Stubbs, Matthew T --- "Arbitrary Detention in Australia: Detention of Unlawful Non-Citizens under the Migration Act 1958 (Cth)" [2006] AUYrBkIntLaw 9; (2006) 25 Australian Year Book of International Law 273
[∗] BFin, BEc, HonsLLB (Adelaide), GDLP (Law Society of SA), Barrister and Solicitor of the Supreme Court of South Australia and High Court of Australia, Joyner Scholar and PhD Candidate, Law School, University of Adelaide, Associate Lecturer in Law, School of Commerce, University of Adelaide. The author wishes to thank Margaret Castles for her support and guidance in the preparation of an earlier version of this article, as well as Laura Grenfell and the anonymous reviewers for their comments and suggestions.
[1] Advance Australia Fair (National Anthem of the Commonwealth of Australia), Second Verse. See: Proclamation of the Governor-General, Commonwealth of Australia Gazette (Special) No S 142, 19 April 1984.
[2] For a more detailed examination of the history of migration law and policy in Australia, see: J Vrachnas et al, Migration and Refugee Law: Principles and Practice in Australia (2005) 1-13; J Jupp, From White Australia to Woomera: The Story of Australian Immigration (2002) 5-19.
[3] M Crock and B Saul, Future Seekers: Refugees and the Law in Australia (2002) 1.
[4] Indeed, it has been suggested that the policy of mandatory detention to be examined in this article enjoys support due to the arousal of, ‘xenophobic feelings in many Australians’: A Henderson, ‘Australia’s Onshore Protection – For Whom and at What Cost?’ (2005) 9 Sydney Institute Quarterly 3-4. I make this point without ignoring, but instead consciously refuting, the suggested risk that drawing attention to xenophobic attitudes might, ‘become a self-fulfilling prophecy’: A Vanstone, ‘The Damage Done by Critics of Australia’s Immigration Policies’ (2004) 16 Sydney Papers 91, 92.
[5] D Manderson, From Mr Sin to Mr Big: A History of Australian Drug Laws (1993) 17.
[6] Eg see the law applicable in the colony of Victoria: An Act to Make Provision for Certain Immigrants 1855 (Vic) 18,c.39.
[7] G Williams, Human Rights under the Australian Constitution (1999) 26.
[8] For discussion of the ‘dictation test’ and ‘White Australia’ policy, see: T Blackshield and G Williams, Australian Constitutional Law and Theory: Commentary and Materials (3rd ed, 2002) 854-55; M Crock, Immigration and Refugee Law in Australia (1998), 1-19 (including an example of a ‘dictation test’ at 15); Crock and Saul, above n 3, 1.
[9] See Migration Amendment Act 1992 (Cth).
[10] See Blackshield and Williams, above n 8, 522-26; Crock and Saul, above n 3, 35-42; C Dauvergne, Humanitarianism, Identity and Nation: Migration Laws in Canada and Australia (2005) 19-20; P Mathew, ‘Australian Refugee Protection in the Wake of the Tampa’ (2002) 96 American Journal of International Law 661; P Mares, Borderline (2nd ed, 2002) 121-41.
[11] Dauvergne, above n 10, 220.
[12] Mathew, ‘Tampa’ above n 10, 676.
[13] A Pratt, Securing Borders: Detention and Deportation in Canada (2005) 1. See also Dauvergne, above n 10, 220.
[14] E M Morgan, ‘Aliens and Process Rights: The Open and Shut Case of Legal Sovereignty’ (1988) 7 Wisconsin International Law Journal 107, 107-8.
[15] These expressions of concern include various academic analyses referred to in this article; reports of domestic human rights bodies, eg Human Rights and Equal Opportunity Commission, Those Who’ve Come Across the Seas: Detention of Unauthorised Arrivals (1988); and reports of various international bodies explored in this article, as well as the report of Justice P N Bhagwati, who visited Australia as a personal envoy of the United Nations High Commissioner for Human Rights and described the situation as, ‘a great human tragedy’: P N Bhagwati, Mission to Australia 24 May to 2 June 2002: Human Rights and Immigration Detention in Australia (2001) [20]. <http://www.unhchr.ch/huricane/huricane.nsf/view01/
BC4C8230F96684C8C1256C070032F5F1?opendocument> Justice Bhagwati went on to question Australia’s compliance with certain provisions of the International Covenant on Civil and Political Rights (ICCPR) (16 December 1966) 999 UNTS 171; the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (10 December 1984) 1465 UNTS 85; the International Covenant on Economic, Social and Cultural Rights (16 December 1966) 993 UNTS 3; the Convention on the Rights of the Child (20 November 1989) 1577 UNTS 3; and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, GA Res 43/173, UN GAOR, 43rd sess, 76th plen mtg, UN Doc A/43/49 (1988): [49], [51], [52], [53], [61], [62].
[16] Commonwealth, Parliamentary Debates, House of Representatives, 21 June 2005 76 (Simon Crean).
[17] John Howard MP, ‘Immigration Detention’ (Press Release, 17 June 2005) <http://www.pm.gov.au/news/media_releases/media_Release1427.html> .
[18] ‘PM accepts “softer edge” on detention’ The Australian (18 June 2005) 1.
