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Curtin, Juliet --- "Never Say Never': Al-Kateb v Godwin" [2005] SydLawRw 16; (2005) 27(2) Sydney Law Review 355

‘Never Say Never’: Al-Kateb v Godwin


1. Introduction

Amongst Western nations, Australia stands alone as the only country that pursues a policy of mandatory administrative detention of all ‘unlawful non-citizens’.[1] The Migration Act 1958 (Cth) provides that ‘unlawful non-citizens’, that is, those who have come to Australia without permission, will remain in detention until the occurrence of either one of three events — release from detention upon the grant of a visa, deportation, or removal from Australia at their own request or upon the rejection of their attempts to secure a visa.[2] While the elaborate system of review in place for protection visa applications has precipitated notoriously long and uncertain periods of detention, in the usual case the period of detention is finite and may always be brought to an end by the alien requesting his or her removal.[3] However, in some instances, the means envisaged by the Migration Act are unavailable to bring a failed asylum seeker’s detention to an end and there is no prospect of removal from Australia in the reasonably foreseeable future. The issue before the High Court in Al-Kateb v Godwin[4] was whether, in such cases, the Migration Act authorises indefinite detention or requires their release and if the former, whether the provision for indefinite administrative detention infringes the vesting of the judicial power of the Commonwealth exclusively in Chapter III courts of the Constitution.[5]

The Full Federal Court addressed the same issue in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri.[6] In that case, the Court found a temporal limitation on detention as a matter of statutory construction such that a detainee must be released when the purpose of removal is frustrated.[7] Al-Kateb therefore presented an opportunity for the High Court to either affirm or effectively overturn the Al Masri decision. In reaching its decision in Al Masri, the Full Federal Court referred to authorities from other common law countries where superior courts, when called upon to finally determine analogous situations, read into the applicable legislation an implied limitation upon the executive power to detain.[8] In each of these decisions, the court was desirous to fetter what would otherwise be an executive power of unlimited detention. Each decision was also buttressed by the weight of international law, specifically its protection of personal liberty as a fundamental freedom and the associated freedom from arbitrary detention.[9] However, according to a majority of the High Court in Al-Kateb, constituted by McHugh, Hayne, Callinan and Heydon JJ, there is no place for consideration of either international law or the jurisprudence of other domestic jurisdictions as there is no ambiguity in the Migration Act. The legislation clearly and lawfully provides for the appellant’s indefinite detention until his removal from the country.[10] It was therefore not an issue of statutory construction but rather of the constitutional validity of the legislation. The case saw the High Court divided 4:3, the majority taking a strict legalistic approach to the legislation and the minority (Gleeson CJ, Gummow and Kirby JJ) a purposive approach defensive of individual liberty and consistent with the principles of international human rights law.[11]

2. The Facts

The appellant, Al-Kateb, was a stateless Palestinian.[12] He arrived in Australia without a visa and was placed in immigration detention. His application for a protection visa was refused, a decision that was upheld by the Refugee Review Tribunal,[13] and his appeal to the Federal Court was unsuccessful. Al-Kateb asked to be removed from Australia but the Government was unsuccessful in making these arrangements. He then sought from the Federal Court a writ in the nature of habeas corpus and a writ in the nature of mandamus requiring compliance with s198 of the Migration Act.[14] Selway J dismissed the application.[15] Al-Kateb then sought prerogative relief against two officers of the Department of Immigration and Multicultural and Indigenous Affairs and the Minister; namely, a declaration that his detention was unlawful, a writ of mandamus directing his removal, and a writ in the nature of habeas corpus. This was dismissed by von Doussa J although his Honour found that ‘the evidence does establish that removal from Australia is not reasonably practicable at the present time as there is no real likelihood or prospect of removal in the reasonably foreseeable future’.[16] The appeal against this decision was removed to the High Court under s40 of the Judiciary Act 1903 (Cth) at the request of the Commonwealth Attorney-General.

3. The Proceedings

The appellant’s case was heard alongside Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs[17] and Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji.[18] The Attorney-General intervened in Al-Kateb and Al-Khafaji while the Human Rights and Equal Opportunity Commission (HREOC) intervened in all three proceedings by way of written submissions. The appellant’s argument[19] was that a proper construction of the Act, as directed by authorities such as Koon Wing Lau v Calwell[20] and Chu Kheng Lim v Minister for Immigration,[21] mandated his detention for the purpose of removal, which must take place as soon as reasonably practicable, only so long as removal is a practical possibility. If removal is not a practical possibility, his detention must come to an end until such time as his removal becomes reasonably practicable. Conversely, the respondents contended that the Migration Act provides for the appellant’s detention until his removal and that removal should take place as soon as reasonably practicable. The purpose of removal does not cease to exist merely because its fulfillment is not practicable in the foreseeable future.[22]

The appellant’s argument was based on a reading of ss196 and 198 of the Migration Act. Section 196(1) provides that an unlawful non-citizen detained under the ‘arrest’ provisions of s189 must be kept in immigration detention until (relevantly) he or she is removed from Australia under s198. The relevant subsections of s198 provide that:

(1) An officer must remove as soon as reasonably practicable an unlawful non-citizen who asks the Minister, in writing, to be so removed.
(6) An officer must remove as soon as reasonably practicable an unlawful non-citizen if:
(a) the non-citizen is a detainee; and
(b) the non-citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and
(c) ...
(i) the grant of the visa has been refused and the application has been finally determined;
... and
(d) the non-citizen has not made another valid application ...

