)
The test for constitutional validity was ‘whether the Minister … continues
to have the intention of removing the appellant from the country’.(87)
Justice Callinan agreed that the common law’s protection of liberty was
‘both fundamental and ancient’, and that personal liberty should never
be infringed ‘without sufficient cause’.(88) In his view, however,
‘the statutory purpose of deportation provides sufficient cause here’.(89)
Since the Migration Act set no time limit for immigration detention, ‘a
very great deal of time’ might elapse before detainees could be deported.(90)
But that did not allow a court ‘to hold that a person who has no right
to enter and reside in the community must be released into it.’(91)
The majority’s rejection (most plainly in Justice Hayne’s judgment) of
the Lim principle may be correct in terms of strict constitutional
interpretation. If constitutional authority for immigration detention
comes directly from the ‘aliens’ provision, the relevant law does not
need to be ‘appropriate and adapted’, ‘reasonably necessary’ or ‘reasonably
capable of being seen as necessary’ to be within power.(92)
However, as Justice Gummow pointed out:
… it could not seriously be doubted that a law providing
for the administrative detention of bankrupts in order to protect the
community would be a law with respect to bankruptcy and insolvency(93)
… or that a law providing for the involuntary detention of all persons
within their homes on census night would be a law with respect to census
and statistics.(94)
As he suggested, the fact that Parliament under section 51 of the Constitution
has power to make legislation on these subjects does not by itself make
such laws valid.(95)
Both the majority and minority judges agreed that immigration detention
had to be for a valid purpose related to the ‘aliens’ or immigration
powers. Otherwise detention could amount to the type of imprisonment that
could only be imposed by the courts. This raises two issues.
Firstly, when assessing the purpose of continued detention, the
majority judges—unlike the minority—deferred to the view of the government.
As Justice Callinan said, the test was whether the government continued
to have the ‘intention’ of removing the detainee:
So long as the purpose of deportation has not been abandoned
[by the government] … it is the obligation of the courts to ensure that
any detention for that purpose is neither obstructed nor frustrated.(96)
In theory courts could test whether government authorities genuinely
retained the intention of deporting a person. As the minority pointed
out, however, in practice this allows the government to declare that detention
is for a valid constitutional purpose. This appears to be contrary to
the ‘stream cannot rise above its source’ doctrine in the Communist
Party Case. As Justice Gummow said, ‘the continued viability of the
purpose of deportation or expulsion cannot be treated by the legislature
as a matter purely for the opinion of the executive government.’(97)
Secondly, the emphasis by both sides on the need for a relevant purpose
for immigration detention suggests the test for constitutional validity
should arguably be the same as for laws based on ‘purposive’ powers in
the Constitution.(98) In such cases validity depends on whether
the law is ‘proportionate’ or ‘appropriate and adapted’ or ‘reasonably
necessary’ for the particular purpose.(99) As Justice Deane
explained in the Franklin Dam case (1983),
there must be ‘reasonable proportionality between the designated purpose
or object and the means which the law embodies for achieving or procuring
it’.(100)
Since the early 1990s the test of proportionality has become ‘increasingly
important’.(101) As Professor Zines explains, its use has not
been confined to a set list of powers in the Constitution:
More attention has been paid in recent years to the question
whether a law is disproportionate to a legitimate end in all cases
… where the notion of purpose is relevant.(102) (emphasis
added)
Professor Zines notes(103) that the High Court in the 1990s
rejected the broad principle stated by Justice Kitto in Herald and
Weekly Times (1966) that when a law is directed at an end or purpose
‘within power’, how far the law could go:
… was a question of degree for the parliament to decide,
and the fact that the parliament has chosen to go to great lengths—even
the fact, if it be so, that for many persons difficulties are created
which are out of all proportion to the advantage gained—affords no ground
of constitutional attack.(104)
In Cunliffe (1994)(105) Justice Brennan, according
to Professor Zines, ‘seemed to confine the principle expressed by Kitto
J to circumstances where the effect and operation of the law established
the connection with power without regard to its purpose’.(106)
Both sides in Al-Kateb and Al Khafaji plainly
saw the ‘notion of purpose’ (to use Professor Zines’ words) as central
to the validity or otherwise of the detention provisions of the Migration
Act. Continued detention would only be valid under the Constitution if
it were for the purposes of enabling deportation, assessing an entry application
or exclusion from the community in the meantime. If, as Professor Zines
suggests, the Australian Constitution does not authorise governments to
employ whatever means they choose and the validity of a law depends on
it being ‘proportionate’ to a legitimate purpose, then the constitutional
legality of indefinite detention will depend on whether in a particular
case it is ‘proportionate’ or ‘reasonably necessary’ for deportation,
assessment or exclusion.(107)
On this basis, it would be open for a court to find, as in Al Masri,
that where there is no real prospect of removal within a reasonable time,
and where an individual satisfies the court that if released he or she
will comply with appropriate conditions, then continued and potentially
indefinite detention may be ‘disproportionate’ or not ‘reasonably necessary’
for the purpose of deportation and removal etc.
