Uncertainty and Exclusion: Detention of Aliens and the High Court

AuthorMatthew Zagor
Publication Date01 Mar 2006
DOI10.22145/FLR.34.1.5
SubjectArticle
ORIGINALISM IN CONSTITUTIONAL INTERPRETATION UNCERTAINTY AND EXCLUSION: DETENTION OF ALIENS
AND THE HIGH COURT
Matthew Zagor
1 INTRODUCTION
In a series of judgments in August and October 2004, the High Court found that the
Migration Act 1958 (Cth) ('the Act') unambiguously provides for the indefinite
detention of unlawful non-citizens, and that such a law is constitutionally valid.1 In
doing so, a majority on the High Court arguably rewrote the rule book on the
operation of Chapter III of the Constitution ('Ch III'), undermining the majority
judgment in Chu Kheng Lim v Minister for Immigration in the process.2
This case note focuses primarily on Al-Kateb v Godwin.3 To the extent that they
clarify or expand on the reasoning with respect to the operation of Ch III, reference is
also made to Minister for Immigration and Multicultural and Indigenous Affairs v Al
Khafaji4 and Behrooz v Secretary of the Department of Immigration and Multicultural and
Indigenous Affairs5 which were argued at the same time as Al-Kateb, and to Re Woolley;
Ex parte Applicants M276/2003 by their next friend GS,6 which concerned the
administrative detention of non-citizen children.
Al-Kateb tackled what had become known as the Al Masri doctrine, a reference to
the decision of Merkel J of the Federal Court which implied a temporal limitation into
the power to detain unlawful non-citizens under the Act.7 Merkel J's decision had
caused considerable disquiet and division within the Federal Court, with some judges
decrying it as judicial legislation and an illegitimate foray into sensitive negotiations
_____________________________________________________________________________________
∗ Lecturer, Faculty of Law, Australian National University. Thanks to Adrienne Stone, John
Williams and James Stellios for helpful discussions and comments, to the anonymous
referees and the excellent Federal Law Review editors.
1 There is a potential dispute as to whether the detention should be described as 'indefinite'
given the Court's finding that it cannot be said that detention will never end. As most
judges use the term uncritically, I have adopted it for the sake of clarity.
2
Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 ('Lim').
3
(2004) 219 CLR 562 ('Al-Kateb').
4
(2004) 219 CLR 664 ('Al Khafaji').
5
(2004) 219 CLR 486 ('Behrooz').
6
(2004) 210 ALR 369 ('Woolley').
7
Al Masri v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 192 ALR
609.

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Federal Law Review Volume
34
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with foreign countries.8 Nonetheless, a Full Court of the Federal Court unanimously
endorsed Merkel J's approach, appealing in the process to fundamental values lying at
the heart of our legal system, not least of which is the law's traditional protection
against the deprivation of liberty.9
The High Court similarly confronted fundamental constitutional arrangements, and
was similarly split on the appropriate response, generating in the process some of the
more pugnacious and emotive language seen in recent years about the proper role of
the Court.
In this sense, the cases are significant not only for reflecting different approaches to
statutory construction, the aliens power and the potential protections offered by Ch III
— the manifest issues before the Court — but for the broader perspectives of
Australia's constitutional arrangements and the control of public power.
This case note pieces together and analyses the main approaches taken in the
various judgments to the statutory and constitutional problems before the Court. The
thesis of the paper, if it can be briefly stated, is that the majority were inherently
informed by a largely unstated assumption about the Court's constitutional role that
relies upon an unprecedented deference to the other branches of government, as well
as an attitude towards aliens as a category — reflected in the rhetoric of control,
exclusion and unlawfulness — that echoes a regrettable part of Australia's
constitutional inheritance. By neglecting to state or address these assumptions up-
front, and by failing to present a coherent test to stand in the stead of the protection
which Lim had promised, the majority's reasoning loses both its moral authority and
legal coherency.
2
THE FACTS IN AL-KATEB AND AL KHAFAJI
The facts in Al-Kateb and Al Khafaji, the two cases dealing directly with indefinite
detention, were not in dispute.10
Ahmed Al-Kateb was a stateless Palestinian man who arrived in Australia by boat
in December 2000 and was taken into immigration detention. After failing in his
attempt to be recognised as a refugee, Mr Al-Kateb indicated to the Department of
Immigration that he wished to return to Kuwait, 'and if you cannot please send me to
Gaza'.11 Attempts by the Department to remove Mr Al-Kateb to Egypt, Gaza, Jordan,
Kuwait, Syria or the Palestinian territories were unsuccessful, and in March 2003 he
approached the Federal Court seeking inter alia a declaration that he was being
unlawfully detained and consequential relief by way of habeas corpus.12 While von
Doussa J found that removal from Australia was 'not reasonably practicable … as there
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8
See, eg, WAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA
1625 [56] (French J); Daniel v Minister for Immigration and Multicultural and Indigenous Affairs
(2003) 196 ALR 52, 63 [34]–[37] (Whitlam J); Al Khafaji v Minister for Immigration and
Multicultural and Indigenous Affairs [2002] FCA 1369 [27] (Mansfield J).
9
Al Masri v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 126 FCR 54
('Al Masri').
10 Although the language of qualification used by Callinan J in describing the facts in Al-Kateb
throws doubt on their accepted status.
11 Al-Kateb (2004) 219 CLR 562, 602 [102] (Gummow J).
12 Ibid 653 [277] (Callinan J).