[19] A discussion of some of the refugee protection and security issues not related to arbitrary detention can be found in S Taylor, ‘Guarding The Enemy From Oppression: Asylum-Seeker Rights Post-September 11’ [2002] MelbULawRw 21; (2002) 26 Melbourne University Law Review 396.
[20] Migration Act 1958 (Cth), s 13(1).
[21] Migration Act 1958 (Cth), s 14(1).
[22] Migration Act 1958 (Cth), s 189(1).
[23] Migration Act 1958 (Cth), s 5. In the report of the Inquiry into the Circumstances of the Immigration Detention of Cornelia Rau conducted by Mick Palmer, particular concern is expressed about the qualifications of those officers whose reasonable suspicion that a person is an unlawful non-citizen enlivens the mandatory detention provisions of s 189 of the Migration Act: Commonwealth of Australia, Inquiry into the Circumstances of the Immigration Detention of Cornelia Rau: Report (2005) 21-28.
[24] The High Court of Australia in Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji [2004] HCA 38; (2004) 219 CLR 664 and Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 held by a majority of 4:3 (McHugh, Hayne, Callinan and Heydon JJ; Gleeson CJ, Gummow and Kirby JJ dissenting) that s 196 requires the indefinite detention of unlawful non-citizens and is a valid exercise of the legislative power of the Commonwealth with respect to aliens granted by s 51(xix) of the Constitution.
[25] Report of the Working Group on Arbitrary Detention 2002: Addendum – Visit to Australia, UN Doc E/CN.4/2003/8/Add.2. Although not mentioned in that report, it is notable that it took four years to negotiate with the Australian government a suitable time for a visit. See Report of the Working Group on Arbitrary Detention 2001, UN Doc E/CN.4/2002/77, 12.
[26] Report of the Working Group on Arbitrary Detention 2002, above n 25, 18.
[27] The significance of the need for an officer to attain the requisite state of mind with respect to a person was emphasised in: Commonwealth of Australia, Inquiry into the Circumstances of the Vivian Alvarez Matter (2005) 65-68; Wai Yee Yeoh v Minister for Immigration and Multicultural Affairs (1997) 48 ALD 626; Goldie v Commonwealth (2002) 188 ALR 708.
[28] Migration Act 1958 (Cth), s 37 provides for bridging visas.
[29] Migration Act 1958 (Cth), s 73.
[30] Migration Act 1958 (Cth), s 72.
[31] This only applies if a state or territory child welfare agency has certified that release is in their best interests and only then if the Minister is satisfied that adequate arrangements have been made for their care: Migration Regulations 1994 (Cth), reg 2.20(7).
[32] This only applies if the Minister is satisfied that adequate arrangements have been made for their support: Migration Regulations 1994 (Cth), reg 2.20(8).
[33] This only applies if a medical specialist appointed by the immigration department has certified that they cannot properly be cared for in detention and only then if the Minister is satisfied that adequate arrangements have been made for their support: Migration Regulations 1994 (Cth), reg 2.20(9).
[34] As at 24 October 2003, there were 368 unauthorised boat arrivals in detention and only 21 on bridging visas: Department of Immigration and Multicultural and Indigenous Affairs, Managing the Border: Immigration Compliance (2004), 29. By contrast, on 30 June 2005, of an estimated 47,800 visa overstayers in Australia, only 330 were in detention (a total of 24,364 bridging visas were in effect at that date): Department of Immigration and Multicultural and Indigenous Affairs, Managing the Border: Immigration Compliance (2005) 37, 55.
[35] This legislation is clearly predicated on the controversial assumption, ‘that unauthorised arrivals are less likely to have legitimate claims and are more likely to abscond than authorised arrivals’: P Mathew, ‘Sovereignty and the Right to Seek Asylum: The Case of Cambodian Asylum-Seekers in Australia’ [1994] AUYrBkIntLaw 2; (1994) 15 Aust YBIL 35, 98. See also S Taylor, ‘Protecting the Human Rights of Immigration Detainees in Australia: An Evaluation of Current Accountability Mechanisms’ [2000] SydLawRw 2; (2000) 22 Sydney Law Review 50, 51.
[36] Al Masri v Minister for Immigration & Multicultural & Indigenous Affairs (2002) FCA 1009; (2002) 192 ALR 609, 618-19 (Merkel J). After Mr Al Masri’s deportation from Australia, the Commonwealth appealed unsuccessfully against this decision to the Full Court of the Federal Court in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri [2003] FCAFC 70; (2003) 126 FCR 54, and then applied unsuccessfully for special leave to appeal to the High Court in Transcript of Proceeedings, Minister for Immigration, Multicultural and Indigenous Affairs v Al Masri (High Court of Australia, Gummow, Kirby and Hayne JJ, 14 August 2003).
[37] Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562.
[38] Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji [2004] HCA 38; (2004) 219 CLR 664.
[39] The Administrator performs the functions of the Governor-General, ‘in the event of the absence out of Australia, or the death, incapacity or removal of the Governor-General for the time being, or in the event of the Governor-General having absented himself temporarily from office for any reason’. See Letters Patent Relating to the Office of Governor-General of the Commonwealth of Australia, Commonwealth of Australia Gazette (Special) No S 334, 24 August 1984, as amended by Amendment of Letters Patent, Commonwealth of Australia Gazette (Special) No S 151, 15 May 2003, cl III; Australian Constitution, s 4.
[40] Migration Regulations 1994 (Cth), reg 2.20(12).
