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³ The European Court of Human Rights, for example, has held that where the deportation order itself is illegal because it violates national or Convention law, detention pending execution of that order is however not a breach of the right to liberty (See Chahal v United Kingdom (1997) 23 EHRR 413).Google Scholar

⁴ See the opinion of Scalia, J at n 63 below and the Australian Migration Act 1958.Google Scholar

⁵ See Jennings, R and Watts, AOppenheim's International Law (9th ednLongman 1992), 897–8 and 941;Google ScholarAttorney-General for the Dominion of Canada v Cain [1906] AC 542, at 546 where Atkinson, Lord stated: ‘One of the rights possessed by the supreme power in every State is the right to refuse to permit an alien to enter that State, to annex what conditions it pleases to the permission to enter it and to expel or deport from the State, at pleasure, even a friendly alien, especially if it considers his presence in the State opposed to its peace, order and good government, or to its social or material interests: Vattlel, Law of Nationals, book 1, S 231; book 2, s 125.’ See also Chahal v UK (1996) 1 BHRC 405, at 422.Google Scholar

⁶ See Goodwin-Gill, G ‘The Limits of the Power of Expulsion in Public International Law’ (1974–1975) 47 BYIL 55–156;Google ScholarInternational Law and the Movement of Persons between States (OxfordOUP 1978).Google Scholar

⁷ Goodwin-Gill, , op tit and Oppenheim, op cit at 941: ‘[W]hile a state has broad discretion in exercising its right to expel aliens, its discretion is not absolute. Thus, by customary international law it must not abuse its right by acting arbitrarily in taking its decisions to expel an alien, and it must act reasonably in the manner in which it effects an expulsion.’Google Scholar

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⁹ Oppenheim above n 5 at 945.Google Scholar

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¹¹ The right to vote is clearly a norm which is reserved for citizens (see Art 25 ICCPR).Google Scholar

¹² Art 9(4) states: ‘Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that the court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.’Google Scholar

¹³ No 305/1988.Google Scholar

¹⁴ See the discussion of the travaux preparatoires in Bossuyt, MJGuide to the ‘Travaux Preparatories’ of the International Covenant on Civil and Political Rights (DordrechtMartinus Nijhoff Publishers 1987) at 172 where they understood arbitrary detention to include injustice, unpredictability, unreasonableness, capriciousness, and unproportionality.Google Scholar

¹⁵ No 560/1993.Google Scholar

¹⁶ At para 9.2.Google Scholar

¹⁷ At para 9.4.Google Scholar

¹⁸ No 900/1999. Meeting on 28 Oct 2002.Google Scholar

¹⁹ At para 8.2.Google Scholar

²⁰ See eg decision in Jalloh v Netherlands, Communication No 794/1998 of 15 Apr 2002 (CCPR/C/74/D/794/1998) where the Committee ruled that detention for 3.5 months pending deportation was not unreasonable given the accepted absconding risk.Google Scholar

²¹ This is the approach taken by the UN Economic and Social Council Working Group on Arbitrary Detention in their Deliberation No 5 (E/CN.4/2000/4., 28 Dec 1999) which stipulates that the maximum period of detention should be set by law and may not be excessive. See also UNHCR Executive Committee Conclusion No 44 (1986) which opines that detention should be avoided but may be justified, inter alia, in order to ‘determine the elements on which the claim to refugee status…is based’ and should not be ‘unduly prolonged’.Google Scholar

²² (1996) 22 EHRR 533.Google Scholar

²³ See Guzzardi v Italy (1980) 3 EHRR 333Google Scholarand Engel v Netherlands (1976) 1 EHRR 647 in which the Court distinguished between a deprivation of liberty and a mere restriction on liberty which is now regulated by Art 2 Protocol No 4.Google Scholar

²⁴ Amuur, at para 43.Google Scholar

²⁵ Para 48.Google Scholar

²⁶ See Secretary of State for the Home Department ex parte Saadi and Others [2002] UKHL 41 where detention in a military barracks which allowed movement within it but not beyond it was held to be caught by Art 5(1).Google Scholar

²⁷ (1997) 23 EHRR 137.Google Scholar

²⁸ At para 112. This is in contrast to those detained on bail pending criminal charges under Art 5(l)(c) who must present such a risk of absconding or further offences.Google Scholar

