HIGH COURT OF AUSTRALIA
GLEESON CJ,
McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJAHMED ALI AL-KATEB APPELLANT
AND
PHILIPPA GODWIN, DEPUTY SECRETARY,
DEPARTMENT OF IMMIGRATION AND
MULTICULTURAL AND INDIGENOUS
AFFAIRS & ORS RESPONDENTSAl-Kateb v Godwin [2004] HCA 37
6 August 2004
A253/2003ORDER
1. Appeal dismissed.
2. The respondents to pay the appellant's costs in this Court.
Cause removed under s 40 of the Judiciary Act 1903 (Cth)
Representation:
C M O'Connor with A Hamdan for the appellant (instructed by Hamdan Lawyers)
D M J Bennett QC, Solicitor-General of the Commonwealth with H C Burmester QC and S J Maharaj for the respondents (instructed by Australian Government Solicitor)
Interveners:
D M J Bennett QC, Solicitor-General of the Commonwealth with H C Burmester QC and S J Maharaj intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)
D S Mortimer SC with J K Kirk intervening on behalf of the Human Rights and Equal Opportunity Commission (instructed by Human Rights and Equal Opportunity Commission)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Al-Kateb v Godwin
Immigration – Unlawful non-citizens – Detention pending removal from Australia – No real prospect of removal from Australia in reasonably foreseeable future – Whether detention lawful under Migration Act 1958 (Cth) – Whether detention is temporally limited by purpose of removal – Whether requirement to remove as soon as reasonably practicable implies time limit on detention.
Statutes – Acts of Parliament – Construction and interpretation – Where meaning ambiguous or uncertain – Presumption of legislative intention not to invade personal common law rights.
Constitutional law (Cth) – Judicial power of the Commonwealth – Unlawful non-citizen in immigration detention – No real prospect of removal from Australia in reasonably foreseeable future – Whether provision for indefinite detention without judicial order infringes Chapter III of the Constitution – Whether detention involves an exercise of judicial power of the Commonwealth by the Executive – Whether detention is for a non-punitive purpose.
Constitutional law (Cth) – Construction and interpretation – Whether Constitution to be interpreted to be consistent with international law of human rights and fundamental freedoms.
Constitution, Ch III.
Migration Act 1958 (Cth), ss 189, 196, 198.
GLEESON CJ. The Migration Act 1958 (Cth) ("the Act") provides for administrative detention of unlawful non-citizens. For present purposes, unlawful non-citizens are aliens who have entered Australia without permission, or whose permission to remain in Australia has come to an end. In this context, alien includes a stateless person, such as the appellant. Detention is mandatory, not discretionary. It is not a form of extra-judicial punishment. It exists "in the context ... of executive powers to receive, investigate and determine an application by [the] alien for an entry permit and (after determination) to admit or deport"[1]. It is an incident of the exercise of those powers. The Act envisages that the detention will come to an end, by the grant of a visa which entitles the alien to enter the Australian community, or by removal of the alien from Australia, either at the request of the alien, or following the conclusion of an unsuccessful attempt to obtain a visa. Applications for visas may involve a lengthy process of decision-making, and administrative and judicial review. The time taken by the process may be difficult to predict. In that respect, the period of administrative detention may be uncertain. Similarly, the process of removal may take some time to arrange. In the ordinary case, however, the period, although uncertain, is finite. Furthermore, as was pointed out in Chu Kheng Lim v Minister for Immigration, in the ordinary case, the detention can be brought to an end upon the alien making a request to be removed[2]. There are, however, exceptional cases, where a visa application has been determined adversely to an alien, or an alien has requested removal, but removal is not possible in the circumstances which prevail at the time and which are likely to prevail in the foreseeable future. What happens then? Is the consequence indefinite, perhaps permanent, detention? The Act does not, in express terms, address that problem[3].
[1]Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 10 per Mason CJ.
[2](1992) 176 CLR 1 at 34 per Brennan, Deane and Dawson JJ.
[3]Amendments to s 196 of the Act in 2003 apply to certain classes of detainee, not including the appellant.
The appellant, a stateless person, arrived in Australia without a visa. He was taken into immigration detention, and applied for a visa. His application failed. He wrote to the Minister requesting to be removed. Removal did not take place, not because of any want of trying on the part of the Australian authorities, or because of any personal fault of the appellant, but because attempts to obtain the necessary international co-operation were unsuccessful. The Federal Court found that there was no real likelihood or prospect of removal of the appellant in the reasonably foreseeable future.
In a similar case, Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri[4], the Full Court of the Federal Court held that a person in the position of the appellant is entitled to be released from immigration detention, if and when the purpose of removal becomes incapable of fulfilment. For the reasons that follow, I agree with that conclusion. A similar problem has arisen, and a similar answer has been given, in the United Kingdom[5], the United States[6], and Hong Kong[7]. However, in each country the constitutional and statutory context is controlling, and differs. In particular, while in those jurisdictions provision is made for administrative detention of aliens, such detention is discretionary rather than mandatory, and the courts are concerned with powers, rather than obligations, to detain. Questions of reasonableness in the exercise of administrative powers may give rise to considerations that are not directly relevant to a system of mandatory detention.
[4](2003) 126 FCR 54.
[5]R v Governor of Durham Prison; Ex parte Hardial Singh [1984] 1 WLR 704; [1984] 1 All ER 983.
[6]Zadvydas v Davis 533 US 678 (2001).
[7]Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97.
In Australia, the constitutional context is as follows. The Parliament, subject to the Constitution, has power to make laws with respect to naturalization and aliens (s 51(xix)), and immigration and emigration (s 51(xxvii)). The qualification, subject to the Constitution, directs attention to Ch III, concerning judicial power and courts, and the separation of powers which is part of the structure of the Constitution. Parliament has no power to make laws with respect to aliens which confer judicial power on the Executive. The Act's scheme of mandatory administrative detention is a valid law with respect to aliens on the basis earlier stated, that is to say, that a limited authority to detain an alien in custody is conferred as an incident of the exercise of the executive powers of excluding and removing aliens, and investigating, considering and determining applications for permission to enter Australia[8]. So characterised, the power is not punitive in nature, and does not involve an invalid attempt to confer on the Executive a power to punish people who, being in Australia, are subject to, and entitled to the protection of, the law.
[8]Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 10 per Mason CJ.
The history of the relevant provisions of the Act, and of earlier legislation on the subject, is set out in the reasons of Gummow J and of Hayne J. The critical provisions are ss 189, 196, and 198 which are contained in Pt 2 dealing with "Control of arrival and presence of non-citizens". Division 7 of Pt 2, which contains ss 189 and 196, deals with "Detention of unlawful non-citizens" – those without visas. Division 8 of Pt 2, which contains s 198, deals with "Removal of unlawful non-citizens".
Section 198 provides:
"(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 ..."
Both sub-ss (1) and (6) apply in the case of the appellant. Removal is not necessarily limited to removal to an unlawful non-citizen's country of nationality. However, it does not include simply ejecting a person physically from Australian territory, and therefore, in a given case, may require international co-operation as mentioned above.
Section 189 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.
Section 196, dealing with the period of detention, provides:
"(1)An unlawful non-citizen detained under section 189 must be kept in immigration detention until he or she is:
(a)removed from Australia under section 198 or 199; or
(b)deported under section 200; or
(c)granted a visa.
(2)To avoid doubt, subsection (1) does not prevent the release from immigration detention of a citizen or a lawful non-citizen.
(3)To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than for removal or deportation) unless the non-citizen has been granted a visa."
The word "detention" in sub-s (3) means "lawful detention". If it were otherwise, the provision would constitute an unconstitutional interference with judicial power[9]. Parliament cannot deprive the courts of the power to order the release of a person from unlawful detention. Consequently, it is the meaning of sub-s (1), understood in its constitutional and statutory context, that is in question.
[9]Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 50-51 per Toohey J.
The appellant was taken into detention under s 189, and was to be kept in detention under s 196 until he was removed from Australia under s 198 or granted a visa. He was not granted a visa, and he requested to be removed. Section 198 required that he be removed as soon as reasonably practicable. He wanted to be removed. The authorities wanted to remove him. But removal was not practicable, and was not likely to be practicable in the foreseeable future.
One of the features of a system of mandatory, as distinct from discretionary, detention is that circumstances personal to a detainee may be irrelevant to the operation of the system. A person in the position of the appellant might be young or old, dangerous or harmless, likely or unlikely to abscond, recently in detention or someone who has been there for years, healthy or unhealthy, badly affected by incarceration or relatively unaffected. The considerations that might bear upon the reasonableness of a discretionary decision to detain such a person do not operate. The Act is expressed in terms which appear to assume the possibility of compliance with the unqualified statutory obligation imposed by s 198. That assumption is made the basis of the specification of the period of detention required and authorised by s 196. The period is expressed to be finite. In cases where the assumption is valid, the period of mandatory detention may be relatively brief, save to the extent that it is prolonged by a detainee's own action in seeking a visa, with the delays that may involve. And, where the assumption is valid, the detention can always be brought to an end by the detainee's own request for removal. As the facts of the present case illustrate, however, compliance with the unqualified statutory obligation may require the co-operation of others, whose co-operation cannot be compelled. Compliance with an obligation defines the period of detention. The obligation, however, in its nature is subject to the possibility that it cannot be fulfilled for reasons unrelated to any fault on the part of the detainer, or the detainee.
The respondents point out that the capacity of a court to investigate, and decide, the practicability of removal in some cases where delicate, and perhaps confidential, matters of international diplomacy are concerned, may be limited. That is true, but if there were an allegation of non-compliance with the obligation imposed by s 198, that would give rise to a justiciable issue, difficult though it may be to resolve. The respondents also point out that international circumstances change, sometimes rapidly and unpredictably, and that it will rarely, if ever, be possible to say that removal will never become practicable. Even so, the provisions of the Act with which we are concerned do not address the possibility of a situation such as has arisen in the present case, and do not expressly provide for it. It should be acknowledged that the same may be said of some statements in past judgments of this Court as to the purpose and character of immigration detention.
The Act does not in terms provide for a person to be kept in administrative detention permanently, or indefinitely. A scheme of mandatory detention, operating regardless of the personal characteristics of the detainee, when the detention is for a limited purpose, and of finite duration, is one thing. It may take on a different aspect when the detention is indefinite, and possibly for life. In its application to the appellant, the Act says that he is to be kept in administrative detention until he is removed, and that he is to be removed as soon as reasonably practicable. That could mean that the appellant is to be kept in administrative detention for as long as it takes to remove him, and that, if it never becomes practicable to remove him, he must spend the rest of his life in detention. The appellant contends that it is also capable of another meaning. It may mean that the appellant, who is being kept in detention for the purpose of removal, which must take place as soon as reasonably practicable, is to be detained if, and so long as, removal is a practical possibility, but that if, making due allowance for changes in circumstances, removal is not a practical possibility, then the detention is to come to an end, at least for so long as that situation continues.
The respondents dispute that the Act is capable of bearing the second of those two meanings. That issue cannot be divorced from the words of qualification at the end of the preceding paragraph. The qualification also is contestable, and must be addressed.
