1 MANDATORY DETENTION OF STATELESS ASYLUM SEEKERS IN AUSTRALIA: WOULD A BILL OF RIGHTS MAKE A DIFFERENCE? Caroline Henckels * The Australian Federal Government's policy of mandatory detention of asylum seekers has had a particularly grave impact on stateless persons in immigration detention in Australia because, following the High Court decision in Al­Kateb v Godwin, they may be detained indefinitely at the will of the Executive. 1 This article examines whether a non­entrenched Bill of Rights such as the New Zealand Bill of Rights Act (NZBORA) 1990 would have changed the outcome of the Al­Kateb case. Application of New Zealand case law on immigration detention shows that the threshold of 'arbitrary' would be met in the Al­Kateb case. However, despite the prohibition on arbitrary detention in the Bill of Rights, it can be argued that the relevant provisions of Australia's Migration Act specifically authorise indefinite detention of asylum seekers, which cannot be overridden by invoking the protections of a Bill of Rights. However, it is also possible that a Court would construe that Parliament could not have intended to have legislated for indefinite detention of stateless persons and accordingly that a Bill of Rights­ consistent meaning of the statute must be adopted. * This article is based on a research paper submitted in partial fulfillment of the requirements of the Master of Public and International Law degree at the University of Melbourne, Australia. The views expressed in this article are solely those of the author and do not purport to represent the views of the New Zealand Ministry of Justice. 1 Al­Kateb v Godwin [2004] HCA 37.
2 Human Rights Research I Introduction The right not to be arbitrarily detained is a fundamental human right protected by international law. 2 The 2004 case of Al­Kateb v Godwin heralded what was described in the majority judgment as a 'tragic' outcome for stateless persons in immigration detention in Australia. 3 By a majority of four to three, the Australian High Court held that the mandatory detention provisions in the Migration Act 1958 could not be read as subject to any purpose or limitation; and that the human rights of detainees could not be read into the legislation. 4 Accordingly, the Court held that a stateless person who had no foreseeable prospect of removal to another country was lawfully able to be detained indefinitely at the will of the Executive. While McHugh J in the majority judgment in Al­Kateb suggested that the remedy to Mr Al­Kateb's situation might lie in the adoption of a national Bill of Rights, 5 Australia's Attorney­General has stated that the rule of law and the Constitution are sufficient to protect the human rights of people in Australia. 6 This article analyses the NZBORA and its effect on immigration detention cases, in order to extract the legal principles on arbitrary detention in a jurisdiction with a non­entrenched Bill of Rights. Using New Zealand's Bill of Rights jurisprudence, the article attempts to predict the likely outcome of Al­Kateb had such legislation been in place in Australia. 2 International Covenant on Civil and Political Rights (19 December 1966) 999 UNTS 171, art 9(1). 3 Al­Kateb v Godwin, above n 2, para 31 McHugh J. 4 See also the High Court's judgments in Minister of Immigration and Multicultural and Indigenous Affairs v Al Khafaji [2004] HCA 38 and Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs [2004] HCA 36, decided at the same time as Al­Kateb v Godwin, above n 2. 5 Al­Kateb v Godwin, above n 2, para 73 McHugh J. While McHugh J did not elaborate on whether a constitutional Bill of Rights or a non­entrenched Bill of Rights was preferable, this article focuses on a non­entrenched Bill of Rights, which is arguably more politically palatable to the Australian Government. 6 "Bill of Rights Not Top of List: Ruddock" (9 June 2004) Canberra Times 7.
Mandatory Detention of Stateless Asylum Seekers in Australia II The High Court Decision in Al­Kateb v Godwin A Setting the Scene 1 The Australian Constitution The Australian Constitution was not drafted to include a Bill of Rights, and contains only some express rights such as the right to vote 7 and the right to trial by jury. 8 The High Court has found some implied rights in the Constitution, although these have been controversial. 9 In addition, 'non­ citizens' (as so designated under the Migration Act) are afforded only limited rights under the Constitution, 10 which provides for the Federal Parliament to make laws with respect to naturalisation, aliens, immigration and emigration. 11 However, grants of legislative power under the Constitution are subject to the Constitution as a whole. The Constitution does not permit the Executive to exercise judicial power, particularly not the adjudication and punishment of crimes. 12 The power to detain an alien is described as 'incidental' to the Executive's powers of determining immigration applications and removing unlawful non­citizens. 13 2 The Migration Act The Migration Act 1958 provides for the mandatory detention of 'unlawful non­citizens,' 14 envisaging that detention of an unlawful non­citizen will come to an end in one of three situations: by the grant of a visa, which 7 Australian Constitution, s 41. 8 Australian Constitution, s 80. 9 See George Williams A Bill of Rights for Australia (University of New South Wales Press, Sydney, 2000) ch 2. 10 Williams, above n 9, 20. 11 Australian Constitution, s 51: "The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: … (xix) naturalisation and aliens; … (xxvii) immigration and emigration". 12 Australian Constitution, ch III. 13 Al­Kateb v Godwin, above n 2, para 4 Gleeson CJ, citing Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1, 10 Mason CJ (HCA). 14 Refer to Migration Act 1958, ss 189, 196 and 198.
3 4 Human Rights Research entitles the non­citizen to enter the Australian community; by removal of the non­citizen, at the non­citizen's request; or by deportation of the non­citizen, following the non­citizen's unsuccessful visa application. The Migration Act does not expressly address the situation where an unlawful non­citizen is stateless and therefore unable to gain entry to any other country in the foreseeable future, and is unsuccessful in gaining a visa to enter Australia. Nor is there any legislative discretion for Courts or administrative authorities to order the release of an unlawful non­citizen. Judicial review of a decision to detain an individual is precluded by a wide­ ranging privative clause in the Migration Act. 15 The High Court decision in Chu Kheng Lim v Minister for Immigration 16 gave rise to the principle that laws authorising the detention of unlawful non­ citizens "will be valid laws if the detention which they require and authorize is limited to what is reasonably capable of being seen as necessary for the purposes of deportation or necessary to enable an application for an entry permit to be made and considered." 17 This means that the constitutional validity of the detention is based on the stated purpose of the detention; but "if imprisonment goes beyond what is reasonably necessary to achieve the non­punitive object, it will be regarded as punitive in character." 18 Lim, therefore, provides authority for the following principles:
· valid statutory provisions are required to authorise the detention of non­citizens, 15 Migration Act 1958, s 474 provides that most administrative decisions made under the Migration Act 1958 (including the decision to classify a person as an unlawful non­citizen) are "privative clause decisions" which are "final and conclusive … must not be challenged, appealed against, reviewed, quashed or called in question in any court; and [are] not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account". The only argument that could be made before the High Court or any other court would be by arguing that the decision to classify a person as an unlawful non­citizen was made in exercise of jurisdictional error, following the High Court's decision in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24. 16 Chu Kheng Lim v Minister for Immigration, above n 13. 17 Chu Kheng Lim v Minister for Immigration, above n 13, para 33 (emphasis added). 18 Chu Kheng Lim v Minister for Immigration, above n 13, para 71 McHugh J.
