Developments Correspondents

Daphne Barak-Erez (Israel), Rodrigo Correa (Chile), Mark Elliott (United Kingdom), Simon Evans (Australia/New Zealand), Tania Groppi (Italy), Susi Dwi Harijianti (Indonesia), Raj Kumar (India/Asia), Christine Langenfeld (Germany), Jibong Lim (Korea), Wanda Mastor (France), Shigenori Matsui (Japan), Anashri Pillay (South Africa), Beate Rudolf (European Union/European Court of Human Rights), David Schneiderman (Canada), Benny Tai (China/Hong Kong), Caroline Taube (Scandinavia/Baltic States), Li-ann Thio (Singapore), Alexei Trochev (Russia/CIS), Renata Uitz (Hungary)

Australia: Mandatory administrative detention

Australia has neither a constitutional bill of rights nor a statutory bill of rights.¹ Instead, it relies on a federal division of legislative powers, an entrenched separation of powers at the federal level, presumptions of statutory interpretation, and the ballot box to provide constraints on the exercise of governmental power and protection for individual liberty. This note considers how effective the legal constraints are in the context of four recent decisions² by the High Court concerning the mandatory administrative detention of asylum seekers under Commonwealth law. These cases provide an interesting counterpoint to decisions and pending cases in other jurisdictions in which questions concerning administrative detention have arisen in the context of the constitutional protection for fundamental rights.³

Abstract

Detention of asylum seekers—indefinite detention—detention of children—detention in inhumane conditions—interpretation of authorizing legislation in accordance with human rights principles—constitutional validity of authorizing legislation—extent of legislative power—breach of separation of powers

1. Mandatory detention of unlawful noncitizens

Under the Migration Act 1958, noncitizens who enter or remain in Australia without the necessary visa must be detained by officers of the executive until they are granted a visa or are removed from Australia. The mandatory detention regime was introduced in 1992 to act, in part, as a deterrent to asylum seekers who arrive in Australia by boat without visas and make applications for protection under the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol.⁴ Asylum seekers are not detained if they arrive in Australia with a valid visa. In general, they are entitled to a bridging visa that enables them to live in the community until their claims and appeals are finally determined.⁵

2. Challenges to mandatory detention

The predecessor of the current mandatory detention regime was unsuccessfully challenged in 1992 in Chu Kheng Limv. Minister for Immigration, Local Government and Ethnic Affairs.⁶ The High Court held that the Commonwealth's legislative power with respect to aliens⁷ and immigration⁸ supported laws that gave the executive the power to detain aliens in custody for the purposes of investigating and deciding on their applications for visas and for the purposes of expelling or deporting them. If detention was limited to these purposes, it was nonpunitive and did not breach the separation-of-powers doctrine.⁹

These principles were not directly challenged in the four new cases concerning the current mandatory detention regime¹⁰ that came before the High Court in 2004.

The first two cases attempted to distinguish Lim by focusing on the potentially indefinite duration of immigration detention. Al-Kateb v. Godwin¹¹ and Minister for Immigration and Multicultural and Indigenous Affairs v. Al Khafaji¹² concerned men whose claims to asylum had been rejected and who, in turn, had requested the relevant officials that they be removed from Australia. The officials thereupon came under an obligation to comply “as soon as reasonably practicable.”¹³ The men were still in Australia because it had not been possible to reach agreement with other countries to receive them. (Al-Kateb is a stateless Palestinian; Al Khafaji is an Iraqi who has lived in Syria since he was a child.) Moreover, the trial judges, in their respective cases, found that they were not likely to be removed in the reasonably foreseeable future.¹⁴ At the time of the High Court decisions, Al-Kateb had been detained for more than two years since his request for removal; Al Khafaji had been detained for three and a half years.¹⁵

The third case, Re Woolley; Ex parte Applicants M276/2003 (by their next friend GS),¹⁶ concerned Afghani children whose parents had brought them to Australia in 2001. They were held in immigration detention while their father's challenge to the denial of his application for a protection visa proceeded through the Australian courts. As Chief Justice Gleeson observed, “[y]ears may pass while rights of review or appeal are pursued.”¹⁷ The challenge focused on the children's incapacity as minors to bring their detention to an end by requesting that they be removed from Australia and on the particularly harsh effects of detention on children.

