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Liz Curran[*]
On what grounds are some asylum seekers held uncharged in state prisons?
Mr C was an Iraqi Detainee who was detained at the Woomera Detention Centre for six months. He along with 180 detainees was moved into separate detention at Woomera and did not know why. One day an older man became upset and Mr C tried to calm him down. Soon after he was transferred to Port Augusta Prison without any criminal charges being laid. No-one explained to Mr C why he was transferred to a prison nor was he given a notice of the transfer. Mr C went on hunger strike and was later held in a high security punishment cell on a restricted regime. The Department of Immigration allegedly informed the prison that Mr C was a troublemaker and that this was the reason for the transfer to prison. Mr C was eventually returned to Woomera. One reason Mr C gave for going on his hunger strike was to protest at not being kept informed.[1]
The removal of a person’s liberty by detaining them in the prison system is one of the most coercive powers that the state can exercise over a human being. Over the centuries the common law has prescribed certain limitations on the state’s powers to do so. In addition, under international human rights law there are certain human rights standards which the Australian government has agreed to uphold, by virtue of having signed and ratified particular human rights conventions.
As part of Australia’s foundational law, Chapter 29 of the Magna Carta states that: no ‘freeman’ should lose their liberty save under the law of the land.[2] The Magna Carta arose from a time when the power of the government or Crown to imprison citizens without explanation or review was the subject of great dispute between the King and his Knights. In 1629 a Petition of Right forced the King to agree that no ‘freeman’ could be imprisoned arbitrarily or detained.[3] Section 10 of the Bill of Rights 1689 of the United Kingdom states: ‘That excessive bail ought not to be required, nor excessive fines imposed; nor cruel and unusual punishment be inflicted’.
The Bill of Rights is still operative in Victoria by virtue of the Imperial Acts Application Act 1980 (Vic) Part 2, Division 3, although there are limits on its application in matters administrative as opposed to punitive.[4]
It can be argued that under the separation of powers doctrine it is the courts, rather than the executive, which have been vested with the judicial power to determine a person’s criminal guilt or innocence prior to their incarceration in the prison system, and that in the transfer of detainees to prison the executive’s delegates presume to take this power unto themselves. Members of the High Court have indicated they will be concerned by measures taken by legislatures which seek to remove ‘the ordinary protections inherent in the judicial process’ both in the operation of Federal courts and State courts as part of one unified common law system.[5]
On 4 April 2001, the Minister for Corrections in Victoria announced that the State government would ‘no longer approve Federal government requests to jail immigration detainees not charged with a criminal offence’.[6]On 27 June 2001, it was reported that the federal government had been warned by State Corrections Ministers that State governments would no longer be prepared to hold detainees who had not been charged with a criminal offence in jails unless there were exceptional circumstances.[7]
In general, unlawful non-citizens are held in detention in Commonwealth immigration detention centres until they leave Australia voluntarily, are removed or have an application for a visa or bridging visa approved (see s. 189 of the Migration Act 1958 (Cth)). Some may end up in prisons rather than in detention centres.
The focus of this article is on immigration detainees, particularly asylum seekers,[8] who are held in State prisons around Australia. It is not a discussion about holding asylum seekers in detention centres but rather about holding asylum seekers who, like Mr C, are uncharged, in state prisons. There are currently three main categories of asylum seekers. This article focuses on the first category outlined below:
1.
asylum seekers who are not charged with a criminal offence and are held for what could be called ‘management purposes.’ The breadth of the term ‘management purposes’ will discussed later in this article;
2.
asylum seekers who have served their prescribed sentences for a criminal offence(s) and are being held after the term of the sentence has expired until they can be deported or extradited. In some cases the period of time they are held is indefinite as their countries are unlikely to agree to taking them; and
3.
asylum seekers who are serving a current prison sentence.
It is important to note that complex issues emerge for authorities when dealing with asylum seekers. Unfortunately, in Australia there has been a tendency to assume that people from certain countries are homogenous and to deal with them without recognising their individual circumstances. The housing of these people in detention centres for long periods of time as they await assessment has led to increased tensions. Some of these detainees have past experiences of turmoil or traumatic imprisonment. Professor McGorry of the University of Melbourne in his research into the long-term impacts of trauma on asylum seekers has highlighted that the detention of these people can compound and exacerbate their trauma causing a range of mental health and nervous reactions.[9] It must, therefore, be a balancing act for officials to ensure the safety of other detainees, to recognise the very strained atmosphere and vulnerabilities of the people they detain and to ensure that standards for the protection of human rights are respected.
