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Matthew Zagor[∗]
In a series of judgments in August and October 2004, the High Court found that the Migration Act 1958 (Cth) ('the Act') unambiguously provides for the indefinite detention of unlawful non-citizens, and that such a law is constitutionally valid.[1] In doing so, a majority on the High Court arguably rewrote the rule book on the operation of Chapter III of the Constitution ('Ch III'), undermining the majority judgment in Chu Kheng Lim v Minister for Immigration in the process.[2]
This case note focuses primarily on Al-Kateb v Godwin.[3] To the extent that they clarify or expand on the reasoning with respect to the operation of Ch III, reference is also made to Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji[4] and Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs[5] which were argued at the same time as Al-Kateb, and to Re Woolley; Ex parte Applicants M276/2003 by their next friend GS,[6] which concerned the administrative detention of non-citizen children.
Al-Kateb tackled what had become known as the Al Masri doctrine, a reference to the decision of Merkel J of the Federal Court which implied a temporal limitation into the power to detain unlawful non-citizens under the Act.[7] Merkel J's decision had caused considerable disquiet and division within the Federal Court, with some judges decrying it as judicial legislation and an illegitimate foray into sensitive negotiations with foreign countries.[8] Nonetheless, a Full Court of the Federal Court unanimously endorsed Merkel J's approach, appealing in the process to fundamental values lying at the heart of our legal system, not least of which is the law's traditional protection against the deprivation of liberty.[9]
The High Court similarly confronted fundamental constitutional arrangements, and was similarly split on the appropriate response, generating in the process some of the more pugnacious and emotive language seen in recent years about the proper role of the Court.
In this sense, the cases are significant not only for reflecting different approaches to statutory construction, the aliens power and the potential protections offered by Ch III — the manifest issues before the Court — but for the broader perspectives of Australia's constitutional arrangements and the control of public power.
This case note pieces together and analyses the main approaches taken in the various judgments to the statutory and constitutional problems before the Court. The thesis of the paper, if it can be briefly stated, is that the majority were inherently informed by a largely unstated assumption about the Court's constitutional role that relies upon an unprecedented deference to the other branches of government, as well as an attitude towards aliens as a category — reflected in the rhetoric of control, exclusion and unlawfulness — that echoes a regrettable part of Australia's constitutional inheritance. By neglecting to state or address these assumptions up-front, and by failing to present a coherent test to stand in the stead of the protection which Lim had promised, the majority's reasoning loses both its moral authority and legal coherency.
The facts in Al-Kateb and Al Khafaji, the two cases dealing directly with indefinite detention, were not in dispute.[10]
Ahmed Al-Kateb was a stateless Palestinian man who arrived in Australia by boat in December 2000 and was taken into immigration detention. After failing in his attempt to be recognised as a refugee, Mr Al-Kateb indicated to the Department of Immigration that he wished to return to Kuwait, 'and if you cannot please send me to Gaza'.[11] Attempts by the Department to remove Mr Al-Kateb to Egypt, Gaza, Jordan, Kuwait, Syria or the Palestinian territories were unsuccessful, and in March 2003 he approached the Federal Court seeking inter alia a declaration that he was being unlawfully detained and consequential relief by way of habeas corpus.[12] While von Doussa J found that removal from Australia was 'not reasonably practicable … as there is no real likelihood or prospect of removal in the reasonably foreseeable future,' his Honour declined to follow Merkel J's decision in Al Masri and refused to order Mr Al-Kateb's release. Within a few weeks, a Full Court of the Federal Court unanimously confirmed Merkel J's decision, and Mr Al-Kateb was promptly released on an interlocutory basis, pending the hearing of an appeal of von Doussa J's decision. In July 2003 that appeal was removed into the High Court.
Abbas Al Khafaji had similarly arrived in Australia 'without proper travel documents' in January 2000, and was consequently placed in immigration detention.[13] Although his country of origin was technically Iraq, Al Khafaji had spent most of his life in Syria. In considering his protection visa application, a delegate of the Minister accepted that he had a well-founded fear of persecution if he were to return to Iraq, but found that he had 'effective protection' in Syria, including the 'right' to re-enter and reside in Syria without the risk of being forcibly returned to Iraq. The Refugee Review Tribunal affirmed this decision.
What followed was, as Gummow J notes, 'odd, if not paradoxical'.[14] In early 2001, Mr Al Khafaji requested that he be returned to Syria, yet the Department's best efforts to send him to the very country to which it had found he had a 'right' to return were unsuccessful. After examining this evidence in some detail, Mansfield J made a finding of fact that there was nothing to indicate 'any real prospect of [Mr Al Khafaji] being returned to Syria in the reasonably foreseeable future', and that his detention as a result was 'indefinite and … certainly not of short compass'.[15] On 5 November 2002, Mansfield J ordered that the respondent be released from detention forthwith. The Minister appealed to the Full Court, and the appeal was removed into the High Court. It was heard simultaneously with Al-Kateb and Behrooz.
The legislative regime creating a system of mandatory detention is notable for the simplicity of its design, the bluntness of its operation, and its absence of discretion.
Section 189 of the Act provides that, if an officer knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen, the officer must detain the person. An 'unlawful non-citizen' is defined (via ss 13 and 14) as someone who is not an Australian citizen, and who does not hold a visa that is in effect, thus covering a very broad category of persons, including but not exclusive to those who arrive without a visa.
Other provisions of the Act limit immigration detention. Notably, s 196, headed 'Duration of detention', provides that an unlawful non-citizen detained under s 189 'must be kept in immigration detention until' he or she is removed,[16] deported[17] or granted a visa.[18]
Mr Al-Kateb and Mr Al Khafaji had both requested removal in writing under s 198, which relevantly provided at the time that '[a]n officer must remove as soon as reasonably practicable an unlawful non-citizen who asks the Minister, in writing, to be so removed'.
McHugh J neatly summarises the two issues raised by the appeal in Al-Kateb as being whether ss 189, 196 and 198, when properly construed, purport to authorise the indefinite detention of an unlawful non-citizen in circumstances where there is no real prospect of removal, and if they do purport to authorise such detention, whether they are beyond the legislative power of the Commonwealth.[19]
For the purposes of construction, the judges had to consider whether there is any ambiguity such as to allow the operation of certain principles of construction, notably what Gleeson CJ labels (following the English courts) a 'principle of legality' that a court will not impute to the legislature an intention to abrogate or curtail the fundamental right against being deprived of one's liberty absent express words or necessary intendment.
The constitutional question concerned the potential limitations on the exercise of federal legislative power with respect to aliens arising either out of the head of power itself or as a result of the operation of Ch III of the Constitution and the exclusive vesting of federal judicial power in the judiciary. Specifically, the Court was concerned with whether the detention which the Act authorised could be characterised as a form of 'punishment' that can only be imposed by a body invested with and exercising federal judicial power. Addressing this issue required the Court to revisit the tests established, and assumptions made, in the seminal case of Lim.
