Opeskin, Brian --- "Managing International Migration in Australia: Human Rights and the "Last Major Redoubt of Unfettered National Sovereignty"" [2012] UTSLRS 3; (2012) 46(3) International Migration Review 551

Human Rights and the ‘Last Major Redoubt of Unfettered National Sovereignty’

This article challenges the view of many commentators that the capacity of liberal democracies to regulate international migration has been significantly compromised by the growth of international human rights norms and the role of independent judiciaries in enforcing those norms. Focusing on three Australian case studies that deal with deportation, mandatory detention of refugee claimants, and judicial review of migration decisions, the article concludes that international and domestic legal constraints still leave very substantial latitude to liberal democratic States to regulate the size and composition of international immigration flows. With only modest qualifications, migration policy remains ‘the last major redoubt of unfettered national sovereignty’.

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Human Rights and the ‘Last Major Redoubt of Unfettered National Sovereignty’^[1]

In the Australian federal election held in August 2010, a significant issue that divided the major political parties was the appropriate policy response to the arrival of increasing numbers of asylum seekers—mostly Afghanis and Sri Lankans—by boat from Southeast Asia. In a closely fought election that ended in a hung parliament, the outcome in marginal electorates appeared to teeter on public perceptions about which party could best manage Australia's migration program and secure its borders from unwanted immigrants. The incumbent Labor Government was seen in some quarters as soft on migration because it had relaxed a number of stringent policies on immigration and border control. The opposing Liberal-National Coalition sought to regain government by promising to ‘turn boats back’, reintroduce temporary protection visas for refugees in lieu of permanent protection, enforce strict border control, and set lower immigration quotas on the basis of economic and environmental sustainability (The Liberals, 2010: 6).

In this tense political environment, two days before the polls opened, a leading national newspaper carried a front page headline proclaiming that ‘Appeals Foil Boat Crackdown’ (Maley and Taylor, 2010). The central message was that the Labor Government was unable to stem the ‘tide’ of Afghani and Sri Lankan asylum seekers because unsuccessful claimants for refugee status were having those determinations overturned by the courts. Although the report laid responsibility at the courthouse door, the headline played to public anxieties about the capacity of government to control migration flows into Australia. Three months later, Australia’s highest court was front page news with the headline ‘Timor Solution in Tatters’ (Narushima, 2010: 1). On this occasion, the High Court declared that Australia’s offshore processing of refugee claims in Christmas Island (an external territory in the Timor Sea) had denied the claimants procedural fairness because the process was unchecked by Australian law.^[2] As one newspaper assessed the decision, ‘the High Court has opened the lid on a honeypot of court-clogging litigation which activist lawyers will be hungry to exploit’ (Editorial, 2010: 17).

These events resonate in many liberal democracies today, reflecting a fundamental tension in international migration policy. On the one hand, States have historically claimed near absolute authority over their territories by regulating the inbound movement of people across their borders. The high watermark of this approach is reflected in judicial decisions of the late 19th Century; thus the United States Supreme Court proclaimed in 1892 that ‘every sovereign nation has the power, as inherent in sovereignty ... to forbid the entrance of foreigners within its dominions’.^[3] This absolutist view has left the perception that migration policy is ‘the last major redoubt of unfettered national sovereignty’ (Martin, 1989: 547). On the other hand, many commentators have claimed that the capacity of modern liberal democracies to regulate international migration is now significantly compromised and that the reasons for this include the growth of international human rights norms and the role of independent judiciaries in enforcing those norms (Birrell, 1992, Cornelius et al., 1994, Freeman, 1998, Jacobson, 1996, Joppke, 1998a, Massey, 1999, Sassen, 1996).

Using Australia as the theatre for exploring these issues, this article examines the impact of the international human rights regime and independent judiciaries on the capacity of liberal democracies to control international migration. While the focus is on Australia’s migration experience, reference is made to other settler societies (Canada, New Zealand, United States) where relevant. There are many reasons why the capacity of a State to regulate movement of people across its borders may be challenged, including porous land boundaries (e.g. United States–Mexico) and transborder mobility regimes (e.g. the Schengen Area in Europe). Australia’s geographic isolation and absence of land borders make it distinctive in this respect.^[4] However, it remains a valuable opportunity for examining the impact of legal institutions and cultures on international migration, and for reflecting on the implications for other States founded on similar liberal democratic values.

The central conclusions of this article are that: (1) international and domestic legal norms do constrain the actions of States in regulating the movement of persons across borders; (2) the international constraints, far from being imposed on States by external forces, are the foreseeable result of the exercise of state sovereignty at earlier points in time; (3) the domestic constraints are less easily eluded but have often been overstated; (4) the constraints still leave very substantial latitude to States to regulate the size and composition of international immigration flows; and (5) to the extent that human rights norms impede a State in achieving its desired migration outcomes, the impediment is in service to higher aspirations, namely, the recognition of human rights and fundamental freedoms of all persons on a universal basis, regardless of their status as nationals or aliens.

The article is organised as follows. The next section examines the belated attention given by migration theories to the role of the State in regulating migration flows, and identifies the constraints that liberal democracies are said to face. The article then challenges the notion that a State’s migration policies are significantly fettered by the international human rights regime. The discussion identifies ways in which States can preserve a high degree of policy freedom while still operating within the international framework. The article then analyses the notion that a State’s migration policies are significantly fettered by domestic laws and institutions. Internal constraints often bite harder than external ones, but a proper understanding of the framework of decision-making in migration matters suggests a reasonable degree of State latitude. These general principles are then examined in the context of three Australian case studies that demonstrate the complexity of State control over migration. The studies reveal nuanced relationships between the three branches of government within liberal democratic states, and between the domestic and international legal orders. The article concludes with an assessment of whether migration policy can fairly be described as ‘the last major redoubt of unfettered national sovereignty’.

Social scientists have generated a vast literature seeking to explain why human migration occurs and how it is patterned. Many early migration theories focussed on the socio-economic and geographic determinants of migration. While they acknowledged the role of the State in prohibiting, facilitating or regulating migration flows, the State as an actor was relegated to a subsidiary position.