[41] Migration Regulations 1994 (Cth), reg 2.20A(2)(a).
[42] Senator Amanda Vanstone, ‘First Offers of New Removal Pending Visa to be Made’ (Press Release, 30 May 2005) <http://www.minister.immi.gov.au/media_
releases/media05/v05066.htm>.
[43] Senator Amanda Vanstone, ‘More Long Term Detainees Invited to Apply for New Visa’ (Press Release, 20 June 2005) <http://www.minister.immi.gov.au/media_
releases/media05/v05080.htm>.
[44] Migration Act 1958 (Cth), s 474. As to the interpretation of this provision, see Plaintiff S157 v Commonwealth (2003) 211 CLR 476.
[46] Commonwealth, Parliamentary Debates, House of Representatives, 21 June 2005, 55 (Peter McGauran, Minister for Citizenship and Multicultural Affairs).
[47] This article proceeds on the (perhaps generous) assumption that a person who is required, ‘to reside at a specified place’, is no longer in detention once that residence determination has been made. For the purposes of assessing immigration detention in Australia against the international prohibition of arbitrary detention, the meaning of detention is not a critical element in the vast majority of cases. However, the question of whether a person subject to a residence determination is still regarded as in detention under international law is much more complex. It may be accepted that the essence of detention is, ‘confinement and deprivation of personal liberty’: L Marcoux Jr, ‘Protection from Arbitrary Arrest and Detention Under International Law’ (1982) 5 Boston College International and Comparative Law Review 345, 349. Detention itself can be understood as, ‘confining a person to a place which he is not allowed to leave’: L Takkenberg, ‘Detention and Other Restrictions on the Freedom of Movement of Asylum-Seekers: The European Perspective’ in G Coll and J Bhabha (eds), Asylum Law and Practice in Europe and North America: A Comparative Analysis (1992) 137, 141. On this basis, whilst it is obvious that the ordinary form of immigration detention in Australia does constitute detention under international law, it is far from clear whether being subject to a residence determination also constitutes detention. If a residence determination is simply detention by another name (and in another place) then the introduction of a system of residence determinations may be nothing more than an elaborate ruse, but this will not be assumed for the purposes of this article.
[48] A radical possibility would be that s 4AA restricts the operation of ss 189 and 196. This result could be achieved if it were accepted that s 4AA creates ambiguity about the operation of ss 189 and 196, which would open the possibility of the regime of immigration detention being read as not applicable to children. However, the problem with this radical approach is that in Al-Kateb v Godwin, a majority of the High Court held that these sections were not relevantly ambiguous: Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562, 581 (McHugh J), 643 (Hayne J), 661 (Callinan J), 662-3 (Heydon J). Only the minority judges held that ambiguity prevented the sections from applying in that case: 577 (Gleeson CJ), 608 (Gummow J), 615 (Kirby J). Given the decision in Al-Kateb v Godwin, it is unlikely that this radical approach would enjoy majority support.
[49] Commonwealth, Parliamentary Debates, House of Representatives, 21 June 2005, 56 (Peter McGauran, Minister for Citizenship and Multicultural Affairs). Reference to the Second Reading Speech is permitted under s 15AB(2)(f) of the Acts Interpretation Act 1901 (Cth).
[50] The extent to which this direction could be legally enforced is a question of some difficulty given the provisions of s 197AE of the Migration Act, which provide that, ‘The Minister does not have a duty to consider whether to exercise the power to make, vary or revoke a residence determination’, and the operation of the privative clause, which seeks to shield decisions from judicial review (see n 44 above).
[51] Migration Act 1958 (Cth), s 197AF.
[52] Migration Act 1958 (Cth), s 197AE.
[53] Migration Act 1958 (Cth), Part 8C.
[54] Migration Act 1958 (Cth), s 486N.
[55] Migration Act 1958 (Cth), s 486O(1).
[56] Migration Act 1958 (Cth), s 486O(2)-(4).
[57] Migration Act 1958 (Cth), s 486O(5).
[58] John McMillan, ‘Reflections on the Palmer Report: Questions for Administrative Law’ (Speech delivered at the Annual General Meeting of the Australian Institute of Administrative Law (SA Chapter), Adelaide, 6 October 2005).
[59] Commonwealth Ombudsman, ‘Covering Statement by the Commonwealth Ombudsman to the Minister for Immigration and Multicultural and Indigenous Affairs Concerning Reports under s 486O of the Migration Act 1958’ (Press Release, 12 October 2005) <http://www.ombudsman.gov.au/news_current_issues/
media_releases/Ombudsman_covering_statement_to_Minister_12Oct05.pdf>.
[60] Commonwealth Ombudsman, ‘Immigration Bulletin 6’ (Press Release, 14 December 2005) <http://www.ombudsman.gov.au/news_current_issues/media_releases/Bulletin-6_immigration_matters_141205.pdf> . Of the 17 reports prepared at the time of writing, only two have been tabled in Parliament, and in both cases the detainees had been released before the report was tabled. The Ombudsman has completed a further 15 reports, but these have yet to be tabled in Parliament and it is not known how many, if any, of these persons remain in detention. In addition to the 40 detainees still awaiting a report, it was calculated earlier in the year that as many as 50 additional detainees would go over two years in detention by the end of 2005, although no figures are available to test that expectation: Commonwealth Ombudsman, ‘Covering Statement’ above n 59. The total number of immigration detainees (excluding fishing-related detainees) at 21 December 2005 was 535: Senator Amanda Vanstone, ‘Fewer Detainees Prove Immigration Policies Working Well’ (Press Release, 26 December 2005) <http://www.minister.immi.gov.au/media_releases/media05/v05160.htm> .
