Monthly Archives: June 2013

Plaintiff S138/2012 v Director General of Security & Ors

I           Plaintiff S138/2012

The case of Plaintiff S138/2012[1] is expected to be heard by the High Court of Australia in June 2013. At the time that proceedings were commenced, in May 2012, the plaintiff had been detained in administrative immigration detention for over three years despite having been recognised to be a legitimate refugee.[2] This is because the Australian Security and Intelligence Organisation (‘ASIO’) has determined that the plaintiff poses a threat to Australia’s national security, and has accordingly issued an adverse security assessment against him.

In the directions hearing of 30 May 2012, Senior Counsel for the plaintiff indicated that the plaintiff would seek to ‘put in issue the constitutional validity of section 189, and perhaps also section 196, of the Migration Act’ (‘the Act’).[3] Subsequently, in the directions hearing of 19 February 2013, Senior Counsel submitted that, essentially, there were four substantive issues: [4]

a)     a procedural fairness question;

b)    a question about the significance of reliance on public interest criterion 4002 (‘PIC 4002’);

c)     a question of statutory construction; and

d)    a question about the constitutional validity of the plaintiff’s detention.

The later directions hearing also flagged the pending independent review of the plaintiff’s adverse security assessment by Dr Margaret Stone – a retired federal court judge. While it has been ordered that the special case proceed to trial before the High Court of Australia, there remains the dormant possibility than the results of this review, once provided to ASIO, may result in a decision to revisit or reissue its assessment. It was submitted at the directions hearing that the outcome of this independent review may in fact result in the plaintiff’s case being in part or even wholly resolved. While the issuing of a favourable security assessment by ASIO is highly uncertain,[5] the outcome of this independent review will be dealt with in submissions by the parties in the upcoming proceedings.

The four substantive issues raised in the directions hearing of 19 February 2013 suggest:

  • Firstly, that an argument will be brought regarding the constitutionality of denying procedural fairness in cases which could result in the indefinite detention of a person;
  • Secondly, the validity of the Minister’s reliance on PIC 4002 will be challenged;
  • Thirdly, whether the combined regime of sections 189, 196 and 198 of the Migration Act 1958 (Cth) can be said to authorise the detention of the plaintiff; and
  • Fourthly, an argument will be brought regarding the constitutional validity of the regime, thereby inviting reconsideration of the decision in Al-Kateb v Godwin.[6]

Ahead of the High Court’s decision in Plaintiff S138/2012, these issues and their current status in Australian law will be explored in this analysis.

II         The Constitutional Validity of Denying Procedural Fairness

It is well-established in Australian law that the involuntary detention of a person by the state is only permissible following the adjudication by a court of the person’s criminal guilt according to a particular process of law.[7] That is, there is a constitutional immunity from Parliamentary or Executive usurpation of the judicial function; only the judicial arm of government has the power to detain.[8] However, an exception to this principle is manifest in cases of administrative detention for immigration purposes, and non-citizens may be subjected to non-punitive detention for the purposes of receiving, investigating and determining an application for entry into the Australian community, and for the purposes of expulsion or deportation.[9] The question to be posed in the High Court by Plaintiff S138 concerns the legal parameters of the operation of that exception. The plaintiff sought leave to intervene in the 2012 case of Plaintiff M47-2012 v Director General of Security (‘M47’)[10] and there submitted that the Commonwealth’s legislative power to authorise detention pursuant to an executive decision “does not extend to [permit] indefinite detention where a condition precedent to detention is, in substance, unreviewable, including where the person has not been provided a substantial and meaningful opportunity to be heard.”[11]

The plaintiff argues that the Director-General of Security failed to comply with the requirements of procedural fairness in respect of the adverse security assessment. However, it is anticipated that the Commonwealth will argue that the content of the duty to accord the plaintiff procedural fairness is greatly reduced by reasons of the public interest in national security.[12] Recognising the force of those submissions, Counsel for the plaintiff have asserted that this will feed in as an element of the constitutional argument. They have argued that, where liberty is at stake, the requirements of the Constitution must then be considered.[13] They submit that the only impediment to the plaintiff´s release is the adverse security assessment,[14] and yet it is essentially unreviewable, both on the merits and judicially. There is no real prospect of removing the plaintiff to a third country, and he cannot be returned to Sri Lanka as this would violate the prohibition on refoulement contained in, inter alia, Article 33 of the Convention relating to the Status of Refugees (‘Refugee Convention’).[15] The result is that, through an executive assessment, a man has been subject to prolonged, and potentially indefinite, detention. Senior Counsel for the plaintiff suggest that this is not permitted by the exception to constitutional immunity from administrative detention, and that the requirements of procedural fairness in these circumstances require that the plaintiff have the opportunity to hear the case against him.

