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Groves, Matthew --- "Immigration detention vs imprisonment: Differences explored" [2004] AltLawJl 69; (2004) 29(5) Alternative Law Journal 228

Differences explored


Immigration detention provides an uneasy contrast to imprisonment It shares most, if not all, of the basic features of imprisonment forced detention; coercive treatment; and the denial of basic civil rights and personal autonomy. But people held in immigration detention have committed no crime, let alone been convicted by trial and sentenced to imprisonment. How can the law allow such people to be subjected to treatment that is comparable to, and often worse than, imprisonment?

This article examines the laws governing both criminal imprisonment and immigration detention, and the principles that distinguish them. The first section explores the preliminary issue of why the Commonwealth does not use prisons, or at least places that are formally described as prisons, to hold people in immigration detention. The next sections review the legal meaning of a prison and an immigration detention centre. The following sections compare several of the basic features of imprisonment and immigration detention, such as the purpose, possible duration and conditions of each form of detention. It will be suggested that there is little practical difference between many of the features of immigration detention and imprisonment and that those held in immigration detention are in many ways treated like prisoners even though they have neither been convicted of, nor charged with, a criminal offence.

Why are immigration detainees not normally held in prisons?

Immigration detainees are held in designated migration detention centres rather than prisons primarily because the federal government does not have its own prison system to call on. Many people are of course imprisoned under sentence for federal offences. Federal legislation creates an array of criminal offences by use of the Commonwealth's specific heads of constitutional power, but most of these offences are tried in state courts. This arrangement is achieved by operation of the Judiciary Act 1903 (Cth), 'which confers jurisdiction on state and territory courts to commit try and sentence federal prisoners. The Judiciary Act 1903 (Cth) is silent on the actual execution of sentences made under federal law, but the Constitution itself provides a clear source of power. Section 120 of the Constitution provides that 'Every state shall make provision for the detention in its prisons of persons accused or convicted of offences' against federal law, 'and for the punishment of persons convicted of such offences .. .' Section 120 creates a relationship whereby the Commonwealth is able, and the states are obliged, to house federal prisoners in state prisons. There is no doubt that the Commonwealth could create its own prisons, through the exercise of its incidental and executive powers granted under ss 51(xxxix) and 61 ofthe Constitution. But successive federal governments have clearly chosen to exploit s 120 and use state prisons rather than to establish a parallel federal prison system.

There are several reasons why this peculiar constitutional arrangement governing federal criminal procedures is relevant to immigration detention. First, it explains why there is no separate federal prison system or correctional statute to govern the management of prisons and the treatment of prisoners. Second, the limited scope of s 120 means that the Commonwealth cannot compel state prisons to handle immigration detainees. While the language of the section enables the Commonwealth to compel the states to hold its prisoners, it is clearly limited to people convicted or accused of breaking federal laws. Immigration detainees clearly do not fall within the class of prisoners that the Commonwealth can force the states to hold by use of s 120. Third, the absence of a federal legislative correctional scheme means that courts exercising federal jurisdiction have not developed any significant principles governing prisons and prisoners that might assist them in determining similar issues, such as proceedings involving immigration detention. The principles that govern immigration detention have developed in relative isolation from comparable areas of law such as correctional laws. It is interesting however, to consider the effect that the existence of a federal prison system might have on the federal judges who are responsible for interpreting the law governing mandatory detention and other aspects of the immigration system. If federal judges regularly presided over legal proceedings involving both convicted prisoners and immigration detainees they might find it difficult not to compare, perhaps with great disquiet, the two forms of confinement and consider the substantive issues that lie beneath the practice of placing immigration detainees in prison-like conditions.

There is a further reason why these constitutional arrangements are relevant to immigration detention. For a long time the states could, if necessary, be forced to house most immigration detainees in their prisons. Prior to the introduction of mandatory detention it was an offence for a person to enter or be found within Australian territory without official permission.