[61] Indeed, these are all discretions vested in the Minister personally, unlike the vast majority of decisions in the Migration Act, which are made by ‘the Minister’ in name only.
[62] Whilst the scope of discretion leaves room for concern about the legal force of these reforms concerning the detention of children, the practical effect of the reforms to date has been striking. When the reforms were announced on 17 June 2005, 59 children were in immigration detention; by 29 July 2005, no children remained in immigration detention. See: Senator Amanda Vanstone, ‘All Families with Children Out of Detention’ (Press Release, 29 July 2005) <http://www.minister.immi.gov.au/media_releases/media05/v05098.htm> .
[64] M C Bassiouni, ‘Preface’ in S Frankowski and D Shelton (eds), Preventive Detention: A Comparative and International Law Perspective (1992) xi.
[65] Universal Declaration of Human Rights GA Res 217A (1948).
[66] J Niemi-Kiesiläinen, ‘Article 9’ in A Eide et al (eds), The Universal Declaration of Human Rights: A Commentary (1992) 147, 147.
[67] M Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (1993) 159-60.
[68] H J Steiner and P Alston, International Human Rights in Context: Law, Politics, Morals (2nd ed, 2000) 138. See also: A Cassese, International Law in a Divided World (1986) 299. Some authors take the view that the civil and political rights set out in the UDHR, now represent customary international law: N O’Neil, S Rice and R Douglas, Retreat From Injustice: Human Rights Law in Australia (2nd ed, 2004) 15; Marcoux, above n 47, 348. This view is not embraced by Steiner and Alston, who note that only some of the rights contained in the UDHR enjoy this status presently: Steiner and Alston, 229. This controversy is considered in depth in: B Simma and P Alston, ‘The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles’ [1988] AUYrBkIntLaw 5; (1988-89) 12 Aust YBIL 82, 84-86.
[69] In a later article, Dr John Humphrey noted that whilst the UDHR, above n 65, ‘was not intended to be binding on states,’ over time it nevertheless did become, ‘the universally accepted interpretation and definition of the human rights left undefined by the Charter’: J P Humphrey, ‘The International Bill of Rights: Scope and Implementation’ (1976) 17 William and Mary Law Review 527, 529.
[70] United States Diplomatic and Consular Staff in Tehran (United States v Iran) (Merits) [1980] ICJ Rep 3, 42. This passage is, however, opaque in identifying the precise source of the obligations of which it speaks, as to which see eg: Simma and Alston, above n 68, 106.
[71] ICCPR, above n 15; ICESCR, above n 15.
[72] Ratification of the ICCPR, above n 15, makes that instrument legally binding on Australia; requires Australia’s obligations to be performed in good faith under the principle pacta sunt servanda; and prevents Australia from relying on any provision of domestic law to excuse or justify a breach of those obligations: Vienna Convention on the Law of Treaties (23 May 1969) 1155 UNTS 331, arts 26, 27. See R Higgins, Problems and Process: International Law and How We Use It (1994) 205; The SS Wimbledon [1923] PCIJ (Ser A) No 1.
[73] The Human Rights Committee has expressed the view that the prohibition of arbitrary detention is also part of customary international law: Human Rights Committee, General Comment 24: Issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under article 41 of the Covenant, 52nd session, 4 November 1994, UN Doc CCPR/C/21/Rev.1/Add.6, [8]. General Comment 24 also states that the prohibition of arbitrary detention protects a right, ‘of profound importance,’ notwithstanding that it is not one of the rights protected as non-derogable under art 4 of the ICCPR, above n 15: [10]. However, the list of articles regarded by the Human Rights Committee as enjoying the status of customary international law is controversial, as to which see S H Cleveland, ‘Norm Internalization and US Economic Sanctions’ (2001) 26 Yale Journal of International Law 1, 28; A Cassimatis, ‘International Trade and Human Rights: Which Human Rights’ (2001) 6 International Trade and Business Law Annual 19, 28. The broad approach of the Human Rights Committee has been both condemned and applauded. See eg Simma and Alston, above n 68, 90-100; R B Lillich, ‘The Growing Importance of Customary International Human Rights Law’ (1995-96) 25 Georgia Journal of International and Comparative Law 1, 20. The existence of a prohibition of arbitrary detention as a binding international legal obligation independently of the ICCPR has also been suggested by E B Burton and D B Goldstein, ‘Vietnamese Women and Children Refugees in Hong Kong: An Argument Against Arbitrary Detention’ (1993) 4 Duke Journal of Comparative and International Law 71, 90. Alternatively, it has been claimed elsewhere that the prohibition of arbitrary detention is a general principle of international law: L J Maki, ‘General Principles of Human Rights Law Recognized by All Nations: Freedom from Arbitrary Arrest and Detention’ (1980) 10 California Western International Law Journal 272. As Australia is a party to the ICCPR it is not necessary for this article to establish any independent status for the prohibition of arbitrary detention under customary or general international law.
[74] ICCPR, above n 15, art 9(1).
