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Penovic, Tania --- "The separation of powers: Lim and the 'voluntary' immigration detention of children" [2004] AltLawJl 67; (2004) 29(5) Alternative Law Journal 222

Lim and the 'voluntary' immigration detention of children[*]


Disquiet within the legislature and the Executive over the role of the third arm of federal government is nothing new. Tensions have been played out in recent years in relation to issues such as freedom of communication and native title. But nowhere have these tensions been more persistent, and the parliamentary will to restrict judicial review of Executive action more comprehensive, than in Australia's processing of asylum seekers. This article considers the constitutional underpinnings of the mandatory detention provisions in the Migration Act 1958 (Cth) which have been subject to repeated parliamentary efforts to prohibit judicial review since their introduction in 1994. It then examines the place occupied by children within the constitutional framework.

The beginnings of mandatory detention

When 22 Cambodian asylum seekers arrived in Australia by boat in 1989 and a further 13 in 1990, they were immediately detained under the Migration Act which at the time authorised discretionary detention of undocumented boat arrivals.[1] One day before the scheduled Federal Court hearing of their application for release, the Migration Amendment Act 1992 (Cth) received Royal Assent The provisions required norl'-reviewable detention for up to 273 days of unauthorised boat arrivals within a specified period[2] who were 'designated' by the Department of Immigration, Local Government and Ethnic Affairs.

The Bill was rushed through Parliament, according to the then Immigration Minister Gerry Hand, in order to deal with 'the pressing requirements of the current situation'. In introducing the Bill the Minister stated:

The most important aspect of this legislation is that it provides that a court cannot interfere with the period of custody. I repeat: the most important aspect of this legislation is that it provides that a court cannot interfere with the period of custody.[3]

He concluded that '[n]o other law than the Constitution will have any impact on it'.

The 'current situation' referred to by Minister Hand was the potential Federal Court ordered release of the Cambodian detainees. In the reactive mode which has come to characterise the numerous piecemeal amendments made to the Migration Act in recent years, these amendments were intended to counter the judgment in Minister for Immigration, Local Government and Ethnic Affairs v Msilinga[4] in which the Full Federal Court held that it could order interlocutory release of people seen as unlawfully detained under the Migration Act.[5]

The Cambodian detainees challenged the validity of the provisions insofar as they authorised detention without court order and insofar as they prohibited courts from ordering release from detention in the case of Chu Kheng Lim v Min1ster for lmmtgrat1on, Local Government and Ethnic Affairs ('Lim')[6] which prompted the laying down of the constitutional foundations of immigration detention. The High Court considered the doctrine of the separation of powers on which the Constitution is structured. Chapter III of the Constitution vests the Commonwealth's judicial power in the courts and provides an. 'exhaustive statement' of the manner in which the judicial power of the Commonwealth may be vested. Grants of legislative power in s 51 are expressly 'subject to' the Constitution as a whole. They do not permit conferral of any part of the judicial power on the Executive and do not extend to making laws requiring courts to exercise judicial power inconsistently with Chapter Ill or the essential character of a court. Adjudication and punishment of crime is considered to be the most important of essentially and exclusively judicial functions. Section 75(v) of the Constitution directly vests jurisdiction in the High Court in all matters in which the Commonwealth or its representatives are a party or in which mandamus, prohibition or an injunction is sought against a Commonwealth officer. To the extent that the legislation prohibited courts from ordering release from custody, the Court held it to be 'an impermissible intrusion' into the Chapter III power.

The question remained whether there was a constitutional head of power which supported the provisions authorising detention without court order. Brennan, Deane and Dawson JJ indicated that if the provisions purported to apply to Australian citizens, they would be invalid because they would deprive courts of judicial power and because there was no applicable constitutional head of legislative power. But under the 'aliens power' ins 51(xix) of the Constitution, the provisions were held to be valid provided detention of an alien in custody was limited to a legitimate administrative purpose. The detention must be reasonably capable of being seen as necessary for the purposes of removal or deportation or to enable a visa application to be made and considered. If detention was not limited to one of these aliens power purposes, it would be punitive in character and violate the separation of powers, amounting to .an exercise by the Executive of the judicial power of the Commonwealth.

