CHEN YUAN FA v Federal Government
Legal
IN THE FEDERAL COURT OF AUSTRALIA
DARWIN DISTRICT REGISTRY
GENERAL DIVISION
DG 4 of 1995
BETWEEN:
CHEN YUAN FA
ApplicantAND:
MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
First RespondentAND:
COMMONWEALTH OF AUSTRALIA
Second Respondent
SUBMISSIONS OF THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION INTERVENING BY LEAVE
PART I: SUBMISSION
1. INTRODUCTION
The Human Rights and Equal Opportunity Commission ( Commission') was established by the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ("the HREOC Act"). On 13 April 1995, His Honour Justice Carr directed that leave be granted to the Commission, pursuant to s.11(1)(o) of the HREOC Act, to file and serve written submissions in these matters limited to the issues referred to in the application, no later than 14 days prior to the hearing.
2. SUMMARY OF THIS SUBMISSION
2.1. This submission is restricted to a consideration of the question of access of detainees to legal advice. It is submitted that this involves important international human rights principles which are an aspect of the wider issue of incommunicado detention.
2.2 International instruments are relevant to Australian domestic law firstly, in providing an influence upon the common law; secondly in so that they may be used by a domestic court to resolve any ambiguity in the common law or in a statute; and thirdly, in that in the absence of statutory or executive indications to the contrary, a person affected by the administrative conduct of the Commonwealth or its agencies is entitled to have a legitimate expectation that the Commonwealth will act in conformity with international obligations.
2.3 The primary international obligation relevant in this case is article 10 of the International Covenant on Civil and Political Rights ("ICCPR"), which deals with the treatment of persons deprived of their liberty.
2.4 The decisions made by the United Nations Human Rights Committee suggest that article 10 of the ICCPR prohibits detention incommunicado for even very short periods. These decisions are supported by pronouncements by other U.N. bodies.
2.5 Article 10 of the ICCPR has been interpreted so as to import other human rights instruments, including the Standard Minimum Rules for the Treatment of Prisoners and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment. Another international instrument, the Basic Principles on the Role of Lawyers, is also relevant to this issue.
2.6 A consideration of Article 10 of the ICCPR and the associated international instruments leads to the establishment of two principles which are fundamental to this submission:
I. A person who is being held in administrative detention must be advised of his or her right to request access to a legal adviser.
II. If a request is made for access to a legal adviser, such access must be provided without delay.
2.7 Section 256 of the Migration Act 1958 (Cth) is the relevant statutory provision which deals with the right of an immigration detainee to have access to a legal adviser. That section is silent on the question as to whether a detainee must be advised of the right to request such access. It is submitted that in view of this silence, and in the absence of statutory or executive indications to the contrary, the Court is entitled to look to the international instruments which clearly impose an obligation to advise a detainee of the right to request access to a legal adviser. It is further submitted that s.256 is unambiguous in its assertion that if a detainee requests such access it must be provided.
2.8 If there is a finding of fact by this Court either:
I. that the applicants and group members were not advised immediately upon being taken into custody by the respondents or their agents of their right to request access to a legal adviser; or
II. that the applicants and group members requested and were not given immediate access to legal advisers,
then the respondents and their agents have acted in breach of Australia's international obligations and s.256 of the Migration Act 1958 (Cth).
3. RELEVANT ALLEGATIONS RAISED IN THE APPLICATION AND SUPPORTING MATERIAL
3.1 In his further amended application dated 14 March 1995, the applicant and group members make the following factual allegations which are relevant to this submission:
(i) They have been detained in isolation since arrival in Australia on 13 November 1995 - paragraph 3(b)(i).
(ii) They have been denied their rights under Section 256 of the Migration Act 1958 until on or about 17 February 1995 - paragraph 3(b)(ii).
(iii) There has been intimidation and assault upon one of the group members namely, Chen Yuan Fa, by a guard after he asked the guard if he could see a lawyer following his arrival at the Immigration Detention Centre on or about 13 November 1994, and that this conduct deterred the other group members from making further requests of the authorities at that time for legal assistance - paragraph 3(b)(iii) and (iv).
(iv) There has been a failure by the respondents to provide the applicant and group members with the means to make formal applications for protection visas - paragraph 3(b)(v).
3.2 The applicant and group members claim that, as a result of the above mentioned conduct, they:
(i) Were denied procedural fairness - paragraph 3(b).
(ii) Were given legitimate expectations that they would be allowed to lodge valid applications for protection visas before 30 December 1994 - paragraph 3(c).
(iii) Made constructive applications for protection visas before 30 December 1994 - paragraph 3(d). The applicant also claims that by their representations and conduct, the respondents are estopped from denying that the applicant and other group members made constructive applications for protection visas before 30 December 1994 - paragraph 3(e).