Thus, when Ravenstein made his seminal contribution to the discipline in the late 19th Century by examining the ‘currents’ of migration in Europe and North America, he postulated that international migration was driven largely by economic forces. The State merited only two passing references. As an initiator of migration flows, ‘oppressive laws’ might generate outward migration currents. As a prohibitor of migration flows, ‘currents of migration which would flow naturally in a certain direction traced out for them in the main by geographical features, may ... be diverted, or stopped altogether, by legislative enactments’ (Ravenstein, 1889: 241, 286). The relative invisibility of the State was hardly surprising for the period in which Ravenstein wrote, even in the context of transnational movements. For much of the 19th Century, States adopted a laissez-faire attitude towards migration and lacked a regularised system of passport control which came to symbolise state authority in the 20th Century (Doulman and Lee, 2008: 13-14).

Nearly 80 years on, Lee’s influential theory of push and pull factors associated with the place of origin and the place of destination similarly acknowledged the regulatory power of the State but declined to elaborate it. ‘Between every two points there stands a set of intervening obstacles which may be slight in some instances and insurmountable in others’ (Lee, 1966: 51). The most studied of these obstacles was distance, but Lee noted that legal barriers such as immigration laws may also restrict movement. Lee’s theory was one of migration in general, not international migration, and the subsidiary role of the State should be seen in that context.

In the 1990s, scholars began to redress the lack of attention given in earlier theories to the regulatory role of the State. In answering the question whether liberal democracies had retained their capacity to control international migration, Freeman (1994: 29, 1998) concluded that this varied by State, by type of migration stream, and over time. In his opinion, the capacity of liberal democracies to control their borders had increased overall, but he sounded a note of caution about evolving ‘domestic and international norms and rules that assert individual human rights of migrants and refugees against the prerogatives of sovereign states’.

Birrell (1994, 1992) elaborated this theme in relation to Australian migration in the 1980s and 1990s. He claimed that the strict control agenda of the immigration bureaucracy had been challenged by the liberal, permissive approach of courts which had a growing involvement in migration decision-making. The chief elements of this increased involvement were, in his view, enhanced rights of review of migration decisions as a consequence of measures to promote administrative accountability; greater currency of human rights ideals among liberal elites; a growing body of international human rights case law; and the liberal interpretations preferred by courts when faced with choices in interpreting treaty provisions such as the Refugee Convention 1951. Birrell rightly pointed out, however, that the executive and legislative arms of government had not been powerless in dealing with these changes and had sought to reassert control over migration flows in a number of ways.

American scholars also showed renewed interest in the role of the State. According to one group of collaborators, rights-based politics in the post-war period have created ‘new legal spaces’ for marginal groups (including foreigners) in advanced industrial democracies. This has constrained the executive authorities in their attempts to achieve ‘territorial closure’. Efforts to regain control of borders can be achieved only by a ‘rollback of civil and human rights for non-citizens’ (Cornelius et al., 1994: 8-10). Beyond its effect on cross-border movement, the rights-based culture has also redefined the relationship between individuals and the State because resident aliens have secured rights (such as public education, health care, and social security) hitherto enjoyed only by citizens. International human rights codes have thus been transforming the nation-state and eroding the traditional basis of membership through citizenship (Jacobson, 1996: 8-16).

The causes of these changes have been laid at different doors. For some it was the burgeoning international and regional human rights regimes that emerged in the post-war era (Sassen, 1996: 88-99, Sassen, 2000: 72). For others it was the role of active and independent judiciaries that are shielded from political pressures affecting other branches of government (Massey, 1999: 314). And for still others it was the protection afforded to individuals vis-à-vis the State by strong national constitutions operating under the rule of law (Joppke, 1998a: 271). The differences are significant because the first explanation might be taken to imply that any unwanted immigration is externally driven, whereas the latter explanations reflect internal attributes (a ‘self-limited sovereignty’) that are ‘inherent in the liberalness of liberal states’ (Joppke, 1998a: 292).

These considerations are arguably reflected in differential capacities of States to control migration. It has been said that the absence of a written constitution in the United Kingdom (an oddity shared with New Zealand) explains the exceptionally effective immigration control policies in that country (Joppke, 1998b: 19).^[5] Conversely, the emergence of the civil rights movement in the United States in the 1960s, and the concomitant development of constitutional norms of equality, have been credited with fundamentally recasting the United States’ capacity to regulate international migration (DeLaet, 2000).

These accounts from political scientists and sociologists are curious in four respects. The first is that invocation of the ‘international human rights regime’ as a reason for State incapacity to control migration fails to address the subtlety of the international legal system and its relationship to domestic legal orders. Existing accounts leave the impression that international human rights norms are a juggernaut from which no liberal democracy can escape. In reality, States face choices about which international norms they will be bound by, the processes through which their compliance will be supervised, and the means by which those norms will be translated into domestic law. Human rights treaties seldom challenge traditional notions of state sovereignty because States choose voluntarily to commit themselves to their provisions, and not all States do so (Dauvergne, 2004: 597).

A second feature of the literature is its predominant focus on the admission of foreigners into the territory of the State. Yet, the power of the State to control migration is manifest in two other domains—how resident non-nationals are treated within the State’s territory (e.g. in the provision of social goods); and how unwanted migrants are removed from the State’s territory through deportation and related procedures. Deportation is ‘the state’s ultimate and most naked form of immigration control’ and its invisibility in the literature is therefore surprising (Gibney and Hansen, 2003: 1).

In a study of deportations of unsuccessful refugee claimants in Canada, Germany and the United Kingdom, Gibney and Hansen noted that the number of deportations in these countries had changed little despite vast increases in the number of rejected refugee claims. One explanation they give for the unwillingness of States to deport is that expulsion powers have been limited by domestic courts, which increasingly apply international human rights standards. This claim is not explicated but it comports with Joppke’s (1998a) ‘self-limited sovereignty’ thesis. Yet there are other factors at play, including the high cost of deportation, the lack of cooperation from countries of origin, and the domestic unpopularity of forcibly removing aliens.

A third feature is the apparent indifference of some authors to the objectives that human rights principles are intended to serve. While accepting that constraints on a State’s capacity to control immigration should not be seen as a ‘control crisis’ (Sassen, 1996: 74), there is a hint of nostalgia for a golden age of unfettered national sovereignty that States were once thought to have enjoyed. Few commentators question the assumption that States act legitimately when they restrict international migration, despite the range of ethical issues posed by closed borders (Barry and Goodin, 1992, Dowty, 1987, Gibney, 1988, Hathaway, 1994: 49-51).