²⁹ See Winterwerp v Netherlands (1979–1980) 2 EHRR 387.Google Scholar

³⁰ See Wittold Litwa v Poland (2001) 33 EHRR 1267.Google Scholar

³¹ The United Kingdom House of Lords has in fact ruled that proportionality does apply to Art 5(l)(f) in a limited form.Google ScholarSee Secretary of State for the Home Department ex parte Saadi and Others [2002] UKHL 41. The Strasbourg Court has reaffirmed its traditional stanch, see App 51564/99, Conka v Belgium, 5 Feb 2002.Google Scholar

³² Chahal, , at para 118.Google Scholar

³³ At para 113.Google Scholar

³⁴ See eg Airey v Ireland (1979) 2 EHRR 305.Google Scholar

³⁵ See Overy, C and White, RCAEuropean Convention on Human Rights (OxfordOUP 2002) at 130.Google Scholar

³⁶ Quinn v France (1995) 21 EHRR 529.Google Scholar

³⁷ Kolompar v Belgium (1993) 16 EHRR 197.Google Scholar

³⁸ See Saadi above n 25.Google Scholar

³⁹ Soering v United Kingdom (1989) 11 EHRR 439 at para 89. There is however some divergence amongst academics on the question of whether proportionality has a role to play throughout the Convention or whether it is largely confined to Arts 8–11.Google ScholarSee n 32 at 5 where only qualified rights are said to give rise to questions of proportionality. By contrast see Starmer, KEuropean Human Rights Law (Legal Action Group 1999) at 169, who states that ‘the principle of proportionality is the defining characteristic of the Strasbourg approach to the protection of human rights’.Google Scholar

⁴⁰ See ICCPR Art 4 and ECHR Art 15.Google Scholar

⁴¹ Australia did not seek to derogate from Art 9 ICCPR.Google Scholar

⁴² See, eg, Ireland v United Kingdom (1979–1980) 2 EHRR 25.Google Scholar

⁴³ Lawless v Ireland (1979–1980) 1 EHRR 1 at para 28.Google Scholar

⁴⁴ Ireland v United Kingdom (1979–1980) 2 EHRR 25.Google Scholar

⁴⁵ See the discussion in Novak, MUnited Nations Covenant on Civil and Political Rights: CCPR Commentary (KehlNP Engel 1993) at 79. See also Siracusa Principles on Limitation and Derogation provisions in the ICCPR. E/CN.4/1985/4.Google Scholar

⁴⁶ See Aksoy v Turkey (1996) 23 EHRR 553.Google Scholar

⁴⁷ [2003] 1 All ER 816.Google Scholar

⁴⁸ At para 47.Google Scholar

⁴⁹ Arts 41 and 42 Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1949): Arts 9, 32, and 33 Convention Relating to the Status of Refugees (1951); Art 4 International Covenant on Civil and Political Rights.Google Scholar

⁵⁰ (1996) 23 EHRR 364.Google Scholar

⁵¹ See eg Geneva Convention Relative to the Protection of Civilian Persons in time of War (1949) Art 42.Google Scholar

⁵² In the absence of incorporation treaties may still have some legal effect in public law. In Australia for example there is authority holding that executive ratification of treaties may create a legitimate expectation in certain circumstances. Minister of State for Immigration s v Teoh (1995) 128 ALR 353 (High Ct).Google ScholarThis has been endorsed by the recent decision in Minister for Immigration and Multicultural Affairs exparte Lam [2003] HCA 6 (12 Feb 2003).Google Scholar

⁵³ Chae Chan Ping v United States 130 US 581 (1889).Google Scholar

⁵⁴ See Nishimura Ekiu v United States 142 US 651 (1892) which held that the rules laid down by Congress are due process of law.Google Scholar

⁵⁵ See the excellent discussion in ‘The Constitutional Foundations of Immigration Law’ ch 9 United States Immigration Law (Maththew Bender and Co 1997)Google Scholar

⁵⁶ See Yick Wo v Hopkins 118 US 356 in which a ban on Chinese laundries was overturned under the Fourteenth Amendment.Google Scholar