This offence could be applied to asylum seekers[1] and coul<fl have enabled them to be charged and held in state prisons (as persons accused of offences against a federal law). When this offence was repealed during the amendments that introduced mandatory detention, the Commonwealth unwittingly extinguished its power to farce the states to hold immigration detainees in prisons. The states have, however, continued to allow the Commonwealth to transfer some detainees to prisons.

Why are some immigration detainees held in prisons?

There are three categories of people held in immigration detention who may be placed in a prison. The first group are those subject to a criminal deportation order, which is the procedure by which the visa of a lawful non-citizen who has been convicted of serious criminal offences and sentenced to a year or more of imprisonment may be cancelled. A person cannot be imprisoned beyond their period of sentence, but people subject to a criminal deportation order may fall into immigration detention when their sentence expires. In some instances, these people continue to be held in prison but are held under a different authority, so they remain in the same conditions. The second category is people who are charged with a criminal offence, such as escape or assault. while in immigration detention. The third category comprises people who are not charged with an offence, but are deemed to be too 'disruptive' or 'uncooperative' to be held in immigration detention. The federal government has long maintained that people in this category are only transferred to a prison as a last resort.[2]

People who are subject to immigration detention but held in prisons occupy perhaps the most neglected part of the immigration detention system. When immigration detainees are placed in state prisons they almost completely disappear from public view. They form a relatively small portion of the prison population and usually go almost unnoticed within prisons. But the number of immigration detainees held in prison is not small, At 23 June 2004, 97 immigration detainees, almost 10% of all Immigration detainees. were held in prisons.[3] This number has remained virtually unchanged since the Commonwealth Ombudsman published a substantial report on immigration detainees held in prisons in 2001.[4]

When the Commonwealth Ombudsman delivered his most recent detailed investigation into immigration detainees held in prisons he made several compelling criticisms of the continued practice of holding immigration detainees in prisons. Firstly, he noted that many detainees held in prisons were held there for long periods. Almost half had been held in prison for more than nine months.[5] Secondly, although the Commonwealth suggested that the transfer of any detainee to a prison was an extremely serious step, it did not adequately monitor the treatment of detainees after their transfer. Thirdly, many detainees who suffered behavioural problems because of traumatic experiences before or during their time in immigration detention often experienced further problems by reason of their transfer to prison.

The Ombudsman recommended that prisons not be used to hold people under immigration detention except when detainees had been involved in serious criminal behaviour. He also repeated his previous recommendations that the federal government should develop a specialist detention facility that could house people who would otherwise be transferred to a prison.[6] This recommendation has not been accepted.

What is a prison?

Most people have a clear image of what constitutes a prison, but there is no clear legal definition of prison. Correctional statutes neither define nor explain the meaning of 'prison' but instead enable any place to be designated as a prison.[7] In practice, prisons vary almost as much as the people within them. The stereotypical image of prison as a Dickensian building with thick cold walls, dank cells and austere open spaces has become less common in recent times. Some older prisons remain in use, but many have been replaced by new buildings. Most prisons are hidden from public view by high walls, wire fences and security barriers, but many low security or open prisons lack these features and do not look like standard prisons. Most prisons are located in remote or isolated places, but some are located in or close to capital cities. Some prisons are managed by private corporations, while many others are managed by government agencies.

The true essence of prison is not the style or standard of the prison building, it is the treatment of the people within it The core elements of imprisonment are forced detent1on and coercive treatment Prisoners are held against their will and denied many of the basic civil rights enjoyed by all other citizens.[8] They are also unable to control the most basic-aspects of daily life: when they can eat, sleep or exercise; who they can call; who they can see; what they can read and what they can do to occupy the day. Prisoners are intentionally denied control over such basic matters because imprisonment is deliberately punitive. Legal and social commentators disagree sharply on the extent to which imprisonment should result in the loss of civil rights and personal autonomy, but there is wide agreement that imprisonment and its negative consequences can only be imposed on someone who has been tried and convicted in a fair hearing and sentenced by an independent judge.[9]

What is an immigration detention centre?

