Pursuant to amendments introduced in 1989, the Migration Act 1958 permitted but did not require detention of asylum seekers until their status as illegal entrants was determined. Detention could then be extended if a ‘claim of substance’ was identified pending determination of the application.
2.
19 November 1989 to 1 December 1992.
3.
Commonwealth, Parliamentary Debates, House of Representatives, May 1992, 2370 (Gerry Hand, Minister for Immigration).
4.
(1992) 105 ALR 301.
5.
The Full Federal Court held that an unlawful non-citizen, a criminal deportee and a person whose visa is to be cancelled on character grounds can be released on an interlocutory basis pending final determination. See also Minister for Immigration, Local Government and Ethnic Affairs v Montero (1991) 35 FCR 50.
6.
(1992) 176 CLR 1.
7.
Time did not run for events beyond the Executive's control such as delay in the supply of information or in finalisation of legal proceedings.
8.
Migration Act 1958 s 54P(1).
9.
Lim, para 34, per Brennan, Deane and Dawson JJ.
10.
Constitution s 51(xxix).
11.
Lim, para 35.
12.
On the basis that the boats in which the appellants arrived had been burned by quarantine officers shortly after their arrival.
13.
Migration Reform Act 1994 (Cth).
14.
Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri [2003] FCAFC 70.
15.
Sections 189, 196 and 198.
16.
[2003] FamCA 451.
17.
Minister for Immigration and Multicultural and Indigenous Affairs v B and Anor [2004] HCA 20 A 246/2003.
The Full Federal Court found as follows in the matter of NAMU [2002] FCA 907: ‘If a punitive purpose is to be found, it must be discovered from the legislative structure of the regime for detention rather than from the consequences of the detention on individual detainees’.
26.
M276, above n 22, 48.
27.
Transcript of proceedings, Behrooz & Ors v Secretary DIMIA & Ors, SHDB v Godwin & Ors, MIMIA v Al Khafaji (High Court of Australia, 13 November 2003). In the Al Kateb/SHDB matter, Van Doussa J declined to follow the Al Masri decision and in the Al Khafaji matter, Mansfield J followed Al Masri. The Behrooz appeal requires determination of the argument that escape from Woomera Immigration Reception and Processing Centre did not constitute escape from ‘immigration detention’ because the harshness of conditions resulted in Woomera ceasing to have the character of a detention centre.
28.
The Commonwealth Government has maintained this ‘purposive’ argument in all the cases which raise the separation of powers issue.
29.
EinfeldM, ‘Detention, Justice and Compassion’ in CrockM (ed), Protection or Punishment: The Detention of Asylum Seekers in Australia (1993) 41.
30.
For example, art 31 of the Refugees Convention prohibits state parties from imposing penalties on refugees on account of their illegal entry or presence.
31.
The Universal Declaration of Human Rights was adopted by Australia in 1948. It is a statement of aspiration and does not have strictly binding effect as a treaty, but forms the foundation for the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights which, together with the Universal Declaration form the ‘Universal Bill of Rights’.
32.
See EdwardsA, ‘Tampering with Refugee Protection: The Case of Australia’, (2003) 5(2) International Journal of Refugee Law.
33.
GagelerSGlassA, ‘Constitutional Law and Human Rights’ in KinleyD (ed), Human Rights in Australian Law (1998) 48.
34.
Re Wooley; Ex parte Applicants M276/2003 by their Next Friend GS [2004] HCA 49 (Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ, 7 October 2004), <http://www.austlii.edu.au/au/cases/cth/high_ct/2004/49.html> at 12 October 2004.