It was submitted on behalf of the respondents that the Minister, and the relevant officers referred to in s 198, may have the purpose of removing a detainee as soon as reasonably practicable, in accordance with their statutory obligations, even though removal is not currently practicable, and is not likely to become practicable in the foreseeable future. They may have such a purpose for years. They may have it for the whole of a detainee's life.
The legislation operates, with reference to the appellant, upon the combined effect of two imperatives. He must be removed from Australia as soon as reasonably practicable. And he must be detained until he is so removed. The first imperative is compound in its nature. It assumes the possibility of removal. It requires, not merely removal, but removal as soon as reasonably practicable. The second imperative, which builds upon the first, is, in terms, unqualified. As a matter of ordinary language, it is open to the construction that, because of its textual relationship to the first imperative, it is subject to a cognate qualification. This is supported by the purposive nature of the power (and duty) of administrative detention. The primary purpose of the appellant's detention, after the completion of the process of examining his application for a visa and after his request that he be removed, was to facilitate his removal. A secondary purpose may well have been to prevent his entry into the Australian community in the meantime. The primary purpose, however, is plain. The purpose is objective. What is in question is the purpose of the detention, not the motives or intention of the Minister, or the officers referred to in s 198.
If the second imperative is qualified by its relationship with the first imperative, another question follows as to the precise extent of the qualification. Although the non-citizens referred to in s 196 will possess a variety of personal characteristics, some of which, in a discretionary system, may justify prolonged detention, they all have one thing in common. They are "unlawful". That means they do not have permission to enter, or remain in, Australia. That is their status under the Act, whether in or out of immigration detention. And, in the case of the appellant, a time may come where his removal, by reason of a change in international circumstances, is reasonably practicable. It cannot be said that it will never be reasonably practicable to remove him. The primary purpose of his detention is in suspense, but it has not been made permanently unattainable. The Act makes no express provision for suspension, and possible revival, of the obligation imposed by s 196, according to the practicability of effecting removal under s 198. Similarly, it makes no express provision for indefinite, or permanent, detention in a case where the assumption underlying s 198 (the reasonable practicability of removal) is false. In resolving questions raised by the legislative silence, resort can, and should, be had to a fundamental principle of interpretation.
Where what is involved is the interpretation of legislation said to confer upon the Executive a power of administrative detention that is indefinite in duration, and that may be permanent, there comes into play a principle of legality, which governs both Parliament and the courts. In exercising their judicial function, courts seek to give effect to the will of Parliament by declaring the meaning of what Parliament has enacted. 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, which indicates that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment. That principle has been re-affirmed by this Court in recent cases[10]. It is not new. In 1908, in this Court, O'Connor J referred to a passage from the fourth edition of Maxwell on Statutes which stated that "[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"[11].
[10]Coco v The Queen (1994) 179 CLR 427; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 492 [30].
[11]Potter v Minahan (1908) 7 CLR 277 at 304. See also R v Secretary of State for the Home Department; Ex parte Pierson [1998] AC 539 at 587-589 per Lord Steyn; R v Secretary of State for the Home Department;Ex parte Simms [2000] 2 AC 115 at 131 per Lord Hoffmann.
A statement concerning the improbability that Parliament would abrogate fundamental rights by the use of general or ambiguous words is not a factual prediction, capable of being verified or falsified by a survey of public opinion. In a free society, under the rule of law, it is an expression of a legal value, respected by the courts, and acknowledged by the courts to be respected by Parliament.
It is submitted for the respondents that the terms of the statute are general, but tolerably clear, and that if there is a silence on the particular problem raised by the case of the appellant, that is only because it is sufficiently covered by the general words. I am unable to accept that submission. The Act provides that the appellant must be kept in detention until he is removed from Australia under s 198, and s 198 provides that he must be removed as soon as reasonably practicable. The Act does not say what is to happen if, through no fault of his own or of the authorities, he cannot be removed. It does not, in its terms, deal with that possibility. The possibility that a person, regardless of personal circumstances, regardless of whether he or she is a danger to the community, and regardless of whether he or she might abscond, can be subjected to indefinite, and perhaps permanent, administrative detention is not one to be dealt with by implication.
In s 196, the period of detention of the appellant is defined by reference to the fulfilment of the purpose of removal under s 198. If that purpose cannot be fulfilled, the choice lies between treating the detention as suspended, or as indefinite. In making that choice I am influenced by the general principle of interpretation stated above. I am also influenced by the consideration that the detention in question is mandatory, not discretionary. In a case of uncertainty, I would find it easier to discern a legislative intention to confer a power of indefinite administrative detention if the power were coupled with a discretion enabling its operation to be related to the circumstances of individual cases, including, in particular, danger to the community and likelihood of absconding. The absence of any reference to such considerations, to my mind, reinforces the assumption that the purpose reflected in s 196 (removal) is capable of fulfilment, and supports a conclusion that the mandated detention is tied to the validity of that assumption.
If I am correct in saying that, in the case of the appellant, the invalidation of the assumption in s 198 suspends, but does not forever displace, the obligation imposed by s 196, there then arises the question of the nature of the relief to which a person in the position of the appellant is entitled. In the course of argument in this Court, a question was raised as to the practice, adopted by some members of the Federal Court (such as Merkel J[12] and the Full Court in Al Masri, and Mansfield J on an interlocutory basis in the present case), of making an order for the release from detention but imposing conditions, such as notification of change of address, and reporting, designed to secure availability for detention and removal if and when removal becomes reasonably practicable.
[12]Al Masri v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 192 ALR 609.
The appellant sought a declaration that he was unlawfully detained and an order in the nature of habeas corpus directing his release from detention. The reference to "an order in the nature of habeas corpus" may reflect a division of opinion in the Full Federal Court in Ruddock v Vadarlis[13] as to whether, under s 23 of the Federal Court of Australia Act 1976 (Cth), read with s 39B of the Judiciary Act 1903 (Cth), the Federal Court has power to issue a writ of habeas corpus or to make an order in the nature of habeas corpus. That question was not argued before this Court, and nothing turns on it in the present appeal. Even if the power is best described as a power to make an order in the nature of habeas corpus, that is what was sought. Furthermore, on the matter of making orders on conditions, s 22 of the Federal Court of Australia Act is to be noted.
[13](2001) 110 FCR 491 at 509-514 per Black CJ, 517-518 per Beaumont J, 546-548 per French J.
The remedy of habeas corpus, or an order in the nature of habeas corpus, is a basic protection of liberty, and its scope is broad and flexible. "This, the greatest and oldest of all the prerogative writs, is quite capable of adapting itself to the circumstances of the times."[14]
[14]R v Secretary of State for the Home Department; Ex parte Muboyayi [1992] QB 244 at 258 per Lord Donaldson of Lymington MR. As to the procedure in habeas corpus applications, see Clark and McCoy, Habeas Corpus: Australia, New Zealand, the South Pacific, (2000) at 200-219, and see also the orders made by this Court in Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 520, 528.
As to the interlocutory orders made by Mansfield J in the present case, it is worth remembering that an order of bail as an interlocutory step in habeas corpus proceedings is not uncommon. Indeed, a proceeding for habeas corpus was once the normal method of applying to the King's Bench for bail[15]. In R v Secretary of State for the Home Department; Ex parte Turkoglu[16], Sir John Donaldson MR, with whom Croom-Johnson and Bingham LJJ agreed, said, in an immigration case, "[c]learly we could grant bail ancillary to or as part of proceedings for habeas corpus". The interlocutory orders in this case were made by consent; it is the power of the Federal Court to impose conditions as part of a final order for release from detention that is presently in question.
[15]Sharpe, The Law of Habeas Corpus, 2nd ed (1989) at 128; In re Kray [1965] Ch 736 at 740.
[16][1988] QB 398 at 399.
As well as being used to obtain bail, habeas corpus proceedings were commonly brought in disputes relating to the custody of children, or matters concerning the mentally ill. In R v Greenhill[17], Lord Denman CJ said:
"When an infant is brought before the Court by habeas corpus, if he be of an age to exercise a choice, the Court leaves him to elect where he will go. If he be not of that age, and a want of direction would only expose him to dangers or seductions, the Court must make an order for his being placed in the proper custody."
Speaking of an order to discharge under habeas corpus a person unlawfully detained as a lunatic, Coleridge J said, in R v Pinder; In re Greenwood[18], that:
"when, on the affidavits, it appears clear that the party confined is in such a state of mind that to set him at large would be dangerous either to the public or himself, it becomes a duty and is within the common law jurisdiction of the Court, or a member of it, to restrain him from his liberty, until the regular and ordinary means can be resorted to of placing him under permanent legal restraint."
It is not antithetical to the nature of habeas corpus for an order to be made upon terms or conditions which relate directly to the circumstances affecting an applicant's right to be released from detention, and reflect temporal or other qualifications upon that right. The author of Antieau, The Practice of Extraordinary Remedies[19] says, of the practice in the United States, that "[c]ourts can release petitioners on condition that they post bonds to act in indicated manners". Reference is made to United States ex rel Chong Mon v Day[20], where, in 1929, a Federal judge ordered the discharge of a petitioner "on his filing bond in the sum of $500, conditioned that he will depart from the United States as a seaman on a foreign bound vessel within 30 days from the date of his release".
[17](1836) 4 Ad & E 624 at 640 [111 ER 922 at 927].
[18](1855) 24 LJQB 148 at 152.
[19](1987), vol 1 at 41.
[20]36 F 2d 278 at 279 (1929).
The power given by s 22 of the Federal Court of Australia Act, to grant remedies on such terms and conditions as the Court thinks just, so that, as far as possible, all matters in contention between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters avoided, extends to the imposition of conditions designed to ensure an unlawful non-citizen's availability for removal if and when that becomes reasonably practicable.
A more difficult question, which does not arise in the present case, concerns the power of a court to impose conditions or restraints in the case of a person who is shown to be a danger to the community, or to be likely to abscond. It may be that the reason for difficulty in arranging for the removal of a detainee is that the detainee is regarded by his country of nationality, and other countries, as a dangerous person. Whether that could affect the detainee's right to be released from administrative detention, or the terms and conditions of release, is a matter that could arise for decision in another case.
The appeal should be allowed with costs. I agree with the consequential orders proposed by Gummow J.
McHUGH J. The principal issue in this appeal concerns the power of the Parliament to order the detention of an unlawful non-citizen in circumstances where there is no prospect of him being removed from Australia in the reasonably foreseeable future. There is also an important point of statutory construction involved in the case that is anterior to the principal issue. Hence, the appeal raises two issues. First, do ss 189, 196 and 198 of the Migration Act 1958 (Cth) ("the Act"), when properly construed, purport to authorise the indefinite detention of an unlawful non‑citizen in circumstances where there is no real prospect of removing the non-citizen? Second, if they do purport to authorise such detention, are they invalid because they are beyond the legislative power of the Commonwealth? In my opinion, the first issue should be resolved in the affirmative and the second in the negative. As a result, tragic as the position of the appellant certainly is, his appeal must be dismissed.
The material facts of the case are set out in the judgment of Gummow J. I need not repeat them.
First issue
For the reasons given by Hayne J, ss 189, 196 and 198 of the Act require Mr Al-Kateb to be kept in immigration detention until he is removed from Australia. The words of ss 196 and 198 are unambiguous. They require the indefinite detention of Mr Al-Kateb, notwithstanding that it is unlikely that any country in the reasonably foreseeable future will give him entry to that country. The 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.