The position of the majority in Al-Kateb and Al Khafaji
may offer some support for such an approach. Justices McHugh and Hayne
said that detention legislation, i.e. the ‘law itself’, does not
need to be ‘proportionate’ or ‘reasonably necessary’ for a ‘non-punitive’
purpose.(108) However even if legislation is valid, a particular
application of the law may not be. Justice McHugh has consistently stated
that if the actual imprisonment or detention ‘goes beyond what
is reasonably necessary’ for a ‘non-punitive object’, it will amount to
‘punishment’ in contravention of the Constitution.(109) In
Re Woolley (2004) he said, for example, that if the purpose of
detention was to exclude a person from the community while their visa
application was being processed, this must be done within a ‘reasonable
time’ otherwise ‘the proper inference will ordinarily be’ that
the detention is punitive.(110) In Al-Kateb and Al
Khafaji, however, Justice McHugh was unable to find any similar
time limit on the detention of a person for the purpose of their subsequent
removal.
The decision of the High Court in Al-Khateb and Al Khafaji
to allow potentially indefinite immigration detention where deportation
is not feasible seems likely to add to the impetus for a national bill
of rights. Proponents will focus on Justice McHugh’s statement that:
Eminent lawyers who have studied the question firmly
believe that the Australian Constitution should contain a Bill of Rights
which substantially adopts the rules found in the most important of
the international human rights instruments. It is an enduring—and many
would say just—criticism of Australia that it is now one of the few
countries in the Western world that does not have a Bill of Rights.
(111)
Immediately following the decision, the Federal President of the Australian
Labor Party,(112) the Australian Democrats and the Greens(113)
all called for a bill of rights to override the Migration Act. Democrats
leader Senator Andrew Bartlett called on the Australian Government to:
… investigate the implications of the High Court’s interpretation
of the Australian Constitution that allows for lifetime administrative
detention, with a view to enacting a Bill of Rights in order to protect
people within the jurisdiction of Australia from such abuse of basic
human rights.(114)
There were similar calls in the media. An editorial in The Age
said:
By ruling that the Government has the right to indefinitely
detain individuals who have not been charged with an offence and who
have nowhere else to go, the High Court has set a dangerous precedent
... The Age has argued in the past that Australia should adopt
a bill of rights and needs to debate whether it be part of the Constitution,
as in the US, or legislated, as in Britain and Canada. Such a bill would
proclaim and protect the fundamental rights and freedoms to which our
citizens are entitled.(115)
There has been a longstanding belief that Australia has no need for a
bill of rights. In 1967 former Prime Minister Robert Menzies argued that
‘the rights of Australians are as adequately protected as they are in
any other country in the world’.(116) Similarly in June 2004
Commonwealth Attorney-General Phillip Ruddock said he believed that the
Constitution, the rule of law and the nation’s democratic institutions
did enough to protect the rights of the Australian people.(117)
New South Wales Premier Bob Carr stated that under the Australian tradition
parliaments are elected to make laws involving judgments about the rights
and interests of the public. If their decisions are unacceptable, ‘the
community can make its views known at regular elections’.(118)
In his opinion:
A bill of rights is an admission of the failure of parliaments,
governments and the people to behave in a reasonable, responsible and
respectful manner. I do not believe that we have failed.(119)
Al-Khateb and Al Khafaji will be cited by those
who argue on the contrary that basic freedoms of the Australian people
are not adequately protected. According to constitutional law expert Professor
George Williams:
The protection the constitution gives to human rights
is deficient. Constitutional freedoms are few, and many basic rights
receive no protection … As well as failing to protect many basic rights,
the constitution fails to guarantee that all Australians are entitled
to the rights it does offer.(120)
Likewise, Monash University human rights specialists Melissa Castan and
Sarah Joseph contend that:
The Constitution currently fails to protect the basic
human rights standards that contemporary Australians might (wrongly)
assume are recognised, protected and enforced … the federal Constitution
guarantees few fundamental rights and freedoms.(121)
Arbitrary detention features strongly in examples given by such commentators
of the Constitution’s failure to protect fundamental rights. Castan and
Joseph note that in Kable (1996)(122) the High Court
said that the NSW Parliament could not give the NSW Supreme Court power
to order the detention without trial of a particular individual as a danger
to community. But there was nothing to stop State parliament authorising
a Minister or a police chief to detain people without charge:
Detention at behest of an administrator would have been
a greater infringement on Kable’s liberty … Administrators are more
likely to have been influenced by public opprobrium against Kable.(123)
In Kruger (1997)(124)—the ‘stolen generation’ case—the
High Court ruled that the forced removal of Aboriginal children and compulsory
detention of Aborigines on reserves by the Chief Protector of the Northern
Territory between 1918 and 1953 did not amount to ‘punishment’ in contravention
of the Constitution because it was for their own welfare and protection.
As Castan and Joseph say, ‘bigotry and ignorance of Aboriginal culture
prevailed’ at the time so that ‘judgments regarding Aboriginal welfare
would have been made in an ill-informed manner’.(125) But there
was nothing in the Constitution that prevented such a policy. As Chief
Justice Brennan said:
It can be accepted that the detention of Aboriginal children
and keeping them away from their mothers and families in Aboriginal
institutions or reserves might well have caused mental harm at least
in some cases … In retrospect many would say the risk … was too great
to permit even a well-intentioned policy of separation to be implemented.