The majority's approach to construing the Act is represented by Hayne J's reasoning. McHugh J deferred to his approach,[20] as did Heydon J, except with respect to the applicability of international law.[21]
Hayne J noted 'two critical features' of the detention provisions identified by those arguing against their validity. First, detention is for an indeterminate length of time. Secondly, there may be cases where the events upon which detention will cease may not happen, or at least will not happen for a very long time. As his Honour noted, '[i]t is this uncertainty, about whether or when detention will cease, that is said to present issues about proper construction of the provisions, and to engage consideration of Ch III'.[22]
Rather than creating the conditions of ambiguity which would allow the Court to presume the non-abrogation of the right of liberty, Hayne J saw the provisions' inherent uncertainty as necessarily and unambiguously providing for indeterminate detention. His Honour noted that the scheme set up by the Act requires removal to a country[23] and such removal can only be carried out with the co-operation of the receiving country and any countries through which the person must pass. As that co-operation is not always freely made available, '[d]etention will continue until that co-operation is provided'.[24]
This conclusion was also said to arise out of the Act's natural language, notably via the word 'practicable' (in s 198) which qualifies the duty to remove someone — the 'event' (or 'purpose') which ends detention.[25] Removal only becomes 'practicable' once the relevant uncertainty is resolved — once removal is no longer dependent upon the co-operation of persons other than the non-citizen and the relevant officer. 'Until' removal is practicable, the time for performance of the duty to remove does not 'arrive'.[26] And '[s]o long as the time for performance of that duty has not expired, s 196 in terms provides that the non-citizen must be detained.'[27]
Uncertainty also comes into play when Hayne J tackles the minority's key construction argument: that there is an assumption in the legislation that a person can be removed which fails to address the facts before the Court (ie, that removal was unforeseeable). If the 'event' which ends detention cannot occur — cannot become 'practicable' — Hayne J's reasoning would not address the detainees' circumstances.
Clearly influenced by arguments made by the Solicitor-General,[28] Hayne J responded by contesting the view that the assumption was wrong:[29] 'Because there can be no certainty about whether or when the non-citizen will be removed, it cannot be said that the Act proceeds from a premise (that removal will be possible) which can be demonstrated to be false in any particular case.'[30]
Callinan J made a similar statement, albeit not relying upon uncertainty as a predicate,[31] as did McHugh J in Woolley.[32] As a result, the majority concluded that as it cannot be said that removal can never happen, the assumption in the Act that removal will occur is not proven false, and the legislation thereby covered the factual situations before the Court.
Uncertainty thus has a double function.[33] First, it requires that a person be detained until the uncertainty about removal resolves itself. The term 'practicable' specifically imports such a meaning. Furthermore, because of the uncertainty in the achievement of the purpose of removal, the assumption inherent in the legislation that a person can be removed at some point in the future can (almost) never be disproved, regardless of their individual circumstances. There is no ambiguity, only uncertainty. And it matters not if the asylum-seeker is reasonably likely to have died by the time the uncertainty is resolved.
Hayne and Callinan JJ recognised the necessity of distinguishing the 1949 case of Koon Wing Lau v Calwell[34] in which Dixon J had read a temporal limitation into an analogous provision of the War-time Refugees Removal Act 1949 (Cth) providing for the custody of aliens awaiting deportation. As Hayne J noted, Dixon J read this provision to mean that 'a deportee may be held in custody for the purpose of fulfilling the obligation to deport him until he is placed on board the vessel'[35] and that 'unless within a reasonable time [the person to be deported] is placed on board a vessel he would be entitled to his discharge on habeas'.[36]
For Hayne J, the fact that the Act expressly fixed the period of detention by requiring removal 'as soon as reasonably practicable' sufficiently distinguished Calwell, precluding the Court imposing its own 'reasonable time' limitation.[37] Callinan J added to this by noting that immediate deportation was in fact feasible in Calwell.[38] This marries with Hayne J's earlier analysis: it is only possible to read a 'reasonable time' proviso into the legislation once it becomes possible to deport or remove an alien.
With respect to establishing if the purpose of removal had been exhausted, only Callinan J explicitly entered the debate, hotly contested in argument, as to whether this is governed by a subjective or objective test. Picking up on the Solicitor-General's assertion that there is always a 'hope' that a Palestinian state will be created in the future, his Honour went further, asserting that '[t]he test is not whether the Minister harbours a hope, but whether she continues to have the intention of removing the appellant from the country.'[39] As we shall see, this view is informed by his Honour's express deference to the executive that is only implicit in Hayne and McHugh JJ's judgments.
As a result of their finding of an absence of ambiguity, the majority judges were able to disregard arguments relying upon the rule of construction that provisions should be read consistently with Australia's international obligations under human rights law, notably the prohibition against arbitrary detention in Art 9 of the International Covenant on Civil and Political Rights.[40] Yet as each judge commented on the rule and its application, the Court's views cannot be dismissed as inconsequential.
In expressly refusing to endorse Hayne J's uncritical reference to the rule, Heydon J can be taken to object to its current status. And while Callinan J did not directly attack it, his Honour's use of equivocal language to describe the rule reflects a concern not to be seen to endorse it.[41] Only McHugh J mounted a direct assault on its status, asserting that 'under modern conditions' in which the number of sources and instruments of international law are so numerous, the rule has become a fiction. For his Honour, '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'.[42] Despite this, his Honour accepted that the recognition of the rule in Polites v Commonwealth,[43] reaffirmed in Minister for Immigration and Ethnic Affairs v Teoh[44] and Kartinyeri v Commonwealth,[45] precluded it being repealed by judicial decision.
Given this equivocation, it is perhaps surprising that in Woolley his Honour undertook a detailed and sympathetic analysis of the argument that the mandatory detention regime is arbitrary under the ICCPR, albeit conceding that he could not rule on the matter.[46]
Legislative assumptions and their proven falsity in the circumstances of the case were central to the minority's conclusion that the Act did not accommodate the situation before the Court. This is particularly characteristic of the Chief Justice's judgment, which opens by asserting that 'the Act envisages that the detention will come to an end' by the grant of a visa or the removal of the alien.[47] Specifically, the imperative in s 198 to remove a person as soon as reasonably practicable 'assumes the possibility of removal'.[48] And while the period of detention will be finite in the 'ordinary case', the Act does not expressly address the problem of 'exceptional cases' where removal is not likely in the reasonably foreseeable future.[49]
As with Hayne J (and McHugh J in Woolley), the Chief Justice recognised that it can rarely be said that the purpose of removal is unattainable[50] or that it will never become practicable.[51] However, he claimed that where removal is not reasonably practicable, the purpose of detention is 'in suspense'.[52] And while the Act makes no express provision for such suspension, nor does it expressly provide for indefinite or permanent detention in a case where the assumption underlying s 198 is false — in this case, where the appellant, 'through no fault of his own or of the authorities', cannot be removed.[53]
In such legislative silence, the rule of construction (which his Honour here for the first time has described as a 'principle of legality') can come into play:
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.[54]
Applying this test, his Honour concluded that '[t]he 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.'[55] The fact that the detention is mandatory rather than discretionary further supported his Honour's choice to treat the detention as suspended, rather than indefinite, his Honour noting that he 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'.[56]
Gummow J was similarly keen to focus on assumptions and the purposive nature of detention. Expressly relying on Dixon J's approach in Calwell, his Honour asserted not only that the construction in the current case 'should allow for what was said in Calwell concerning the duration of purposive powers such as those involved here',[57] but that the case also provided guidance on the appropriate constitutional role of the Court. Notably, a Court should be slow to interpret purposive powers such that validity is dependent upon the view of the executive.[58]
Consistent with this context, his Honour formulated the principle of interpretation at play in a manner somewhat different from Gleeson CJ, focusing on the appropriate judicial attitude rather than a presumed parliamentary intention:
[I]t is important to eschew, if a construction doing so is reasonably open, a reading of the legislation which recognises a power to keep a detainee in custody for an unlimited time. That reluctance is evident in the construction given the legislation in Calwell. Rather, temporal limits are linked to the purposive nature of the detention requirement in the legislation.[59]