Mandatory Detention of Stateless Asylum Seekers in Australia · the exercise of this power is limited by the Constitution, which prohibits extra­judicial punitive detention, and
· legislatively conferred authority for detention of non­citizens for administrative purposes is constitutionally valid. 3 Al­Kateb v Godwin (a) The facts Ahmed Al­Kateb is a stateless person 19 who arrived in Australia by boat without a passport or visa, and was detained as an unlawful non­citizen pursuant to section 189 of the Migration Act. 20 His application for refugee status was unsuccessful and accordingly his application for a protection visa under the Migration Act was declined. 21 He requested removal from Australia on several occasions but no other country was willing to accept him. Following the decision of the Australian Federal Court in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri, 22 in which it was held that a person in detention is entitled to be released from immigration detention if and when the purpose of removal becomes incapable of fulfilment, Mr Al­Kateb was released and was at liberty when the Federal Government appealed the Al Masri principle in respect of Mr Al­ 19 Convention Relating to the Status of Refugees (28 July 1951) 189 UNTS 150. The Convention Relating to the Status of Stateless Persons (28 September 1954) 360 UNTS 117 did not assist Mr Al­Kateb, as it only obliges Contracting States not to expel a stateless person lawfully in the territory of the State Party (except on the grounds of national security or public order). 20 Convention Relating to the Status of Refugees, above n 19. See also the discussion on the Convention Relating to the Status of Stateless Persons, above n 19. 21 Migration Act 1958, s 36. 22 Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54 (FCA).
5
6 Human Rights Research Kateb and others in his situation, 23 and Mr Al­Kateb's case was remitted to the High Court. 24 The High Court considered two main issues: whether the Migration Act 1958 authorises the indefinite detention of an unlawful non­citizen in circumstances where there is no real prospect of removing or deporting the non­citizen; and, if so, whether provisions authorising indefinite detention were invalid (and therefore unconstitutional) because they infringed Chapter III of the Constitution, which preserves detention for the purpose of punishment for the exercise of judicial order. (b) Majority: purpose of detention trumps effect Overturning the Al Masri principle, the majority of the Court found that the indefinite detention of asylum seekers was lawful because the purpose of detention under the Migration Act was administrative rather than punitive. Accordingly, it held that the power to detain asylum seekers indefinitely under the Migration Act was intra vires. 25 The majority found that the legislation was not ambiguous: regardless of the length of detention, the detention could only end where the person was deported, granted a visa, or removed on request. As long as the Government maintained the 'intention' to remove or deport the non­citizen, the detention was valid. 26 According to the majority, without ambiguity the legislation was not required to be interpreted consistently with international human rights law. 27 23 At the Federal Court it was found that the respondent took all reasonable steps to remove the appellant, meaning there were no grounds for relief in the nature of mandamus: Al­Kateb v Godwin, above n 2, para 18 (HCA) Gleeson CJ. 24 Pursuant to Federal Court of Australia Act 1976, s 22, which provides for determination of matters finally and completely. 25 His Honour opined that in any case, Parliament could enact legislation making it a criminal offence for someone to enter Australia as an illegal non­citizen, and the result would be the same: Al­Kateb v Godwin, above n 2, para 46 (HCA) McHugh J. The defect in this approach is that, in the absence of the Federal Government promulgating such a law, the Court can only interpret the legislation as it currently stands. 26 Al­Kateb v Godwin, above n 2, para 298 Callinan J. 27 Al­Kateb v Godwin, above n 2, para 239 Hayne J.
Mandatory Detention of Stateless Asylum Seekers in Australia The majority rejected an interpretation of prior jurisprudence that would have required an assessment of the reasonableness of the detention in relation to non­citizens. Noting that whether Mr Al­Kateb was released 28 for deportation or removal depended on circumstances outside the Federal Government's control, 29 Hayne J rejected any argument that the wording of the statute (requiring removal "as soon as reasonably practicable") could be construed as requiring that the purpose must be fulfilled within a reasonable time. 30 Both Hayne and Callinan JJ found that the word "reasonable" was a means to establish whether the statutory provisions fall under the relevant constitutional power, and not whether the detention is lawful in a particular case. 31 Taking a narrow view of the situation of detainees, Hayne J further discounted any argument that the length or circumstances of detention might render the detention punitive instead of administrative. 32 McHugh J used a teleological approach to interpret the power of detention. As long as the purpose of detention was to make the non­citizen available for deportation rather than for a punitive purpose, the continued detention of an illegal non­citizen did not infringe Chapter III of the Constitution. 33 It is arguable that McHugh J's position is consistent with orthodox Australian constitutional theory in that a Court will not examine the merits of a statute if 28 Hayne J disputed that were Mr Al­Kateb to be released, some other set of limitations on his freedom would have statutory or any other basis – but perhaps did not appreciate the flexibility of the remedy of habeas corpus, which can allow for some restrictions to be put on the applicant: Al­Kateb v Godwin, above n 2, para 423 Hayne J. 29 "The detention required is for an indeterminate length of time. Its duration is bounded by the occurrence of events which if they happen, will happen at a time which cannot be identified at the start of the period of detention": Al­Kateb v Godwin, above n 2, para 217 Hayne J (emphasis in original). 30 Al­Kateb v Godwin, above n 2, para 231 Hayne J. 31 Al­Kateb v Godwin, above n 2, para 253 Hayne J; para 298 Callinan J. 32 Al­Kateb v Godwin, above n 2, paras 264 – 266 Hayne J. 33 Al­Kateb v Godwin, above n 2, para 45 McHugh J. McHugh J also noted a secondary purpose of detention: "to prevent the alien from entering Australia or the Australian community".
7 8 Human Rights Research it has 'sufficient connection' with a subject in the Constitution (Leask v Commonwealth of Australia). 34 However, it was McHugh J's somewhat surprising view that construing the Constitution in accordance with contemporary principles of international law was "heretical". 35 His Honour held that, should the Court interpret the Constitution in accordance with international law, Parliament would not be free to legislate to override these principles. 36 Drawing distinctions between the constitutional schemes of other jurisdictions and Australia, McHugh J cited and discounted several cases from other countries that affirmed a doctrine of due process or reasonableness in relation to the detention of aliens. 37 Hayne J 38 agreed, reasoning that "it is necessary to consider and 34 Leask v Commonwealth of Australia (1996) 187 CLR 579, 603, cited by Peter Prince The High Court and Indefinite Detention: Towards a National Bill of Rights? (Research Brief No 1 2004­05, Department of Parliamentary Services, Canberra, 2004) 5. However, Gummow J noted that "there is often no clear line between purely punitive and purely non­punitive detention", drawing an analogy with aims of criminal sentencing which, in part, have a non­punitive purpose of protecting society from the detainee: Al­Kateb v Godwin, above n 2, para 135 Gummow J. 35 Al­Kateb v Godwin, above n 2, para 63 McHugh J. 36 Al­Kateb v Godwin, above n 2, para 66 McHugh J. His Honour also argued that interpreting the legislation in accordance with international law would mean that the Court would be amending the Constitution, in violation of section 128 of the Australian Constitution, which prescribes that it can only be amended by legislation that is approved by a majority of the States and "a majority of all electors voting": Al­Kateb v Godwin, above n 2, para 68 McHugh J. 37 In Zadvydas v Davis (2001) 121 US 2491, for example, the United States Supreme Court held that as a matter of statutory construction, the relevant legislation could not authorise indefinite detention of aliens, due to the Due Process clause in the United States Constitution. In R v Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704 the House of Lords held that the power to detain an alien under the Act was limited to such a period of time as was reasonably necessary to carry out the process of deportation. In Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97 the House of Lords held that in the absence of express statutory authority to the contrary, the power to detain aliens pending removal could only be exercised during such period as was reasonably necessary to effect removal. 38 Steven Churches argues that "There is a curious passivity in the reasoning of Hayne J, when compared to that of the Chief Justice and Gummow J. The
Mandatory Detention of Stateless Asylum Seekers in Australia apply the language of the sections with which we are concerned, not other forms of legislation on the same general subject. That is why no useful assistance is gained from considering … decisions of overseas Courts". 39 (c) Reasoning of the dissent: a presumption against incarceration In the dissenting judgment, Gleeson C J 40 opined that it was it was improbable that Parliament would, in ambiguous terms, legislate to abrogate fundamental freedoms. 41 Accordingly, the meaning of the legislation for Mr Al­Kateb could not be "dealt with by implication". 42 A salient feature of a mandatory detention scheme is that it does not take into account the individual circumstances of detainees. 43 Consequently, factors that may be taken into account when making a discretionary decision on whether to detain an unlawful non­citizen and the reasonableness of such a decision are not considered, highlighting the arbitrary nature of this form of detention. 44 Gummow J agreed that a construction of the legislative provision that authorises indefinite detention should be avoided. 45 Gleeson C J and Kirby J focussed on an implied temporal limit in the legislation: where deportation was no longer a practical possibility, the legislation is accepted at its face value without the slightest reference to its internal context, or its wider purpose, and only a fleeting glance at the common law standards against which the statute is composed … .for myself, I cannot understand how the Legislature can vest the Executive with a mandatory requirement usurping a Chapter III function, even purporting to rest on heads of power": Steven Churches "Tragic: The High Court Decision in the Indefinite Mandatory Detention Case of Al­Kateb" (2004) 30 South Australia Law Society Bulletin 31. 39 Al­Kateb v Godwin, above n 2, para 239 Hayne J. 40 Al­Kateb v Godwin, above n 2, para 19 Gleeson CJ. His Honour cited Coco v the Queen (1994) 179 CLR 427 (HCA). This principle is based on Liversidge v Anderson [1942] AC 206, 245 (HCA). 41 Al­Kateb v Godwin, above n 2, para 20 Gleeson CJ. 42 Al­Kateb v Godwin, above n 2, para 21 Gleeson CJ. 43 Al­Kateb v Godwin, above n 2, para 14 Gleeson CJ. 44 Al­Kateb v Godwin, above n 2, para 12 Gleeson CJ. 45 Al­Kateb v Godwin, above n 2, para 117 Gummow J.