According to the Department of Immigration and Multicultural Affairs (DIMA), at 20 April 2001 there were 47 criminal deportees held in State prisons or institutions (including those whose visas were cancelled under s.501 of the Migration Act).[10] It is noted that this figure varies from time to time.
The Report of Inquiry into Immigration Detention Procedures,[11] provides a national breakdown of the location of detainees in prison either as prisoners or Commonwealth detainees as at 1 January 2001. This includes 33 detainees at Silverwater Prison (NSW), 8 detainees at Parramatta (NSW), 3 at Adelaide Remand Centre (SA), 1 at Melbourne Assessment Prison (Vic), 6 at Port Phillip Prison (Vic), 9 at Broome Regional Prison (WA), 2 at Campbell Remand Centre (WA), 1 at Belconnen (ACT) and 1 at Tasmania’s Risdon Prison. No breakdown of the purposes and charge status is provided in the table but in total it appears that as at 1 January 2001 there were 107 detainees held in State correctional facilities.[12]
In response to a request from the author for the Protocols between the State and Commonwealth government in the transfer of detainees to prisons, the Minister for Corrections indicated that he had requested these be reviewed and finalised by the Commonwealth by the end of April 2001.[13] In addition, a Memorandum of Understanding was being negotiated between the State and Commonwealth. According to the Victorian government the Commonwealth has indicated that the Memorandum was to be finalised at the end of June 2001.[14]
It should be noted that in some States where there are no detention centres unlawful non-citizens are often held in prisons.[15] These people are held in police lockups, prisons or remand centres or in any other place approved by the Minister in writing, for example, a hospital, migrant centre or in a holding room at an airport. They can be held in detention for long periods of time. The conditions at these prisons vary from place to place. For instance, at the Arthur Gorrie Correctional Centre in Queensland detainees are subject to similar conditions to prisoners, including restrictions on phone calls, restricted visitor contact and being locked in cells at night.
The Commonwealth Ombudsman has expressed concern about the practice of holding detainees in prisons where they mix with convicted prisoners. He states:
The loss of liberty and personal freedom associated with detaining persons in a secure institution is akin to the situation of prisoners held in prisons. However, unlike criminals who have been extended the full protection of the law before being incarcerated, and who, as prisoners, are exposed to significant checks and balances which have been built up over time reflecting decisions of the courts and community expectations, immigration detainees appear to have lesser rights and are held in an environment which appears to involve a weaker accountability framework.[16]
The Ombudsman indicated in a general statement that the subject of detainees held in prisons warranted review.[17]
There seems to be very little legal basis for the arrangement where the Commonwealth obtains the power to transfer an uncharged detainee to a state prison and where the States gain their power to receive. Section 120 of the Constitution notes that ‘every state shall make provision for the detention in its prisons of people accused of offences against the laws of the Commonwealth’ but the section does not appear to vest such authority where no criminal charges are laid. It is arguable that detainees, by virtue of being unauthorised arrivals, contravene the laws of the Commonwealth giving the section application. Section 5 of the Migration Act 1958 defines immigration detention as including holding a person in a prison or remand centre of the Commonwealth, a State or Territory, or in a police station or watch-house. It includes taking such action and using such force as is reasonably necessary to do so.
An ‘officer’ is defined in s.5, and includes: an officer of the Department, other than an officer specified by the Minister in writing; a person who is an officer for the purposes of the Customs Act 1901; a person who is a protective service officer; other persons specified by the Minister in writing, a member of the Australian Federal police or the police force of a State or Territory or any person who is included in a class of persons authorised in writing by the Minister to be Officers for the purposes of the Act.
Section 5 is not an enabling provision giving powers to act. However, in the information materials provided by DIMA, it is the definition section that they rely on as authority to hold detainees in prison. Yet the definition of ‘detention’ does not authorise or oblige the state to hold a non-citizen in a prison where no charges are laid. Also the definition of officer is not broad enough, or expressly worded, to allow delegation of the power under the Act by the officer to another person.
Further, the authority cannot be vested in the Secretary of the Department of Justice. That Office is not mentioned in the Act as an ‘officer’ or ‘delegate’. Section 120 of the Constitution makes provision for detention in prisons of people accused or convicted of Commonwealth offences and for the Commonwealth to make laws to give effect to the provision. But its scope does not appear to include uncharged people who are not alleged to have committed any offence.
