Minister for Immigration and Multicultural and Indigenous Affairs v. B and ors
High Court of Australia
April 29, 2004
Other International Provisions:
International Covenant on Civil and Political Rights (ICCPR)
Article 9.1 (prohibiting subjection to arbitrary detention)
Article 9.4 (requiring access to a review with power to order release if the detention is not lawful)
Article 17 (no arbitrary or unlawful interference with privacy, family, or correspondence)
Article 23 (the family is entitled to protection by society and the State)
Article 24 (measures of protection for every child)
First Optional Protocol to the International Covenant on Civil and Political Rights, generally
Constitution of Australia
Migration Act of 1958 (Cth) (Australia), paras. 189 (detention of unlawful non-citizens) & 196 (period of detention)
Family Law Act 1975 (Cth) & Family Law Reform Act 1995 (Australia), part VII, Section 67ZC (orders relating to welfare of children)
A mother and father in immigration detention brought this case in an Australian Family Court on behalf of their five children who were also in an immigration detention centre. The parents asked the Court to do a number of things, including most importantly to force the Minister for Immigration and Multicultural and Indigenous Affairs to release the children. The Family Court held that it did not have the authority to do so; on appeal, however, the Full Court of the Family Court found that the Migration Act (Article 67ZC) gave effect to the UN Convention on the Rights of the Child, and therefore ordered the Minister to release the children until the final hearing on their applications to remain in the country. The Minister appealed the Full Court’s decision to the Australian High Court.
Issue and resolution:
Immigration and detention of children in immigration centres. The High Court concluded that Australian Family Courts do not have the authority either to order the release of children from immigration detention centres or to make any other orders concerning the welfare of children while they remain in immigration detention.
The High Court was unanimous in its conclusion that the Family Court did not have the authority to require the Minister to release the children, but the justices of the High Court issued four separate opinions setting out somewhat diverse reasoning.
(1) Chief Justice Gleeson and Justice Mchugh
The opinion of the Chief Justice, Gleeson, joined by Justice Mchugh, does not consider Australia's international treaty obligations in its analysis, but instead examines the constitutional sources of the Family Court's authority and the scope of this authority under the Family Law Act. Although Section 67ZC of the Family Law Act states that the Family Court has "jurisdiction to make orders relating to the welfare of children," it was not intended to give the Family Court the power to make any order in the best interests of the child. Because the Family Law Act was designed almost exclusively to cover proceedings between parents and children, it does not cover situations where concerns about a child's welfare are related to third parties, as here with the Minister of Immigration.
(2) Justices Gummow, Hayne, and Heydon
The opinion of Justices Gummow, Hayne, and Heydon addresses whether the Family Court's authority to make orders relating to the "welfare of children" (Family Law Act Section 67ZC) stems from Australian efforts to implement the Convention on the Rights of the Child. They conclude that it does not on the basis that Section 67ZC, when read together with other provisions in the Family Law Act, cannot be interpreted as broadly as urged by the family.
(3) Justice Kirby
Justice Kirby's opinion addresses, among other things, (i) whether detaining the children contravened Australia's international law obligations, and (ii) to what extent international law and the general provisions of Australia's Family Law Act could trump the provisions for detaining non-citizens under the Migration Act.
As to international law, the family argued that the Migration Act did not authorise the detention of the children given Australia's international human rights obligations (i.e. CRC Art. 37 and general provisions of the International Covenant on Civil and Political Rights ("ICCPR") and its First Optional Protocol). Notably, the UN Human Rights Committee ("UNHRC") had already highlighted that Australia's mandatory detention of the children (and their mother as their caregiver) constituted a breach of ICCPR Articles 9.1 (prohibiting subjection to arbitrary detention), 9.4 (requiring access to a review with power to order release if the detention is not lawful), and 24 (measures of protection for every child). Kirby notes that although the UNHRC's views are only persuasive and hence not binding on the Australian courts, breaching the ICCPR makes "it appear even more arguable ... that the requirements of the [CRC] were breached." He concludes that detaining the children for the long period while their parents' cases were winding their way through the Australian judicial system was a breach of Australia's obligations under international law.