Fourthly, the literature is ambiguous in its description of ‘the State’ as an entity invested with authority to control migration (Cronin, 1993: 96-97). Some accounts equate the State with the executive branch of government alone. Others equate the State with the executive and legislative branches jointly. The latter is a more complete description, but still glosses over the frequent struggles between the executive and legislative branches in determining the framework for migration decision-making. It also sets up an apparent contest between these two branches and the judiciary, in which the courts are seen to undermine the capacity of ‘the State’ to control migration. A preferable conception would regard the State as comprising all three branches, with the checks and balances that inhere in every liberal democracy.

A recurrent theme in the migration literature that emerged in the 1990s is the idea that migration policy choices available to States are significantly constrained externally by the ‘international human rights regime’ (Cornelius et al., 1994, Freeman, 1994, Jacobson, 1996, Sassen, 1996, Sassen, 2000). While it cannot be denied that international human rights institutions and processes exert ‘soft power’ over States (Van Hoof, 1983: 187-189, Hunt, 2007: 176-214), the migration literature tends to play down state freedom to craft domestic migration policies in furtherance of state interests. This section examines four ways in which liberal democracies operate within the international system without seriously compromising their capacity to set domestic migration policy.

It is a fundamental principle of international law that treaties are based on the consent of States and bind only those States that voluntarily agree to them.^[6] Liberal democracies have not rushed headlong into making binding commitments to treaties that impact on the freedom of individuals to move across national borders. This can be seen in Table 1, which shows the ratification history of select human rights treaties in Australia, Canada, New Zealand and the United States.

The most striking feature of the table is the near-complete failure of the four States to ratify treaties that establish a rights regime for migrant workers, namely the two International Labour Organization (ILO) Conventions of 1949 and 1975 and the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families 1990. This reluctance is shared with most other migrant-receiving States (Pécoud and De Guchteneire, 2004, Taran, 2000, Cholewinski, 2007). Another notable feature is the substantial delay between the conclusion of treaties and their ratification. Although Australia prides itself on being a ‘good international citizen’, it took 9 years to ratify the International Covenant on Economic Social and Cultural Rights 1966 (ICESCR), 14 years to ratify the International Covenant on Civil and Political Rights 1966 (ICCPR), and 25 years to ratify the First Optional Protocol to the ICCPR (allowing for individual complaints to the United Nations Human Rights Committee). Liberal democracies take time to evaluate human rights treaties, and ratify them only when the treaties are adjudged as serving state interests. The United States in particular has demonstrated a striking reluctance about rights (Henkin, 1995, Ignatieff, 2002, Roth, 2000, Grant, 2000).

Since 2006 the human rights record of every State in the United Nations system has been subject to additional scrutiny through the process of universal periodic review (UPR) under the auspices of the United Nations Human Rights Council. Every four years the Council reviews the fulfilment by each State of its ‘human rights obligations and commitments’, leading to the contentious question of whether States should be measured against the standards of treaties they have not ratified (Gaer, 2007: 125-127). This question has generally received a conservative response that affirms the consensual basis of treaty law: UPR is conducted against the standards in the United Nations Charter; human rights instruments to which the State is party; voluntary commitments made by the State; and the Universal Declaration of Human Rights (Office of the High Commissioner for Human Rights, 2008). Only the invocation of the Universal Declaration challenges the underlying notion of consent, and it has a modest bearing on international migration issues.

The tendency to overstate the constraints on liberal democracies posed by the ‘international human rights regime’ is exacerbated by a failure to identify which rights that regime protects. Although international instruments recognise the right of individuals to leave any country, significantly there is no corresponding right to enter any country (Harvey and Barnidge, 2007, Nafziger, 1983).^[7] This much would be evident to any foreign national arriving without a visa at airports in Sydney, Toronto, Auckland, or New York. The absence of a general human right to enter another State has a dramatic bearing on domestic migration policies because it places authority over admission squarely in the hands of the receiving State and legitimates most policies used by liberal democracies for filtering demand, such as quotas, qualifications, skills, language proficiency, and points-based selection (United Nations, 2009: 6-14).

The only significant exceptions to the absence of a general right of entry are the right of nationals not to be arbitrarily denied affect their own country; and the right of refugees not to be returned to a territory where they would face persecution on the ground of their race, religion, nationality, membership of a particular social group, or political opinion.^[8] The latter obligation of non-refoulement might seem like a significant inroad into a State’s capacity to control entry to its territory, but even this falls short of a more substantial right of asylum, namely, a positive right that inheres in an individual in jeopardy to enter and remain in a host State (Hathaway, 2005: 300-302).

A further dimension is that migration rights, where they exist, are usually qualified rights. Very few human rights are absolute, and most are subject to permissible limitations. Article 12 of the ICCPR is a case in point. After proclaiming that ‘everyone shall be free to leave any country, including his own’, the Covenant states that the right may be restricted if three conditions are fulfilled, namely, the restriction (a) is provided by law; (b) pursues a legitimate aim (i.e. is necessary to protect national security, public order, public health or morals, or the rights and freedom of others); and (c) is consistent with other rights in the Covenant. International human rights law thus recognises that a balance must be struck between the individual’s interest and the State’s interest; between treating freedom to leave as a right and treating it as a privilege.

Treaties are rarely prescriptive about the means that States must adopt to protect human rights: they require States to achieve substantive outcomes but leave discretion as to how those outcomes will be achieved. This latitude is called the ‘margin of appreciation’ and it is a necessary concession in applying universal norms in a world marked by diversity of legal systems and institutions.^[9] Treaty obligations can often be satisfied by quite disparate practices and this provides States with choices in migration matters. Thus, when Art 10 of the ICESCR stipulates that States shall give ‘the widest possible protection and assistance ... to the family, which is the natural and fundamental group unit of society’, the implications for migration policies allowing family reunion are indeterminate.

In summary, liberal democracies can operate within the international human rights system without seriously jeopardising their capacity to determine domestic migration policy. They do so by selecting the treaties they wish to adhere to; imposing limitations on migration rights as permitted by international law; and acting within the margin of appreciation granted to States in implementing international obligations. Additionally, international human rights law is self-limited in that it does not seek to regulate most aspects of admission, which remains among the most jealously guarded prerogatives of national governments (Martin, 1989: 572).

The claim that a State’s migration policies are constrained internally has more credence because these constraints emanate directly from the domestic legal order. As noted previously, when commentators remark on the State’s internal loss of control over migration, it is usually a limited conception of ‘the State’ they have in mind, comprising only the executive and legislative branches. On that view, interference with executive and legislative migration policy may emanate from two sources: the constitutional protection of human rights (including the rights of aliens) and the role of independent judiciaries.

