• Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

Al-Kateb v Godwin [2004] HCA 37. The Political, Social and Economic Significance of Al-Kateb

Extracts from this document...

Introduction

Al-Kateb v Godwin [2004] HCA 371 Facts and Legal Issues Ahmed Ali Al-Kateb (the appellant) arrived in Australia in mid-December 2000 without a passport or Australian visa, and was thus placed in immigration detention.2 The appellant was, upon arrival, a stateless person.3 The appellant applied for a protection visa but was denied, and subsequent challenges to this decision failed to overturn it. As a result, the appellant wrote to the Minister for Immigration and Multicultural and Indigenous Affairs, requesting to be removed from Australia. This request was unsuccessful, and the appellant appealed this decision, claiming his continued detention was unlawful. The principal issue for consideration by the High Court concerned section 198 of the Migration Act 1958 (Cth), which states that an officer must "remove as soon as reasonably practicable an unlawful non-citizen who asks the Minister, in writing, to be so removed" (emphasis added). The issue here was whether the language of the section was capable of interpretation that allowed for the potentially indefinite mandatory detention of a non-citizen. It was decided by a majority of 4:34 that such interpretation is to be preferred. The subsequent issue - 2 - considered by the High Court concerned Chapter III of the Constitution, and whether this was infringed as a result of the provision of indefinite detention without a judicial order. ...read more.

Middle

McHugh J, whereby interpretation based on context is seen by Kirby J as the touchstone of modern constitutional and statutory interpretation.29 Such a notion is inherent in common law30, and derogation from such established principles has, therefore, led to Al-Kateb being authority for the proposition that "context necessarily - 6 - impinges on constitutional interpretation"31. The resultant judicial indifference to contextual considerations not only means that Australia is isolating itself from the rest of the developed world,32 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.33 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"34. - 7 - List of References 1. Articles / Books / Reports J Allan, "'Do The Right Thing' Judging? The High Court of Australia in Al-Kateb" (2005) ...read more.

Conclusion

22 Chu Kheng Lim v Minister for Immigration, above n 20, per Brennan, Deane, and Dawson JJ at 33. 23 Chu Kheng Lim v Minister for Immigration, above n 20, per McHugh J at 65-66. 24 Head, above n 17, 154. 25 Curtin, above n 6, 368. 26 Curtin, above n 6, 368. See also the comments of Boyle, above n 11, 122-123. 27 Al-Kateb v Godwin, above n 1, per Gummow J at [137]. 28 See Al-Kateb v Godwin, above n 1, per McHugh J at [61] - [72]. 29 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. 30 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. 31 New South Wales v The Commonwealth [2006] HCA 52 per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ at [442]. 32 D Malcolm, "A Human Rights Act for Australia" (2006) 8 University of Notre Dame Australia Law Review, 19. 33 Head, above n 17, 164. 34 Boyle, above n 11, 126. ?? ?? ?? ?? ...read more.

The above preview is unformatted text

This student written piece of work is one of many that can be found in our University Degree Other Jurisdictions section.

Found what you're looking for?

  • Start learning 29% faster today
  • 150,000+ documents available
  • Just £6.99 a month

Not the one? Search for your essay title...
  • Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

See related essaysSee related essays

Related University Degree Other Jurisdictions essays

  1. Legal education in India. Legal education and quality of law graduates have great ...

    better than India as is clear from the concern voiced regarding the deteriorating standards of legal education in the following observations of judges and jurists in the Nations like England and America. ENGLAND Professor Kahn Freund, a distinguished law teacher, speaking on 'English ethos of legal education' stated22: "It was

  2. Anticipatory Bail under CRPC. A critical study of the recent amendments and judicial interpretation ...

    In Phulla Das v. State of Punjab10 the court held that it can direct that the applicant should surrender himself to the police far a brief period if a discovery is to be made under Section 27 of Evidence Act or that he should be deemed to have surrendered himself if such a discovery is to be made.

  1. Elucidate Doctrine of Res Judicata in the Light of Decided Cases

    Where several defendants are there, in a suit the collusion of one of them alone is not enough to avoid the operation of rule of res judicata. Gross negligence is different from fraud and collusion. In Swamy Atmandanda vs.

  2. Land law. The purpose of this paper is to present an analytical and investigative ...

    Section 1(3) of the Frustrated Contracts Act provides that, where a party to a contract benefits from the contract, then they are obligated to make good by way of consideration for the benefits received. Further, in case any of the contract parties does or stands to benefit from the non-completion

  1. Homicide - Maltese Law.

    There is a very important distinction, between a supervening act or event which is a contributory cause to the event and one which is the sole cause of the event. The former is a konkawza, and does not afford any mitigation in wilful homicide.

  2. Constitutional Equality in Singapore. The predominant purpose of unequal treatment under the Constitution ...

    should be accommodated under the transformative dimension must be determined in relation to the recognition dimension. Cultural practices and differences that undermine the equal recognition and respect of dignity cannot be accommodated.[31] This multi-dimensional framework enables government to discuss how best to balance the different aims of substantive equality.

  1. Scandalous trademarks. In Australia there has been an increase in the number of ...

    It was therefore concluded that the mark was not scandalous or even in bad taste on the basis that the term is accepted in today?s society as part of ordinary and acceptable language. Further in using the recent trademark acceptance of the phrase ?Nuckin Futs?[19]: it was said in the

  2. Unilateral Divorce in Muslim Law

    The talaq-ul-bidda, also has two forms: (i) the triple divorce or three declarations at one time and (iii) one irrevocable declaration. The basic difference distinction between the talaq-ul-sunna and talaq-ul-bidda is, that in the former case the pronouncement of divorce is revocable while in the latter, it is irrevocable.

  • Over 160,000 pieces
    of student written work
  • Annotated by
    experienced teachers
  • Ideas and feedback to
    improve your own work