Alternative Law Journal
discusses the constitutional limits on the power of the Executive to detain aliens.
Of the three institutions of government established in the Australian Constitution, the nature and extent of Executive power remains the most mysterious. However, in the last few years, particularly in the area of immigration, there have been a number of occasions in which the courts have been called upon to clarify the extent of Executive power. In Ruddock v Vadarfis (2001)a majority of the Federal Court confirmed the existence of an Executive power outside of legislative control to expel 'aliens' (aka asylum seekers) from the border. On 6 August 2004, in AI-Kateb v Godwm &Ors ('AI-Kateb'), a majority of the High Court confirmed the power of the Executive under the Migration Act 1958 (Cth) to detain an 'unlawful non-citizen' indefinitely for the purpose of deportation. On the same day, in Behrooz v Secretary of DIMIA, a majority of the Court held that immigration detention remained immigration detention regardless of how harsh or abusive the conditions of detention might be. As a result, the applicant could not raise as a defence that the conditions in detention could change the very nature of that detention.
The fact that the extent of Executive power is being tested in the courts is an indication, in itself, that the Government has been pushing the boundaries of the extent of its powers. In relation to immigration law and policy, Executive power is being used in ways previously untested.
The extent of the Executive's power to detain asylum seekers became of particular importance in Australia when the Labor Government introduced a regime of mandatory detention for asylum seekers in the early 1990s. The High Court upheld the validity of the mandatory detention regime in Chu Kheng Ltm v Mmtster for Immigration, Local Government and Ethnic Affairs ('Lim}, but accepted that there were some limits to the power to detain aliens in custody pending their applications for a visa or pending their deportation from Australia if their applications for a visa failed.
The limit of the legislative power to order Executive detention was held to lie in the separation of powers doctrine. 'There are some functions which, by reason of their nature ... have become established as ... exclusively judicial in character. The most important of them is the adjudgment and punishment of criminal guilt under a law of the Commonwealth.' The majority went on to draw a distinction between punitive detention, which could only be ordered by a court, and administrative detention, which might be ordered by the Executive in 'exceptional circumstances'. The majority made it clear that any detention of a citizen in custody was punitive in nature and could only be ordered by a court.
The power to detain aliens who had not broken any law of the Commonwealth other than to arrive on the shores without a visa was held by the majority to 'lie in the vulnerability of the alien to exclusion or deportation'. In Al-Kateb, Gummow J noted that the protection afforded to aliens by the Court was less than that afforded Australian citizens because 'absent some authority conferred by statute, aliens have no right to enter or reside in Australia'. In addition, the Commonwealth Parliament has an express power to make laws with respect to 'naturalization and aliens' under s 51(xix) of the Constitution. However, despite the vulnerability of aliens, the way the Court framed the extent of the Executive power to detain aliens implied that it was a limited power only available 'to receive, investigate and determine the application by that alien for an entry permit and (after determination) to admit or deport'. The Court explained that such detention did not infringe Chapter Ill because it was not punitive in nature.
In AI-Kateb, the High Court was asked to define more clearly the limits of the Executive's power to detain aliens. Or, in the language of Lim, to clarify the point at which administrative detention becomes punitive and therefore infringes the separation of powers doctrine. The applicant was a stateless person whose refugee claim had been denied. He was in detention pending deportation to Palestine or any other state 'that would take him. The applicant had written to the Minister asking to be removed from Australia but the Government was not able to arrange his deportation due to the unwillingness of third states (Israel, Syria and Jordan) to allow the applicant to pass through their ter6tory on route to Palestine. The trial judge held that 'removal from Australia is not reasonably practicable at the present time as there is no real likelihood or prospect of removal in the foreseeable future'. AI-Kateb then faced an indeterminate detention in Australia pending his removal.
The question of the constitutional validity of the applicant's detention was framed nicely by justice Hayne in Al-Kateb: '[G]iven that deprivation of liberty is the harshest form of punishment exacted for wrongdoing in Australia is there a point at which detention of an unlawful non-citizen could validly be required only in the exercise of judicial power?' McHugh, Hayne, Callirhan and Heydon JJ held that since the detention remained for an administrative purpose, the power to detain could still be validly conferred on the Executive despite its indeterminate length. For McHugh J, Callinan and Gleeson CJ in dissent,  this was because its administrative character meant it was not punitive. For Hayne J, the detention was punitive, but the punitive effect of the detention did not render it invalid. In holding this latter position, Heydon J cast doubt on the distinction between administrative and punitive detention drawn in Lim.