3.3 In the supporting affidavit material, the following allegations relevant to this submission are made:
(i) The applicant says that from the time he and the group members arrived at the Port Hedland Detention Centre on or about 15 November 1994, they were held in isolation and not allowed to make contact with any people. [1] He alleges that they were held in complete isolation in D block for about 22 or 23 days [2] and they were released into the main area of the centre on or about 13 or 14 December 1995. [3]
(ii) The applicant and group members say that they needed a lawyer to help them, [4] and they were told by a welfare officer that the department of Immigration and Ethnic Affairs ("DIEA") was arranging a lawyer to see them. [5]
(iii) The applicant says that in D block there were a number of signs in Cantonese and English to facilitate communication with the authorities. One of these signs said "I want to see a lawyer". This sign had been copied into a notebook by one of the detainees, Tang Shang Qi. [6]
(iv) One of the group members, Chen. Yuan Fa, alleges that on or about 23 November 1994, he took the sign saying "I want to see a lawyer" and handed it to one of the detention centre guards, who responded by manhandling and kicking him, and shouting at him in a loud and angry voice. [7] This incident was witnessed by the applicant. [8] As a result of this incident, Chen Yuan Fa did not dare ask to see a lawyer again. [9] A few days after the incident someone, believed by the applicant to be one of the guards, used a black texture pen to black out those parts of the sign which stated "I want to see a lawyer", and the sign was later removed altogether. [10]
(v) On or about 23 December 1994, the applicant and two of the group members attended the administration block with the purpose of meeting with the Centre Manager to ask for a lawyer on behalf of all the persons on the boat, so as to confirm that they were being processed for refugee status and if not to advise them how to apply for refugee status. [11] The Centre Manager told them that DIEA would have to arrange this for them, but because there were so many people on boats arriving at this time DIEA could not arrange a lawyer at the moment. [12]
(vi) The applicant met with the Centre Manager about 10 times after the first meeting, during which time they discussed the provision of lawyers. [13]
(vii) A few days before 15 January 1995, the Centre Manager had said that the applicant and group members could not see a lawyer, as a result of which they- commenced a hunger strike. [14] Banners displayed during the hunger strike included demands to see lawyers. [15]
(viii)The first time the applicant and the group members saw lawyers was on 17 February 1995 [16] some 97 days after their arrival in Port Hedland.
(ix) The evidence of the applicant and Chen Yuan Fa is corroborated by numerous affidavits from other group members.
(x) The solicitor now acting for the applicant and group members says that on 24 November 1994, in his capacity as a solicitor acting for asylum seekers in Port Hedland, he wrote to the centre Manager requesting access to all persons on the "Albatross" so that he could provide them with preliminary legal advice. [17] In response to this request, a representative of DIEA wrote advising that none of the persons from that boat had requested the provision of reasonable facilities for obtaining legal advice, and that the request for access would therefore be formally declined. [18]
(xi) On 9 and 14 December 1994, the solicitor wrote letters to DIEA requesting confirmation that the Albatross detainees had been advised that they may request the provision of reasonable facilities for obtaining legal advice, but no response to these letters was received. [19]
(xii) The solicitor says that, in his experience, the standard time-frame within which DIEA would provide access to lawyers for asylum seekers in the Port Hedland Detention Centre was one month. [20]
(xiii)On 28 January 1995 a radio presenter employed with the Australian Broadcasting Corporation, Mr Mares, interviewed the Deputy Secretary of Ross Peter McDougall sworn 22 February 1995 of DIEA, Mark Sullivan. [21] In the transcript of the interview, Mr Sullivan states that
"anyone..who seeks access to a lawyer is given the facilities to make contact with a lawyer".
Mr Sullivan also states that DIEA are not advising detainees that they have the right to ask for a lawyer, because
"the Act provides that it's not the responsibility of an immigration officer to advise an unauthorised arrival as to what they may apply for."
(xiv) On 30 January 1995 the President of the Law Society of New South Wales, Maurie Stack, wrote to the Secretary of DIEA, Mr C. Conybeare, to express concern about the difficulty which asylum seekers were experiencing in obtaining access to independent legal advice. [22] Mr Conybeare's reply to that letter dated 24 March 1995, says that
"The Department's obligations arise only at the request of the person in immigration detention and require only the provision of 'all reasonable facilities' for the making of a statutory declaration, or for obtaining legal advice or taking legal proceedings in relation to the immigration detention... I have been advised that there is no legal obligation on the Department to inform people of any rights they might have under section 256 of the Migration Act."
Mr Conybeare also stated:
"The Council should be aware of the fact that once a person who is in immigration detention and is lawfully able to apply for a protection visa indicates an intention to do so they are granted access to free legal advice at the Commonwealth's expense."
4. ALLEGATIONS RAISED BY THE RESPONDENTS
4.1 The respondents affidavit material make the following allegations which are relevant to this submission:
(i) The boat "Albatross" was intercepted by the Australian authorities on 12 November 1994, [23] and the occupants were transferred from Darwin to Port Hedland on 15 November 1994. [24] The detainees were initially held in isolation in "J" Block and "D" Block, then ultimately into the main camp on 11 December 1994. [25]
(ii)Naval and quarantine officers, DIEA employees including members of the Boat Arrival Task Force, detention centre employees, interpreters and Australian Protective Service (APS) officers all variously deny or cannot recall any promises being made that the applicant or group members would he assisted with refugee claims or provided with lawyers, that they ever requested lawyers, or that the alleged assault upon Chen Yuan Fa ever took place.
(iii)The Manager of the Port Hedland Detention Centre, Mr Richardson, specifically denies that there was any notice in "D" Block saying "I want to see a lawyer", and he denies that there was ever any request to see a lawyer from the "Albatross" detainees prior to 6 January 1995. [26] It does appear from annexures MR6, MR7 and MR8 of Mr Richardson's affidavit that requests for lawyers were made by other boat arrivals and some of the "Albatross" detainees had requested to apply for refugee status.