The statutory definition of an immigration detention centre is almost as vague as that used for prisons. Section 273 of the Migration Act 1958 (Cth) empowers the minister responsible for that Act to 'cause detent1on centres to be established and maintained.' The section defines a detention centre in the circular form as simply 'a centre for the detention of persons whose detention is authorised' under the Migration Act. The statutory definition of detention is equally vague. Section 5 of the Migration Act defines immigration detention in an open-ended manner that includes being 'in the company of and restrained by' immigration officers or being held 'in a detention centre established under [the] Act ...'[10] The same section defines 'detain' to mean 'to take into immigration detention ... or keep, or cause to be kept in immigration detention ...' The section extends the meaning of immigration detention to almost every imaginable means by which a person can be held or controlled.

The net effect of these provisions was considered recently by the High Court in the Behrooz case.[11] Behrooz and several others held in immigration detention escaped. They were eventually recaptured and charged with the offence of escaping from immigration detention. Behrooz and the others intended to defend the charge by arguing that the conditions of their detention were so harsh that they were unlawful and that, because of this, the regime they were held under was not 'immigration detention' as permitted by the Migration Act. The reasons for which a majority of the Court rejected that argument are explained below, but at this point it is worth noting that all members of the Court except Kirby J acknowledged that the Act did not define the meaning or character of immigration detention, either expressly or by implication, but they did not think that the absence of such detail affected the lawfulness of the detention in any way.[12] On this view, an immigration detention centre is whatever the Migration Act says it is because the bland, almost empty, definition contained in the Act can be easily satisfied. If almost anything may satisfy the open-ended statutory definition of an immigration detention centre, it is almost impossible to prove that a designated place is not an immigration detention centre. This reasoning gives the Commonwealth no incentive to provide more legislative detail on what does and does not constitute immigration detention.

Features of immigration detention and imprisonment

If the legislation governing both prisons and immigration detention centres allows for almost any facility to be deemed one such place or the other, there is clearly no inherent legal distinction between the two. The only difference may be the name with which either is designated. But does the same overlap extend to the principles that underlie each form of detention?

The legal power to hold people

There is a strict common law presumption that every imprisonment is illegal unless there is clear legal authority for the person's detention.[13] This presumption is founded on the belief that personal liberty -the ability to move freely through society and life-is the most basic freedom of all, and one which cannot be restricted except by very clear legal authority. In most cases of imprisonment, this common law rule does not present a problem to prison offiCials because the order of a sentencing court usually provides sufficient authority to hold a person for the period specified by the order of the court.[14] For this reason, sentencing orders provide both the source and limit of authority to imprison a person. A prison official or anyone else who holds a person without clear authority from a court to do so has no ground to defend an application for habeas corpus to release the person, and will almost certainly also be liable for damages for false imprisonment.[15]

Immigration detention operates on an entirely different basis. The power to place people in immigration · detention is not dependent on a judgment made by a jury or a court. It is enough that the person falls within the statutory description of 'an unlawful non-citizen'.[16] Unlike an order of imprisonment issued by a sentencing court, the characterisation of a person as an unlawful non-citizen is not subject to any time limitation. The provisions governing mandatory detention require that a person be detained until one of three possible events occur: removal, deportation or the granting of a visa.[17] The mandatory nature of these requirements me ns that the individual circumstances of a person are irrelevant to his or her placement in detention. In the Al-Kateb case, Gleeson CJ conceded that a person could '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.'[18] It follows that the personal characteristics and circumstances of a person are not required to be considered, indeed they cannot be, before a person is placed in immigration detention. The absence of any requirement to consider the individual circumstances before placing a person in immigration detention highlights the arbitrary nature of this form of detention. By contrast, a court considering whether or not to impose a sentence of imprisonment examines an individual's personal circumstances in great detail before deciding whether the person should be imprisoned and, if so, for how long.