Detention under s 196 for the purpose of removal under s 198 will cease to be detention for that purpose only when the detention extends beyond the time when the removal of the non-citizen has become "reasonably practicable". As long as removal of an unlawful non-citizen is not reasonably practicable, ss 196 and 198 require that person's detention to continue until it is reasonably practicable or that person is given a visa. Minimising the time that an unlawful non-citizen must spend in detention was undoubtedly the reason for providing a time limit for removal or deportation. But that does not mean that the detention of an unlawful non-citizen is limited to a maximum period expiring when it is impracticable to remove or deport the person.
The unambiguous language of s 196 – particularly sub-s (3) – indicates that Parliament intends detention to continue until one of the conditions expressly identified therein – removal, deportation or granting of a visa – is satisfied.
Second issue
In Chu Kheng Lim v Minister for Immigration[21], the Court decided that the power conferred on the Parliament by s 51(xix) of the Constitution extends to authorising the executive government to detain an alien in custody for the purpose of expulsion or deportation. It also decided that detention for that purpose does not infringe the provisions of Ch III of the Constitution. The ratio decidendi of the case is expressed in the following passage in the joint judgment of Brennan, Deane and Dawson JJ[22]:
"It can therefore be said that the legislative power conferred by s 51(xix) of the Constitution encompasses the conferral upon the Executive of authority to detain (or to direct the detention of) an alien in custody for the purposes of expulsion or deportation. Such authority to detain an alien in custody, when conferred upon the Executive in the context and for the purposes of an executive power of deportation or expulsion, constitutes an incident of that executive power. By analogy, authority to detain an alien in custody, when conferred in the context and for the purposes of executive powers to receive, investigate and determine an application by that alien for an entry permit and (after determination) to admit or deport, constitutes an incident of those executive powers. Such limited authority to detain an alien in custody can be conferred on the Executive without infringement of Ch III's exclusive vesting of the judicial power of the Commonwealth in the courts which it designates. The reason why that is so is that, to that limited extent, authority to detain in custody is neither punitive in nature nor part of the judicial power of the Commonwealth. When conferred upon the Executive, it takes its character from the executive powers to exclude, admit and deport of which it is an incident."
[21](1992) 176 CLR 1.
[22](1992) 176 CLR 1 at 32.
This passage does not mean that the power to detain pending deportation is an incidental constitutional power, that is, a power that is merely incidental to the aliens power.
Incidental powers, unlike true heads of s 51 power, operate in a space between the powers expressly granted and those not expressly granted to the Parliament. Incidental powers may only be exercised where they are reasonably necessary to facilitate the making of laws with respect to the head of power of which they are an incident. In a Constitution that grants limited powers to the federal legislature, they are, in a sense, additional to what was granted. Their connection with a head of power is closely scrutinised because they involve the acquisition of additional legislative power, not expressly granted to the Commonwealth by the Constitution.
In using the term "incident" in the above passage, however, Brennan, Deane and Dawson JJ were describing an event that occurs in the course of the executive government's authority to deport or expel. They were not speaking of a measure of constitutional power. They were not speaking of a true incidental power, that is, a power that stands outside the head of constitutional power but can be justified because it is necessary to protect or give effect to a constitutional power. The power to detain aliens is not an incidental power. It is not the same as a power to detain a person suspected of carrying a weapon on an overseas flight regulated under the trade and commerce power. Detaining such a person is not trade or commerce. If the Parliament confers power to detain such a suspect, it can only be justified as incidental to the trade and commerce power if it is necessary to protect persons, property or transactions involved in overseas commerce. A law authorising detention of an alien stands in a different category. It is a law with respect to the subject of aliens in the same way as a law requiring aliens to register with a government official is a law with respect to aliens. Such laws are not incidental to the aliens power. They deal with the very subject of aliens. They are at the centre of the power, not at its circumference or outside the power but directly operating on the subject matter of the power.
Significantly in Lim, the joint judgment of Brennan, Deane and Dawson JJ said of the laws in question in that case[23]:
"Their object and operation are, in the words of s 54J, to ensure that 'each non-citizen who is a designated person should be kept in custody until he or she' leaves Australia or is given an entry permit. They constitute, in their entirety, a law or laws with respect to the detention in custody, pending departure or the grant of an entry permit, of the class of 'designated' aliens to which they refer. As a matter of bare characterization, they are, in our view, a law or laws with respect to that class of aliens. As such, they prima facie fall within the scope of the legislative power with respect to 'aliens' conferred by s 51(xix). The question arises whether, nonetheless, their enactment was not authorized by that grant of legislative power by reason of some express or implied restriction or limitation to be found in the Constitution when read as a whole. For the plaintiffs, it is argued that such a restriction or limitation is implicit in Ch III's exclusive vesting of the judicial power of the Commonwealth in the courts which it designates." (emphasis added)
[23](1992) 176 CLR 1 at 26.
In Lim, I said[24] that the power conferred on the Parliament by s 51(xix) is "limited only by the description of the subject matter". In Re Patterson; Ex parte Taylor, I said that "as long as a person falls within the description of 'aliens', the power of the Parliament to make laws affecting that person is unlimited unless the Constitution otherwise prohibits the making of the law"[25]. In Lim, I also said that a law requiring detention of aliens for the purpose of deportation or processing of applications would not cease to be one with respect to aliens even if the detention went beyond what was necessary to effect those objects[26]. That is because any law that has aliens as its subject is a law with respect to aliens.
[24](1992) 176 CLR 1 at 64.
[25](2001) 207 CLR 391 at 424.
[26](1992) 176 CLR 1 at 65-66.
If the power to detain aliens for the purpose of deportation was merely an incidental power, it would be impossible to justify the detention of an alien once it appeared that deportation could not be effected or could not be effected in the foreseeable future. But, as I have pointed out, the power to detain aliens is not a power incidental to the s 51(xix) head of power. It is a law with respect to the subject matter of that power.
The principles expressed in the above passage in the joint judgment of Brennan, Deane and Dawson JJ in Lim do not become inapplicable, therefore, when the alien cannot be deported immediately. The detention of the alien remains a law with respect to the s 51(xix) power.
Nor does the continued detention of a person who cannot be deported immediately infringe Ch III of the Constitution. Chapter III is always infringed where the detention of a person other than by a curial order – whatever the purpose of the detention – is authorised by a law of the Commonwealth and imposes punishment. However, a law authorising detention will not be characterised as imposing punishment if its object is purely protective. Ex hypothesi, a law whose object is purely protective will not have a punitive purpose. That does not mean, however, that a law authorising detention in the absence of a curial order, but whose object is purely protective, cannot infringe Ch III of the Constitution. Even a law whose object is purely protective will infringe Ch III if it prevents the Ch III courts from determining some matter that is a condition precedent to authorising detention.
A law requiring the detention of the alien takes its character from the purpose of the detention. As long as the purpose of the detention is to make the alien available for deportation or to prevent the alien from entering Australia or the Australian community, the detention is non-punitive. The Parliament of the Commonwealth is entitled, in accordance with the power conferred by s 51(xix) and without infringing Ch III of the Constitution, to take such steps as are likely to ensure that unlawful non-citizens do not enter Australia or become part of the Australian community and that they are available for deportation when that becomes practicable. As Latham CJ pointed out in O'Keefe v Calwell[27]:
"Deportation is not necessarily punishment for an offence. The Government of a country may prevent aliens entering, or may deport aliens ... Exclusion in such a case is not a punishment for any offence. Neither is deportation ... The deportation of an unwanted immigrant (who could have been excluded altogether without any infringement of right) is an act of the same character: it is a measure of protection of the community from undesired infiltration and is not punishment for any offence." (emphasis added)
[27](1949) 77 CLR 261 at 278.
It is open to the Parliament, therefore, to enact legislation that requires unlawful non-citizens to be detained so as to ensure that they do not enter Australia or the Australian community and can be deported when, and if, it is practicable to do so. To hold that Parliament cannot do so would mean that any person who unlawfully entered Australia and could not be deported to another country could thwart the operation of the Migration Act. It would mean that such persons, by their illegal and unwanted entry, could become de facto Australian citizens unless the Parliament made it a criminal offence with a mandatory sentence for a person to be in Australia as a prohibited immigrant. However, passing such a law is not the only way that the Parliament can achieve the object of keeping unlawful non-citizens from entering the Australian community. If Parliament were forced to achieve its object of preventing entry by enacting such laws, form would triumph over substance. The unlawful non-citizen would still be detained in custody. The only difference between detention under such a law and the present legislation would be that the detention would be the result of a judicial order upon a finding that the person was a prohibited immigrant. In substance, the position under that hypothesis would be no different in terms of liberty from what it is under ss 189, 196 and 198. Under the hypothesis, the only issue for the court would be whether the person was a prohibited immigrant. Under the present legislation, the issue for the courts is whether the person is an unlawful non-citizen. A finding of being a prohibited immigrant or an unlawful non-citizen produces the same result – detention. The only difference is that in one case the detention flows by the court applying the legislation and making an order and in the other it flows from the direct operation of the Act.
I cannot accept that the words "[t]he judicial power of the Commonwealth shall be vested in ... the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction" in s 71 of the Constitution prohibit the Parliament from legislating to require that unlawful non-citizens be detained until they can be deported. By implication, s 71, when read with ss 1 and 61 of the Constitution, prohibits the Parliament of the Commonwealth from exercising the judicial power of the Commonwealth. But to enact legislation that requires the detention of a person who unlawfully enters Australia until he or she is deported from Australia is not an exercise by the Parliament of the judicial power of the Commonwealth. It is no more an exercise of judicial power than is a law requiring enemy prisoners-of-war to be detained in custody until they are deported from Australia[28].
[28]See later in these reasons at [55]-[61].
Nothing in ss 189, 196 or 198 purports to prevent courts, exercising federal jurisdiction, from examining any condition precedent to the detention of unlawful non-citizens. Nor is it possible to hold that detention of unlawful non-citizens – even where their deportation is not achievable – cannot be reasonably regarded as effectuating the purpose of preventing them from entering Australia or entering or remaining in the Australian community. Indeed, detention is the surest way of achieving that object. If the Parliament of the Commonwealth enacts laws that direct the executive government to detain unlawful non-citizens in circumstances that prevent them from having contact with members of or removing them from the Australian community, nothing in the Constitution – including Ch III – prevents the Parliament doing so. For such laws, the Parliament and those who introduce them must answer to the electors, to the international bodies who supervise human rights treaties to which Australia is a party and to history. Whatever criticism some – maybe a great many – Australians make of such laws, their constitutionality is not open to doubt.
Nothing in the reasoning or the decision in Lim assists Mr Al-Kateb. In their joint judgment, Brennan, Deane and Dawson JJ said that laws detaining unlawful non-citizens pending deportation "will be valid laws if the detention which they require and authorize 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"[29]. Their Honours went on to say that, "if the detention which [the impugned laws] require and authorize is not so limited ... 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 which it designates"[30]. In Lim, I said that, if "a law authorizing the 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"[31]. Neither of these passages was directed to a case like the present where the detention prevents the unlawful non‑citizen from entering the Australian community although deportation is not feasible in the reasonably foreseeable future. Neither passage was directed to a case where indefinite detention is necessary to prevent a person from entering Australia or the Australian community.