9 10 Human Rights Research purpose of detention pending deportation could no longer apply. Noting that the view of the majority had "grave implications" for Mr Al­Kateb and others in his situation, and staunchly criticising McHugh J's originalist position, 46 Kirby J emphasised the need to comply with international law, 47 especially international human rights law; 48 but acknowledged that the use of this approach in other jurisdictions was stimulated by Bills of Rights in national constitutions. 49 However, His Honour noted that in a case before the House of Lords, R v Governor of Durham Prison: Ex Parte Hardial Singh, 50 an open­ended legislative provision was read down to respect the right to liberty: "that this was done … without the support of a constitutionally stated and entrenched judicial power, makes the force of judicial resistance to an untrammelled executive power of detention all the more striking". 51 Gummow J considered that indefinite detention infringed the separation of powers under the Constitution because it amounted to punishment by an act of the Executive, observing that the reality of deprivation of liberty for Mr Al­Kateb was at issue, rather than a simple categorisation of the detention as administrative rather than punitive. 52 In contrast to McHugh J's approach, 46 Al­Kateb v Godwin, above n 2, para 167 Kirby J. 47 The High Court has previously acknowledged the role of international treaties in the interpretation of legislation: Dietrich v R (1992) 177 CLR 292 (HCA).The High Court in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 287 (HCA) noted that, based on a presumption that Parliament intends to legislate in accordance with Australia's obligations under international law, it is a principle of statutory interpretation that if a statute is ambiguous, the courts will interpret it in a manner consistent with Australia's international obligations. It remains unclear (in Australia) whether the principle of interpreting a treaty in accordance with international obligations applies only where a statute is ambiguous, or whether the principle applies in all statutory interpretation. See Glen Cranwell "Treaties and the Interpretation of Statutes: Two Recent Examples in the Migration Law Context" (2003) 39 AIAL Forum 49, 58. 48 Al­Kateb v Godwin, above n 2, para 168 Kirby J. Kirby J's interpretive principle was first stated in Newcrest Mining (WA) Ltd v The Commonwealth (1997) CLR 513, 657­658 (HCA). 49 Al­Kateb v Godwin, above n 2, para 184 Kirby J. 50 R v Governor of Durham Prison, ex parte Hardial Singh, above n 37. 51 Al­Kateb v Godwin, above n 2, para 160 Kirby J. 52 Al­Kateb v Godwin, above n 2, paras 135­138 Gummow J.
Mandatory Detention of Stateless Asylum Seekers in Australia Gummow J contended that in situations where it is not "reasonably practicable" that the appellant will be removed, "there is a significant constraint for the continued operation" of the provisions which require removal of unlawful non­citizens on request "as soon as reasonably practicable", 53 and that by implication the word "until' in (must be kept in immigration detention "until" removal or deportation) "loses a necessary assumption for its continued operation". 54 Following the decision, the Immigration Minister used her discretionary power to grant Mr Al­Kateb a bridging visa, allowing him temporary permission to reside in Australia. Some 13 claims of others in Mr Al­Kateb's situation, however, were declined. 55 III The Effect of a National Bill of Rights on Immigration Detention A A Non­entrenched Statute The NZBORA, enacted to give effect to New Zealand's commitments under the International Covenant on Civil and Political Rights, 56 is not constitutionally entrenched 57 and can, under the doctrine of parliamentary supremacy, be repealed by simple majority in the House of Representatives. Unlike the Canadian Charter of Rights and Freedoms, which provides for a judicial power to invalidate legislation that offends a Charter right and cannot be "demonstrably justified in a free and democratic society", 58 the Bill of Rights does not provide for inconsistent laws to be struck down by the 53 Migration Act 1958, s 198. 54 Migration Act 1958, s 196(1). Al­Kateb v Godwin, above n 2, para 122 Gummow J. 55 Michael Head "Detention Without Trial – Is There No Limit?" (2005) 30 Alternative Law Journal 63. 56 The Long Title of the New Zealand Bill of Rights Act 1990 states that the purpose of the law is to "affirm New Zealand's commitment to the International Covenant on Civil and Political Rights". 57 The Bill of Rights was initially proposed to be entrenched. The entrenchment provision was based on the Electoral Act 1993 (NZ) and would have required a 75% majority in the House of Representatives or a public referendum to repeal or amend any of its provisions. 58 Canadian Charter of Rights and Freedoms, Schedule B, Part I of the Constitution Act 1982 (Canada Act 1982 (UK), sch B).