The fourth case focused on the conditions of immigration detention. The appellant in Behrooz v. Secretary of the Department of Immigration and Multicultural and Indigenous Affairs¹⁸ was charged with escaping from immigration detention. He argued, by way of defense, that the conditions in which he was detained made the detention punitive and therefore unlawful.

Each of these challenges to the mandatory detention regime was unsuccessful. A 4–3 majority in both Al-Kateb and Al Khafaji held that the Migration Act authorized potentially indefinite detention, if removal was not reasonably practicable.¹⁹ The High Court unanimously held in Re Woolley that the regime validly applied to children. And a 6–1 majority in Behrooz held that the conditions in which a person is held in immigration detention do not affect the lawfulness of that detention and are irrelevant to a charge of escaping from detention.

2.1. Legislative authority for executive detention

The first layer of protection of rights in Australia is the limited scope available to the executive to act without statutory authority. In Lim, five justices remarked that, at least as a general principle, the executive may not detain anyone in Australia without statutory authority.²⁰ However, a majority of the federal court in Ruddock v. Vadarlis held that, even without statutory authority, the executive could detain noncitizens for the purpose of preventing them from entering Australia or of removing them from Australia.²¹ Noncitizens thus appear to be an exceptional “other” who do not attract the protections afforded to citizens, in part, at least, because of the importance attached to the power of exclusion as part of the process of definition of national identity.²²

2.2. Statutory interpretation: Basic rights

The second layer of rights protection consists of the principles that courts apply when interpreting the authority given to the executive by statute. In Al-Kateb, Chief Justice Gleeson said:

Courts do not impute to the legislature an intention to abrogate or curtail certain human rights or freedoms (of which personal liberty is the most basic) unless such an intention is clearly manifested by unambiguous language, which indicates that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment.²³

This principle is normative, not empirical, and does not overtly distinguish between citizens and noncitizens: “In a free society, under the rule of law, it is an expression of a legal value, respected by the courts, and acknowledged by the courts to be respected by Parliament.”²⁴ In Al-Kateb and Al Khafaji, the three dissenting justices (Chief Justice Gleeson, and Justices Gummow and Kirby) held in separate judgments that these principles required a narrow interpretation of the mandatory detention regime. According to these justices, where a person was held in immigration detention for the purpose of removing them from Australia, the detention was no longer authorized by the Migration Act when it proved impossible to carry out that purpose.²⁵ Chief Justice Gleeson observed, in particular, that it was unlikely that the Parliament intended to provide for indefinite detention as part of a scheme for mandatory detention, where there was no discretion allowing the “operation [of the regime] to be related to the circumstances of individual cases.”²⁶ According to these justices, therefore, Al-Kateb and Al Khafaji were unlawfully detained and had to be released unless and until it was reasonably practicable to remove them from Australia.

However, as noted, this was a minority position. The majority in Al-Kateb and Al Khafaji held that the statutory language was too clear to admit any room for these rights-oriented interpretive principles.²⁷ The relevant provisions of the Migration Act required that the men be kept in immigration detention until they were removed from Australia, even if this meant that their detention was indefinite. In Re Woolley, all members of the Court held or assumed that there was no room for the application of these principles to exempt children from the mandatory detention regime.²⁸ And in Behrooz, all members of the Court other than Justice Kirby held that the conditions of detention did not alter the fact that it was “immigration detention,” as defined in the act, from which Behrooz escaped.²⁹ That was not to say that the act authorized detention in brutal conditions. But, if any such brutality had occurred, Behrooz would (while remaining in detention) have had access to administrative law and private law remedies in tort.³⁰ Justice Kirby, in dissent, decried the “absurd proposition”³¹ that such administrative law and private law remedies excluded Behrooz's right to challenge the lawfulness of his detention as a defense to the charge of escape.