Gleeson CJ and Kirby J in the minority were able to avoid the constitutional question of validity by reading the Migration Act narrowly such that mandatory detention came to an end once removal was not a practicable possibility. Gummow J agreed with this reading of the· Act but also expressed an opinion about the constitutionality of an indeterminate detention. Like the Court in Lim, Gummow J relied on a limitation inherent in the separation of powers. However, he cast doubt on the distinction drawn between punitive and· non-punitive detention, pointing out that a detention can have both characteristics simultaneously. Instead, he expressed the limit on the Executive power to detain in these terms:
[I]t cannot be for the executive government to determine the placing from time to time of that boundary line which marks off a category of deprivation of liberty from the reach of Ch III. The location of that boundary is itself a question arising under the Constitution or involving its interpretation.
Gummow J made it clear that that boundary is crossed when the detention of an alien is 'for a purpose unconnected with the entry, investigation, admission or deportation of aliens'. The important point for Gummow J is that the Executive can not render an unlawful detention lawful by designating a legitimate purpose to it. There is a role for the courts to scrutinise the substantive effect of the detention to determine whether it is of such a character that it could only be imposed as the result of a judicial process.
The cases of AI-Kateb and Behrooz have left open whether there are any constitutional limits to the Executive power to detain aliens. Certainly the potential limits from Chu Kheng Lim have been significantly narrowed. The distinction between punitive and non-punitive detention would seem not to be relevant to determining the constitutionality of immigration detention, or if it is, detention seems only to be defined as punitive if it has no legitimate administrative purpose.
Clearly the composition of the High Court has changed, bringing with it perhaps a different attitude to the role of the separation of powers as a bulwark against the excessive use of Executive power. Another change might be in the attitude of the Court to the status of aliens in the community. The first sentence of the majority judgment in Lim states in part that 'an alien within this country, whether lawfully or unlawfully, is not an outlaw'. This is in contrast to the approach of a number of judges in AI-Kateb who emphasised the lack of rights of aliens to reside in Australia. McHugh J drew heavily on an analogy between the detention of aliens and the detention of prisoners-of-war and people considered to be a threat to the security of the country during war time,  and coined the phrase 'protective' detention, with protection being that of the Australian community from the alien. Callinan J compared the detention of unlawful non-citizens with 'arrest and detention pending trial, detention of the mentally ill or infectiously diseased'.
The comparisons drawn suggest a very different attitude to aliens. One that is, perhaps, more conscious of a fear of invasion, and a threat of terrorism just beyond the Australian shores. It is such fears that compel legislatures to confer ever greater powers on the Executive to expel aliens from the border or to detain them. These measures may have democratic support in times of heightened fear, and therefore, an inflated sense of legitimacy. But it is precisely at such times, when governments use punitive measures in response to community fears, that we rely on the vigilance of the courts to determine the limits of lawful executive action. It is hard to accept that in times of peace it can be constitutional to hold aliens in indefinite detention outside any judicial process of judgment and punishment when they have committed no crime in Australia other than to enter the country without a visa.
[*] ALEX REILLY teaches law at Macquarie University.
© 2004 Alex Reilly
  FCA 1329; 110 FCR 491.
  HCA 37
  HCA 36
 (1992) 176 CLR 1
 Ibid 27 (Brennan, Dawson and Deane JJ)
 Ibid 27
 Ibid 29.
 AI-Kateb  HCA 37 
 Lim (1992) 176 CLR 1, 32
 Al-Kateb  HCA 37 .
 Ibid  (McHugh J),  (Callinan J)  (Gleeson CJ).
 Ibid  (Hayne J).
 Ibid [1.40] (Gummow J)
 Lim (1992) 176 CLR 1, 19.
 AI-Kateb  HCA 37 .
 Ibid -.
 Ibid .