(iv) The APS officer who is alleged to have assaulted Chen Yuan Fa denies the incident altogether [27] and other DIEA employees deny any knowledge or record of the incident.
5. INCOMMUNICADO DETENTION
5.1 The Commission submits that the factual issues raised in the application and supporting affidavits of each party raise the human rights issue of incommunicado detention, which has been defined by Rodley as follows:
"A prisoner who is held incommunicado is simply one who is unable to communicate with the world outside the place of detention. Normally a prisoner, once taken into custody, may be expected to be allowed to have contact with a lawyer, with family members, with a doctor, and possibly with others too... One who is held incommunicado, then, is one who is denied access to all of these" [28]
5.2 The Commission submits that the issue of access to legal advice is one aspect of the issue of incommunicado detention, and it is this issue which lies at the heart of this case. Without proper and timely access to legal advice, detainees are unable to gain access to the information and resources to enable them to exercise their legitimate rights at both international and domestic law.
6. RELEVANT INTERNATIONAL INSTRUMENTS
6.1 APPLICATION OF INTERNATIONAL HUMAN RIGl NORMS IN AUSTRALIAN MUNICIPAL LAW
6.1.1 There is a now well-established principle in Australian law that whilst ratification of a treaty does not incorporate its provisions into Australia's municipal law, it is a legitimate and important influence on the common law of this country. In Mabo -v- Queensland (1992) 175 CLR 1, Brennan J as he then was, made the following points in relation to the existence of native title in place of the formerly recognised common law doctrine of terra nullius, at p.42:
"Whatever the justification advanced in earlier days for refusing to recognise the rights and interests in land of the indigenous inhabitants of settled colonies, an unjust and discriminatory doctrine of that kind can no longer be accepted. The expectations of the international community accord in this respect with the contemporary values of the Australian people. The opening up of international remedies to individuals pursuant to Australia's accession to the Optional Protocol to the International Covenant on Civil and Political Rights bring to bear on the common law the powerful influence of the Covenant and the international standards it imports. The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights. A common law doctrine founded on unjust discrimination in the enjoyment of civil and political rights demands reconsideration. It is contrary both to international standards and to the fundamental values of our common law to entrench a discriminatory rule which, because of the supposed position on the scale of social organisation of the indigenous inhabitants of a settled colony, denies them a right to occupy their traditional lands."
6.1.2 Ratification of an international treaty will be particularly influential when there is any uncertainty or ambiguity in either the common law or municipal legislation. In such a case, ratification will allow the terms of the treaty to be used by a domestic court as an aid to resolve such uncertainty or ambiguity. Thus, in Chu Cheng Lim -v- Minister for Immigration, Local Government and Ethnic Affairs [29] Brennan, Deane and Dawson JJ stated:
"We accept the proposition that the courts should, in case of ambiguity, favour a construction of a Commonwealth statute which accords with the obligations of Australia under an international treaty." [30]
In Lim's Case, the provisions of the Migration Act 1958 (Cth) which were under scrutiny were however "quite unambiguous" [31] and the High Court was therefore unable to interpret the statute in accordance with Australia's international obligations.
6.1.3 The relevance of international treaty law was recently reaffirmed by the High Court of Australia in Minister of State for Immigration amid Ethnic Affairs -v- Hin Teoh [32] (Teoh's case), which considered whether the Convention on the Rights of the Child should have been taken into consideration by a decision - maker who refused the grant of resident status to the appellant. Mason and Deane JJ [33] (with whom Gaudron J concurred) [34] noted:
"It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute... But the fact that the Convention has not been incorporated into Australian law does not mean that its ratification holds no significance for Australian law. Where a statute or subordinate legislation is ambiguous, the courts should favour that construction which accords with Australia's obligations under a treaty or international convention to which Australia is a party..."
6.1.4 In Teoh's Case, their Honours also found that the fact that Australia had ratified the Convention on the Rights of the Child gave rise to a legitimate expectation that decision-makers will abide by the terms of the Convention:
"...ratification by Australia of an international convention is not to be dismissed as a merely platitudinous or ineffectual act, particularly when the instrument evidences internationally accepted standards to be applied by courts and administrative authorities in dealing with the basic human rights affecting the family and children. Rather, ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention. That positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the Convention…" [35]
6.1.5 In this submission, the relevance of the aforementioned international instruments is therefore as follows:
1. International instruments are an important influence in interpreting both the common law and legislation when determining the appropriate duties placed upon the Commonwealth and its agencies. They are a particularly important aid to interpretation when there is any uncertainty or ambiguity in the existing law.
2. Commonwealth legislation should be interpreted in such a way that it accords with Australia's obligations under international instruments, unless there is an unambiguous intention on the part of the legislature that this not be the case.
3. Persons who are affected by the administrative conduct of the Commonwealth and its agencies have a legitimate expectation that such conduct will he in conformity with Australia's obligations under international instruments.
6.2 INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS ("ICCPR") [36]
6.2.1 The ICCPR was ratified by Australia in 1980 [37] and is set out in the Schedule 2 of the HREOC Act. Australia is bound, as a matter of international law, to comply with the terms of the ICCPR. [38]
6.2.2 Under article 40(4) of the ICCPR, the Human Rights Committee (which is established by article 28) is empowered to transmit to the States Parties general comments relating to the interpretation of matters under the Convention. In General Comment No 15/27 of 22 July 1986 (Position of Aliens), the Committee stated that the rights and obligations recognised by the ICCPR apply to all persons within the territory of a State and subject to its jurisdiction, irrespective of his or her nationality or statelessness. [39] The applicant and group members in the present case would therefore be protected by the provisions of the ICCPR, regardless of their status as non citizens.
