Chu Kheng Lim v Minister for Immigration Local Government & Ethnic Affairs [1992] HCA 64;

Chu Kheng Lim v Minister for Immigration Local Government & Ethnic Affairs [1992] HCA 64; - HCA 1992 case summary — Zoe

[5]

Chu Kheng Lim and thirty-five other Cambodian nationals brought an action in the High Court against the Minister for Immigration, Local Government and Ethnic Affairs and the Commonwealth of Australia claiming, amongst other relief, a declaration that ss. 54L, 54N and 54R of the Migration Act 1958 (Cth) were beyond the legislative power of the Commonwealth Parliament. On 26 June 1992 Mason CJ stated a case under the Judiciary Act 1903 (Cth), s. 18 for the consideration of a Full Court. The case included the following paragraphs: "1. Each of the plaintiffs is a Cambodian national. Each of the plaintiffs except Lim William arrived in Australian territorial waters by boat. Lim William was born in Australia of one of the secondnamed plaintiffs, Phau Heang. The firstnamed plaintiffs arrived on or about 27 November 1989 and the secondnamed plaintiffs arrived on or about 31 March 1990. None of the plaintiffs entered Australia holding a valid entry permit. The plaintiffs have been detained in custody since their arrival. 2. Since 22 January 1953 Australia has been a party to the 1951 Convention relating to the Status of Refugees ('the Refugee Convention') which entered into force on 22 April 1954. Since 13 December 1973 Australia has been a party to the 1967 Protocol ('the Protocol') relating to the Status of Refugees which entered into force for Australia on the same day . . . 3. Australia at all relevant times was and is a party to the International Covenant on Civil and Political Rights, the text of which appears as Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986 (Cth). 4. Australia at all relevant times was and is a party to the Racial Discrimination Convention, the text of which appears as a schedule to the Racial Discrimination Act 1975 (Cht). 5. The firstnamed defendant ('the Minister') is the Minister responsible for administering the Migration Act 1958 (Cth) and each of the plaintiffs has made application to him for refugee status within the meaning of the Refugee Convention and Protocol. The firstnamed plaintiffs applied on or about 8 December 1989 and the secondnamed plaintiffs applied on or about 9 and 10 May 1990 . . . 6. On or about 3 and 4 April 1992 delegates of the Minister rejected the firstnamed plaintiffs' applications for refugee status. On or about 5 and 6 April 1992 delegates of the Minister rejected the secondnamed plaintiffs' applications for refugee status. 7. Between 6 and 14 April 1992 a Judge of the Federal Court made orders preventing the removal of the plaintiffs from Australia. On 15 April 1992, and pursuant to s. 16(1)(a) of the Administrative Decisions (Judicial Review) Act 1977 (Cth), a Judge of the Federal Court set aside each of the decisions rejecting the plaintiff's applications for refugee status and ordered that the matters to which the decisions relate be referred back to a delegate of the fistnamed respondent for determination. The Court also ordered that plaintiffs' applications made between 6 and 14 April 1992 for orders that the plaintiffs be released from custody be adjourned for further hearing commencing on 7 may 1992. These applications were subsequently adjourned sine die. 8. On 5 May 1992 the Australian Parliament passed the Migration Amendment Act 1992 (Cth), which inserted Div. 4B in the Migration Act. The Act received Royal Assent on 6 May 1992 and Div. 4B became operative from that date. The plaintiffs fall within the definition of 'designated person' contained therein." The case posed the following questions of law: "1. Are ss. 54L, 54N or 54R of the Migration Act 1958 (Cth) invalid in respect of the applications for release from custody made by the plaintiffs in the Federal Court of Australia? 2. If yes, are the defendants under a legal duty to decide the plaintiffs' applications for release from custody: (a) having regard to the Convention Relating to the Status of Refugees 1951 and the Protocol Relating to the Status of Refugees 1967; (b) having regard to the International Covenant on Civil and Political Rights set out in Sched. 2 of the Human Rights and Equal Opportunity Commission Act 1986 (Cth)?"

[41]

"54J. This Division is enacted because the Parliament

considers that it is in the national interest that each

non-citizen who is a designated person should be kept in

custody until he or she:

(a) leaves Australia; or

(b) is given an entry permit.