11 12 Human Rights Research judiciary, although where a Bill of Rights­consistent meaning can be given to a statute, this meaning must be preferred to any other meaning. Similarly, the United Kingdom's Human Rights Act 1998, which incorporates the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), 59 requires the judiciary to interpret legislation, as far as it is possible to do so, in a way consistent with the incorporated ECHR rights, but does not allow for inconsistent legislation to be struck down. 60 Persons in the United Kingdom, however, have the added protection of recourse to the European Court of Human Rights once domestic remedies have been exhausted, an opportunity not available to New Zealand litigants. 61 Given that Australia is not party to a regional human rights treaty, it is considered appropriate to focus on New Zealand's Bill of Rights as a stand­alone non­entrenched Bill of Rights, in order to assess the potential interface between Australia's Migration Act and a Bill of Rights. B Scope of the Bill of Rights The Bill of Rights affirms human rights and fundamental freedoms, 62 binding the legislature, executive and judiciary and requiring the Government to act consistently with the rights and freedoms contained therein. 63 When developing legislation, the Government must consider whether the proposed legislation complies with the Bill of Rights. 64 Notwithstanding the non­ 59 European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) 213 UNTS 222. 60 Such a declaration can give rise to a number of subsequent procedures, including remedial action under s 10(2) of the Human Rights Act 1998 (UK) – a form of Executive action to remedy a particular situation but that does not amend the impugned statute. 61 However, litigants in New Zealand have recourse to the United Nations Human Rights Committee. 62 Preamble to the New Zealand Bill of Rights Act 1990. 63 New Zealand Bill of Rights Act 1990, s 3. 64 Section 7 of the New Zealand Bill of Rights Act 1990 requires the Attorney­ General to report to the House of Representatives if legislation being introduced is inconsistent with the New Zealand Bill of Rights Act 1990 notwithstanding an analysis of the whether the limitation is demonstrably justified in a free and democratic society. Had the mandatory detention provisions of the Migration Act 1958 (Aust) been introduced to Parliament with a Bill of Rights in existence, the
Mandatory Detention of Stateless Asylum Seekers in Australia entrenched nature of the Bill of Rights, New Zealand's higher Courts have looked to international human rights law to assist in interpreting domestic law in a manner consistent with the Bill of Rights. Most Bill of Rights litigation thus far has occurred in the area of criminal investigations and prosecutions, 65 and remedies for a breach include the exclusion of evidence, monetary compensation, stays of proceedings, and common law remedies such as habeas corpus. C Arbitrary Detention Under the Bill of Rights Mirroring Article 9(1) of the ICCPR, section 22 of the Bill of Rights provides that "everyone has the right not to be arbitrarily arrested or detained". Most Bill of Rights litigation in relation to arbitrary detention has focused on whether a person was in fact lawfully detained, and whether or not they were afforded, for example, the right to seek legal advice. 66 The most common litigation under section 22 has been an alleged abuse of the initial power to detain for the purpose of breath or blood alcohol screening in relation to driving while intoxicated. Arbitrary actions can be contrary to an existing rule of positive law, 67 or prima facie legal, yet unjust and unreasonable and therefore arbitrary. 68 Any Attorney­General would likely have had to table a report under s 7 (supposing the Bill of Rights contained a protection similar to s 7 of the New Zealand Bill of Rights Act 1990) detailing the inconsistency, which could affect the progress of the Bill through the legislative process. The s 7 process arguably provides some procedural and political hurdles for legislation that unreasonably infringes rights. 65 Paul Rishworth and others The New Zealand Bill of Rights (Oxford University Press, Auckland, 2003) 22. 66 See, for example, Ministry of Transport v Noort [1992] 3 NZLR 260 (CA). 67 Antony Shaw and Andrew S Butler "Arbitrary Arrest and Detention under the New Zealand Bill of Rights: the New Zealand Courts Stumble in Applying the International Covenant" [1993] NZLJ 139, 140. 68 This principle developed from UN Human Rights Committee jurisprudence. In UN Human Rights Committee "Communication 305/1988: Van Alphen v the Netherlands" (23 July 1990) CCPR/C/39/D/305/1988, the UN Human Rights Committee found that notwithstanding that positive laws authorised the period of Van Alphen's detention, Van Alphen successfully argued that his detention was "arbitrary" because it failed to meet standards of "justness". The Committee found that detention must be both "reasonable" and "necessary" in the circumstances so
13 14 Human Rights Research detention is therefore prima facie arbitrary which is not in strict accordance with the law, or results from unjust conduct. 69 Whether a detention is arbitrary will depend on the reasonableness of the detention in a particular case, as the word "arbitrary" implies a lack of reasonable justification. 70 The New Zealand Court of Appeal has observed that decisions of the United Nations Human Rights Committee are "of considerable persuasive authority", if not binding on New Zealand Courts. 71 In Manga v Attorney­General, the Court of Appeal observed as obiter that lawful detentions may be arbitrary if they exhibit "elements of inappropriateness, injustice, or lack of predictability or proportionality." 72 The Court noted that the word "arbitrary" was used in the International Covenant to ensure that both illegal and "unjust" acts came within the scope of the Convention. 73 D Immigration Detention in New Zealand 1 The Immigration Act Detention of asylum seekers in New Zealand is not mandatory, but some arrivals, including refugee status claimants, can be detained under sections 128(5) and 114G of the Immigration Act 1987. Detention under the Immigration Act is subject to checks and balances against undue or unjustified continued detention by regular review by a District Court Judge, 74 as not to be "unjust" in terms of the International Covenant on Civil and Political Rights, above n 1, art 9(1).. 69 Shaw and Butler, above n 57, 141. The New Zealand Court of Appeal has stated "whether an arrest or detention is arbitrary turns on the nature and extent of any departure from the substantive and procedural standards involved. An arrest or detention is arbitrary if it is capricious, unreasoned, without reasonable cause: if it is made without reference to an adequate determining principle or without following proper procedures": Neilsen v Attorney­General [2001] 3 NZLR 433, para 34 (CA). 70 Rishworth and others, above n 55, 56. 71 R v Goodwin (No 2) [1993] 2 NZLR 390, 395 (CA). 72 Manga v Attorney­General [2002] 2 NZLR 65, 71 (CA). 73 Manga v Attorney­General, above n 72. However, the Court was not required to determine whether the appellant's detention was arbitrary on that basis. 74 After 48 hours in detention, an immigration official or police officer must apply to a District Court Registrar for a warrant of commitment authorising detention
Mandatory Detention of Stateless Asylum Seekers in Australia meaning that the Executive is required to continue to justify whether detention is necessary. 75 The Judge must have regard to all the circumstances of the case including the known personal history of the individual, the nature of the detention, and any relevant legitimate concerns. 76 Detainees may apply for an administrative review of the decision to detain, as well as make an application for habeas corpus. The New Zealand Court of Appeal has held that administrative detention of asylum seekers is lawful in certain circumstances, such as during an investigation of whether an applicant should be accorded refugee status. This type of detention, as an interim measure, is deemed not to be punitive. New Zealand's High Court has also held that this detention is often necessary to enable the case of an asylum seeker to be properly assessed where that asylum seeker arrives without any documentation that verifies her or his identity. The Court of Appeal has noted the safeguard created by the regular judicial review of a decision to detain and stated that any restrictions on liberty created by section 128 of the Immigration Act must be able to be justified and be no greater than necessary, as it must be assumed that Parliament intended power of detention to be interpreted in a manner consistent with the right not to be subject to arbitrary detention. In addition, section 6 of the Bill of Rights would require such an interpretation, because there are no contrary legislative indications. 2 New Zealand case law (a) Arbitrary: the threshold Bill of Rights case law provides illustrations of examples of an initially valid power to detain that is subsequently invalidated. Such cases have usually been in the criminal context, but there is a growing body of immigration case law, and recent jurisprudence shows the possibility of a finding of arbitrariness if the detention of a person seeking asylum continues past a for up to a further 28 days. Detention beyond this point requires re­authorisation for each 28 day period. 75 Attorney­General v E [2000] 3 NZLR 257 para 48 (CA) Henry and Keith JJ. 76 Attorney­General v Refugee Council of New Zealand Inc [2003] 2 NZLR 577 (CA).