But the existence of that risk did not deny the legislative power to
make the laws which permitted the implementation of that policy.(126)
The High Court’s ruling in Al-Khateb and Al Khafaji
adds to the examples of detention without charge or trial that advocates
of a bill of rights for Australia can point to. The argument for introducing
a bill of rights is clearly strengthened by the court’s finding that the
government can indefinitely detain failed asylum seekers who are not guilty
of any crime even if there is no risk that they may abscond or pose a
threat to the community.
However the cases also highlight a broader and more significant issue
supporting the case for a bill of rights. As the University of Canberra’s
Bede Harris says:
It is assumed that most Australians would recoil from
the proposition that a law, even one enacted by a democratically elected
Parliament, should be valid irrespective of its substantive content.(127)
But as Harris points out there is no doubt that with limited exceptions
‘this proposition is correct’.(128) He notes the exchange before
the High Court in Kartinyeri(129) (1998)—the Hindmarsh
Island Bridge case—in which the Solicitor-General for the Commonwealth
suggested (in response to questioning by Justice Kirby) that Nuremberg
type race laws or South African apartheid laws would be permissible under
the ‘race’ power(130) in Australia’s Constitution.(131)
As Harris says, this extreme example shows how ‘Parliament is free to
legislate as unjustly as it pleases (so long as it stays within the heads
of power conferred by the Constitution) …’(132)
This is confirmed by the decision in Al-Khateb and Al Khafaji.
The majority rejected the idea that immigration detention laws were limited
to what was ‘reasonably capable of being seen as necessary’. As long as
the laws were for a purpose related to the ‘aliens’ or immigration powers
in the Constitution, it did not matter whether they were ‘unjust or contrary
to basic human rights’ (Justice McHugh), contravened the ICCPR (Justice
Hayne) or infringed the common law’s ‘fundamental and ancient’ protection
of personal liberty (Justice Callinan).
As Harris says in relation to Kartinyeri, the High Court’s inability
or unwillingness to review the merits of Australia’s detention laws ‘does
at least focus our attention on the reason why we should have a Bill of
Rights’.(133)
Justice Kirby said that the cases from the United States, the United
Kingdom and Hong Kong(134) that he referred to in his judgment
in Al-Khateb and Al Khafaji:
… illustrate singly, and even more forcefully in combination,
the resistance of the judges of the common law, since early times and
until the present age, to the notion of unlimited executive power to
deprive individuals of liberty.(135)
As Chief Justice Gleeson pointed out, however, in those countries ‘the
constitutional and statutory context is controlling, and differs’.(136)
Significantly each of these countries has a bill of rights.(137)
As Justice McHugh noted, the United States Supreme Court in Zadvydas
(2001) said the existence of the Fifth Amendment in that country meant
that a law ‘permitting indefinite detention of an alien would raise a
serious constitutional problem’.(138)
Australia’s first bill of rights is the Australian Capital Territory’s
Human Rights Act 2004.(139) It states that ‘everyone
has the right to liberty and security of person. In particular, no-one
may be arbitrarily arrested or detained.’(140) This provision
is taken from the ICCPR.(141) As the law of an Australian territory,
the ACT Human Rights Act is overridden by contradictory Commonwealth legislation,
such as the detention provisions in the Migration Act. However the provisions
on personal liberty in the ACT legislation might be seen as a model for
those advocating a national bill of rights. In the context of Al-Kateb
and Al Khafaji, the issue is whether a prohibition
on ‘arbitrary detention’ would, if adopted nationally, prevent indefinite
detention of failed asylum seekers.(142)
This question was considered by the United Nations Human Rights Committee
(UNHRC) in A v. Australia (1997).(143) The UNHRC declared
that detention for a period of four years while the applicant’s(144)
refugee status was being decided was ‘arbitrary detention’ and contravened
the ICCPR. The UNHRC’s finding emphasised the need to consider individual
circumstances and for detention to be ‘proportionate’. The Committee said
that:
… 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.(145)
While the UNHRC stated that detention of individuals requesting asylum
was not in itself ‘arbitrary’, it said that ‘detention should not continue
beyond the period for which the State can provide appropriate justification’.(146)
The decision to keep a person in detention should be open to review periodically
so that the grounds justifying the detention could be assessed:
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.(147)
The UNHRC noted that:
In the instant case, the State party has not advanced
any grounds particular to the author’s [the applicant’s] case, which
would justify his continued detention for a period of four years, during
which he was shifted around between different detention centres. The
Committee therefore concludes that the author’s detention for a period
of four years was arbitrary within the meaning of [the ICCPR].(148)
Australian courts, however, are not obliged to accept the UNHRC’s view
that continued detention of a person without supporting grounds amounts
to ‘arbitrary detention.’ As Bede Harris suggests, an alternative to the
ACT model—which would avoid any debate over whether prolonged detention
was ‘arbitrary’—would be to include in a bill of rights ‘a blanket provision
to the effect that no person may be deprived of their liberty’.(149)
The bill of rights would also permit restrictions on human rights ‘performed
under law and which were reasonable in a free and democratic society’.(150)
This would ensure that for continued detention to be lawful it would need
to be justified in the particular circumstances of the case.