The court's conclusion that the provisions were valid resulted from restraints which limited the operation of the provisions. These restraints included a statutory time limit of 273 days after the making of a visa application. [7] They also included the requirement that detainees be removed from Australia as soon as practicable in the following circumstances:

• where an entry permit had been refused

• where any appeals had been finalised

• where a visa application was not made within two months of arrival or

• where removal was requested in writing by a detainee.[8]

Because such a written request would result in expeditious removal from Australia, the Court found that detention was in essence voluntary. Detainees were seen to have the power to bring their own detention to an end.[9]

The applicants further argued that the provisions were beyond the Commonwealth's external affairs power in s 51(xxix) of the Constitution on account of their inconsistency with treaty obligations undertaken by Australia in ratifying the Convention Relating to the Status of Refugees ('Refugees Convention) of 1951 and its 1967 Protocol and the International Convention on Civil and Political Rights (ICCPR). Brennan, Deane and Dawson JJ accepted that the provisions were inconsistent with the International Covenant on Civil and Political Rights and the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ('the HREOC Act) to which the Covenant is scheduled. If the language of the provisions was ambiguous, the Court accepted that they should be interpreted consistently with Australia's treaty obligations. But the provisions here were unambiguous and once it was accepted that they were a valid exercise of the aliens power, the plaintiff's argument that they exceeded the external affairs power[10] was seen as 'somewhat obscure'.[11]

Our ever-responsive Parliament reacted to the finding that the appellants' detention prior to the 1992

amendments was unlawful[12] by introducing further legislation retrospectively extinguishing the detainees' right to damages for false imprisonment

The current detention regime

The detention regime in place today commenced in September 1994.[13] Section 189 of the M1grat1on Act requires detention of all unlawful non-citizens within the migration zone. Section 196(3) requires that unlawful non-citizens be kept in detention and not released 'even by a court' until granted a valid visa or removed or deported from Australia. No time limit is set down and like its predecessor, s 198(1) requires removal as soon as reasonably practicable after the making of a written request.

The High Court's assumption in Lim concerning the practicality of expeditious removal was tested in the 2003 Full Federal Court decision of Minister for Immigration and Multicultural and Indigenous Affairs v AI Masri ('AI Masri).[14] Akram AI Masri was a Palestinian from the Gaza strip who requested removal and then remained in detention while permission was sought for him to enter Israel, Egypt, Syria or Jordan. The Full Federal Court (Black CJ, Sundberg and Weinberg JJ) held that where (as in the present case in light of Israel's unequivocal refusal to permit entry) there is no real likelihood or prospect of removal from detention in the reasonably foreseeable future, the connection between the purpose of removing aliens and the detention becomes so tenuous as to render the detention punitive. Section 196(3) is not an obstacle to the release of a person so detained. Their Honours commented that in a matter of such fundamental concern to the common law as the detention of a person in custody, it would be strange indeed if the non-punitive character of detention were able to be maintained indefinitely on the basis that, some day, something must surely tum up to allow detention to come to an end. The Court was fortified in its conclusion that s 196 of the Migration Act was subject to an implied limitation as to time by reference to the principle that, as far as language permits, statutes should be read in conformity with Australia's treaty obligations. Section 196 permitted such a limitation which was supported by art 9(1) of the ICCPR which prohibits arbitrary detention, by relevant determinations of the United Nations Human Rights Committee, by art 37(b) of the Convention on the Rights of the Child, and by the jurisprudence of the European Court of Human Rights.

The court thought it unnecessary to determine the constitutionality of the detention provisions,[15] and determined the appeal by applying the principle that courts do not impute to Parliament an intention to curtail fundamental common law rights, such as the right to personal liberty, in the absence of clear and unambiguous language. This presumption was said to apply equally to citizens and to aliens who are unlawfully within Australia. But while no conclusion as to the provisions' constitutionality was reached their Honours nevertheless considered that the presumption that Parliament does not intend its laws to 'pass beyond constitutional bounds' must prevail unless the language of a statute is so intractable that the legislation is incapable of being consistent with the presumption. They concluded that a serious question of constitutional invalidity would arise in the absence of an implied temporal limit because s 196 would operate without limitation and it may well be that the power to detain would go beyond what was 'reasonably capable of being seen as necessary' in accordance with the Lim formulation. They noted that the current provisions lacked the restraints which saved their predecessors from invalidity and indicated that in Lim, a removal request was considered to have the practical result of bringing detention to an end. This was clearly not the case for Mr AI Masri.