54K. In this Division:

...

'designated person' means a non-citizen who:

(a) has been on a boat in the territorial sea of

Australia after 19 November 1989 and before

1 December 1992; and

(b) has not presented a visa; and

(c) is in Australia; and

(d) has not been granted an entry permit; and

(e) is a person to whom the Department has given

a designation by:

(i) determining and recording which boat he

or she was on; and

(ii) giving him or her an identifier that is

not the same as an identifier given to

another non-citizen who was on that boat;

and includes a non-citizen born in Australia whose mother is

a designated person;

'entry application', in relation to a person, means an

application for:

(a) a determination by the Minister that the person

is a refugee; or

(b) an entry permit for the person.

54L.(1) Subject to subsection (2), after

commencement, a designated person must be kept in custody.

(2) A designated person is to be released from

custody if, and only if, he or she is:

(a) removed from Australia under section 54P; or

(b) given an entry permit under section 34 or 115.

(3) This section is subject to section 54Q.

54M.(1) If, immediately after commencement, a

designated person is in a place described in paragraph 11(a)

or a processing area, he or she then begins to be in custody

for the purposes of section 54L.

(2) If, immediately after commencement, a designated

person is in the company of, and restrained by, a person

described in paragraph 11(b), the designated person then

begins to be in custody for the purposes of section 54L.

54N.(1) If a designated person is not in custody

immediately after commencement, an officer may, without

warrant:

(a) detain the person; and

(b) take reasonable action to ensure that the person

is kept in custody for the purposes of section

54L.

(2) Without limiting the generality of subsection

(1), that subsection even applies to a designated person who

was held in a place described in paragraph 11(a) or a

processing area before commencement and whose release was

ordered by a court.

...

54P.(1) An officer must remove a designated person

from Australia as soon as practicable if the designated

person asks the Minister, in writing, to be removed.

(2) An officer must remove a designated person from

Australia as soon as practicable if:

(a) the person has been in Australia for at least

2 months or, if a longer period is prescribed,

at least that prescribed period; and

(b) there has not been an entry application for the

person.

(3) An officer must remove a designated person from

Australia as soon as practicable if:

(a) there has been an entry application for the

person; and

(b) the application has been refused; and

(c) all appeals against, or reviews of, the refusal

(if any) have been finalised.

...

(8) This section is subject to section 54Q.

54Q.(1) Sections 54L and 54P cease to apply to a

designated person who was in Australia on 27 April 1992

if the person has been in application custody after

commencement for a continuous period of, or periods whose

sum is, 273 days.

(2) Sections 54L and 54P cease to apply to a

designated person who was not in Australia on 27 April 1992,

if:

(a) there has been an entry application for the

person; and

(b) the person has been in application custody, after

the making of the application, for a continuous

period of, or periods whose sum is, 273 days.

(3) For the purposes of this section, a person is in

application custody if:

(a) the person is in custody; and

(b) an entry application for the person is being

dealt with;

unless one of the following is happening:

(c) the Department is waiting for information

relating to the application to be given by a

person who is not under the control of the

Department;

(d) the dealing with the application is at a stage

whose duration is under the control of the person

or of an adviser or representative of the person;

(e) court or tribunal proceedings relating to the

application have been begun and not finalised;

(f) continued dealing with the application is

otherwise beyond the control of the Department.

54R. A court is not to order the release from custody

of a designated person.

...

54T. If this Division is inconsistent with another

provision of this Act or with another law in force in

Australia, whether written or unwritten, other than the

Constitution:

(a) this Division applies; and

(b) the other law only applies so far as it is

capable of operating concurrently with this

Division.

54U. A statement by an officer, on oath or

affirmation, that the Department has given a particular

person a designation described in paragraph (e) of the

definition of 'designated person' in section 54K is

conclusive evidence that the Department has given that

person that designation."