In his judgment, Justice McHugh referred to the use of indefinite detention
on security grounds in Australia during the two world wars. To the extent
that Australia’s wartime experience is relevant, it is also instructive
to note the advice from British Prime Minister Sir Winston Churchill to
his Home Secretary in November 1943—at the height of World War Two—anticipating
public opposition to the planned release of British fascist Sir Oswald
Mosley:
You might … consider whether you should unfold as a background
the great principle of habeas corpus and trial by jury, which
are the supreme protection invented by the British people for ordinary
individuals against the State. The power of the Executive to cast a
man into prison without formulating any charge known to the law, and
particularly to deny him judgment by his peers for an indefinite period,
is in the highest degree odious, and is the foundation of all totalitarian
regimes, whether Nazi or Communist. It is only when extreme danger to
the State can be pleaded that this power may be temporarily assumed
by the Executive, and even so its working must be interpreted with the
utmost vigilance by a Free Parliament. As the danger passes, persons
so imprisoned, against whom there is no charge which courts and juries
would accept, should be released … Extraordinary powers assumed by the
Executive with the consent of Parliament in emergencies should be yielded
up when and as the emergency declines. Nothing can be more abhorrent
to democracy than to imprison a person or keep him in prison because
he is unpopular. This is really the test of civilisation.(151)
What the quote from Sir Winston Churchill emphasises is the issue of
necessity. A person must not be imprisoned or detained without trial or
charge unless there is an overriding necessity to do so to prevent a real
danger to the nation or to achieve some other legitimate purpose which
is sufficient to outweigh the individual’s basic right to freedom. As
the UNHRC held in A v. Australia and Chief Justice Gleeson suggested
in Al-Kateb and Al Khafaji, unless the law allows individual
circumstances to be considered the question of whether continued detention
is ‘necessary’ in a particular case cannot be properly decided.
Where a crime has been committed under Australian law, a court must decide
if a person is guilty and whether imprisonment is appropriate. And where
a person is held under ‘executive detention’ for quarantine or mental
health purposes etc, the detention must be ‘reasonably necessary’ for
the particular purpose. In Al-Kateb and Al Khafaji, however,
Australia’s High Court has said that where an immigrant or an alien (such
as an asylum seeker) is concerned, detention does not need to be ‘reasonably
necessary’, or ‘appropriate’ or ‘proportionate’. As long as the government
has the intention of eventually removing the person from Australia, the
detention will remain legal, however long it may last and whether it is
necessary in the particular case or not. According to the majority of
the High Court, that is the current state of Australian law.
The majority’s view is that it was the clear intention of Parliament
in the Migration Act that all ‘unlawful non-citizens’ must be kept in
detention until they are removed, deported, or granted a visa. But there
is no indication that in proposing mandatory detention in the Migration
Reform Act 1992 the then Federal Labor government took into account
that it may not be practicable to deport particular individuals.(152)
As Immigration Minister Gerry Hand said:
The Bill will provide for a uniform regime for detention
and removal of persons illegally in Australia. Non-citizens who are
in Australia without a valid visa will be unlawful and will have to
be held in detention...Depending on their circumstances, they will be
immediately removed from Australia or will be subject to detention until
any claim they wish to make has been resolved. When a person who is
in Australia unlawfully has exhausted all available application and
merits review entitlements, the law will require that person to be removed
as soon as practicable.(153)
Clearly it will be impossible for Parliament in formulating legislation
to be aware of all situations and circumstances. However not only was
the situation of failed asylum seekers with nowhere to go not considered
by Parliament, but no requirement was included in the legislation for
the necessity of detention to be reviewed in unusual cases. Immigration
authorities and the Refugee Review Tribunal (RRT) must determine whether
an asylum seeker is entitled to refugee status. Courts can be involved
if there is an error in this process. But there is no obligation on immigration
officials, the RRT or the Minister to assess whether detention is necessary
if refugee status is refused. After the publicity surrounding Al-Kateb
and Al Khafaji the Minister did review long-term detention cases.
But it is entirely a matter for the discretion of the Minister whether
any such review occurs.
This supports the view of the Australian High Court in Lim’s case,
the UNHRC in A v. Australia and the minority in Al-Kateb
and Al Khafaji that instead of mandatory detention of failed asylum
seekers until deportation or grant of a visa, courts should be able to
consider in a particular case whether detention is ‘reasonably necessary’,
‘appropriate and adapted’ or ‘proportionate’. This could happen under
current Australian law if it is accepted that even though detention of
asylum seekers comes directly under the ‘aliens’ power in the Constitution,
detention must be limited to what is suitable, appropriate or proportionate
for the purposes of deportation, assessment or exclusion from the community
in the meantime. Alternatively this could occur through the adoption of
provisions ensuring freedom from arbitrary detention along the lines of
the ICCPR or the ACT Human Rights Act. A further option, as the Australian
Democrats proposed, is to amend the Migration Act to make it unlawful
to detain a person indefinitely where there is no real likelihood that
the person can be deported in the reasonably foreseeable future.(154)
Adoption of a bill of rights would also address the broader issue about
whether Commonwealth laws should be valid irrespective of their content.(155)
There is a need to debate the full implications of the majority’s view
in Al-Kateb and Al Khafaji that it is not for federal courts
to say whether Commonwealth legislation contravenes basic human rights.
Prominent constitutional lawyer and refugee advocate Julian Burnside QC
warned that a power of indefinite detention without trial could be used
in areas besides migration: ‘You can’t just ignore the possibility of
it being applied elsewhere … The anti-terrorism area is an obvious possibility’.(156)
A central issue is the likely longevity of the High Court’s decision
in Al-Khateb and Al Khafaji. There is some prospect
a future case could overturn the decision, not least because the
High Court was seriously divided over important constitutional issues.