15 16 Human Rights Research point where detention becomes unreasonable. The case law on arbitrary detention in New Zealand is still developing: until recently there has been relatively little discussion of initially lawful detention that becomes arbitrary. 77 In Abu v Superintendent of Mt Eden Women's Prison 78 the High Court noted that detention that is otherwise lawful "may convert and become unlawful if it extends beyond a period of time which is unreasonable in all the circumstances of the case such that the detention becomes arbitrary". 79 In Tishkovets v Minister of Immigration 80 the High Court was required to consider whether initially lawful detention had become unlawful due to passage of time. The apparently stateless applicant had been in immigration detention for four months while his identity was being established and attempts were being made to secure a travel document for him. The Court held that it was not unreasonable for the applicant's detention to continue while the immigration authorities continued with their investigations with a view to his deportation. However, Salmon J opined "it does seem clear that a detention otherwise legal may become illegal if its continuation ceases to be reasonable", 81 citing two cases also cited in Kirby J's dissenting judgement in Al­Kateb. 82 77 Zaoui v Attorney­General and others [2004] NZCA 228, para 176 Hammond J dissenting. 78 Abu v Superintendent of Mt Eden Women's Prison [2000] NZAR 260 (HC) Potter J. 79 Abu Superintendent of Mt Eden Women's Prison, above n 78, para 1. On the facts of the case, two months in detention while the applicant's application for refugee status was being determined was not considered unreasonable and therefore not arbitrary: Abu Superintendent of Mt Eden Women's Prison, above n 78, paras 36 and 37. 80 Tishkovets v Minister of Immigration [2000] NZAR 505 Salmon J. 81 Tishkovets v Minister of Immigration, above n 80, para 17. 82 In R v Governor of Durham Prison, ex parte Hardial Singh, above n 37, it was held that the power to detain was impliedly limited to a period which was reasonably necessary for effecting deportation. The power was not to be exercised if it was not possible to deport the person within a reasonable time. Woolf J (as he then was) said:
Mandatory Detention of Stateless Asylum Seekers in Australia (b) Relevance of the stated purpose of detention The purpose of detention is relevant when considering whether detention has become arbitrary. In Mohebbi v Minister of Immigration 83 an illegal immigrant was detained for the purpose of establishing his identity. Several attempts were made to remove him but he failed to cooperate with authorities and obtain a passport from his consulate. He was released from detention because, notwithstanding that he was in New Zealand unlawfully, the High Court held that "the right not to be arbitrarily arrested or detained is such a fundamental right that it is expressly recognised in the New Zealand Bill of Rights Act 1990 … if Parliament had intended that a person could continue to be lawfully detained, even after his or her identity was established, Parliament surely would have expressly so provided. It would not have sanctioned such a course in such an oblique fashion as is now suggested". 84 This case provides authority for the proposition that if the purpose of detention is frustrated, the detainee should be released. (c) The Zaoui case The plight of Ahmed Zaoui has received a great deal of media attention and political commentary since his detention commenced in December 2002. Mr Zaoui was the first (and at the time of writing the only) person detained under statutory provisions allowing for the detention of a non­citizen (and issuance of a 'security risk certificate') where classified information indicates that the I regard the power of detention as being impliedly limited to a period which is reasonably necessary for that purpose. The period which is reasonable will depend on the circumstances of the particular case. What is more, if there is a situation where it is apparent to the Secretary if State that he is not going to be able to operate the machinery provided in the Act for removing persons who are intended to be deported within a reasonable period, it seems to me that it would be wrong for the Secretary of State to seek to exercise his power of detention (R v Governor of Durham Prison, ex parte Hardial Singh, above n 37, 706). In Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97 (PC) it was held that in the absence of express statutory authority, the power to detain aliens pending removal could only be exercised during such period as was reasonably necessary to effect removal. 83 Mohebbi v Minister of Immigration (7 August 2003) HC AK CIV 2003­404­4326 Chambers J. 84 Mohebbi v Minister of Immigration, above n 83, para 25 Chambers J.
17 18 Human Rights Research particular person may pose a threat to national security. 85 Mr Zaoui applied for a review of his security risk certificate as provided for in the legislation, 86 and was subsequently found to be a genuine refugee in terms of the Refugee Convention. 87 Both Mr Zaoui and the New Zealand Government have brought a number of Court proceedings since Mr Zaoui's initial incarceration. Of particular note was his application for a declaration that his detention (or the conditions of his detention) was inconsistent with the Bill of Rights. He had been in custody for over two years when his case came before the Court of Appeal. 88 Whilst finding that, on balance, Mr Zaoui's detention was not arbitrary the Court of Appeal made a number of observations drawn from relevant overseas jurisprudence to elucidate the test for arbitrary detention, including a general principle that the criteria for arbitrariness are "inappropriateness, injustice and a lack of predictability". 89 The Court noted the Human Rights Committee's views in A v Australia where the Committee found that a remand in custody pursuant to lawful arrest must not only be lawful but reasonable in all the circumstances. 90 In particular, McGrath J noted that detention under the Immigration Act "would be both arbitrary and unlawful if the purpose of detention could not be fulfilled and the detention was therefore 85 Invocation of the process requires a warrant of commitment issued by a District Court Judge following a Ministerial decision to rely on the information contained in a security risk certificate issued by the Director of the New Zealand Security Intelligence Service. 86 Refer to Immigration Act 1987, section s114I. This review process is carried out by the Inspector­General of Intelligence and Security. At the time of writing, Mr Zaoui's certificate is being reviewed. 87 Convention Relating to the Status of Refugees, above n 19. 88 Zaoui v Attorney­General and Others, above n 77. 89 Zaoui v Attorney­General and Others, above n 77, para 86 (CA) McGrath J, citing Van Alphen v the Netherlands, above n 68. 90 UN Human Rights Committee "Communication 560/1993: A v Australia" (3 April 1997) CCPR/C/59/D/560/1993: Zaoui v Attorney­General and Others, above n 77, para 85 (CA) McGrath J.
Mandatory Detention of Stateless Asylum Seekers in Australia otherwise indefinite or permanent". 91 Nevertheless, the majority of the Court of Appeal found that the fact that the Inspector­General was still in the process of reviewing Mr Zaoui's security risk certificate 92 meant that the detention was not arbitrary. 93 In a dissenting judgment, Hammond J found Mr Zaoui's detention to be arbitrary, and provided an interpretive test that echoes that of Kirby J. 94 His Honour noted that:
· the Court presumes that Parliament does not intend to deprive a person of a human right except to the extent expressly stated or necessarily implied
· where possible, consistency with the rights and freedoms in the Bill of Rights should be achieved
· the Court should not impute to Parliament an intention to abrogate or curtail fundamental rights or freedoms, and
· despite the purpose of a particular enactment, the cumulative effect, or impact, of the length of detention is relevant. 95 91 Zaoui v Attorney­General and Others, above n 77, para 88 (CA) McGrath J. His Honour also said "I agree with the observations to this effect of Gummow J in Al­ Kateb v Godwin". 92 The Court noted the case of Chahal v United Kingdom (1996) 23 EHRR 413 (ECHR): Ultimately, the balance struck by the majority in Chahal is an appropriate one. Delays are necessary for the proper determination of cases, and in a national security context, particularly the first under the legislative process being applied, a delay of around two years does not, of itself, amount to arbitrary detention provided the state is acting with reasonable diligence (Zaoui v Attorney­General and Others, above n 77, para 97 (CA) McGrath J). 93 Zaoui v Attorney­General and Others, above n 77, para 90 (CA) McGrath J. 94 Zaoui v Attorney­General and Others, above n 77, para 152 (CA) Hammond J dissenting. 95 Zaoui v Attorney­General and Others, above n 77, para 197 (CA) Hammond J dissenting.