It was then relatively easy to construe the statute. First, his Honour identified a host of temporal elements in the relevant provisions, including the words 'until', 'removed', 'under' (which indicated an element of process), 'as soon as', 'practicable' and 'reasonably'.[60] His Honour then tied these temporal elements to a discussion of the purpose of removal, and the underlying legislative assumptions: if the appellant cannot be removed and 'as a matter of reasonable practicability is unlikely to be removed', s 198 no longer retains a present purpose of facilitating reasonably prospective removal — its operation is spent, or at least suspended. As a consequence, the temporal imperative imposed by the word 'until' in s 196 'loses a necessary assumption for its continued operation'.[61]
His Honour concluded by entering the debate about whether a subjective 'hope' will support a purpose:
The point of present importance for the appellant is that the continued detention of this stateless person is not mandated by the hope of the Minister, triumphing over present experience, that at some future time some other State may be prepared to receive the appellant.[62]
This is a tacit reference to the Solicitor-General's 'never say never' argument that so swayed the majority.[63]
For Hayne J, the 'assumption' in the legislation could not be disproved: as long as there is the possibility of removal, the purpose of detention is not spent. By contrast, for Gummow J such 'hope' must not triumph over the practical reality of 'present experience' — an oblique reference to the finding of fact that removal is currently unforeseeable.[64]
Kirby J was the only judge in the minority to tackle the majority's criticisms of the applicability of international law.[65] For Kirby J, McHugh J's concern about the 'subjective intentions' of Parliament runs counter to the dominant purposive approach to statutory interpretation — an approach which his Honour noted McHugh J has 'greatly influenced'.[66] According to Kirby J, the purposive approach is an 'objective construct' where the meaning of an Act 'is declared by the courts after the application of relevant interpretive principles',[67] one of which is to uphold compliance with international human rights law. This principle, he claimed, applies 'because, as Professor Ian Brownlie has explained, municipal or domestic courts when deciding cases to which international law is relevant, are exercising a form of international jurisdiction'.[68]
Two connected constitutional issues arose in these cases. The first concerned the scope of the aliens power; the second concerned the potential operation of Ch III as a brake on legislative power.[69]
With respect to Ch III, the Court confronted the formulation of the majority judgment in Lim in which Brennan, Deane and Dawson JJ declared that, with certain exceptions, 'the involuntary detention of a citizen in custody by the State is penal or punitive in character and, under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt'.[70] Their Honours described this as 'a constitutional immunity from being imprisoned by Commonwealth authority except pursuant to an order by a court in the exercise of the judicial power of the Commonwealth'.[71] This in turn formed the basis for their finding that provisions for the detention of 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. … [I]f 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.[72]
In the interests of economy, I will refer to the above statement as the 'Lim test'.
For the majority judges, legislation requiring the detention of aliens for the purpose of ensuring their exclusion from the Australian community falls directly within the aliens head of power. Hayne J relied on the 1906 case of Robtelmes v Brenan,[73] noting Griffith CJ's assertion that the aliens power 'must surely, if it includes anything, include the power to determine the conditions under which aliens may be admitted to the country, the conditions under which they may be permitted to remain in the country, and the conditions under which they may be deported from it'.[74] In an oblique reference to the judicial role, his Honour cited Griffith CJ's assertion that 'the Commonwealth Parliament has under that delegation of power authority to make any laws that it may think fit for that purpose; and it is not for the judicial branch of the Government to review their actions, or to consider whether the means that they have adopted are wise or unwise.'[75]
While there are many purposes that will support detention under the aliens power, it is the purpose of 'exclusion' that Hayne J insisted supported the instance of detention before the Court, noting (albeit without citing authority) that
a law which, in its operation, provided that those non-citizens who do not have permission to enter and remain in Australia, but manage to find their way here, are to be excluded from the Australian community by their removal from Australia as soon as reasonably practicable and, if removal is not practicable, their segregation from the community by detention, would fall within power.[76]
As his Honour later acknowledged, this is a broader expression of the power of detention than that implicit in the joint reasons in Lim.[77]
McHugh J similarly endorsed detention for the purpose of exclusion, but not in the context of the characterisation of the head of power. Rather, his Honour was anxious to focus the characterisation debate squarely on the subject matter itself, leaving the purpose of exclusion for his discussion of the operation of Ch III. Consistent with his position in Lim, his Honour thus asserted that 'any law that has aliens as its subject is a law with respect to aliens'.[78]
Shunning a debate about 'purpose' within the context of characterisation may have been intended to avoid any suggestion that the detention legislation is supported by the incidental power and thus subject to a 'reasonable necessity' test — a position potentially open on one reading of the Lim Court's reference to detention being an 'incident' of executive power,[79] and one which McHugh J vigorously rejected.[80] Interestingly, his Honour noted that if there were such a test, it would be impossible to justify the detention of an alien once it appeared that deportation could not be effected in the foreseeable future.[81]
That Hayne J focused upon purpose in the context of characterisation rather than under Ch III might point to a different test than mere legal operation on the head of power. This view is given further weight by his Honour's assertion that it may be 'useful to ask', when considering a law's connection with a particular head of power, whether the law in question is 'appropriate and adapted' or 'reasonably necessary' or 'reasonably capable of being seen as necessary' for particular purposes — tests more often associated with purposive heads of power.[82] However, as his Honour did not explicitly apply these tests, the status of this statement must remain uncertain.
Purpose lay at the heart of the majority's analysis of Ch III and the question of punitive detention. For McHugh J, Ch III will be infringed if a law authorises detention other than by curial order and imposes punishment.[83] However, 'a law authorising detention will not be characterised as imposing punishment if its objective is purely protective'.[84] His Honour's characterisation of this protective purpose was broadly stated: '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.' [85]
Relying upon comments made by Latham CJ in O'Keefe v Calwell that '[t]he Government of a country may prevent aliens from entering, or may deport aliens … Exclusion in such a case is not a punishment for any offence',[86] his Honour concluded his decision with a narrower statement of an exclusionary purpose, connected now to 'deportation' (viz removal):
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.[87]
As noted above, purpose was also the touchstone for Hayne J's approach to Ch III, although his Honour continued to link purpose back to the characterisation of the head of power. He thus expressed his agreement with the Lim test to the extent that it draws a 'distinction' (presumably between punitive and non-punitive laws) which depends upon 'the identification of the purpose of detention'.[88]
Thus far, the reasoning is not inconsistent with Lim insofar as it recognises the capacity for Ch III to protect against punitive legislation. However, almost everything that follows represents a strategic retreat, and the creation of a new, narrower, approach to the operation of Ch III.
For Hayne and McHugh JJ, Lim's fatal flaw is its very predicate — the constitutional immunity which asserts that detention will ordinarily be punitive and therefore an incident of judicial power. Swayed by the Commonwealth's submissions on this point, their Honours purported to follow Gaudron J who, according to Hayne J, 'demonstrated' in Kruger v Commonwealth of Australia[89] that 'the line which their Honours drew in Lim is a line which is difficult to identify with any certainty'.[90] As Hayne J noted:
It is a line which appears to assume that there is only a limited class of cases in which executive detention can be justified. And that assumption is at least open to doubt. But doubtful or not, it is an assumption which turns upon the connection between such detention and the relevant head of power, not upon the identification of detention as a step that can never be taken except in exercise of judicial power. That is why it is important to recognise that once the step is taken, as it was in Chu Kheng Lim, of deciding that mandatory detention of unlawful non-citizens can validly be provided without contravention of Ch III, it is plain that unlawful non-citizens have no general immunity from detention otherwise than by judicial process.[91]
This is a crucial paragraph, arguably tolling the beginning of the end of the majority decision in Lim. Once again, Hayne J's touchstone was the relevant head of power, which allows for detention for certain purposes: Lim confirmed that the aliens power supports the mandatory detention of non-citizens for the purpose of excluding non-citizens from the Australian community and, therefore, even if there is a general immunity, the detention of 'unlawful non-citizens' is an accepted and complete exception to it.