The purpose of detention

When a court imposes a sentence of imprisonment, it simply orders the maximum and minimum periods for which a prisoner can be detained. An order for a sentence of imprisonment does not usually specify the reason why a person is to be punished. The absence of detail on this important issue reflects a wider confusion in criminology. For much of the twentieth century prisons were influenced by the rehabilitative model of justice. According to this doctrine the aim of all forms of punishment was to assist the improvement and eventual change of prisoners. As the evidence of the failure of this model mounted, a more punitive model of justice gained prominence. During the 1980s many conservative state governments were elected on the basis of 'law and order' platforms, part of which involved the harsh treatment of prisoners.[19] At the same time, the rehabilitative model was not entirely discarded. The more punitive model itself became prominent as the role of prisons and imprisonment became increasingly unclear. There is, however, widespread support for the view that people are not sent to prison for punishment, but rather they are sent to prison as punishment.

The High Court has accepted that one crucial feature if immigration detention is that it is not intended to be punitive. In Lim's case[20] the Court rejected an early challenge to the policy of mandatory detention that argued that the practice infringed the separation of powers embodied in chapter Ill of the Constitution because detention without the benefit of a trial or court order for imprisonment was an invalid exercise of judicial power by the executive. That High Court held that the Commonwealth's powers over aliens and immigration provided a wide source of authority to enact legislation governing non-citizens.[21] Importantly, the Court held that a law for the detention of non­ citizens did not infringe chapter Ill so long as the purpose of the detention was not punitive. The Court held that the purpose of the law 'took its character' from the constitutional power to governing aliens. The Court held that detention would not be regarded as punitive provided it was, 'reasonably capable of being seen as necessary for the purposes of deportation or for an application for entry permit to be made and considered'.[22]

The High Court recently confirmed this view in Al-Kateb v Godwin.[23] AI-Kateb was a stateless person of Palestinian origin who had unsuccessfully sought a protection visa. He eventually exhausted all avenues of appeal but could not be removed from Australia because his status as a stateless person made it extremely difficult, if not impossible, for Australia to make arrangements with other countries to repatriate him. The Court considered the increased impact that immigration detention might have as it lengthened. Hayne J, with whom Callinan J agreed, frankly conceded that immigration 'detention could easily be equated with punishment because detention centres had 'many, if not all, of the physical features and administrative arrangements commonly found in prisons ...'[24]

Hayne J reasoned that immigration detention was not a form of punishment in part because it did not contain all of the necessary requirements of punishment. He drew on Hart's classic definition of punishment. which is that the measure must contain the following elements:

• it must involve pain or other consequences normally considered unpleasant

• it must be for an offence against legal rules

• it must be imposed on an actual or supposed offender for his or her offence

• it must be intentionally administered by people other than the offender

• it must be imposed and administered by an authority constituted by the legal system against which the offence is committed.[25]

Hayne J concluded that immigration detention was not imposed for an offence (element 2) and that preventing a person from entering Australia was not truly punitive. He did not attribute this conclusion to one of Hart’s elements, but instead seems to have made a more general assertion that the exclusion of detainees from a society they have neither entered, nor been entitled to enter, was not punitive in any real sense. This reasoning contains a technical and substantive flaw. The technical flaw is that the immigration detention is actually triggered by an offence against legal rules (rule 2). Detainees attract the status of 'unlawful non-citizens' by seeking to enter Australia in contravention of the formal requirements of the Migration Act. The fact that this non-compliance is not formally described as an 'offence' under the Act does not negate the fact that a person is deemed an unlawful non-citizen by reason of their failure to comply with a law and then becomes liable to adverse treatment for that reason. That seems an 'offence against legal rules' in the true sense. It is equally unconvincing to doubt whether it is punitive to deny a person the right to enter or remain in Australia. Immigration detention involves much more than this. It places people in harsh, isolated conditions for extended periods.

A more substantial flaw arose in Hayne J's reasoning from the way in which he characterised the exercise of the power to order mandatory detention. The majority of justices held that immigration detention was not punitive because it drew its character from the administrative reasons for which it was imposed (to make a person available for removal from Australia).[26] So long as this remained the stated purpose of a person's detention, the character of the detention did not change even if the detention continued for very long periods such as the three and a half years endured by AI-Kateb.