The authority of the Secretary of the Department of Justice to act as an ‘officer’ under the Act seems vague, and the actions appear to be ultra vires. Even so, the power to delegate an authority to imprison merely by virtue of a definition seems spurious. The only basis that can be provided as ‘authority’ is that the power of the Secretary to detain in State prisons is an ‘incident’ of the power conferred under s.189 of the Migration Act.
The Commonwealth has the power to make laws with respect to immigration under s.51 (xxvii) of the Constitution. It seems that the authority to transfer to a prison an uncharged detainee is derived not from express statutory power but rather from a ‘request’. Decisions are made by public servants who act on information from Australasian Correctional Management and other sources. Such decisions do not appear to be vetted by any court process despite consequential imprisonment. The status of such a ‘request’ is precarious given that such a ‘request’ excludes the normal due process involved in detaining a person in a prison, something which under the common law normally would be guarded against and require explicit statutory intent to allow any override of the common law protections such as habeas corpus. The recent decision in the Full Federal Court in relation to the Commonwealth’s actions in holding rescuees on board the Norwegian vessel, MV Tampa, has left considerable uncertainty around the inter-relationship of executive power and the common law remedy of habeas corpus.[18]
As part of its Migration Series 244, the DIMA provides instructions on the ‘Transfer of Detainees to State Prisons’, referring to the relevant sections of the Migration Act 1958, the Migration Regulations and the Crimes Act 1914 (Cth). The instructions deal with the circumstances and procedures to be followed in the transfer of a detainee from a detention centre to a State prison. Grounds for transfer are listed in Part 4 of the Migration Series and include: unacceptable behaviour; risk to other detainees; psychiatric illness; a history of violence; a health or security concern; a history of sexual offences or drug offences; unlawful behaviour involving detainees; escape; removal or deportation; or the absence of a detention centre.
Interestingly, comment is made in Part 3 of the Migration Series that: ‘There is no clear statutory basis for the selective transfer of detainees and the decision to transfer a detainee from [a detention centre] to a prison should be made as a last resort’. It is this aspect of the Migration Series and the absence of express legislative authority to transfer an uncharged detainee to a prison — which may give a glimmer of hope to those lawyers who may seek to challenge the arbitrary detention in prison of an asylum seeker/refugee in the courts.
The Migration Series, in Part 2, para 2.1, while stating that detention of immigration detainees within prison occurs as a last resort, spells out certain behaviours that perhaps fit within Category 1 discussed above, and are regarded as ‘management issues’. In summary, these include: unacceptable behaviour; the risk to other detainees; violent behaviour and/or unlawful behaviour; the inability of management and the detainee to resolve the unacceptable behaviour; or the risk of the detainee absconding from lawful custody.
Under Part 3 of the Migration Series, the decision to transfer a detainee to a prison should be made by the relevant State Director or the Director’s delegate. Where this is not possible, endorsement by the State Director of DIMA or delegate is required on the first working day after it takes place. The transfer of a detainee to a prison, therefore, does not require a process of natural justice that would provide an opportunity to be heard or judicial authorisation as in other cases where incarceration occurs — merely the action of a Director or delegate. Paragraph 3.3 states that in deciding whether to transfer a detainee to a State prison decision makers will need to take into account any factors in the detainee’s behaviour which raise questions as to whether it is in the ‘best interests of the efficient running of the [detention centre] bearing in mind [detention centres] are low security establishments’. This provision has the potential to allow for consideration of issues of convenience rather than criminality. The paragraph following this provision lists factors to be considered but states that these ‘factors … could include’, implying that the list is not exhaustive or limited to the circumstance outlined.
Of particular concern is the class of people who can be transferred to a prison ‘where there is evidence that the person is suffering from a psychiatric illness’. As Professor McGorry points out, prior experience of torture and detention by asylum seekers in their homeland, combined with further periods of detention, increases their mental stress. Resulting behaviour that may involve lashing out is not a surprising consequence of long-term detention. This is often compounded by the uncertainty of the decision-making process used in determining their claims. Thus ‘unacceptable behaviour’ and ‘psychiatric illness’ could be seen as foreseeable and even natural consequences of detention. Part 4 provides that people with a psychiatric disorder can be transferred to ‘suitable facilities’.