Children within the constitutional framework

So where do children fit into the picture given that the status of children was not considered in A/ Masn or Lim? While one of the 36 Lim applicants was an infant, no separate argument was put to the High Court in relation to the infant, his status or his capacity to request removal. A/ Masri was an adult But the precedent set by his case was applied in the landmark decision of B and B v Minister for lmm1gration and Multicultural and Indigenous Affairs[16] ('B Family Court) which concerned the detention of five children of the Bakhtiyari family and is considered by Adiva Sifris in this edition of the Alternative Law Journal (p 212). The Full Family Court regarded the five children as potentially unable to bring their detention to an end of their own accord notwithstanding their parent's ability to request the children's removal and thereby bring their detention to an end. The conclusion that the Family Court' welfare jurisdiction extended to the making of orders releasing children from immigration detention was overturned on appeal to the High Court on 29 April 2004.[17] Nevertheless, the B Family Court judgment and Al Masri inspired further litigation challenging the constitutional validity of the detention provisions insofar as they concern children. Furthermore, the A/ Masri precedent was no disturbed by the High Court judgment This litigation will be discussed below.

The A/ Masn precedent has given rise to -some concern within the Executive. In what Kirby J described as 'excessive enthusiasm', the Minister sought special leave to appeal against the Federal Court decision.

The application was rejected because AI Masri had departed Australia and the relevant issues were due for consideration in appeals pending before the Court.

In a show of Executive determination Mr Ruddock introduced the Migration Amendment (Duration of Detention) Bill 2003 on 18 June 2003·to prohibit interlocutory release of unlawful non citizens. The Bill sought to:

put it beyond doubt that an unlawful non-citizen must be kept in 1mmlgrat1on detention unless a court finally determines that:
• the detention is unlawful, or
• he or she is not an unlawful non-citizen.[18]

In the second reading debate, Mr Ruddock said:

Given that the courts have now demonstrated an increasing willingness to release persons from immigration detention pending final determination of their case, it is absolutely crucial that this bill be passed as a matter of urgency.[19]

Don Randall, member for Canning and of Parliament's migration committee, commented 'The Bill is required to prevent the mandatory detention regime in the Migration Act from being undermined and totally white­anted by the Federal Court'. Mr Randall expresses 'grave concern' on the government's behalf about 'the activism of the Federal Court in recent years'. In relation to children, he states 'Children do not need to be in detention for one simple reason: their parents could go home tomorrow'.

The ALP moved a second reading amendment calling for the immediate removal of children and their families from detention. Although this amendment was defeated, a large number of parliamentarians from the ALP, Greens and Democrats, used the second reading debate as an opportunity to voice their concerns about the detention of children. Amendments negotiated with Labor resulted in the passing of the Bill on 23 September 2003 in a form which did not extend to all unlawful non-citizens. Instead, denial of due process was restricted to criminal deportees under s 200 of the Migration Act and people subject to visa cancellation on character grounds pursuant to s 501.

Undeterred, the Minister announced his intention on 10 September 2003 to introduce a new Bill prohibiting interlocutory release of all unlawful non-citizens. The Migration Amendment (Duration of Detention) Bill 2004 was introduced on 19 February 2004. While judicial review is limited to the determination of points of law and does not extend to merits review, legislative perseverance in seeking to restrict the courts' role has included a narrowing of the refugee definition and the introduction of a privative clause pursuant to which a wide range of Executive decisions were declared imm4ne from review. Such amendments have been typically accompanied by statements from members of parliament concerning the need to ensure that an unaccountable and unelected judiciary does not usurp the role of an 'elected government'. The amendments have required the High Court to continue to assert that the Commonwealth's judicial power must be exercised in accordance with Chapter Ill of the Constitution.[20] But the courts will not be called on to decide the validity of Parliament's most recent attempt to oust its jurisdiction. After a repetition of the debate played out six months earlier. the Migration Amendment (Duration of Detention) Bill 2004 was defeated on 8 March 2004.

