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

Authors Avatar

                Al-Kateb v Godwin [2004] HCA 37

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. The appellant was, upon arrival, a stateless person. 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 4:3 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. A majority of 5:2 found that Chapter III of the Constitution was not infringed.

The Political, Social and Economic Significance of Al-Kateb

The major political and social significance of the case stems from the majority judges’ statutory interpretation that flowed against the common law presumption in favour of personal liberty. In his minority judgement, Gleeson CJ stated that:

Courts do not impute to the legislature an intention to abrogate or curtail certain human rights or freedoms (of which personal liberty is the most basic) unless such an intention is clearly manifested by unambiguous language.

Agreeing with this principle, Callinan J found that the statutory language of the Migration Act is “clear and unambiguous”. Hayne J was expressly in agreement on this point, saying that the words of the statute are “intractable”.

This strict legalistic approach ultimately overrides the “well-established principle of statutory construction, which works to preserve fundamental

                                - 3 –

freedoms”. The majority decision in Al-Kateb was decided in stark contrast to the purposive interpretation evidenced in Calwell, thus representing a backward step by the High Court. It is also noteworthy that such a decision was made by the majority, despite intervention by the Attorney-General and the Human Rights and Equal Opportunity Commission. The “flawed”reasoning of the majority results in malleable and insufficient protection for human rights, and this was evidenced by Kirby and McHugh JJ’s calling for greater protection of rights through the implementation of an Australian Bill of Rights.

Join now!

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.

                                - 4 –

Al-Kateb also seems to raise some economic concerns due to the high cost ...

This is a preview of the whole essay