6.2.3 There are several articles in the ICCPR which are relevant to the issue of incommunicado detention, including articles 9(3), 14(3)(b) and 10(1). Of these, however, articles 9(1) and 14 (3)(b) are restricted to criminal cases and are not therefore directly relevant to administrative detention which is the issue in this case. Article 10(1) is, however, universally applicable. The Committee's General Comment No 21/44 of 6 April 1992 (Rights of Detainees) states that article 10(1) applies to:
"...anyone deprived of liberty under the laws and authority of the State who is held in prisons, hospitals - particularly psychiatric hospitals - detention camps, or correctional institutions or elsewhere." [40]
6.2.4 Article 10(1) states:
"All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person."
6.2.5 There have been a number of decisions of the Human Rights Committee relating to the issue of incommunicado detention under article 10(1). In general terms, the Committee has held that any such detention is in breach of article 10(1). [41] The shortest period of detention incommunicado to bring forth a finding of violation of Article 10(1) has been fifteen days [42] and other decisions involve detention incommunicado for periods of 44 days, [43] three months [44] and five months. [45]
6.2.6 In addition, the UN Special Rapporteur on torture has said that incommunicado detention "should not exceed seven days", including regular visits by a doctor, followed by a right to see "a lawyer and/or doctor" of choice immediately afterwards. [46] The UN Special Rapporteur on States of Emergency has also drawn attention to the high incidence of people detained incommunicado even for short periods during states of emergency, and has called for guarantees against incommunicado 1etention, and the right of "habeas corpus or other prompt and effective remedy" to be treated as non-suspendible. [47]
6.2.7 The Human Rights Committee has also interpreted article 10(1) to go beyond the issue of incommunicado detention simpliciter, so as to import the obligations of a State to accord the minimum standards of humane treatment in the conditions of detention, as found in other international instruments including the Standard Minimum Rules for the Treatment of Prisoners ("the Standard Minimum Rules"), and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment ("the Body of Principles"). This is consistent with the traveaux prepatoires for the ICCPR. In its 1958 report dealing with article 10 in its draft form, the Third Committee of the General Assembly made express reference to the Standard Minimum Rules, and specifically stressed that they should be taken into account in interpreting and applying article 10. [48] Moreover, in its General Comment on the Rights of Detainees, which deals specifically with article 10, the Human Rights Committee makes the following comment:
"5. States parties are invited to indicate in their reports to what extent they are applying the relevant United Nations standards applicable to the treatment of prisoners: the Standard Minimum Rules for the Treatment of Prisoners (1957), the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (1988), the Code of Conduct for Law Enforcement Officials (1978) and the Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (l982). [49]
6.2.8 As recently as April 1995, the Human Rights Committee has confirmed the relevance of the Standard Minimum Rules to Article 10 of the ICCPR. In its consideration of the Report submitted by the United States of America, the Committee called for a guarantee that persons deprived bf their liberty in U.S. prisons
"...be treated with humanity and with respect for the inherent dignity of the human person, and implementing the United Nations Standard Minimum Rules for the Treatment of Prisoners [50]
6.2.9 It is therefore submitted that article 10(1) is relevant to the present case not only in itself but also because it imports the principles set out in the Standard Minimum Rules and the Body of Principles. The latter two instruments will be dealt with below.
6.3 STANDARD MINIMUM RULES FOR THE TREATMENT OF PRISONERS [51]
6.3.1 The Standard Minimum Rules were adopted by the First UN Congress on the Prevention of Crime and the Treatment of Offenders in 1955, and endorsed by the UN Economic and Social Council ("Ecosoc") two years later. [52] The Standard Minimum Rules is not per se a legal instrument, since Ecosoc has no power to legislate. However, it does provide important guidance in interpreting the requirements of specific international instruments which are themselves binding, [53] including article 10 of the ICCPR.
6.3.2 The Standard Minimum Rules are primarily directed to criminal detainees; however, they are also relevant to persons detained under any non-criminal process, which includes administrative detention. Rule 94 states that such persons shall be accorded treatment "not less favourable than that of untried prisoners". In so far as untried prisoners are concerned, Rule 93 states that:
"For the purposes of his defence, an untried prisoner shall be allowed to apply for free legal aid where such aid is available, and to receive visits from his legal adviser with a view to his defence and to prepare and hand to him confidential instructions."
6.3.3 It is submitted that the principles set out in Rule 93 are applicable in the present case to impose an obligation to provide timely access of a detainee to a legal adviser for the purposes of providing general legal advice and assisting with an application for refugee status.
6.4 BODY OF PRINCIPLES FOR THE PROTECTION OF ALL PERSONS UNDER ANY FORM OF DETENTION OR IMPRISONMENT [54]
6.4.1 The United Nations General Assembly adopted the Body of Principles on 9 December 1988. [55] As its title suggests, the Body of Principles apply to all persons under any form of detention or imprisonment, including those held in administrative detention. The Body of Principles is not strictly binding in international law; however, as a resolution of the principal organ of the UN, it represents an authoritative set of internationally recognised standards and may be used for guidance in interpreting other instruments which are binding, including article 10 of the ICCPR. Moreover, the Body of Principles are not merely exhortatory or advisory; they envisage concrete government action to implement and enforce the provisions. Principle 7(1) provides:
"States should prohibit by law any act contrary to the rights and duties contained in these principles, make any such act subject to appropriate sanctions and conduct impartial investigations upon such complaints."