⁵⁷ Particularly large numbers occurred during the Mariel Cuban episode when some 130,000 migrants arrived. This was followed by large numbers of Haitians in later years. There have been naval engagements with some of these migrants.Google Scholar

⁵⁸ 8 USC 1182(d)(5)(A) and 8 CFR s 235.3 which require detention subject only to release in the discretion of the Attorney General in a medical emergency or a to meet a legitimate law enforcement objective.Google Scholar

⁵⁹ 8 USC 1231(a)(2).Google Scholar

⁶⁰ ‘During the removal period, the Attorney General shall detain the alien. Under no circumstances shall the Attorney General release an alien who has been found inadmissible under section 1182(a)(2) or 1182(a)(3)(B) of this title or deportable under section 1227(a) or 1227 (a)(4)(B) of this title.’Google Scholar

⁶¹ The classes of inadmissible and criminal aliens are in fact very wide and membership does not require any particularly heinous conduct. Thus ordinary visa violators are covered. See 8 USC 1182.Google Scholar

⁶² 8 USC 1231(a)(6)Google Scholar

⁶³ 533 US 678 (2001)Google Scholar

⁶⁴ 8 CFR 241.4 (d) appears to impose the burden of proving the absence of danger to the community or flight risk upon the detainee. The government also disputed that there could be judicial review of the Attorney General's determination of this issue. See Breyer, J, at III A para 4.Google Scholar

⁶⁵ Scalia, J and Kennedy, J gave separate dissenting opinions.Google Scholar

⁶⁶ See the discussion at III. This means that where a statute raises a ‘serious doubt’ as to its constitutionality ‘this Court will first ascertain whether a construction of the statute is fairly possible by the question may be avoided’ (Crowell v Benson 285 US 22, 62).Google Scholar

⁶⁷ III A para 1.Google Scholar

⁶⁸ Ibid.

⁶⁹ III A para 2. Citing United States v Salerno 481 US 739 (allowing pre-trial detention only for the most serious crimes and subject to stringent time limits) and Foucha v Louisiana 504 US 71 (striking down insanity-related detention that placed the burden on the detainee to prove nondangerousness).Google Scholar

⁷⁰ At para 1.Google Scholar

⁷¹ Kennedy, J with whom Rehnquist CJ joined and Scalia and Thomas JJ joined in part.Google Scholar

⁷² Part II para 7.Google Scholar

⁷³ United Nations Working Group on Arbitrary Detention, UN Doc E/CN.4/2000/4 (28 Dec 1999) and United Nations High Commissioner for Refugees, Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers (10 Feb 1999).Google Scholar

⁷⁴ 345 US 206 (1953).Google Scholar

⁷⁵ Lynch v Cannatella, 810 F 2d 1363 (1987).Google Scholar

⁷⁶ Zadvydas, III A at para 7.Google Scholar

⁷⁷ (8 USC 1225 (b)(2)(A)) In the case of asylum seekers who are otherwise inadmissible, detention is mandatory pending their establishment of a ‘credible fear’ of persecution (8 USC 1225 (b)(l)(B)(IV).Google Scholar

⁷⁸ See the earlier litigation conducted on behalf of immigrants detained at Guantanamo Bay in Cuban American Bar Association, Inc v Christopher, 43 F 3d 1412 (11th Cir 1995). The recent Supreme Court decision on the status of detainees at Guantanamo Bay did not consider the decision in Mezei. See Rasul v Bush 321 F 3d 1134. The implication may be that prolonged detention does merit a procedurally fair hearing.Google Scholar

⁷⁹ Barrera-Echavarria v Rison, 44 F 3d 1441 (9th Cir. 1995) (en bane) holding that indefinite detention of excludable Cubans was constitutional.Google Scholar

⁸⁰ Fernandez v Wilkinson 505 F Supp 787 (1980).Google Scholar

⁸¹ United States Court of Appeals (Sixth Circuit) decision in Rosales-Garcia v Holland, No 99-5683 (2003).Google Scholar

⁸² Fernandez-Roque v Smith 567 F Supp 1115 (1983).Google Scholar

⁸³ Fernandez-Roque v Smith 734 F 2d 576 (1984). The Court rejected the distinction between formal entry and parole, holding that the latter was part of the admissions process itself and thus could not be isolated as a discrete issue justifying constitutional protection.Google Scholar