2.3. Statutory interpretation: International law

In Al-Kateb, Justice Kirby noted that the “abiding values” of international human rights law reinforced his conclusion that the statutory regime did not authorize indefinite detention.³² This reliance on international law drew a sharp response from Justice McHugh, who observed that the sheer volume of international law made it implausible to suppose that legislators intended that their enactments “had a meaning inconsistent with the meaning they thought [they] had because of a rule of international law which they did not know and could not find without the assistance of a lawyer specializing in international law.”³³ Nonetheless, he was unwilling to abandon the firmly established rule of construction that international law can be relevant to the interpretation of ambiguous legislation. However, it appears from these and other cases that the majority of the current High Court will continue to eschew Justice Kirby's internationalism and to retreat from the broader relevance attributed to international law by the High Court under Chief Justice Mason in the 1990s.³⁴

2.4. International law and constitutional interpretation

This is even clearer in relation to constitutional interpretation. Justice Kirby expressed the view that the Constitution should be interpreted in accordance with contemporary international law and, in particular, the instruments declaring “universal human rights and fundamental freedoms.”³⁵ Justice McHugh firmly rejected this position as contrary to authority³⁶ and principle.³⁷ The rule that statutes should be interpreted by reference to international law had no application to a Constitution that operated as a source of legislative power³⁸ and could only be amended by referendum,³⁹ not by judicial decisions that import rules of international law as constraints on (or additions to) Commonwealth legislative power.⁴⁰

2.5. The scope of commonwealth legislative power⁴¹

The result is that for all the justices except Justice Kirby the scope of Commonwealth legislative power with respect to aliens and immigration is determined without reference to the protection of human rights in international law. Lim remains authoritative on the scope of the Commonwealth's legislative powers: laws providing for the mandatory detention of aliens are constitutional, provided that the purpose of the detention is limited, as in that case. The detention cases do suggest an extension to the permissible purposes of detention, namely, to include the exclusion of aliens from the Australian community.⁴² Justice Gummow disagreed with that extension, saying that the Commonwealth's powers did not “support a system of segregation [of aliens] by incarceration without trial for any offence and with no limit of time or a limit fixed only by an executive opinion as to the ultimate possibility of their removal from Australia.”⁴³

Nonetheless, it appears that the majority holding further dilutes the protection that the federal division of legislative powers provides to aliens. This is particularly clear in the judgment of Justice McHugh in Al-Kateb. He observed that mandatory detention laws “deal with the very subject of aliens” and “are at the centre of the power, not at its circumference or outside the power but directly operating on the subject matter of the power.”⁴⁴ The Parliament did not have to rely on its incidental powers to support such laws. This was critical to his finding that the mandatory detention regime was valid: “If the power to detain aliens for the purpose of deportation was merely an incidental power, it would be impossible to justify the detention of an alien once it appeared that deportation could not be effected or could not be effected in the foreseeable future.”⁴⁵

This limitation on incidental powers means, Justice McHugh observed in Re Woolley, that, in most “other” (that is to say, nonmigration) contexts,⁴⁶ Commonwealth laws that authorize detention by the executive will not be valid.⁴⁷ The Court (and not the Parliament or executive) determines the sufficiency of the connection between such laws and a substantive head of power,⁴⁸ and the Court will assess the sufficiency of the connection bearing in mind the effect of the law on individual rights.⁴⁹ As a result, in these nonmigration contexts, for Justice McHugh at least, the substantive constraint on laws providing for detention will be the limited scope of the Commonwealth's legislative powers. Justice Gummow, by contrast, would have given those legislative powers a broader scope and argued, instead, that the invalidity, if any, of laws permitting administrative detention in nonmigration contexts would derive from the entrenched separation-of-powers doctrine.⁵⁰

2.6. The separation of powers

Whatever the better view may turn out to be in nonmigration contexts, the separation-of-powers doctrine was the focus in the instant cases. In Lim, Justices Brennan, Deane, and Dawson (with whom Chief Justice Mason agreed) argued that, at least for citizens, involuntary detention “is penal or 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.”⁵¹ Accordingly, except in certain recognized categories (such as pretrial detention, quarantine, and detention of mentally ill people), executive or nonjudicial detention of citizens violates the entrenched constitutional separation of powers.⁵² In other words, the approach of the majority in Lim identified a constitutional immunity qualified by certain limited categories of exception.

