Submissions - MV Tampa
Legal
Submissions of the Human Rights and Equal Opportunity Commission intervening before the Federal Court in the MV Tampa matter
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIAN DISTRICT REGISTRY
No V and V. of 2001
BETWEEN
THE VICTORIAN COUNCIL FOR CIVIL LIBERTIES INC
ApplicantERIC VADARLIS
Applicantand
THE HONOURABLE PHILLIP
RUDDOCK, MINISTER FOR IMMIGRATION
AND MULTICULTURAL AFFAIRS
First Respondentand
THE HONOURABLE DARYL WILLIAMS, ATTORNEY-GENERAL
Second Respondentand
THE HONOURABLE PETER REITH, MINISTER FOR DEFENCE
Third Respondentand
COMMONWEALTH OF AUSTRALIA
Fourth Respondent
SUBMISSIONS OF THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION INTERVENING
1. The Human Rights and Equal Opportunity Commission ('the Commission') by Notices of Motion dated 1 September 2001, will seek leave to intervene pursuant to section 11(1)(o) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ('the Act')
2. The Commission submits that it is appropriate for it to be granted leave to intervene in the proceedings because it meets the established test for the grant of such leave. It is submitted that those tests may be conveniently classified into two categories: legal and practical considerations.
3. In Australian Railways Union v Victoria Railways Commission (1930) 44 CLR 319 at 331, Dixon J referred to the exercise of the Court's discretion to allow non-parties to be heard. He said:
The discretion to permit appearances by counsel is a very wide one; but I think we would be wise to exercise it by allowing only those to be heard who wish to maintain some particular right, power or immunity in which they are concerned, and not merely to intervene to contend for what they consider to be a desirable state of the general law …
4. In general, an applicant for leave to intervene is required to have an interest which is a substantial interest, a legal interest or one which is known and protected by the law: The Queen v Ludeke: ex parte Custom's Officers Association of Australia (1985) 155 CLR 513 at 522 per Mason J.
5. It is submitted that the Commission by reason of its statutory functions under the Act, meets these tests. The powers and duties of the Commission are related to and in part determined by, the extent of human rights as recognised in the international instruments referred to in the affidavit of Alice Erh-Soon Tay affirmed 1 September 2001.
6. Practical considerations are relevant to the exercise of the discretion to grant leave to intervene: Re Boulton (1994) 126 ALR 620 at 626-628. The following reasons show there are no practical considerations which militate against granting leave:
(a) the urgent nature of the Applications:
(b) the other parties have received notice of the Commission's intention to seek leave to intervene;
(c) subject to any direction of the Court, the Commission seeks only to file a written submission and make oral submissions if requested by the Court; and
(d) the Commission's submissions will differ from the parties and may assist the Court in fully informing itself of 'matters which it ought to take into account in reaching its decision': United States Tobacco Co. v Minister for Consumer Affairs (1988) 20 FCR 520 at 534.
7. The Commission seeks leave to make submissions with respect to the following issues:
7.1 If the Court finds that the asylum seekers are not in 'immigration detention' within the meaning of section 5 of the Migration Act 1958 (Cth) ('the Migration Act'), then the Commission submits:
(a) as circumstances as present indicate the asylum seekers aboard the MV Tampa may be held in "arbitrary detention" in breach of article 9 of ICCPR;
(b) as circumstances as present indicate the child asylum seekers aboard the MV Tampa may be held in "arbitrary detention" in breach of article 37(b) of the CROC. The detention of the child [1] asylum seekers aboard the MV Tampa may also be in breach of articles 3 and 22 of the CROC;
(c) the rights of the Applicant, Mr Eric Vadarlis, may have been breached by the restrictions placed on his ability to impart information to the asylum seekers in accordance with article 19 of the ICCPR; and
(d) the rights of the asylum seekers may have been breached by the restrictions placed on their ability to seek and receive information about their legal rights in accordance with article 19 of the ICCPR.