The appellant argued that there is an ambiguity in the legislation in that it does not provide, in express terms, for any direction when neither removal nor the grant of a visa is possible.[23] According to the appellant, the use of this word ‘until’ in subs196(1) creates an ambiguity as it contemplates an end to the purposes of the subsection. Similarly, s198, with its use of the words ‘must remove as soon as reasonably practicable’, also assumes that removal is possible. The ambiguity in the legislation is that this assumption is not made explicit, nor are contingencies provided for great delay or frustrated purpose. Given this ambiguity, principles of statutory construction are enlivened to direct an interpretation protective of personal liberty[24] commensurate with Australia’s international obligations.[25]

It was also submitted by the appellant that a purposive approach should be taken in interpreting the legislation, the purposes of the Migration Act being that of processing and removal. If there comes a time where the prospect of removal is so remote that the detention cannot fairly be described as for that purpose, the purpose of removal is eliminated, in effect, as a factual matter. If the executive holds an unlawful non-citizen for a purpose other than that authorised by the Migration Act then the detention exceeds the Migration Act. Conversely, the respondents argued that so long as the Minister holds the purpose of removal, and so long as genuine attempts are being made to achieve that purpose, the detention is lawful.

The appellant also mounted a constitutional argument, submitting that his continued detention would be constitutionally invalid on two bases. Firstly, indefinite administrative detention exceeds the constitutional limits of the aliens power, the High Court’s decision in Lim being authority for the proposition that the aliens power vested in the Executive by the Constitution authorises detention for the purposes of processing and removal only. Secondly, unlimited detention at the hands of the Executive encroaches upon the judicial power of Chapter III courts. As HREOC contended in its written submissions, the constitutional immunity from detention by a non-judicial Commonwealth authority permits detention only to the extent to that which is reasonably necessary to enable the assessment of status, removal or deportation.[26] That which is ‘reasonably necessary’ must be determined not merely by reference to the purpose of detention but also by an examination of the effects and consequences of detention. If there is no real likelihood of removal in the reasonably foreseeable future then detention will not be reasonably necessary to achieve removal.[27]

In response to these arguments, the respondents submitted that it is within the aliens power for the Executive to determine which aliens are allowed to enter Australia, whether they will be removed from Australia and to prevent them from becoming members of the Australian community in the interim. Furthermore, the character of detention is determined by its purpose.[28]

4. The High Court Decision

With the exception of Heydon J, who agreed with the reasons given by Hayne J, each judge delivered a separate judgment.[29] A further notable characteristic of the decision is the battle fiercely waged between McHugh and Kirby JJ in their judgments. Attention was given in both the majority and dissenting judgments to two principal questions, albeit in radically different measure. Firstly, whether the legislation required the appellant’s continued detention, and secondly, if continued detention was required under the Migration Act, whether this impinges upon the judicial powers of the Chapter III Courts.

A. A Question of Statutory Construction

According to the majority judges, the language of s196 of the Migration Act did not yield the interpretation asserted by the appellant. As McHugh J stated, ‘[T]he words of the three sections are too clear to read them as being subject to a purposive limitation or an intention not to affect fundamental rights’. [30] The legislation requires detention until removal, deportation, or the grant of a visa.[31] As such, there was no place for consideration of international law or foreign jurisprudence. Their Honours rejected the submission that the phrase ‘as soon as reasonably practicable’ in s198 defined a period beyond which continued detention is unlawful. Rather, the phrase dictates the employment of all reasonable means to remove an unlawful non-citizen.[32] Only when removal becomes reasonably practicable does a temporal limitation engage.[33] A strictly literal approach was taken in relation to the purpose of the Migration Act. It could not be said that the purpose of removal is frustrated simply because it is not likely in the foreseeable future. As Hayne J stated, no likelihood or prospect of removal in the reasonably foreseeable future, does not mean removal will never occur:

Whether and when it occurs depends largely, if not entirely, upon not only the course of events in the Middle East (his preferred destination being Gaza) but also upon the willingness of other countries to receive stateless Palestinians.[34]

Conversely, the minority justices were of the view that the unlikelihood of removal in the foreseeable future drew attention to an ambiguity in s196 which could be resolved by a process of statutory construction.[35] As Gleeson CJ observed, the Migration Act ‘does not in terms provide for a person to be kept in administrative detention permanently, or indefinitely’.[36] The period of detention under s196 hinges upon the purpose of removal under s198, a purpose which could not be fulfilled. In their Honours’ opinion, this frustrated purpose brought before the Court a choice between suspension of detention or indefinite detention.[37] Their Honours were unwilling to find the latter for:

[t]he possibility that a person, regardless of personal circumstances... can be subjected to indefinite, and perhaps permanent, administrative detention is not one to be dealt with by implication.[38]

Instead, the minority justices appealed to the well-established principle of statutory construction, which works to preserve fundamental freedoms such as the common law right to liberty and security of the person.[39] That is, courts do not impute to the legislature an intention to abrogate or curtail fundamental rights and freedoms unless such an intention is manifested by unmistakable and unambiguous language.[40] Had the Parliament intended that, contrary to the fundamental freedom of personal liberty, outside the operation of criminal law and without reference to the particular circumstances and characteristics of an individual, detention ought continue, this severe curtailment of personal liberty would have been spelt out.[41] The absence of an express provision to this effect therefore guided their Honours’ conclusion that the Migration Act required the appellant’s release. It is notable that even though an interpretation commensurate with the common law presumption in favour of personal liberty was reasonably open as a matter of statutory construction (as demonstrated by the minority judges), the majority judges privileged an interpretation that flowed against the presumption.