A challenge to the procedural fairness of the issue of an adverse security assessment was mounted in the High Court case of M47.[16] However, the Court found that, on the particular facts of that case, the plaintiff had been accorded natural justice.[17] No constitutional issue was, therefore, found to arise. Noting that Plaintiff S138’s case will proceed on the footing that the plaintiff has been denied procedural fairness, Justice Heydon has already indicated that such an assumption is problematic given the finding in M47.[18] His Honour expressed concern that it would be “undesirable to debate constitutional difficulties said to arise if procedural fairness is not given in a case in which procedural fairness was given.”[19] However, it remains a question of fact whether Plaintiff S138 was accorded natural justice, and the extent of the duty will need to be assessed by reference to the particular circumstances of the case. If the plaintiff has not been accorded natural justice, the case may serve as a vehicle for assessing the constitutionality of denying procedural fairness where detention is prolonged and potentially indefinite.

III        Validity of the Department’s Reliance on PIC 4002

The decision in M47[20] turned on the invalidity of PIC 4002 rather than on any constitutional issue. Section 31(3) of the Act stipulates that the Migration Regulations 1994 may prescribe criteria for a protection visa, and PIC 4002 is one such criterion. It requires that the applicant must not be assessed by ASIO to be a risk to security. Pursuant to section 65(1)(b), the Minister is to refuse to grant a visa where, inter alia, PIC 4002 has not been satisfied. The net effect of such provisions has been that, where the Minister is not satisfied that the applicant has been cleared by ASIO, no visa will be granted.[21] However, in M47,[22] a 4:3 majority of the Court held that PIC 4002 was inconsistent with the scheme of the Act as it “impermissibly subsumed the Minister’s own statutory powers to exclude refugees for security reasons”, [23] which are distilled from Articles 32 and 33 of the Refugee Convention.[24] As was articulated by Chief Justice French, by effectively vesting in ASIO the power to refuse a visa on security grounds, PIC 4002 goes beyond the power conferred by section 31(3) of the Act. [25] Furthermore, while the Act imposes on the Minister personal responsibility and accountability and subjects the Minister’s powers to merits review, ASIO assessments are, in practice, insulated from meaningful judicial review.

As the subject of an adverse security assessment, Plaintiff S138 fell directly within the ambit of the operation of PIC 4002 and was, therefore, refused a visa. Without a valid visa, he is considered to be an unlawful non-citizen,[26] rendering him subject to the mandatory detention scheme. In the wake of M47[27] however, it is questionable whether the invalidity of the prescription of PIC 4002 as a criterion for granting protection visas holds any significance for his case. Although the High Court in M47[28] did not address whether ASIO assessments of offshore entry persons are invalid, the government is reportedly favouring a narrow interpretation of the majority’s findings, arguing that it has no application to offshore arrivals.[29] Such an argument turns on a distinction under the Act between lawful non-citizens and unlawful non-citizens who arrive in Australia. Plaintiff M47 was rescued from the Oceanic Viking and flown to Australia on a visa that lasted less than an hour. Thus, he arrived in Australia as a lawful non-citizen[30] and was entitled to apply (and did so) for a protection visa under section 36. Conversely, Plaintiff S138 arrived at Christmas Island as an “offshore entry person” without a visa. He was not entitled to make an application for a protection visa, as offshore entry persons are barred under section 46A(1) of the Act from making a valid visa application. Although the Minister has the power to ‘lift the bar’ and allow a valid application to be made, this power is non-compellable, and it is the public interest which will inform whether or not the power is to be exercised. [31] Although the practical operation of the ‘public interest’ test in this context has been determined by reference to Australia’s international law obligations, and visas are usually granted where the Minister is satisfied that the person meets the definition of a refugee,[32] the offshore protection regime remains largely discretionary.[33] A strict approach to the issue would, therefore, suggest that the Minister’s reliance on PIC 4002 does not alter the basic position of an offshore entry person, because such persons are not entitled, under the Act, to make a valid visa application in the first place. The fact that the Independent Reviewer has commenced reviews may provide further indication of the Government’s view that the decision in M47[34] does not apply to all of the refugees, since there would be no need to review assessments which have already been deemed invalid as a result of M47.[35]