As to the relationship between domestic law and international law, however, Justice Kirby notes that the Migration Act applies equally to adults and children, and that its clear intentions cannot be trumped by international law obligations. In fact, despite having received several public reports on its policy of universal mandatory detention for children - including a report from the Attorney General expressly stating that "the power to release children from detention, if that was in the best interests of the child, would ensure that any criticism relating to the Convention on the Rights of the Child could be overcome" - the Australian Parliament decided not to differentiate between the treatment of adults and children. In addition, the Australian Parliament is fully aware of (i) how mandatory detention operates, (ii) how it applies to the children of illegal immigrants, (iii) the special problems posed by the prolonged detention of children, and (iv) the concerns of immigration officers and members of parliament about breaching the CRC. Therefore, the Australian Parliament intended that all illegal immigrants, including children, be detained under the Migration Act. Because this policy is not unconstitutional, the courts must uphold it over Australia's obligations under international law.
(4) Justice Callinan
Justice Callinan's opinion focuses on the constitution and domestic law, but also addresses the CRC. Callinan's view is that even if the welfare of children in Australia is a matter of international law, the CRC cannot expand the clearly defined scope of the Family Law Act. Australia's treaty obligations are not part of Australian domestic law unless they are directly incorporated by statute, and the CRC has not been incorporated into domestic law relating to the detention of immigrants (which the Migration Act expressly addresses). Looking at the language and history of the Family Law Act, Parliament did not intend it to implement the CRC - the Act does not even mention the Convention when discussing provisions about children's welfare. Callinan also sees a "strong possibility ... that the [CRC] may be aspirational only," since none of its provisions require that children's rights be protected or promoted by the Family Court. Moreover, although the CRC provides a framework for children's rights, it leaves the implementation of those rights to the States Parties.
Excerpts citing CRC and other relevant human rights instruments:
Justices Gummow, Hayne, and Heydon
108. Alternatively, it is submitted that s67ZC is supported as an exercise of the power with respect to external affairs. Reliance is placed upon provisions of the Convention on the Rights of the Child, which entered into force for Australia on 16 January 1991. In response, the Minister emphasises the statement in the joint judgment in the Industrial Relations Act Case that, particularly in the implementation of treaty obligations, the external affairs power has a purposive aspect. The Minister refers to the legislative history in the Parliament of the Bill for what became the 1995 Act as indicative of the absence of any such legislative will.
144. An arguable breach of international obligations: The respondents invoked identified requirements of international law, binding on Australia. They did so not only to support their contention that the welfare jurisdiction conferred on the Family Court under the FLA [Family Law Act] was designed to give effect to international obligations; but also to support the submission that the MA [Migration Act], construed in the light of those obligations, did not sustain the detention of the respondent children proved in the evidence. It is with the latter submission that I am immediately concerned.
145. The first Full Court referred, in particular, to Art 37 of the [United Nations Convention on the Rights of the Child (“UNCROC”)], drawing attention to pars (b), (c) and (d) of that article. The article provides:
“States Parties shall ensure that:
(a) No child shall be subjected to … cruel, inhuman or degrading treatment or punishment …
(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The … detention … of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;
(c) Every child deprived of liberty shall be treated with humanity … and in a manner which takes into account the needs of persons of his or her age …
(d) Every child deprived of his or her liberty shall have the right … to challenge the legality of the deprivation of … liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.” (emphasis added)
146. Parallel to the foregoing provisions of the UNCROC, and to others mentioned by the first Full Court, are provisions expressed in somewhat more general terms by the International Covenant on Civil and Political Rights (“the ICCPR”). That treaty overlaps the UNCROC to some extent. Australia is a party to each of these international instruments. In the case of the ICCPR, Australia is also a party to the First Optional Protocol.
147. Communication to the UNHRC: Pursuant to the First Optional Protocol to the ICCPR, the parents of the respondent children lodged a communication with the United Nations Human Rights Committee (“the UNHRC”) set up by Pt IV of the ICCPR. Their communication related, amongst other things, to the rights of the children in accordance with international law. They complained, relevantly, that Australia was in breach of the requirements of the ICCPR with respect to the children up to the time that they were re leased from immigration detention by the order of the second Full Court, the validity of which order the Minister challenges in these proceedings.