The minority judges accepted the appellant’s submission that the legislation has a purposive limitation, drawn from the terms of the Migration Act and the decisions of the High Court in Lim and Calwell.[42] Calwell involved, inter alia, a constitutional challenge of s7 of the War-time Refugees Removal Act 1949 (Cth), which provided for the detention of the plaintiffs pending their deportation, on the basis that it permitted unlimited imprisonment.[43] The High Court upheld the validity of the legislation on the basis that it did not create or purport to create a power to keep a deportee in custody for an unlimited period.[44] As Latham CJ stated:

The power to hold him in custody is only a power to do so pending deportation ... If it were shown that detention was not being used for these purposes the detention would be unauthorized and a writ of habeas corpus would provide an immediate remedy.[45]

According to Gummow J, a purposive interpretation gives effect to a traditional reluctance, as evidenced in Calwell, of construing legislation such that the executive power to detain in custody is unlimited in time.[46] This is because the primary purpose of the appellant’s detention, which must be objectively ascertained, was to facilitate his removal and this purpose mandates temporal limits.[47] If removal is unlikely to occur, s198 no longer retains a present purpose of facilitating removal and to that extent the operation of s198 is spent. Consequently, the temporal imperative imposed by the word ‘until’ in s196(1) loses a necessary assumption for its continued operation — that being that s198 is in operation to provide for removal under that section.[48]

B. Testing the Bounds of the Aliens Power

Having found that the legislation provided for the appellant’s indefinite detention, the principal issue for the majority was whether such a law was constitutionally valid. This called for an assessment of the aliens power and its limitations as construed by the High Court in Lim. In that case, the first mandatory detention provisions in the Migration Act[49] were constitutionally challenged by Cambodian nationals detained under the Migration Act.[50] The High Court found that the legislative power conferred by s51(xix) of the Constitution with respect to ‘aliens’ encompasses the conferral upon the Executive of a limited authority to detain an alien in custody for the purposes of expulsion or deportation. Brennan, Deane and Dawson JJ held that the provisions would be valid laws:

... if the detention which they require and authorise is limited to what is reasonably capable of being seen as necessary for the purposes of deportation or necessary to enable an application for an entry permit to be made and considered. On the other hand, if the detention which those sections require and authorise is not so limited, the authority which they purportedly confer upon the Executive cannot properly be seen as an incident of the executive powers to exclude, admit and deport an alien. In that event, they will be of a punitive nature and contravene Ch. III's insistence that the judicial power of the Commonwealth be vested exclusively in the courts .[51] [Emphasis added.]

In the light of Lim, the majority asked whether the constitutional validity of the legislation was dependent upon the purpose of removal being achievable in the foreseeable future. McHugh J stated that if the power to detain aliens for the purpose of deportation was merely an incidental power then detention would be constitutionally invalid if removal was incapable of fulfillment in the foreseeable future. However, his Honour emphatically stated that the power to detain aliens is ‘not a power incidental to the s51(xix) head of power. It is a law with respect to the subject matter of that power.’[52] McHugh J therefore found that even where removal is not foreseeable the detention of the alien remains a law with respect to the s51(xix) power.[53] Similarly, Hayne J stated that the aliens power should not be confined in the manner implicit in Lim, but rather permits the Executive to exclude aliens from the Australian community — by prevention of entry, removal from Australia, and by segregation from the community by detention in the meantime.[54]

Whilst indefinite detention was then a permissible use of the aliens power, could the legislation, in purporting to authorise indefinite detention, be characterised as punitive, and as such constitute an encroachment upon the judicial power preserved for Chapter III Courts? According to the majority, this characterisation was avoided by virtue of the purpose of the detention. As long as the purpose of the detention is to facilitate the alien’s deportation or to prevent the alien from entering Australia or the community, the detention is non-punitive.[55] As Hayne J explained, the mere length of detention does not transform its character from non-punitive to punitive, as the purpose of exclusion from the Australian community remains the same.[56] To this end, the dissenting opinion of Judge Learned Hand in United States v Shaughnessy was considered apposite:

An alien, who comes to our shores and the ship which bears him, take the chance that he may not be allowed to land. If that chance turns against them, both know, or, if they do not, they are charged with knowledge, that, since the alien cannot land, he must find an asylum elsewhere; or, like the Flying Dutchman, forever sail the seas. When at his urgence we do let him go ashore — pendente lite so to say — we may give him whatever harborage we choose, until he finds shelter elsewhere if he can.[57]