The cooption of the Lim test by the characterisation process and the doubt thrown on the constitutional immunity are themes picked up in Woolley by McHugh J. His Honour had skirted these issues in Al-Kateb, merely noting as an aside that Lim can be distinguished from the situation where the purpose of detention is exclusion, not 'deportation'.[92] As if dissatisfied with the brevity of this answer, his Honour took a more root and branch approach to Lim in Woolley, starting with the constitutional immunity. The reasoning here is based on three main points. First, there is the argument from logic: just because courts punish people by detaining them does not support a conclusion that executive detention is normally punitive.[93] Secondly, and in support of this first point, his Honour emphasised (as did Hayne J in Al-Kateb) the number of 'exceptions' to the rule that detention is normally punitive, are presented as if the categories of exception were not closed.[94] Thirdly, his Honour asserted that it is the object — or purpose — of detention that determines whether a law is punitive in nature, not any a priori proposition.[95]
In making these arguments, McHugh J also attempted to draw upon the recently decided Al-Kateb as authority for his approach to Lim. Noting the endorsement of Gaudron J's approach in Kruger by Hayne J in Al-Kateb and Heydon J's agreement on this point, his Honour concluded that 'the statement of her Honour in Kruger [concerning the constitutional immunity] was correct and the dictum of Brennan, Deane and Dawson JJ in Lim to the contrary should not be followed'.[96]
McHugh J deals with the Lim test of 'reasonably capable of being seen as necessary' more succinctly by noting the alternative approach taken in Al-Kateb (see below) in which the majority (amongst whom Callinan J is included, despite his Honour's apparent application of the test in Woolley itself) declined to apply the test, seeing the validity of detention 'as depending simply on whether its purpose was to impose punishment on the detainee.'[97]
Having discarded the constitutional immunity and thrown doubt on the Lim test, the Court was left with the opportunity to re-write the test for establishing what will be a 'punitive' purpose in the context of administrative detention.
Despite his lengthy treatment of this issue in Woolley, McHugh J's conclusion was merely a revised version of his own 'necessity' test in Lim:
[I]f a law that authorises the imprisonment of an asylum seeker also has the purpose of keeping the detainee in solitary confinement without justification or otherwise has a purpose of subjecting the detainee to cruel and unusual punishment, it would go beyond what was necessary to achieve its non-punitive object.[98]
Hayne J took a more theoretical approach to the topic in Al-Kateb, yet also ended up without a precise formulation. Relying upon the five elements of the 'standard' case of punishment identified by HLA Hart in Punishment and Responsibility,[99] his Honour asserted that 'punishment is not to be inflicted in the exercise of the judicial power except upon proof of commission of an offence'.[100]
This last point is based neither on Hart nor any specific authority, yet was central to the outcome of the cases: while other forms of treatment may amount to punishment, they will not amount to judicial punishment (thereby calling Ch III into play) unless an actual 'offence' has been proven. Hart's other forms of punishment, to which his Honour indirectly refers,[101] are thus irrelevant.
With this narrow definition of punishment, the result was a fait accompli: immigration detention 'is not detention for an offence',[102] nor is preventing a non-citizen making landfall in Australia or segregating those who do so without permission.[103]
His Honour then considered whether deprivation of freedom after a time or in some circumstances will become punitive. In addressing this, his Honour moved away from Hart back towards his touchstone: the head of power supports detention for the purpose of excluding a non-citizen from the Australian community by segregating them, thereby qualifying any constitutional immunity which might conceivably support equating detention with the exercise of judicial power. As a result, '[n]either the bare fact of detention nor the effluxion of some predetermined period of time in detention is said to suffice to engage Ch III.'[104]
Finally, Hayne J concluded his decision by considering whether indefinite detention for life will be punitive. His answer sees him leaving behind even his own touchstone of purpose:
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.[105]
It would appear, therefore, that the 'unlawful' conduct of a detainee is a factor to consider when establishing the non-punitive nature of the detention (but not enough to characterise it as detention for an offence), as is the consequent 'uncertainty' of removal.
Although it preceded his main discussion of punishment, his Honour also stated that the absence of judicial process is an indication that detention is not judicial in nature.[106] Indeed, McHugh J in Woolley considered this to be '[c]entral to his Honour's reasoning'.[107]
In brief, for Hayne J, indefinite detention is non-punitive for a conglomeration of reasons: because no 'offence' has been committed or legislated for, because the detainees are being detained for a non-punitive purpose, because the relevant person came to or remained in this country without permission, because the government is unable to remove them due to extra-jurisdictional factors, and because of the absence of judicial process leading to their detention.
A theme which several judges appear to have discovered in the interval between the handing down of Al-Kateb and Woolley is the distinction between the purpose and effect of detention. For McHugh J
[t]his distinction is a matter of substance not form. It is not enough that the effect of the law is no different from the infliction of punishment. If the effect of the law is not readily distinguishable from the effect of inflicting punishment, a rebuttable inference will arise that the purpose of the law is to inflict punishment. But, in determining whether a law authorises or requires punishment to be inflicted in breach of Ch III of the Constitution, it is the purpose of the law that is decisive.'[108]
On this point, at least, Gummow J is in agreement,[109] as is Callinan J[110] and arguably Gleeson CJ,[111] with only Kirby J voicing a strong alternative view.[112]
While the Al Masri Court found it unnecessary to reach a conclusion on the key Ch III questions before it, Gummow and Kirby JJ were not so reticent. After all, in construing the legislation their Honours had been explicit in their concern to avoid an interpretation of Ch III whereby the executive would be able to define the limits of its own powers.[113] In this sense, their answers to the statutory and constitutional questions before the Court were informed by the same principles and driven by the same concerns.
Gummow J agreed with the majority view that the power of Parliament to authorise the detention of aliens is limited by reference to the purpose of detention, although he stressed that these purposes are 'not at large'.[114] And, as with McHugh J, his Honour expressed a preference for the view that the limitations on purpose arise not as a matter of characterisation of the head of power, but as a result of the operation of the limitations imposed by Ch III.[115]
Where Gummow J differed from other judges was in his view that Ch III limitations respecting administrative detention are 'enlivened' by the law's fundamental concern with the deprivation of liberty,[116] and not upon a purported dichotomy between punitive and non-punitive laws.[117] The coincidence of punitive and non-punitive purposes in several detention regimes, recognised by the Court in cases such as Veen v the Queen [No 2],[118] was presented as a full refutation to the strict punitive/non-punitive dichotomy which, according to his Honour, is 'apt to mislead'.[119]
The law's concern with liberty underpins the 'constitutional immunity' identified in Lim, which his Honour endorsed.[120] Given this perspective, it was unnecessary for his Honour to engage with Hayne J's Hartian analysis of 'punishment' (or McHugh J's concern about logic and categories): the touchstone is not the creation of an 'offence' but the circumstances of the deprivation of liberty.