[75] The basic principle to be applied in interpreting this text is that, ‘a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’: Vienna Convention on the Law of Treaties, above n 72, art 31(1).
[76] Australia challenged this view in A v Australia, arguing that domestic legality is all that is required. Australia’s position is discussed in S Blay and R Piotrowicz, ‘The Awfulness of Lawfulness: Some Reflections on the Tension between International and Domestic Law’ [2000] AUYrBkIntLaw 1; (2000) 21 Aust YBIL 1, 7-8. See also H Cook, ‘International Standards and Individual Protection’ in Frankowski and Shelton (eds), above n 64, 1, 8; Nowak, above n 67, 172. That protection from arbitrary detention extends to include protection from ‘arbitrary but lawful detentions’ has also been noted in the context of the art 9(5) right to compensation, as to which see S Joseph, J Schultz and M Castan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (2nd ed, 2004) 345; S Beresford, ‘Redressing the Wrongs of the International Justice System: Compensation for Persons Erroneously Detained, Prosecuted, or Convicted by the Ad Hoc Tribunals’ (2002) 96 American Journal of International Law 628, 637.
[77] Human Rights Committee, General Comment 24, above n 73, [7].
[78] Niemi-Kiesiläinen, above n 66, 150. See also Blay and Piotrowicz, above n 76, 13 and 18.
[79] P Hassan, ‘The Word “Arbitrary” as Used in the Universal Declaration of Human Rights: “Illegal” or “Unjust”?’ (1969) 10 Harvard International Law Journal 225, 228.
[80] Marcoux, above n 47, 348.
[81] The Soviet representative emphasised this point during drafting: Nowak, above n 67, 171.
[82] See eg Marcoux, above n 47, 350.
[83] Reference to the travaux préparatoires of the ICCPR, above n 15, is permissible in order to confirm the ordinary meaning derived above: Vienna Convention on the Law of Treaties, above n 72, art 32. The manner in which the UDHR, above n 68, and ICCPR, above n 15, were drafted is discussed in: Hassan, above n 79, 230-34.
[84] See Report of the Drafting Committee to the Commission on Human Rights, UN Doc E/CN.4/21(1947); M J Bossuyt, Guide to the ‘Travaux Préparatoires’ of the International Covenant on Civil and Political Rights (1987) IX.
[85] The Secretariat proposal, reproduced in UN Doc E/CN.4/21, annex A, was compiled under the direction of the Canadian Dr J Humphrey, whose role is examined in M A Glendon, ‘Book Review: Diaries of a Forgotten Framer’, (2001) 14 Harvard Human Rights Journal 277, based on the material contained in A J Hobbins (ed), On the Edge of Greatness: The Diaries of John Humphrey, First Director of the United Nations Division of Human Rights (vol 1, 1994). The contribution of Eleanor Roosevelt is discussed in: M M Whiteman, ‘Mrs Franklin D Roosevelt and the Human Rights Commission’ (1968) 62 American Journal of International Law 918.
[86] Reproduced in UN Doc E/CN.4/21, annex B.
[87] In particular, a very early draft circulated by Great Britain took this approach: see Report of the Drafting Committee to the Commission on Human Rights (1947) UN Doc E/CN.4/21, annex B. This was, for a time, the approach taken by the Commission on Human Rights: see Commission on Human Rights, Report to the Economic and Social Council (1947) UN Doc E/600, annex B.
[88] The requirement that detention not be arbitrary, in addition to being in accordance with domestic law, has also been read into art 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention) (4 November 1950) 213 UNTS 221, in light of the object and purpose of that treaty: Blay and Piotrowicz, above n 76, 15, citing Johnson v United Kingdom (1997) 27 EHRR 296, [60].
[89] UN Doc E/600, annex B; Nowak, above n 67, 164.
[90] See Commission on Human Rights, Report to the Economic and Social Council (1947) UN Doc E/600, annex B.
[91] Bossuyt, above n 84, 193.
[92] Nowak, above n 67, 164; Bossuyt, above n 84, 187-202.
[93] UN Doc E/600, 32.
[94] See Nowak, above n 67, 164; Bossuyt, above n 84, 187-91, 194-96.
[95] Marcoux, above n 47, 355.
[96] Hassan, above n 79, 259; see also 242 and 254.
[98] ICCPR, above n 15, art 28. See D McGoldrick, The Human Rights Committee – Its Role in the Development of the International Covenant on Civil and Political Rights (1991) 198.
[99] Optional Protocol to the International Covenant on Civil and Political Rights (Optional Protocol) (16 December 1966) 999 UNTS 171, art 1. The Optional Protocol applies to Australia from 25 December 1991: K L B-W v Australia, HRC Comm No 499/1992, 30 March 1993, UN Doc CCPR/C/47/D/499/1992.
[100] H J Steiner, ‘Individual Claims in a World of Massive Violations: What Role for the Human Rights Committee?’ in P Alston and J Crawford (eds), The Future of UN Human Rights Treaty Monitoring (2000) 15, 38. On the role of the Human Rights Committee in developing a jurisprudence on the interpretation of the ICCPR, above n 15, see: Joseph, Schultz and Castan, above n 76, 28-31. There is judicial authority in support of this proposition from the 11th Circuit Court of Appeals of the United States, which has held that: ‘The Human Rights Committee’s General Comments and decisions in individual cases are recognized as a major source for interpretation of the ICCPR’: United States v Jose Duarte-Acero, [2000] USCA11 108; 208 F 3d 1282, 1287-8 (2000); quoting with approval the decision of a Federal District Court in Maria v McElroy, 68 F Supp 2d 206, 232 (1999).
