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Australian Year Book of International Law |
Matthew T Stubbs[∗]
Australia, with the exception of its indigenous peoples, is a land of recent migrants. Our national anthem proclaims that, ‘For those who’ve come across the seas, we’ve boundless plains to share.’[1] However, this has never been an unconditional offer.[2] Immigration laws in Australia have often disclosed a ‘deeply xenophobic hostility’[3] toward foreigners.[4]
Fear of the yellow peril, the supposed hordes of Chinese, ‘bent on overrunning White Australia and destroying its way of life forever’,[5] prompted racially discriminatory immigration restrictions as early as 1855.[6] One of the first statutes passed after Federation was the Immigration Restriction Act 1901 (Cth),[7] which introduced the dictation test by which the White Australia policy was implemented.[8]
Since 1992, Australia’s immigration laws have required the mandatory detention of all unlawful non-citizens.[9] In 2001, the Tampa ‘crisis’ captured public imagination and provoked significant debate on the underlying immigration policy issues that are reflected in the mandatory detention requirement,[10] but that debate did not result in any significant changes to the regime of mandatory detention.
If anything, after Tampa there was a heightened sense of, ‘moral panic’,[11] brought about at least partially by a political, ‘eagerness to manipulate Australian public opinion’.[12] The result was a strengthening of the trend in migration law towards what the Canadian sociologist Anna Pratt has described as an, ‘endless quest for security – of borders, of the nation, and of the public’.[13] It also encouraged a division in the public consciousness between, ‘citizens and foreigners, or “us” from “them” – in a world of supposedly undifferentiated persons to whom human rights are due’.[14] These factors explain, at least in part, why a regime of mandatory detention was imposed on unlawful non-citizens initially, and why that regime was maintained in the face of consistent expressions of serious concern regarding its human rights consequences.[15]
More recently, however, issues surrounding immigration detention returned to public consciousness after human rights concerns were expressed openly by a number of government MPs. In what has been described as a, ‘backbench revolt’,[16] this group of representatives agitated for legislative reform and foreshadowed that they would introduce private members’ bills in a bid to change the Migration Act 1958 (Cth) (Migration Act).
A compromise was eventually struck with the Prime Minister, resulting in the announcement on 17 June 2005 of changes that would be made to the Migration Act.[17] The following day, the front page of The Australian newspaper proclaimed the acceptance by the government of a ‘softer edge’ to the regime of immigration detention in Australia.[18]
This article will consider the significance of these recent changes to Australia’s regime of mandatory detention for unlawful non-citizens, and assess whether the regime of immigration detention as it now stands is compatible with the obligations Australia has assumed under international human rights law.[19]
Analysis will begin with an examination of the regime of immigration detention under the Migration Act. It is necessary to do this in considerable detail to understand fully the operation of the regime of immigration detention in Australia before consideration can turn to an assessment of this regime against the relevant international standards. The article will then identify the relevant provisions of international human rights law, and investigate the scope of those provisions.
Finally, the conclusion will seek to demonstrate that the regime of immigration detention in Australia will continue to result in the arbitrary detention of unlawful non-citizens, in violation of Australia’s international obligations.
This part of the article considers the legal framework of immigration detention set out in the Migration Act. It begins at the heart of the regime – a simple legislative device imposing detention on unlawful non-citizens. This basic understanding is then supplemented by consideration of the impact of bridging visas, as well as the further effects of legislative changes in 2005. This will show that the regime of immigration detention under the Migration Act is considerably more complex in practice than it would appear at the outset.
The Migration Act divides non-citizens into two classes: lawful non-citizens, those non-citizens in the migration zone who hold a valid visa;[20] and unlawful non-citizens, those non-citizens in the migration zone who do not hold a valid visa.[21] Arrival in Australia without a visa breaches section 42(1) of the Migration Act, but is not a criminal offence.
Section 189 of the Migration Act requires that any officer who either knows or reasonably suspects a person in the migration zone to be an unlawful non-citizen must detain that person.[22] Under section 5, ‘officer’ is defined extremely broadly to include officers of the immigration department, customs officers, protective service officers, officers of federal, state and territory police or indeed any person authorised in writing by the Minister for Immigration and Multicultural Affairs (the Minister).[23]
Section 196 of the Migration Act deals with the duration of detention, requiring that an unlawful non-citizen be kept in immigration detention until they either leave Australia (by removal or deportation) or are granted a visa to remain. Accordingly, an unlawful non-citizen will be detained until they cease to be an unlawful non-citizen.[24]
The Working Group on Arbitrary Detention, one of the ‘special procedures’ of the Commission on Human Rights of the United Nations, visited Australia to investigate immigration detention in 2002.[25] It characterised this regime of detention applicable to unlawful non-citizens as, ‘a system combining mandatory, automatic, indiscriminate and indefinite detention’.[26]
This is a useful encapsulation of the basic regime of immigration detention of unlawful non-citizens under the Migration Act. Under section 189, detention is mandatory and automatic because of the absence of any discretion not to detain a person once an officer either has the knowledge that, or forms the reasonable suspicion that, a person is an unlawful non-citizen;[27] and detention is indiscriminate because it applies to all unlawful non-citizens without qualification of any sort. Under section 196, detention is indefinite as it applies, without limit, to all unlawful non-citizens.
However, in its operation with respect to a particular individual, immigration detention can be more nuanced. This is because an individual can cease to be an unlawful non-citizen in the migration zone (if they either leave Australia or are granted a visa to remain, becoming a lawful non-citizen). To fully understand the practical operation of the regime of immigration detention in Australia, it is necessary to consider the operation of the bridging visa system as well as the reforms that took place in 2005.
The provisions of the Migration Act examined above are clearly intended to ensure that unlawful non-citizens remain in immigration detention whilst awaiting the outcome of any visa applications they may make, but there is one feature of the Migration Act that qualifies this principle. Through the grant of a bridging visa, a person may become a lawful non-citizen, even if he or she does not hold a substantive visa to remain in Australia.[28] Lawful non-citizens are not subject to the regime of immigration detention.
The dominant legal and practical effect of the bridging visa system is to separate unlawful non-citizens into two categories, permitting consideration of the release from detention of those unlawful non-citizens whose arrival in Australia was lawful, whilst ensuring that unauthorised arrivals remain subject to the regime of mandatory and indefinite detention. This differential treatment is given effect through a further classification of unlawful non-citizens into two groups, those who are eligible non-citizens and those who are not. Only an eligible non-citizen can apply for a bridging visa.[29]
Any person who has been immigration cleared is an eligible non-citizen.[30] For an unlawful non-citizen to be immigration cleared means that at some past time they entered Australia with a valid visa which is no longer in force. The vast majority of eligible non-citizens have either overstayed a valid visa or have had their visa cancelled.
