Though it must be noted that the Human Rights and Equal Opportunity Commission (HREOC), and many commentators, have forcefully challenged the notion that people who arrive in Australia with the intention of seeking asylum commit illegal conduct. In a major report on immigration detention, HREOC referred to immigration detainees as people ‘who come to Australia without authority’: HREOC, Those who've come across the seas, Detention of unauthorised arrivals (11 May 1998) <http://www.hreoc.gov.au/pdf/human_rights/asylum_seekers/h5_2_2.pdf> at 7 October 2004.
2.
See the policy statement governing the transfers from immigration detention to prison: Department of Immigration and Multicultural and Indigenous Affairs [DIMIA]Migration Series Instruction 244 — Transfer of Detainees to State Prisons.
3.
DIMIA, Fact Sheet No 82. The Department does not actually acknowledge that these people are held in prisons, but rather notes that this number of people are held in ‘other facilities’, the status of which is not described.
4.
Commonwealth Ombudsman, Report of Own Motion Investigation into Immigration Detainees held in State Correctional Facilities (2001) 3. The Ombudsman's earlier report Investigation of Complaints Concerning the Transfer of Immigration Detainees to State Prisons (1995) led to the development of new rules governing transfers of immigration detainees to prisons. The Ombudsman has also investigated numerous complaints from individuals held in immigration detention who are held in state prisons.
5.
The Ombudsman noted that one person held in prison by reason of a criminal deportation order was initially sentenced to three and a half years imprisonment, but had been held for a further three years at the time of the Ombudsman's investigation: Commonwealth Ombudsman, above n 4, 3.
6.
Ibid, 14–15.
7.
See, eg, Corrections Act 1986 (Vic) ss 3, 10–11 Crimes (Administration of Sentences) Act1999 (NSW). These provisions each state that a ‘prison’ means any place that is declared or proclaimed as such.
8.
In Dugan v Mirror Newspapers Ltd (1978) 142 CLR 583 the High Court held that medieval doctrine of ‘civil death’ was part of the common law of Australia. The doctrine prevented a prisoner convicted of an indictable offence from commencing or maintaining legal proceedings. The doctrine was abolished by statute. See, eg, Felons (Civil Proceedings) Act 1981 (NSW). The common law now accepts that prisoners retain all the civil rights held by other citizens except those who are removed on imprisonment, either expressly or necessarily by implication: Raymond v Honey [1983] 1 AC 1, 10; McEvoy v Lobban (1988) 35 A Crim R 68, 71; Kuczynski (1994) 72 A Crim R 568, 589 per Owen J (WA FC). Despite changes to the common law, it remains hard for prisoners to exercise even basic civil rights. See, eg, the analysis of prisoners' voting in OrrG, ‘Ballotless and Behind Bars: The Denial of the Franchise to Prisoners’ (1998) 26Federal Law Review55.
9.
See, eg, Chu Kheng Lim v Minister for Immigration Local Government and Ethnic Affairs (1992) 176 CLR 1 where the High Court held that, as a general rule, imprisonment for federal offences could only be imposed by courts exercising the judicial power of the Commonwealth. There are some narrow exceptions to this general rule, such as imprisonment imposed by military courts and the power of the Houses of Parliament to imprison people for the offence of contempt of Parliament.
10.
This definition of detention also includes being held in any remand centre, prison or police lock-up.
11.
Behrooz v Secretary, Dept of Immigration and Multicultural and Indigenous Affairs [2004] HCA 36.
R v Governor of Brockhill Prison; Ex parte Evans (No 2) [1998] 4 All ER 993.
16.
This term is defined in the apparently circular manner of: ‘A non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen’: Migration Act s 14(1). The term can only be understood by reference to the clear divide the Act draws between ‘lawful’ and ‘unlawful’ non-citizen. Lawful non-citizens are defined as non-citizens with a visa, while ‘unlawful non-citizens’ are those without visas.
17.
Migration Act s 196(1)
18.
Al-Kateb v Godwin [2004] HCA 37 [12].
19.
See BrownD, ‘Putting the Values Back into Punishment’ (1990) 15Legal Service Bulletin239.
20.
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (‘Lim’) (1992) 176 CLR 1.
21.
Constitution s 51(xix), (xxvii).
22.
Lim (1992) 176 CLR 1, 33 (BrennanDeaneDawsonJJ).
23.
[2004] HCA 37.
24.
Ibid [264].
25.
HLA Hart, Punishment and Responsibility (1968) p.5.
Corrections Act 1986 (Vic) s 47(2); Corrections Act 1997 (Tas) s 29. These statutory charters are examined in detail in GrovesM, ‘International Law and Australian Prisoners’ (2001) 24University of New South Wales Law Journal17, 21–3.
34.
Some correctional legislation enables prison officials to devise standards to govern private prison managers. The Crimes (Administration of Sentences) Act 1999 (NSW) s 248(1) requires the Commissioner of Corrective Services to prepare a statement setting out ‘minimum standards in relation to the exercise of any functions’ by a private prison operator. The Corrections Act 1986 (Vic) s 9(2)(b) also requires that agreements governing privately managed prisons must provide ‘objectives and performance standards in relation to the provision of services’. Such provisions enable, but do not require, governments to develop standards for prisons. Such powers contain no mechanism for the involvement of prisoners in the development or enforcement of any standards. On the enforcement of private prison agreements by prisoners, see DaviesJ, ‘The Effect of Prison Privatisation on the Legal Position of Prisoners’ (1998) 6Australian Journal of Administrative Law34.
Detention Centre Standards are only one of many documents incorporated into contracts. The operators of immigration detention centres are also required to comply with all migration legislation, all policies, instructions, directions and procedures issued by the Department of Immigration and Multicultural and Indigenous Affairs, all Commonwealth, state and territory laws relevant to the detention, care and security of detainees.
37.
Behrooz [2004] HCA 37 [176].
38.
HREOC, Immigration Detention Guidelines (2000).
39.
In the decision of Al-Kateb [2004] HCA 37 McHugh J devoted almost as much of his judgment to criticising the reasoning of Kirby J as he did to explaining his own decision.