There is very little guidance about what constitutes ‘unacceptable behaviour’ giving ‘authorised officers’ wide discretion to transfer a detainee to a prison — as seems to have occurred in Mr C’s case. There are some provisos but the preconditions and details required to fulfil those preconditions are inexact and have been problematical in some instances as the Commonwealth Ombudsman has outlined.[19]
As stated this is a most coercive power and one vested in vague terms to a delegated officer, removed from direct ministerial control and outside the court system. Can the legislation delegate to an administrator, rather than to a judge, the power to imprison in a state prison? In the writer’s view the powers residing in these ‘officials’ appear to be extremely broad and largely unchecked.
The question arises whether the common law applies only to citizens of the Crown or is more broadly applicable. Some very old authority exists for the extension of the common law to non-citizens in the case of Somerset v Stewart.[20] The judgement[21] held that the laws of England could apply to set the non-citizen free. The premise was that if non-citizens have subjected themselves, and were ‘liable to the penalties’ of England, then consequently such persons were also ‘entitled to the protection of our laws’.
Dr Bentley’s case, decided in 1723, stated that people have the right to have their conviction or sentence reviewed by a higher court.[22] It would seem a greater nonsense if a person not even charged with a criminal offence would not be eligible or entitled to such a review.
The common law has made distinctions between ‘enemy aliens’ and ‘friendly aliens’.[23] An enemy alien is one whose country is at war with the Crown and a friendly alien is a person whose country is not at war with the Crown. A friendly alien has the same rights as British subjects with regard to contracts and civil proceedings. In Johnstone v Pedler [1921] UKHL 1; (1921) 2 AC 262 the defence of an ‘act of State’ was not available to defend an action for wrongful detention of an alien’s property. One could argue a similar position could be held in relation to the wrongful detention of a person.
It has long been recognised that there is a separation of powers between the judiciary, the executive and the legislature flowing from the manner in which key provisions are expressed in Chapter III of the Australian Constitution.[24] Judicial power is said to reside solely in the judiciary having its source of power under Chapter III of the Constitution.
In Kable’s case,[25] the New South Wales legislature sought to detain a man in prison for six months after his term of imprisonment had expired on the grounds that he was more than likely to commit serious acts of violence. The majority of the High Court held that in the exercise of federal jurisdiction a State court may not act in a manner incompatible with Chapter III of the Constitution. The case discusses the importance of the court not being seen to be implementing the political decisions of an executive government with a person being imprisoned without the benefit of ordinary legal processes.
Under s.51(xix) the Commonwealth has express powers in relation to ‘naturalization and aliens’. In Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, the High Court reiterated the doctrine of the separation of powers outlined in the Boilermaker’s case and noted some limitations on the parliament’s power to legislate and influence certain matters. The case included a challenge to the (then) s.183 (or s.54R) of the Migration Act 1958 which prohibited a court from ordering the release of a designated person who might be unlawfully detained. This was one of a raft of measures designed to limit the power of the courts for judicial review of the parliament or its delegates in the treatment of non citizens. The section was declared unconstitutional by a majority of the High Court as it was said to offend the doctrine of the separation of powers in that the adjudgement and punishment of criminal guilt was a judicial power within Chapter III of the Constitution. It was held that s.54R was invalid as it attempted to exclude the court from ordering the release from custody of a ‘designated person’ who might be unlawfully detained.[26]
To remove the role of Australian courts in the lawfulness or unlawfulness of incarceration and to place the power in the executive or its delegates is arguably an attempt to devolve judicial power. Some hope, however, resides in Chu Kheng Lim’s case in that the court has held that ‘the involuntary detention of a citizen in custody by the state is penal and punitive in character and under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt’ (at 10).
There is a generally recognised principle of expression unius exclusio alterius which requires that parliament be explicit in its intention, otherwise it can be assumed that the parliament does not intend to act inconsistently with recognised common law protections of rights. The High Court has also recognised that certain common laws are deeply engrained in our system,[27] although it has also been held that legislation can override such deeply engrained principles.[28] Legislative provisions require clear unambiguous language if a fundamental common law right is to be displaced.[29] The transferral of uncharged detainees to prison, according to the DIMA’s own material and the material from the Victorian Office of the Correctional Services Commissioner, is not expressly authorised by statute. Accordingly, it can be strongly argued that such detention is unlawful.
