Re Woolley [2004] HCA 49; (2004) 225 CLR 1; (2004) 210 ALR 369; (2004) 79 ALJR 43 (7 October 2004)

Re Woolley [2004] HCA 49; (2004) 225 CLR 1; (2004) 210 ALR 369; (2004) 79 ALJR 43 (7 October 2004) - HCA 2004 case summary — Zoe

[141]

"The ... children attended school whilst the family were located at the Woomera [detention centre], initially on-site and from November 2001, at the vacant premises of St Michael's school in the township of Woomera. Following the family's relocation to Baxter, the ... children commenced school at the Baxter Education Centre within Baxter on 28 January 2003. At the time, the ... children attended the school on-site at Baxter, the school employed an equivalent of six full time teachers. The school also employed one educational coordinator and two recreational/activities officers fulltime, as well as a teacher of dance, drama and music. Baxter's education centre makes provision for a kindergarten, as well as primary and secondary education to children resident in the facility. Education ... is delivered by qualified teaching staff contracted through East Gippsland College of TAFE and is well resourced with books, stationery and computers. Children are taught in English appropriate to their individual levels and follow the South Australian curriculum. Children aged from six to seven years attend Junior School from 9am to 3pm. Children aged between 8 and 12 attend primary school from 9.00am to 3.15pm, and High School is available for children aged between 12 and 18 from 9am to 3.15pm. Special education programmes are also available at Baxter, including Information Technology Certificates 1, 2 and 3. In addition to the school curriculum, during the normal school term there is an activity program operating seven days per week including ball sports, pottery and games. The [second respondent's] policy is that all children should be given the opportunity to participate in an external school environment subject to satisfaction of three requirements regarding health, education level (so that their educational levels in English are taken into account) and behaviour. To this end the [second respondent] is working with both the state education authorities and on site staff at Baxter to achieve this outcome. It is also the [second respondent's] policy that the children who attend these schools are to participate fully in the extra-curricular activities offered by the school such as after-school sport and school camps. On 31 March 2003, [two of the applicants] commenced at Willsden Primary School in Baxter township, with [another of the children] commencing at that school on 16 May 2003. On 16 September 2003, [one of the children] commenced at the Seaview Campus of Port Augusta Secondary School." Relevant legislative provisions

[148]

"Duration of detention (1) An unlawful non-citizen detained under section 189 must be kept in immigration detention until he or she is: (a) removed from Australia under section 198 or 199; or (b) deported under section 200; or (c) granted a visa. (2) To avoid doubt, subsection (1) does not prevent the release from immigration detention of a citizen or a lawful non-citizen. (3) To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than for removal or deportation) unless the non-citizen has been granted a visa. (4) Subject to paragraphs (1)(a), (b) and (c), if the person is detained as a result of the cancellation of his or her visa under section 501, the detention is to continue unless a court finally determines that the detention is unlawful, or that the person detained is not an unlawful non-citizen. (4A) Subject to paragraphs (1)(a), (b) and (c), if the person is detained pending his or her deportation under section 200, the detention is to continue unless a court finally determines that the detention is unlawful. (5) To avoid doubt, subsection (4) or (4A) applies: (a) whether or not there is a real likelihood of the person detained being removed from Australia under section 198 or 199, or deported under section 200, in the reasonably foreseeable future; and (b) whether or not a visa decision relating to the person detained is, or may be, unlawful. (5A) Subsections (4) and (4A) do not affect by implication the continuation of the detention of a person to whom those subsections do not apply. (6) This section has effect despite any other law. (7) In this section: visa decision means a decision relating to a visa (including a decision not to grant the visa, to cancel the visa or not to reinstate the visa)." Section 198 is comprehensively expressed and provides for the mandatory removal of unlawful non-citizens, a statutory appellation applicable to the applicants, "as soon as reasonably practicable". It need not be set out here.

[189]

"The ... children attended school whilst the family were located at the Woomera [detention centre], initially on-site and from November 2001, at the vacant premises of St Michael's school in the township of Woomera. > > Following the family's relocation to Baxter, the ... children commenced school at the Baxter Education Centre within Baxter on 28 January 2003. > > At the time, the ... children attended the school on-site at Baxter, the school employed an equivalent of six full time teachers. The school also employed one educational coordinator and two recreational/activities officers fulltime, as well as a teacher of dance, drama and music. > > Baxter's education centre makes provision for a kindergarten, as well as primary and secondary education to children resident in the facility. Education ... is delivered by qualified teaching staff contracted through East Gippsland College of TAFE and is well resourced with books, stationery and computers. Children are taught in English appropriate to their individual levels and follow the South Australian curriculum. > > Children aged from six to seven years attend Junior School from 9am to 3pm. Children aged between 8 and 12 attend primary school from 9.00am to 3.15pm, and High School is available for children aged between 12 and 18 from 9am to 3.15pm. > > Special education programmes are also available at Baxter, including Information Technology Certificates 1, 2 and 3. > > In addition to the school curriculum, during the normal school term there is an activity program operating seven days per week including ball sports, pottery and games. > > The [second respondent's] policy is that all children should be given the opportunity to participate in an external school environment subject to satisfaction of three requirements regarding health, education level (so that their educational levels in English are taken into account) and behaviour. To this end the [second respondent] is working with both the state education authorities and on site staff at Baxter to achieve this outcome. It is also the [second respondent's] policy that the children who attend these schools are to participate fully in the extra-curricular activities offered by the school such as after-school sport and school camps. > > On 31 March 2003, [two of the applicants] commenced at Willsden Primary School in Baxter township, with [another of the children] commencing at that school on 16 May 2003. > > On 16 September 2003, [one of the children] commenced at the Seaview Campus of Port Augusta Secondary School."

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Judgment (459 paragraphs)

Legislation Cited (12)

Cases Cited (63)