Moreover, it has been noted that, irrespective of the invalidity of PIC 4002, detention is still authorised under the Act pending the grant of a visa or the person’s removal from Australia.[36] Even after the adjudication of his case, Plaintiff M47 has remained in detention pending final determination of his visa application. Without a valid visa, his status as an unlawful non-citizen is unchanged, and his continued detention for the purpose of assessing his application is lawful pursuant to section 96 of the Act.[37] Thus, even if the Court finds that there has been an error of law through the Minister’s reliance on PIC 4002, this will not in itself bring the plaintiff’s detention to an end. It is for this reason that Senior Counsel are also seeking to agitate constitutional questions vis-à-vis procedural fairness, indefinite detention and the correctness of the High Court’s decision in Al-Kateb v Godwin.[38]

IV        The Detention Regime under sections 189, 196 and 198

The combined effect of sections 189, 196 and 198 of the Migration Act 1958 (Cth) establish the mandatory immigration detention regime in Australia. Section 189 provides that once an officer[39] ‘knows or reasonably suspects’ that a person in the migration zone is an unlawful non-citizen, or would be an unlawful non-citizen if they came into the migration zone, they are required to detain that person. In regards to an unlawful non-citizen in an excised offshore place this power to detain appears to be discretionary.[40] Section 196 then provides that an unlawful non-citizen must be kept in immigration detention until they are removed, deported or granted a visa. Where an application for a visa has been made by the non-citizen, release cannot be effected unless and until the visa has been granted and they become a lawful non-citizen.[41] Under section 198, an unlawful non-citizen in immigration clearance must be removed from Australia as soon as reasonably practicable if:

  • they have made a written request to be removed; or
  • they have been refused immigration clearance and have not made a valid visa application; or
  • they have made a visa application that has been finally determined and the visa has not been granted.

A majority of the High Court in Al-Kateb v Godwin[42] (‘Al-Kateb’) held that sections 189, 196 and 198 of the Act authorised indefinite detention where there is no real prospect of removing an unlawful non-citizen. In this case the plaintiff had been mandatorily detained under section 189 as an unlawful non-citizen and refused a protection visa. The plaintiff then requested removal under section 198(1) which obliged removal ‘as soon as reasonably practicable’ however, attempts to remove the plaintiff were unsuccessful due to a failure to secure the agreement of a third country willing to receive him. The requirement in section 196 that detention continue ‘until’ the unlawful non-citizen is removed resulted in the plaintiff being indefinitely detained until such removal could be effected. The High Court further held that the words of sections 189, 196 and 198 were unambiguous and as such it was not possible, through a process of construction, to subject the sections to some narrower limitation such as removal within a reasonable time.[43] Conversely, Justice Gummow, in dissent, stated in M47[44] that the construction of sections 189, 196 and 198 adopted by the majority in Al-Kateb[45] should not be regarded as precedent.[46] His Honour held that:

if removal ceases to be a practical possibility, the detention must cease, at least for as long as that situation continues. That is to say, the duty of removal imposed upon an officer by s 198 may continue to subsist, although it is not at present practically available, without the continuing necessity of detention of the unlawful non-citizen.[47]

Justice Bell agreed that “a conclusion that the scheme abrogates fundamental rights in this degree” was weakened by the failure of two members of the majority in Al-Kateb[48] to pay sufficient heed to the principle of legality.[49] However, the majority in M47[50] affirmed the position advanced in Al-Kateb[51], holding that sections 189, 196, 198 authorise the detention of an unlawful non-citizen until his or her removal to another country becomes reasonably practicable, even if there is no reasonable likelihood or prospect of effecting removal in the foreseeable future.