The dissenting justices took a more holistic view of the effect that immigration detention might have. Kirby J did not accept that a formal distinction between detention and punishment existed, noting that a power of detention could transform into one of punishment 'in a comparatively short time'.[27] Gummow J pointed out that many measures imposed by either the courts or the executive could contain a mixture of punitive and non­ punitive traits. For example, a sentence imposed under criminal law could contain many punitive features but be made for other purposes such as the protection of society.[28] For this reason, he held that the issues before the Court were not greatly assisted by any attempt to label treatment as 'punitive' or 'non-punitive'.

The main difference in the reasoning of the Court is one of form as opposed to substance. The majority justices were satisfied that, as long as a person was detained for the stated purpose of being held and available for their removal, the detention was made for a non-punitive purpose and this purpose continued for as long as the Minister intended to attempt to remove the person. The minority justices looked beyond the purported purpose of the detention to consider the effect that it might have over time. Importantly, they assumed that the character of detention could change with time. That reasoning has the potential to impose a significant limitation on the power of the executive to detain people for long periods in the absence of a judicial order, such as a sentence of imprisonment, to authorise that detention.

Conditions of detention and minimum standards at common law

Minimum standards for prison conditions do not exist at common law. The common law traditionally operates in a 'negative' manner, in the sense that it enables people to do as they wish unless there is a clear legal rule to the contrary. When this principle is applied to prison conditions it has been taken by the courts to mean that the lawful authority given to prison officials to hold prisoners enables them to be held in any conditions at all. In several recent cases prisoners sought their release via applications for habeas corpus, arguing that their. conditions of confinement were so bad that their imprisonment became unlawful. Most of these cases have involved prisoners held in harsh conditions of segregation. The courts in England and New Zealand have rejected this argument, holding that the proper remedy for intolerable prison conditions is not an order for release, but an order to remedy the conditions.[29]

The New South Wales Court of Appeal showed a similar reluctance to enable prisoners to contest the legality of their detention when faced with this issue several years ago.[30] The continued refusal of courts to accept the possibility that intolerable conditions might render imprisonment unlawful has meant that they have never had to consider the substantive issues that underpin the argument, such as what basic standards should imprisonment entail and when prison conditions reach the point at which they can no longer be justified.

A plea of intolerable conditions was also raised in the Behrooz case. As explained above, Behrooz and several other people held in immigration detention attempted to defend a charge of escaping from immigration detention by arguing that the conditions under which they were held were so harsh that they did not constitute 'immigration detention' for the purposes of the Migration Act or a charge of escaping from immigration detention. All members of the Court except Kirby J flatly rejected the submission that the existence of intolerable conditions, whatever that might mean, could change the character of immigration detention from lawful custody to unlawful custody. The majority justices accepted that the text of the Migration Act neither explained the qualities that were required or expected in migration detention nor provided any basis to conclude that the lawfulness of detention could be affected by the conditions of the detention.[31]

On this view, the absence of statutory guidance about the nature of immigration detention simply meant the migration officials had few if any guidelines to contravene. As Callina JJ pointedly stated, 'Conditions of detention cannot invalidate the grant and exercise of power to detain in immigration detention'.[32]

Statutory minimum conditions

The statutory guidance on prison conditions is equally slender. Most Australian jurisdictions have no clear or binding statutory guidelines governing the minimum standards required for prisons. Victoria and Tasmania have enacted a statutory charter of prisoners' rights.[33] Both charters guarantee some basic elements of a prisoner's treatment, such as the right to be in open air for at least an hour each day, weather permitting, if the prisoner does not engage in outdoor work; the right to be provided with clothing that is suitable for the climate and any work that the prisoner must do; the right to be provided with food adequate to maintain the prisoner's wellbeing and health; and the right of access to reasonable dental care. While these charters appear useful, they are subject to important limitations. In particular, neither contains a means for prisoners to enforce the rights, or any form of penalty for prison officials who fail to grant any of the specified rights. It is worth noting that the Victorian charter was enacted almost 20 years ago but has never been successfully invoked by a prisoner as a source of enforceable rights in a legal proceeding. It is also worth noting that in both Victoria and Tasmania, and all other Australian jurisdictions, the most important aspects of prison conditions are not codified in law. Matters such as the standard of buildings within which prisoners are held and the standard of services within these buildings, such as heating, cooling and plumbing are not the subject of legal regulation. Correctional statutes simply do not contain any clear indication of the physical qualities required of prison buildings.[34] The absence of such details mirrors the vague statutory definition of prisons. Just as the meaning of prison is not explained in any detail, neither are its required or expected physical qualities.