19 20 Human Rights Research On appeal by Mr Zaoui the Supreme Court 96 considered whether administrative detention (for a period of over two years at the time of the judgment) was justified given the national security concerns, but did not directly consider whether Mr Zaoui's detention had become arbitrary in terms of section 22 of the Bill of Rights. The Court invoked its inherent jurisdiction to grant bail pending the review of Mr Zaoui's security risk certificate, 97 noting that despite general provisions in the Immigration Act that provided for checks and balances on the power to detain, there were no statutory safeguards in relation to persons detained on the basis of a security risk certificate. The Court stated relevantly (as obiter) that Mr Zaoui's detention "would be arbitrary if the purpose of detention could not be fulfilled – in the event it became impossible to deport Mr Zaoui for an indefinite period of time. Should that eventuate, the Court would grant habeas corpus and order his release on appropriate conditions". 98 The Supreme Court further noted that section 22 of the Bill of Rights protects persons from a detention which, although lawful at the outset, had become unreasonable by virtue of indefinite or prolonged duration or disproportionate consequences. 99 IV Would a Bill of Rights Change the Outcome for Stateless Detainees in Australia? A Applying the Bill of Rights 1 The objective of the impugned legislation and the importance and significance of the objective As previously discussed, Australia's Migration Act does not expressly mandate what should be done in cases where a non­citizen is not granted a visa and it is not possible to remove or deport the non­citizen in the reasonably foreseeable future. To apply the Bill of Rights, the purpose of 96 Zaoui v Attorney­General and Others [2004] NZSC 34. 97 Zaoui v Attorney­General and Others, above n 96, para 1 (SC). The Court said that this inherent jurisdiction "by its very nature, protects the basic liberty of the individual to be free from detention, even if on a conditional basis. For such jurisdiction to be taken away, clear statutory wording is required". 98 Zaoui v Attorney­General and Others, above n 77, para 89 (CA) McGrath J. 99 Zaoui v Attorney­General and Others, above n 96, paras 22–23 (SC) Elias CJ, affirming Hammond J's dissenting reasoning in Zaoui v Attorney­General and Others, above n 77, para 117 (CA).
Mandatory Detention of Stateless Asylum Seekers in Australia both the particular section mandating detention and of the Act as a whole must be assessed. The objective of the provisions of the Migration Act relating to unlawful non­ citizens generally is to prevent unlawful non­citizens from entering or remaining in Australia; 100 whereas the purposes of the mandatory detention provisions are to detain unlawful non­citizens for the purpose of processing visa applications, or, if a visa application is declined, pending their removal or deportation. Given that Mr Al­Kateb's visa application was declined, the statutory purpose of his detention was to facilitate his removal or deportation from Australia. As previously stated, Bill of Rights jurisprudence provides that the Government has the power to detain asylum seekers and other immigrants in some situations. 101 The purpose of a particular statutory provision may be contentious. Rishworth et al note that "a purposive approach is not assured to resolve cases easily, both because persons may disagree about what the purpose of a provision actually is, and because they may attribute different degrees of importance to that purpose when balancing it against countervailing interests". 102 In the High Court judgment, McHugh J noted that Mr Al­ Kateb's detention also served the implicit purpose of protecting Australian society from unlawful non­citizens. 103 2 The purported limitation on the right In order to invoke the Bill of Rights there must be a prima facie restriction or limit on a right or freedom protected by the Bill of Rights. Bill of Rights jurisprudence clearly provides that notwithstanding that positive law may authorise detention, it can nevertheless be arbitrary. Whether or not detention 100 The Long Title of the Migration Act 1958 states its overall purpose: "An Act relating to the entry into, and presence in, Australia of aliens, and the departure or deportation from Australia of aliens and certain other persons." Section 4(1) further provides the object of the Migration Act 1958: "The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non­citizens". 101 Attorney­General v E, above n 75; Abu v Superintendent of Mt Eden Women's Prison, above n 78. 102 Rishworth and others, above n 55, 45. 103 Al­Kateb v Godwin, above n 2, para 74 McHugh J.
21 22 Human Rights Research is arbitrary depends on a number of factors including: the length of detention (Zaoui, Tishkovets, Abu), whether the statutory purpose of detention is in fact being served (Mohebbi), and whether the detainee has a right to review the lawfulness of the detention (Attorney­General v E, Attorney­General v Refugee Council of New Zealand Inc). The Australian Government's interpretation of the Migration Act, as argued in the High Court, would appear to abrogate Mr Al­Kateb's right not to be arbitrarily detained, in a manner inconsistent with section 22 of the Bill of Rights. Although detained pursuant to law, it is argued that the length of Mr Al­Kateb's detention (over three­and­a­half years), the fact that the statutory purpose of detention (to make Mr Al­Kateb available for deportation or removal from Australia) is arguably no longer valid, and the lack of effective appeal or review rights (the privative clause in the Migration Act) renders his detention arbitrary. This argument is strengthened by reference to the United Nations Human Rights Committee jurisprudence A v Australia and other cases, where the Committee found detention must be both lawful and reasonable in all the circumstances. 104 3 The possible interpretations of section 196 As demonstrated by the four to three split in the High Court judgment, whether the statute was ambiguous in respect of persons in Mr Al­Kateb's situation was a matter of some debate. The dissenting judges considered that the Migration Act did not contemplate the circumstances of stateless people who could not be deported; whereas the majority ruled that the Migration Act explicitly authorised indefinite detention. Two possible meanings of section 196 are explored: either that the legislation expressly provides for indefinite detention, or that the legislature, when enacting the provision, did not anticipate the situation of persons such as Mr Al­Kateb. This leads to a divergence of approaches for the purpose of determining whether the outcome of Al­Kateb v Godwin would be changed by the existence of a national Bill of Rights. It is arguable that Parliament had not turned its mind to the situation of persons in Mr Al­Kateb's unenviable situation, and had assumed that detention would necessarily come to an end, as the Federal Court found in Al 104 A v Australia, above n 90.
Mandatory Detention of Stateless Asylum Seekers in Australia Masri. 105 Under this approach (and that of the dissenting judges in Al­Kateb), it can be argued that the legislation is ambiguous when the purpose of detention (to effect removal) no longer applies. This means that it can be argued that the legislature had not directed its mind to the right not to be arbitrarily detained and consciously decided on abrogation or curtailment. 106 According to this view, the provisions of the Migration Act did not specifically authorise the indefinite detention of stateless persons. When mandatory detention was proposed in 1992, there is no record that the Federal Government considered that it might not be practicable to remove or deport particular individuals. 107 The proposition that where a statute is ambiguous, a meaning consistent with human rights norms should be given is supported by dicta of New Zealand's Supreme Court. The Supreme Court in Zaoui observed that the detention would be arbitrary if it became impossible to deport the detainee for an indefinite period of time. The Court stated that should this eventuate, the Court would grant habeas corpus, because section 22 of the Bill of Rights protects persons from a detention which, although lawful at the outset, becomes unreasonable by virtue of indefinite or prolonged duration. 108 In addition, the Court of Appeal in R v Goodwin (No 2) observed that decisions of the Human Rights Committee will be of considerable persuasive authority when interpreting the Bill of Rights. 109 As such, it is likely that the 105 "We conclude that an intention to curtail the right of personal liberty to the extent discussed has not been clearly manifested. It has not been manifested by any unmistakable or unambiguous language. There is no indication by clear words or necessary implication that the legislature has directed its attention to, or that it has consciously decided on, the curtailment of a fundamental common law right to the extent contended for by the Solicitor­General": Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri, above n 22, para 132. 106 See the reasoning of Gleeson CJ in Al­Kateb v Godwin, above n 2, para 90. 107 Prince, above n 34, 17. 108 Zaoui v Attorney­General and Others, above n 96, paras 22–23, affirming Hammond J's dissenting reasoning in Zaoui v Attorney­General and Others, above n 77, para 117 (CA). 109 R v Goodwin (No 2), above n 71, 5.
