Internment is the most serious power in the Constitution: detention without charge or trial. Division X.5 permits it only in tightly defined circumstances and surrounds it with protections that are unusually detailed.
Section 226 — the definition
“Internment” means detention that is authorized by or under a law the validity of which depends solely on Part X — but does not include the detention of a member of the armed forces of another country as a prisoner of war.
Detention under the ordinary law — on reasonable suspicion of an offence, on remand, under sentence — is not internment.
Section 244 — only by an Act, and how
The internment of persons may be permitted only by an Act of the Parliament. That Act:
- (a) must be made by an absolute majority vote;
- (b) takes effect on a date fixed by an absolute majority vote of the Parliament made after the commencement of a period of declared national emergency, and after at least four days’ notice of the motion; and
- (c) authorises internment only during a period of declared national emergency, subject to subsection (6).
Section 244(3): at least four days’ notice of the intention to introduce such a proposed law must be given, and the proposed law must be circulated to all members at least four days before it is made. During a time of war, those four-day periods are reduced to 24 hours (s 244(4)).
Section 244(5): in the section 110 certificate, the Speaker must certify that these requirements have been complied with.
Section 244(6): internment may continue after the end of the emergency only to the extent reasonably required for the orderly and peaceful repatriation, resettlement or re-establishment of internees.
Section 245(1) — the protections
- (a) Written grounds within seven days. The internee and their next-of-kin or other close relative in the country shall, as soon as practicable and in any case not more than seven days after internment begins, be furnished with a written statement, in a language the internee understands, specifying in detail the grounds.
- (b) Two-month limit without review. An internee (other than an alien enemy) shall be released at the end of two months unless an independent and impartial tribunal has reviewed the case and found sufficient cause.
- (c) Six-month absolute limit. An internee (other than an alien enemy) shall be released at the end of six months after internment.
- (d) Prompt and repeated review. Review by the tribunal as soon as practicable, and in any case not more than one month after internment begins, and afterwards at intervals not exceeding two months.
- (e) The tribunal. An Organic Law shall establish it, and its Chairman must be a person qualified to be a Judge of the National Court — see the Organic Law on the Internment Tribunal.
- (f) Changed membership on later reviews. As far as practicable, on a second or subsequent review a majority of the members, including the Chairman, must be different from those who reviewed the case before.
- (g) Wrongful internment. Where the tribunal finds a citizen was interned wrongly or without sufficient reason, the Head of State on NEC advice shall order release, and the person is entitled to compensation, in accordance with law, for the internment and any consequences of it.
- (h) Grounds no longer sufficient. Where the tribunal finds there are no longer sufficient grounds for interning a citizen, the Minister responsible for national security shall order immediate release.
- (i) No re-internment on the same facts. A person released under (c), (g) or (h) shall not again be interned substantially on the same facts unless a change in circumstances gives those facts a new significance.
- (j) Separation and treatment. Internees shall be kept separated, as far as practicable, from other persons in custody, and shall receive treatment not less favourable than that afforded to persons awaiting trial.
- (k) Publication. The names and places of residence of internees shall be published in the National Gazette and in a newspaper of national circulation within 14 days of internment, and at monthly intervals afterwards.
- (l) Reports to Parliament. The Minister responsible for national security shall present reports on all internees, their treatment, the review of their cases and action taken at each meeting of Parliament during the emergency, and in any event at intervals not exceeding six months.
Publication of names in the Gazette and a national newspaper makes secret detention constitutionally impossible. Families, lawyers and the public are told who is held.
Sections 245(2) and (3) — representation and appearance
An internee shall be given adequate facilities to prepare and make representations to the review tribunal, personally or through a lawyer, and in particular shall be allowed full access to a lawyer (and if necessary to legal aid) and the services of a competent interpreter if required. The internee shall be permitted to appear in person before the tribunal.
Legal aid here means the Public Solicitor, whose function under section 177(2)(b) includes providing assistance when directed to do so by the Supreme Court or the National Court.
The rights that continue regardless
- Section 36 — absolute, and not alterable by any emergency law.
- Section 35, section 45, section 50, section 55 and section 56 — likewise untouchable.
- Section 58(2) — expressly entitles a person to reasonable damages, and if the court thinks proper exemplary damages, for an infringement caused by a derogation of the Part X.5 restrictions on emergency powers in relation to internment.
- Section 41 — an act under a valid emergency law is still unlawful if harsh, oppressive or disproportionate in the particular case.
Ask immediately for the written statement of grounds — a close relative in the country is entitled to it within seven days. Note the date internment began: the one-month first review, the two-month review requirement and the six-month absolute limit all run from it. Contact the Public Solicitor, and check the National Gazette publication.
Sources
- Constitution — ss 36, 41, 57, 58, 110, 177, 226, 233, 244, 245
- Organic Law on the Internment Tribunal
Constitutional sections are amended. Before relying on anything here, read the current text: the Constitution on PacLII. If a decision matters to you, get advice — start with the Office of the Public Solicitor.