[101] The familiar rule with respect to the ICJ is that, ‘The decision of the Court has no binding force except between the parties and in respect of that particular case’: Statute of the International Court of Justice, above n 68, art 59. Judicial decisions are only accorded status as a, ‘subsidiary means for the determination of rules of law,’ in art 38 of the Statute of the International Court of Justice, incorporated in the Charter of the United Nations (26 June 1945) ATS 1, which is acknowledged as an authoritative statement of the traditional sources of international law: see I Brownlie, Principles of Public International Law (6h ed, 2003) 5; P Malanczuk (ed), Akehurst’s Modern Introduction to Public International Law (7th rev ed, 1997) 36; Higgins, above n 72, 17-18. From a pragmatic perspective, this is not necessarily a fatal objection and there is some force in the observation that, ‘as the body to which states have voluntarily given power to hear communications under the ICCPR the Committee clearly has some sort of mandate to interpret this treaty’: M Crock and P Mathew, ‘Immigration Law and Human Rights’ in D Kinley (ed), Human Rights in Australian Law (1998) 141, 160. However, it remains potentially problematic to impose on a state party who, ‘recognizes the competence of the Committee to receive and consider communications’, an obligation on that basis alone to accept the views of the Human Rights Committee as a binding interpretation of the ICCPR.
[102] The Human Rights Committee is not strictly a judicial body, and its views are not strictly binding: McGoldrick, above n 98, 150-51; E Evatt, ‘Foreword’ [2002] MelbULawRw 15; (2002) 26 Melbourne University Law Review 251; contra: J S Davidson, ‘Intention and Effect: The Legal Status of the Final Views of the Human Rights Committee’ (2001) New Zealand Law Review 125. The Human Rights Committee as a whole displays, ‘elements of judicial, quasi-judicial, administrative, investigative, inquisitorial, supervisory, and conciliatory functions’: McGoldrick, above n 98, 55. Its views on individual communications under the Optional Protocol are entitled to respect as, ‘quasi-judicial findings of fact and conclusions of law’: Nowak, above n 67, 649.
[103] Art 31(3)(b) of the Vienna Convention on the Law of Treaties, above n 72, provides for treaties to be interpreted in the light of, ‘any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation’. It may be argued that some aspects of the views of the Human Rights Committee have been accepted by the parties to the ICCPR, above n 15, as stating the correct interpretation of that Covenant.
[104] The views of the Human Rights Committee might be argued to form a body of ‘soft law’ relevant to the interpretation of the ‘black letter law’ of the ICCPR, above n 15. Such an approach would fit with a definition of soft law as, ‘guidelines of conduct … which are neither strictly binding norms of law, nor completely irrelevant political maxims, and operate in a grey zone between law and politics’: Malanczuk (ed), above n 101, 54. On the issue of soft law see: C M Chinkin, ‘The Challenge of Soft Law: Development and Change in International Law’ (1989) International and Comparative Law Quarterly 850; M N Shaw, International Law (5th ed, 2003), 110-12. It is also worth noting that some soft law norms may achieve traditional legal status either by representing a codification of existing customary international law at the time of adoption, or by a process of crystallisation of custom around the soft law instrument, by which it comes to represent customary international law. The ICJ considered the relationship between soft law instruments and customary international law in: Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v United States of America)(Merits) [1986] ICJ Rep 14, 99-100; Legality of the Threat of Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 2, 40-44.
[105] Joseph, Schultz and Castan, above n 76, 24.
[106] Steiner, above n 100, 15, 21. The competence to issue general comments is derived from ICCPR, above n 58, art 40(4).
[107] Human Rights Committee, General Comment 8: Right to liberty and security of persons (Article 9), 16th session, 30 June 1982, reproduced in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc HRI\GEN\1\Rev.1 (1994), 8.
[108] Ibid [1].
[109] A v Australia, HRC Comm No 560/1993, 30 April 1997, UN Doc CCPR/C/59/D/560/1993. The full views of the Human Rights Committee in A v Australia are reproduced in (1997) 9 International Journal of Refugee Law 506. The response of the Australian government is reproduced in (1997) 9 International Journal of Refugee Law 674. A summary with comments is available in: R Piotrowicz, ‘The Detention of Boat People and Australia’s Human Rights Obligations’ (1998) 72 Australian Law Journal 417.
[110] van Alphen v The Netherlands, HRC Comm No 305/1988, 15 August 1990, UN Doc CCPR/C/39/D/305/1988, [5.8] .
[111] A v Australia, HRC Comm No 560/1993, 30 April 1997, UN Doc CCPR/C/59/D/560/1993, [9.3].
[112] Ibid [9.4].
[113] Senator Amanda Vanstone (Minister for Immigration and Multicultural and Indigenous Affairs), ‘Frequently Asked Questions – Immigration Detention and Seeking Asylum in Australia’, <http://www.minister.immi.gov.au/faq/asylum.htm> .