148. This Court has held, correctly in my view, that the signature by Australia to the ICCPR and to the First Optional Protocol, inevitably brings to bear on the exposition of Australian law the influence of the universal principles of international law stated in the ICCPR. In ascertaining the meaning of the ICCPR, and thereby elucidating the extent of that “influence”, it is permissible, and appropriate, to pay regard to the views of the UNHRC. Such views do not constitute legally binding rulings for the purposes of international law. However, they are available to municipal courts, such as this, as the opinions of independent experts in international law, to assist in the understanding of the requirements of that law for whatever weight the municipal legal system accords to it. In Australia, that is the weight of persuasive influence. No more; but no less.
149. After hearing the arguments of both sides, the UNHRC rejected objections raised by Australia to the admissibility of the communication. Relevant to the position of the respondent children, the UNHRC noted that they had “remained in immigration detention for two years and eight months until their release”. It went on:
“Whatever justification there may have been for an initial detention for the purposes of ascertaining identity and other issues, the State party has not, in the Committee's view, demonstrated that their detention was justified for such an extended period. … [It] has not demonstrated that other, less intrusive, measures could not have achieved the same end of compliance with the State party's immigration policies by, for example, imposition of reporting obligations, sureties or other conditions which would take into account the family's particular circumstances.”
150. In the result, the UNHRC concluded that the mandatory detention of the respondent children (and of their mother as their carer) was contrary to Art 9.1 of the ICCPR s view, demonstrated that their detention was justified for such an extended period. … [It] has not demonstrated that other, less intrusive, measures could not have achieved the same end of compliance with the State party's immigration policies by, for example, imposition of reporting obligations, sureties or other conditions which would take into account the family's particular circumstances.” The UNHRC also concluded that the period of detention of the children, disclosed by the evidence, and the inability judicially to challenge the mandatory character and duration of the detention “was, or had become, contrary to article 9, paragraph 1” and “constitutes a violation of article 9, paragraph 4.” Various other breaches or possible breaches of articles of the ICCPR were referred to. The UNHRC concluded:
“[T]he Committee considers that the measures taken by the State party had not, until the Full Bench of the Family Court determined it had welfare jurisdiction with respect to the children, been guided by the best interests of the children, and thus revealed a violation of article 24, paragraph 1, of the [ICCPR], that is, of the children's right to such measures of protection as required by their status as minors up [to] that point in time.”
151. If it is the case, as decided by the UNHRC, that articles of the ICCPR, namely Art 9.1 (prohibiting subjection to arbitrary detention), Art 9.4 (requiring access to a review with power to order release if the detention is not lawful) and Art 24 (measures of protection for every child), were breached by Australia in the detention of the respondent children, it appears even more arguable (as the majority in the first Full Court concluded) that the requirements of the UNCROC were breached.
152. The provisions of the UNCROC were considered by the first Full Court in the context of its examination of the validity, under the external affairs power, of the provisions of the FLA affording the Family Court its general welfare jurisdiction and powers. However, the same analysis is available in deciding the construction argument, considered at the close of the majority's reasons in the first Full Court. Upon the basis of the majority’s view that the respondent children were being held indefinitely in immigration detention the first Full Court concluded that this was contrary to Art 37 of the UNCROC, thereby suggesting that the continued detention of the children was not the obligation imposed by the MA, properly construed, when read with the FLA. It was on that footing that the majority in the first Full Court concluded that s 196(3) of the MA, purporting to prevent “the release, even by a court, of an unlawful non-citizen from detention (otherwise than for removal or deportation) unless the non-citizen has been granted a visa” did not apply to the ordering of the release of children from detention. Only if the Family Court had the power to order release, in the specific case of children, would the disconformity between Australian federal law and Australia's obligations under the UNCROC (specifically Art 37) be avoided.
153. Effectively, this conclusion of the first Full Court meant a reading down of the general language of ss 189 and 196 of the MA, so as to avoid infraction otherwise of the obligations Australia had freely assumed under international law. For its part, the UNHRC acknowledged that it had no authority to reach conclusions about the alleged breaches of the UNCROC, its mandate being confined to the ICCPR. The UNHRC thus confined its attention to the alleged breaches of the latter instrument. Nevertheless, given the stronger and more specific language of the UNCROC, relevant to the detention of children such as the respondent children, it was strongly arguable that the mandatory obligation to detain such children for very long periods whilst the cases of their parents were winding their way through the primary decision-making processes, the Federal Court and this Court, constituted a breach of Australia's duties under international law.