So what is the future of judicial review of detention?

The tantalising possibilities offered by B Family Court following on from Al Masri combined with some powerful advocacy have resulted in a number of constitutional questions being raised before the courts and have seen the legal status of children emerge as an increasingly prominent issue.

While the Minister's appeal of B Family Court resulted in amending that the Family Court does not have jurisdiction to order the release of children from immigration detention, it was this appeal which provided the unlikely impetus for a challenge to the validity of the detention provisions focusing on children alone. During the appeal hearing, McHugh J commented that by bringing proceedings in the Family Court, the respondents might have lost sight of available arguments concerning validity. His Honour asked:

Insofar as your submissions seek to defend the case, you do so on the basis of the AI Masri principle, but have you given any consideration as to whether or not Chapter Ill of the Constitution prohibits in all circumstances the involuntary detention of children, full stop?[21]

The Invitation implicit in his Honour's comments was accepted. In Applicants M276!2003, Ex parte-Re Woolley and Another ('M27 6)[22] heard by the High Court on 3 February 2004, orders were sought on behalf of four children of the Sakhi family (detained since arriving in Australia in January 2001) that ss 189 and 196 of the Migration Act are invalid to the extent that they authorise the detention of children. In this case, Gavan Griffith QC for the children argued that the:

scheme is unconstitutional in Its reach because it provides for administrative detention of indeterminate term expressed in terms that apply to children that are incapable, at the lowest, of being reasonably capable of being seen as necessary.[23]

Dr Griffith also alleged that the provisions are unconstitutional in their indiscriminate application to children without accounting for their developmental needs and vulnerabilities. The Human Rights and Equal Opportunity Commission (HREOC) as intervener broadly supported the applicants and alleged that the scheme is constitutionally flawed in not accounting for 'the distinct interests and nature of children as a class, nor any adequate provision for individual assessment of the relevant interests.'[24] Brett Walker QC on HREOC's behalf characterised detention as comprising three notional periods. While Griffiths had argued that detention of children was unconstitutional for any length of time, Walker argued that in the initial assessment phase, and the final phase where deportation or removal might occur, detention could be reasonably necessary in order to achieve a legitimate purpose. No such purpose could be discerned from the long middle phase which, moreover, has significant detrimental effects on children.

Solicitor-General David Bennett QC for the respondents argued that constitutionality must be determined by the legislative structure of the detention regime and not its consequences and effect on detainees.[25] He submitted that the legitimate non-punitive purpose was facilitation of removal or deportation and prevention of absorption into the community which Mr Bennett argued applies equally to children of all ages and adults.[26] In support of this argument he asserted without any substantiating evidence that a child could easily be concealed by a trusted adult. This assertion is hypothetical, implausible and highlights the lack of proportionality between the detention and its purported justification of seeking to prevent some perceived risk that a child may abscond.

Whether circumstances of detention may violate the separation of powers also awaits determination in the Al Khafaji/ AI-Kateb/ Behrooz[27] joint appeal in which the Al Masn argument of no real likelihood or prospect of removal[28] was heard in addition to the Behrooz argument that the harshness of conditions of detention can exceed what is reasonably necessary, rendering the detention punitive and an invalid exercise of judicial power. If the High Court finds the consequences of detention to be relevant, I would go so far as to say that the detention policy operating today (insofar as it extends beyond a matter of days required for legitimate administrative purposes) intends to achieve and in fact does achieve a punitive effect on all detainees and particularly children. justice Marcus Einfeld commented 10 years ago that immigration detention constitutes 'punishment in advance and presumption of adverse determination'.[29] The operation of the policy emulates the criminal law and to some extent the now repealed lmm1gration Restriction Aa 1901 (Cth) under which a prohibited immigrant was guilty of an offence and liable on summary conviction to imprisonment of up to six months and/or deportation. The rhetoric of illegality and the repeated assertion that people held in immigration detention have broken Australian law seeks to justify the punishment imposed. Yet immigration detention in fact offers less protection to child detainees than that offered to criminal defendants. For example, the Children and Young Persons Act 1989 (Vic) provides that following criminal charge a child must be released (unconditionally or on bail) or brought before a court or bail justice within 24 hours. Remand in custody is restricted to 21 days at a time pending hearing, and detention of defined duration (which for under-15-year-olds cannot exceed one year) can only be ordered if non-custodial orders have been found inappropriate. This small comparative exercise highlights the punitive effect of immigration detention and the absurdity of maintaining its necessity for removal, admission and deportation. Viable non­ custodial options, subject to conditions, can achieve the purpose of enabling admission, deportation or removal without constituting punishment:

It is hoped that the M276 judgment will examine the practical absence of safeguards which saved the earlier provisions from constitutional invalidity. The Full Federal Court in Al Masn tested and found wanting the assumption that removal will follow quickly from a written request under s 196 and noted an absence of safeguards in the current legislative regime which saved the sections challenged in Lim from constitutional invalidity. While A/ Masn did not result in a conclusion with respect to the validity of the current provisions, it is hoped that the High Court will conclude, given the absence of safeguards that the provisions are constitutionally invalid.

It is also hoped that the Court will reject the fiction that immigration detention is voluntary. The 'voluntary' characterisation ignores the realities of flight and the lack of control asylum seekers (and especially child asylum · seekers) can exercise over their destinies. It overlooks international law and jurisprudence concerning treaty obligations to which Australia has voluntarily submitted.[30] It overlooks the right to seek asylum enshrined in art 14 of the Universal Declaration of Human Rights,[31] which underpins the Refugees Convention and has emerged as a norm of customary international law.[32] Constitutional and legislative interpretation does not occur in a vacuum. While international law is 'not a direct source of constitutional norms', it 'forms part of the context in which the Constitution falls to be interpreted'.[33] This context is yet to receive appropriate recognition.

Moreover, the 'voluntary' characterisation overlooks the incorporation of the right to seek and to obtain asylum into the Migration Act (albeit in increasingly restricted circumstances) and assumes the detainee is not entitled to assert these rights. In comments made during the M276 hearing, Kirby J likens this fiction to saying you can 'solve their pain like a dentist and have the tooth out'. He continues: 'to say, "Well, you can solve your problem by just going away" is to assume that they have no rights and that all of these claims are completely baseless. That is not the experience of this Court.' The fiction of voluntary immigration detention assumes the detainee has no right to seek asylum pending the determination of their right to obtain asylum. It is a nonsensical notion which must be abandoned.

The status of children has taken more than 11 years to take centre stage. Yet in M276[34], the focus on children alone, in isolation from their parents, might have been viewed as inferring that their parents' detention was endorsed as valid. It also gave rise to the possibility, which appeared to trouble Kirby J and particularly Callinan J, that if the action succeeded the children would be released while their parents remained in detention. Indeed, releasing children while their parents remain in detention would, like the current detention regime, fail to account for children's best interests and developmental needs .and vulnerabilities.

In the range of matters presently awaiting determination, the High Court may finally recognise that the detention provisions authorise arbitrary and excessive detention which fails the Lim test. If the court extends its constitutional focus to the circumstances of detention, it may find that children's developmental needs and vulnerabilities greatly exacerbate the traumatising, punitive effects of detention. But this must not obscure the fact that the detention regime is inherently punitive for all. If such a finding is made and accepted by the Legislature and Executive, a humane solution to this challenging issue will finally be within reach.


[*] This article is based on a paper delivered at a workshop held in Melbourne on 2 April 2004 entitled 'Children in Immigration Detention: The Policy, the Practice and the Prognosis.' The author would like to thank Edwina Howell and Catenna Popa for their research assistance and Susan Kneebone for her comments on an earlier draft of this paper See also Tanta Penovic, 'lmmigration Detention of Children· Arbitrary Deprivation of Liberty' [2003] NewcLawRw 3; (2003-2004) 7(2) Newcastle Law Review 35 which focuses on how immigration detention of children violates international standards of human rights

[1] Pursuant to amendments Introduced in 1989, the Migration Act 1958 permitted but did not require detention of asylum seekers until their status as illegal entrants was determined Detention could then be extended if a 'claim of substance' was identified pending determination of the application

[2] 19 November 1989 to 1 December 1992

[3] Commonwealth. Parliamentary Debates, House of Representatives, May 1992, 2370 (Genry Hand, Minister for Immigration).