The most recent case law in the Tampa case on asylum seekers is, in the writer’s view, unsatisfactory. As it stands the Full Federal Court in judgments of French and Beaumont JJ (with Black CJ dissenting) allows the restraint of rescuees even though it is not an express statutory power. It was held to be an incidental power to the executive’s power to exclude or prevent the entry of a non-citizen to Australia under s.61 of the Constitution. In any event, the majority found there was no detention in this case. Black CJ found that the Commonwealth had no power to detain those rescued by the Tampa and that detention was not justified by the powers conferred by the parliament under the Migration Act. He ruled that there was no non-statutory executive or prerogative authority for detention. He stated that the power to detain is a power that derives only from laws made by parliament and not from powers otherwise exercisable by the executive government. This case is currently awaiting special leave to the High Court. The case serves to highlight the uncertainties that exist around the executive’s powers to detain ‘aliens.’[30]
The hope of implied rights in the Constitution[31] has been largely bedded down by the High Court in cases such as Kruger v the Commonwealth [1997] HCA 27; (1997) 190 CLR 1 (the Stolen Generations case). However, in the case of Sillery v The Queen [1981] HCA 34; (1994) 180 CLR 353, it was argued by the court that the right not to be arbitrarily detained may be a foundation stone of the Constitution as opposed to an implied right. The court commented that a power to legislate for the infliction of cruel and unusual punishment ‘should not be implied into the legislative powers expressed in the Constitution’.
The irony is that Australia was one of the key countries to propose the ban on arbitrary detention under international human rights law and that this right is now contained in a number of international treaties and declarations. The detention and transfer of uncharged detainees to prison without access to judicial review appears to violate the international obligations that Australia has undertaken.
The Universal Declaration of Human Rights[32] provides in Article 8 for the right of all human beings to have an effective remedy before a competent national tribunal for acts violating fundamental freedoms. Article 9 prohibits arbitrary arrest, detention or exile.
Article 9 of the International Covenant on Civil and Political Rights provides:
(1) Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law.
(4) Anyone who is deprived of their liberty by arrest or detention shall be entitled to take proceedings before a court … on the lawfulness of his detention …
In addition, the Standard Minimum Rules for the Treatment of Prisoners[33] and the Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment, although largely concerning criminal detainees, are relevant. In particular, rule 94 of the Standard Minimal Rules provides that such people shall be accorded treatment ‘not less favourable’ than that of an untried prisoner.[34]
Before United Nations Covenants become law in Australia they must be incorporated by an Act of Parliament or exist in common law.[35] Unless incorporated they are not legally binding within Australian domestic law.
However, the Australian courts may be prepared, as they have been in the past where there is ambiguity in a legislative provision, to utilise the international law for guidance in interpreting domestic provisions such as those regarding the prohibition on arbitrary detention.
The issues that are discussed in this article are designed to raise awareness of the category of asylum seekers and refugees detained in a prison without being charged with a criminal offence and without the benefit of review that Australian citizens are accorded. Sadly, non-citizens are only afforded limited protections under the Constitution.[36] It is an area which requires serious consideration by the courts, not least in respect of their ability to exercise judicial power.
The capacity to overlook the dignity of people, many of whom have come to Australian shores in the expectation of the freedom and respect that they lacked in their homelands, could perhaps be rectified with a better protection of human rights such as in a Charter of Rights and Freedoms as exists in all other Western nations.
[*] Liz Curran teaches law and legal studies at La Trobe University.©2001 Liz Curran
[1] See Commonwealth Ombudsman Report of an Own Motion Investigation into Immigration Detainees Held in State Correctional Facilities, March 2001, p.21.
[2] O’Neill, N. and Handley, Robin, Retreat from Injustice: Human Rights in Australian Law, The Federation Press, 1994, p.145.
[3] Holdsworth, Sir W., A History of English Law, Volume VI, reprint, Sweet and Maxwell, 1996, pp.34-40.
[4] Binse v Governor of HM Prison, Barwon, Supreme Court of Victoria: Byrne J, 25 July, 2 August 1995 (1995) 8 VAR 508. See also the commentary on the case by Groves, Matthew, (1996) 20 Criminal Law Journal 106, at 108.
[5] Kable v The Director of Public Prosecutions [1996] HCA 24; (1997) 189 CLR 51. See McHugh J at 122.
[6] Minister Orders Immigration Jail Change, Media Release, Wednesday, 4 April 2001, Minister for Corrections <www.dpc.vic. gov.au/domino/>.
[7] Age, 27 June 2001 p.4.
[8] Asylum seeker is defined in this article to include people who arrive unlawfully and are held in detention pending a decision on their application for a protection visa/temporary protection visa which depends on a decision whether they fall within the definition of a refugee as set out in the Refugees Convention. After that determination is made they should be released (pending character checks). Some refugees are held in prison if they commit a criminal offence or after their term is served while awaiting deportation.