As a result of this concern with liberty, the purposes of detention are limited constitutionally to those connected with the regulation of an alien's 'entry, investigation, admission or deportation'[121] — what his Honour calls 'categor[ies] of deprivation of liberty'.[122] Segregation from the community is not a purpose that will sustain detention legislation unless it is connected with one of these purposes.[123]
This leads to the final point, emphasised throughout Gummow J's judgment: not only has the Parliament not been given free reign to define the purpose of detention, the executive itself cannot determine its scope. As his Honour asserted in his penultimate paragraph:
The continued viability of the purpose of deportation or expulsion cannot be treated by the legislature as a matter purely for the opinion of the executive government. The reason is that it cannot be for the executive government to determine the placing from time to time of that boundary line which marks off a category of deprivation of liberty from the reach of Ch III. The location of that boundary line itself is a question arising under the Constitution or involving its interpretation, hence the present significance of the Communist Party Case.[124] Nor can there be sustained laws for the segregation by incarceration of aliens without their commission of any offence requiring adjudication, and for a purpose unconnected with the entry, investigation, admission or deportation of aliens. [125]
Kirby J's constitutional deliberations in Al-Kateb occur almost entirely within two interconnected contexts: the constitutional 'fundamentals' which inform the construction of the Act,[126] and the interpretation of the Constitution by reference to 'abiding values' in both the common law and international law.[127]
With respect to the broader constitutional principles at work, his Honour concurred with Gummow J's view of the relationship between the limbs of government (ie, that the judiciary must act as a check on the executive) and the foundational status of the principle of liberty in our constitutional system, similarly taking inspiration from the Communist Party Case.[128] However his Honour seemed less concerned with analysing Ch III in any detail than establishing a particular judicial mindset, one informed and mandated by these same constitutional principles or 'values'. To the extent that he set out a formulation for the practical operation of Ch III, Kirby J maintained the orthodox view that 'punishment is the responsibility of the judiciary', that detention 'can turn into punishment in a comparatively short time', and that the existence and (notably) the 'predominance' of judicial power thereby acts as a limitation on laws providing for indefinite detention.[129]
By focusing on 'punishment' rather than 'deprivation of liberty', Kirby J did not follow Gummow J in moving the debate away from the punitive/non-punitive dichotomy. However, his Honour failed to identify a test for establishing when detention 'turns into' punishment. And while his Honour endorsed a view (expressed by McHugh J in his extra-curial writing)[130] that Ch III protects 'due process' rights, this position is not directly connected to an applicable test.
This omission was partly rectified in Woolley, where Kirby J confronted the majority position (also endorsed by Gleeson CJ and Gummow J) that the effects of detention must be carefully distinguished from the characterisation of a punitive purpose. By contrast, his Honour implied that this would be inconsistent with the appropriate judicial role. Citing Cole v Whitfield,[131] he insisted
[i]t always remains for a court to decide, in case of a contest, whether the character of the law is one that prescribes conduct that is, or may become, punitive. In making that assessment, a court will have regard not only to the claimed or apparent purposes of the law but also the objective effects of the law and its practical operation.[132]
However, this cannot be demonstrated where the negative impacts are of a general nature; it must be proved by reference to the particular parties before the Court. The evidence in Woolley, being of a general nature about the negative impacts of detention upon children as a category, fell short of this test.[133]
Kirby J's reasoning is also significant for his restatement[134] of certain principles of constitutional interpretation — views which have inspired an animated debate between himself and McHugh J, but in which no other judge seems particularly engaged. Thus, for Kirby J both the Constitution and the Act are to be read in light of certain 'abiding values', in particular 'considerations of international law and the common law presumption in favour of personal liberty … and against indefinite detention'.[135] His Honour's defence of the applicability of international legal norms to constitutional interpretation, and McHugh J's vigorous response, will not be analysed in this case note.[136] However it is notable that Kirby J's approach to international law is married with his endorsement of a variety of 'common law constitutionalism' that similarly informs his view of the constitutional role of the Court, an issue to which I will return below.
Although Gleeson CJ's judgment in Al-Kateb was brief on constitutional matters, his Honour's lengthier treatments in Woolley and Behrooz indicate that he sits between the majority and minority. He thus can be taken to have endorsed a view of the aliens power as supporting a power to detain for the purpose of exclusion. And while this purpose was expressed narrowly in Al-Kateb,[137] in Behrooz it manifested itself in broad language that echoed the concerns of the Al-Kateb majority to prevent entry to the 'Australian community'.[138]
His Honour's views on punishment were also more akin to those of the majority. Showing an affinity for Hayne J's approach to judicial punishment, he thus asserted that '[d]etention is mandatory, not discretionary. It is not a form of extra-judicial punishment'.[139] Furthermore, in Woolley his Honour explained that there was nothing in Lim to suggest that detention of aliens for legitimate purposes would 'take on a different character if, in its application to some particular detainees, or some class of detainees [ie minors], it was capable of causing particular hardship'.[140] Although he acknowledged that the term 'punitive' is a 'problematic concept',[141] the 'severity' will not change the character of the power — if it did, 'the system of mandatory detention would have been found unconstitutional'.[142]
Nonetheless, his Honour's restatement of Lim in Woolley stands out as a strong endorsement both of the constitutional immunity[143] and the Lim test.[144] And while his Honour appears to have endorsed Hayne J's view that Lim established a clear exceptional category to any potential constitutional immunity, his Honour also expressed views about the foundational status of liberty that parallel those of Gummow and Kirby JJ, asserting in Behrooz that 'what is punitive in nature about involuntary detention (subject to a number of exceptions) is the deprivation of liberty involved'.[145]
As a result of the Chief Justice's position, ascertaining what the cases establish about the exact contours of the operation of Ch III is problematic. With his Honour's endorsement, there is a strong majority in favour of the view that a detention law will be non-punitive if its purpose is exclusion, although it is not clear if such exclusion must be tied to deportation and removal. Furthermore, the test for establishing purpose is unclear, except to the extent that six of the judges (with McHugh J's position somewhat more subtly expressed) have rejected reliance on the effects (or 'severity') of detention for establishing its punitive character, and four judges appear to have applied a subjective test to establish if a purpose is retained. Finally, with Callinan J's apparent endorsement, the Lim test arguably retains a 5–2 majority, although his Honour's silence on the constitutional immunity means that its status is still unknown.
The cases present a commentator with a plethora of issues to address. This analysis tackles these issues by focusing on the preconceptions of Australian constitutional roles and arrangements which underpin the reasoning of the judges.
First, I consider the different perspectives on the constitutional role of the Court. In brief, the majority considered it inappropriate for the Court to involve itself in either reading down the legislation or limiting the executive's authority. By contrast, the minority considered it not only appropriate for the Court to do so, but consistent with its paramount duty as constitutional guardian. Within this context, I consider the consequentialist arguments made by the majority judges to justify their approaches to the extent that they reflect assumptions about constitutional arrangements and the nature of the Australian polity.
Secondly, I consider the approaches to statutory construction. Here two main points are made: the majority's implicit lowering of the bar for rebutting the presumption against indefinite detention, arguably a result of its deference to the other branches in matters pertaining to the control of 'aliens', and the minority's elevation of the presumption into a quasi-constitutional doctrine.
Finally, I consider the key approaches to Ch III from three perspectives: the undermining of Lim without its replacement by a discernible criterion of validity and the flaw in the analysis of 'categories' of non-punitive detention; the implicit reliance on unlawfulness and illegality that permeates the majority judgments; and the problems that remain — both ethical and legal — with respect to the constitutional purpose of exclusion from the Australian community.
As noted, certain judges have very contrasting perceptions of the constitutional role of the Court. In some instances, these perceptions arguably precede and dictate the approaches taken to both statutory and constitutional interpretation.