The majority viewpoint—that failed asylum seekers can be detained indefinitely
despite having nowhere to go—now represents the law in Australia. But
only three of the majority judges provided substantive reasons, and there
were strong minority judgments, including from the Chief Justice.
One of the four majority judges, Justice McHugh, is due to retire in
2005. In 2003 following the retirement of Justice Mary Gaudron the High
Court reversed its position on another issue involving the ‘aliens’ power—the
constitutional status of long-term British migrants—despite passing judgment
on this only two years before.(157)
- [2004] HCA 37.
- [2004] HCA 38.
- Chu Keng Lim v. Minister for
Immigration (1992) 176 CLR 1.
- A v. Australia, (560/93) 3/4/97.
- Al-Kateb v. Godwin [2004] HCA 37 .
- Minister for Immigration and Multicultural and Indigenous Affairs
v. Al Khafaji [2004] HCA 38.
- Behrooz v. Secretary of the Department of Immigration and Multicultural
and Indigenous Affairs [2004] HCA 36.
- Roderick Campbell, ‘Govt can imprison detainees for life’, Canberra
Times, 7 August 2004, p. 6.
- As Professor George Williams from the Gilbert and Tobin Centre for
Public Law at the University of New South Wales said:
‘… those two judges disagreed on an amazing array of things. They
disagreed on the relevance of international law, to the interpretation
of the Constitution, the role of the people in amending the Constitution
versus the role of the High Court to modernise it or have it has an
evolving document. And what was unusual was not simply they disagreed,
but they did so publicly and directly. In fact I’m not aware of any
High Court case that’s had such a direct level of disagreement and
if you like, difference on key matters so publicly expressed as we’ve
found in this High Court case.’
See: ABC Radio National, The Law Report, ‘David Hicks; Sexual Assault;
Indefinite Detention’, 31 August 2004, at http://www.abc.net.au/rn/talks/8.30/lawrpt/stories/s1188812.htm.
- Kate Gauntlett, ‘Vanstone offers detainees hope’, West Australian,
10 August 2004, p. 15.
- Meaghan Shaw, ‘Stateless detainees get bridging visas in review’,
The Age, 1 September 2004, p. 7. The article noted that Australia's
longest-serving detainee, Peter Qasim, held in detention for six years
and who claims to be a stateless Kashmiri, was not released. See also
Senator Amanda Vanstone, Al-Masri decisions, Media Release, VPS
126.04, 31 August 2004.
- Chapter III of the Constitution. As the High Court has said (Lim,
at 27, per Justices Brennan, Deane and Dawson):
‘There are some functions which…have become established as essentially
and exclusively judicial in character. The most important of them
is the adjudgment and punishment of criminal guilt under a law of
the Commonwealth … Ch.III of the Constitution precludes the enactment
… of any law purporting to vest any part of that function in the Commonwealth
Executive.’
- Al-Kateb [2004] HCA 37 at [87] (Justice Gummow) (emphasis
added).
- Koon Wing Lau v. Calwell (1949) 80 CLR 533 at 556, cited in
Al-Kateb at [87].
- Koon Wing Lau at 581.
- Section 189.
- Section 196 (emphasis added).
- Section 198.
- Sections 51 and 52 of the Constitution.
- Section 51(19) of the Constitution.
- Lim (1992) 176 CLR 1 at 30-31 (per Justices Brennan, Deane
and Dawson) (emphasis added).
- ibid., at 33.
- ibid., at 57.
- Justice Gaudron queried whether all ‘non-citizens’ were necessarily
‘aliens’ under Australian law, a fundamental issue determining whether
the Migration Act applied (ibid. at 53). This question appears to have
been finally resolved by the decision of the High Court on 9 September
2004 in Singh v. Commonwealth of Australia [2004] HCA 43.
- ibid., at 57. Justices Brennan, Deane and Dawson expressed this slightly
differently, saying that detention that went beyond what was ‘reasonably
necessary’ would not be ‘an incident of the executive powers
to exclude, admit and deport an alien’ and would amount to ‘punishment’
that could lawfully be imposed only by the courts not the government.
(Lim (1992) 176 CLR 1 at 32—33). The practical effect, however,
is the same as Justice Gaudron’s ‘appropriate and adapted’ formula.
Justice Kirby adopted a similar approach in his dissenting judgment
in Leask (1996) suggesting that the notion of proportionality
‘may provide a means to help the mind of the decision-maker to answer
the question whether the impugned law is ‘in truth’ one with respect
to a designated grant of power.’ In his view, a law ‘may be so disproportionate
to the legitimate attainment of the subject matter of the grant of power
as to take it outside that grant’. See Leask v. The Commonwealth
(1996) 187 CLR 579 at 635-6 (emphasis added).
Justices Brennan, Deane and Dawson might have chosen their words
better to avoid confusion with an ‘incidental’ power. As Justice McHugh
said in Al-Kateb [2004] HCA 37 at [37], their description of
detention as an ‘incident’ of the aliens power ‘does not mean that
the power to detain pending deportation is an incidental constitutional
power, that is, a power merely incidental to the aliens power.’
- The provisions applied to people who arrived by boat without a visa
between 1989 and 1994. These provisions are still current: see Migration
Act Part 2 Division 6.