6.4.2 The Body of Principles is explicit and unambiguous in the obligations which it places upon States. It is submitted that the most important provisions in the present context are as follows:
"Principle 13
"Any person shall, at the moment of arrest and at the commencement of detention or imprisonment, or promptly thereafter, be provided by the authority responsible for his arrest, detention or imprisonment, respectively with information on and an explanation of his rights and how to avail himself of such rights.
"Principle 15
"Notwithstanding the exceptions contained in principle 16, paragraph 4, and principle 18, paragraph 3, communication of the detained or imprisoned person with the outside world, and in particular his family or counsel, shall not be denied for more than a matter of days.
"Principle 17
"1. A detained person shall be entitled to have the assistance of a legal counsel. He shall be informed of his right by the competent authority promptly after his arrest and shall be provided with reasonable facilities for exercising it.
"Principle 18
"1. A detained or imprisoned person shall be entitled to communicate and consult with his legal counsel."
As to the meaning of "promptly", the Human Rights Committee's General Comment on Liberty and Security of the Person suggests that "delays must not exceed a few days". [56]
6.5 UN BASIC PRINCIPLES ON THE ROLE OF LAWYERS [57]
6.5.1 The Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, at its meeting in Havana, Cuba, from 27 August to 7 September 1990, adopted by consensus the Basic Principles on the Role of Lawyers ("the Lawyers' Principles"). In a resolution of 14 December 1990, the UN General Assembly "welcomed" the instruments adopted by the Congress and invited
"Governments to be guided by them in the formulation of appropriate legislation and policy directives and to make efforts to implement the principles contained therein...in accordance with the economic, social, legal, cultural and political circumstances of each country." [58]
6.5.2 The preamble to the Lawyers' Principles notes that they have been formulated:
"...to assist member States in their task of promoting and ensuring the proper role of lawyers, should be respected and taken into account by Governments within the framework of their national legislation and practice and should be brought to the attention of lawyers as well as other persons, such as judges, members of the executive and the legislature, and the public in general."
6.5.3 The preamble also notes that:
"adequate protection of the human rights and fundamental freedoms to which all persons are entitled, be they economic, social and cultural, or civil and political, requires that all persons have effective access to legal services provided by an independent legal profession."
6.5.4 Principle 2 provides:
"Governments shall ensure that efficient procedures and responsive mechanisms for effective and equal access to lawyers are provided for all persons within their territory and subject to their jurisdiction, without distinction of any kind, such as discrimination based on race, colon r, ethnic origin sex, language, religion, political or other opinion, national or social origin, pn birth, economic or other status."
7. RELEVANT PRINCIPLES REFERRED TO IN THE AUSTRALIAN CONTEXT
7.1 STANDARD GUIDELINES FOR CORRECTIONS IN AUSTRALIA [59]
7.1.1 The Standard Guidelines for Corrections in Australia ("the Australian Guidelines") were developed as a result of a seminar conducted by the Australian Institute of Criminology in 1976, and the first edition was published in 1978. The current edition was agreed to by a Correctional Administrators Conference in 1986 and was published in 1989. A national standards body, comprising Ministers responsible for Corrections throughout Australia and New Zealand, is the authority established to regularly review the Australian Guidelines. [60]
7.1.2 The Australian Guidelines are based upon the Standard Minimum Rules, and "...are not intended to be law or to be treated as absolute; they are for guidance." [61]
7.1.3 The Australian Guidelines deal primarily with prisons (defined in section 2 as "any building, enclosure or place legally declared to be a prison for the lawful custody of persons committed by lawful authority"), and as such do not deal directly with administrative detention. However, the fact that they are expressed to be based upon the Standard Minimum Rules, which in turn deals with administrative detainees under Rule 94, would in this submission make the Australian Guidelines relevant when determining the rights of persons held in immigration detention.
7.1.4 It is submitted that the relevant provisions in the Australian Guidelines are as follows:
"5.3 Every prisoner on reception must be provided with written information about the regulations governing the treatment of prisoners, the disciplinary requirements of the prison, the authorised methods of seeking information and making complaints, and all such matters as are necessary to enable the prisoner to understand their rights and obligations and to adapt to the life of the prison."
"5.5 All prisoners must be allowed, as soon as they are imprisoned, to choose a legal representative or apply for free legal aid where such aid is available. They must be allowed to receive visits from legal advisers regarding their defence or legal actions; and to prepare and hand to the legal adviser, and to receive, confidential instructions. At their request they must be given, wherever practicable, all necessary facilities for this purpose including access to materials to allow them to prepare their own defence. In particular, where they do not understand English, they must be given the free assistance of an interpreter for essential contacts with the prison administration, and for their defence."