For the majority, it is no small matter that Callinan J began his judgment with the minority decisions in Zadvydas v Davis, a decision in which the US Supreme Court read a temporal limitation into a statute providing for administrative detention so as to avoid 'a serious constitutional problem' concerning the applicability of the 'due process' clause.[146] According to Callinan J, the Zadvydas minority reflected 'more orthodox expressions of constitutional principle and practical reality'.[147] The expression 'practical reality' echoes the language of the Federal Court in Al Masri,[148] although Callinan J's relevant reality is found in practical political arrangements, not the human consequences of indefinite detention. His Honour thus cited with approval Kennedy J's concern not to commit a '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 …'.[149] As Kennedy J so colourfully put it, '[t]he 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.'[150] In a similar vein, our Court's minimal constitutional obligation is not to get in the way. As Callinan J asserted, 'it is the obligation of the courts to ensure that any detention for that [statutory] purpose is neither obstructed nor frustrated'.[151]
Kirby and Gummow JJ were similarly concerned with the preservation of constitutional arrangements, but their focus was on the judiciary's positive obligation to uphold certain fundamental values rather than its duty to avoid executive terrain. Integral to their perspective was a reading of the Communist Party Case which requires the Court (in Kirby J's words) to reject '[e]xecutive assertions of self-defining and self-fulfilling powers,'[152] and supports an assertion of liberty as a core constitutional, as well as common law, value. Such values assist in identifying an appropriate judicial attitude to adopt when faced with executive detention. This is evident, for instance, in Kirby J's conclusion that the Court must not 'surrender the power of executive detention to a Minister's "intention"' nor give an open-ended interpretation of Parliament's command that removal be 'as soon as reasonably practicable'.[153] Similar sentiments have already been identified above in Gummow J's reasoning, but they find their most comprehensive expression in Kirby J's reasoning which drew upon a range of sources of tradition. Indeed, Kirby J's reliance on overseas authorities[154] is based less on the methods employed therein as on the 'resistance of the judges of the common law, since early times and until the present age, to the notion of unlimited executive power to deprive individuals of liberty.'[155] As his Honour asserted:
the common thread that runs through all these cases is that judges of our tradition incline to treat unlimited executive detention as incompatible with contemporary notions of the rule of law. Hence, judges regard such unlimited detention with vigilance and suspicion. They do what they can within their constitutional functions to limit it and to subject it to express or implied restrictions defensive of individual liberty.[156]
In the Australian tradition, this 'common thread' finds its most celebrated expression in the Communist Party Case, which Kirby J presented as supporting his assertion that '[i]ndefinite detention at the will of the Executive, and according to its opinions, actions and judgments, is alien to Australia's constitutional arrangements.'[157]
For McHugh J, this portrayal of Australia's constitutional history could not go unchallenged. Drawing examples from the first and second world wars, his Honour noted that the two relevant statutes which provided for broad and discretionary forms of executive detention[158] were tested and upheld in Lloyd v Wallach,[159] Ex parte Walsh[160] and Little v Commonwealth.[161] As his Honour noted, there was never any suggestion that the detention which was allowed under these broad provisions infringed Ch III.[162]
McHugh J did not address the obvious rejoinder — made indirectly by Gummow J, who in turn cited the Lim majority[163] — that these laws were passed under the defence power which expands during a time of war. For Gummow J, it was no answer to the general proposition to cite executive detention at time of war. McHugh J's logic is that the exception undermines the assertion; Gummow J's view is that it proves the rule.
Kirby J's own response was merely to disparage the authorities themselves. We should be embarrassed, said Kirby J, by this part of our judicial history, just as Korematsu v United States (the Japanese exclusion case of 1944) is now viewed with embarrassment in the United States.[164] In light of subsequent 'legal developments', the war cases are 'of doubtful authority'[165] and 'should [not] be propounded as a precedent and statement of contemporary legal authority'.[166]
Oddly, none of the minority judges seized upon the treatment of Lloyd v Wallach and Ex parte Walsh in the Communist Party Case itself, in which the majority recognised that the cases stood against the principle that they were espousing — that is, the need for judicial review of the existence of constitutional facts. Although the judges differed in their treatment of these cases, it is clear that they interpreted the exception narrowly so as to apply only in time of war or grave emergency, or only to the defence power itself.[167]
The debate about the role of the Court also emerged in the consequentialist arguments before the Court — the attention, in other words, given to the practical and political effects of the decision as a factor in the reasoning. For the government, upholding the Al Masri doctrine would not only result in undue judicial interference with the workings of government, but would have the practical consequence of making ineffective the statutory and constitutional purposes to protect the community.
Kennedy J's cynical portraiture in Zadvydas of foreign nations forcing 'dangerous aliens upon us' by refusing to accept their repatriation,[168] cited with approval by Callinan J,[169] finds particular resonance in the Al-Kateb majority's concern to protect the power of the other branches of the government to exclude aliens from the 'community'. Thus, McHugh J, after concluding that Parliament can enact legislation requiring unlawful non-citizens to be detained to ensure exclusion, asserted that to hold otherwise 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.[170]
Interestingly, McHugh J mentioned one other significant consequence at the start of his judgments in both Al-Kateb and Al Khafaji: the 'tragic' result of the majority's conclusions.[171] It appears, however, that this tragedy is not as imperative a consequence as an alien's alleged thwarting of legislation and achievement of de facto citizenship by 'illegal and unwanted' means.
Yet these concerns are problematic in themselves. A released stateless person is hardly entitled to citizenship rights merely by not being detained, nor does he or she avoid the many other restrictions imposed by the Act on release. Ironically, his Honour's crude characterisation of citizenship — which has defied constitutional definition — is reduced to meaning being free from indefinite administrative detention, a position that sits uneasily with his earlier rejection of the so-called constitutional immunity.
Two aspects to the Court's approach to statutory construction stand out as deserving of comment. The first concerns the majority's refusal to apply the statutory presumption against the deprivation of liberty and, by contrast, the minority's consolidation of the rule in a new quasi-constitutional guise. The second concerns the comments made by the majority about the applicability of international law in cases of ambiguity. Once again, judicial approaches to both issues are informed by the respective judges' perspectives of their appropriate constitutional role.
The common law presumption against deprivation of liberty has enjoyed a degree of judicial popularity in recent years,[172] not least in the eyes of the Chief Justice.[173] Given his extrajudicial exposition of the rule,[174] it is perhaps unsurprising to find his Honour in Al-Kateb adopting the English term 'principle of legality'.[175] It is a step which marks a progression in his Honour's thinking on the nature of the rule itself, one in keeping with a stronger 'rule of law' rhetoric that emphasises the fundamental role of the judiciary in a free society in appealing to a higher standard by which to measure the use and abuse of power.
A similar trend in the development of the 'principle of legality' in the United Kingdom has led some judges and commentators to describe the rule as having constitutional status[176] — a portrayal which sits uneasily in the Australian constitutional context.[177]
Nonetheless, a constitutionalisation of the rule can arguably be discerned in the minority judges' description of the principles at play in Al-Kateb. Thus Kirby J asserted not just that the common law rule reflects a judicial inclination to treat unlimited executive detention as incompatible with contemporary notions of the rule of law, but that the Constitution should be interpreted 'in the light of these abiding values.'[178] A similar attitude is evident in Gummow J's recasting of the rule of construction itself, jettisoning the language of legislative intent in favour of the judiciary's obligation to 'eschew' a particular reading.[179] In doing so, his Honour has neatly replaced the troublesome fiction of parliamentary intent with an appropriate judicial disposition — one informed, of course, by the common law.
The tools and precedents for reading down the provision were undoubtedly also available to the majority. That they did not use them arguably begs more questions about their assumptions and predispositions than about their interpretative techniques, especially in the absence of an express provision allowing for indefinite detention.