Even before the instant cases, some members of the Court had expressed doubts about this approach.⁵³ Following these cases, those doubts have assumed greater prominence,⁵⁴ and there is ostensible majority support for the rather different approach. The validity of law providing for nonjudicial detention is to be determined by examining the purpose of the detention.⁵⁵ If the purpose of detention is nonpunitive (for example, if it is purely protective or, as in the current context, if it is to segregate aliens while their claims for entry are processed and to remove them if not granted entry), executive detention does not contravene the requirements of the separation of powers.⁵⁶ Where detention moves beyond these purposes and involves a punitive or otherwise impermissible purpose, it contravenes the requirement that any deprivation of liberty be imposed for punitive purposes only by courts and that it be incidental to the adjudication and punishment of criminal liability.⁵⁷ The difficulty with this approach, of course, lies in identifying permissible purposes in such a way that they do not amount simply to a list of exceptional categories as described above.

Prior to the instant cases, Lim also appeared to stand for the proposition that a law providing for nonjudicial detention of noncitizens did not infringe the separation of powers so long as it was “reasonably appropriate and adapted” (or proportionate) to a nonpunitive purpose.⁵⁸ In Re Woolley, Justice McHugh attempts to demonstrate a consensus emerging from the instant cases that proportionality is not relevant. The question, according to Justice McHugh, is simply whether the law has a nonpunitive purpose.⁵⁹ Notwithstanding Justice McHugh's analysis of the judgments, the question probably remains open.⁶⁰ What is clear, however, following the instant cases, is that a law does not have an impermissible punitive purpose simply because it has a particularly harsh or disproportionate effect on particular individuals.⁶¹

In the end, in each of these cases, the majority regarded the mandatory detention regime as serving a permissible or nonpunitive purpose, even in its application to children. However, in Al-Kateb and Al Khafaji, dissenting Justices Gummow and Kirby said, by way of dicta, that indefinite detention based on the opinion of the executive government that the detention served the purpose of making the detained men available for removal was invalid;⁶² and in Behrooz, Justice Kirby, again dissenting, concluded that the complainant should have the opportunity to seek to establish that the conditions of his detention were unconstitutionally punitive.⁶³

3. Assessment: Rights and constitutional formalism

3.1. Rule of law

The rule of law has long been recognized as a constitutional assumption in Australia.⁶⁴ It is enforced by judicial review of legislation and executive action and, typically, is invoked by Australian courts when the institution of judicial review or access to the courts is imperiled.⁶⁵ Thus, in the recent decision in Plaintiff S157, members of the High Court invoked the rule of law to justify giving a narrow reading to a privative clause in migration legislation and a broad reading to a constitutional provision entrenching the Court's judicial review jurisdiction.⁶⁶ However, the detention cases illustrate the limited salience of the rule of law in Australia, where the institution of judicial review is intact. Only two dissenting judges (Gleeson and Kirby) expressly associated the rule of law with fundamental rights, and only then through the interpretive presumption that Parliament does not intend to abrogate fundamental rights by general statutory language.⁶⁷ Justices Gummow and Kirby stressed that the validity of a law or executive act cannot be made to depend on legislative or executive opinion.⁶⁸ However, this principle was only invoked within the context of their minority view that neither the statute nor the power to make laws regarding aliens permitted administrative detention if there was no reasonably foreseeable prospect of removal.⁶⁹ For the majority, the denial of liberty in the circumstances of these cases did not offend the rule of law because the “law” that “rules” is the positive law of the Constitution and the Parliament.

In other words, the rule of law underlies the provision of a constitutionally entrenched right to judicial review of legislative and executive action but does not provide the substantive criteria against which the validity of such actions are to be tested. This formal and thin approach to the rule of law enables the court to avoid having to enunciate a substantive (and inevitably contestable) account of the concept. However, it does mean that the rule of law offers little argumentative leverage against laws that provide for executive detention of aliens, given the scope of the power to make laws about that subject matter. It certainly provides no leverage for an argument that a law is constitutionally suspect because it singles out aliens for detention.⁷⁰ It remains to be seen, therefore, whether the High Court will develop the stray hints of some of its members⁷¹ and attach some substance to the long-standing recognition of the rule of law as a constitutional assumption.