[45]

8. Under the common law of Australia and subject to qualification in the case of an enemy alien in time of war ((13) See, e.g., R. v. Vine Street Police Station Superintendent; Ex parte Liebmann (1916) 1 KB 268; R. v. Bottrill; Ex parte Kuechenmeister (1947) KB 41.), an alien who is within this country ((14) cf. Musgrove v. Chun Teeong Toy (1891) AC 272 (discussed in Legomsky, Immigration and the Judiciary, (1987), pp 88-91) as to the position of an excluded alien.), whether lawfully or unlawfully, is not an outlaw. Neither public official nor private person can lawfully detain him or her or deal with his or her property except under and in accordance with some positive authority conferred by the law ((15) See, generally, Kioa v. West (1985) 159 CLR 550, at p 631; Ex parte Lo Pak (1888) 9 NSWR 221, at pp 244-245; Ex parte Walsh and Johnson; In re Yates [1925] HCA 53; (1925) 37 CLR 36, at pp 79-80; Re Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514, at pp 528-529.). Since the common law knows neither lettre de cachet nor other executive warrant authorizing arbitrary arrest or detention, any officer of the Commonwealth Executive who purports to authorize or enforce the detention in custody of such an alien without judicial mandate will be acting lawfully only to the extent that his or her conduct is justified by valid statutory provision. Nor, in the absence of legislative provision to the contrary, does an alien within the country lack standing or capacity to invoke the intervention of a domestic court of competent jurisdiction if he or she is unlawfully detained ((16) See Somerset v. Stewart ("the Negro Case") [1772] EngR 57; (1772) Lofft 1 (98 ER 499); Johnstone v. Pedlar (1921) 2 AC 262, at pp 273, 276, 284-285, 296; Reg. v. Home Secretary; Ex parte Khawaja [1982] UKHL 5; (1984) AC 74, per Lord Scarman at pp 110-112.). If the unlawful detention is by a person who is an officer of the Commonwealth, the status of that person as such an officer will of itself neither confer immunity from proceedings against him or her personally in the ordinary courts of the land nor provide an answer to an application for habeas corpus in any court of competent jurisdiction. If an officer of the Commonwealth is acting in the ostensible exercise of his or her authority as such, the detained alien can invoke the original jurisdiction of this Court under s.75(iii) of the Constitution.

[56]

16. It is true that it can be argued that the provisions of Div.4B should not be construed as applying to persons who, like the plaintiffs, have entered the country by being "taken ashore" in custody pursuant to s.88 of the Act. For one thing, such persons are deemed "not to enter" ((25) s.88(8)) or "not to have entered" ((26) s.36(4) (before amendment of the Act in 1989: see n.(17)).) the country whereas, as has been seen, an element of the definition of a "designated person" is that the person concerned "is in Australia". For another, it can be argued that it is unlikely that the emphatic provisions of Div.4B that a "designated person must be kept in custody" ((27) s.54L(1)) and that a court "is not to order the release from custody of a designated person" ((28) s.54R) would have been intended by the Parliament to be applicable to a person who was not an "illegal entrant" for the purposes of the Act and who had committed no offence. Careful examination of the terms of Div.4B seems to us, however, to disclose a clear legislative intent that the provisions of the Division should apply regardless of whether the person concerned had been "taken ashore" pursuant to s.88 or had become an "illegal entrant" for the purposes of the Act. Thus, the provisions of Div.4B contain neither a requirement of "entry" or "unlawful entry" nor any reference to an "illegal entrant". Nor do those provisions contain any reference to a designated person being held "in custody" or "in lawful custody" at the commencement of Div.4B. To the contrary, the effect of s.54M, which is headed "Beginning of custody of certain designated persons", is that any person who was, as a matter of fact, "in a place described in paragraph 11(a) ((29) See above) or a processing area" at the commencement of the Division, automatically began "to be in custody for the purposes of s.54L". Finally, and most significantly, s.54N authorizes the arrest and detention in custody of a designated person notwithstanding that he or she was "not in custody" ((30) s.54N(1)) at the commencement of Div.4B and "even" if he or she had been released from custody pursuant to an order "by a court" ((31) s.54N(2)). Indeed, in the context of the pending proceedings in the Federal Court, it appears that one of the objects of the Act was to clothe with legislative authority the custody in which the "boat people" were being kept, a custody that might have been brought to an abrupt end once a court ascertained that that custody was unlawful.