- Lim (1992) 176 CLR 1 at 33-34.
- Minister for Immigration and Multicultural and Indigenous Affairs
v. Al Masri (2003) 197 ALR 241 at 243.
- ibid., at 257.
- ibid., at 258, see also Eloise Dias, ‘Punishment by another name?
Detention of non-citizens and the separation of powers’, Public Law
Review vol.15, 2004, p. 27.
- Lim (1992) 176 CLR 1 at 64 (emphasis added).
- ibid. at 65-66.
- ibid. at 65.
- The exceptions are the ‘purposive’ powers in the Constitution: see
endnote 98.
- Leask (1996) 187 CLR 579 at 603.
- Al-Kateb [2004] HCA 37 at [4].
- ibid., at [19].
- ibid., at [21] and [23].
- ibid., at [22].
- 72 USLW 4607 at 4621, cited in ibid. at [137].
- Al-Kateb [2004] HCA 37, at [117].
- ibid., at [125].
- (1951) 83 CLR 1.
- Al-Kateb [2004] HCA 37, at [140].
- Leslie Zines, The High Court and the Constitution, 4th ed,
Butterworths, 1997, p. 219.
- Al-Kateb [2004] HCA 37 at [140].
- ibid.
- ibid., at [149], [155].
- ibid., at [146].
- Justice Kirby referred to the International Covenant on Civil and
Political Rights, Australian Treaty Series No 23, Arts 7,
9, 10; the Convention relating to the Status of Stateless Persons, Australian
Treaty Series No 20, Art 31; the Universal Declaration of Human
Rights, Art 9; and the Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment, Australian Treaty Series No
21. See ibid. at [150], endnote 170.
- ibid., at [147].
- ibid.
- Referring to Zadvydas v. Davis 533 US 678 (United States);
R v. Governor of Durham Prison; Ex parte Hardial
Singh [1984] 1 WLR 704 (United Kingdom); Tan Te Lam v. Superintendent
of Tai A Chau Detention Centre [1997] AC 97 (Hong Kong).
- Al-Kateb [2004] HCA 37, at [161].
- ibid., at [175].
- ibid., at [172], [175].
- ibid., at [190].
- ibid., at [35] (McHugh), [231] (Hayne), [298] (Callinan)
- ibid., eg at [298] (Callinan).
- Examples taken from ibid. at [287] (Callinan).
- Justice McHugh gave the example [ibid. at 39] of the power to detain
a person suspected of carrying a weapon on an overseas flight. Detaining
such a person, he said, was not ‘trade and commerce’ and could only
be justified ‘as incidental to’ the trade and commerce power in section
51(1) of the Constitution. As he explained, ‘incidental’ powers:
‘may only be exercised where they are reasonably necessary
to facilitate the making of laws with respect to the head of power
of which they are an incident … If the power to detain aliens for
the purpose of deportation was merely an incidental power, it would
be impossible to justify the detention of an alien once it appeared
that deportation could not be effected or could not be effected in
the foreseeable future’. See Al-Kateb [2004] HCA 37, at [38]
and [42].
- ibid., at [41].
- ibid., at [34] (McHugh), also at [251] (Hayne). Justice Callinan
at [295] rejected even that time limit.
- ibid., at [45].
- ibid., at [55]-[60].
- ibid., at [61].
- ibid., at [62].
- Although in his view this rule of construction was ‘based on a fiction’
and bore ‘no relationship to the reality of the modern legislative process’.
Given the growth of international conventions, customs and principles,
it was ‘impossible to believe’ that when Parliament legislates it could
have in mind all the rules of international law. See ibid., at [63]-[66].
- ibid., at [69] and [71].
- ibid., at [74].
- ibid., at [63]-[68].
- ibid., at [31], see also Al Khafaji [2004] HCA 38 at [3].
- Al-Kateb [2004] HCA 37 at [75].
- ibid., at [255] (emphasis in original).
- ibid., at [256].
- ibid., at [230]
- Article 9(1) states ‘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.’
- ibid., at [239].
- ibid., at [243].
- ibid., at [219]. However Justice Hayne appeared to query how, for
example, requiring a person to live at a particular place as a condition
of release from detention would fit with s92 of the Constitution (freedom
of trade and movement within Australia).
- 533 US 678.
- ibid., at 701, cited in Al-Kateb [2004] HCA 37 at [283].
- 533 US 678 at 703-5, citing Shaughnessy v. United States ex rel
Mezei 345 US 206 (1953) at 222-3, see Al-Kateb [2004] HCA
37 at [284].
- Al-Kateb [2004] HCA 37, at [300].
- ibid., at [291].
- ibid., at [295].
- ibid., at [299].
- Al Khafaji [2004] HCA 38 at [46].
- ibid., at [47].
- Al-Kateb [2004] HCA 37 at [299].
- ibid.
- See Sarah Joseph and Melissa Castan, Federal Constitutional Law,
A Contemporary View, 2001, p. 57, noting the High Court’s finding
in Leask (1996) that ‘proportionality was an irrelevant issue
with regard to direct characterisation under most heads of power.’ The
exception being ‘purposive’ powers, see endnote 98 below.
- Section 51(17) Constitution.
- Section 51(11) Constitution. See Al-Kateb [2004] HCA 37 at
[133].
- ibid., at [133]
- ibid., at [298].
- ibid., at [140].