⁸⁴ See Immigration Act 1971.Google Scholar

⁸⁵ See Crime, Anti-Terrorism and Security Act 2001 and Nationality, Immigration and Asylum Act 2002.Google Scholar

⁸⁶ See FAR Benion Statutory Interpretation (3rd ednLondonButterworths 1997) at 645–8.Google ScholarLiversidge v Anderson [1942] AC 206 is viewed as an aberration and was criticized in the later House of Lords decision in Khawaja v Secretary of State for the Home Department [1983] 1 All ER 765.Google Scholar

⁸⁷ Khawja at 790.Google Scholar

⁸⁸ Ibid at 782.

⁸⁹ ‘[A] person … may be detained…pending a decision to give or refuse him leave to enter’ (para 16(1) Schedule 2); ‘a person may be detained … pending the giving of directions and pending his removal in pursuance of any directions given’(para 16(2) Schedule 2) and ‘Where a deportation order is in force against any person, he may be detained … pending his removal or departure’(para 2(3) Schedule 3).Google Scholar

⁹⁰ Immigration Service Instructions to Staff on Detention in the Operation Enforcement Manual, 21 Dec 2000. See also Guidance Notes for Adjudicators from the Chief Adjudicator. (Revised Jan 2002) (Immigration Appellate Authority).Google Scholar

⁹¹ [1984] WLR 704.Google Scholar

⁹² At 706.Google Scholar

⁹³ [1997] AC 97.Google Scholar

⁹⁴ At 266a.Google Scholar

⁹⁵ At 268a—b.Google Scholar

⁹⁶ Interestingly the United Kingdom has recently given implicit legislative recognition to the principles. See s 67 Nationality, Immigration and Asylum Act 2002, which implicitly acknowledges that detention may not continue where the principles are not satisfied.Google Scholar

⁹⁷ See Benion, above n 85 at 892–3. Grice v Dudley Corpn [1958] ch 329.Google Scholar

⁹⁸ R v Secretary of State for the Home Department ex parte Pierson [1998] AC 539;Google ScholarR v Secretary of State for the Home Department exparte Simms and Another [1999] 3 WLR 328.Google Scholar

⁹⁹ Regarding the presumption favouring liberty, Brown-Wilkinson, Lord (at 268b) said ‘[s]uch an approach is equally applicable to everyone within the jurisdiction of the court, whether or not he is a citizen of the country (see [1983] 1 All ER 765 at 782 … per Lord Scarman).’Google Scholar

¹⁰⁰ R v Secretary of State for the Home Department ex parte I [2002] EWCA Civ 888.Google Scholar

¹⁰¹ Per Dyson, LJ, at para 53.Google Scholar

¹⁰² Ibid at para 54.

¹⁰³ At para 39.Google Scholar

¹⁰⁴ See n 40 above.Google Scholar

¹⁰⁵ Para 16(1) Schedule 2 Immigration Act 1971.Google Scholar

¹⁰⁶ Slynn, Lord of Hadley at para 22.Google Scholar

¹⁰⁷ Following the decision in Tan on this critical issue. See Slynn, Lord (para 26) where he says ‘[a]n analogous application of this principle is to be found in judgments dealing with the detention of those who are or may be subject to deporation.’Google Scholar

¹⁰⁸ Per Slynn, Lord at para 47.Google Scholar

¹⁰⁹ There have been a long series of amending acts to the Migration Act 1958. See the Attorney-General's notes to the 1958 Act.Google Scholar

¹¹⁰ See s 178 for designated persons and s 189 for unlawful non-citizens. Such persons ‘must be kept in immigration detention. A designated person is to be released …if, and only if, he or she is (a) removed, (b) granted a visa’ (s 178) or ‘must be kept in immigration detention until (a) removed from Australia … (b) deported…(c) granted a visa.’ (s 189).Google Scholar

¹¹¹ Defined as ‘designated persons’ in s 177. The measure was extended to apply to those arriving between 1989 and 1994. Thereafter s 189 would apply to new arrivals in any event.Google Scholar

¹¹² Defined as ‘[a] non-citizen in the migration zone who is not a lawful non-citizen …’ (s 14).Google Scholar