[68]

24. There are some qualifications which must be made to the general proposition that the power to order that a citizen be involuntarily confined in custody is, under the doctrine of the separation of judicial from executive and legislative powers enshrined in our Constitution, part of the judicial power of the Commonwealth entrusted exclusively to Ch.III courts. The most important is that which Blackstone himself identified in the above passage, namely, the arrest and detention in custody, pursuant to executive warrant, of a person accused of crime to ensure that he or she is available to be dealt with by the courts. Such committal to custody awaiting trial is not seen by the law as punitive or as appertaining exclusively to judicial power. Even where exercisable by the Executive, however, the power to detain a person in custody pending trial is ordinarily subject to the supervisory jurisdiction of the courts, including the "ancient common law" jurisdiction, "before and since the conquest", to order that a person committed to prison while awaiting trial be admitted to bail ((48) See Blackstone, op cit, Bk.4, par. 298.). Involuntary detention in cases of mental illness or infectious disease can also legitimately be seen as non-punitive in character and as not necessarily involving the exercise of judicial power. Otherwise, and putting to one side the traditional powers of the Parliament to punish for contempt ((49) See Reg. v. Richards; Ex parte Fitzpatrick and Browne [1955] HCA 36; (1955) 92 CLR 157; Polyukhovich v. The Commonwealth (1991) 172 CLR, at p 626.) and of military tribunals to punish for breach of military discipline ((50) See R. v. Bevan; Ex parte Elias and Gordon [1942] HCA 12; (1942) 66 CLR 452; Re Tracey; Ex parte Ryan [1989] HCA 12; (1989) 166 CLR 518; Re Nolan; Ex parte Young [1991] HCA 29; (1991) 172 CLR 460; Polyukhovich v. The Commonwealth (1991) 172 CLR, at pp 626-627.), the citizens of this country enjoy, at least in times of peace ((51) It is unnecessary to consider whether the defence power in times of war will support an executive power to make detention orders such as that considered in Little v. The Commonwealth [1947] HCA 24; (1947) 75 CLR 94.), a constitutional immunity from being imprisoned by Commonwealth authority except pursuant to an order by a court in the exercise of the judicial power of the Commonwealth.

[85]

35. It should be mentioned that it was argued on behalf of the plaintiffs that the provisions of Div.4B, including ss.54L and 54N, were invalid as "a usurpation" of the judicial power of the Commonwealth for the reason that they apply only to a class which is "so limited by definition as to amount in substance to a specification of individuals" and "were enacted in order to affect the outcome of known or prospective legal proceedings by those individuals". In support of that argument, particular reliance was placed upon the words "whose release was ordered by a court" in s.54N(2), the provision of s.54R, the judgment of the Privy Council in Liyanage v. The Queen ((70) [1965] UKPC 1; (1967) 1 AC 259), the judgment of Street C.J. in BLF v. Minister for Industrial Relations ((71) (1986) 7 NSWLR 372, esp at pp 375-376) and comments in the judgments of some members of this Court in Polyukhovich v. The Commonwealth ((72) (1991) 172 C LR, esp. at pp 536, 612-613, 648-649, 685-686.). The conclusion that the powers to detain in custody conferred by Div.4B are an incident of the executive powers of exclusion, admission and deportation and, being non-punitive in character, are not part of the judicial power of the Commonwealth, effectively disposes of that argument except in so far as it relates to the severable provisions of ss.54R and (arguably) 54U, as to which see below. The fact that proceedings seeking an order for release of the plaintiffs were pending in the Federal Court did not have the effect that the conferral by Div.4B, or the subsequent exercise, of a new executive power of detention constituted a usurpation of, or an impermissible interference with, the exercise of the judicial power of the Commonwealth. In that regard, we would note that the words "whose release was ordered by a court" in s.54N(2) must, in our view, be construed as a reference to an order made by a court before the commencement of Div.4B and as not purporting to authorize an executive overriding of an order made by a court after the commencement of that Division.