7.2 If the Court finds that the asylum seekers are in 'immigration detention' within the meaning of section 5 of the Migration Act, then the Commission submits:
(a) there is no lawful basis for the Respondents to enjoin the asylum seekers exercising any rights they may have under the Migration Act;
(b) there may have been a breach of their right to equality before the law and equal protection of the law in accordance with articles 2 and 26 of the ICCPR and article 2 of the CROC;
(c) the rights of the Applicant, Mr Eric Vadarlis, may have been breached by the restrictions placed on his ability to impart information to the asylum seekers in accordance with article 19 of the ICCPR; and
(d) the rights of the asylum seekers may have been breached by the restrictions placed on their ability to seek and receive information about their legal rights in accordance with article 19 of the ICCPR.
APPLICATION OF THE ICCPR and CROC
8. By ratifying the ICCPR, Australia has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the ICCPR without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Derogation from the rights in the ICCPR is only permitted "in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed". [2] In our respectful submission, no such circumstances exist in this case.
9. By ratifying the CROC, Australia has undertaken to ensure that where an administrative decision is being made as to whether to arbitrarily detain a child that that decision will be made in conformity with CROC and that the best interests of the child will be treated as a "primary consideration".
ARBITRARY DETENTION: ARTICLE 9 OF ICCPR and ARTICLE 37(b) of CROC
10. The Commission's submissions in this section concerning article 9 of the ICCPR are predicated on a finding that the asylum seekers are not in "immigration detention" within the meaning of the Migration Act.
11. Once in the jurisdiction of Australia, the common law will apply to asylum seekers and provide them with a right of access to the Court and the protections of the common law. If the Migration Act provisions do not apply to the persons on the MV Tampa then there is no lawful basis to detain them or restrict their movement. In Re Bolton: ex parte Beane (1987) 162 CLR 514 at 528, Deane J makes plain:
The common law of Australia knows no lettre de cachet or executive warrant pursuant to which either citizen or alien can be deprived of his freedom by mere administrative decision or action. Any officer of the Commonwealth Executive who, without judicial warrant, purports to authorize or enforce the detention in custody of another person is acting lawfully only to the extent that his conduct is justified by clear statutory mandate. That being so, it is the plain duty of any such officer to satisfy himself that he is acting with the authority of the law in any case where, in the name of the Commonwealth, he directs that a person be taken and held in custody. The lawfulness of any such administrative direction, or of actions taken pursuant to it, may be challenged in the courts by the person affected: by application for a writ of habeas corpus where it is available or by reliance upon the constitutionally entrenched right to seek in this Court an injunction against an officer of the Commonwealth. It cannot be too strongly stressed that these basic matters are not the stuff of empty rhetoric. They are the very fabric of the freedom under the law which is the prima facie right of every citizen and alien in this land. They represent a bulwark against tyranny. They provide the general context of the present case. Emphasis added
12. Also the observations at 521 and 522 per Brennan J makes clear that
It is established that statutory authority is necessary for the surrender of any person to another country and to provide for his custody and conveyance: per Barwick C.J. in Barton v. The Commonwealth (1974) 131 CLR 477, at p 483
13. In Chu Kheung Lim v Minister for Immigration and Ethnic Affairs (1992) 176 CLR 1, the Court affirmed these principles. [3] At page 63, McHugh J says:
Absent a statutory power of detention, no public official has any power to detain an alien who has entered the country, whether or not that person's entry constitutes an illegal entry.
14. The Commission submits that unless there is statute authority for the detention of the asylum seekers, they are entitled to a writ of habeas corpus. The ongoing restriction of their liberty cannot be justified in the absence of statute or subordinate legislation: Lloyd v Wallach (1915) 20 CLR 299. Any statutory authority must be clear that it specifically abrogates or suspends the rights to habeas corpus: R v Clift: ex parte P (1941) SASR 41 at 46.
15. These common law protections reflect the terms of the relevant international instruments. It is accepted that international law is a legitimate and importance influence on the development and application of the common law, especially where it concerns international law which declares universal human rights: Mabo v State of Queensland (No.2) (1992) 175 CLR 1 at 42 per Brennan J.