Unauthorised arrivals, on the other hand, will only be eligible to apply for a bridging visa if they come within one of the very narrow categories of special vulnerability prescribed under regulation 2.20 of the Migration Regulations 1994 (Cth) (Migration Regulations). These categories are effectively restricted to certain protection visa applicants who are either children under 18 years of age,[31] elderly applicants over 75 years of age,[32] or applicants who have a ‘special need’ on the grounds of health or as victims of torture or trauma.[33] The vast majority of unauthorised arrivals are not eligible non-citizens.
As a result of this threshold requirement, that only eligible non-citizens can apply for a bridging visa, the majority of unauthorised arrivals are subjected to the regime of mandatory and indefinite detention, whilst a substantial proportion of lawful arrivals whose status later becomes unlawful are eligible to apply for bridging visas to avoid the otherwise mandatory detention. This legal disparity is reflected in the statistics.[34]
The eligibility of certain unlawful non-citizens to apply for bridging visas introduces an element of discrimination, favouring those unlawful non-citizens whose initial arrival was lawful with an opportunity to apply for a bridging visa whilst providing only extremely narrow opportunities to unauthorised arrivals.[35]
The basic understanding of the regime of immigration detention developed above therefore needs to take account of the ability of an individual to become a lawful non-citizen through the grant of a bridging visa. The bridging visa system is not explicitly directed to the avoidance of arbitrary detention, but it does introduce additional considerations to an analysis of immigration detention for unlawful non-citizens, particularly those whose initial arrival in Australia was lawful.
As indicated in the introduction, the year 2005 saw renewed public and political debate about immigration detention, and important changes to the Migration Act and the Migration Regulations were made. It will be argued that these changes do not fundamentally alter the basic scheme of immigration detention examined so far, but they will require certain additional qualifications to be made. The changes can be brought within two broad categories: first, the introduction of the ‘removal pending’ bridging visa through amendments to the Migration Regulations; and, second, legislative reforms affecting the detention provisions of the Migration Act.
In a number of cases, beginning with Al Masri v Minister for Immigration & Multicultural & Indigenous Affairs, the Federal Court of Australia ordered the release from detention of unlawful non-citizens on the basis that there was no, ‘real likelihood or prospect of removal in the reasonably foreseeable future’.[36] In practice, this provided a safety net for unlawful non-citizens who had exhausted all potential visa applications yet could not be removed from Australia, on whom section 196 of the Migration Act otherwise imposed detention for an indeterminate period.
However, the interpretation of the Migration Act that allowed for release in those circumstances was overruled by the High Court in Al-Kateb v Godwin,[37] and Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji.[38] As a result, this last resort power of release disappeared, raising the spectre of detention for life in the case of an unlawful non-citizen who had exhausted all domestic remedies and could not be deported. Apparently, in response to this problem, the Migration Regulations were amended to introduce a new class of visa.
On 11 May 2005, the Migration Amendment Regulations 2005 (No 2) were made by the Administrator,[39] creating the Bridging R (Class WR) – Subclass 070 Bridging (Removal Pending) visa, and expanding the regulatory categories of eligible non-citizens beyond the categories detailed above. Further changes were brought about by the Migration Amendment Regulations 2005 (No 5), which were made on 16 June 2005 by the Governor-General. These additional amendments considerably relaxed the criteria that needed to be satisfied in order to apply for a ‘removal pending’ bridging visa, particularly by removing the previous requirement of a written undertaking to co-operate with removal, and removing the previous requirement that an applicant not have any outstanding court or tribunal claims to be determined.
The most important (but not the only) requirements that still apply to the grant of a ‘removal pending’ bridging visa are that the non-citizen must be in immigration detention, the Minister must be satisfied that removal of the non-citizen from Australia is not reasonably practicable, and the Minister must also be satisfied that the non-citizen will do everything possible to facilitate their removal from Australia.[40] Perhaps the most startling aspect of the ‘removal pending’ bridging visa is that applications can only be made by non-citizens who receive a written invitation from the Minister to do so.[41]
On 30 May 2005, the Minister announced the offering of the first 17 ‘removal pending’ bridging visas.[42] Following the relaxation of the regulations, on 20 June 2005 the Minister announced that a further 50 non-citizens would be invited to apply for ‘removal pending’ bridging visas. Each of those invitees had been in detention for a period of more than two years.[43] Whilst the ‘removal pending’ bridging visas will clearly be of tremendous benefit to the successful recipients, the scope of these changes is not substantial. As the only invitations made public so far have been issued to non-citizens who have been detained for more than two years, it will be argued that this reform is unlikely to impact greatly on Australia’s record with respect to arbitrary detention in the immigration context.
There is also a significant amount of discretionary power now vested in the executive, since all applicants for ‘removal pending’ bridging visas must be invited by the Minister to apply. The scheme constructed by the Migration Regulations is not entirely dissimilar to the orders made by the Federal Court in the cases considered above, but under the new scheme the Minister has a discretion, shielded from judicial review to the extent it is constitutionally permissible to do so by a privative clause,[44] to decide whom to invite to apply for the ‘removal pending’ bridging visa.
In addition to the creation of ‘removal pending’ bridging visas by amendments to the Migration Regulations, there have been important changes made to the Migration Act itself. The Prime Minister’s announcement of, ‘a number of changes to both the law and the handling of matters relating to people in immigration detention’,[45] on 17 June 2005 was followed by swift legislative action. The Migration Amendment (Detention Arrangements) Bill 2005 was introduced into the House of Representatives on 21 June 2005, was passed by the House the following day, was introduced into and passed by the Senate the day after that, and received the royal assent on 29 June 2005.
The Minister’s Second Reading speech referred to the Bill as, ‘landmark legislation and far-reaching in both its scope and importance’. Yet in the very next sentence, the Minister proclaimed that: ‘[t]he broad framework of the government’s approach is unaltered.’[46] Analysis of the legislative reforms will show that indeed the legal regime of immigration detention remains substantially unaltered, although there are four changes introduced that must be considered.
The first change is the insertion of section 4AA, in which, ‘Parliament affirms as a principle that a minor shall only be detained as a measure of last resort’.
The second change is the insertion of section 197AB, which confers on the Minister a power to determine that it is in the public interest that a non-citizen reside in a particular place other than immigration detention.[47]
These two changes are best understood as operating in conjunction. On its face, section 4AA appears to be largely platitudinous, as there has been no change at all to the mandatory detention requirement in sections 189 and 196 of the Migration Act. Yet, read in conjunction with section 197AB, which allows for the making of ‘residence determinations’, the value of section 4AA becomes apparent.[48] The Minister’s Second Reading Speech to the Parliament says of section 4AA:
This principle relates to the holding of children in detention centres. Where detention of a minor is required under the act, it should, when and wherever possible, take place in the community, under a residence determination.[49]
That passage from the Second Reading Speech makes clear the relevance of section 4AA, which should be understood in the context of the power to make residence determinations. The, ‘principle that a minor shall only be detained as a measure of last resort’, can be given effect by considering it a direction to the Minister in the exercise of the discretion granted by section 197AB to issue a ‘residence determination’ in the case of any children in detention, except in a case of last resort.[50]
Outside of the realm of children in detention, this power to make ‘residence determinations’ could be used to considerable ameliorative effect by the Minister. However, the Parliament has been careful to vest the decision in the Minister personally,[51] and to provide that the Minister cannot be compelled to make this decision,[52] which results in a broad discretion being enjoyed by the Minister, and therefore results in uncertainty as to the overall benefits of this reform.