[4] (1992) 1 05 ALR 301.

[5] The Full Federal Court held that an unlawful non-citizen, a criminal deportee and a person whose visa is to be cancelled on character grounds can be released on an Interlocutory basis pending final determination. See also Minister for Immigration, Local Government and Ethnic Affairs v Montero (1991) 35 FCR 50.

[6] (1992) 176 CLR 1.

[7] Time did not run for events beyond the Executive's control such as delay in the supply of information or in finalisation of legal proceedings

[8] Migration Act 1958 s 54P(1).

[9] Lim, para 34, per Brennan, Deane and Dawson J

[10] Constitution s 51(XXIX).

[11] Lim, para 35.

[12] On the basis that the boats in which the appellants arrived had been burned by quarantine officers shortly after their arrival

[13] Migration Reform Act 1994 (Cth).

[14] Minister for Immigration and Multicultural and Indigenous Affairs v AI Masn [2003] FCAFC70.

[15] Sections 189, 196 and 198

[16] (2003] FamCA 451.

[17] Minister for Immigration and Multicultural and Indigenous Affairs v B and Anor [2004] HCA 20 A 246/2003

[18] Explanatory memorandum <http://scaleplus htm> at 28 September 2004

[19] Commonwealth, Parliamentary Debates, House of Representatives, 18 June 2003, 17764 (Philip Ruddock, Attorney-General).

[20] See for example Plaintiff S15712002 v Commonwealth [2003] HCA 2; (2003) 195 ALR 24.

[21] Transcript of Proceedings, MIMIA v B and Ors (H1gh Court of Australia, McHugh J, 30 September 2003) <http II htm> at 7 October 2004.

[22] Transcript of Proceedings, Applicants M276/2003, Ex parte-Re Woolley and Another ('M276) (H1gh Court of Australia, 3 February 2004) 2

[23] Ibid.

[24] Submissions of the Human Rights and Equal Opportunity Commission, Seeking Leave to Intervene at <http //www hreoc. html> at 29 September 2004

[25] The Full Federal Court found as follows in the matter of NAMU [2002] FCA 907 'If a punitive purpose is to be found, it must be discovered from the legislative structure of the regime for detention rather than from the consequences of the detention on individual detainees'

[26] M276, above n 22, 48.

[27] Transcript of proceedings, Behrooz & Ors v Secretary DIM/A & Ors, SHDB v Godwin & Ors, MIMIA v AI KhafaJI (High Court of Australia, 13 November 2003) In the AI Kateb/SHDB matter, Van Doussa J declined to follow the AI Masn decision and in the AI Khafaji matter, Mansfield J followed AI Masn. The Behrooz appeal requires

Processing Centre did not constitute escape from ‘immigration detention’ because the harshness of conditions resulted in Woomera ceas1ng to have the character of a detention centre

[28] The Commonwealth Government has maintained this 'purposive' argument in all the cases which raise the separat1ion of powers issue

[29] M Einfeld, 'Detention, Justice and Compassion' in M Crock (ed), Protection or Punishment The Detention of Asylum Seekers in Australia"' (1993) 41.

[30] For example, art 31 of the Refugees Convention prohibits state parties from imposing penalties on refugees on account of their 1llegal entry or presence.

[31] The Universal Declaration of Human Rights was adopted by Australia in 1948. It is a statement of aspiration and does not have strictly binding effect as a treaty, but forms the foundation for the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, which, together with the Universal Declaration form the ‘Universal Bill of Rights’ of Rights'

[32] See A Edwards, 'Tampering with Refugee Protection the Case of Australia', (2003) 5(2) International Journal of Refugee Law.

[33] S Gageler and A Glass, 'Constitutional Law and Human Rights' in D Kinley (ed), Human Rights in Australian Law (1998) 48

[34] Re Wooley, Ex parte Applicants M27612003 by their Next Friend GS [2004] HCA 49 (Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon. 7 October 2004), <http / html> at 12 October 2004.

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