In this sense, Callinan J's decision is the most candid for setting out those constitutional assumptions which underpin his statutory analysis. For his Honour, the key principle at play is simple: the Court should not frustrate Parliament's purpose or obstruct the executive. This is a perspective of the Court which his Honour has taken on other occasions, including when expressing concern about the potential opprobrium the Court would face should it apply the rule of construction.[180] And while Hayne and McHugh JJ were silent on the rule itself, relying solely upon the intractability of the statute, their decisions were clearly based on a similar deference, evident for instance in their endorsement of a reading of the legislation that depends upon the subjective purpose of an executive officer and their elevation of a parliamentary temporal limitation ('as soon as reasonably practicable') over the practical reality of indefinite detention. For Hayne J, this deference was also reflected in his prioritisation of the characterisation process over any Ch III limitations that may exist and his explicit reliance on Griffith CJ’s assertion that the judiciary must not second guess the wisdom of the Parliament in such matters.[181]
This emphasis on Parliament's power and intent rather than judicially imposed limitations required the majority to distinguish themselves from Australia's greatest legalist who saw nothing amiss in implying a temporal limitation into similar provisions. The irony of rejecting Dixon J in the name of an allegedly strict legalist construction of the Act is enhanced by the perverse consequence of their reasoning. Thus, while Dixon J read a temporal limitation into the purpose of detention, such a reading was not now open because, as Hayne J asserted,[182] the legislature had expressed its will by inserting a provision to ensure that removal occur 'as soon as reasonably practicable'. The Court thereby found itself in the position of endorsing indefinite detention, potentially for life, on the basis that the legislature had fixed a time limit to it.[183] It is a classic case of legal double-think whereby two contradictory statements are accepted simultaneously: that a person may be detained forever (and the Court cannot intervene) because Parliament has legislated for detention to end.
Similarly reflecting a more robust deference to Parliament is the critique of the established rule of construction that the legislature is taken not to have intended to legislate in violation of the rules of international law, seen most starkly in McHugh J's concern about the fictional nature of the rule 'under modern conditions'.[184]
This focus on Parliament’s actual, subjective intent confronts two problems, one practical, the other theoretical.
At a practical level, his Honour overlooked the role played by the legislative process in ensuring that applicable human rights instruments are brought to light. Internal administrative processes (such as analyses by departmental officers, the Australian Government Solicitor and the Office of Legislative Drafting), consultative procedures (such as departmental community consultations), and the progress of a Bill through Parliament via debate and Committee scrutiny all act to identify relevant international obligations with which legislation might come into conflict. In this sense, his Honour overstates the impossibility of the task. Such mechanisms work particularly well with respect to human rights treaties, whose content has increasingly become part of the working knowledge of those in the business of law-making. Indeed, it is hardly to be imagined that a legislator would not be aware that a law depriving someone of their liberty might put Australia in breach of an international human rights obligation.
The more fatal criticism, however, is theoretical. As several judges have pointed out, the 'intention of Parliament' is indeed a fiction, and must be treated as such. Given Kirby J's propensity for citing McHugh J against himself, it is perhaps surprising that he failed to exploit his Honour's assertion in Corporate Affairs Commission (NSW) v Yuill that 'the intention of Parliament is not the collective, psychological state of mind of the individual members of Parliament; it is the intention which is inferred from the terms of the enactment.'[185] That McHugh J has in the past submerged parliamentary intent into the purposive approach and asserted an objective test for establishing 'intention' adds fuel to Kirby J's criticism of his departure in Al-Kateb into a diatribe about subjectivity when it comes to international law.
The cases raise a host of constitutional issues ranging from the relationship between the limbs of government to the nature of Ch III's purported protections. Of these, it is worth isolating those which give clues to the new constitutional landscape.
As became apparent in argument, the government had come to see Lim as a potential impediment to their case, stressing instead Gaudron J's concerns about Lim as fleshed out in Kruger. This undeniably paid off, with Hayne and McHugh JJ both endorsing Gaudron J's scepticism. As a result, Lim now stands on very shaky ground: the constitutional immunity and the Lim test of 'reasonably capable of being seen as necessary' have been significantly undermined, and the non-punitive purposes which will sustain administrative detention have been extended to include a potentially much broader category of 'exclusion from the Australian community' by segregation.
In considering how the Court achieved this maximalist interpretation, this commentary considers three main points.
First, it is necessary to consider the basis of the majority's criticism of the constitutional immunity from detention, and whether the Court has articulated a discernible and user-friendly test for what will amount to 'punishment' in order to trigger the operation of Ch III.
Secondly, there is a need to engage with the purpose of exclusion, identified by the Court as validating mandatory indefinite detention. I argue that the purpose itself is inconsistently defined, reflecting a notion of internal control that is an unfortunate part of our constitutional inheritance.
Finally, it is useful to consider the language of 'unlawfulness' in which much of the constitutional analysis is framed, as it is arguably infected with societal attitudes towards non-citizens that undermine the strength and authority of the reasoning itself.
At least three judges have now rejected the view that, subject to certain exceptions, there is a 'constitutional immunity' from detention available either to citizens or non-citizens.
Hayne J, with whom Heydon J concurred, threw doubt on its status in Al-Kateb,[186] drawing upon Gaudron J's concern in Kruger that the number of 'exceptions' to the alleged rule disprove it.[187] McHugh J expressed similar concerns in Woolley, enumerating a set of circumstances in which administrative detention would not be characterised as penal or punitive,[188] and similarly endorsed Gaudron J's comments in Kruger.[189]
The dominant argument here is founded on the view that a rule cannot operate either with too many exceptions, or where the categories of exceptions have not been or cannot be exhaustively identified. Thus McHugh J presented his list — as the Solicitor-General did in argument[190] — as if it were the mere tip of the iceberg upon which the constitutional immunity must flounder.
These predicates, however, are problematic. It is, after all, far from exceptional to have exceptions to a legal rule. Indeed, all international instruments which protect the right to liberty and security of person itemise categories of exceptions. Relevantly, the six exceptions in art 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms[191] more than adequately, and very accurately, cover each scenario portrayed by McHugh J in Woolley.[192] It could hardly be said that the right in European law is any less fundamental for the existence of these exceptions, let alone non-existent. The practice in other jurisdictions supports the exact opposite argument: rather than undermining the right of liberty, it is around these exceptions that judicial scrutiny in protecting the right most often revolves, as the House of Lords has recently demonstrated.[193]
The fact that judges in both the majority and minority failed to consider the established nature of these exceptions in other jurisdictions reflects the poverty of the rights discourse in our legal system, and the increasing isolation of Australia from the rich and established human rights legal culture overseas.
Despite the undermining of the constitutional immunity, it is clear that a punitive detention law will still breach Ch III. However, the majority's starting (and it seems end) point for determining whether a scheme of administrative detention is punitive lay with the characterisation of the purpose of detention, not any assumption that detention will be punitive unless it falls into a recognised category of exception.[194] By itself, this is neither contentious nor necessarily inconsistent with Lim. Yet as McHugh J commented in Woolley, none of the majority judges in Al-Kateb directly applied the Lim test as determinative in establishing whether the purpose of exclusion was punitive.[195]
Despite this, McHugh J may have been premature in declaring the Lim test obsolete. With endorsements by Gleeson CJ, Gummow, Kirby and (crucially) Callinan JJ (in Woolley),[196] and no express disavowal from Hayne J, the test can still be considered to command a majority on the Court.