- ‘Purposive’ powers in the Constitution include s51(6) the ‘defence’
power; aspects of s51(29) the external affairs power; the ‘nationhood’
power derived from sections 61 and 51(39); and aspects of s51 (26) the
‘race’ power. See Joseph and Castan, op. cit., pp 57, 58.
- See ibid., p. 57, citing the High Court in Leask (1996).
- Commonwealth v Tasmania (1983) 158 CLR 1.
- Bede Harris, Essential Constitutional Law, 2nd
edition, p. 115. The High Court has used proportionality to test whether
legislation or government action breaches certain constitutional guarantees,
especially the ‘implied freedom of political communication’. A law that
restricts this implied constitutional freedom can nevertheless be valid
if it is ‘reasonably appropriate and adapted for a legitimate purpose’.
See Australian Capital Television Pty Ltd v. Commonwealth (1992)
177 CLR 106 at 143 (per Mason CJ). The High Court has also said that
proportionality is a relevant factor in deciding the validity of ‘incidental’
uses of the Commonwealth’s legislative power. See generally the discussion
in Joseph and Castan, op. cit, pp. 376-83.
- Zines, op. cit., p. 44.
- ibid., at pp. 43–44.
- 115 CLR 418 at 437.
- 182 CLR 272 at 317–18.
- Zines, op. cit., at p. 45 (emphasis added).
- As suggested by Justice Hayne, the purpose of ‘exclusion’ does not
mean exclusion for its own sake, but exclusion ‘in the meantime’, i.e.
pending removal or assessment of entry. See Al-Kateb [2004] HCA
37 at [255].
- Al-Kateb [2004] HCA 37 at [49] (Justice McHugh) and [256]
(Justice Hayne); see also Re Kit Woolley ex parte Applicants M276/2003
[2004] HCA 49 (7 October 2004) at [77] (Justice McHugh). While Justices
McHugh and Hayne argue that proportionality is not relevant if a detention
law has a ‘legitimate non-punitive purpose’, Joseph and Castan warn
that:
‘…while a Judge might convey that he/she is ‘merely’ assessing the
objective purpose of a law, it is possible and even likely that sub-conscious
considerations of necessity and balancing influence the decision regarding
the law’s suitability in achieving its purported purpose.’ See Joseph
and Castan, op.cit., p. 383.
- m (1992) 176 CLR 1 at 71, quoted in Re Woolley
[2004] HCA 49 at [65] and [77]; see also Al-Kateb [2004] HCA
37 at [49].
- Woolley [2004] HCA 49 at [88] and [94].
- Al-Kateb [2004] HCA 37 at [73], referring to George Williams,
The case for an Australian Bill of Rights: freedom in the war on
terror, UNSW Press, 2004.
- ALP President Carmen Lawrence said the High Court’s decision ‘should
shock all Australians because it shows that in this so-called advanced
democracy, we have no effective protections against arbitrary imprisonment
by the state’. She called for a bill of rights ‘to protect citizens
and those who come to our shores’. See Meaghan Shaw, ‘Ban indefinite
detention: Lawrence’, The Age, 12 August 2004, p. 4.
- Greens member Michael Organ said that ‘in the absence of abolishing
mandatory detention … a Bill of Rights would override punitive laws
that allow for people to be locked up forever … ’. Such laws, he said,
‘… make every immigration detention centre in Australia another Guantanamo
Bay—at least there though the US Courts gave detainees the right to
challenge their detention—and all because of the US bill of rights,
so it’s a lesson for Australia.’ See Bill of Rights one way to defeat
indefinite detention, Media Release, 6 August 2004.
- Senate, Debates, 12 August 2004, p. 25 950.
- Editorial, ‘The tragic fate of asylum seekers’, The Age, 9
August 2004, p. 12.
- See George Williams, A bill of rights for Australia,
UNSW Press, 2000, p. 36.
- ‘Bill of Rights not top of list: Ruddock’, Canberra Times,
9 June 2004, p. 7.
- Bob Carr, ‘The Rights Trap: How a Bill of Rights Could Undermine
Freedom’, Policy, vol.17, no. 2, Winter 2001, p. 21.
- ibid.
- George Williams, The case for an Australian Bill of Rights: freedom
in the war on terror, UNSW Press, 2004, 45.
- Joseph and Castan, op. cit., p. 365.
- Kable v. Director of Public Prosecutions (NSW) (1996) 189
CLR 51.
- Joseph and Castan, op. cit., p. 146. For further discussion on the
issue of detention for the protection of the community of people who
have finished a criminal sentence, see Thomas John, ‘Detention for the
protection of the community: the next chapter’, Research Note,
no. 16, Parliamentary Library, Canberra, 2004–05.
- Kruger v. Commonwealth (1997) 190 CLR 1.
- Joseph and Castan, op. cit., p. 153.
- (1997) 190 CLR 1 at 40.
- Bede Harris, a new constitution for Australia, Cavendish Publishing
Limited, p. 7.
- ibid.
- (1998) 195 CLR 337.
- Section 51(26).
- Harris, op. cit., p. 7.
- ibid., p. 7.
- ibid., p. 8.
- See endnote 53 above.
- Al-Kateb [2004] HCA 37 at [157].
- ibid., at [3].