[9] See Pathways From War to Post Traumatic Stress Symptoms Amongst Tamil Asylum Seekers, Refugees and Immigrant, forthcoming in Journal of Traumatic Stress; and see Silove, D., Steel, Z., McGorry, P. and Drobny, J., Problems Tamil Asylum Seekers Encounter in Accessing Health and Welfare Services in Australia, (1999) 49 Social Science and Medical Journal 51-6.
[10] Information provided to the writer by telephone on Monday, 30 May 2001 by the Department of Immigration, Freedom of Information Section.
[11] The Report of Inquiry into Immigration Detention Procedures, DIMA, February 2001.
[12] The Report of Inquiry into Immigration Detention Procedures, February 2001 See detailed in a table marked as ‘Annexure B’ to the above report.
[13] Letter dated 9 April 2001 to the writer from the Office of the Correctional Services Commissioner, Department of Justice, Victoria.
[14] Letter dated 9 April 2001 to the writer from the Office of the Correctional Services Commissioner, Department of Justice, Victoria.
[15] Goddard, Jane and Patel, Arthi, The Immigration Kit: A Practical Guide to Australia’s Immigration Law, The Immigration Refugee Service, 4th edn, The Federation Press, 1995. Also the UNHCR Guidelines, Geneva, 1997 indicate that separation of criminals and asylum seekers is to be facilitated.
[16] Executive Summary, The Commonwealth Ombudsman: Report of an Own Motion Investigation into The Department of Immigration and Multicultural Affairs’ Immigration Detention Centres, Report under s.35A of the Ombudsman Act 1976, March 2001, p.3.
[17] The Commonwealth Ombudsman: Report of an Own Motion Investigation into The Department of Immigration and Multicultural Affairs’ Immigration Detention Centres, Report under s.35A of the Ombudsman Act 1976, March 2001, p.28.
[18] Ruddock v Vadarlis [2001] FCA 1329.
[19] Commonwealth Ombudsman Report of an Own Motion Investigation into Immigration Detainees Held in State Correctional Facilities, March 2001.
[20] Somerset v Stewart, 14 May 1772, Easter Term, 12 GEO. 3, 1772, KB 499.
[21] Somerset v Stewart, above, at 501.
[22] R v Chancellor, Masters and Scholars of the University of Cambridge (1723) 93 ER 698, 702-3.
[23] Phillips, O. Hood, The Constitutional Law of Great Britain, 2nd edn, Sweet and Maxwell, London, 1957 pp.221-479.
[24] Queen v Kirby and Others; ex parte Boilermakers’ Society of Australia [1956] HCA 10; (1955-1956) 94 CLR 254 (the Boilermaker’s case).
[25] Kable v Director of Public Prosecutions [1996] HCA 24; (1997) 189 CLR 51 at 121 and 124.
[26] Dawson, Brennan and Deane JJ (1992) 176 CLR 1 at 37.
[27] This includes the privilege against self incrimination. See Sorby v Commonwealth (1983) 152 CLR 181 at 309; Petty & Maiden v R (1992) 102 ALR 129 on the right to silence, Leeth v The Commonwealth (1992) 174 CLR 455 on equality of all citizens before the law.
[28] Reid v Howard (1995) 184 CLR 1, at 5.
[29] ACTV [1992] HCA 45; (1992) 177 CLR 106; Wentworth v New South Wales Bar Association [1992] HCA 46; (1992) 177 CLR 1 at 43; and Coco v R [1994] HCA 15; (1994) 179 CLR 427 at 436-8.
[30] Ruddock v Vadarlis, above, ref 18.
[31] In Sillery v R [1981] HCA 34; (1981) 180 CLR 353 at 362, protection from cruel and unusual punishment was recognised as a right by Murphy J.
[32] <www1.umn.edu/humanrts/instree>.
[33] Adopted UN General Assembly, 9 December 1988: UNGA res 43/173.
[34] See for further discussion, Poynder, N., ‘The Incommunicado Detention of Boat People: A Recent Development in Australia’s Refugee Policy’, Australian Journal of Human Rights <www.austlii.edu.au/cgi-bin…2> p.3.
[35] See Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273.
[36] Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1; Wells, B., Aliens: ‘The Outsiders in the Constitution’[1996] UQLawJl 3; , (1996) 19 University of Queensland Law Journal 45.
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