154. In reaching that conclusion as a first step in its reasoning, the first Full Court did not, therefore, err. Indeed, it was not a novel conclusion, as I shall show. It was the starting point for the consideration of the element of the suggested unlawfulness of the respondent children's detention. It was upon this basis that the majority judges in the first Full Court concluded that they were permitted to override the provisions of the MA. These provisions otherwise appeared to apply to the children to oblige their continued immigration detention and to forbid any court ordering their release without a relevant visa.
155. The relevance of any such breach: Acting on the hypothesis sufficiently established by the foregoing analysis, that there was a breach of obligations imposed on Australia by international law, the critical question is reached. Does any such breach of international law sustain a reading down of the language of the detention provisions of the MA? In other words, within the authorities, would such a reading of the MA, viewed in the context of the welfare provisions of the FLA, amount to a construction “so far as the language of the legislation permits”? Or would it involve an impermissible defiance by the courts of the clear requirements of valid Australian federal law?
163. The Attorney-General's Department's submission, summarised in the report, drew special attention to the requirements of the UNCROC in respect of the detention of children with, or separately from, their parents. It was the opinion of that department that “the power to release children from detention, if that was in the best interests of the child, would ensure that any criticism relating to the Convention on the Rights of the Child could be overcome.”
169. From the foregoing it must be inferred that the Australian Parliament was fully aware of the operation of mandatory detention of unlawful non-citizens arriving in Australia; of its particular application to the children of unlawful non-citizens; of the special problems that prolonged detention of children in such detention centres occasions; and of the concerns expressed by departmental officers and individual committee members about breach of the requirements of international law, specifically of the UNCROC, Art 37(b). In effect, the position of the Parliament has not altered since the view expressed a decade ago in the first of the above reports:
“[T]he Committee is of the view that those who arrive in Australia without authorisation or with invalid authorisation should be detained upon arrival. To do otherwise would compromise Australia’s system of immigration control. In addition, detention of unauthorised arrivals ensures that the community is not exposed to unknown or undetected health or security risks. In the Committee's view, Australia’s immigration control system must be upheld. It is important to ensure that immigration to Australia cannot be achieved simply by arrival.”
220. The respondents sought to rely on the United Nations Convention on the Rights of the Child. For present purposes I will proceed upon the basis that the welfare of children in this country can truly be an external affair. In enacting Pt VII of the Family Act the Parliament chose to rely on particular heads of power. Express references or indications of those heads of power will usually provide fairly sure pointers to the boundaries within which the Parliament was intending to legislate and has legislated. Here, those indicators are to be found in the long title to the Family Act and the reference to parentage and marriage in Pt VII of the Act. The Convention cannot expand the intended and clearly identified scope of Pt VII of the Family Act. Australia's treaty obligations do not form part of Australian domestic law unless incorporated by statute. Whatever relevance the Convention may have as a declared instrument under the Human Rights and Equal Opportunity Commission Act 1986 (Cth), it has not actually been incorporated into the domestic law relating to the detention of unlawful non-citizens which is the subject of express provision under the Migration Act. Nor does Pt VII purport to incorporate the Convention into domestic law as an exercise of any legislative power with respect to external affairs, assuming that the relevant matters could be external affairs. To do so the demonstration of a clear connexion between the law and the treaty would be necessary: the law must truly have the “purpose or object” of implementing the treaty. Part VII manifests no such purpose, even though it may not be inconsistent with the Convention.
221. The language of Pt VII and the parliamentary history of the Family Law Reform Act 1995 (Cth) (which inserted Pt VII in its current form) make it clear that Parliament was not intending in enacting that Part to implement the Convention for these reasons. The changes introduced by the 1995 amendments were directed at the reinforcement of parental responsibility for children. Section 67ZC reproduced the earlier welfare jurisdiction, arguably in clearer terms but with no suggestion of any resort to the Convention which is nowhere mentioned in the Family Act. Section 60B is a direct indication of reliance upon the marriage power.