¹¹³ Division 6, Reason for division. For further explanation of Parliament's rationale see Asylum, Border Control and Detention, Report by the Joint Standing Committee on Migration (Parliament of the Commonwealth of Australia, Feb 1994)Google Scholar

¹¹⁴ S 474 where a list of ‘privative clause’ decisions are set out which oust judicial review. See also s 183.Google Scholar

¹¹⁵ S 182.Google Scholar

¹¹⁶ [1992] 176 CLR 1 FC 92/051.Google Scholar

¹¹⁷ Chapter III of the Constitution vests judicial power exclusively in the courts designated therein.Google Scholar

¹¹⁸ Brennan, Per, Deane, and Dawson, JJ, at paras 22–5 citing Blackstone Commentaries (17th ednLondon 1830), Bk 1, paras 136–7Google Scholarand Dicey, Introduction to the Study of the Law of the Constitution (10th ednLondonMacmillan 1959) at 202.Google Scholar

¹¹⁹ Brennan, Per, Deane, and Dawson, JJ, at para 26.Google Scholar

¹²⁰ Ibid at para 32.

¹²¹ Brennan, Per, Deane, and Dawson, JJ, para 34.Google Scholar

¹²² Ibid at para 34: ‘In the context of that power of a designated person to bring his or her detention in custody under Div. 4B to an end at any time, the time limitations imposed by other provisions of the Division suffice, in our view, to preclude a conclusion that the power of detention which are conferred upon the Executive exceed what is reasonably capable of being seen as necessary the for purposes of deportation or for the making and consideration an entry application.’Google Scholar

¹²³ New South Wales Registry N726 of 2002, judgment of 9 Dec 2002. Black, CJ, Sundberg, and Weinberg, JJ.Google Scholar

¹²⁴ Para 17.Google Scholar

¹²⁵ See s 253 Migration Act 1953 which gives factors justifying detention in the event of a deportation order.Google Scholar

¹²⁶ S 198.Google Scholar

¹²⁷ See Daniel v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 20 (24 Jan 2003);Google ScholarSHFB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 29 (30 Jan 2003) and WAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1625 (23 Dec 2002).Google Scholar

¹²⁸ Al Masri v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1009 (15 Aug 2002).Google Scholar

¹²⁹ S 103(1).Google Scholar

¹³⁰ S 103(6).Google Scholar

¹³¹ S 103(3).Google Scholar

¹³² S 103(6).Google Scholar

¹³³ ‘Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.’Google Scholar

¹³⁴ IMM-3730-94, 19 Oct 1994.Google Scholar

¹³⁵ At 6.Google Scholar

¹³⁶ For a case analysing the proper test to apply in public safety cases see Salilar v Minister of Citizenship and Immigration IMM-1429-95 (decision of 30 June 1995) in which the Federal Court (MacKay, J) ruled that adjudicators must establish that there is a ‘probability’ of danger to the public and not merely a ‘possibility’.Google Scholar

¹³⁷ S 103.1(1) refers to the grounds of inadmissibility in s 19(1).Google Scholar

¹³⁸ S 103.1(5).Google Scholar

¹³⁹ S 103.1(10).Google Scholar

¹⁴⁰ The High Court of Australia held that the ouster clause in Lim was unconstitutional because it deprived the courts of a power to review even this issue, thus giving the executive a truly arbitrary power to detain anyone, including Australian citizens.Google Scholar

¹⁴¹ See VHAF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1243 (8 Oct 2002 where release was ordered when a detainee arguably fell outside the detention power).Google Scholar

¹⁴² See the discussion set in the United Kingdom Court of Appeal case A v Secretary of State for the Home Department [2003] 1 A11 ER at 849–53 (per Brooke, LJ)Google Scholar

¹⁴³ This can be traced back to the alien protection tradition embodied in the Yick Wo case.Google Scholar

¹⁴⁴ See Part I para 18: ‘Today's result will ensure these dangerous individuals, and hundreds more like them, will remain free while the Executive Branch tries to secure their removal.’Google Scholar

¹⁴⁵ See Goodwin-Gill, above n 6. See, eg, the case-law of the European Court of Justice in relation to Article 39(3) of the EC Treaty. Case C-67/74 Bonsignore [1975] ECR 297.Google Scholar

¹⁴⁶ See above n 81.Google Scholar