Constitutions lie beyond the reach of the executive and legislative branches because they bind everyone and can be amended only by invoking special procedures designed to make change difficult. For example, the Australian Constitution provides that it ‘shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth’, and constitutional change requires popular referendum with a demanding double majority requirement (Saunders, 2001).^[10] In this way a written constitution ‘is designed to be an anchor in the past ... it creates rules that bind until a supermajority of the living changes them’ (Easterbrook, 1992: 363).

Judges lie beyond the reach of the executive and legislative branches because they are an independent check on the legality of the exercise of power by the other branches. In constitutional democracies, the independence and power of the judiciary is cemented by a range of principles, including the principle of judicial review which allows courts to oversee the other branches and invalidate actions inconsistent with the constitution (Nelson, 2000).^[11] This affects a shift in power towards the courts because the legislative and executive branches are subservient to the constitution, as the judges interpret it. Those interpretations have increasingly adopted an internationalist outlook that is sympathetic to international human rights norms. An important turning point in that process was the adoption of the Bangalore Principles in 1988, in which a group of high profile judges, largely from Commonwealth countries, recognised the growing tendency for national courts to have regard to international norms, and proclaimed that ‘It is within the proper nature of the judicial process ... for national courts to have regard to international obligations which a country undertakes ... for the purpose of removing ambiguity or uncertainty from national constitutions, legislation or common law’ (Kirby, 1995: 34).^[12] The contrast with the introspective stance of some United States Supreme Court justices is stark (Koh, 2004).

Nevertheless, it is simplistic to regard constitutions and judges as having only a constraining impact in relation to migration policy. There are three reasons for adopting a more nuanced approach.

First, constitutions in liberal democracies do not merely constrain, they empower. The power of the executive is usually broadly drawn to permit the exercise of prerogatives that have been exercised by States for as long as States have existed. These prerogatives underpin the claim of the United States Supreme Court, quoted earlier, that ‘every sovereign nation has the power, as inherent in sovereignty ... to forbid the entrance of foreigners within its dominions’. The power of the legislature is usually defined, but it often includes a grant of power to make laws with respect to migration, naturalisation and aliens. As discussed in a case study below, courts often uphold the breadth of these powers, recognising their centrality to the identity of the territorially bounded State.

Secondly, constitutional constraints on the power to regulate migration are not as broad as often supposed—they vary from one jurisdiction to another and over time. Not all liberal democracies have constitutional protections such as those contained in the United States Bill of Rights or the Canadian Charter of Rights and Freedoms. New Zealand has no written constitution, and its Bill of Rights is merely legislative.^[13] Australia has a written Constitution but it does not contain a Bill of Rights. In States that have a constitutional Bill of Rights, the case has yet to be made that human rights protections have moved ineluctably in the direction of expanding the rights of aliens in a manner that seriously jeopardises the capacity of States to control international migration.

Thirdly, most of the interactions that courts have with the migration process are not at the high level of constitutional validity but at the prosaic level of exercising judicial review over administrative decisions taken by the executive branch of government. The review of migration decisions is a technical area of administrative law and only the broad outlines will be considered here. Critical to the discussion is the distinction between merits review and judicial review.

Once a migration decision has been made by the primary decision-maker, it is typically subject to review on its merits in an administrative tribunal.^[14] This is a non-judicial procedure that entails a full hearing and a re-making of the decision according to its merits. An unsuccessful applicant may then exercise a subsequent right to judicial review before a court of law. Judicial review does not entail a re-making of the migration decision—it merely checks for known types of administrative error, such as whether the decision-maker took irrelevant considerations into account or failed to take relevant considerations into account. If there has been error, the court quashes the migration decision and returns the matter to the decision-maker for reconsideration in accordance with the proper principles. There is no guarantee of a different outcome when the decision is re-made. The role of the courts is therefore quite narrow—they are concerned with the observance of procedural standards, not with the substantive outcome of the decision. While this is still a constraint on executive action, it is a diffident one, thus undermining the claim that activist judges in liberal democracies regularly thwart the State’s decisions over admission and expulsion.

The three case studies that follow illustrate, in the context of Australian migration policy, the intricate relationships that exist between the three branches of government within a State, and between the domestic and international legal orders. Despite the constraints that are said to arise in liberal democracies internally from constitutions and independent judiciaries, and externally from the international human rights regime, Australia has retained a large measure of control over international migration, particularly with respect to admission.

To place these studies in context, it is first necessary to outline the institutional framework of rights protection in Australia, in so far as it relates to the State’s authority over migration. Australia’s system of government borrows heavily from the disparate political traditions of the United Kingdom and the United States. Following the United States tradition, Australia was established as a federation of States under a written Constitution. Yet the constitutional drafters chose not to follow the path of incorporating a comprehensive Bill of Rights. Express protection of rights was thought to be both unnecessary in a ‘civilised society’ comprised of ‘honourable men’, and an unwarranted interference with representative legislatures (Byrnes et al., 2009: 26, Irving, 1997: 162-168). Australia never had America’s experience of a civil war, and the systemic oppression of indigenous Australians was not seen as a matter requiring remedy in the years leading up to federation in 1901. In the result, the Constitution granted extensive powers to the Federal Parliament to make laws with respect to immigration, emigration, naturalisation and aliens,^[15] while entrenching few countervailing rights.

Under these arrangements, the protection of human rights falls largely to the Parliament in enacting legislation and to the judiciary in applying the Constitution, legislation and the common law. As to the judiciary, the common law remains an important source of human rights protection, but it is subordinate to the will of the legislature. As to the Parliament, there has been no inclination to enact comprehensive human rights protections. Indeed, a government initiated inquiry recommended in 2009 that Australia enact a legislative Bill of Rights, but this has been rejected by the Australian Government in favour of softer options such as human rights education (Attorney-General's Department, 2010, National Human Rights Consultation, 2009).^[16] However, piecemeal statutory protections do exist, including a prohibition on racial discrimination, which brought an end to more than 70 years of racially selective migration under the White Australia Policy (Jupp, 2002).^[17]

The first case study addresses the claim by Gibney and Hanson (2003) that the expulsion powers of the liberal State have been limited by domestic courts, which increasingly apply international human rights standards in cases before them. The study focuses on a deportation case that was a cause célèbre in the 1990s, and whose outcome and aftermath illustrate the tensions between the three branches of government in migration matters (Twomey, 1995, Walker, 1995, Allars, 1997).