[29](1992) 176 CLR 1 at 33.
[30](1992) 176 CLR 1 at 33.
[31](1992) 176 CLR 1 at 65.
Nor does the Communist Party Case[32], to which Kirby J refers, assist Mr Al-Kateb. In that case, this Court held that the law in question was not supported by s 51(xxxix) ("the incidental power") in conjunction with s 61 ("the executive power") of the Constitution or s 51(vi) ("the defence power") of the Constitution. The Communist Party Case had nothing to do with aliens, and no Justice found that the law infringed Ch III of the Constitution. Latham CJ, who dissented and upheld the validity of the law, expressly held that it did not contravene Ch III of the Constitution[33].
[32]Australian Communist Party v The Commonwealth (1951) 83 CLR 1.
[33](1951) 83 CLR 1 at 170-173.
Nor does it assist Mr Al-Kateb's case to assert that this Court "should be no less defensive of personal liberty in Australia than the courts of the United States[34], the United Kingdom[35] and the Privy Council for Hong Kong[36] have been, all of which have withheld from the Executive a power of unlimited detention"[37]. None of those cases was concerned with the question whether, by enacting laws similar to ss 189, 196 and 198, the legislature was exercising "the judicial power of the Commonwealth" or for that matter "judicial power".
[34]Zadvydas v Davis 533 US 678 (2001).
[35]R v Governor of Durham Prison; Ex parte Hardial Singh [1984] 1 WLR 704; [1984] 1 All ER 983.
[36]Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97.
[37]Reasons of Kirby J at [149].
Zadvydas v Davis[38], to which Kirby J refers, was not concerned with the exercise of judicial power. In Zadvydas, the Supreme Court of the United States held that, as a matter of construction, the statute in question did not provide for the indefinite detention of an alien who had entered the country unlawfully. The Supreme Court said that a law "permitting indefinite detention of an alien would raise a serious constitutional problem"[39]. That was because under the United States Constitution, "the Due Process Clause applies to all 'persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent"[40]. Consequently, in accordance with United States doctrine, the Court had to "ascertain whether a construction of the statute is fairly possible by which the question [of constitutionality] may be avoided"[41]. The Court found that the statute in question could be fairly construed as not requiring indefinite detention of an alien. Although Zadvydas was not concerned with judicial power, it is significant that the Court said: "we assume that [the proceedings to deport] are nonpunitive in purpose and effect"[42].
[38]533 US 678 (2001).
[39]533 US 678 at 690 (2001).
[40]533 US 678 at 693 (2001).
[41]533 US 678 at 689 (2001).
[42]533 US 678 at 690 (2001).
R v Governor of Durham Prison; Ex parte Hardial Singh[43], to which Kirby J refers, was also concerned with an issue of statutory construction, and not the exercise of judicial power. Woolf J held in that case that the power of detention given by a paragraph in a schedule to the relevant Act was limited to such period of time as was reasonably necessary to carry out the process of deportation. His Lordship also held that the Secretary of State should not exercise the power of detention unless the person involved could be deported within a reasonable time.
[43][1984] 1 WLR 704; [1984] 1 All ER 983.
Tan Te Lam v Superintendent of Tai A Chau Detention Centre[44], to which Kirby J refers, also concerned a question of statutory construction. The Privy Council held that, where a statute had given the executive government power to detain persons pending their removal from the country, it was implied, unless the statute provided otherwise, that the power could only be exercised during such period as was reasonably necessary to effect removal. If removal was not possible within a reasonable time, further detention was not authorised. The case was not concerned with a constitutional issue or whether legislation authorising the executive government to detain an alien involved the exercise of judicial power.
[44][1997] AC 97.
It is not true, as Kirby J asserts, that "indefinite detention at the will of the Executive, and according to its opinions, actions and judgments, is alien to Australia's constitutional arrangements"[45]. During the First and Second World Wars, the National Security Regulations authorised the detention of persons who, in the opinion of the executive government, were disloyal or a threat to the security of the country. Many persons born in Germany were detained under these Regulations in both wars, while many persons born in Italy were detained under the relevant regulation during the Second World War. However, detention was not confined to those born in the countries with which Australia was at war. As the detention of members of the Australia First Movement demonstrates, foreign birth was not a necessary condition of detention. P R Stephensen, one of the leaders of that Movement, was detained for almost three and a half years[46].
[45]Reasons of Kirby J at [146].
[46]Crockett, Evatt: A Life, (1993) at 121-125.
During the First World War, reg 55(1) of the War Precautions Regulations 1915 (Cth) provided that where the Minister for Defence
"has reason to believe that any naturalized person is disaffected or disloyal, he may, by warrant under his hand, order him to be detained in military custody in such place as he thinks fit during the continuance of the present state of war".
The validity of that regulation was upheld by this Court in Lloyd v Wallach[47]. The Court unanimously held that the regulation was validly made under the War Precautions Act 1914 (Cth) which was enacted under the defence power. No member of the Court suggested that the regulation infringed Ch III of the Constitution.
[47](1915) 20 CLR 299.
During the Second World War, reg 26 of the National Security (General) Regulations 1939 (Cth) provided:
"The Minister may if satisfied with respect to any particular person that with a view to prevent that person acting in any manner prejudicial to the public safety or the defence of the Commonwealth it is necessary to do so make an order ... directing that he be detained in such place and under such conditions as the Minister from time to time determines ..."
This Court unanimously upheld the validity of the regulation in Ex parte Walsh[48]. Starke J said that the application for habeas corpus was "hopeless"[49]. In Little v The Commonwealth[50], Dixon J held that an order of the Minister under this regulation was not examinable upon any ground other than bad faith.
[48][1942] ALR 359.
[49][1942] ALR 359 at 360.
[50](1947) 75 CLR 94.
During the greater part of the period when reg 26 was in force, the relevant Minister was Dr H V Evatt, who had been a Justice of this Court and was later to become President of the United Nations General Assembly. According to a speech he gave in Parliament on 19 July 1944, 6174 persons were detained under this regulation at the time when he became the Minister and 1180 persons were still detained under the regulation in July 1944[51]. He does not appear to have thought that, in making orders under reg 26, he was acting in breach of Ch III of the Constitution.
[51]Crockett, Evatt: A Life, (1993) at 126.
Nor am I aware of anybody else suggesting that detention under these Regulations infringed Ch III of the Constitution. The purpose of the detention was not punitive but protective. I see no reason to think that this Court would strike down similar regulations if Australia was again at war in circumstances similar to those of 1914-1918 and 1939-1945.
Finally, contrary to the view of Kirby J, courts cannot read the Constitution by reference to the provisions of international law that have become accepted since the Constitution was enacted in 1900. Rules of international law at that date might in some cases throw some light on the meaning of a constitutional provision. Interpretation of the term "aliens" by reference to the jus soli or jus sanguinis is an example. But rules of international law that have come into existence since 1900 are in a different category.
The claim that the Constitution should be read consistently with the rules of international law has been decisively rejected by members of this Court on several occasions. As a matter of constitutional doctrine, it must be regarded as heretical. In Polites v The Commonwealth, the Court accepted that, so far as the language of a statute permits, it should be interpreted and applied in conformity with the established rules of international law[52]. That is a rule of construction of long standing. The rationale for the rule is that the legislature is taken not to have intended to legislate in violation of the rules of international law existing when the legislation was enacted[53]. Accordingly, the law is construed as containing an implication to that effect. But, as Polites decided, the implication must give way where the words of the statute are inconsistent with the implication. No doubt the rule of construction had some validity when the rules of international law were few and well-known. Under modern conditions, however, this rule of construction is based on a fiction. Gone are the days when the rules of international law were to be found in the writings of a few well-known jurists.
[52](1945) 70 CLR 60 at 68-69, 77, 80-81.
[53]Garland v British Rail Engineering Ltd [1983] 2 AC 751 at 771; Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287.
Under Art 38 of the Statute of the International Court of Justice[54], international law includes: (1) international conventions establishing rules recognised by contesting states, (2) international custom, as evidence of a general practice accepted as law and (3) the general principles of law recognised by civilised nations. International custom may be based on
"diplomatic correspondence, policy statements, press releases, the opinions of official legal advisers, official manuals on legal questions ... executive decisions and practices, orders to naval forces etc, comments by governments on drafts produced by the International Law Commission, state legislation, international and national judicial decisions, recitals in treaties and other international instruments, a pattern of treaties in the same form, the practice of international organs, and resolutions relating to legal questions in the United Nations General Assembly."[55]
[54]Statute of the International Court of Justice, done at San Francisco, 26 June 1945.
[55]Brownlie, Principles of Public International Law, 6th ed (2003) at 6.
Given the widespread nature of the sources of international law under modern conditions, it is impossible to believe that, when the Parliament now legislates, it has in mind or is even aware of all the rules of international law. Legislators intend their enactments to be given effect according to their natural and ordinary meaning. Most of them would be surprised to find that an enactment had a meaning inconsistent with the meaning they thought it had because of a rule of international law which they did not know and could not find without the assistance of a lawyer specialising in international law or, in the case of a treaty, by reference to the proceedings of the Joint Standing Committee on Treaties. In Minister for Immigration and Ethnic Affairs v Teoh, counsel for the Minister told this Court that Australia was "a party to about 900 treaties"[56]. When one adds to the rules contained in those treaties, the general principles of law recognised by civilised nations and the rules derived from international custom, it becomes obvious 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. Be that as it may, the rule of construction recognised in Polites was reaffirmed by this Court in Teoh[57] and by Gummow and Hayne JJ in Kartinyeri v The Commonwealth[58]. It is too well established to be repealed now by judicial decision.
[56](1995) 183 CLR 273 at 316 (emphasis added).
[57](1995) 183 CLR 273 at 287.
[58](1998) 195 CLR 337 at 384 [97].
However, this Court has never accepted that the Constitution contains an implication to the effect that it should be construed to conform with the rules of international law. The rationale for the rule and its operation is inapplicable to a Constitution – which is a source of, not an exercise of, legislative power. The rule, where applicable, operates as a statutory implication. But the legislature is not bound by the implication. It may legislate in disregard of it. If the rule were applicable to a Constitution, it would operate as a restraint on the grants of power conferred. The Parliament would not be able to legislate in disregard of the implication. In Polites, Dixon J, after accepting that the implication applied in relation to statutes, said[59]:
"The contention that s 51(vi) of the Constitution should be read as subject to the same implication, in my opinion, ought not to be countenanced. The purpose of Pt V of Ch I of the Constitution is to confer upon an autonomous government plenary legislative power over the assigned subjects. Within the matters placed under its authority, the power of the Parliament was intended to be supreme and to construe it down by reference to the presumption is to apply to the establishment of legislative power a rule for the construction of legislation passed in its exercise. It is nothing to the point that the Constitution derives its force from an Imperial enactment. It is none the less a constitution."
[59](1945) 70 CLR 60 at 78. See also at 69 per Latham CJ, 74 per Rich J, 75 per Starke J, 79 per McTiernan J, 82-83 per Williams J.