[88]

38. Ours is a Constitution "which deals with the demarcation of powers, leaves to the courts of law the question of whether there has been any excess of power, and requires them to pronounce as void any act which is ultra vires" ((73) Reg. v. Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR, per Dixon C.J., McTiernan, Williams, Webb, Fullagar, Kitto and Taylor JJ. at p 165.). All the powers conferred upon the Parliament by s.51 of the Constitution are, as has been said, subject to Ch.III's vesting of that judicial power in the courts which it designates, including this Court. That judicial power includes the jurisdiction which the Constitution directly vests in this Court in all matters in which the Commonwealth or a person being sued on behalf of the Commonwealth is a party ((74) Constitution, s.75(iii)) or in which mandamus, prohibition or an injunction is sought against an officer of the Commonwealth ((75) s.75(v)). A law of the Parliament which purports to direct, in unqualified terms, that no court, including this Court, shall order the release from custody of a person whom the Executive of the Commonwealth has imprisoned purports to derogate from that direct vesting of judicial power and to remove ultra vires acts of the Executive from the control of this Court. Such a law manifestly exceeds the legislative powers of the Commonwealth and is invalid. Moreover, even to the extent that s.54R is concerned with the exercise of jurisdiction other than this Court's directly vested constitutional jurisdiction, it is inconsistent with Ch.III. In terms, s.54R is a direction by the Parliament to the courts as to the manner in which they are to exercise their jurisdiction. It is one thing for the Parliament, within the limits of the legislative power conferred upon it by the Constitution, to grant or withhold jurisdiction. It is a quite different thing for the Parliament to purport to direct the courts as to the manner and outcome of the exercise of their jurisdiction. The former falls within the legislative power which the Constitution, including Ch.III itself, entrusts to the Parliament. The latter constitutes an impermissible intrusion into the judicial power which Ch.III vests exclusively in the courts which it designates.

[91]

41. It is unnecessary to do more than make brief reference to a number of submissions advanced on behalf of the plaintiffs in relation to alleged inconsistencies between Div.4B on the one hand and the provisions of some international treaties to which Australia is a party and Commonwealth legislation relating to those treaties on the other. First, it was argued that Div.4B is invalid or inapplicable to the extent that its provisions purport to remove, limit or exclude rights of the plaintiffs under the Human Rights and Equal Opportunity Act, the Human Rights Covenant set out in Sched. 2 of that Act and the Refugee Convention and Protocol. The answer to that argument is that s.54T, which expressly provides that the provisions of Div.4B prevail over any other law in force in Australia, unmistakably evinces a legislative intent that, to the extent of any inconsistency, those provisions prevail over those earlier statutes and (to the extent - if at all - that they are operative within the Commonwealth) those international treaties. Next, it was submitted that the provisions of Div.4B were, to the extent of any such inconsistency, beyond the legislative power conferred upon the Parliament by s.51(xxix) of the Constitution with respect to external affairs. The answer to that submission is that, putting to one side the invalid and severable provision of s.54R and the arguably invalid provision of s.54U, the enactment of Div.4B was within the legislative power conferred upon the Parliament by s.51(xix) with respect to "aliens". Finally, it was submitted that the provisions of Div.4B should be read down to the extent necessary to avoid any such inconsistency and that the result of such a reading down would be that they did not make compulsory the detention in custody of the plaintiffs. We accept the proposition that the courts should, in a case of ambiguity, favour a construction of a Commonwealth statute which accords with the obligations of Australia under an international treaty ((77) See, e.g., Garland v. British Rail Engineering Ltd. [1982] UKHL 2; (1983) 2 AC 751, at p 771; Attorney-General v. Guardian Newspapers Ltd. (No.2) [1988] UKHL 6; (1990) 1 AC 109, per Lord Goff of Chievely at p 283; Derbyshire CC v. Times Newspapers Ltd. (1992) 3 All ER 65, at pp 77-78, 86-87, 92-93.). The provisions of Div.4B which require that, in the circumstances which presently exist, the plaintiffs be detained in custody are, however, quite unambiguous.

At a glance

Court

Decision date

Before

Source

Judgment (258 paragraphs)

Chu Kheng Lim v Minister for Immigration Local Government & Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1 (8 December 1992)

Parties

Legislation Cited (19)

Cases Cited (59)