The third substantive change is the new power in section 195A (that also must be exercised by the Minister personally and is non-compellable) to issue a visa to an unlawful non-citizen in immigration detention if it is in the public interest to do so, notwithstanding that the non-citizen may not have made any application for that visa. Whilst this is a potentially beneficial provision, it appears once again that there is a broad discretion enjoyed by the Minister in the exercise of this power. The effectiveness of this provision will, therefore, also depend on the soundness of the Minister’s exercise of that discretion.
The fourth and final change is the new reporting requirement in respect of a person who has been detained for more than two years.[53] A report must be prepared by the Secretary of the Department and given to the Commonwealth Ombudsman,[54] who must then make an, ‘assessment of the appropriateness of the arrangements for the person’s detention’, which assessment is to be provided to the Minister.[55] The assessment made by the Ombudsman may make non-binding recommendations to the Minister,[56] and a statement must then be laid before the Parliament.[57]
Initial indications of the effectiveness of this requirement have been positive within the limited field in which the reform operates. The Commonwealth Ombudsman has indicated that a significant number of persons who had been detained for two years or more have been released from immigration detention.[58] The only available figures at the time of writing support this assertion, indicating a substantial drop in the number of long-term detainees. At 29 June 2005, when the Ombudsman’s role began, there were 149 people who had been in detention for two years or more.[59] By 14 December, only 40 of those remained in detention awaiting assessment by the Ombudsman.[60]
It is too early to reach a final assessment of the efficacy of this reporting requirement. Current information indicates that there have been positive results in reducing the number of unlawful non-citizens who have been detained for more than two years. Still, a significant number of unlawful non-citizens remain in detention after more than two years. Moreover, this reform only begins to operate after two years of detention, a period which itself is highly objectionable.
It has been demonstrated that the immigration detention provisions of the Migration Act are considerably more complex than the simple device that lies at the heart of the regime of mandatory detention. The preliminary conclusion that unlawful non-citizens are subject to mandatory, indiscriminate and indefinite detention is qualified by a number of practical considerations, which may allow for alternative outcomes.
First, in certain cases the bridging visa system may operate to permit release from detention pending a substantive visa decision. Second, recent changes to the Migration Regulations provide for ‘removal pending’ bridging visas in circumstances where removal presently cannot take place. Third, recent changes to the Migration Act have introduced the possibility of residence determinations as well as the granting of visas without application, and immigration detention is now subject to mandatory review by the Commonwealth Ombudsman once a person has been detained for at least two years. Each of these qualifications introduces nuances to the basic regime of immigration detention examined earlier.
Nonetheless, the scope of these reforms is fairly small, particularly when the level of executive discretion is considered. The Migration Act itself requires the mandatory, indiscriminate and indefinite detention of unlawful non-citizens; and the Migration Act restricts bridging visas to eligible non-citizens, ensuring that the majority of unauthorised arrivals face the full force of the regime of immigration detention. Beyond those statutory provisions now lies the realm of executive discretion: the Minister has the power to invite applications for ‘removal pending’ visas, to grant visas without application, and to issue residence determinations, but cannot be compelled to do any of these things.[61] Further, there is very little legislative guidance to assist the Minister in the exercise of these discretions, except for the potential operation of section 4AA in the case of children.
Although it is still too early to determine the full impact of these reforms,
those indications that are discernable do not support
any assumptions about
drastic change to the overall regime of immigration detention. The invitations to apply for the new ‘removal
pending’ visas
have so far been made only to non-citizens who have been detained for two years
or more. Also, the new reporting
requirement involving the Commonwealth
Ombudsman
It is difficult to share unreservedly the optimism of those who proclaim that, following these reforms, ‘Australia’s policy of mandatory detention will be managed in a more humane way.’[63] For the regime of immigration detention, it may well be a case of plus ça change, plus c’est la même chose. Whilst there have been some changes, the fundamental features of the legislative scheme remain unchanged: there is still a regime of mandatory detention of unlawful non-citizens. The expanded scope of executive discretion may well see the outcomes in individual cases improve, but there is no evidence of any profound change to the operation of the regime of immigration detention in Australia.
This part of the article considers the regime of immigration detention that applies to unlawful non-citizens under the Migration Act in the light of the international prohibition of arbitrary detention in order to determine whether immigration detention is arbitrary and therefore in breach of Australia’s obligations under international human rights law.
It has been said that, ‘arbitrary arrest and detention have been the most consistent violations of fundamental individual human rights throughout history’.[64] Article 3 of the Universal Declaration of Human Rights[65] (UDHR) provides that, ‘Everyone has the right to life, liberty and security of person.’ The UDHR draws on the existence of this right ‘in all major human rights declarations beginning with the Magna Carta (1215) and the French Revolution (1789),’ and gives effect to ‘one of the most fundamental of human rights’.[66]
The right to liberty of the person is not an absolute right. It is given greater definition by article 9 of the UDHR, which provides that, ‘no one shall be subjected to arbitrary arrest, detention or exile’. This recognises the inherent limit on the right to personal liberty, as it is only detention which is arbitrary that is to be restricted. By doing so, the UDHR acknowledges a fundamental distinction, as:
[d]eprivation of personal liberty in the form of imprisonment … has long represented the most common means used by the State to fight crime and maintain internal security … the basic right of personal liberty does not strive toward the ideal of a complete abolition of State measures that deprive liberty … It is not the deprivation of liberty in and of itself that is disapproved of but rather that which is arbitrary and unlawful.[67]
Notwithstanding the importance of the UDHR to the development of international human rights law, its legal status at the time of adoption was that of, ‘a recommendation by the General Assembly … that would exert a moral and political influence on states rather than constitute a legally binding instrument’.[68] Binding norms of international human rights law were to be located in later human rights treaties.[69] Nonetheless, the International Court of Justice in the Tehran Hostages Case held that:
Wrongfully to deprive human beings of their freedom and to subject them to physical constraint in conditions of hardship is in itself manifestly incompatible with the principles of the Charter of the United Nations, as well as with the fundamental principles enunciated in the Universal Declaration of Human Rights.[70]
The trilogy of instruments that constitute the International Bill of Rights, which began with the UDHR in 1948, was completed in 1976 when the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights entered into force.[71] The Covenants build upon the declarations of rights in the UDHR, providing more detail concerning the content of the rights protected, as well as imposing legal obligations by virtue of their status as treaties binding on all state parties.[72] The relevant provision in the ICCPR is article 9,[73] and this article now turns to consider the correct interpretation of paragraphs 1 and 4 of that provision.
Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.[74]
The text of article 9(1) sets out the right to personal liberty as the broad principle involved and goes on to define that right in terms of two separate wrongs: ‘arbitrary arrest and detention’ and ‘deprivation of liberty except on such grounds and in accordance with such procedure as are established by law’. Giving the ‘ordinary meaning’ to those terms,[75] it can be seen that article 9(1) contains a dual requirement: detention must not only be legal according to domestic law, it must also not be arbitrary under international law.[76]
This view is confirmed in light of the object and purpose of the ICCPR, which the Human Rights Committee has identified as, ‘to create legally binding standards for human rights by defining certain civil and political rights and placing them in a framework of obligations which are legally binding for those States which ratify’.[77] This role in creating binding standards is critical, as, ‘for international human rights to be meaningful there ha[s] to be an international minimum standard that limits the legislative power of the States’.[78] Otherwise international protection of human rights would be a hollow shell, and, ‘all despotic and oppressive acts of a government would be unassailable so long as they were in accordance with municipal laws’.[79] In this context, the significance of article 9(1) of the ICCPR is that it imports, ‘a new, international, standard for assessing detention’.[80]
Further, under article 2(2) of the ICCPR, states are required to give domestic effect to the rights enshrined in that Covenant.[81] Any interpretation of article 9(1) that was satisfied with domestic legality alone would allow states to lessen or avoid their article 9(1) obligations by breaching their article 2(2) obligations,[82] which would not be acceptable in the light of the object and purpose of the ICCPR as a core international human rights treaty.
The text of article 9(1) therefore indicates that freedom from arbitrary detention is something more than freedom from detentions which are illegal under municipal law. However, the meaning of arbitrary remains to be further explored before the concept of arbitrary detention can be fully understood.
Those parts of the travaux préparatoires that are relevant to the provisions of article 9(1) begin at the formative stages of modern international human rights law.[83] The First Meeting of the Drafting Committee on an International Bill of Rights, a subsidiary organ of the Commission on Human Rights, was held from 9 to 25 June 1947.[84] The eight members of that Drafting Committee had before them a number of proposals: the most important of which were prepared by the United Nations Secretariat,[85] and by Great Britain.[86] The relationship between these two proposals provides some guidance about the meaning of article 9(1).
The British draft adopted the approach that would later be taken in article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms,[87] listing several permissible deprivations of liberty but lacking an overarching prohibition of arbitrary detention. [88] Those deprivations originally listed were punitive imprisonment, pre-trial detention, detention for failure to obey a court order, detention on grounds of mental illness, custody of minors and detention of aliens prior to expulsion.[89]
For a time, this approach was taken by the Commission on Human Rights.[90] However, the attempt to define permissible deprivations of liberty was problematic for a number of reasons. First, it was feared that a compendious list would risk becoming a charter for human rights violations.[91] Second, even if such a list could be compiled, there was a considerable danger that a list, no matter how extensive, might not be able to capture all cases of permissible detention. Indeed, proposals had soon emerged for around 40 permissible deprivations of liberty, including for carriers of contagious diseases, enemy aliens or aliens generally, spies, suicidal persons and witnesses.[92] Third, and most important, a list of permissible deprivations of liberty would not correctly state the desired legal position. The United States representative, Eleanor Roosevelt, had observed at an early stage that a list of permitted categories of detention, ‘might not clearly give adequate safeguards to insane persons, aliens, and possibly others’.[93]
The legal position was not to be that particular categories of persons would be subject to unlimited detention, but that greater detention might be permissible for certain persons according to particular risks they may face or dangers they may pose. It was Australia that suggested the solution that became part of the ICCPR: the overarching requirement that detention not be arbitrary.[94]
Importantly, it is clear that, ‘“arbitrary” was a broader concept than “unlawful,” and was designed to provide maximum protection of the right of personal liberty’.[95] In Parvez Hassan’s study of the word arbitrary as used in the International Bill of Rights, it is clearly shown that the majority view was:
that the essential purpose of the document that they were drawing up was to proclaim the inherent dignity and inalienable rights of all human beings and that this could only be accomplished by limiting the “legal” discretion of governments.[96]
If it is accepted that arbitrariness is a broader concept than illegality, then an understanding of arbitrariness is needed. Discussions during drafting reveal that the meaning of arbitrary, ‘contained elements of injustice, unpredictability, unreasonableness, capriciousness and [dis]proportionality’,[97] but do not provide conclusive guidance.
The travaux préparatoires confirm the interpretation of article 9(1) that requires not merely domestic legality but also that detention must not be arbitrary under international law. However, further elaboration on what makes a lawful detention arbitrary is necessary, and is available from the decisions of the Human Rights Committee.
The Human Rights Committee, a body composed of 18 independent human rights experts, [98] is established under article 28 of the ICCPR to monitor compliance with that treaty. In addition to the role set out in the ICCPR itself, states parties to the Optional Protocol to the International Covenant on Civil and Political Rights (Optional Protocol),[99] further agree to recognise ‘the competence of the Committee to receive and consider communications from individuals subject to its jurisdiction who claim to be victims of a violation by that State Party of any of the rights set forth in the Covenant’.
In considering communications on individual cases under the Optional Protocol, the views of the Human Rights Committee, ‘have created a considerable and important body of doctrine related to the ICCPR’.[100] Whilst the use of the decisions of the Human Rights Committee must be conditioned by the fact the international legal system has traditionally eschewed notions of strict precedent-based reasoning,[101] and the Human Rights Committee is not strictly a judicial body,[102] reference to the interpretations adopted by the Human Rights Committee provides an extremely valuable source of guidance and might be justified as a matter of conventional treaty interpretation,[103] or as a relevant body of soft law.[104] For the purposes of this article, proof of those claims can be avoided by instead adopting an acceptable minimum position, that the Human Rights Committee, ‘is the pre-eminent interpreter of the ICCPR which is itself legally binding’, and therefore that the views of the Human Rights Committee are at least, ‘strong indicators of legal obligations’.[105]
The Human Rights Committee also issues ‘general comments’ that ‘clarify states’ obligations and interpret the substantive provisions of the Covenant’.[106] In its general comment on article 9,[107] the Human Rights Committee first point out that the article 9(1) prohibition of arbitrary detention, ‘is applicable to all deprivations of liberty, whether in criminal cases or in other cases such as, for example, mental illness, vagrancy, drug addiction, educational purposes, immigration control, etc’.[108] Whilst affirming the applicability of the article 9(1) protection to all forms of detention, the general comment goes no further, and does not attempt to define the scope of the prohibition of arbitrary detention itself. For that, guidance must be sought in the individual communication jurisprudence.