16. Article 9(1) and (4) of the ICCPR provide that:
1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is lawful.
17. The right in article 9(1) extends to all deprivations of liberty, whether in criminal cases or in matters concerning immigration.[4] The Human Rights Committee (the Committee) has also stipulated that:
If the so-called preventative detention is used, for reasons of public security, it must be controlled by the same provisions, ie it must not be arbitrary, and must be based on grounds and procedures established by law .[5]
18. Further, the reference to arbitrariness in article 9(1) imposes a separate and distinct limitation on detention to the requirement that the detention be lawful. When the article was drafted, it was clear that the meaning of "arbitrary" contained elements of injustice, unpredictability, unreasonableness, capriciousness and unproportionality, as well as the common law principle of due process of law . [6] The Committee in Van Alphen v The Netherlands [7] confirmed that there are various factors that may render an otherwise lawful detention arbitrary. It said that:
arbitrariness is not to be equated with "against the law" but must be interpreted more broadly to include elements of inappropriateness, injustice and lack of predictability. This means that remand in custody pursuant to lawful arrest must not only be lawful but reasonable in all the circumstances. Further, remand in custody must be necessary in all the circumstances, for example, to prevent flight, interference with evidence or the recurrence of crime.
19. Article 9(1) requires that deprivation of liberty provided for by law "must not be manifestly unproportional, unjust or unpredictable". [8] Further, in A v Australia the Committee stated that detention was arbitrary if it was "not necessary in all the circumstances of the case" and if it was not a proportionate means to achieving a legitimate aim. [9]
20. The Commission submits that the detention of the asylum seekers is arbitrary and unlawful in contravention of article 9(1) of the ICCPR. Such detention must be regarded as arbitrary as:
(i) it is inappropriate, unjust and unreasonable in the circumstances of this case. There is nothing about these particular asylum seekers that would indicate that they should be treated differently to the number of other unauthorised arrivals who have sought asylum in Australia. The fact that there was a lawful means of taking the asylum seekers into detention under relevant provisions of the Migration Act supports the conclusion that the manner in which the asylum seekers was detained was in appropriate and unreasonable;
(ii) it is for an indeterminate period; [10]
(iii) there was no legitimate purpose for such detention. The question of proportionality does not therefore arise.
21. The Commission submits that the rights provided by CROC are relevant considerations in the determining of matters concerning any child on board the vessel. Articles 37(b) of the CROC provides that:
No child shall be deprived of his or her liberty unlawfully of arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with law and shall be used only as a measure of last resort and for the shortest appropriate period of time.
22. The Commission submits that there is no evidence to suggest that any other alternatives to detention on board the MV Tampa were considered in respect of the child asylum seekers. Nor does it appear that any separate consideration was given to the human rights of the children aboard this boat as compared to the human rights to the adult asylum seekers. In this light, there is a breach of article 37(b) as their detention cannot be considered to have occurred as a last resort.
23. This conclusion is further supported by the fact that the Respondents do not appear to have considered or complied with Guideline 5 of the United Nations High Commissioner for Refugees' "Guidelines on Detention of Asylum Seekers" (the Guidelines). The Guidelines were developed to assist governments formulate implement detention policies and practices. [11] These Guidelines apply to all asylum seekers who are in detention or detention-like circumstances. They apply to all asylum seekers who are confined within a narrowly bounded or restricted location where the only opportunity to leave this area is to leave the territory . [12] Under Guideline 5 Australia is obliged to take steps to ensure an appropriate environment for children who are detained:
If children who are asylum seekers are detained in airports, immigration-holding centres or prisons, they must not be held under prison-like conditions. All efforts must be made to have them released from detention and placed in other accommodation. [13]
EQUALITY BEFORE THE LAW AND ACCESS TO INFORMATION
24. If the asylum seekers are in 'immigration detention', they should be entitled to exercise such rights as exist under the Migration Act. The Commission submits that the Respondents have failed to accord them right to equality before the law and equal protection of the law in accordance with articles 2 and 26 of the ICCPR.