23 24 Human Rights Research Committee's views in A v Australia 110 should have influenced the outcome of Al­Kateb. Following Bill of Rights and Human Rights Committee jurisprudence, a meaning that is consistent with the right not to be subjected to arbitrary detention must be given where possible. The effect of the detention must be taken into account, as noted by Hammond J in Zaoui who stated "what has to be looked to is the cumulative effect, or impact, of delay in relation to the fundamental right which is protected" 111 and by the Court of Appeal in R v Goodwin (No 1): "it is primarily from the point of view of the actual effect of what is done that a Bill of Rights Act issue has to be approached." 112 If Parliament did not anticipate the situation that Mr Al­Kateb has found himself in, the language cannot be said to clearly oust the implication that Parliament intends to legislate in accordance with the Bill of Rights. In other words, except where the statute clearly mandates a limitation or infringement of rights, it should be taken not to do so. As such, where Parliament did not expressly legislate to provide for the ongoing detention of stateless persons, it must be presumed that Parliament did not intend for them to be detained indefinitely and they must be released. The other possible interpretation of the legislation is that the wording was not ambiguous, as the majority found in Al­Kateb. Despite the fact that Mr Al­ Kateb was not likely to be removed in the reasonably foreseeable future, the purpose of his detention was not frustrated, because it was impossible to say when the situation could change and he would be able to be deported. This would depend largely on international affairs that were beyond the control of the Australian Government. 113 110 A v Australia, above n 90. 111 Zaoui v Attorney­General and Others, above n 77, para 197 (CA) Hammond J dissenting (emphasis added). 112 R v Goodwin (No 1) [1993] 2 NZLR 153, 167. 113 Al­Kateb v Godwin, above n 2, para 217 Hayne J.
Mandatory Detention of Stateless Asylum Seekers in Australia B Potential Outcomes 1 If the High Court finds ambiguity: section 6 analysis If more than one meaning of the legislation is available, the next step is to identify the meaning which constitutes the least possible limitation on the right or freedom in question, as required by section 6 of the Bill of Rights. This meaning is that persons in Mr Al­Kateb's situation must be released where the statutory purpose of the detention cannot be fulfilled. Mr Al­Kateb, therefore, would be granted a remedy in the nature of habeas corpus, 114 a remedy that is not ousted by the privative clause in the Migration Act. 115 Such an approach, however, would require the High Court to find ambiguity in the relevant sections of the Migration Act, a possibility discounted by the majority in Al­Kateb. It could be argued that, as the Courts should not find legislative ambiguity where there is none, 116 finding a meaning of the Migration Act that is consistent with the Bill of Rights may be giving the legislation a strained interpretation, transgressing a policy choice that is the role of the legislature, thereby amending rather than interpreting the 114 New Zealand Bill of Rights Act 1990, s 23(1)(c) codifies the writ of habeas corpus. A detention or imprisonment which is incapable of legal jurisdiction, is the basis of jurisdiction in habeas corpus: Halsbury's Laws of England (4 ed Reissue, Butterworths, London, 2001) vol 1(1), Administrative Law, para 208. Gleeson CJ noted that: [T]he remedy of habeas corpus, or an order in the nature of habeas corpus, is a basic protection of liberty, and its scope is broad and flexible. It is not antithetical to the nature of habeas corpus for an order to be made upon terms or conditions which relate directly to the circumstances affecting an applicant's right to be released from detention, and reflect temporal or other qualifications upon that right (Al­Kateb v Godwin, above n 2, paras 25–27 Gleeson CJ). There is also a power given by s 22 of the Federal Court of Australia Act 1976 to grant remedies on such terms and conditions as the Court thinks just. 115 Migration Act 1958, s 474. 116 See JJ Spigelman, Chief Justice of New South Wales (speaking extra­judicially) "The Principle of Legality and the Clear Statement Principle" (Speech to New South Wales Bar Association Conference, Sydney, 18 March 2005).
25 26 Human Rights Research Migration Act. 117 The next section considers the implications of the High Court finding no ambiguity in the legislation. 2 If the High Court finds no ambiguity – an inconsistent meaning will prevail If the High Court was to find that the legislation was unambiguous (a real possibility given McHugh J's emphatic judgment), the inquiry becomes whether, notwithstanding the limit on the right to be free from arbitrary detention, the limit was demonstrably justified in a free and democratic society. 118 The test applied in the following sections is taken from Moonen v Film and Literature Board of Review, 119 a leading case on interpreting sections 4, 5 and 6 of the Bill of Rights. 120 The test contains two parts. First, 117 In Re S (Children: Care Plan) [2002] 2 All ER 192, 203 (HL), where the House of Lords was required to assess whether an interpretation that was more consistent with the Human Rights Act 1998 was available, Lord Nicholls noted: [W]hat one person regards as sensible, if robust, interpretation, another regards as impermissibly creative. For present purposes it is sufficient to say that a meaning which departs substantially from a fundamental feature of an Act of Parliament is likely to have crossed the boundary between interpretation and amendment. 118 Rishworth and others, above n 55 argue that the fact that some rights in the New Zealand Bill of Rights Act 1990 are expressed with inherent limitations, such as the right under s 22 to be free from arbitrary detention, means that justification in relation to these rights occurs within the context of interpreting the right itself. According to the view, analysis of such a right will usually not require recourse to s 5 "because questions of justification and acceptability will inevitably be traversed when deciding whether the right has been infringed at all": Rishworth and others, above n 55, 17. Whether an assessment of the reasonableness of the detention should occur during an examination of the right itself has been the subject of some debate, but the orthodox view is that the s 5 test should be applied regardless of the substantive right in question. 119 Moonen v Film and Literature Board of Review [2000] 2 NZLR 9 (CA). 120 See also the test in Ministry of Transport v Noort, above n 56 (CA). This test requires, inter alia, weighing: the significance in the particular case of the values underlying the New Zealand Bill of Rights Act 1990; the importance in the public interest of the intrusion on the particular right protected by the New Zealand Bill of Rights Act 1990; the limits sought to be placed on the application of the New Zealand Bill of Rights Act 1990 provision in the particular case; and
Mandatory Detention of Stateless Asylum Seekers in Australia the limit on the right must be substantively justified. This means that the objective behind the limitation must be of sufficient importance to warrant overriding a protected right or freedom. It must relate to concerns which are pressing and substantial in a free and democratic society. Second, it must be shown that the means used to achieve the objective are reasonably and demonstrably justified. Essentially this involves a test of proportionality, which consists of three components:
· the measures adopted must be carefully designed to achieve the objective in question, not arbitrary, unfair, or based on irrational considerations (that is, they must be rationally connected with the objective)
· the measures should impair as little as reasonably possible the right or freedom in question, and
· there must be proportionality between the law limiting the right and the objective of the limitation. The means used (mandatory detention) must be rationally connected with the objective of providing for rapid removal of the detainee when this becomes possible. Prima facie, the means are rationally connected to the objective, although the link becomes tenuous if the only objective is to ensure the non­ citizen is available for removal or deportation where this was not likely to occur in the foreseeable future, and the detention has become of indefinite duration. The next step is to consider whether the Government has interfered with the right as little as reasonably possible in order to achieve the objective. 121 The difficulty with the Government's approach lies in whether the means to achieve its objective constitutes the policy option which provides the least possible interference with the right. This analysis requires consideration of whether or not the legislature turned its mind to alternative and less rights­ impairing means to promote its policy goal. 122 In situations such as Mr Al­ the effectiveness of the intrusion in protecting the interests put forward to justify those limits. 121 See R v Edwards Books and Art Ltd [1986] 2 SCR 713, 782. 122 See RJR­MacDonald Inc. v Attorney­General of Canada [1995] 3 SCR 199 Lamer CJ and Iacobucci J.