[114] A v Australia, HRC Comm No 560/1993, 30 April 1997, UN Doc CCPR/C/59/D/560/1993, [9.4]. The ‘need for periodic review where there is continuing detention’ has also been recognised under the equivalent provisions of the European Convention, above n 88: J Murdoch, ‘Safeguarding the Liberty of the Person: Recent Strasbourg Jurisprudence’ (1993) 42 International and Comparative Law Quarterly 494, 518.
[115] The Australian government’s response was a blunt rejection of the findings. It had adopted the position that the detention of A was justified, and would not be dissuaded by the findings of the Human Rights Committee. A joint ministerial press release declared that the Australian government, ‘does not accept’, the decision, before stating dismissively that the Human Rights Committee: ‘is not a court, and does not render binding decisions or judgments. It provides views and opinions, and it is up to countries to decide whether they agree with those views and how they will respond to them’: Daryl Williams (Attorney-General) and Philip Ruddock (Minister for Immigration and Multicultural Affairs), ‘Australian Government Responds to the United Nations Human Rights Committee’ (Press Release, 17 December 1997) quoted in D Kinley and P Martin, ‘International Human Rights Law at Home: Addressing the Politics of Denial’ [2002] MelbULawRw 24; (2002) 26 Melbourne University Law Review 466, 468.
[116] C v Australia, HRC Comm No 900/1999, 13 November 2002, UN Doc CCPR/C/76/D/900/1999. A brief explanation and comment on C v Australia is published in: P Boeles and F Schild, ‘Case Reports of the European Court of Human Rights and the Human Rights Committee’ (2003) 5 European Journal of Migration and Law 285, 296.
[117] Baban v Australia, HRC Comm No 1014/2001, 18 September 2003, UN Doc CCPR/C/78/D/1014/2001.
[118] Bakhtiyari v Australia, HRC Comm No 1069/2002, 6 November 2003, UN Doc CCPR/C/79/D/1069/2002.
[119] The Human Rights Committee considered art 9 peripherally in another case involving Australia, concerning a deportation from Australia in circumstances where it was alleged that the deportee would have subsequently been the victim of a violation by Malaysia of art 9. However, the Human Rights Committee was unable to conclude that deportation would result in a violation of art 9 rights in the circumstances of the case: T v Australia, HRC Comm No 706/1996, 4 November 1997, UN Doc CCPR/C/61/D/706/1996.
[120] C v Australia, HRC Comm No 900/1999, 13 November 2002, UN Doc CCPR/C/76/D/900/1999, [4.28]-[4.33].
[121] Ibid [8.2].
[122] Baban v Australia, HRC Comm No 1014/2001, 18 September 2003, UN Doc CCPR/C/78/D/1014/2001, [7.2]. In Ruth Wedgwood’s dissenting opinion, it is pointed out that it is an audacious claim indeed by someone who has subsequently escaped and remains at large that lesser means than detention would have secured compliance with immigration laws.
[123] Bakhtiyari v Australia, HRC Comm No 1069/2002, 6 November 2003, UN Doc CCPR/C/79/D/1069/2002, [9.3].
[124] C v Australia, HRC Comm No 900/1999, 13 November 2002, UN Doc CCPR/C/76/D/900/1999, [8.2].
[125] Baban v Australia, HRC Comm No 1014/2001, 18 September 2003, UN Doc CCPR/C/78/D/1014/2001, [7.2]. The particular intervening circumstances relied on were, ‘the hardship of prolonged detention for his son or the fact that during the period under review the state party apparently did not remove Iraqis from Australia’.
[126] Bakhtiyari v Australia, HRC Comm No 1069/2002, 6 November 2003, UN Doc CCPR/C/79/D/1069/2002, [9.2]. Different issues would have been relevant to Mr Bakhtiyari’s detention after his visa was cancelled in December 2002, but this detention was not before the Human Rights Committee.
[127] Madafferi v Australia, HRC Comm No 1011/2001, 26 August 2004, UN Doc CCPR/C/81/D/1011/2001, [9.2].
[128] This record is detailed in the note to the individual opinion of Ruth Wedgwood. See: Madafferi v Australia, ibid, individual opinion of Ruth Wedgwood.
[129] Ibid [4.8].
[130] Ibid [2.4-2.5], [2.7].
[131] Ibid [4.10].
[132] Baban v Australia, HRC Comm No 1014/2001, 18 September 2003, UN Doc CCPR/C/78/D/1014/2001, dissenting opinion of Ruth Wedgwood.
[133] ICCPR, above n 15, art 9(4).
[134] Vienna Convention on the Law of Treaties, above n72, art 32(a).
[136] UN Doc E/CN.4/21, 12.
[137] UN Doc E/CN.4/21, 34.
[138] UN Doc E/600, 26. See also: Bossuyt, above n 84, 212.
[139] Secretary of State for Home Affairs v O’Brien [1923] AC 603, 609; quoted with approval in Williams v Kaiser, [1945] USSC 18; 323 US 471, 484 (1945) (Frankfurter J).
[140] Preiser v Rodriguez, [1973] USSC 96; 411 US 475, 484 (1973) (Stewart J).
[141] Nowak, above n 67, 179; Bossuyt, above n 84, 213.
[142] General Comment 8, above n 107, [1].
[143] A v Australia, HRC Comm No 560/1993, 30 April 1997, UN Doc CCPR/C/59/D/560/1993, [9.5].
[144] Ibid.