Gummow and Kirby JJ also addressed the question of constitutional validity. In their Honours’ opinion, indefinite administrative detention by the Executive will breach the constitutional separation of powers doctrine once the detention is no longer for the objective purpose of facilitating removal. The existence of this purpose cannot be regarded as a matter purely for the opinion of the executive government[58] as this would be contrary to the principle laid down in Australian Communist Party v The Commonwealth[59] that the validity of a law or an act of the Executive does not hinge upon the assertion or opinion of the Parliament as to its validity.[60] Their Honours also disagreed with the proposition that there can be laws for the segregation of aliens via detention, outside the operation of the criminal law and for a purpose unconnected with the entry, investigation, admission or deportation of aliens.[61] Kirby J opined that this conclusion was supported by an interpretation of the Constitution, read as far as possible to be commensurate with international law, particularly international human rights law.[62]

5. Analysis

The approach of the majority is true to the trends that have been identified by Mary Crock as shaping the jurisprudence on refugee law.[63] The reasoning is literal and reactive. Their Honours exhibit a blinkered approach to the text of the legislation, keeping out of view relevant principles of international law and the approaches of other common law courts. The decision is alarming on a number of levels. First, it stands as a further example of the current High Court’s insular disregard for the principles of international law — their Honours’ disinclination to engage with international and regional jurisprudence being all the more pronounced given the degree of concurrence on the issue of indefinite administrative detention outside of Australia. This disregard for the influence of international law leaves Australia with a program of detention which is in blatant violation of international human rights law. Second, the majority judges’ re-reading of Lim and their analysis of punitive and non-punitive detention has serious implications for the right implicit in Chapter III to be free from detention except pursuant to an exercise of judicial power.[64] Finally, the majority judges’ decision represents the privileging of the statutory text, interpreted according to an inferred parliamentary intention, over the fundamental common law presumption in favour of the protection of liberty.

A. The Role of International Law and the Place of Foreign Jurisprudence

A marked characteristic of the majority and minority judgments (with the notable yet unsurprising exception of Kirby J’s reasoning) is a focus on the domestic text, both of the Migration Act and the Constitution, and an inattention to the wider context of the appellant’s situation and of the Act itself — that being the norms and principles of international human rights law. It has been observed that ‘[i]t is in the most politically charged refugee cases that the trend towards juridical introspection is most marked.’[65] The reasoning of the Court is testimony to this observation. The seeming irrelevance of international law and comparable foreign jurisprudence is particularly telling given the radically different treatment of the same issue in Al Masri. In that case, considerable attention was given to comparable foreign jurisprudence. In particular, the Full Federal Court found support for their construction of the Act from the ‘Hardial Singh’ principles. These arose from the judgment of Woolf LJ in R v Governor of Durham Prison; Ex parte Hardial Singh,[66] in which his Lordship found that the power to detain pending deportation or removal is limited to a period which is reasonably necessary for that purpose and must cease should that purpose be frustrated.[67] Reference was also made to a judgment of the Supreme Court of the United States in Zadvydas v Davis[68] in which it was found that detention of aliens pending removal or deportation was limited to that which was reasonably necessary to secure removal and that the power would not authorise detention should removal not be reasonably foreseeable.[69]

The Court found that these authorities, and their subsequent endorsement by other courts revealed that ‘the implication of limitations on the statutory power of detention is orthodox’.[70] Regard was also had to Australia’s obligations under international law. The finding that the indefinite detention of a non-citizen would be to arbitrarily detain within the meaning of Article 9(1) of the ICCPR ‘fortified’ the Court’s conclusion that s196(1) should be read subject to an implied limitation.[71] Only Kirby J saw a similar application for this jurisprudence in Al-Kateb.[72] In the opinion of his Honour, the common law authorities cited above demonstrate a resistance on behalf of the judges of the common law to the possibility of an unlimited executive power to deprive people of their liberty and a corresponding inclination ‘to treat unlimited executive detention as incompatible with contemporary notions of the rule of law’.[73]

Kirby J was also of the opinion that the conclusion of the minority was supported by the Constitution as read in the light of norms of international law.[74] Whilst acknowledging that this interpretive principle is not yet in vogue with a majority of the High Court, his Honour expressed the view that as the understanding of the Constitution evolves this principle will inevitably gain currency:[75]

[W]ith every respect to those of a contrary view, opinions that seek to cut off contemporary Australian law (including constitutional law) from the persuasive force of international law are doomed to fail.[76]

Kirby J’s reasoning did not resonate with McHugh J. The rule of construction established in Polites v The Commonwealth,[77] directing conformity with international law so far as the language of a statute permits was, in his Honour’s view, ‘based on a fiction’.[78] His Honour stated that ‘the rationale for the rule that a statute contains an implication that it should be construed to conform with international law bears no relationship to the reality of the modern legislative process’.[79] In his Honour’s view, it is not for the judiciary to read rights into the constitution by drawing on international instruments that are not a part of this country,[80] and any argument to the contrary must be regarded as ‘heretical’.[81] This, despite the fact, as Kirby J quipped,[82] that his Honour had been instrumental in cases in which ‘rights’ have indeed been read into the Constitution.[83] ‘It is not for courts’, stated McHugh J, ‘exercising federal jurisdiction, to determine whether the course taken by Parliament is unjust or contrary to human rights’.[84]