In A v Australia,[109] the Human Rights Committee undertook its first significant consideration of immigration detention in Australia. The legislation in question differed from the current regime of immigration detention examined above, as A was a ‘designated person’, the provisions for whom now appear in division 6 of part 2 of the Migration Act. However, these differences of domestic law are not material to the views of the Human Rights Committee on the scope of the prohibition of arbitrary detention in article 9(1) of the ICCPR.
In the earlier case of van Alphen v The Netherlands, the Human Rights Committee had interpreted article 9(1) of the ICCPR consistently with the interpretation developed earlier in this article, stating that:
The drafting history of article 9, paragraph 1, confirms that “arbitrariness” is not to be equated with “against the law”, but must be interpreted more broadly to include elements of inappropriateness, injustice and lack of predictability. This means that remand in custody pursuant to lawful arrest must not only be lawful but reasonable in all the circumstances. Further, remand in custody must be necessary in all the circumstances, for example, to prevent flight, interference with evidence or the recurrence of crime.[110]
The Human Rights Committee subsequently applied this dual requirement, that detention be both reasonable and necessary in all the circumstances, to Australia. Whilst agreeing with Australia that it is not, ‘per se arbitrary to detain individuals requesting asylum’,[111] the Human Rights Committee emphasised two key points: first, that justification for detention must be advanced on grounds specific to the individual; and second, that this individual justification for detention should be subject to periodic review.
The requirement that detention be justified on, ‘grounds particular to the author’s case’,[112] is consistent with the proposition that human rights are individual rights. As such, every person deprived of their liberty should be entitled to have their detention justified on grounds appropriate to them. As has been seen, Australia does not attempt to advance individualised justifications for immigration detention. Under the Migration Act, all unlawful non-citizens must be detained, irrespective of their individual circumstances.
The Minister justifies the regime of mandatory detention on the basis that: it ensures, ‘that unauthorised arrivals do not enter the Australian community until their claims to do so have been properly assessed and found to justify entry’; it maintains, ‘the integrity of the migration program’; it facilitates, ‘access to people during the processing of refugee applications’; and it guarantees that unsuccessful visa applicants, ‘are readily available for removal’.[113] Whatever their value as policy statements, these general statements do not approach the level of individual justifications for detention required by the Human Rights Committee.
Further, the Human Rights Committee was of the view that not only must detention be justified as reasonable and necessary in the circumstances of each individual detained, but that there must also be provision for periodic review of this justification, stating that:
every decision to keep a person in detention should be open to review periodically so that the grounds justifying the detention can be assessed … detention should not continue beyond the period for which the State can provide appropriate justification. For example, the fact of illegal entry may indicate a need for investigation and there may be other factors particular to the individual, such as the likelihood of absconding and lack of cooperation, which may justify detention for a period. Without such factors detention may be considered arbitrary, even if entry was illegal.[114]
In the absence of any justifications that demonstrated why detention was both reasonable and necessary in the particular circumstances of A, and lacking any form of ongoing review of those justifications, the Human Rights Committee found that Australia had breached article 9(1).
The Human Rights Committee adopted its views in A v Australia in 1997.[115] Immigration detention in Australia was not considered again until 2002, when the Human Rights Committee adopted its views in C v Australia, [116] followed in 2003 with its views in Baban v Australia,[117] and then Bakhtiyari v Australia.[118] Whilst not significantly departing from the approach taken in A v Australia, these subsequent cases have given the Human Rights Committee the opportunity to elaborate its views on the interpretation of article 9(1) of the ICCPR.[119]
In C v Australia, the Human Rights Committee recalled its earlier conclusion in A v Australia that appropriate justification for detention must be shown to avoid characterisation of that detention as arbitrary. Australia had advanced a number of individual considerations relevant to C’s detention.[120] The identification of these factors might be seen as rather a matter of convenience, given that the regime of mandatory detention would have required detention even in the absence of any of the individual factors that were actually present. In any event, the Human Rights Committee noted these considerations, but went on to conclude that:
the State party has not demonstrated that, in the light of the author’s particular circumstances, there were not less invasive means of achieving the same ends, that is to say, compliance with the State party’s immigration policies, by, for example, the imposition of reporting obligations, sureties or other conditions.[121]
This ‘less invasive means’ test deployed in C v Australia was subsequently applied by the Human Rights Committee in finding detention arbitrary in Baban v Australia. [122] The test was also applied in the case of Bakhtiyari v Australia, although the result here was more complicated. This is because Bakhtiyari v Australia concerned a family group, with different considerations applying to: the father, Mr Ali Aqsar Bakhtiyari; the mother, Mrs Roqaiha Bakhtiyari; and their five children.
Mrs Bakhtiyari had been in detention for two years and ten months, the children with her for the first two years and eight months of that time. Relying on a failure by Australia to demonstrate that less intrusive measures could not have ensured compliance with immigration laws, the Human Rights Committee held that their continued detention for such long periods was arbitrary.[123]
This finding with respect to Mrs Bakhtiyari also served to highlight some essential reasoning in the earlier cases of C v Australia and Baban v Australia. In C v Australia, after rejecting the justifications for detention advanced by Australia, the Human Rights Committee found that the continuation of detention posed a more critical problem than detention on arrival, holding that:
whatever the reasons for the original detention, continuance of immigration detention for over two years without individual justification and without any chance of substantive judicial review was, in the Committee’s view, arbitrary.[124]
Similarly, in Baban v Australia, the Human Rights Committee focused on the continuing aspect of detention, holding that notwithstanding Australia’s justifications of detention on arrival, it had, ‘failed to demonstrate that those reasons justified the author’s continued detention in the light of the passage of time and intervening circumstances’.[125]
There have been instances where detention has been found not to be arbitrary. Whilst these instances do not advance any different legal view about article 9, they do provide examples of circumstances where detention might be justified in the application of the tests identified above.
In Bhaktiyari v Australia, the detention of Mr Bakhtiyari was found not to be arbitrary. The Human Rights Committee noted that:
Mr Bakhtiyari arrived by boat, without dependents, with his identity in doubt and claiming to be from a State suffering serious internal disorder. In light of these factors and the fact that he was granted a protection visa and released two months after he had filed an application (some seven months after his arrival), the Committee is unable to conclude that, while the length of his first detention may have been undesirable, it was also arbitrary.[126]
In accepting that Mr Bakhtiyari’s detention was not arbitrary, the Human Rights Committee implicitly accepted that a system of mandatory detention upon arrival for unaccompanied adult males whose identity is unknown does not breach the international prohibition of arbitrary detention. However, this acceptance is tempered by the emphasis placed on the need for continuing justifications for detention in the cases examined above.
