The decision in Al-Kateb is also very significant for immigration detainees. Prior to Al-Kateb, Michael Head notes that often after years of imprisonment, detainees “had been released into the community, subject to certain reporting conditions, by the Federal Court.” Although Mr Al-Kateb and Mr Al Khafaji were granted bridging visas at the discretion of the Minister following the case, the fact that indefinite detention is now lawful means that the granting of such a visa may not occur for many other detainees.
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Al-Kateb also seems to raise some economic concerns due to the high cost of immigration detention. Costing the taxpayer just over $87 million a year, immigration detention has the possibility of getting even more expensive in light of the High Court’s affirmation of lawful indefinite immigration detention.
The Development of Australian Constitutional Law in light of Al-Kateb
Deciding whether the relevant sections of the Migration Act are constitutionally valid, the 1992 High Court case of Lim was upheld, which found that section 51(xix) of the Constitution authorised the executive to detain an unlawful non-citizen for the purpose of expulsion or deportation. It was held in Lim that such authorisation was limited to what is “reasonably capable of being seen as necessary for the purposes of deportation…” McHugh J, in Lim, commented further on this, stating that if a statutory provision authorising detention of an alien “went beyond what was reasonably necessary to effect the deportation of that person, the law might be invalid because it infringed the provisions of Ch III of the Constitution”. The majority in Al-Kateb, therefore, employed a punitive/non-punitive classification to decide that the relevant sections of the Migration Act do not offend Ch III.
The majority decision in Al-Kateb is believed to be a “departure from established Australian constitutional law concerning the ambit of executive power”. Juliet
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Curtin notes that the judgement in Lim, by limiting the power of detention to that which is reasonably necessary, “recalls that the Constitution’s concern is with substance and not mere form”. Al-Kateb seems to contradict this principle, in that indefinite detention conditional upon a purpose of removal results in constitutional interpretation that privileges form over substance. This was evidenced in Gummow J’s judgement, where it was observed that “the focusing of attention on whether detention is ‘penal or punitive in character’ is apt to mislead… It is primarily with the deprivation of liberty that the law is concerned, not with whether that deprivation is for a punitive purpose.”
Al-Kateb also manifests the High Court’s lack of contextual assessment when interpreting the Constitution and general legislation. The most prominent example is found in McHugh J’s judgment, where he expressly rejects the notion that the courts can read the Constitution by reference to the provisions of international law. Kirby J’s judgment is in stark contrast with that of McHugh J, whereby interpretation based on context is seen by Kirby J as the touchstone of modern constitutional and statutory interpretation. Such a notion is inherent in
common law, and derogation from such established principles has, therefore, led to Al-Kateb being authority for the proposition that “context necessarily
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impinges on constitutional interpretation”. The resultant judicial indifference to contextual considerations not only means that Australia is isolating itself from the rest of the developed world, but Australian citizens are also being denied the protection of internationally recognised rights.
Conclusion
The majority decision in Al-Kateb represents a radical shift in the legal-constitutional framework. The legitimacy of the Executive’s curtailment of common law rights protection, combined with strict positivist constitutional interpretation, has resulted in a case authority devoid of valuable sources of fundamental principles. As Boyle claims, “due to the flawed majority decision, the slim majority and the questionable political climate, Al-Kateb is a decision that should remain the subject of caution”.
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List of References
- Articles / Books / Reports
J Allan, “‘Do The Right Thing’ Judging? The High Court of Australia in Al-Kateb” (2005) 1 University of Queensland Law Journal.
C Boyle, “Executive Detention: A Law Unto Itself? A Case Study of Al-Kateb v Godwin” (2005)7 University of Notre Dame Australia Law Review, 119.
S Churches, “‘Tragic’: the High Court decision in the indefinite mandatory detention caseof Al-Kateb” (2004) Oct Law Society Bulletin, 30.
J Curtin, “‘Never Say Never’: Al-Kateb v Godwin” (2005) 27 (355) Sydney Law Review, 355.
K Gauthier, The Financial Cost of Immigration Detention (May 2004) at 2 October 2008.
M Head, “High Court Sanctions Indefinite Detention of Asylum Seekers” (2004) 8 University of Western Sydney Law Review, 153.
M Kirby, “Liberty, Terrorism and the Courts” (2005) 9 University of Western Sydney Law Review, 11.