25. The Commission further submits that in the event that child asylum seekers are found to be held in "immigration detention" as defined by section 5 of the Migration Act there may have been a breach of their right to equality before the law and equal protection of the law in accordance with articles 2 and 26 of the ICCPR and article 2 of CROC.
26. The Commission submits that in the event that the asylum seekers are found to be "immigration detainees" the respondents' breached their rights to equality before the law and equal protection of the law by not offering them the legal rights and protections afforded to immigration detainees under the Migration Act. Equality before the law requires that administrative officials must not act arbitrarily in enforcing laws. The Commission submits that there was no reason to treat the immigration detainees on board the MV Tampa differently to other immigration detainees and they should have been equally subject to the same laws.
27. By preventing the asylum seekers from receiving any information from any outside source and having access to legal advice and representation, those asylum seekers have effectively been deprived of their right under article 9(4). This is because without such advice and access to legal representation those asylum seekers are unlikely to be aware of their legal rights and thereby unable to exercise their right to take proceedings before a Court in order that the court may decide without delay on the lawfulness of the detention and order their release where appropriate.
28. The fact that the asylum seekers have been detained for a relatively short period is immaterial. In Torres v Finland [14] the Human Rights Committee found that the lack of provision for review of the detention of an alien for a period of only one week amounted to a breach of article 9(4).
29. Article 39(d) provides:
Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority and to a prompt decision on any such action.
30. The submissions in relation to article 9(4) of the ICCPR are equally applicable, and adopted in relation to this article of CROC.
31. Further, it is submitted that the article 19(2) if the ICCPR guarantees a right to seek and receive information. Article 19(2) and (3) of the ICCPR states:
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.
32. The Commission submits that the rights of the asylum seekers on board the MV Tampa appear to have been breached by the restrictions placed on their ability to seek and receive information in accordance with article 19(2) of the ICCPR: see paragraph 13 of the Affidavit of Eric Vadarlis.
33. Specifically, the rights of the asylum seekers under article 19 were breached by the restrictions placed on their ability to seek and receive information about their legal rights.
34. In Fang v Minister for Immigration and Ethnic Affairs and Commonwealth of Australia (1996) 135 ALR 583, the Court found that if asylum seekers had been informed of attempts by external parties to provide them with legal advice there was a reasonable inference that at least some of the asylum seekers would have asked to be put in touch with a lawyer. Such a request would trigger the asylum seekers' statutory right under s.256 of the Migration Act to all reasonable facilities for obtaining legal advice in relation to their immigration detention (at para 65).
35. The Commission submits that it is a reasonable inference that the asylum seekers on board the MV Tampa would have requested access to legal advice if they had known of the attempts to contact them by the Applicant, Mr Vadarlis.
2 September 2001
John Basten QC
Kate Eastman
Counsel for the Human Rights and Equal Opportunity Commission
1. A "child" for the purposes of the CROC is every human being below the age of 18 years: article 1.
3. See pages 12 per Mason CJ, 19 -20 per Brennan, Deane and Dawson JJ.
4. United Nations Human Rights Committee, General Comment No. 8 (1982), paragraph 1.
5. United Nations Human Rights Committee, General Comment No. 8 (1982), paragraph 4.
6. M Nowak, UN Covenant on Civil and Political Rights CCPR Commentary, 1993 at page 172.
7. United Nations Human Rights Committee, Communication No. 305/1988 adopted on 23 July 1990.
8. Nowak above n 4 at page 173.
9. United Nations Human rights Committee, Communication No. 560/1993, adopted 30 April 1997.
10. Perez v Minister for Immigration and Multicultural Affairs [1999] FCA 1342.
11. In Detention of Asylum-Seekers in Europe, UNHCR, Regional Bureau for Europe, 2nd ed, Geneva, 1995 at page 7.
12. See Guideline 1: Scope of the Guidelines.
13. Guideline 5: Detention of Persons under the Age of 18.
14. United Nations Human rights Committee, Communication No. 291/1988.
Last updated 7 January 2002.