The later decision in Madafferi v Australia provides another example of circumstances where detention has been found to be legitimate. The Human Rights Committee applied its earlier jurisprudence, saying that it ‘notes the reasons behind the State party’s decision to detain Mr. Madafferi and cannot find that his detention was disproportionate to these reasons’.[127] Those reasons for detention included that Mr Madafferi’s visa was cancelled on character grounds because of his criminal record,[128] that he had twice overstayed visas before and had been dishonest in dealings with immigration officials,[129] that his detention was initiated only after his application for a visa had been refused on character grounds,[130] and that he was detained only for the purpose of facilitating his removal from Australia.[131] The combination of these factors was sufficient to satisfy the Human Rights Committee that Mr Madafferi’s detention was not arbitrary, and the case therefore provides an example of circumstances, which have been found to justify detention, albeit that the circumstances are quite idiosyncratic.
More important than these two examples of cases where it has been found that there is sufficient justification for detention, these subsequent cases concerning immigration detention in Australia build upon the jurisprudence of the Human Rights Committee in A v Australia (which required that detention be justified as both reasonable and necessary in the circumstances of each individual) in two ways. First, the ‘less invasive means’ test was developed to judge the justifications advanced for detention. Second, the importance not only of providing an initial justification for detention, but also of providing a continuing justification for detention, was emphasised. The availability of substantive judicial review was also viewed as a relevant factor in determining whether continuing detention was justified or arbitrary.
There has been one challenge to this jurisprudence. The dissenting opinion of Ruth Wedgwood in Baban v Australia presents a view of article 9 that differs substantially from the majority. This approach acknowledges that the article 9 prohibition of arbitrary detention, ‘may well require reference to substantive standards beyond domestic law’, to avoid a characterisation of detention as arbitrary. However, Professor Wedgwood goes on to state that, ‘there is no grounding in the Covenant to dictate that courts must be the repository of all policy judgments and standard-setting in difficult areas such as unlawful immigration’.[132]
The basis of the dissent is that whilst article 9 may require that courts be involved in the imposition and continuation of detention to avoid characterisation of that detention as arbitrary, there is no requirement that the court exercise unfettered discretion in the matter. Professor Wedgwood takes the view that there must be some allowance made for conclusions made by the legislature, which define the boundaries of a court’s role.
Baban’s argument was that his detention was arbitrary because it had not been justified on the basis of considerations specific to him and had not been determined by a court. Professor Wedgwood rejected such an approach, stating that:
the parliament of Australia could reasonably have concluded that illegal entrants who have received administrative or lower court denials of their asylum claims are not thereafter likely to report for possible deportation after appeals are exhausted.
The consequence of adopting such an approach would be that detention would not be arbitrary merely because the legislature had determined that all non-citizens in a particular class should be detained. Whilst this would narrow the role of the courts to the mere determination of whether or not a person was in fact a non-citizen in a particular class, such a narrowing of the judicial role would not automatically result in arbitrariness according to Professor Wedgwood. She concluded that:
We may wish that the world had no borders, and that the conditions which give rise to legitimate asylum claims no longer existed. But especially in the present time we must recognize as well that states have a right to control entry into their own countries, and may use reasonable legislative judgments to that end.
Professor Wedgwood remains the lone dissentient on this point, and it would appear difficult to reconcile her view with the analysis developed in this article. In any event, even if this role for legislative judgments were to be conceded, there remains a problem in determining what constitutes a ‘reasonable legislative judgment’.
It is to be regretted that no discussion is offered of what makes a legislative judgment reasonable or unreasonable. In Baban’s case, apparently it was a ‘reasonable legislative judgment’ to impose mandatory detention on the class of adult male unlawful non-citizens who have had an administrative or lower court denial of an asylum claim. However, in Bakhtiyari v Australia, Professor Wedgwood was part of the majority of the Human Rights Committee in finding against Australia. It must be inferred that the legislative judgment in Baban v Australia was reasonable, whilst the legislative judgment in Bakhtiyari v Australia was not. There is little, if anything, to assist in determining why this is so.
With the exception of the approach proposed by Professor Wedgwood, which has not been accepted by any other member of the Human Rights Committee and which remains to be developed beyond its current embryonic stage, the interpretation and application of article 9(1) of the ICCPR by the Human Rights Committee is reasonably clear.
Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.[133]
Article 9(4) is difficult to interpret on the basis of its text alone. The fundamental question must be whether the detention, which the court is to find either ‘lawful’ or ‘unlawful’, is to be judged on the basis merely of whether detention is ‘lawful’ under domestic law, or whether it is to be judged on the basis of whether detention is ‘lawful’ under international law. In practical terms, the issue is whether article 9(4) requires that a court have the power to release an individual whose detention is legal under domestic law but is arbitrary and therefore illegal under international law.
One important consideration already considered in respect of article 9(1) is that a reading that was satisfied with domestic legality alone would allow states to lessen or avoid their obligations under article 9(4) simply by breaching their article 2(2) obligation to give domestic effect to the rights contained in the ICCPR. This provides an indication that article 9(4) requires a review of lawfulness under the international standard, but some ambiguity remains as to its precise scope.
In this circumstance, reference to the travaux préparatoires of the ICCPR is permissible to determine the meaning of article 9(4), which is otherwise ambiguous or obscure.[134] Unfortunately, whilst somewhat helpful, the travaux préparatoires do not provide conclusive evidence of the meaning of article 9(4).
In his commentary on the ICCPR, Manfred Nowak describes article 9(4) as the, ‘right to habeas corpus’.[135] There is an historical basis for such a reference. Of the drafting proposals outlined earlier, the Secretariat proposal would have granted a right to, ‘immediate judicial determination of the legality of any detention’,[136] whereas the British proposal would have explicitly required, ‘an effective remedy in the nature of habeas corpus’.[137] It was the British proposal that initially enjoyed support, with early drafts explicitly naming habeas corpus.[138] Habeas corpus is a writ:
throwing its root deep into the genius of our common law … It is perhaps the most important writ known to the constitutional law of England, affording as it does a swift and imperative remedy in all cases of illegal restraint or confinement … It has through the ages been jealously maintained by Courts of Law as a check upon the illegal usurpation of power by the Executive at the cost of the liege.[139]
That definition raises something of a paradox. Habeas corpus is, on the one hand, a deeply symbolic writ. In its guise as the Great Writ, habeas corpus is understood as a timeless and fundamental common law protection of individual rights to liberty of the person. It has been noted that, ‘the essence of habeas corpus is an attack by a person in custody upon the legality of that custody’.[140] Notwithstanding the symbolic significance of habeas corpus, however, it is a writ limited in the common law system to examining the legality of detention and does not consider the broader question of a substantive justification for detention. Thus, the use of the phrase habeas corpus does not exclude uncertainty about the meaning of article 9(4), leaving open the question of whether article 9(4) is intended to provide a means of redress for detention, which is illegal under international law, or if it is to operate merely to address detention which is illegal under domestic law. Furthermore, whilst it could be implied that the later removal of the explicit reference to habeas corpus indicates an intention to cover broader issues of legality than are covered under a domestic habeas corpus application, the conventional analysis is merely that the explicit reference to habeas corpus was withdrawn on the basis that different legal systems might adopt different procedures to give effect to the right to challenge detention before a court.[141]
The text, even when considered in light of the travaux préparatoires, is still not entirely clear. Reference to the jurisprudence of the Human Rights Committee provides a further source of guidance, which must be considered.