The physical design or qualities of immigration detention centres are similarly vague. The Migration Act contains no clear detail on how people held in immigration must or can be treated, and no clear provisions governing the physical qualities of detention centres. The Department of Immigration and Multicultural and Indigenous Affairs has formulated the Immigration Detention Standards, which- provide general guidance on the quality of care and life that is expected to be provided in immigration detention centres .[35] These standards provide at least some information on minimum standards for the provision of services such as education and sporting programs, and the treatment of detainees such as ensuring that detainees have important issues explained in a language that detainees understand. The standards are binding in the sense that they are incorporated into all contracts for the management of immigration centres, but neither the standards nor the contracts to which they are attached include any mechanism for detainees to directly enforce any of the immigration detention standards.[36]

In the Behrooz case, the High Court did not appear at all troubled by the absence of statutory detail governing standards for immigration detention. Hayne J stressed that, once it was accepted that the Act allowed for mandatory detention by reference to the deemed status of a person as an unlawful non-citizen, '... inquiry about the conditions of detention must be irrelevant'. What the Act fastens on is the place of detention, not the conditions experienced while at that place'.[37] One regrettable aspect of such reasoning it that it essentially precludes any examination of the physical qualities of immigration detention. This in tum encourages a narrow legal focus on the provisions that authorise detention rather than the result they achieve. Another undesirable consequence of this approach is that it pays no regard to the Immigration Detention Guidelines[38] published by the Human Rights and Equal Opportunity Commission (HREOC) which provide simple and valuable guidance on desirable standards in detention centres.


One clear theme in the reasoning of the High Court justices who upheld the various aspects of the policy of mandatory detention is that the judges have approached the issue as a relatively narrow exercise of statutory interpretation and thereby avoided a holistic examination of the regime of treatment before the Court. This approach enabled the judges to avoid confronting the many obvious similarities between immigration detention and imprisonment Kirby J issued a vigorous dissenting opinion in each of the recent cases before the High Court, and did so largely by use of his strongly held view that the courts can and should draw on international law to interpret and resolve issues of constitutional interpretation. His reasoning did not attract the support of other members of the Court and, in fact, drew blistering criticism from McHugh J.[39]

These most recent decisions must surely mark a decisive point in the standing of mandatory detention, at least from a legal view. Although the decisions confirm the existence of sharp differences on key issues, the policy of mandatory detention appears secure from any significant legal attack because the High Court rejected attacks on immigration detention based on both the conditions and length of detention. In the Behrooz case all members of the Court except Kirby j rejected the suggestion that harsh conditions within immigration detention could affect the lawfulness of that detention. This reasoning enabled the Court to avoid any analysis of the obvious similarities between the conditions imposed in immigration detention and those imposed as punishment on people convicted of criminal offences.

In AI-Kateb a narrow majority of the Court upheld the validity of laws that enable the continued detention of people held in immigration detention awaiting their removal, but with little real prospect that they could be removed in the near future. Although three members of the Court held that the continued detention of a person in such circumstances was unlawful, this result casts less doubt on the continued use of mandatory detention than first appears. Gleeson CJ and Gummow J each dissented but did so by use of the same narrow focus on the statutory powers that was used by the majority. They found that the existing detention provisions could not, on their precise wording, support the prolonged detention of the class of people who have been held for an exceptionally long time, but they did not doubt the fundamental valid1ty of mandatory detention.