In Plaintiff S138/ 2012[52] an adverse security assessment of the plaintiff by ASIO has, at present, precluded the granting of a protection visa. This refusal to grant a visa thus triggers the requirement under section 198 requiring removal as soon as reasonably practicable. Following the reasoning of the majority in Al-Kateb[53] and M47,[54] the plaintiff’s indefinite detention would appear to be justified up until the point at which removal can be effected. However, as indicted by the submissions of Senior Counsel for the plaintiff, this construction of sections 189, 196 and 198 will be once again be considered in Plaintiff S138/ 2012,[55]

V         Constitutional Validity of Indefinite Detention

The constitutional validity of the combined operation of sections 189, 196 and 198 was upheld in Al-Kateb.[56] The Court held that a law authorising detention of an alien is a law with respect to the aliens head of power under section 51(xix) of the Constitution[57] and the immigration and emigration head of power under section 51(xxvii).[58] Additionally, the High Court held that the detention regime created under sections 189, 196 and 198. including the potential for indefinite detention pending removal, did not infringe Chapter III of the Constitution. The Court argued that detention under the Act is non-punitive and does not constitute an exercise of judicial power by the parliament so long as the purpose of the detention is to ensure availability for deportation.[59] The unlikelihood of deportation becoming reasonably practicable in the foreseeable future did not mean that this purpose of detention was, necessarily, abandoned.[60] Importantly there were some doubts as to the compatibility of indefinite detention at the will of the executive in the context of Australia’s constitutional arrangements as raised in the dissent of Kirby and Gummow JJ. Such arguments may be revisited in the current case of Plaintiff S138/ 2012.[61]

It has been argued that Australia’s treatment of refugees gives rise to a number of inconsistencies with international human rights law obligations; in particular Article 9 of the International Covenant on Civil and Political Rights prohibiting arbitrary or unlawful detention and requiring periodic judicial review and supervision of detention.[62] Similarly the regime may also be said to violate Article 31(1) of the Refugee Convention[63]which prohibits the imposition of penalties on refugees by reason of their unlawful mode of entry into a state, subject to the qualification that they present themselves to authorities promptly and show good cause for their illegal presence. Arguably, administrative detention can amount to a ‘penalty’ in this regard where it is ‘unnecessary, unreasonable, arbitrary or discriminatory, lacking in basic safeguards… or otherwise in breach of human rights law.’[64]

However in Re Woolley; Ex Parte Applicants M27/ 2003[65] it was held that the constitutional validity of the Australian mandatory detention regime under sections 196 and 198 of the Act is not affected by its incompatibility under the International Covenant on Civil and Political Rights,[66] the Convention on the Rights of the Child[67] and the Refugee Convention.[68]

VI        Potential impact of Plaintiff S138/2012

The High Court’s decision in Plaintiff S138/2012 could herald significant implications for the current ASIO assessment regime and the question of whether indefinite detention per se is authorised under the Migration Act 1958 (Cth) and constitutionally valid. On the issue of procedural fairness, notwithstanding the recent appointment of an Independent Reviewer, the Government has so far refrained from introducing binding merits review over ASIO assessments of refugees. Although the Australian Greens proposed extensive reforms to that effect in the hope of “introducing fairness into Australian law” for refugees who are the subjects of adverse security assessments,[69] the Senate Legal and Constitutional Affairs Committee recommended in its recent report that the bill not be passed.[70] It appears unlikely that the Government will be changing its stance on indefinite detention.

The issues canvassed above will be discussed again once the High Court has released its judgment.

Steph Hayes and Paris Astill-Torchia

GLOSSARY OF TERMS

Procedural Fairness (Natural Justice)

Common law principles implied in relation to statutory and prerogative powers to ensure the probity of the decision-making procedure of the courts and administrators. Denial of procedural fairness in the making of a decision is a ground for judicial review of the decision.

Constitutional Validity

Consistent with the laws regulating government as created under the Australian Constitution.

Prohibition on Refoulement

International law imposes on states an obligation not to expel or return ( ‘refouler’ ) a refugee, either directly or indirectly, to the frontier of a territory where his or her life or freedom would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion.

Judicial Review

The determination by courts of the legality of exercises of power by administrative decision-makers under the Administrative Decisions (Judicial Review) Act 1977.

Merits Review

Review of the fact finding and policy choices involved in the decision under review (separate from the lawfulness of the decision). Jurisdiction to review administrative decisions on migration issues conferred on the Migration Review Tribunal or the Refugee Review Tribunal.

Excised offshore place

A place which was formerly a part of the Australian migration zone, but which has been excluded from the migration zone for the purposes of limiting the ability of offshore entry persons to make valid visa applications under the Migration Act 1958.


[1] Plaintiff S138/2012 v Director General of Security & Ors [2013] HCATrans 34 (19 February 2013).

[2] ‘Refugee’ is defined in Article 1A of the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137, entered into force 22 April 1954 as modified by the Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 257 (entered into force 4 October 1967).