General comment 8 notes that ‘the important guarantee’ contained in article 9(4), that a detainee be entitled to take proceedings before a court to decide ‘on the lawfulness of his detention and order his release if the detention is not lawful’ is applicable to all persons deprived of their liberty by arrest or detention. The comment goes on to discuss the scope of this protection, noting that state parties have an obligation, ‘to ensure that an effective remedy is provided’, when ‘an individual claims to be deprived of his liberty in violation of the Covenant’.[142] The general comment therefore takes the view that the court must be empowered to consider whether detention is arbitrary and order release if it is found to be.
In A v Australia, the Human Rights Committee elaborated on the view it had taken in its general comment, stating that:
In the Committee’s opinion, court review of the lawfulness of detention under article 9, paragraph 4, which must include the possibility of ordering release, is not limited to mere compliance of the detention with domestic law … what is decisive for the purposes of article 9, paragraph 4, is that such review is, in its effects, real and not merely formal. By stipulating that the court must have the power to order release “if the detention is not lawful”, article 9, paragraph 4, requires that the court be empowered to order release, if the detention is incompatible with the requirements in article 9, paragraph 1, or in other provisions of the Covenant.[143]
The Human Rights Committee went on to consider the type of review available in Australia. Given that review in A’s case was limited to, ‘a formal assessment of the self-evident fact that he was indeed a “designated person”‘[144] it was found that Australia was in breach of article 9(4) of the ICCPR.
This lack of substantive judicial review of detention has continued to result in findings of breaches of article 9(4). Consistently with its view on the scope of article 9(4) outlined in A v Australia, in C v Australia the Human Rights Committee noted that available court review:
was confined purely to a formal assessment of the question whether the person in question was a “non-citizen” without an entry permit … there was no discretion for a court … to review the author’s detention in substantive terms for its continued justification. The Committee considers that an inability judicially to challenge a detention that was, or had become, contrary to article 9, paragraph 1, constitutes a violation of article 9, paragraph 4.[145]
In Baban v Australia, the Human Rights Committee again found a violation of article 9(4) on the basis that any judicial review would have been limited to an assessment of whether Baban was in fact an unlawful non-citizen, stating that:
Judicial review of the lawfulness of detention under article 9, paragraph 4, is not limited to mere compliance of the detention with domestic law but must include the possibility to order release if the detention is incompatible with the requirements of the Covenant, in particular those of article 9, paragraph 1.[146]
Whilst not departing from this approach in Bakhtiyari v Australia, the Human Rights Committee in that case adopted different findings with respect to Mr Bakhtiyari, Mrs Bakhtiyari and their five children. Mr Bakhtiyari’s detention was not arbitrary, and the Human Rights Committee took the view that in those circumstances it was not necessary to consider his article 9(4) claim.[147] With respect to Mrs Bakhtiyari, the Human Rights Committee concluded that, as there was, ‘no discretion for a domestic court to review the justification of her detention in substantive terms’, and her detention was contrary to article 9(1) of the ICCPR, a violation of article 9(4) had occurred.[148]
With respect to the children, the Human Rights Committee referred to B (Infants) and B (Intervener) v Minister for Immigration and Multicultural and Indigenous Affairs,[149] where a majority of the Full Court of the Family Court of Australia held that the Court had jurisdiction to order the release of the children from immigration detention.[150] The Human Rights Committee stated that:
the ability for a court to order a child’s release if considered in its best interests … is sufficient review of the substantive justification of detention to satisfy the requirements of article 9, paragraph 4, of the Covenant.[151]
Subsequently, the High Court of Australia ruled unanimously that the Family Court of Australia had no such jurisdiction over the children.[152] Accordingly, the finding that article 9(4) had not been breached with respect to the Bakhtiyari children would no longer hold.
Whilst the text of article 9(4) and the relevant travaux préparatoires are ambiguous, the Human Rights Committee has taken a consistently broad view of the requirements of article 9(4),[153] although this approach has not been unanimous.
In C v Australia, a dissenting view about the scope of article 9(4) of the ICCPR was advanced in the individual opinion of Nigel Rodley, whose view was supported by the individual opinion of David Kretzmer. [154] Australia had argued that article 9(4) did not require an ability to challenge detention on the basis of arbitrariness, but was limited to review of the compliance of detention with domestic law.[155]
Professor Kretzmer took the narrow position that, given the Human Rights Committee had considered that the lack of substantive judicial review was relevant to determining whether the article 9(1) prohibition of arbitrary detention had been breached, it was unnecessary to consider whether this lack of substantive judicial review also violated article 9(4).
Sir Nigel agreed, but went further, suggesting a dissenting interpretation of article 9(4), although not fully developing that view. He observed that, in holding that a lack of substantive judicial review was itself unlawful, the Human Rights Committee was following its earlier decision in A v Australia, in which he said it had, ‘blazed … too broad a trail’.[156] His point was that the article 9(4) right to have a court decide on the lawfulness of detention does not necessarily require an ability to challenge detention, which is domestically lawful on the basis that it is arbitrary.
At the same time, Sir Nigel indicated that he did not take the view that article 9(4) would always be satisfied by review for domestic lawfulness, giving the example that, ‘torture of a detainee could justify the need for recourse to a remedy that would question the continuing legality of the detention’. This possibly reflects his experience as a former Rapporteur on Torture of the United Nations Commission on Human Rights, and appears to be given only as a hypothetical example: the first word on the subject, not the last.
Sir Nigel has maintained his position in the subsequent cases of Baban v Australia and Bakhtiyari v Australia. Australia too has continued its objection to the majority interpretation of article 9(4). However, it remains to be seen if this dissenting interpretation of article 9(4) will be fully elaborated by its proponent. Until then, it would appear that this interpretation is unlikely to be adopted by other members of the Human Rights Committee.
Despite the clear majority position, the existence of a dissenting view, together with the ambiguity of the available primary material, invites the possibility of reference to further sources of guidance.
In 1988, the United Nations General Assembly adopted the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (Body of Principles).[157] This instrument applies to, ‘any person deprived of personal liberty except as a result of conviction for an offence’.[158]
Principle 4 is vital to the issue of arbitrary detention, requiring that detention be, ‘ordered by, or be subject to the effective control of, a judicial or other authority’.[159] A judicial or other authority is defined to be, ‘a judicial or other authority under the law whose status and tenure should afford the strongest possible guarantees of competence, impartiality and independence’.[160]
Effective control is not defined in the Body of Principles, but the scope of that requirement has been explored by the Working Group on Arbitrary Detention.[161] In their view, ‘what is required is an effective alternative remedy which would entitle the appellate authority to consider on their merits’[162] the decisions to impose detention.