2006
Detention of Aliens and the High Court 129
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is no real likelihood or prospect of removal in the reasonably foreseeable future,' his
Honour declined to follow Merkel J's decision in Al Masri and refused to order Mr Al-
Kateb's release. Within a few weeks, a Full Court of the Federal Court unanimously
confirmed Merkel J's decision, and Mr Al-Kateb was promptly released on an
interlocutory basis, pending the hearing of an appeal of von Doussa J's decision. In July
2003 that appeal was removed into the High Court.
Abbas Al Khafaji had similarly arrived in Australia 'without proper travel
documents' in January 2000, and was consequently placed in immigration detention.13
Although his country of origin was technically Iraq, Al Khafaji had spent most of his
life in Syria. In considering his protection visa application, a delegate of the Minister
accepted that he had a well-founded fear of persecution if he were to return to Iraq, but
found that he had 'effective protection' in Syria, including the 'right' to re-enter and
reside in Syria without the risk of being forcibly returned to Iraq. The Refugee Review
Tribunal affirmed this decision.
What followed was, as Gummow J notes, 'odd, if not paradoxical'.14 In early 2001,
Mr Al Khafaji requested that he be returned to Syria, yet the Department's best efforts
to send him to the very country to which it had found he had a 'right' to return were
unsuccessful. After examining this evidence in some detail, Mansfield J made a finding
of fact that there was nothing to indicate 'any real prospect of [Mr Al Khafaji] being
returned to Syria in the reasonably foreseeable future', and that his detention as a
result was 'indefinite and … certainly not of short compass'.15 On 5 November 2002,
Mansfield J ordered that the respondent be released from detention forthwith. The
Minister appealed to the Full Court, and the appeal was removed into the High Court.
It was heard simultaneously with Al-Kateb and Behrooz.
3
THE LEGISLATION AND ISSUES BEFORE THE COURT
The legislative regime creating a system of mandatory detention is notable for the
simplicity of its design, the bluntness of its operation, and its absence of discretion.
Section 189 of the Act provides that, if an officer knows or reasonably suspects that
a person in the migration zone is an unlawful non-citizen, the officer must detain the
person. An 'unlawful non-citizen' is defined (via ss 13 and 14) as someone who is not
an Australian citizen, and who does not hold a visa that is in effect, thus covering a
very broad category of persons, including but not exclusive to those who arrive
without a visa.
Other provisions of the Act limit immigration detention. Notably, s 196, headed
'Duration of detention', provides that an unlawful non-citizen detained under s 189
'must be kept in immigration detention until' he or she is removed,16 deported17 or
granted a visa.18
Mr Al-Kateb and Mr Al Khafaji had both requested removal in writing under s 198,
which relevantly provided at the time that '[a]n officer must remove as soon as
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13 Al Khafaji (2004) 219 CLR 664, 668–9 [7]–[8] (Gummow J).
14 Ibid 672 [18]–[19] (Gummow J).
15 Ibid 671 [16] (Gummow J).
16 Migration...

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