In Kartinyeri, Gummow and Hayne JJ cited that passage with approval[60]. Their Honours went on to point out that in Horta v The Commonwealth[61] the "judgment of the whole Court affirmed that no provision of the Constitution confines the legislative power with respect to 'External affairs' to the enactment of laws which are consistent with, or which relate to treaties or matters which are consistent with, the requirements of international law"[62]. In Kartinyeri, Gummow and Hayne JJ rejected a submission that in essence "sought to apply a rule for the construction of legislation passed in the exercise of the legislative power to limit the content of the legislative power itself"[63].
[60](1998) 195 CLR 337 at 385 [98].
[61](1994) 181 CLR 183 at 195.
[62](1998) 195 CLR 337 at 385 [99].
[63](1998) 195 CLR 337 at 386 [101].
Most of the rules[64] now recognised as rules of international law are of recent origin. If Australian courts interpreted the Constitution by reference to the rules of international law now in force, they would be amending the Constitution in disregard of the direction in s 128 of the Constitution. Section 128 declares that the Constitution is to be amended only by legislation that is approved by a majority of the States and "a majority of all the electors voting". Attempts to suggest that a rule of international law is merely a factor that can be taken into account in interpreting the Constitution cannot hide the fact that, if that is done, the meaning of the Constitution is changed whenever that rule changes what would otherwise be the result of the case. The point is so obvious that it hardly needs demonstration. But a simple example will suffice to show the true character of what is done if courts take a post-1900 rule of international law into account. Immediately before the rule was recognised, our Constitution had meanings that did not depend on that rule. Either the rule of international law has effect on one or more of those meanings or it has no effect. If it has an effect, its invocation has altered the meaning of the Constitution overnight. As a result, a court that took the rule into account has amended the Constitution without the authority of the people acting under s 128 of the Constitution. It has inserted a new rule into the Constitution. Take this case. The issues are whether ss 189, 196 and 198 are laws with respect to aliens or are exercises by the Parliament and not the federal courts of the judicial power of the Commonwealth. If this Court had to take a rule of international law into account in interpreting those powers, the rule would either confirm what was already inherent in the powers or add to or reduce them. If the international rule is already inherent in the power it is irrelevant. If it is not, its invocation alters the constitutional meaning of "aliens" or "judicial power of the Commonwealth" or both.
[64]The main – perhaps the only – difference between rules and principles is that principles are expressed at a higher level of generality than rules. In the present context, the difference between rules and principles seems a distinction without a difference. The international law provisions most frequently invoked to interpret statutes and Constitutions are Articles in international Conventions, which are more like rules than principles. Does "rule" or "principle" most accurately describe a provision such as Art 26 of the International Covenant on Civil and Political Rights ("All persons are equal before the law and are entitled without any discrimination to the equal protection of the law ...")? Whether described as a rule – which I prefer – or a principle, the effect of such provisions on statutory or constitutional interpretation is the same.
Many constitutional lawyers – probably the great majority of them – now accept that developments inside and outside Australia since 1900 may result in insights concerning the meaning of the Constitution that were not present to earlier generations. Because of those insights, the Constitution may have different meanings from those perceived in earlier times. As Professor Ronald Dworkin has often pointed out, the words of a Constitution consist of more than letters and spaces. They contain propositions. And, because of political, social or economic developments inside and outside Australia, later generations may deduce propositions from the words of the Constitution that earlier generations did not perceive. Windeyer J made that point persuasively in Victoria v The Commonwealth[65]. But that is a very different process from asserting that the Constitution must be read to conform to or so far as possible with the rules of international law. As I earlier pointed out, reading the Constitution up or down to conform to the rules of international law is to make those rules part of the Constitution, contrary to the direction in s 128 that the Constitution is to be amended only in accordance with the referendum process.
[65](1971) 122 CLR 353 at 395-397.
The issue in Polites[66] shows what would be the effect of reading the Constitution to conform with the rules of international law. It was arguably a rule of international law in 1945 that aliens could not be compelled to serve in the military forces of a foreign state in which they happened to be. Whether or not such a rule existed[67], this Court refused to read the constitutional powers with
respect to "defence"[68] and "aliens"[69] as subject to such a rule. If the Court had accepted the argument of the plaintiff in Polites, the international law rule would have become a constitutional rule contrary to s 128 of the Constitution.[66](1945) 70 CLR 60.
[67]See Kartinyeri v The Commonwealth (1998) 195 CLR 337 at 384 (n 199) per Gummow and Hayne JJ:
"The accuracy, at the time, of that perception of customary international law has been disputed, at least as regards aliens who were permanent residents of the conscripting state: Shearer, 'The Relationship Between International Law and Domestic Law' in Opeskin and Rothwell (eds), International Law and Australian Federalism (1997) at 48-49, n 60; O'Connell, International Law, 2nd ed (1970), vol 2 at 703-705."
[68]The Constitution, s 51(vi).
[69]The Constitution, s 51(xix).
Failure to see the difference between taking into account political, social and economic developments since 1900 and taking into account the rules of international law is the error in the approach of those who assert that the Constitution must be read in conformity with or in so far as it can be read conformably with the rules of international law. Rules are specific. If they are taken into account as rules, they amend the Constitution. That conclusion cannot be avoided by asserting that they are simply "context" or elucidating factors. Rules are too specific to do no more than provide insights into the meanings of the constitutional provisions. Either the rule is already inherent in the meaning of the provision or taking it into account alters the meaning of the provision. No doubt from time to time the making or existence of (say) a Convention or its consequences may constitute a general political, social or economic development that helps to elucidate the meaning of a constitutional head of power. But that is different from using the rules in that Convention to control the meaning of a constitutional head of power. Suppose the imposition of tariffs is banned under a World Trade Agreement. If that ban were taken into account – whether as context or otherwise – in interpreting the trade and commerce power[70], it would add a new rule to the Constitution. It would require reading the power to make laws with respect to trade and commerce as subject to the rule that it did not extend to laws that imposed tariffs. Such an approach, in the words of Dixon J, cannot be "countenanced"[71].
[70]The Constitution, s 51(i).
[71]Polites v The Commonwealth (1945) 70 CLR 60 at 78.
It is also erroneous to think that, in Lawrence v Texas[72], the United States Supreme Court adopted the position that Kirby J advocates. All that Kennedy J (delivering the majority decision) did in Lawrence was to rely on a decision of the European Court of Human Rights to rebut the claim made in the earlier United States case of Bowers v Hardwick that private homosexual acts had "been subject to state intervention throughout the history of Western civilization"[73]. Kennedy J said that "the decision is at odds with the premise in Bowers that the claim put forward was insubstantial in our Western civilization"[74]. The Supreme Court did not apply any rule of international law. It used European case law to reject the major premise of Bowers that the Due Process Clause of the US Constitution did not protect private homosexual conduct because such conduct had been condemned "throughout the history of Western civilization". Moreover, reliance on the European decision played only a minor part in the Court's decision.
[72]539 US 558 (2003).
[73]478 US 186 at 196 (1986).
[74]539 US 558 at 573 (2003).
Eminent lawyers who have studied the question firmly believe that the Australian Constitution should contain a Bill of Rights which substantially adopts the rules found in the most important of the international human rights instruments[75]. It is an enduring – and many would say a just – criticism of Australia that it is now one of the few countries in the Western world that does not have a Bill of Rights. But, desirable as a Bill of Rights may be, it is not to be inserted into our Constitution by judicial decisions drawing on international instruments that are not even part of the law of this country. It would be absurd to suggest that the meaning of a grant of power in s 51 of the Constitution can be elucidated by the enactments of the Parliament. Yet those who propose that the Constitution should be read so as to conform with the rules of international law are forced to argue that rules contained in treaties made by the executive government are relevant in interpreting the Constitution. It is hard to accept, for example, that the meaning of the trade and commerce power can be affected by the Australian government entering into multilateral trade agreements. It is even more difficult to accept that the Constitution's meaning is affected by rules created by the agreements and practices of other countries. If that were the case, judges would have to have a "loose-leaf" copy of the Constitution. If Australia is to have a Bill of Rights, it must be done in the constitutional way – hard though its achievement may be – by persuading the people to amend the Constitution by inserting such a Bill.
[75]See, eg, Williams, The Case for an Australian Bill of Rights, (2004).
Conclusion
Under the aliens power, the Parliament is entitled to protect the nation against unwanted entrants by detaining them in custody. As long as the detention is for the purpose of deportation or preventing aliens from entering Australia or the Australian community, the justice or wisdom of the course taken by the Parliament is not examinable in this or any other domestic court. It is not for courts, exercising federal jurisdiction, to determine whether the course taken by Parliament is unjust or contrary to basic human rights. The function of the courts in this context is simply to determine whether the law of the Parliament is within the powers conferred on it by the Constitution. The doctrine of separation of powers does more than prohibit the Parliament and the Executive from exercising the judicial power of the Commonwealth. It prohibits the Ch III courts from amending the Constitution under the guise of interpretation.
Order
The appeal should be dismissed. I agree with the orders proposed by Hayne J.
GUMMOW J. The first and second respondents are officers of the Department administered by the third respondent, the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister"). On the application of the Attorney-General of the Commonwealth under s 40 of the Judiciary Act 1903 (Cth) ("the Judiciary Act"), this Court ordered the removal of the whole of the cause constituted by the appeal by Mr Al‑Kateb then pending in the Federal Court of Australia.
It is that appeal pending in the Federal Court which has been heard in this Court and is the subject of these reasons. This Court is not exercising the appellate jurisdiction conferred by s 73 of the Constitution. The jurisdiction is that of the Federal Court conferred by Pt III Div 2 (ss 24‑30) of the Federal Court of Australia Act 1976 (Cth) ("the Federal Court Act"); Div 2 is headed "Appellate and related Jurisdiction".
The appeal is brought against a decision of the Federal Court (von Doussa J) delivered on 3 April 2003 and dismissing an application by Mr Al‑Kateb brought under s 39B of the Judiciary Act. The principal relief sought on the appeal is a declaration that the appellant is "unlawfully detained" and an order in the nature of habeas corpus directing the Minister to cause the appellant forthwith to be released from immigration detention.
The facts
There is no dispute between the appellant on one side and the Minister and the Attorney-General on the other respecting the relevant facts. The facts may be stated as follows. The appellant arrived in Australia in mid‑December 2000, by vessel, without a passport or Australian visa. He was born in Kuwait on 29 July 1976 and is a Palestinian. He has lived for most of his life in Kuwait, save for a brief period when he resided in Jordan, it would seem illegally. The appellant submitted, and it was not contested, that he is a "stateless person". That term is defined in Art 1 of the Convention relating to the Status of Stateless Persons ("the Stateless Persons Convention")[76] as meaning one "who is not considered as a national by any State under the operation of its law"[77]. Long term residency in Kuwait or birth there did not guarantee to Palestinians citizenship or the right to permanent residence[78].
[76]Done at New York on 28 September 1954, which entered into force for Australia on 13 March 1974: [1974] Australian Treaty Series No 20.
[77]cf Australian Citizenship Act 1948 (Cth), s 23D.
[78]Takkenberg, The Status of Palestinian Refugees in International Law, (1998) at 158‑162.