Teoh’s Case concerned a Malaysian citizen who entered Australia on a temporary residence visa and soon married an Australian woman with whom he had three children. While Teoh’s application for permanent residence was being considered, he was convicted of importing heroin and sentenced to six years imprisonment. His application for permanent residence was denied on character grounds, and a merits review of that decision by the Immigration Review Panel (now the Migration Review Tribunal) came to the same view. He was then ordered to be deported. His application for judicial review of the deportation order was considered by a single judge of the Federal Court and dismissed,^[18] but Teoh then appealed to the Full Federal Court and was successful.^[19] In accordance with accepted principles of administrative law, the Full Federal Court remitted the matter to the Minister for Immigration for reconsideration in accordance with the proper principles. Before the decision was re-made, the Minister appealed to the High Court of Australia.

The central question in the High Court proceedings was the effect of Teoh’s proposed deportation to Malaysia on his family in Australia. His deportation would have resulted in his family breaking up because his wife had no means of supporting them, and their children would have had to be taken into care. It was in this context that Australia’s international obligations became relevant. In 1990 Australia ratified the Convention on the Rights of the Child. Article 3 of the Convention provides that ‘in all actions concerning children ... the best interests of the child shall be a primary consideration’. The question was whether a decision-maker should have given primary consideration to the interests of the children when considering a deportation order against Teoh—for example, by allowing him to stay in Australia despite his criminal conviction.

The High Court held that, because the Convention had not been incorporated into domestic law by legislation, the decision-maker was not bound to comply with Article 3 as though it were a substantive principle of Australian law. However, a majority went on to hold that ratification of a treaty nevertheless creates a ‘legitimate expectation’ that administrative decision-makers will act in conformity with the treaty, unless there is a statutory or executive indication to the contrary.^[20] This was a procedural right, not a substantive right. If the decision-maker proposed to make a decision inconsistent with a legitimate expectation, then procedural fairness required that the affected person be given notice and an opportunity of presenting a case against that course. In the result, the Minister’s appeal to the High Court failed because his delegate had not afforded Teoh that procedural right. Decisions in Canada and New Zealand have also found, in different ways, that ratification of a treaty has implications for administrative decision making, even in the absence of legislative implementation (Butler and Butler, 1999, McLean, 2005, Dyzenhaus and Fox-Decent, 2001).^[21]

Considered alone, Teoh’s Case appears to support the claim that liberal democracies are substantially constrained in their capacity to deport unwanted migrants. Five-and-a-half years elapsed between the original decision to deny Teoh permanent residence in 1991 and the effective determination of his status. By then, nine judges and three courts had considered the matter; recourse had been made to the international rights of the child; and Teoh was ultimately granted permanent residence when the decision was re-made by the Minister’s delegate (Katz, 1998: 4).

However, the events that followed Teoh’s Case suggest a more nuanced picture. The High Court had stated that ratification of a treaty would give rise to a legitimate expectation unless there was a legislative or executive indication to the contrary. This gave the other branches of government an opportunity to reassert control over the migration decision-making process. On three occasions (in 1995, 1997 and 1999) the Government introduced legislation into Parliament (commonly called the anti-Teoh Bill) seeking to remove the legitimate expectation (Lacey, 2001).^[22] None of these legislative interventions resulted in enacted law, due to opposition in the Senate and the lapsing of Bills upon the calling of elections, but executive action was more successful.

One month after the High Court’s decision, two Government Ministers issued a Joint Executive Statement purporting to restore the status quo. The Statement expressed the Government’s policy that ratification of a treaty does not raise any expectation that government decision-makers will conform to the provisions of the treaty if those provisions have not been enacted into domestic law (Allars, 1997: 235). Some judges suggested that this generalised attempt to override Teoh’s Case was ineffective,^[23] but a more refined executive response subsequently found favour with the courts. In Baldini’s Case,^[24] the Federal Court had to consider the deportation of a convicted criminal in circumstances similar to Teoh’s Case. The Court upheld the deportation order because the new Criminal Deportation Policy, which was adopted in 1998, required consideration of the best interests of the child in a narrower range of circumstances than the Convention.^[25] The Executive’s new deportation policy was expressly designed to address the issues arising from Teoh’s Case (Australian Parliament, 1998: 65-66). It was held to be effective, although it has not been beyond criticism (Foster, 2009).

This study suggests that international human rights norms, when applied by domestic courts, can constrain executive action with respect to deportation. But the constraints are often procedural rather than substantive, and even then the executive and legislative branches have the capacity to assume the upper hand. That successive Australian Governments have responded in this way has been described as ‘disturbing’ and ‘inappropriate’ because it nullifies the protection of individuals from abuses by the State (Walker, 1995: 247). That successive Governments have not been able to translate these aims into legislative action through an ‘anti-Teoh Act’ suggests that Parliament has chosen to limit executive control over deportation in the interests of upholding liberal democratic values, even for aliens. Not all branches of government speak with one voice.

The second case study focuses on the detention of asylum seekers in Australia prior to the determination of their refugee status. It is a useful illustration of the dynamic impact of domestic and international institutions on a controversial area of migration policy at the point of admission to the territory of the State.

Australia had a chequered history of accepting refugees between the 1930s and 1970s (Neumann, 2004), and did not develop a clear policy towards onshore refugees until the first waves of asylum seekers began to arrive by boat from Vietnam in the late 1970s (York, 2003: 9). These early refugee claimants were accommodated in unfenced migrant hostels pending determination of their status, and this approach was adopted again in the late 1980s with the influx of Cambodian ‘boat people’ fleeing the genocide of the Pol Pot regime. In 1992, laws were introduced to authorise the mandatory detention of this specific group of boat arrivals in order to ‘send a clear message ... that migration to Australia may not be achieved by simply arriving in this country and expecting to be allowed into the community’ (Stevens, 2002: 878).

The laws authorising mandatory detention were challenged in the High Court by two Cambodian refugee claimants who had been detained in a facility in Port Hedland (Lim’s Case).^[26] In a decision that belies the oft-repeated claim that courts undermine the liberal State’s capacity to control migration, the High Court upheld the law, finding that the Constitution gave the Federal Parliament broad powers to deal with aliens. This included the power to authorise the administrative detention of aliens, provided the detention was for a non-punitive purpose. In the Court’s view, immigration detention was administrative in character because it was not (at that stage) indefinite, and it could be brought to an end at any time by the detainee choosing to leave Australia. The Court thus condoned a ‘three walled prison’ in which entry into the community was barred but detainees were free to leave for another country (Crock et al., 2006: 179).