7.2 JOINT STANDING COMMHTEE ON MIGRATION REGULATIONS
7.2.1 In 1991 and 1992, the Joint Standing Committee on Migration Regulations ("the Committee") held an inquiry into refugee and humanitarian visas and entry permits. The focus of the inquiry was Australia's on-shore refugee and humanitarian system, and it took place
"…in the context of Ethel changing refugee environment, both at the international and domestic level, and the rising crisis of numbers within the on-shore system." [62]
7.2.3 The Committee presented its report to Parliament in August 1992.
7.2.4 Chapter 7 - "Border Claimants: Processing and Detention Practices" - dealt with the detention and processing of refugee claimants who were held in detention, particularly in the Port Hedland detention centre. The chapter dwelt at some length on the problems which the Cambodian asylum seekers had experienced in obtaining access to legal assistance.
7.2.5 In its concluding comments to chapter 7, the Committee stated that it was of the view that
"...border claimants should have the right to obtain legal assistance, and should be advised of that right in a clear, comprehensible and timely manner" A written statement to this effect should be provided to border claimants as soon as they have indicated their intention to apply for refugee status." [63]
8. MIGRATION ACT 1958 (CTH)
8.1 The relevant provision in the Migration Act 1958 (Cth) ("the Act") which deals with access to legal advice is s.256, which states:
"Where a person is in immigration detention under this Act, the person responsible for his or her immigration detention shall, at the request of the person in immigration detention, afford to him or her all reasonable facilities for making a statutory declaration for the purposes of this Act or for obtaining legal advice or taking legal proceedings in relation to his or her immigration detention."
8.2 Apart from some cosmetic changes, s.256 has survived intact from its original form as s.41 in the 1958 Act and as s.96 in the major amendments to the Act in December 1989. The current re-numbering of the section is a result of the Migration Reform Act 1993 (Cth), which commenced on 1 September 1994.
8.3 Whilst the 1958 Parliamentary debates surrounding the original Migration Bill shed little light on the interpretation of section 256 or its predecessors, it is clear that this aspect of the new legislation was introduced in the spirit of humanity and justice. In introducing the new legislation, then Minister for Immigration, Sir John Downer, referred to "important checks" on the Minister's authority "to ensure a further degree of justice for the individual." [64] One example of such checks, according to Mr Downer, was clause (later section) 41 of the bill, which
"...ensures that persons arrested must be given all reasonable facilities for obtaining legal advice and taking legal proceedings."
The humanitarian nature of the new bill was taken up by Mr Joske, who congratulated the Minister on his "vision and humanity" most clearly seen in the deportation safeguards, [65] and this was echoed in the Senate, where Senator Wood declared the safeguards contained in clause 41 and several accompanying clauses to be
"...in keeping with what we consider to be the liberty of the individual, and they should find favour in the hearts and minds of us all, because I am sure we would all wish immigrants in this c to be treated as we ourselves would wish to be treated if we were in their position." [66]
Referring to another of the Minister's safeguards in this package, Senator Wood described the introduction of detention centres in place of gaol for holding deportees as
"...a forward step, one that is in keeping with the human rights of individuals who are not guilty of any serious crime." [67]
8.4 It is in this spirit of justice and respect for human rights which, it is submitted, the present s.256 should be interpreted.
9. CONCLUSIONS
9.1 IS THERE AN OBLIGATION TO PROVIDE ACCESS TO LEGAL ADVICE ?
9.1.1 It is submitted that where a person in immigration detention requests access to legal advice, that access must be provided. It is submitted that this obligation not only exists by virtue of the s.256 requirement that a person must be given "reasonable facilities" for "obtaining legal advice" (a requirement which would be defeated by the refusal to provide access), but this obligation exists independently of s.256, by virtue of the international obligations referred to above and by the absence of any explicitly contrary domestic law.
9.1.2 It is also submitted that the international obligations require that such access be provided immediately that it is requested.
9.1.3 It is submitted that the obligation to provide access to legal advice exists regardless of whether the person in detention intends to or is lawfully able to apply for a protection visa. In this respect, reference is made to the second comment by Mr Conybeare at paragraph 3.3 (xii) above (p.7) that
"once a person who is in immigration detention and is lawfully able to apply for a protection visa indicates an intention to do so they are granted access to free legal advice at the Commonwealth's expense."
It is submitted that s.256 requires that access to legal advice must be refugee application. These would include "the taking of legal proceedings in relation to his or her detention" (as stated in the section) or simply advice as to the non-availability of access to the refugee determination process.
9.1.4 It is therefore submitted that, should it be shown as a matter of fact that the applicant or any of the group members requested access to legal advice and were refused such access, there is a breach of s.256 and of Australia's international obligations.
9.2 IS THERE AN OBLIGATION TO ADVISE DETAINEES OF THEIR RIGHT TO REQUEST LEGAL ADVICE?
9.2.1 However, it is apparent from the evidence of Mr Mares [68] and Mr Slade [69] that DIEA does not regard itself as being under an obligation to advise detainees that they are entitled to request a legal adviser.
9.2.2 It is submitted that this policy is in breach of Australia's international obligations and also in breach of s.256. There are several reasons for this.