Statelessness
At the time of the adoption of the Constitution, the phenomenon of "double nationality" was well understood[79], but that of the "stateless person" achieved significance only in the course of the twentieth century[80]. As late as 1916, the House of Lords reserved the question whether "this country will recognize a man as having no nationality" so as to guard "against appearing to assent to such a proposition"[81]. Later developments respecting statelessness are significant for the interpretation of the constitutional term "alien".
[79]Cockburn, Nationality or the Law Relating to Subjects and Aliens, (1869) at 183‑187.
[80]Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 278‑279.
[81]Ex parte Weber [1916] 1 AC 421 at 424 per Lord Buckmaster LC.
Part 2 of the Migration Act 1958 (Cth) ("the Act") (ss 13‑274) is headed "Control of arrival and presence of non‑citizens". This appeal is concerned principally with provisions in Div 7 (ss 188‑197) headed "Detention of unlawful non‑citizens", and Div 8 (ss 198-199) headed "Removal of unlawful non‑citizens".
The appellant answers the statutory description in s 14 of "unlawful non‑citizen"; he is in the migration zone, is not an Australian citizen, and does not hold a visa.
Of s 51(xix), Quick and Garran wrote[82]:
"In English law an alien may be variously defined as a person who owes allegiance to a foreign State, who is born out of the jurisdiction of the Queen, or who is not a British subject."
Later experience, and the appearance of the class of stateless persons, has shown that these various definitions are not interchangeable. The appellant's status as a stateless person takes him outside the meaning given to the term "alien" in the joint judgment of six members of the Court in Nolan v Minister for Immigration and Ethnic Affairs[83]. Their Honours said[84]:
"As a matter of etymology, 'alien', from the Latin alienus through old French, means belonging to another person or place. Used as a descriptive word to describe a person's lack of relationship with a country, the word means, as a matter of ordinary language, 'nothing more than a citizen or subject of a foreign state'[85]."
[82]The Annotated Constitution of the Australian Commonwealth, (1901) at 599.
[83](1988) 165 CLR 178.
[84](1988) 165 CLR 178 at 183.
[85]Milne v Huber 17 Fed Cas 403 at 406 (1843) (US).
On the other hand, in her dissenting judgment in Nolan[86], Gaudron J said that "[f]or most purposes" an alien is to be identified by reference to the absence of that criterion, such as citizenship, which determines membership of the community constituting the body politic of the nation state "from whose perspective the question of alien status is to be determined". That appears to assume a relevant logical universe comprising citizens and aliens, and no others, so that all non‑Australian citizens are aliens in the constitutional sense of the term.
[86](1988) 165 CLR 178 at 189.
In many cases, the distinctions, express or implicit, in previous authorities will be immaterial to the result reached. For example, the applicants in Re Minister for Immigration and Multicultural Affairs; Ex parte Te[87] and the applicant in Shaw v Minister for Immigration and Multicultural Affairs[88] were born outside Australia, with Cambodian or Vietnamese, and British nationality respectively, and to parents who were not Australian citizens. But the appellant here is destitute of any nationality. Does that condition deny him the character of a constitutional "alien"? It is unnecessary to decide that question now, particularly in the absence of full argument. That is because, at all events, and as the respondents submitted, the appellant is within the reach of the immigration power in s 51(xxvii) and laws supported by that power[89].
[87](2002) 212 CLR 162.
[88](2003) 78 ALJR 203; 203 ALR 143.
[89]Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 44‑45.
The history of the legislation
From 1901 to 1994, federal law contained offence provisions respecting unlawful entry and presence in Australia, which was punishable by imprisonment as well as by liability to deportation. The legislation gave rise to various questions of construction which reached this Court[90]. The first of these provisions was made by the Immigration Restriction Act 1901 (Cth) ("the 1901 Act")[91]. Section 7 thereof stated:
"Every prohibited immigrant entering or found within the Commonwealth in contravention or evasion of this Act shall be guilty of an offence against this Act, and shall be liable upon summary conviction to imprisonment for not more than six months, and in addition to or substitution for such imprisonment shall be liable pursuant to any order of the Minister to be deported from the Commonwealth.
Provided that the imprisonment shall cease for the purpose of deportation, or if the offender finds two approved sureties each in the sum of Fifty pounds for his leaving the Commonwealth within one month."
As enacted in 1958, s 27 of the Act continued this pattern. That provision eventually became s 77 of the Act, but this was repealed by s 17 of the Migration Reform Act 1992 (Cth) ("the 1992 Act"). It has not been replaced[92].
[90]See Griffin v Wilson (1935) 52 CLR 260; Chu Shao Hung v The Queen (1953) 87 CLR 575.
[91]The title of the 1901 Act was changed by s 1 of the Immigration Act 1912 (Cth) to the Immigration Act 1901 (Cth). It continued to have that title until its repeal by s 4 of the Migration Act 1958 (Cth).
[92]Section 17 commenced on 1 September 1994.
The legislation has also provided for detention by the executive branch of government and without adjudication of criminal guilt pending deportation and pending determination of status. For example, s 8C of the 1901 Act[93] authorised the keeping in custody, "pending deportation and until he is placed on board a vessel for deportation from Australia", of any person ordered by the Minister to be deported. Similar provisions were construed by this Court in Koon Wing Lau v Calwell[94]. The Court rejected the submission recorded by Latham CJ that they were invalid for permitting "unlimited imprisonment"[95]. The legislation escaped invalidity because it "[did] not create or purport to create a power to keep a deportee in custody for an unlimited period"[96] and, rather, implied a purpose such that "unless within a reasonable time [the deportee] is placed on board a vessel he would be entitled to his discharge on habeas"[97]. These statements are important for the construction of the provisions of the Act relied on to continue the detention of the appellant.
[93]Inserted by s 8 of the Immigration Act 1925 (Cth).
[94](1949) 80 CLR 533.
[95](1949) 80 CLR 533 at 555.
[96](1949) 80 CLR 533 at 556 per Latham CJ.
[97](1949) 80 CLR 533 at 581 per Dixon J. See also at 586‑587 per Williams J.
It is no less important to recognise that the consequences befalling an unlawful non‑citizen whom the Executive cannot quickly remove from Australia fall on that person because otherwise he or she will gain the entry to the Australian community which the Executive has decided should not be granted.
But at its root, the answer made to the contention that the laws now in question contravene Ch III is that they are not punitive. It is necessary to explain why that is so.
"Punishment" and judicial power
Because Immigration Detention Centres are places of confinement having many, if not all, of the physical features and administrative arrangements commonly found in prisons, it is easy to equate confinement in such a place with punishment. It is necessary, however, to notice some further matters.
Punishment exacted in the exercise of judicial power is punishment for identified and articulated wrongdoing. H L A Hart identified the standard or central case of punishment in terms of five elements[315]:
"(i)It must involve pain or other consequences normally considered unpleasant.
(ii)It must be for an offence against legal rules.
(iii)It must be of an actual or supposed offender for his offence.
(iv)It must be intentionally administered by human beings other than the offender.
(v)It must be imposed and administered by an authority constituted by a legal system against which the offence is committed."
That is not to say, of course, that it may not be appropriate to identify treatment of persons as punitive where those persons are not offenders[316]. But punishment is not to be inflicted in exercise of the judicial power except upon proof of commission of an offence.
[315]Hart, Punishment and Responsibility, (1968) at 4-5.
[316]Hart, Punishment and Responsibility, (1968) at 5.
Two features of the immigration detention for which the Migration Act now provides, and which have been identified earlier in these reasons, are then important. First, immigration detention is not detention for an offence. There is now no offence of entering or being found within Australia as a prohibited immigrant. Yet the law permitting detention otherwise than for an offence is a law with respect to a head of power. Secondly, where a non‑citizen has entered or attempted to enter Australia without a visa, detention of that person excludes that person from the community which he or she sought to enter. Only in the most general sense would it be said that preventing a non‑citizen making landfall in Australia is punitive. Segregating those who make landfall, without permission to do so, is not readily seen as bearing a substantially different character. Yet the argument alleging invalidity would suggest that deprivation of freedom will after a time or in some circumstances become punitive.
Only if it is said that there is an immunity from detention does it become right to equate detention with punishment that can validly be exacted only in exercise of the judicial power. Once it is accepted, as it was by all members of the Court in Chu Kheng Lim, that there can be detention of unlawful non‑citizens for some purposes, the argument from the existence of an immunity must accept that the immunity is not unqualified. The argument must then turn to the identification of those qualifications. That must be done by reference to the purpose of the detention. Neither the bare fact of detention nor the effluxion of some predetermined period of time in detention is said to suffice to engage Ch III. And because the purposes must be gleaned from the content of the heads of power which support the law, it is critical to recognise that those heads of power would support a law directed to excluding a non‑citizen from the Australian community, by preventing entry to Australia or, after entry, by segregating that person from the community.
It is essential to confront the contention that, because the time at which detention will end cannot be predicted, its indefinite duration (even, so it is said, for the life of the detainee) is or will become punitive. The answer to that is simple but must be made. If that is the result, it comes about because the non‑citizen came to or remained in this country without permission. The removal of an unlawful non‑citizen from Australia then depends upon the willingness of some other country to receive that person. If the unlawful non‑citizen is stateless, as is Mr Al‑Kateb, there is no nation state which Australia may ask to receive its citizen. And if Australia is unwilling to extend refuge to those who have no country of nationality to which they may look both for protection and a home, the continued exclusion of such persons from the Australian community in accordance with the regime established by the Migration Act does not impinge upon the separation of powers required by the Constitution.
As Judge Learned Hand said in his dissenting opinion in United States v Shaughnessy[317]:
"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."
(The decision of the Second Circuit Court of Appeals, from which Judge Hand dissented, was reversed by the Supreme Court of the United States[318].) To adopt and adapt what Judge Hand said in that case[319]:
"Think what one may of a statute ... when passed by a society which professes to put its faith in [freedom], a court has no warrant for refusing to enforce it. If that society chooses to flinch when its principles are put to the test, courts are not set up to give it derring‑do."
[317]195 F 2d 964 at 971 (2nd Cir 1952).
[318]Shaughnessy v Mezei 345 US 206 (1953).
[319]195 F 2d 964 at 971 (2nd Cir 1952).
The appeal should be dismissed. Consistent with the terms on which the matter was removed into this Court, the Commonwealth should pay the appellant's costs in this Court.
CALLINAN J. This appeal raises a question as to the legality of the appellant's detention in immigration detention for an indefinite period but for the purpose of his deportation. These reasons should be read with the reasons in Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs[320] and Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji[321].
[320][2004] HCA 36.
[321][2004] HCA 38.
Facts
The appellant claims to be a stateless Palestinian born on 29 July 1976 in Kuwait. His parents are Palestinian and he has lived most of his life in Kuwait except for a brief period of residence in Jordan. He arrived in Australia in mid-December 2000. He said that he did not possess a passport. He was placed in immigration detention pursuant to s 189 of the Migration Act 1958 (Cth) ("the Migration Act").
The appellant made an application for a protection visa to the Department of Immigration and Multicultural and Indigenous Affairs ("the Department") on 6 January 2001. On 22 February 2001, a delegate of the Minister for the Department refused the application. The appellant then applied for a review of the decision of the delegate to the Refugee Review Tribunal ("the Tribunal").