B. The International Implications of Indefinite Detention

Such judicial pronouncements will leave asylum seekers deeply concerned for, as Crock has noted, Australia has become increasingly blatant in its disregard for the norms of international human rights law.[85] If the judiciary sees no role to play in checking the Parliament’s abuse of human rights, who will? This disregard for human rights law is nowhere more evident than in our policy of mandatory detention. The detention of asylum seekers beyond that which is necessary for preliminary administrative purposes has been condemned by the UNHCR. [86] Even before the spectre of indefinite detention materialised, Australia’s policy of mandatory detention was widely recognised as breaching international human rights standards.[87] As HREOC argued in its written submissions in Al-Kateb, the United Nations Human Rights Committee has considered detention under s196 of the Act on four separate occasions[88] and in each instance has held aspects of that detention to be arbitrary contrary to Article 9(1) of the ICCPR. In Van Alphen v The Netherlands,[89] the Committee held that arbitrariness is not to be equated with ‘against the law’ but rather, ‘must be interpreted broadly to include elements of inappropriateness, injustice and lack of predictability.’ Similarly, in A v Australia, the Committee stated that detention will be arbitrary ‘if it is not necessary in all the circumstances of the case’.[90] On the basis of these communications it is clear that detention for the ‘purpose’ of removal where there is no prospect of removal in the reasonably foreseeable future is arbitrary in the sense intended by Article 9(1) Accordingly, s196 should be read so far as possible not to authorise such indefinite detention. [91]

However, considerations of international human rights law were deemed irrelevant by the majority due to the perceived absence of any ambiguity in the legislation, and unnecessary by Gleeson CJ and Gummow J as the issue of construction could be neatly resolved without them. Hayne J did pause to consider Australia’s obligations under international law. However, his Honour was ‘doubtful’ that mandatory detention contravenes Article 9 as it is in accordance with a lawful procedure and its lawfulness may be tested in a court.[92] This statement was offered despite the Committee’s finding in A v Australia that the Migration Act prevents real judicial review and makes no provision for the possibility of release, thereby violating Article 9(4):

court review of the lawfulness of detention under article 9, paragraph 4, which must include the possibility of ordering release, is not limited to mere compliance of the detention with domestic law... By stipulating that the court must have the power to order release “if the detention is not lawful,” article 9, paragraph 4, requires that the court be empowered to order release, if the detention is incompatible with the requirements in article 9, paragraph 1, or in other provisions of the Covenant.[93] [Emphasis added].

The Court’s decision therefore leaves Australia in breach of its obligations under the ICCPR. What is disturbing about the decision is not just the fact of this breach but also the complete unwillingness on the part of the Court (again, with the exception of Kirby J) to engage with the principles of international human rights law in circumstances which so clearly brought them into play.

C. One Small Step for Refugee Law, One Giant Leap for the Executive?

Finally, it must be asked to what extent the sanctioning of an unlimited executive power to detain unlawful non-citizens exceeds the Executive’s limited authority to detain as found by the High Court in Lim? In their joint judgment, Brennan, Deane and Dawson JJ found that an authority to detain aliens for the purpose of removal or processing is one of a few ‘exceptional cases’ of detention permitted outside the ‘exclusively judicial function of adjudging and punishing criminal guilt’, but that this authority is limited to that which is ‘reasonably capable of being seen as necessary’ for the purposes of deportation or the processing of claims.[94] Similarly, Gaudron J stated that a law which is ‘not appropriate and adapted to regulating entry or facilitating departure as and when required’ is not a valid law under s51(xix) of the Constitution.[95] This limitation was endorsed by McHugh J who found that a law authorising detention of an alien for the purpose of deportation or processing an entry permit might be invalid if it went beyond what was reasonably necessary to effect that purpose because it would infringe the provisions of Chapter III of the Constitution.[96] Lim therefore directs attention to the purpose of the legislation, and in limiting the power of detention to that which is reasonably necessary, recalls that the Constitution’s concern is with substance and not mere form.[97] Possession of a non-punitive purpose is not enough to escape constitutional invalidity.[98] Indeed, as Gummow J observed in his dissenting opinion, the focus on whether detention can be called punitive or non-punitive is misconceived, as:

there is often no clear line between purely punitive and purely non-punitive detention. Once it is accepted that many forms of detention involve some non-punitive purpose, it follows that a punitive/non-punitive distinction cannot be the basis upon which the Ch III limitations respecting administrative detention are enlivened.... As Blackstone noted... “[t]he confinement of the person, in any wise, is an imprisonment” and one which, subject to certain exceptions, is usually only permissible if consequent upon some form of judicial process.

Yet, in allowing indefinite detention so long as the Executive has the purpose of removal, the majority has privileged form over substance. Witness this exchange between counsel for the respondent and McHugh J during the appeal:

McHUGH J: Ultimately, you have to go so far as to contend that, in a particular case, you may be able to keep a person in immigration detention for the rest of that person’s life, so long as you have the purpose of preventing the person moving into the Australian community and for the purpose of deporting the person.