9.2.3 In the first place, s.256 is silent as to whether a detainee must he advised of his or her right to request legal advice. This is in contrast with principle 17(1) of the Body of Principles, which deals with both the obligation to inform the detainee of the right to legal counsel, then goes on to the obligation to provide reasonable facilities. Section 256 is silent as to the first leg, commencing its operation where the detainee is presumably aware of this right and has made the request. Where such a request has been made, the section then requires that the "reasonable facilities" be afforded. Thus the Attorney-General's Department, in evidence before the Joint Standing Committee on Migration Regulations, advised that
"reasonable facilities' could be afforded under the Act by providing paper and writing or typewriting implements, a telephone, facsimile or postal facilities, or a room in which a lawyer could consult with the person in custody." [70]
Similarly, guideline 5.5 of the Australian Guidelines treats "necessary facilities" as being "access to materials to allow them to prepare their own defence." [71]
9.2.4 Section 256 may also be contrasted with s.193(2) of the Act, which is clear in its exclusion of any obligation to advise or even allow detainees under s. 189 of their right to apply for any visa or access legal advice. In the present case, where the applicant and group members are being held under s. 178, it is submitted that nothing short of an exclusion in the same or similar terms as s.193(2) would suffice to extinguish the obligation on the Commonwealth and its agents to advise the applicant and group members detainees of their right to request a legal adviser. Such an exclusion, it is submitted, would be in breach of Australia's international obligations.
9.2.5 In the absence of such an exclusion, or to use the words of the High Court in Teoh's Case [72] absent statutory or executive indications to the contrary", it is submitted that the Court in the present case is entitled to construe the statute in a way which accords with the obligations of Australia under international treaty.
9.2.6 It has been submitted that in the present case the relevant international obligations are those under to Article 10(1) of the ICCPR, and the Standard Minimum Rules (particularly Rules 93 and 94) and the Body of Principles (particularly Principles 13, 15, 17 and 18). It is submitted that these instruments taken together unambiguously impose an obligation upon the Commonwealth to advise a detainee of the right to request a legal adviser. The Lawyers' Principles, the Australian Guidelines and the Joint Standing Committee on Migration Regulation Regulations are consistent with these instruments and are persuasive additional authorities in interpreting the obligation placed upon the Commonwealth.
9.2.7 It is submitted that this construction is not only in accordance with Australia's international obligations, but it also takes the common sense approach which appears to have been advocated by the Attorney- General's Department, which is quoted in the evidence of Mr Mares as advising the respondents that
"It would be sensible, as a matter of practice, for the authorities to ask the detained person whether he or she desires to seek the advice of a lawyer." [73]
9.2.8 It is submitted that it is common sense that persons arriving on Australia's shores will be seeking some sort of entry, even if they do not explicitly state what type of entry they are seeking. It is common sense that such persons will need the assistance of legal advisers not only with any application which they may wish to make, but also to advise them if there is no relevant application which they are able to make. The Act and regulations are notoriously difficult to understand, and it is submitted would be incomprehensible by persons of non-English speaking background. In this context, the following remarks of Wilcox J are pertinent:
"The task of ascertaining the position in relation to a particular applicant or a particular type of visa or entry permit is akin to feeling one's way through a labyrinth. Perhaps there are officers [of the Department of Immigration] who can confidently move around this new regulatory environment, but it must be impossible for ordinary people affected by the regulations to do so; particularly as many of these people have little or no command of English or experience in legal matters." [74]
9.2.9 It is submitted that whether or not a person is seeking any form of entry to Australia, or is entitled to seek such entry, as long as that person is being held in detention he or she is entitled to be advised of the right to request a lawyer and be provided with access to a lawyer upon request. It is submitted that this is a fundamental right of all persons in detention.
9.2.10 It is an extremely simple process to advise a detainee that he or she may request access to a legal adviser. This is not an onerous task for decision- makers to discharge. It does not require a decision-maker to undertake a search of international instruments to ascertain which treaty provisions will be relevant and to what decisions the provisions might be relevant, a concern recently expressed by the Attorney-General. [75] The right to be advised of the availability of a legal adviser, and the right to be then given access to a legal adviser, is fundamental right which can easily he discharged.
9.2.11 Yet if the current policy of DIEA as stated by Mr Sullivan and Mr Conybeare is taken to its logical extent, it is proclaiming to persons held in detention: "you have fundamental rights, but we won't tell you about them unless you ask us". It is submitted that this policy is not only in breach of Australia's international obligations, but it undermines and renders illusory the safeguards set out in s.256. One could ask what is the purpose of having rights, if affected persons are not made aware of them? It is submitted that fundamental human rights should not be undermined by semantic niceties such as whether or not a person has thought or even possesses the relevant knowledge to request access to such rights.
9.2.12 In a similar vein back in 1958, Senator Wright queried a provision in clause 39, which provided that an arresting officer shall "if that person so requests", furnish particulars of any deportation order to an arrestee:
"It is the words 'if that person so requests' with which I am concerned. It is surely good procedure, where a deportation order warrants an arrest, that the particulars of that deportation order, in writing, should be furnished immediately to the person arrested. Having regard to the illiteracy and language difficulties of some migrants, I submit that it is not in accord with our ideas of British justice that we should furnish them with an order only if they so request." [76]
9.2.13 It is submitted that this concept of justice, now overlaid with almost forty years of human rights development, must apply in the interpretation of the rights and obligations before this Court.