D Malcolm, “A Human Rights Act for Australia” (2006) 8 University of Notre Dame Australia Law Review, 19.
- Case Law
Al-Kateb v Godwin [2004] HCA 37
Behrooz v Secretary of the Department of Immigration and Indigenous Multicultural Affairs (2004) 208 ALR 271
Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1
CIC Insurance Ltd v Bankstown Football Club (1997) 187 CLR 384
K&S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309
Koon Wing Lau v Calwell (1949) 80 CLR 533
Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji (2004) 208 ALR 201
New South Wales v The Commonwealth [2006] HCA 52
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- Legislation
Migration Act 1958 (Cth)
The case was decided upon by the High Court of Australia on 6 August 2004, and it was decided alongside two other cases, namely Behrooz v Secretary of the Department of Immigration and Indigenous Multicultural Affairs (2004) 208 ALR 271 and Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji (2004) 208 ALR 201. Al-Kateb v Godwin [2004] HCA 37 was upheld by the High court 4 months later, in the case of Re Woolleys [2004] HCA 49.
This detention is authorised by sections 189(1) and 196(1) of the Migration Act 1958 (Cth).
Art 1 of the Convention relating to the Status of Stateless Persons defines a stateless person as one “who is not considered as a national by any State under the operation of its law.” – See Al-Kateb v Godwin, above n 1, per Gummow J at [79].
The majority consists of McHugh J, Callinan J, Hayne J, and Heydon J. The minority consists of Glesson CJ, Gummow J, and Kirby J.
The majority consists of McHugh J, Callinan J, Hayne J, Heydon J, and Gleeson CJ. The minority consists of Gummow J, and Kirby J. It is important to note, however, that the judgements of Gummow J, Gleeson CJ and Kirby J on this issue were obiter comments due to their rejection of the first proposal – See J Allan, “‘Do The Right Thing’ Judging? The High Court of Australia in Al-Kateb” (2005) 1 University of Queensland Law Journal.
Intervention was made by way of written submissions – see J Curtin, “‘Never Say Never’: Al-Kateb v Godwin” (2005) 27 (355) Sydney Law Review, 361.
Al-Kateb v Godwin, above n 1, per Gleeson CJ at [19].
Al-Kateb v Godwin, above n 1, per Callinan J at [298].
Al-Kateb v Godwin, above n 1, per Hayne J at [241].
Curtin, above n 6, 360. See also C Boyle, “Executive Detention: A Law Unto Itself? A Case Study of Al-Kateb v Godwin” (2005)7 University of Notre Dame Australia Law Review, 121.
Koon Wing Lau v Calwell (1949) 80 CLR 533. This was discussed at length by Gummow J in Al-Kateb v Godwin, above n 1, at [87] and [89].
For instance, see Boyle, above n 11, 126.
See Al-Kateb v Godwin, above n 1, per Kirby J at [179].
See Al-Kateb v Godwin, above n 1, per McHugh J at [73].
M Head, “High Court Sanctions Indefinite Detention of Asylum Seekers” (2004) 8 University of Western Sydney Law Review, 154.
In fact, 13 visa applications made by long-term immigration detainees were rejected following the case – see Head, above n 17, 154.
K Gauthier, The Financial Cost of Immigration Detention (May 2004) at 2 October 2008.
Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1.
Informally known as the ‘aliens’ power of the Constitution.
Chu Kheng Lim v Minister for Immigration, above n 20, per Brennan, Deane, and Dawson JJ at 33.
Chu Kheng Lim v Minister for Immigration, above n 20, per McHugh J at 65-66.
Curtin, above n 6, 368. See also the comments of Boyle, above n 11, 122-123.
Al-Kateb v Godwin, above n 1, per Gummow J at [137].
See Al-Kateb v Godwin, above n 1, per McHugh J at [61] – [72].
See Al-Kateb v Godwin, above n 1, per Kirby J at [175]. See also M Kirby, “Liberty, Terrorism and the Courts” (2005) 9 University of Western Sydney Law Review, 31.
See K&S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 per Mason J at 309, and CIC Insurance Ltd v Bankstown Football Club (1997) 187 CLR 384 per Brennan CJ, Dawson, Toohey and Gummow JJ.
New South Wales v The Commonwealth [2006] HCA 52 per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ at [442].
D Malcolm, “A Human Rights Act for Australia” (2006) 8 University of Notre Dame Australia Law Review, 19.