In 1991 Australia ratified the First Optional Protocol to the ICCPR, allowing individuals to bring complaints to the United Nations Human Rights Committee for alleged violations of the rights guaranteed by the Covenant. This has become an important source of external scrutiny of aspects of Australia’s migration policy. With the failure of Lim’s challenge in the High Court, one of the Cambodian refugee claimants lodged a complaint with the Human Rights Committee alleging that his right to be free from arbitrary detention under Art 9 of the ICCPR had been breached.

In 1997 the Committee concluded that Australia had breached Art 9 and that the applicant should be compensated.^[27] The detention was arbitrary because it was prolonged, it was not periodically reviewed, and it was not proportional to a legitimate aim such as preventing flight. The views of the Human Rights Committee are not legally binding but they have substantial moral force and there is an expectation that States will comply with them as part of the general duty to perform treaties in good faith.^[28] Despite this, Australia rejected the Committee’s findings outright, stating that it did not accept that the detention contravened the Covenant.

Over the following years, the mandatory detention provisions were expanded and strengthened: for example, the class of persons affected was extended from Cambodian refugees to other unauthorised arrivals, and the maximum period of detention (originally 273 days) was removed. The policy was never applied to refugee claimants who arrived by air because its primary objective was to deter unauthorised arrivals (Phillips and Millbank, 2005): individuals arriving by air usually have visas due to the effectiveness of carrier sanctions (Feller, 1989, Abeyratne, 1998). Yet the number of boat arrivals has been very small in comparison with Australia’s annual migration intake: a total of 13,503 unauthorised persons arrived by boat over the 16 year period 1989/90–2004/05 (Crock et al., 2006: 31), whereas Australia’s annual net overseas migration has ranged between 100,000–300,000 over the past ten years. In May 2011, the population in immigration detention (a 20-year high, at 6,715 persons) was comprised overwhelmingly of irregular maritime arrivals (6,444 persons or 96 per cent), with only 57 (0.8 per cent) being unauthorised air arrivals (Department of Immigration and Citizenship, 2011).^[29]

The stringency of the Government’s measures continued to attract criticism at home and abroad (Crock et al., 2006: 189-190). Australia’s national human rights institution issued a number of strident reports condemning the mandatory detention policy, especially for its effects on the mental health of children (e.g. Human Rights and Equal Opportunity Commission, 2004). Individual complaints were lodged with the United Nations Human Rights Committee under the First Optional Protocol and resulted in a string of adverse findings.^[30] However, the Australian Government remained intransigent. Its formal responses to the Human Rights Committee were often combative (Charlesworth et al., 2006: 83-91), and claimed that Australia would ‘retain the system of mandatory detention ... to ensure the orderly processing of migration to our country’.^[31]

Successive Australian Governments preserved the broad framework of mandatory detention but gave it a ‘softer edge’ (Phillips and Millbank, 2005). It is possible that the changes were a response to international pressure. However, domestic politics is a more plausible explanation, given the media storm that followed the unlawful detention of an Australian permanent resident (Cornelia Rau) who was mistakenly thought to be an illegal immigrant (Crock et al., 2006: 190, Prince, 2005, Grewcock, 2005). Changes made in 2005 included the option of residential housing or community detention for women and children, and investigation by the Commonwealth Ombudsman of persons who had been in detention for more than two years.

Further amendments were made in 2008 following a change of government (Department of Immigration and Citizenship, 2010a). The policy framework maintained its commitment to mandatory detention ‘as an essential component of strong border control’, but ameliorated its effects by indicating that immigration detention would be used only as a last resort for the shortest possible time, and that detainees would be held in conditions that respected their dignity. In October 2010, the Government announced a further relaxation of the mandatory detention policy. The revised policy expands the program for placing unaccompanied minors and vulnerable families in community-based accommodation, while maintaining their status as persons in immigration detention (Bowen, 2010).

This case study is instructive in a number of ways. For nearly 20 years, Australian Governments have pursued a policy of mandatory detention of unauthorised boat arrivals, with bi-partisan support. The policy has had the explicit goal of deterring boat arrivals, in aid of strong border control. Contrary to the views of commentators in the 1990s, the policy has not been thwarted by domestic courts, which have found no constitutional impediment to these arrangements. Nor has it been thwarted by pressure from international human rights bodies, whose adverse rulings have been repeatedly ignored. The softening of the detention policy has come, instead, from domestic political pressures—a revolt by backbenchers after the Cornelia Rau affair; and formation of a minority government following the 2010 federal election, with the support of independent members of Parliament who favoured a more humane approach to asylum.

More generally, the case study provides occasion to reflect on the role of United Nations treaty bodies in scrutinising domestic migration decisions in response to individual complaints. Table 2 shows, for Australia, Canada and New Zealand, the number of cases in which human rights treaty bodies have expressed their views on the merits, and the number of cases in which violations have been found. While many alleged human rights violations do not concern migration matters, the data for Australia show a surprising number of impugned governmental actions that do fall within this field. Across the three treaties listed in the table, final views were expressed in 37 Australian cases and violations were found in 22 cases. Of the 22 breaches, 10 cases involved migration issues, namely, immigration detention, deportation to face torture or the death penalty, and deportation as an interference with family life. In a number of these cases, the United Nations Human Rights Committee reported that Australia’s response to the adverse finding was unsatisfactory, suggesting that appropriate domestic action had not been taken to remedy the breach (United Nations Human Rights Committee, 2009: 125-127). Several unsuccessful challenges also concerned migration matters such as extradition, the independence of the refugee status determination procedures, and discrimination on the basis of nationality in access to social security and education. These cases also carry significance because they nonetheless subject Australian practices to international scrutiny.

The third case study concerns the right of individuals to seek judicial review of adverse migration decisions, which has been an area of ‘colossal struggle between government and the courts over judicial supervision of executive decisions’ (Beaton-Wells, 2005: 141, Crock, 2004). The decisions in question affect both admission and expulsion, but the most contested area in practice has been the admission of refugees.