[3] Plaintiff M47/2012 v Director General of Security & Ors; Plaintiff S138/2012 v Australian Security Intelligence Organisation & Ors [2012] HCATrans 128 (30 May 2012).

[4] Plaintiff S138/2012 v Director General of Security & Ors [2013] HCATrans 34 (19 February 2013).

[5] To date, ASIO has overturned only two of its own adverse security assessments. The first occurred in 2007 when Mohammad Faisal, an Iraqi refugee who was detained on Nauru between 2001 and 2006 under the Australian Government´s “Pacific Solution”, was eventually evacuated to Brisbane following deterioration in his mental health. A second security assessment found that he was not a security threat and he successfully applied for a protection visa. The second occurred in May this year, and ASIO has confirmed that Manokala Jenaddarsan and her six-year-old son Ragavan, who have been in Villawood Detention Centre since 2011 due to Ms. Jenaddarsan’s adverse assessment, will soon be released into the community.

[6] Al-Kateb v Godwin (2004) 219 CLR 562.

[7] See the Intervener’s Submissions of Plaintiff S138 (08/06/2012) in Plaintiff M47/2012 v Director General of Security and Ors at [13], citing Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at [80] per Gummow J; Thomas v Mowbray (2007) 233 CLR 307 at [114]-[115] per Gummow and Crennan JJ; Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 27-29 per Brennan, Deane and Dawson JJ, also at 10 per Mason CJ and at 71 per McHugh J.

[8] See Chapter III of the Commonwealth of Australia Constitution Act.

[9] See the Intervener’s Submissions of Plaintiff S138 (08/06/2012) in Plaintiff M47/2012 v Director General of Security and Ors at [14], citing with approval Chu Kheng Lim v Minister for Immigration (1992) 176 CLR I at 29-32.

[10] Plaintiff M47/2012 v Director-General of Security (2012) 292 ALR 243.

[11] Ibid at [10] (sub-paragraph (c)).

[12] Plaintiff M47/2012 v Director General of Security & Ors; Plaintiff S138/2012 v Australian Security Intelligence Organisation & Ors [2012] HCATrans 128 (30 May 2012).

[13] See the Intervener’s Submissions of Plaintiff S138 (08/06/2012) in Plaintiff M47/2012 v Director General of Security and Ors at [12].

[14] Plaintiff M47/2012 v Director General of Security & Ors; Plaintiff S138/2012 v Australian Security Intelligence Organisation & Ors [2012] HCATrans 128 (30 May 2012).

[15] Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137, entered into force 22 April 1954 as modified by the Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 257 (entered into force 4 October 1967).

[16] Plaintiff M47/2012 v Director-General of Security (2012) 292 ALR 243.

[17] Ibid at [144] per Gummow J; [253] per Heydon J; [380] per Crennan J; [415] per Kiefel J; and [505] per Bell J.

[18] Plaintiff M47/2012 v Director-General of Security (2012) 292 ALR 243.

[19] Ibid at [359] per Heydon J.

[20] Plaintiff M47/2012 v Director-General of Security (2012) 292 ALR 243.

[21] Migration Regulations 1994 (Cth).

[22] Plaintiff M47/2012 v Director-General of Security (2012) 292 ALR 243.

[23] Ben Saul, ‘Dark Justice: Australia’s Indefinite Detention of Refugees on Security Grounds Under International Human Rights Law’ (2012) 13 Melbourne Journal of International Law 2, 14.

[24] Ibid.

[25] Plaintiff M47-2012 v Director General of Security (2012) 292 ALR 243 at [3].

[26] An unlawful non-citizen is defined in section 14(1) of the Migration Act 1958 (Cth).

[27] Plaintiff M47/2012 v Director-General of Security (2012) 292 ALR 243.

[28] Ibid.

[29] Harriet Alexander, ‘Refugee Lawyers Challenge Indefinite Detention Rule’, Sydney Morning Herald (online), 12 December 2012 <http://www.smh.com.au/opinion/political-news/refugee-lawyers-challenge-indefinite-detention-rule-20121211-2b7lr.html&gt;.

[30] A ‘lawful non-citizen’ is defined in section 13(1) of the Migration Act 1958 (Cth).

[31] Section 46A(2) of the Migration Act 1958 (Cth).