[145] C v Australia, HRC Comm No 900/1999, 13 November 2002, UN Doc CCPR/C/76/D/900/1999, [8.3].
[146] Baban v Australia, HRC Comm No 1014/2001, 18 September 2003, UN Doc CCPR/C/78/D/1014/2001, [7.2].
[147] Bakhtiyari v Australia, HRC Comm No 1069/2002, 6 November 2003, UN Doc CCPR/C/79/D/1069/2002, [9.2]. This approach is arguably erroneous, although little turns on that for the purposes of this article.
[148] Ibid [9.4].
[149] B (Infants) and B (Intervener) v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FamCA 451; (2003) 30 Fam LR 181. See also: A Sifris, ‘Children in Immigration Detention: The Bakhtiyari Family in the Family Court’ (2004) 29 Alternative Law Journal 212.
[150] In the exercise of that jurisdiction, Strickland J initially declined to order the release of the children: B and B v Minister for Immigration and Multicultural and Indigenous Affairs (unreported, Family Court of Australia, Strickland J, 5 August 2003). On appeal, the Full Court of the Family Court ordered their release: B and B v Minister for Immigration and Multicultural and Indigenous Affairs [2003] Fam CA 621 (unreported, Family Court of Australia, Kay, Coleman and Collier JJ, 25 August 2003) .
[151] Bakhtiyari v Australia, HRC Comm No 1069/2002, 6 November 2003, UN Doc CCPR/C/79/D/1069/2002, [9.5].
[152] Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20; (2004) 31 Fam LR 339. See also: A Sifris and T Penovic, ‘Children in Immigration Detention: The Bakhtiyari Family in the High Court and Beyond’ (2004) 29 Alternative Law Journal 217.
[153] The requirement of the Human Rights Committee that substantive judicial review be available has also influenced its approach to the issue of exhaustion of domestic remedies, a pre-requisite to its jurisdiction under art 5(2)(b) of the Optional Protocol, above n 99. In Faure v Australia, HRC Comm No 1036/2001, 23 November 2005, UN Doc CCPR/C/85/D/1036/2001, the Human Rights Committee referred to its decisions in the immigration detention cases considered in this article, concluding that: ‘it would be futile to expect an author to bring judicial proceedings which would merely confirm the undisputed fact that the primary legislation in question … does in fact apply to her, when what is being challenged before the Committee is the substantive operation of that law, the content of which is not open to challenge before the domestic courts’: [6.2].
[154] C v Australia, HRC Comm No 900/1999, 13 November 2002, UN Doc CCPR/C/76/D/900/1999, individual opinion of David Kretzmer.
[155] Ibid [4.34].
[156] Ibid individual opinion of Nigel Rodley.
[157] Body of Principles, above n 15.
[158] Ibid, Use of Terms. As a General Assembly resolution, the Body of Principles is probably part of the body of soft law relevant to interpreting the ICCPR, above n 15. Sir Nigel Rodley has assessed the legal value as follows: ‘In approving the Body of Principles, the General Assembly urged ‘that every effort be made so that the Body of Principles becomes generally known and respected’. This is strongly supportive language, but certainly not such as to suggest that the Assembly was seeking to promote their recognition as legally binding. Yet the language of many of the principles is peremptory, so clearly they are intended to be persuasive. As is often the case with such ‘soft law’ instruments, its principal value (from the perspective of international law) will be in assisting governments and relevant international bodies in interpreting and applying broader, but more recognizably legal norms.’ N S Rodley, The Treatment of Prisoners under International Law (2nd ed, 1999) 333.
[159] Body of Principles, above n 15, principle 4.
[160] Ibid, Use of Terms. The Human Rights Committee has stated that art 9(4), ‘envisages that the legality of detention will be determined by a court so as to ensure a higher degree of objectivity and independence in such control’: Torres v Finland [7.2, HRC Comm No 291/1988, 5 April 1990, UN Doc.CCPR/C/38/D/291/1988.
[161] The Working Group on Arbitrary Detention is, ‘composed of five independent experts, with the task of investigating cases of detention imposed arbitrarily or otherwise inconsistently with the relevant international standards’: Report of the Working Group on Arbitrary Detention (1993), UN Doc E/CN.4/1993/24. For a list of instruments considered, see: Report of the Working Group on Arbitrary Detention (1998), UN Doc E/CN.4/1998/44, Annex I – Revised Methods of Work, [7].
[162] Opinion No 34/2000 (United States of America), concerning Jan Borek, UN Doc E/CN.4/2002/77/Add.1, 20 [21].
[163] Winterwerp v The Netherlands [1979] ECHR 4; (1979) 2 EHRR 387, 68.
[164] X v United Kingdom [1981] ECHR 6; (1981) 4 EHRR 188, 57.
[165] Ibid. Subsequently applied in: Van Droogenbroeck v Belgium [1982] ECHR 3; (1982) 4 EHRR 443, [49]; Weeks v United Kingdom [1987] ECHR 3; (1987) 10 EHRR 293, [59]; Thynne, Wilson and Gunnell v United Kingdom [1990] ECHR 29; (1990) 13 EHRR 666, [79]; Chahal v United Kingdom [1996] ECHR 54; (1997) 23 EHRR 413, [127]; E v Norway (1990) 17 EHRR 30, [50], [60].
[166] Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562, 574 (Gleeson CJ).