MR BENNETT: Yes, that is one of the legitimate purposes and the purpose of deporting which, as I say, is a purpose as to which, by necessity, one can never say never. [Emphasis added].[99]

According to the majority’s view, the subjective possession of a legitimate non-punitive purpose is sufficient to bring indefinite detention within the rubric of those exceptional cases outlined in Lim which permit detention without judicial due process, regardless of the fact that it is undeniably punitive in effect. The potential ramifications of allowing the Executive to be the final arbiter of when the deprivation of liberty ceases to be for a non-punitive purpose are frightening. As Gummow J stated in his dissent:

The continued viability of the purpose of deportation or expulsion cannot be treated by the legislature as a matter purely for the opinion of the executive government. The reason is that it 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.[100]

Furthermore, even if it were accepted that indefinite detention can be characterised as non-punitive due to the Executive’s fervent belief in the possibility of removal, detention for a purpose which has been declared to be well nigh impossible seems far from satisfying the requirement in Lim that it be ‘reasonably capable of being seen as necessary’ for that purpose.

6. Conclusion

The Al-Kateb decision is a study in ruthless literalism and exhibits a parochial disinclination to engage with international law. The result as a whole represents a victory of form over substance, text over context. Its implications are dramatic on a number of levels. In terms of the majority’s sanctioning of the Executive’s power to detain indefinitely, the High Court has embarked upon a trajectory fundamentally opposed to the course which is being followed by both the US Supreme Court and the British House of Lords.[101] In the particular context of administrative detention the decision of the majority leaves the Australian system of mandatory detention even further out of step with human rights law and international jurisprudence. Following the Al-Kateb decision, the Minister for Immigration and Multicultural and Indigenous Affairs granted both Mr Al-Kateb and Mr Al Khafaji bridging visas, in the exercise of her discretion, thereby granting them respite from the High Court’s effective life sentence.[102] Subsequent to this exercise of discretion the Howard Government has announced the creation of a new temporary visa, the ‘Removal Pending Bridging Visa’, which would enable the release of asylum seekers in long-term detention who, as with the appellant in this case, have been refused refugee status but are unable to return to their country of origin.[103] Whilst this is comparatively good news for stateless asylum seekers, the majority judges’ expansive treatment of the aliens power, their formalistic understanding of punitive and non-punitive purposes, their privileging of a Government-friendly construction of the statute over the fundamental common law presumption in favour of the protection of liberty, and their ultimate sanctioning of an executive power to detain indefinitely means that the decision carries constitutional and interpretive implications which extend well beyond the immediate context of stateless asylum seekers. In his judgment, Kirby J intimated that the line of reasoning adopted by the majority would one day come to be regarded with ‘a mixture of curiosity, and embarrassment’.[104] Let us hope that Kirby J’s optimist prophecy is fulfilled, and that this ‘tragic’ outcome will be understood merely as an aberrational slip from the courts’ traditionally jealous protection of their judicial function, not as the thin end of the wedge for unlimited executive power.[105]

[*] BA(Hons) LLB(Hons). The author wishes to thank Mary Crock for her guidance and support in the creation of this case note. Any errors are the author’s own.

[1] Jane McAdam, ‘Australia and Europe – Worlds Apart’ (2003) 28 Alt LJ 193. For an overview of immigration detention policies in the European Union see McAdam. A comparison with the policies in Canada, the United Kingdom and the United States is given in Alexander Nicholas, ‘Protecting Refugees: Alternatives to a Policy of Mandatory Detention’ [2002] AUJlHRights 6; (2002) 8 Australian Journal of Human Rights 69.

[2] Section 196(1). Unlawful non-citizens are detained under s189 of the Migration Act.

[3] As noted in Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 34 (hereafter Lim) (Brennan, Deane & Dawson JJ). It should of course be acknowledged that, as the Human Rights Committee observed in A v Australia, UNHRC Communication No 560/1993, (3 April 1997) the capacity to request one’s removal offers no consolation to a refugee whose presence in detention and very status as a refugee is marked by their incapacity to return to their home for risk of persecution.

[4] [2004] HCA 37; (2004) 208 ALR 124 (hereafter Al-Kateb).

[5] Commonwealth of Australia Constitution Act (Imp) ss71–80 (hereafter ‘the Constitution’).

[6] [2003] FCAFC 70; (2003) 126 FCR 54 (Black CJ, Sundberg & Weinburg JJ) (hereafter Al Masri).

[7] Id at 88.

[8] In the United Kingdom: R v Governor of Durham Prison; Ex parte Hardial Singh [1983] EWHC 1; [1984] 1 WLR 704; [1984] 1 All ER 983; in the United States: Zadvydas v Davis [2001] USSC 64; 533 US 678 (2001); and in Hong Kong: Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1996] UKPC 5; [1997] AC 97.

[9] As expressed in the prohibition of arbitrary detention in Article 9 of the International Covenant on Civil and Political Rights (ICCPR) (opened for signature 16 December 1966, 999 United Nations Treaty Series 171; entered into force 23 March 1976 except Article 41 which came into force 28 March 1979; ratified by Australia 13 August 1980 except Article 41 which was ratified by Australia 28 January 1993).

[10] Al-Kateb, above n4 at [33] (McHugh J).

[11] Only Kirby J made a point of complying with the norms of international human rights law, however the norms in question are protective of the right which all three minority justices sought to protect – the right to personal liberty. The common law has a strong presumption in favour of personal liberty. See, for example, Whittaker v The King [1928] HCA 28; (1928) 41 CLR 230 at 248; Trobridge v Hardy [1955] HCA 68; (1955) 94 CLR 147 at 152; Watson v Marshall and Cade [1971] HCA 33; (1971) 124 CLR 621 at 632; Williams v The Queen [1986] HCA 88; (1986) 161 CLR 278 at 292; Re Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514 at 532; McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121 at 140–142.