3.2. Aliens, citizens, and the Australian community

The detention cases hint at important questions about aliens, citizens, and the Australian community (from which aliens may apparently be segregated).⁷² At the heart of these questions is an important question on which the Constitution is silent: Who is an Australian citizen? The Constitution does not define Australian citizenship or give the Commonwealth Parliament any direct legislative power to do so.⁷³ It remains unclear whether an Australian citizen is a nonalien, or whether there is an intermediate category; similarly, despite the affirmation of three justices in a recent case, it remains unclear whether an alien is, in fact, any person who owes allegiance to a foreign power.⁷⁴ The “other” at the heart of these cases is an elusive concept, and the resolute formalism of the current High Court provides few resources for identifying it. Moreover, the explicit power of the state with respect to aliens means that there is no scope for an argument that a law is invalid because it discriminates against aliens.⁷⁵ The Constitution, therefore, does not provide a secure foundation either for identifying the members of the Australian community or for protecting those who are excluded from it.

3.3. International law and comparative law

I noted above the division in the Court concerning the relevance of international law to constitutional and statutory interpretation. There was a similar disagreement regarding the use of foreign precedent. In Al-Kateb, the majority found little assistance in United States,⁷⁶ English,⁷⁷ and Privy Council⁷⁸ decisions on executive detention because these cases dealt with the interpretation of statutory provisions that conferred discretionary powers of detention.⁷⁹ Justice Kirby, by contrast, observed that these cases illustrated a general approach that preferred interpretations favoring individual liberty.⁸⁰ Here, as in the case of international law, the different significance attributed by the justices to non-Australian law is partly explicable by the justices' varying approaches to legal sources and legal reasoning. Justice Kirby refers to the “abiding values” of international law (and particularly human rights law) and deploys them at a relatively high level of generality;⁸¹ Justice McHugh refers to the “rules” of international law⁸² and objects to treating them as “rules” of the Australian legal order to which they do not belong.⁸³ The positivist and formalist approach of Justice McHugh is clearly ascendant on today's High Court.

3.4. Would a bill of rights have made any difference?

As I suggested at the outset, these cases raise questions about the lack of constitutional protection for rights in Australia. Certainly, they amply demonstrate the limits of the current protection. But the questions are no less controversial in jurisdictions in which there is constitutional protection of human rights, as is demonstrated by the roughly contemporaneous decisions of the United States Supreme Court in Hamdi v. Rumsfeld,⁸⁴Rumsfeld v. Padilla,⁸⁵ and, to a lesser extent, Rasul v. Bush,⁸⁶ and of the House of Lords in A (FC) v. Secretary of State for the Home Department.⁸⁷

The majority did not reach the merits of the question in Rumsfeld v. Padilla—whether military detention of citizens by the executive without statutory authorization was unconstitutional. But that is an inescapably hard question, and there is considerable room to debate the scope of a generally expressed constitutional right to due process. In Australia, the separation of judicial power provides a basis for analyzing the constitutionality of executive detention. The present detention cases demonstrate that the entrenched separation of judicial power gives the Australian High Court the legal tools it needs to insist that some instances of detention can only be imposed through judicial proceedings, even though that doctrine may not operate to protect other substantive rights.⁸⁸

Equally, Hamdi's central holding—that a citizen held in the United States as an enemy combatant must be given a meaningful opportunity to contest the factual basis for that detention before a neutral decision maker—is an aspect of the rule of law that would be replicated in Australia, in relation to the factual basis for a connection between the statutory power to detain and the constitutional head of power, and it would not be limited to citizens. The Parliament could not validly prevent a person from bringing proceedings in the High Court to challenge the lawfulness of his or her detention.⁸⁹

Similar questions will return, no doubt, to the High Court when, inevitably, a challenge is brought to the post–September 11 antiterrorism laws that provide for detention of nonsuspects who are believed to have material information relating to terrorism offenses. And they will be determined by a Court that overwhelmingly agrees with Justice McHugh that it is for the Australian people, and not for the Court, to insert fundamental rights protections into the Constitution,⁹⁰ even if the outcome in the meantime for individuals is “tragic.”⁹¹ But the separation of powers, and the rule of law that it protects, ensures that the executive will not have an entirely free hand.

4. Postscript

In late March 2005, apparently in response to community pressure and backbench members of its own party,⁹² the government announced that a new visa class would be established that allowed some unsuccessful asylum seekers, whom it was not reasonably practicable to remove from Australia, to be released from detention unless and until it became reasonably practicable to remove them.⁹³