[32] See Wood and McAdam, ‘Australian asylum policy all at sea: an analysis of Plaintiff M70/2011 v Minister for Immigration and Citizenship and the Australia-Malaysia arrangement’ (2012) 61(1) International & Comparative Law Quarterly 274, 281.

[33] It should be noted that procedural safeguards, although limited, remain in place within the offshore processing regime, including the requirement that common law rules of natural justice continue to apply: see Plaintiff M61/2010E and Plaintiff M69/2010 v Commonwealth of Australia (2010) 272 ALR 14.

[34] Plaintiff M47/2012 v Director-General of Security (2012) 292 ALR 243.

[35] Ben Saul, Submission to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Migration and Security Legislation Amendment (Review of Security Assessments) Bill 2012, 4 December 2012, 4.

[36] See, e.g., the discussion in Saul, supra n 23 at 14.

[37] Plaintiff M47-2012 v Director General of Security (2012) 292 ALR 243 at [28], [72] per French CJ; [225] per Hayne J; [404] per Crennan J; and [460] per Kiefel J.

[38] Al-Kateb v Godwin (2004) 219 CLR 562.

[39] ‘Officer’ is defined in section 5 of the Migration Act 1958 (Cth).

[40] Migration Act 1958 (Cth) s 189(3).

[41] ‘Lawful non-citizen’ is defined in section 13 of the Migration Act 1958 (Cth): “A non-citizen in the migration zone who holds a visa that is in effect is a lawful non-citizen. An allowed inhabitant of the Protected Zone who is in a protected area in connection with the performance of traditional activities is a lawful non-citizen.”

[42] Al-Kateb v Goodwin (2004) 219 CLR 562.

[43] Ibid per McHugh, Hayne, Callinan and Heydon JJ. Glesson CJ, Gummow and Kirby JJ were in dissent on this point.

[44] Plaintiff M47-2012 v Director General of Security (2012) 292 ALR 243.

[45] Al-Kateb v Goodwin (2004) 219 CLR 562.

[46] Plaintiff M47-2012 v Director General of Security (2012) 292 ALR 243 at [120]. Bell J agreed with this construction at [530]- [535].

[47] Ibid at [117]. This was the construction contained in the dissenting judgement of Gleeson J in Al-Kateb v Goodwin (2004) 219 CLR 562.

[48] Al-Kateb v Goodwin (2004) 219 CLR 562.

[49] Plaintiff M47-2012 v Director General of Security (2012) 292 ALR 243 at [532].

[50] Ibid per French CJ, Hayne, Crennan, Kiefel and Heydon JJ.

[51] Al-Kateb v Goodwin (2004) 219 CLR 562.

[52] Plaintiff S138/2012 v Director General of Security & Ors [2013] HCATrans 34 (19 February 2013).

[53] Al-Kateb v Goodwin (2004) 219 CLR 562.

[54] Plaintiff M47-2012 v Director General of Security (2012) 292 ALR 243 per French CJ, Hayne, Crennan, Kiefel and Heydon JJ.

[55] Plaintiff S138/2012 v Director General of Security & Ors [2013] HCATrans 34 (19 February 2013).

[56] Al-Kateb v Goodwin (2004) 219 CLR 562.

[57] Ibid per McHugh J and Gleeson CJ.

[58] Ibid per Hayne J, Heydon J agreeing.

[59]Ibid per McHugh, Hayne, Callinan JJ, Heydon J agreeing and Gleeson CJ.

[60] Ibid per Hayne, Callinan JJ, Heydon J agreeing.

[61] Plaintiff S138/2012 v Director General of Security & Ors [2013] HCATrans 34 (19 February 2013).

[62] For a comprehensive overview of such inconsistencies see Saul, supra n 23.

[63] Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137, entered into force 22 April 1954 as modified by the Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 257 (entered into force 4 October 1967).

[64] Guy Goodwin-Gill and Jane McAdam , The Refugee in International Law (Oxford University Press, 3rd ed, 2007) 266.

[65] Re Woolley; Ex Parte Applicants M276/ 2003 (2004) 225 CLR 1, 46-47.

[66] International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976).

[67] Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).

[68] Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137, entered into force 22 April 1954 as modified by the Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 257 (entered into force 4 October 1967).

[69] Migration and Security Legislation Amendment (Review of Security Assessments) Bill.

[70] Senate Legal and Constitutional Affairs Committee, Parliament of Australia, Report on the Migration and Security Legislation Amendment (Review of Security Assessments) Bill (April 30 2013).

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