[12] Meaning that he is ‘not considered as a national by any State under the operation of its law’: Article 1 of The Stateless Persons Convention (New York, 28 September 1954; entered into force in Australia on 13 March 1974: [1974] Australian Treaty Series No 20). The appellant was born and resided long term in Kuwait but was not eligible for Kuwait citizenship or permanent residence.

[13] The Tribunal affirmed the decision not to grant the visa on the basis that Australia did not owe Mr Al-Kateb protection obligations. The definition of ‘refugee’ in Article 1 of The Convention Relating to the Status of Refugees (Geneva, 28 July 1951), as amended by the Protocol relating to the Status of Refugees (New York, 31 January 1967) does not include a stateless person in the position of Mr Al-Kateb.

[14] This section requires removal as soon as reasonably practicable.

[15] SHDB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 30 (30 January 2003).

[16] SHDB v Goodwin & Ors [2003] FCA 30 at [9].

[17] [2004] HCA 36; (2004) 208 ALR 271.

[18] [2004] HCA 38; (2004) 208 ALR 201. Mr Al-Khafaji had been found to be a genuine refugee from Iraq but his application was ultimately declined because of s36(3) Migration Act (by the operation of this section his stop-over in Syria where he could have sought asylum prevents him from gaining protection in Australia). However, the government had been unsuccessful in arranging his removal to Syria so that, as with Al-Kateb, there was no real likelihood or prospect of removal in the reasonably foreseeable future.

[19] As recounted by Gleeson CJ in Al-Kateb, above n4 at [14].

[20] [1949] HCA 65; (1949) 80 CLR 533.

[21] Lim, above n3.

[22] See Behrooz & Ors v Secretary DIMIA & Ors, SHDB v Godwin & Ors, MIMIA v Al Khafaji [2003] HCA Transcript of Argument (12 November 2003).

[23] For the appellant’s argument see Behrooz & Ors v Secretary DIMIA & Ors, SHDB v Godwin & Ors, MIMIA v Al Khafaji [2003] HCA Transcript of Argument (12 November 2003) and [2003] HCA Transcript of Argument (13 November 2003).

[24] See Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277 at 304.

[25] See Polites v Cth [1945] HCA 3; (1945) 70 CLR 60.

[26] Submissions of the Human Rights and Equal Opportunity Commission, Intervening: <http://> at para 6 (19 October 2004).

[27] Ibid.

[28] Lim, above n3 at 55 (Gaudron J); Kruger v The Commonwealth [1997] HCA 27; (1997) 190 CLR 1 at 109 (Gaudron J); and 162 (Gummow J).

[29] Heydon J did reserve his decision as to whether s196 ought to be interpreted in a manner consistent with treaties to which Australia is a party but have not been incorporated into domestic law. Al-Kateb, above n4 at [303].

[30] Al-Kateb, above n4 at [33].

[31] Id at [35] (McHugh J).

[32] Id at [295] (Callinan J).

[33] Id at [251] (Hayne J), [34] (McHugh J).

[34] Id at [230].

[35] Id at [144] (Kirby J), [95] (Gummow J) & [3] (Gleeson CJ).

[36] Id at [14].

[37] Id at [22] (Gleeson CJ).

[38] Id at [21] (Gleeson CJ).

[39] This approach was also taken by the Full Federal Court in Al Masri, above n6 at 75–79.

[40] This principle has recently been affirmed in the cases of Coco v The Queen, above n24 and Plaintiff S157/2002, above n24 at 492. However, it was endorsed by the High Court as early as 1908 by O’Connor J in Potter v Minahan, above n24 at 304, his Honour there citing a passage from the fourth edition of Maxwell on Statutes: ‘[i]t is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness’.

[41] Al-Kateb, above n4 at [22] (Gleeson CJ), [98] (Gummow J) & [193] (Kirby J).

[42] Id at [22] (Gleeson CJ) & [117] (Gummow J).

[43] Section 7(1)(a) provided that a deportee may, pending his deportation and until he is place on board a vessel for deportation from Australia, be kept in such custody as the Minister or an officer directs.

[44] Calwell, above n20 at 556 (Latham CJ).

[45] Ibid.

[46] Id at [117].

[47] Al-Kateb, above n4 at [17] (Gleeson CJ), [88] (Gummow J) & [167] (Kirby J). Kirby J also noted that a purposive approach accommodates compliance with international human rights law.

[48] Id at [121] (Gummow J).

[49] Introduced by the Migration Amendment Act 1992 (Cth).

[50] Under what was then s54R of the Migration Act ‘[a] court is not to order the release from custody of a designated person’.

[51] Lim, above n3 at 33 (Brennan, Deane & Dawson JJ).

[52] Al-Kateb, above n4 at [42].

[53] Id at [43].

[54] Id at [255] (Hayne J).

[55] Id at [45] (McHugh J).

[56] Id at [266]–[268] (Hayne J), Callinan J at [290].

[57] [1952] USCA2 157; 195 F 2d 964 at 971 (2nd Cir 1952). Cited by Hayne J: id at [269].