This outcome might invite the Commonwealth to refine its powers over mandatory detention to remove the source of doubt that influenced the dissenting justices in AI-Kateb. But what would be the point of another round of amendments to fortify the already strict laws for mandatory detention? The most recent challenge to the validity of the policy of mandatory detention has now come from people who are seeking to leave Australia. This bitter irony provides a compelling argument against further legislation to tighten the system of Immigration detention. Asylum seekers can now remain trapped in immigration detention irrespective of whether they are trying to enter or leave Australia. Surely the architects of the policy of mandatory detention could not have wished for more.


[*] MATTHEW GROVES teaches law at Monash University Law School.

© 2004 Matthew Groves


[1]. Though must be noted that the Human Rights and Equal Opportunity Commission (HREOC), and many commentators, have forcefully challenged the notion that people who arrive in Australia with the intention of seeking asylum commit legal conduct. In a major report on immigration detention, HREOC referred to immigration detainees as people 'who come to Australia without authority': HREOC. Those who've come across the sea Detention of unauthorised arrivals (11 May 1998) <> at 7 October 2004.

[2] See the policy statement governing the transfers from immigration detention to prison: Department of Immigration and Multicultural and Indigenous Affairs [DIM IA] Migration Senes Instruction 244-Transfer ofDetainees to State Prisons.

[3] DIM IA. Fact Sheet No 82. The Department does not actually acknowledge that these people are held in prisons, but rather notes that this number of people are held in 'other faci1ities', the status of which is not described

[4] Commonwealth Ombudsman, Report of Own Motion Investigation into Immigration Detainees held in State Correctional Facilities (2001) 3 The Ombudsman's earlier report Investigation of Complaints Concerning the Transfer of Immigration Detainees to State Prisons (1995) led to the development of new rules governing transfers of immigration detainees to prisons. The Ombudsman has also investigated numerous complaints from individuals held in immigration detention who are held in state prisons.

[5] The Ombudsman noted that one person held in prison by reason of a criminal deportation order was initially sentenced to three and a half years imprisonment, but had been held for a further three years at the time of the Ombudsman's investigation: Commonwealth Ombudsman, above n 4, 3

[6] Ibid 14-15.

[7] See, eg, Corrections Act 1986 (Vic) ss 3, 10-11 Crimes (Administration of Sentences) Act 1999 (NSW) These provisions each state that a 'prison' means any place that is declared or proclaimed as such

[8] In Dugan v Mirror Newspapers Ltd (1978) 142 CLR 583 the High Court held that medieval doctrine of 'Civil death' was part of the common law of Australia The doctrine prevented a prisoner convicted of an indictable offence from commencing or maintaining legal proceedings. The doctrine was abolished by statute See, eg, Felons (C, /

Proceedings) Act 1981 (NSW) The common law now accepts that prisoners retain all the civil rights held by other citizens except those who are removed on imprisonment either expressly or necessarily by implication Raymond v Honey [1983]1 AC 1, 10, McEvoy v Lobban (1988) 35 A Crim R 68, 71; Kuczynski (1994) 72 A Crim R 568, 589 per Owen J (WA FC). Despite changes to the common law, it remains hard for prisoners to exercise even basic civil rights. See, eg, the analysis of prisoners' voting in G Orr, 'Ballotless and Behind Bars. The Denial of the Franchise to Prioners' [1998] FedLawRw 3; (1998) 26 Federal Law Review 55

[9] See, eg, Chu Kheng Lim v Minister for Immigration Local Government and Ethnic Affairs (1992) 176 CLR 1 where the High Court held that as a general rule, imprisonment for federal offences could only be imposed by courts exercising the judicial power of the Commonwealth. There are some narrow exceptions to this general rule, such as imprisonment imposed by military courts and the power of the Houses of Parliament to imprison people for the offence of contempt of Parliament.

[10] This definition of detention also include being held in any remand centre, prison or police lock-up.