Dated the 26th day of May, 1995
HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
NICK POYNDER
Legal Officer
1. Affidavit of Wu Yu Fang sworn 20 March 1995, paragraph 8
6. Affidavit of Tang Shang Qi sworn 4 April 1995
7. Affidavit of Chen Yuan Fa sworn 22 February 1995, paragraphs 7-8
8. Affidavit of Vu Yu Fang sworn 20 March 1995, paragraph 11
9. Affidavit of Chen Yuan Fa sworn 22 February 1995, paragraph 12
10. Ibid, paragraph 14: affidavit of Wu Yu Fang sworn 20 March 1995, paragraph 12
15. Ibid, paragraph 18 and annexure D
17. Affidavit of Ross Peter Mc Dougall sworn 22 February 1995, paragraph 4 and annexure A
18. Ibid, paragraph 6 and annexure B
19. Ibid, paragraphs 9 and 11 and annexures C and D
20. Affidavit of Ross Peter McDougall sworn 20 March 1995, paragraph 5
21. Affidavit of Peter William Mares sworn 5 May 1995
22. Affidavit of Bennett James Leslie Slade affirmed 8 May 1995
23. Affidavit of Gregory Charles Kelly sworn 28 March 1995
24. Affidavit of Joseph Robert Rodigari sworn 24 February 1995
25. Affidavit of Malcolm Haywood Richardson sworn 28 March 1995, paragraph 5
26. Affidavit of Malcolm Haywood Richardson sworn 28 March 1995, paras 11 and 14
27. Affidavit of Darren James Sharp sworn 23 February 1995
28. N.Rodley, The Treatment of Prisoners Under international Law, (Oxford: Clarendon Press), l987 p.264
30. Ibid, p.38. See also Dietrich -v- R (1992-93) 177 CLR 292 per Mason CJ and McHugh J at p.306; and M. Kirby, "The Australian Usage of International Human Rights Norms: From Bangalore to Balliol - A view from the Antipodes" (1993) 16(2) UNSWLJ 363.
31. (l992) 176 CLR 1. p.38 per Brennan Deane and Dawson JJ
35. Ibid, p365. See also Toohey J at p.374; Gaudron J at p.375
37. Department of Foreign Affairs and Trade ("DFAT") Treaty Series 1980. No 1, 10
38. N.O'Neill and R.Handlev. Retreat from Injustice: Human Rights in Australian Law (Annandale: Federation Press), 1994, p.118
39. Reproduced in M.Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (Kehl am Rhein: Engel) 1993, p.861; see also article 2(1)
40. Reproduced in M.Nowak. Ibid, pp.873-874
41. Under the First Optional Protocol to the ICCPR participating States undertake to permit persons subject to their jurisdiction to bring complaints of human rights violations by that State to the Human Rights Committee, which publishes its decisions and presents a summary of its activities in its annual report. Australia has ratified the First Optional Protocol, which came into force for Australia on 25 December 1991.
42. Arzuaga (Gilboa) - v- Uruguay (147/1983), Selected Decisions of the Human Rights Committee under the Optional Protocol, UN doc.CCPR/C/OP/2 1990 p.176
43. Penarrieta -v- Bolivia (176/84), ibid. p 201
44. Conteris -v- Uruguay (139/1983), ibid. p.168
45. Machado -v- Uruguay (83/198 1), ibid. p.108
46. UN docE/CN.41/1986/15. para. 151
47. Cited in S. Marks, "Civil Liberties at the Margin: the UK Derogation and the European Court of Human Rights", (1995) 15 Oxford Journal of Legal Studies p.69 at pp.82-83
48. United Nations, Official Records of the General Assembly, Thirteenth Session, Third Committee, 16 September to 8 December 1958, pp.160-173 and 227-241. Some States in fact called for an express reference to these rules in article 10, although this was not included in the final draft.
50. Human Rights Committee, Consideration of Reports Submitted by States parties Under Article 40 of the Covenant, UN doc CCPR/C/79/Add 50, 1413rd meeting, fifty-third session, 6 April 1995
52. Ecosoc res. 663 C (XXIV), 31 July 1957
53. N.Rodley, op cit not 28, p.222
55. UN General Assembly Resolution 43/173
56. General Comment 8/16 of 27 July 1982, reproduced in M. Nowak, op cit note 39, p 853
58. UN General Assembly Resolution 45/121
60. Standard State Guideline for corrections in Australia, (1989) Melbourne: Conference of Correctional Administrators, preface
62. Joint Standing Committee on Migration Regulations, Australia's Refugee and Humanitarian System: Achieving a Balance Between Refuge and Control, (1992) Canberra: AGPS, p.3
63. Ibid, paragraph 7.131, p.179
64. House of Representatives Hansard, 7 Eliz II Vol H of R 19, 1 May 1958. p. 1397
65. Ibid, Vol H of R 20, 5 August 1958, p.1397
66. Senate Hansard, 7 Eliz II Vol S 13, pp. 707 - 708
68. Affidavit of Peter William Mares sworn 5 May 1995
69. Affidavit of Bennett James Leslie Slade affirmed 8 May 1995
70. Joint Standing Committee on Migration Regulations, op cit note 62
73. Affidavit of Peter William Mares sworn 5 May 1995, Annexure A
74. Eremin -v- Department of Immigration and Ethnic Affairs, unreported decision of the Federal Court of Australia, 1 August 1990
75. International Treaties and the High Court Decision in Teoh, Joint Statement by the Minister for Foreign Affairs, Senator Gareth Evans, and the Attorney-General, Michael Lavarch, 10 May l995 p.2
76. Senate Hansard, 7 Eliz II Vol S 13, p.721
Last updated 20 May 2003.