The approach of the European Court of Human Rights is also illustrative in this context. In Winterwerp v The Netherlands, the Court deliberately left open the question, ‘whether the review of “lawfulness” provided for by Article 5 para. 4 (art. 5-4) covers not only the formal propriety of the procedure followed but also the substantive justification of the deprivation of liberty’.[163] However, in X v United Kingdom, the Court determined the answer to this question. Noting that the writ of habeas corpus enabled the determination of the question of domestic legality, the Court held that the substantive justification for detention also needed to be examined.[164] In so doing, it laid down a standard that has been consistently applied since, holding that the right to review:
does not embody a right to judicial control of such scope as to empower the court, on all aspects of the case, to substitute its own discretion for that of the decision-making authority. The review should, however, be wide enough to bear on those conditions which, according to the Convention, are essential for the “lawful” detention of a person … especially as the reasons capable of initially justifying such a detention may cease to exist.[165]
These additional sources of guidance provide a clear indication of the scope of article 9(4). The Body of Principles requires that detention be subject to the effective control of a judicial or quasi-judicial authority; the Working Group on Arbitrary Detention interprets that requirement to necessitate a form of merits review of the decision to detain; and the European Court of Human Rights interprets the similar requirement of court review of the legality of detention to require assessment of the factors that justify detention. Each of these approaches supports the broader interpretation of article 9(4) of the ICCPR adopted by the majority of the Human Rights Committee that requires the availability of substantive judicial review.
The foregoing analysis reaches a clear conclusion. Although there are some areas of disagreement, there is a pre-eminent approach to the prohibition of arbitrary detention that is both clear and persuasive.
The protection from arbitrary detention provided by article 9(1) of the ICCPR is clear. It requires that detention be justified as both reasonable and necessary in the case of each individual. In addition to requiring an appropriate justification at the time detention is initiated, an important aspect of the jurisprudence has been the requirement for reassessment of the justification for detention in the light of any relevant developments, including the passage of time.
To determine whether or not a detention is arbitrary, the Human Rights Committee has developed a test that asks whether less invasive means could be used to secure compliance with the regulatory objectives. The application of this test focuses clearly and directly on the question of necessity: as detention is a severe interference with the right to personal liberty, it can be justified only if lesser interferences with the right to personal liberty can be shown to be insufficient. Absent such a justification of necessity, detention will be arbitrary.
In addition to the requirement that detention must not be arbitrary, article 9(4) requires that detainees have available to them substantive judicial review that considers the justifications advanced for detention and can result in release from detention if it is not both reasonable and necessary in the circumstances.
International human rights law draws on the long recognition of the right to personal liberty as a fundamental human right. The UDHR and the ICCPR give effect to this right by establishing an international prohibition of arbitrary detention. The scope of the international prohibition of arbitrary detention contained in the ICCPR is given further definition by the jurisprudence of the independent expert bodies whose work has been examined.
Even if the regime of immigration detention of unlawful non-citizens is consistent with Australian law, this is not sufficient for international legality. What is required is that all measures of detention can be shown to be both reasonable and necessary in the circumstances of each detainee. Individual justification of detention does not occur in Australia, and without this justification there will always be cases of arbitrary detention.
The dissenting judgment of Chief Justice Gleeson in Al-Kateb v Godwin noted the extraordinarily blunt operation of the system of immigration detention under the Migration Act. His Honour noted that:
One of the features of a system of mandatory, as distinct from discretionary, detention is that circumstances personal to a detainee may be irrelevant to the operation of the system. A person in the position of the appellant might be young or old, dangerous or harmless, likely or unlikely to abscond, recently in detention or someone who has been there for years, healthy or unhealthy, badly affected by incarceration or relatively unaffected. The considerations that might bear upon the reasonableness of a discretionary decision to detain such a person do not operate.[166]
The fatal flaw in terms of the international prohibition of arbitrary detention is the failure to attempt any form of individual justification. The Migration Act requires that all unlawful non-citizens be detained, insisting that no release is possible until a person is no longer an unlawful non-citizen: an approach that has been described as a, ‘blanket order for detention’.[167]
The application of the bridging visa system, together with the introduction in 2005 of additional discretionary powers enjoyed by the Minister, results in the potential for some individuals to have their personal circumstances taken into account. However, with the exception of children in detention, these new Ministerial powers appear to be entirely dependent on the exercise of a broad personal discretion by the Minister. In addition, with the exception of children, the 2005 reforms appear to apply only to persons who have already been detained for two years. This is only a minor adjustment to the overall nature of immigration detention, and does not result in any meaningful justification of the reasonableness and necessity of detention in the circumstances of each individual.
Beyond the reasonably narrow period when detention could be justified as reasonable and necessary, a period which will vary from person to person according to their circumstances, but which could not conceivably approach the apparent two-year minimum detention which continues to apply to adults after the latest reforms, Australia’s regime of immigration detention under the Migration Act will still breach the international prohibition of arbitrary detention. Not only is there a failure to provide appropriate justification for the commencement of detention, but there is a failure to provide any mechanism for assessing the justification for continuing detention, even over substantial periods of time.
Moreover, international law requires that detention be capable of meaningful challenge before a court, which is also not possible in Australia. A bare assessment of whether or not a person is an unlawful non-citizen is not sufficient: the court must be empowered to consider the merits of whether or not detention can be justified as both reasonable and necessary in the circumstances. Even if there is a suitable justification, this does not avoid the need to have a court assess the justification. This lack of an effective legal challenge to detention constitutes an independent violation of the international prohibition of arbitrary detention, even if detention itself is justified.
There may now be a ‘softer edge’ to the regime of mandatory detention for some unlawful non-citizens, but it remains an impermissibly blunt policy instrument, which fails to take into account the human rights of those to whom it applies. In failing to require any justification of the reasonableness and necessity of detention in individual circumstances, both as an initial measure and on an ongoing basis, and in failing to allow for substantive judicial review of the justifications for detention in individual cases, the regime of immigration detention of unlawful non-citizens in Australia will continue to result in significant breaches of the international prohibition of arbitrary detention, violating Australia’s obligations under article 9 of the ICCPR.
The fundamental problem with the regime of immigration detention in Australia remains unaltered by the recent reforms: detention is imposed as the norm, rather than the exception; and release from detention must be rigorously justified, rather than stringent justification being required for the imposition of detention. The starting point should not be the imposition of mandatory and indiscriminate detention, but must become respect for the right to personal liberty.
[∗] 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] HCA 2; (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’ [1989] 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).
[167] Mathew, ‘Sovereignty’ above n 35, 97.
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