[11] Behrooz v Secretary, Dept of Immigration and Multicultural and Indigenous Affairs [2004] HCA 36.

[12] Behrooz [2004] HCA 36 [21] (Gleeson CJ), [53] (McHugh, Gummow and Heydon nJ, [223] (Callinan J)

[13] Liversidge v Anderson [1941] UKHL 1; [1942] AC 206, 245.

[14] Censon v Holland [1993]1 VR 509, 512

[15] R v Governor of Brockhill Prison, Ex parte Evans (No 2) [1998]4 All ER 993.

[16] This term is defined in the apparently circular manner of 'A non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen' Migration Act s 14(1). The term can only be understood by reference to the clear divide the Act draws between 'lawful' and 'unlawful' non-citizen. Lawful non-citizens are defined as non-citizens with a visa, while 'unlawful non-citizens' are those without visas

[17] Migration Acts 196(1)

[18] Al-Kateb v Godwin [2004] HCA 37 [12]

[19] See D Brown, 'Putting the Values Back into Punishment' (1990) 15 Legal Service Bulletin 239

[20] Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs ('Lim’) (1992) 176 CLR 1

[21] Constitution s 51(xix), (xxvii).

[22] Lim (1992) 176 CLR 1, 33 (Brennan, Deane and Dawson JJ).

[23] [2004] HCA 37.

[24] Ibid [264].

[25] HLA Hart, Punishment and Responsibility (1968) p.5.

[26] AI-Kateb v Godwin [2004) HCA 37, [33] (McHugh J), [225-[231] (Hayne J, Heydon J agreeing), [299] (Callinan J).

[27] lbid [153].

[28] lbid [137]-[138].

[29] R v Deputy Governor of Parkhurst Prison, Ex parte Hague [1992]1 AC 58, Bennett v Superintendent Rimutaka Prison [2001] NZCA 286; [2002] 1 NZLR 616.

[30] Prisoners A to XX inclusive v NSW (1995) 38 NSWLR 622 The court did not finally rule on the availability of habeas corpus.

[31] Behrooz [2004] HCA 36 [53]-[57] (McHugh, Gummow and Heydon JJ), [166] (Hayne J), [223] (Callinan J)

[32] Ibid [223]

[33] Corrections Act 1986 (V1c) s 47(2), Corrections Act 1997 (Tas) s 29 These statutory charters are examined 1n detail 1n M Groves, 'International Law and Australian Prisoners' [2001] UNSWLawJl 11; (2001) 24 University of New South Wales Law Journal 17, 21-3.

[34] Some correctional legislation enables prison officials to devise standards to govern private prison managers. The Crimes (Administration of Sentences) Act 1999 (NSW) s 248(1) requires the Commissioner of Corrective Services to prepare a statement setting out 'minimum standards in relation to the exercise of any functions' by a private prison operator. The Corrections Act 1986 (V1c) s 9(2)(b) also requires that agreements governing privately managed prisons must provide 'ob1ect1ves and performance standards in relation to the provision of services'. Such provisions enable, but do not require, governments to develop standards for prisons. Such powers contain no mechanism for the involvement of prisoners in the development or enforcement of any standards. On the enforcement of private prison agreements by prisoners, see J Davies, 'The Effect of Prison Privatisation on the Legal Position of Prisoners' (1998) 6 Australian Journal of Administrative Law 34

[35] The standards are located at <> at 1 October 2004

[36] Detention Centre Standards are only one of many documents incorporated into contracts The operators of immigration detention centres are also required to comply with all migration legislation, all policies, instructions, directions and procedures issued by the Department of Immigration and Multicultural and lndigenous Affairs, all Commonwealth. state and territory laws relevant to the detention, care and security of detainees

[37] Behrooz [2004) HCA 37 [176]

[38] HREOC, Immigration Detention Guidelines (2000)

[39] In the decision of AI-Kateb [2004) HCA 37 McHugh J devoted almost as much of his judgment to criticising the reasoning of Kirby J as he did to explaining his own decision

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