The Tribunal affirmed the decision of the delegate. On 6 June 2001, the appellant applied for judicial review of the Tribunal's decision before the Federal Court. The application was dismissed by the Federal Court on 23 October 2001. He then appealed to the Full Court of the Federal Court. That Court dismissed the appeal on 21 May 2002.
On 19 June 2002 the appellant told the Department that he wished to leave Australia and return to Kuwait, or if not there, Gaza. On 30 August 2002, he signed a document addressed to the Minister asking to be removed from Australia as soon as reasonably practicable.
His next recourse to litigation was by proceedings in the Federal Court for judicial review of the continuation of his detention on 8 January 2003. This matter was, with others, heard by Selway J who dismissed the application[322]. An appeal to the Full Court of the Federal Court has been filed but not heard.
[322]SHDB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 30.
The appellant's litigious endeavours were pursued in yet another way. He lodged a further application to the Federal Court on 12 February 2003 seeking a declaration that he was being unlawfully detained, consequential relief by way of habeas corpus, an order in the nature of mandamus directing the first and second respondents, officers of the Department, to remove him from Australia, an order in the nature of mandamus directing the second respondent to make certain inquiries, an order in the nature of prohibition against the third respondent, the Minister, to prohibit the appellant's retention in detention, and an order for costs, on the ground that his detention (from which he has now been released) was unlawful.
On 3 April 2003 the Federal Court (von Doussa J) dismissed the application after hearing evidence from the second respondent. His Honour was not satisfied that the Department was not taking all reasonable steps to secure the removal of the appellant from Australia, although he found that the appellant's removal from Australia was:
"not reasonably practicable at the present time as there is no real likelihood or prospect of removal in the reasonably foreseeable future."
His Honour expressly declined to follow the decision of Merkel J in the case of Al Masri v Minister for Immigration and Multicultural and Indigenous Affairs[323] which subsequently the Full Court of the Federal Court in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri[324] held to be correct.
[323](2002) 192 ALR 609.
[324](2003) 126 FCR 54.
On 17 April 2003 the appellant applied for an interlocutory order for his release from immigration detention on conditions. He was then released from immigration detention pursuant to an interlocutory order of Mansfield J made on that day. The appellant is living in South Australia and is complying with the conditions to which I have referred.
On 23 April 2003, he appealed against the decision of von Doussa J. In July 2003 the appellant was served with a notice under s 40 of the Judiciary Act 1903 (Cth) to remove the appeal against the decision of von Doussa J into this Court.
The matter therefore comes before this Court as an appeal to the Full Court of the Federal Court removed under s 40 of the Judiciary Act to be heard and determined, effectively as an appeal to this Court. It was argued at the same time as Behrooz and Al Khafaji. The cases raise the same or some related questions, although this appellant submits that he is in a superior position because he has the advantage of the finding of von Doussa J to which I have referred as to the slightness in fact of his currently foreseeable prospects of removal.
The appellant pressed this Court to adopt the approach of the United States Supreme Court in Zadvydas v Davis[325] in which the majority, Breyer, Stevens, O'Connor, Souter and Ginsburg JJ, applying the Fifth Amendment[326], held the relevant statute there to be subject to a qualification that it did not permit indefinite detention. The conclusion of the majority is stated in this passage[327]:
"While an argument can be made for confining any presumption to 90 days, we doubt that when Congress shortened the removal period to 90 days in 1996 it believed that all reasonably foreseeable removals could be accomplished in that time. We do have reason to believe, however, that Congress previously doubted the constitutionality of detention for more than six months. … Consequently, for the sake of uniform administration in the federal courts, we recognize that period. After this 6‑month period, once the alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must respond with evidence sufficient to rebut that showing. And for detention to remain reasonable, as the period of prior post-removal confinement grows, what counts as the 'reasonably foreseeable future' conversely would have to shrink. This 6‑month presumption, of course, does not mean that every alien not removed must be released after six months. To the contrary, an alien may be held in confinement until it has been determined that there is no significant likelihood of removal in the reasonably foreseeable future."
[325]533 US 678 (2001).
[326]"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
[327]533 US 678 at 701 (2001).
Not only because of the absence of the complication of a constitutional provision in Australia such as the Fifth Amendment, but also because, in my respectful opinion, they were both more orthodox expressions of constitutional principle and practical reality, I would prefer the opinions of the minority Justices. Scalia J (with whom Thomas J joined) said this[328]:
"Like a criminal alien under final order of removal, an inadmissible alien at the border has no right to be in the United States. … In Shaughnessy v United States ex rel Mezei[329], we upheld potentially indefinite detention of such an inadmissible alien whom the Government was unable to return anywhere else. We said that 'we [did] not think that respondent's continued exclusion deprives him of any statutory or constitutional right.'[330] While four Members of the Court thought that Mezei deserved greater procedural protections (the Attorney General had refused to divulge any information as to why Mezei was being detained[331]), no Justice asserted that Mezei had a substantive constitutional right to release into this country. And Justice Jackson's dissent, joined by Justice Frankfurter, affirmatively asserted the opposite, with no contradiction from the Court: 'Due process does not invest any alien with a right to enter the United States, nor confer on those admitted the right to remain against the national will. Nothing in the Constitution requires admission or sufferance of aliens hostile to our scheme of government.'[332] Insofar as a claimed legal right to release into this country is concerned, an alien under final order of removal stands on an equal footing with an inadmissible alien at the threshold of entry: He has no such right.
...
We are offered no justification why an alien under a valid and final order of removal – which has totally extinguished whatever right to presence in this country he possessed – has any greater due process right to be released into the country than an alien at the border seeking entry. Congress undoubtedly thought that both groups of aliens – inadmissible aliens at the threshold and criminal aliens under final order of removal – could be constitutionally detained on the same terms, since it provided the authority to detain both groups in the very same statutory provision ... Because I believe Mezei controls these cases, and, like the Court, I also see no reason to reconsider Mezei, I find no constitutional impediment to the discretion Congress gave to the Attorney General. Justice Kennedy's dissent explains the clarity of the detention provision, and I see no obstacle to following the statute's plain meaning." (original emphasis)
[328]533 US 678 at 703-705 (2001).
[329]345 US 206 (1953).
[330]345 US 206 at 215 (1953).
[331]345 US 206 at 209 (1953).
[332]345 US 206 at 222-223 (1953) (emphasis added by Scalia J).
Kennedy J, with whom Rehnquist CJ joined, and with whom Scalia J and Thomas J joined as to the second and third of the paragraphs reproduced below, said this[333]:
"The Court says its duty is to avoid a constitutional question. It deems the duty performed by interpreting a statute in obvious disregard of congressional intent; curing the resulting gap by writing a statutory amendment of its own; committing its own grave constitutional error by arrogating to the Judicial Branch the power to summon high officers of the Executive to assess their progress in conducting some of the Nation's most sensitive negotiations with foreign powers; and then likely releasing into our general population at least hundreds of removable or inadmissible aliens who have been found by fair procedures to be flight risks, dangers to the community, or both. Far from avoiding a constitutional question, the Court's ruling causes systemic dislocation in the balance of powers, thus raising serious constitutional concerns not just for the cases at hand but for the Court's own view of its proper authority. Any supposed respect the Court seeks in not reaching the constitutional question is outweighed by the intrusive and erroneous exercise of its own powers. In the guise of judicial restraint the Court ought not to intrude upon the other branches. The constitutional question the statute presents, it must be acknowledged, may be a significant one in some later case; but it ought not to drive us to an incorrect interpretation of the statute. The Court having reached the wrong result for the wrong reason, this respectful dissent is required.
...
The 6-month period invented by the Court, even when modified by its sliding standard of reasonableness for certain repatriation negotiations … makes the statutory purpose to protect the community ineffective. The risk to the community exists whether or not the repatriation negotiations have some end in sight; in fact, when the negotiations end, the risk may be greater. The authority to detain beyond the removal period is to protect the community, not to negotiate the aliens' return. The risk to the community survives repatriation negotiations. To a more limited, but still significant, extent, so does the concern with flight. It is a fact of international diplomacy that governments and their policies change; and if repatriation efforts can be revived, the Attorney General has an interest in ensuring the alien can report so the removal process can begin again.
...
The majority's interpretation, moreover, defeats the very repatriation goal in which it professes such interest. The Court rushes to substitute a judicial judgment for the Executive's discretion and authority. As the Government represents to us, judicial orders requiring release of removable aliens, even on a temporary basis, have the potential to undermine the obvious necessity that the Nation speak with one voice on immigration and foreign affairs matters. … The result of the Court's rule is that, by refusing to accept repatriation of their own nationals, other countries can effect the release of these individuals back into the American community. … If their own nationals are now at large in the United States, the nation of origin may ignore or disclaim responsibility to accept their return. … The interference with sensitive foreign relations becomes even more acute where hostility or tension characterizes the relationship, for other countries can use the fact of judicially mandated release to their strategic advantage, refusing the return of their nationals to force dangerous aliens upon us. One of the more alarming aspects of the Court's new venture into foreign affairs management is the suggestion that the district court can expand or contract the reasonable period of detention based on its own assessment of the course of negotiations with foreign powers. The Court says it will allow the Executive to perform its duties on its own for six months; after that, foreign relations go into judicially supervised receivership."
[333]533 US 678 at 705-712 (2001).
It follows that I would reject the submission of the appellant that this Court should regard the period of 273 days referred to in s 182 of the Migration Act and discussed in Chu Kheng Lim v Minister for Immigration[334], or any other arbitrarily fixed period, in the same way as the majority in the Supreme Court of the United States did six months, in Zadvydas, as the outer limit of any reasonable period of detention for the purposes of deportation.
[334](1992) 176 CLR 1.
It was not, and could not be contested that detention for purposes other than punitive ones has been traditionally constitutionally acceptable. Lim[335] itself acknowledges that. Examples are arrest and detention pending trial, detention of the mentally ill or infectiously diseased, and for the welfare and protection of persons endangered for various reasons. Here the appellant accepts that the power to detain exists in respect of him but contends that it cannot be exercised for too long, indefinitely, or indeed unless the respondents can demonstrate that within some relatively brief period, a country which will receive him has been, or will be found. Whatever may be said about its limits, the existence of the power to detain was not and could not be denied[336].
[335](1992) 176 CLR 1 at 25-26.
[336]Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1. See also Kruger v The Commonwealth (1997) 190 CLR 1 at 162 per Gummow J.
Koon Wing Lau v Calwell[337] was also referred to by the appellant in argument, especially the passage in which Dixon J, after referring to "purpose [of detention]" said that "unless within a reasonable time [the detainee] is placed on board a vessel he would be entitled to his discharge on habeas."[338] There, his Honour was not discussing the ambit of the constitutional power with respect to aliens but was construing the language of the enactment as it was at that time. The statement was also made in an entirely different situation, in which immediate deportation was feasible.
[337](1949) 80 CLR 533.
[338](1949) 80 CLR 533 at 581.