222. In explaining the amendments directed at parental responsibility, the Explanatory Memorandum to the Bill for the 1995 amendments noted that the object of Pt VII was “based [not on the reception of the Convention into the Family Act, but] on principles which are consistent with” the Convention. The second reading speech noted Australia's ratification of the Convention and said that the objects clause in Pt VII gave “recognition” to the rights contained in that instrument “by specifying a number of such rights that should be observed” (emphasis added). It is possible therefore that some Articles of the Convention may have influenced the drafting of sections of Pt VII. The Parliament did not however intend to implement the Convention by, in some way enlarging or creating an all-embracing welfare jurisdiction. The strong possibility in any event is that the Convention may be aspirational only. None of its provisions on any view require that the rights of children be protected or advanced by a conferral of jurisdiction upon the Family Court. Furthermore, the substantive Articles of the Convention set out rights which States are to ensure that children and parents should enjoy, but leave the selection of “appropriate legislative, administrative, and other measures” to State parties.
Following the High Court’s decision, the Bakhtiyari family was deported to Pakistan on December 30, 2004. See http://www.nswccl.org.au/issues/hr_violations.php.
On 29 July 2008, Australia’s Minister for Immigration and Citizenship, Chris Evans, announced a series of reforms to Australia’s immigration detention system, including that the Australian Cabinet “ha[d] endorsed a policy containing seven values that will guide and drive new detention policy and practice into the future.” One of the values listed (Value No. 3) was that “Children, including juvenile foreign fishers and, where possible, their families, will not be detained in an immigration detention centre (IDC).” See http://www.minister.immi.gov.au/media/speeches/2008/ce080729.htm; see also http://www.minister.immi.gov.au/media/media-releases/2008/ce08072.htm.
It appears that the Australian Parliament is currently considering legislation amending the Migration Act to implement these seven values. The bill amends the Act to, among other things, “strengthen the existing principle in section 4AA of the Act that the detention of a minor is a measure of last resort by providing that a minor, including a person reasonably suspected of being a minor, must not be detained in a detention centre established under this Act; and if a minor is to be detained, an officer must for the purposes of determining where the minor is to be detained, regard the best interests of the minor as a primary consideration.” See The Parliament of the Commonwealth of Australia, Senate, Explanatory Memorandum, Migration Amendment (Immigration Detention Reform) Bill 2009, at p. 1 (available at http://parlinfo.aph.gov.au/parlInfo/download/legislation/ems/s720_ems_1284af8e-e006-4320-b4f3-cbcc9d8ded94/upload_pdf/33158em.pdf;fileType=application%2Fpdf); see also Bill Homepage, Migration Amendment (Immigration Detention Reform) Bill 2009 (available here)
Although the legislation partially addresses concerns regarding the detention of children in immigration detention centres, the Australian Human Rights Commission in its 31 July 2009 “Submission to the Senate Standing Committee on Legal and Constitutional Affairs” opined that the Bill only partially implemented the Government’s Value No. 3, and that “the Bill should increase human rights protections for children.” The Human Rights Commission recommended that “the Bill should be amended to ensure that Value 3 is fully implemented, including the commitment that, where possible, children’s families will not be detained in an immigration detention centre.” See Australian Human Rights Commission, “Submission to the Senate Standing Committee on Legal and Constitutional Affairs,” 31 July 2009 (available at http://www.hreoc.gov.au/legal/submissions/2009/20090731_migration.html#7).
As noted in the summary above, the Bakhtiyari family had also lodged a complaint with the UN Human Rights Committee. The UNHRC decision is entitled Bakhtiyari v. Australia, Comm no. 1069/2002; UN Doc CCPR/C/79/D/1069/2002, 29 October 2003 (Available at http://www.unhcr.org/refworld/category,LEGAL,HRC,,AUS,404887ed0,0.html).
CRIN believes that this decision is inconsistent with the CRC. As a state party to the CRC, Australia is obligated under Article 37 not to detain immigrant children, who may be especially vulnerable, except as a last resort. While the legislative developments following this decision offer some hope that the Australian government will begin treating all children in the country with respect and dignity, any policy that involves detaining children of questionable immigration status as a matter of course is a clear violation of the CRC.
Minister for Immigration and Multicultural and Indigenous Affairs v B,  HCA 20, 29 April 2004, A246/2003
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