[58] Al-Kateb, above n4 at [140] (Gummow J) & [155] (Kirby J).

[59] [1951] HCA 5; (1951) 83 CLR 1.

[60] Al-Kateb, above n4 at [140] (Gummow J).

[61] Id at [140] (Gummow J).

[62] Id at [169]–[191] (Kirby J). This argument was not addressed by either Gleeson CJ or Gummow J.

[63] These trends are identified as the pragmatic, reactive approach taken by the courts, the narrow textual focus of many of the decisions, the lack of attention paid to broad norms of international law, and the (belated) intrusion of international jurisprudence into the judicial discourse on refugees. Mary Crock, ‘Judging Refugees: The Clash of Power and Institutions in the Development of Australian Refugee Law’ [2004] SydLawRw 4; (2004) 26 Syd LR 51 at 61.

[64] As recognised in Lim, above n3 at 28–29.

[65] Id at 65.

[66] [1983] EWHC 1; [1984] 1 WLR 704.

[67] Id at 706.

[68] [2001] USSC 64; 533 US 678 (2001).

[69] Id at 689.

[70] Al Masri, above n6 at 87.

[71] Id at 92.

[72] Both Gleeson CJ, at [3], and Gummow J, at [118], noted that their findings were commensurate with the conclusions in these judgments but found no use for them outside this observation.

[73] Al-Kateb, above n4 at 161 (Kirby J).

[74] Id at [150].

[75] Al-Kateb, above n4 at [169]. His Honour is the only member of the current High Court to have embraced international law as an interpretive guide to the Constitution in the face of an ambiguity. See, for example, Newcrest Mining (WA) Ltd v Commonwealth [1997] HCA 38; (1997) 190 CLR 513 at 657–658; Kartinyeri v Commonwealth of Australia [1998] HCA 22; (1998) 195 CLR 337 at 417–718.

[76] Id at [190] (Kirby J).

[77] Polites, above n25 at 68–69, 77, 80–81.

[78] Al-Kateb, above n4 at [63].

[79] Id at [65]. This view was previously intimated in his Honour’s dissenting opinion in Minister of Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 316–317 and more recently in his majority judgment in Re Minister for Immigration and Multicultural Affairs; ex parte Lam [2003] HCA 6; (2003) 214 CLR 1.

[80] Al-Ketab, above n4 at [73].

[81] Id at [63].

[82] Id at [180].

[83] See, for example, Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51; Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520; Austin v The Commonwealth (2003) 195 ALR 321.

[84] Al-Kateb, above n4 at [74].

[85] Crock, above n63 at 59. See also, Julian Burnside QC, ‘Who Cares about Human Rights’ [2003] UNSWLawJl 45; (2003) 26 UNSWLJ 703.

[86] “UNHCR 1999 Revised Guidelines on the Detention of Asylum Seekers” in Simon Rice, Nick O’Neil & Roger Douglas (eds), Retreat from Injustice (2nd ed, 2004) at 724.

[87] Unsurprisingly, the UN’s scrutiny of immigration detention in Australia has been scathing. See Justice Bhagwati, Regional Adviser for Asia and the Pacific to the UN High Commissioner for Human Rights, Human Rights and Immigration Detention in Australia (31 July 2002).

[88] A v Australia, above n3; C v Australia, UNHRC Communication No. 900/99, (28 Oct 2002) at [8.2]; Baban v Australia, UNHRC Communication No. 1014/2001, (18 September 2003) at [7.2]; Mr Ali Aqzar Bakhtiyari and Mrs Roqaiha Bakhityari v Australia, UNHRC Communication No. 1069/2002, (6 Nov 2003) at [9.2–9.3].

[89] UNHRC Communication No. 305/1988, (15 August 1990) at [5.8].

[90] A v Australia, above n3 at [9.2].

[91] Supplementary Submissions of the Human Rights and Equal Opportunity Commission, Intervening: <> at [4] (19 October 2004).

[92] Al-Kateb, above n4 at [238].

[93] A v Australia, above n3 at [9.5].

[94] Lim, above n3 at 33.

[95] Id at 57.

[96] Id at 65–66.

[97] Id at 27 (Brennan, Deane & Dawson JJ).

[98] Eloise Dias, ‘Punishment by Another Name? Detention of Non-Citizens and the Separation of Powers’ (2004) 15 PLR at 25.

[99] Behrooz & Ors v Secretary DIMIA & Ors, SHDB Godwin & Ors, MIMA v Al Khafaji [2003] HCA Transcript of Argument (12 November 2003).

[100] Al-Kateb, above n4 at [140].

[101] See, for example, A & Ors v Secretary of State for the Home Department : X & Anor v Secretary of State for the Home Department [2004] UKHL 56; Zadvydas v Davis [2001] USSC 64; 533 US 678 (2001).

[102] Senator Amanda Vanstone, ‘Al Masri Decisions’, Media Release, 31 August 2004 <> .

[103] However, the visa will be granted only on the proviso that the asylum seeker undertakes to fully cooperate with the Government for his or her removal from Australia once it becomes practicable. Senator Amanda Vanstone, ‘Broader Powers for Immigration Minister to Manage Long Term Detainees and Removals’, Media Release, 23 March 2005: <>.

[104] Id at [190] (Kirby J).

[105] Id at [31] (McHugh J).

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