I do not need to decide, but would not necessarily accept that detention for the purpose of deporting an alien is the only purpose which may be effected under the aliens power. It may be the case that detention for the purpose of preventing aliens from entering the general community, working, or otherwise enjoying the benefits that Australian citizens enjoy is constitutionally acceptable. If it were otherwise, aliens having exhausted their rights to seek and obtain protection as non-citizens would be able to become de facto citizens. It is also important to keep in mind the related fact that the appellant, having been shown not to qualify as a refugee, has no particular rights under the United Nations Convention relating to the Status of Refugees except perhaps under Art 32(1)[339], and only then to the extent if any that s 36 of the Act does not provide otherwise, and the relevant person is lawfully present. Another practical consideration is that by their manner of entry[340], repetitive unsuccessful applications and litigation founded on unsubstantiated claims, or, if and when it occurs, escape from immigration detention, some aliens may attract so much notoriety that other countries will hesitate or refuse to receive them. In those ways they may personally create the conditions compelling their detention for prolonged periods. And, so far as conditions are concerned, aliens entering this country should be taken to know and accept, to adopt the language of Griffith CJ in Robtelmes v Brenan[341], "as a term of … admission to [it]" that restraint to the extent necessary to enable deportation to be effected as and when it can be, may be imposed upon them if they are not qualified for refugee status.
[339]"The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order."
[340]For example, by using false papers or making false statements, an offence under s 234 of the Migration Act.
[341](1906) 4 CLR 395 at 406-407.
Sections 196(1) and 198 of the Act in particular are not expressed in unqualified language. The latter requires the relevant official to remove as soon as reasonably practicable. It does not follow that the presence of Ch III in the Constitution produces the result that a court must or may examine in every case to which those sections apply, what the chances are of the removal of the alien concerned, and if they are not likely to be realized, and realized within some arbitrary period effectively legislatively fixed by the court, the alien cannot be detained. Such a conclusion is not dictated by Lim. Even if the purpose of deportation appears unlikely to be achievable within a foreseeable period it does not mean that the purpose of detention is not still being sought to be, and cannot be, implemented at some time. Who knows, as Kennedy J in Zadvydas points out[342], what the outcome of sensitive negotiations between governments taking place from time to time may be. So too, conditions and attitudes may change rapidly or unexpectedly in those countries which an alien has left or which may formerly have rejected him or her.
[342]533 US 678 at 708-709 (2001).
Detention of aliens, certainly for the purpose of deportation, clearly falls within the exception traditionally and rightly recognised as being detention otherwise than of a punitive kind[343]. It would only be if the respondents formally and unequivocally abandoned that purpose that the detention could be regarded as being no longer for that purpose. It may be that detention for some other purpose under the aliens or indeed the immigration power would be constitutionally possible, but no question of that arises here[344]. It may be that legislation for detention to deter entry by persons without any valid claims to entry either as a punishment[345] or a deterrent would be permissible, bearing in mind that a penalty imposed as a deterrent or as a disciplinary measure is not always to be regarded as punishment imposable only by a court[346]. Deterrence may be an end in itself unrelated to a criminal sanction or a punishment. Deterrence can, for example, be an end of the law of tort. Another way of viewing the provisions for detention may simply be as "[prescriptions of] the conditions upon which persons may remain ... within [the] Commonwealth" as an aspect of the "power to regulate immigration by Statute."[347]
[343]cf Kruger v The Commonwealth (1997) 190 CLR 1 at 110-111 per Gaudron J.
[344]In the second reading speech for the Migration Amendment (Duration of Detention) Bill 2003 the responsible Minister referred to the serious risk to the country of some aliens within it. He said:
"Such orders mean that a person must be released into the community until such time as the court finally determines their application. The court's final determination of the case can take anywhere between several weeks and several months. Where the person is subsequently unsuccessful, that person must be relocated, redetained and arrangements then made for their removal from Australia. This is a time consuming and costly process and can further delay removal from Australia.
I understand that there have now been some 20 persons released from immigration detention on the basis of interlocutory orders. In the case of more than half of these persons removal action had been commenced, as they are of significant character concern, and the government believes their presence is a serious risk to the Australian community."
Australia, House of Representatives, Parliamentary Debates (Hansard), 18 June 2003 at 16774.
[345]See the discussion by Hayne J of earlier punitive provisions relating to unlawful entrants at [201]-[202].
[346]cf R v White; Ex parte Byrnes (1963) 109 CLR 665 at 670‑671.
[347]See Robtelmes v Brenan (1906) 4 CLR 395 at 415 per Barton J.
On their proper construction the sections under consideration do not give rise to a kind of implied temporal limitation or qualification, or provide a licence to rewrite the statutory language. What has already been said about the difficulties necessarily attendant upon unlawful entry, changing attitudes in other countries, and international negotiations, shows that accurate predictions as to the period of immigration detention are simply not possible. The fact that the time cannot be stated in days or months does not mean that the word "until" in s 196(1) should be read as extending, for example, to "until removal or the expiry of 12 months, whichever first occurs", and nor does it mean that those words should be substituted for "as soon as reasonably practicable".
I return to Koon Wing Lau and Lim. In the former the statutory language did not contain the words "reasonably practicable", an expression which is directed to, and indicates that the legislature has had regard to contemporary realities, that time, perhaps much, and indefinable time may pass between what is intended, and what in practice may happen. That is sufficient to distinguish this case from Koon Wing Lau.
In their joint judgment in Lim, Brennan, Deane and Dawson JJ acknowledged the breadth of the aliens power as well as the lawfulness of detention for purposes other than punitive ones[348]. In particular it was accepted there that the Parliament might make laws reasonably capable of being seen as necessary for the purposes of deportation[349]. The yardstick, and with respect rightly so, was "purpose", the existence, that is the continuing existence of the relevant purpose of deportation. Nothing that was said in relation to the intrusion upon judicial power by the enactment of another provision directed to a different end alters or diminishes that.
[348](1992) 176 CLR 1 at 25-26, 28-29, 33.
[349]Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 33.
The finding that the prospects of this appellant's removal are currently slight does not in my opinion place this appellant in any relevantly special position. Von Doussa J did not indicate, indeed as a practical matter it would probably not be possible for him to do so, what could or should be regarded as a reasonable period in respect of which predictions might safely be made. The fact that deportation may not be imminent, or even that no current prediction as to a date and place of it can be made, does not mean that the purpose of the detention, deportation, has been or should be regarded as abandoned. The sensitivity of international relations, the unsettled political situation in many countries, and the role and capacity of the United Nations, all contribute to the inevitable uncertainties attaching to the identification of national refuges for people who have come to this country unlawfully and who have been shown to be people to whom protection obligations are not owed. I would not import into ss 189 and 198 of the Migration Act an implication that the obligation of an officer to detain an illegal entrant ceases, or may cease, and is not to be enforced simply because it is proving, and may well prove, for some indefinite time, to be difficult to find a country that will receive him. The words "as soon as reasonably practicable" in s 198 of the Migration Act are intended to ensure that all reasonable means are employed to remove an illegal entrant, and not to define a period or event beyond which his detention should be deemed to be unlawful.
The appellant submits that Parliament could not have intended to legislate for indeterminate detention, and argues that support for this proposition is to be found in cases in the United Kingdom such as R v Governor of Durham Prison; Ex parte Hardial Singh[350]. In that case the Court held that there was an implied limitation on a statutory provision allowing detention of aliens for the purposes of removal. If it was not possible to remove the person within a reasonable period, continued detention was not authorised by the legislation. The approach in Hardial Singh was affirmed by the House of Lords in R (Saadi) v Secretary of State for the Home Department[351]. The appellant also cited the decision of the Privy Council in Tan Te Lam v Superintendent of Tai A Chau Detention Centre[352] in which it was held that a statutory power to detain aliens pending removal from Hong Kong was subject to an implied limitation that if removal were not possible within a reasonable time, continuing detention would be unlawful. To the extent that these cases might have application in the different Australian context of an explicit written constitution I would not, with respect, be inclined to adopt them here.
[350][1984] 1 WLR 704; [1984] 1 All ER 983.
[351][2002] 1 WLR 3131; [2002] 4 All ER 785.
[352][1997] AC 97.
The appellant also submits that the intent of Parliament should be interpreted by this Court in a manner that is consistent with Australia's "international obligations": that is, Parliament should be assumed to have intended that any provisions for detention in the Migration Act comply with Art 9 of the International Covenant on Civil and Political Rights which admonishes against "arbitrary detention".
These submissions cannot be accepted. The statutory language is clear and unambiguous. It leaves no room for any implications of the kind found by the House of Lords and the Privy Council. It requires the detention of aliens until such time as they are granted a visa or removed from Australia. There is certainly no basis, in my view, for an implication to the effect that the ability to detain aliens in accordance with the Migration Act is limited to detention for a "reasonable" period. Nor is a presumption, assuming it should be made, against legislation that is contrary to an international obligation, sufficient to displace the clear and unambiguous words of Parliament. It is a matter for the Australian Parliament to determine the basis on which illegal entrants are to be detained. So long as the purpose of detention has not been abandoned, a statutory purpose it may be observed that is clearly within a constitutional head of power, it is the obligation of the courts to ensure that any detention for that purpose is neither obstructed nor frustrated.
The test is not whether the Minister harbours a hope, but whether she continues to have the intention of removing the appellant from the country. General experience may well be, it is not clear whether it is so from the evidence here, that a very great deal of time can elapse before, not only stateless persons, but also others can be removed to another country. But that does not mean that a court is entitled to hold that a person who has no right to enter and reside in the community must be released into it. Nor is it open to a court to hold, in respect of a matter of this kind, that because removal is currently unachievable, it should be treated for all practical purposes as permanently unachievable.
The decision and reasoning of Merkel J in Al Masri should be rejected. Similarly, the reasoning in the other cases in which Al Masri has been adopted or affirmed by the Federal Court is also flawed and should be rejected[353].
[353]See Minister for Immigration and Multicultural and Indigenous Affairs v VFAD (2002) 125 FCR 249.
The fact that the appellant is stateless does not alter the position. A consequence of it is, self-evidently, that it will be difficult to find a country to which he can be removed, but that does not mean that attempts, or an intention to do so may be regarded as abandoned. This country has no greater obligation to receive stateless persons who cannot establish their entitlement to the status of refugee, than others who are not stateless. Under the Migration Act there are not two classes of illegal entrants: those who can be readily and promptly removed from this country because another state is willing to receive them, and others, who, on account of statelessness or otherwise, may not so readily be found another country of residence. Whether statelessness calls for a different treatment, as it may well do for practical and humanitarian reasons, is a matter for the legislature and not for the courts. Nor should the appellant be accorded any special advantages because he has managed illegally to penetrate the borders of this country over those who have sought to, but have been stopped before they could do so.
The appeal should be dismissed. In accordance with the order of this Court on the application to remove the proceedings pursuant to s 40 of the Judiciary Act, the respondents should pay the costs of the appellant in this Court.
HEYDON J. Subject to reserving any decision about whether s 196 should be interpreted in a manner consistent with treaties to which Australia is a party but which have not been incorporated into Australian law by statutory enactment, I agree with the reasons stated by Hayne J for his conclusion that the continued detention of the appellant is not unlawful and for the orders he proposes.
It is therefore not necessary to decide whether, if the appellant's continued detention were unlawful, any conditions could be imposed on his release.