27 28 Human Rights Research Kateb's, there appear to be a number of other measures that the Federal Government could reasonably have taken to both achieve the objective and reduce the impact on detainees' human rights. For example, Mr Al­Kateb could be bailed to other accommodation and required to regularly report to the local police station or be subject to electronic monitoring. It is disputed that, as Callinan and McHugh J J opined, Mr Al­Kateb and others in his situation would become "de facto citizens". 123 Releasing Mr Al­Kateb from detention would not necessarily mean his immigration status would change. He could be required to give himself up for removal if this became possible. It seems clear that the means used are not the least rights­impairing means to achieve the policy objective. The limitation on the right to be free from arbitrary detention must not be so deleterious of the right as to outweigh the substantive justification of the limitation, but the mandatory detention regime operates on the irrebuttable presumption that such detention is needed to achieve the aims of immigration policy. Given the justification for limiting the right (to ensure that detainees are able to be removed from Australia as soon as reasonably practicable), indefinite detention has a disproportionate impact on stateless detainees. 3 An inconsistent meaning will prevail if expressly provided for Following an analysis of the legislative provision against section 5 of the Bill of Rights, where an unjustified and unreasonable limitation nevertheless results because no other meaning or application is tenable, such limitation, while constituting a breach of section 5, nevertheless prevails by virtue of section 4, and must be given effect; 124 however unpalatable such a result may 123 McHugh J reasoned that, should the appellant be released, other persons in Australia illegally and who could not be deported to any other country could "thwart the operation of the Migration Act. It would mean that such persons, by their illegal and unwanted entry, could become de facto Australian citizens": Al­ Kateb v Godwin, above n 2, para 46 McHugh J. Callinan J agreed, saying: It may be the case that detention for the purpose of preventing aliens from entering the general community, working, or otherwise enjoying the benefits that Australian citizens enjoy is constitutionally acceptable. If it were otherwise, aliens having exhausted their rights to seek and obtain protection as non­citizens would be able to become de facto citizens (Al­Kateb v Godwin, above n 2, para 289 Callinan J). 124 Moonen v Film and Literature Board of Review, above n 119, para 16 Tipping J.
Mandatory Detention of Stateless Asylum Seekers in Australia appear. 125 As such, there would be no effective remedy for Mr Al­Kateb. The only possible outcome would be for the Court to issue a declaration of inconsistency, 126 which would not impliedly repeal the inconsistent provisions of the Migration Act. V Conclusion This article has, somewhat ambitiously, tried to bridge a significant divide between the Australian and New Zealand legal systems, given the different constitutional structures and composition of the benches of the highest Court in each jurisdiction. Nevertheless, it is considered that the comparative analysis is useful because it has shown that the adoption of a Bill of Rights would pave the way for the judiciary to read human rights norms into Australian Commonwealth legislation, which affords great potential to the plight of persons in immigration detention. 127 However, given the currently 125 Rishworth and others, above n 55, 520. 126 The Court of Appeal in Moonen v Film and Literature Board of Review, above n 119 stated as a strongly worded obiter dictum that the New Zealand Bill of Rights Act 1990 permits declarations that a particular enactment is inconsistent with that Act and is not able to be remedied by a Bill of Rights consistent interpretation. Butler argues that the power of the Court to issue indications of inconsistency fills a lacuna left whereby the Attorney­General is not required to consider consistency with the Bill of Rights of legislation enacted prior to 1990. According to Butler, an indication of inconsistency can create political ramifications that the Government would be well advised to take heed of: Andrew S Butler "Judicial Indications of Inconsistency: A New Weapon in the Bill of Rights Armoury?" (2000) 1 NZ Law Rev 43, 50. 127 It remains to be seen whether the Federal Government's Migration Amendment Bill (still to be introduced at the time of writing) will provide better human rights outcomes for detainees. The proposed Bill would establish a new mechanism that automatically triggers a review by the Commonwealth Ombudsman once a person has spent two years in detention. The Ombudsman would be required to investigate and make a (non­binding) recommendation to the Minister for Immigration, for tabling in Parliament, to either grant permanent residence, release into the community, or continue detention. The Minister for Immigration would then have the discretion to release a particular detainee into the community. Persons who remain in detention after this process would have the review process repeated every six months: Paul Kelly "Detention Détente" (18 June 2005) The Weekend Australian Sydney. It appears that the proposals will retain the privative clause in the Migration Act 1958, thereby continuing to preclude judicial review of cases such as Mr Al­Kateb's. Whether the proposed amendments will make a difference for people such as Mr Al­Kateb remains to be
29 30 Human Rights Research conservative Australian High Court bench, a better outcome for people in Mr Al­Kateb's situation would be by no means guaranteed by a non­entrenched Bill of Rights – despite McHugh J's view that a Bill of Rights must be adopted to prevent outcomes such as Al­Kateb's. In summary, the arguments appear to be finely balanced. On the face of it, a likely outcome of taking a Bill of Rights into account in terms of Australia's Migration Act is that the High Court would find that the legislature could not have intended for detention of indefinite duration. Despite being 'lawful', the detention had become arbitrary because the statutory purpose of detention was frustrated. As a principle of statutory interpretation, the Court could find that Parliament could not have intended to extinguish such a fundamental right to liberty, and would order the release of those detainees in Mr Al­ Kateb's situation. Such a finding would accord with New Zealand and other international Bill of Rights jurisprudence, which provides that detention, even where prima facie lawful, is subject to an implied limitation of reasonableness. Whether detention is arbitrary will depend on the circumstances of the particular case. In Mr Al­Kateb's case, the threshold has been reached. However, whether a Bill of Rights­consistent meaning can be given to a particular enactment will depend on the willingness of the judiciary in a particular situation: regrettably, the outcome could well be just as 'tragic' for stateless detainees in immigration detention in Australia, even with the supposed protection of a Bill of Rights. The majority of judges in Al­Kateb found that the legislation was not ambiguous, 128 suggesting that the majority of the High Court would hold that, in accordance with section 4, the Bill of Rights­inconsistent provisions in the Migration Act would prevail over the right of Mr Al­Kateb not to be arbitrarily detained. However, if the High Court agreed that Parliament did intend for the possibility of illegal non­ citizens to be detained indefinitely, the Court would be required to abridge a right recognised by both the Bill of Rights and at common law, which would create political opprobrium for the Federal Government, both domestically and internationally. A result that is oppressive for stateless detainees would seen – arguably the proposed legislation places too much power in the hands of the Minister, who will be at liberty to disregard the Ombudsman's recommendations, and subject only to political opprobrium in high profile cases. 128 Al­Kateb v Godwin, above n 2, para 33 McHugh J.
Mandatory Detention of Stateless Asylum Seekers in Australia nevertheless have the effect of strengthening the foundation for future societal debate about checks and balances on the executive's power of detention, and the role of the judiciary in interpreting and applying human rights.
31