- The United States adopted a bill of rights in 1791 in the form of
the first ten amendments to its 1789 Constitution. The United Kingdom
introduced a statutory bill of rights in 1998 in the form of the Human
Rights Act 1998. In 1991 Hong Kong gained a constitutionally entrenched
bill of rights based on the International Covenant of Civil and Political
Rights (ICCPR). This was originally included in the British Letters
Patent for the government of Hong Kong. With the resumption of Chinese
sovereignty over Hong Kong in 1997, equivalent provisions were inserted
in Article 39 of the Basic Law of the Hong Kong Special Administrative
Region. The terms of the ICCPR are also included in statutory form in
the Hong Kong Bill of Rights Ordinance 1991, which after 1997
continued to apply to pre-1991 legislation (see Andrew Byrnes, ‘Hong
Kong’s Bill of Rights Experience and its (Ir)Relevance to the ACT Debate
over a Bill of Rights’, in Christine Debono and Tania Colwell, Comparative
Perspectives on Bills of Rights, ANU National Institute of Social
Sciences and Law 2004, 33.
- Al-Kateb [2004] HCA 37, at [52], citing Zadvydas 533
US 678 at 693.
- This Act commenced on 1 July 2004.
- Section 18(1). Section 18(2) states further that ‘No-one may be deprived
of liberty, except on the grounds and in accordance with the procedures
established by law’.
- Article 9(1) of the ICCPR states ‘Everyone has a 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.’
- The ICCPR (including Article 9) is annexed to Australia’s Human
Rights and Equal Opportunity Act 1986. Under this Act, the Human
Rights and Equal Opportunity Commission (HREOC) can inquire into and
report on breaches of human rights, and make recommendations on what
action Australia needs to take to comply better with the ICCPR (section
11). It can also recommend compensation for breach of a human right
(section 29). However HREOC’s recommendations, including on implementation
of the ICCPR, are not enforceable in Australia, and may or may not be
accepted by the government of the day.
- A v. Australia (560/93) 3/4/97.
- The same applicant as in Lim’s case.
- A v. Australia, (560/93) 3/4/97 at [9.2], see Sarah
Joseph, Jenny Schultz and Melissa Castan, The International Covenant
on Civil and Political Rights: Cases, Materials and Commentary,
Oxford University Press 2000, p. 216.
- A v. Australia, (560/93) 3/4/97 at [9.4], see ibid., p. 216.
- ibid. pp. 216–217.
- ibid. p. 217.
- Harris, op. cit., p. 30.
- ibid.
- Winston S. Churchill, The Second World War, Vol. V. Closing the
Ring, Cassell, 1952, p. 635.
- See, for example, Explanatory Memorandum, Migration Reform Bill 1992,
Migration (Delayed Visa Applications) Tax Bill 1992, pp. 9 (Detention,
Deportation and Removal of Unlawful Non-citizens), 52 (Section 54ZD
Period of detention) and 53 (Section 54ZF Removal from Australia of
uncleared unlawful non-citizens). Government member Dr R Catley noted
that ‘we will have a refugee processing system under this reform Bill
that is clear, predictable, fair and quick’ (Second Reading Speech,
Migration Reform Bill 1992, House of Representatives, Debates,
11 November 1992, p. 3147). The Opposition spokesman and future Immigration
Minister Phillip Ruddock referred to the ‘large numbers’ of people undergoing
assessment for refugee status, expressing concern at the problems caused
by immigration detention for long periods and noting the need for an
‘appropriate’ response:
‘The fact is that this crisis has now been with us for almost three
years. Some people remain held in detention. I am not one who complains
about the quality of that detention in terms of its ability to deal
with situations of relatively short periods of duration, but some
people have been held in detention for a very long time. The fact
that some people are held in detention for that length of time is
now having a very disastrous effect upon some of those people who
have been so detained. In other words, it is the detention that is
now impacting upon them and mitigating against our ability to handle
their circumstances in a way that might otherwise be seen at any other
time as being reasonable and appropriate.’
See Second Reading Speech, Migration Reform Bill 1992, House of Representatives,
Debates, 11 November 1992, p. 3142.
- Second Reading Speech, Migration Reform Bill 1992, House of Representatives,
Debates, 4 November 1992, p. 2620.
- Senator Bartlett, Matters of Urgency: Immigration: Detainees, Senate,
Debates, 9 August 2004, p. 25 901.
- The practical effect of a bill of rights would depend on the form
it took and its content. As regards form, Justice McHugh believes (Al-Kateb
[2004] HCA 37 at [73]):
‘If Australia is to have a Bill of Rights, it must be done in a
constitutional way—hard though its achievement may be—by persuading
the people to amend the Constitution by inserting such a Bill.’
Professor Williams, on the other hand, thinks that (Freedom in
the war on terror, p. 78):
‘… any move to bring about a Bill of Rights should be gradual. Certain
rights should be protected initially in legislation, with further
rights being added over time, before any constitutional change in
the longer term.’
- Meaghan Shaw, ‘Democrats to fight “eternal jail” power’, The Age,
9 August 2004, p. 8.
- See Peter Prince, ‘Deporting
British Settlers’, Research Note, no. 33, Parliamentary Library,
Canberra, 2003/04, at http://www.aph.gov.au/library/pubs/rn/2003-04/04rn33.pdf.
Such a change in the court’s position, of course, raises questions about
the ability to rely on High Court decisions in constitutional matters.
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