In 1994 the Australian Parliament enacted legislation that significantly narrowed the grounds on which the Federal Court could undertake judicial review of migration decisions. The changes to Part 8 of the Migration Act 1958 (Cth) were part of a package of reforms designed to prevent unauthorised immigrants from ‘using the courts to exploit any weaknesses they can find in our immigration laws’, and to prevent the courts from adopting judicial interpretations that eroded ‘the Government’s clear intentions in ... controlling entry to Australia’ (Hand, 1992: 2620). The Federal Court was initially reluctant to accept its diminished role and found creative ways to avoid the new restrictions (Kneebone, 2000: 90). However, challenges in the High Court in Abebe and later cases upheld the legislative changes (Crock, 2000, Beech-Jones, 2000, Rebikoff, 2001).^[32] This had the immediate effect of pushing judicial review applications from the Federal Court to the High Court, where the grounds of review had not been legislatively restricted because judicial review by the High Court is constitutionally protected.

By 2000 the Government had come to the view that Part 8 was failing in its purpose of reducing the volume of migration litigation and preventing unauthorised immigrants from prolonging their stay in Australia. In ‘another salvo in the running skirmish over refugee law’ (Harris, 2000: 209), Part 8 was repealed and a tougher provision was introduced. This provision—called a ‘privative clause’—bluntly stated that relevant migration decisions were ‘final and conclusive’ and could not be ‘challenged, appealed against, reviewed, quashed, or called in question in any court’.^[33]

In the inevitable constitutional challenge, the High Court significantly undermined the efficacy of the new amendment. The case of Plaintiff S157^[34] held that the privative clause could not prevent the High Court from reviewing one particular type of administrative error (jurisdictional error) because this was expressly conferred on the High Court by the Constitution (Robertson, 2003, McDonald, 2010). Subsequent cases in the Federal Court took an expansive view of what errors were ‘jurisdictional errors’, with the result that the privative clause largely failed in limiting the grounds, and therefore the volume, of judicial review (Beaton-Wells, 2005: 173).

Faced with the High Court’s response, the Government initiated a review of migration litigation with a view to enhancing its efficiency. The changes introduced in 2005 arguably signalled a shift by Government from an adversarial to a cooperative approach to migration determination (Beaton-Wells, 2005: 161). The reforms included requiring judicial review to be instigated lower in the court hierarchy; restoring the grounds of review to those available in the High Court under the Constitution; imposing time limits for applying for review; streamlining court processes; and deterring unmeritorious applications.

Restrictions on the avenues for judicial review also had international repercussions. Australia’s policy of providing merits review of primary migration decisions complied with the recommendation of the United Nations High Commissioner for Refugees that refugee determinations be subject to at least one level of review, whether administrative or judicial (United Nations High Commissioner for Refugees, 2003). However, the attempt to restrict judicial review was not beyond reproach because of its nexus with the mandatory detention policy (considered in the previous case study). The right to be free from arbitrary detention includes an entitlement to bring proceedings before a court to allow it to decide on the lawfulness of the detention and to order release (ICCPR Art 9(4)). In complaints made against Australia by asylum seekers held in immigration detention, the United Nations Human Rights Committee repeatedly held that Australia was in breach of the obligation to provide for judicial review of detention. These views, like those on mandatory detention itself, were ignored by the Australian Government.

This third case study yields additional insights into the capacity of liberal democracies to exercise migration control. For the past two decades, Australia has witnessed a dynamic tension between the executive and legislative branches on the one hand, and the judicial branch on the other, in controlling international migration. The tension is a natural product of their different roles and responsibilities—from broad policy issues regarding the size and composition of the migration program, to narrow legal issues regarding the rights of individual applicants (Cronin, 1993: 98). The dynamic tension has been manifested in periodic revisions of migration legislation with the apparent goal of ‘judge-proofing’ migration decision making. The revisions have ranged from codifying migration decisions in order to minimise executive discretion and hence the opportunities for legal challenge (1989); to restricting the grounds of judicial review in the Federal Court (1994); to attempted ousting of all judicial review through a privative clause (2001). The courts have not been entirely unsympathetic to this mission (see Abebe’s Case), but they must show obeisance to the Constitution and the rule of law, which demand that they act as a check on the unlawful exercise of power by other branches of government. It is too optimistic to think that a stable equilibrium has yet been reached but there are firm signs of mutual accommodation of interests.

The idea that liberal States have lost control over the movement of people across their borders has become a popular theme in discussions of contemporary migration (Bonjour, 2011). This is especially so in the United States, where immigration policy has been described as ‘rudderless’, a ‘disordered stalemate’, and as suffering from ‘benign neglect’ (Freeman, 2009, Martin, 1994, Lyon, 2010: 394). This has precipitated a search for reasons for the apparent loss of control and for appropriate policy responses to remedy the situation.

Using Australia as an illustration, this article has considered one aspect of this broader question, namely, whether liberal democracies are compromised in their capacity to control international migration by external pressures from the international human rights regime and internal pressures from constitutions and independent judiciaries. The evolution of a discrete literature on these questions in the 1990s has had the salutary effect of restoring the State from a position of near invisibility to one of centrality in mediating international migration flows. Nevertheless, the debate has been marred by a tendency to generalise the experience of a few prominent liberal States to all liberal democracies, and to make claims about individual States based on superficial assessments of the evidence.

Many liberal democracies do share common features that impact on their capacity to meet migration policy objectives, but there are also significant differences between them. Consider the fact that in 2009 the United States had an estimated stock of 11.1 million unauthorised immigrants (36 per 1,000 residents), while Australia had just 48,720 ‘unlawful non-citizens’ (2 per 1,000 residents) (Department of Immigration and Citizenship, 2010b: 171, Martin and Midgley, 2010: 2). United States authorities may have lost control over migration (due largely to its porous border with Mexico), but the concern in liberal States such as Australia, New Zealand and Canada is more that the State might lose control (and therefore public support) in the future if migration bureaucracies are unable to maintain past practices of tightly administered programs.

This article has examined the issue of migration control using three detailed Australian case studies. Whether the conclusions below can be extrapolated to other English-speaking settler societies merits further research, while the implications for Europe raise different questions again because of its different trajectory in the post-war period (Kagan, 2003). The Australian case studies show that managing international migration in a liberal democracy is a complex matter because of the interactions between the three branches of government within the State, and the subtle relationship between the domestic and international legal orders. Five general conclusions may be drawn.

During Australia’s 2001 federal election campaign, as yet another crisis over unauthorised boat arrivals unfolded in the Tampa incident (Khan, 2003), the Australian Prime Minister famously remarked that ‘we will decide who comes to this country and the circumstances in which they come’ (Howard, 2001). The comment was intended as a show of strength to an electorate that was anxious about the implications of a porous northern border for Australia’s orderly migration program. Despite the substantial controversy it generated, the comment reflects a persistent reality that has not been significantly shaken by the international human rights regime, a written constitution, or an independent judiciary. With only modest qualifications, migration policy remains ‘the last major redoubt of unfettered national sovereignty’.

Table 1: Ratification of Select Human Rights Treaties in Four Liberal Democracies

Open for Signature (year)	Instrument	In Force (year)	Parties (no.)	AUS (year)	CAN (year)	NZ (year)	US (year)
1949	Convention Concerning Migration for Employment (ILO 97)	1952	49	–	–	1950	–
1951	Convention Relating to the Status of Refugees	1954	144	1954	1969	1960	–
1966	International Covenant on Civil and Political Rights (ICCPR)	1976	167	1980	1976	1978	1992
1966	First Optional Protocol to the International Covenant on Civil and Political Rights (OP1)	1976	113	1991	1976	1989	–
1966	International Covenant on Economic Social and Cultural Rights (ICESCR)	1976	160	1975	1976	1978	–
1967	Protocol Relating to the Status of Refugees	1967	145	1973	1969	1973	1968
1975	Convention Concerning Migrations in Abusive Conditions and the Promotion of Equality of Opportunity and Treatment of Migrant Workers (ILO 143)	1978	23	–	–	–	–
1989	Convention on the Rights of the Child (CRC)	1990	193	1990	1991	1993	–
1990	International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICRMW)	2003	44	–	–	–	–

Source: United Nations Treaty Collection, Status of Treaties: http://treaties.un.org/; International Labour Organization, ILOLex, www.ilo.org/ilolex/. Treaty status is given as at 28 May 2011.

Treaty	Particulars	Australia	Canada	New Zealand	U.S.
ICCPR	Complaints mechanisms in force (First Optional Protocol 1966)	1991	1976	1989	no
	Final views	26	25	10	—
	Violations	20	14	3	—
CAT	Complaints mechanisms in force (Declaration under Art 22)	1993	1989	1989	no
	Final views	10	16	0	—
	Violations	1	4	0	—
CERD	Complaints mechanisms in force (Declaration under Art 14)	1993	no	no	no
	Final views	5	—	—	—
	Violations	1	—	—	—

Notes: ICCPR= International Covenant on Civil and Political Rights 1966; CAT= Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984; CERD= International Convention on the Elimination of All Forms of Racial Discrimination 1966.

2000 "Part 8 of the Migration Act 1958 (Cth) and the Decisions in the Abebe and Eshetu." AIAL Forum 24:32-42.

2010b Population Flows: Immigration Aspects 2008-2009. Canberra: Australian Government.

2002 "No Exceptions? The United States' Pick-and-Choose Approach to Human Rights Is Hypocritical. But That's Not a Good Reason to Condemn It." Legal Affairs May-June:59-61.

1998a "Why Liberal States Accept Unwanted Migration." World Politics 50(2):266-293.

1998b "Immigration Challenges the Nation-State" In Challenge to the Nation-State: Immigration in Western Europe and the United States. Ed. C. Joppke. Oxford: Oxford University press. Pp. 5-46.

^[1] I am indebted to Siew-Ean Khoo, Carolyn Adams and the anonymous reviewers for their valuable comments on a draft of this paper.

^[3] Nishimuru Ekiu v US 142 US 651, 659 (1892). For an Australian endorsement of the same principle, see Robtelmes v Brenan [1906] HCA 58; (1906) 4 CLR 395.

^[4] Australia does, however, have a transborder mobility regime with New Zealand which has led to a large influx of New Zealanders since the 1970s (Carmichael, 2009).

^[5] It is questionable whether this argument could be made with the same force today in light of the impact of regional institutions, such as the Council of Europe and the European Union, on domestic law in the United Kingdom.

^[9] The ICCPR (Art 2) requires States to ‘adopt legislative or other measures’ to give effect to rights in the Covenant; the ICESCR (Art 2) requires States to take steps ‘by all appropriate means’ to achieve progressively the full realization of rights in the Covenant.

^[10] The referendum provision (s 128) requires any proposal for change to be approved by a majority of voters overall, and by a majority of voters in a majority of States.

^[14] In Australia these are the Migration Review Tribunal, the Refugee Review Tribunal, and the Administrative Appeals Tribunal, depending on the subject matter of the claim.

^[18] Ah Hin Teoh v Minister of Immigration, Local Government and Ethnic Affairs [1993] FCA 423 (3 September 1993) (French J).

^[19] Ah Hin Teoh v Minister of Immigration and Ethnic Affairs [1994] FCA 1017 (14 April 1994) (Black CJ, Lee and Carr JJ).

^[22] See eg Administrative Decisions (Effect of International Instruments) Bill 1995 (Cth).

^[24] Baldini v Minister for Immigration and Multicultural Affairs [2000] FCA 173 (25 February 2000).

^[25] The Criminal Deportation Policy is a General Direction by the Minister for Immigration, under s 499 of the Migration Act 1958 (Cth), and provides guidance to decision-makers in considering deportation decisions under that Act.

^[26] Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1.

^[29] Other persons in immigration detention at 6 May 2011 included visa over-stayers (156), visa cancellations (49) and stowaways (9), from a population of 6,715 persons.

^[30] Baban v Australia, (1014/2001) 6 August 2003, UN Doc CCPR/C/78/D/1014/2001; Bakhtiyari v Australia, (1069/2002) 29 October 2003, UN Doc CCPR/C/79/D/1069/2002; D and E v Australia, (1050/2002) 11 July 2006, UN Doc CCPR/C/87/D/1050/2002; Shafiq v Australia, (1324/2004) 31 October 2006, UN Doc CCPR/C/88/D/1324/2004; Shams v Australia, (1255/2004) 20 July 2007, UN Doc CCPR/C/90/D/1255/2004.

^[31] Response of the Australian Government to Shams v Australia (1255/2004) 20 July 2007, UN Doc CCPR/C/90/D/1255/2004.

University of Technology Sydney Law Research Series

Opeskin, Brian --- "Managing International Migration in Australia: Human Rights and the "Last Major Redoubt of Unfettered National Sovereignty"" [2012] UTSLRS 3; (2012) 46(3) International Migration Review 551