Furthermore, while three judges have found it necessary either to dismantle or undermine the Lim test, they have failed to replace it with a clear alternative. This inability to formulate coherent standards of review appears to be a persistent weakness of the Court.[197]
For instance, Hayne J's transposition of the Lim test into the characterisation process is intriguing, but ultimately amounts to its elimination given the breadth of the purpose of exclusion. Furthermore, it is unclear how a formulation which is effectively a proportionality test can be applied to a law directly operating on a subject matter power.
McHugh J stayed within Ch III, but his restatement of a 'necessity' test for establishing 'punitive' purpose leaves the reader baffled as to how such a test would be less onerous to meet than a 'reasonable necessity' test, or even an 'appropriate and adapted' test. And while his Honour intimated that the circumstances of detention may become indicative of a punitive purpose (eg, keeping a detainee in solitary confinement without justification), he provided no test beyond necessity for identifying such circumstances.[198] One is left wondering, for instance, how housing a traumatised child indefinitely in overcrowded conditions in the desert thousands of miles from his or her community falls within the 'sole purpose', 'necessity' and 'justifiability' test on this reasoning, given that his Honour has already said that detention of unforeseeable duration alone would fail a proportionality test.[199]
Interestingly, the minority judges were arguably more ruthless in shunning the consequences of detention when determining its purpose. Thus Gleeson CJ (in Woolley) ruled out the possibility that the 'severity' or 'hardship' of mandatory detention can change the character of mandatory detention, noting that if that were possible, the system would indeed be unconstitutional.[200] Similarly, Gummow J in Woolley was at pains to point out that the effects of detention must not be confused with the purpose.[201] Only Kirby J expressed the test in such a way as to retreat from an exclusive reliance on purpose, asserting that in our constitutional system, the Court must retain the power to determine whether the 'objective effects of the law and its practical operation' will amount to punishment.[202]
The view that the 'consequences' of detention do not change its character becomes muddled when pushed too far. As noted, McHugh J provided that consequences might become punitive if not justified, thereby merely begging the question. And for Hayne J, his concluding explanation for why detention for life is an irrelevant consequence for determining punishment raises even more problems: 'it comes about because the non-citizen came to or remained in this country without permission.'[203] It is hard not to interpret this reasoning as an attribution of fault, one hardly in keeping with the broader legalist arguments about purpose which otherwise characterised the majority's reasoning.
Hayne J analysed the notion of 'punishment' in the most detail, yet also failed to craft a discernible test. His Honour's selective and uncritical use of Hart results in a definition that appears to require a legislated offence, ignoring that writer's broader sub-standard cases which could easily accommodate the mandatory detention regime. Some commentators have expressed concern that Hart's standard definition confuses a theory of punishment with a definition, thereby justifying practices which are normatively criticisable.[204] Indeed, Hart himself described his secondary cases as being 'among many other possibilities', asserting that they should prevent the use of what he calls the 'definitional stop' in discussions of punishment which would otherwise be an 'abuse of definition'.[205] Hayne J, following a propensity for the Court to rely on simplified Hartian theory,[206] falls into exactly this trap.
Hayne J also intimated that the existence of judicial-type process will be relevant in determining whether judicial power has been exercised to impose judicial punishment.[207] Thus, if detention is not imposed following judicial-type procedures to ascertain the commission of a statutory offence, it will not bear the hall-marks of judicial detention, and will not be characterised as judicial punishment.
So far, the logic is compelling, but unnerving, providing Parliament in effect with the power to legislate its way out of any Ch III limitation that might depend upon the existence of a 'punishment'. It throws into sharp relief the status of the separation of powers as a guarantor of rights[208] if it can be skirted so easily by the very draconian nature of the provisions themselves: their mandatory operation, the removal of 'offence' provisions, and the absence of judicial process.
A tacit attention to fault arguably permeates the decisions of several judges. Most often, it is cloaked in the rhetoric of 'unlawfulness'. This is seen, as noted, in Hayne J's conclusion about why detention for life would not be punitive for a non-citizen who entered Australia without permission;[209] in Callinan J's blunt statement that Parliament can determine the basis upon which 'illegal entrants' are to be detained and his concern not to award an advantage over others to those who 'illegally ... penetrate' Australia's borders;[210] and in McHugh J's consequentialist argument that those who unlawfully enter should not be allowed to thwart the operation of the Act.[211]
Each majority judge at some point thus merges the category of 'unlawful' non-citizens with those who entered without permission, ignoring the fact that the term 'unlawful' has no such legal equivalency. Indeed, the majority's reasoning applies equally to all unlawful non-citizens, the majority of whom become unlawful after entering (lawfully) on visas. And while Hayne J's reference to those who 'remain without permission' arguably covers this category, his focus on an alien's active conduct is misleading. Parliament can define who is unlawful on the basis of almost any criteria including, presumably, race, religion, political opinion, or even alienage itself, as well as circumstances outside a person's control.[212] Any such person must be detained, regardless of their conduct or mode of arrival. Indeed, there is nothing in the ratio of the majority that requires 'unlawfulness' in order to sustain the purpose of exclusion to validate a detention law with respect to aliens. To focus on their unlawfulness is therefore a distraction: it stands as no impediment to absolute parliamentary power to exclude by segregation aliens more generally.
McHugh and Callinan JJ's merging of 'deportation' and 'removal' only contributes further to the impression that all 'unlawfuls' are the same. As the Al Masri court aptly demonstrated, both the legislation and the Lim majority treat the two categories very differently. Indeed, the Al Masri doctrine did not, and on its reading of Lim could not, extend to those facing deportation (ie, because of their conduct), but only to those who sought their own removal and did not frustrate its occurrence — a 'no fault' category, if you will.[213] Unfortunately, such subtlety is absorbed, or hidden through a process of interpretive denial (seen most starkly in McHugh J's eventual rejection of the term 'indefinite' itself),[214] by uncritical use of the term 'unlawful' and (more blatantly) by Callinan J's unnerving concern with illegality and queue jumping.[215]
That both Hayne and Callinan JJ concluded their decisions by expressing an opinion that aliens take a known risk when they come to Australia compounds the conclusion that a concern with an alien's conduct tainted the majority's judicial approach.[216] Given the size and social significance of Australia's migration programme, it can hardly be argued that everyone who comes to Australia or is born in the country to non-citizen parents knowingly undertakes a risk of indeterminate, indefinite detention.
The majority arguably expanded the non-punitive purposes identified in Lim that will sustain administrative detention of non-citizens to include the purpose of excluding non-citizens from the Australian community — what McHugh J called a 'protective purpose'.[217]
Yet despite the repeated reference to a purpose of 'exclusion', its exact contours were inconsistently drawn. For instance, Hayne J at one point defined the relevant purpose (consistently with Lim) as arising out of the executive power to exclude — a broad category[218] — while in other places his Honour limited it to circumstances where removal is intended ('detention in the meantime')[219] or to the segregation of those who made an unlawful landfall (ie, those who without permission 'manage[d] to find their way here').[220] By contrast, McHugh J almost always defined it broadly.[221] Indeed, distinguishing the Lim test by reference to Lim's consideration of 'deportation' rather than exclusion[222]
can only mean that the purpose of exclusion operates separately from any necessary connection to deportation (or removal).
It is thus unclear whether the Court concluded that the purpose is broad (ie, exclusion for exclusion's sake) or narrow (ie, linked to eventual entry, removal, deportation or perhaps unlawful arrival)
For Gummow J, the notion of an 'Australian community' from which aliens can be excluded provided a weak point in the majority's reasoning which he attempted to exploit, arguing that it is unsupported either by authority or legal logic.[223] Contrasting it to established legal expressions such as 'domicile', 'residence', 'personal presence', 'citizenship' and 'nationality',[224] he noted:
The notion of 'membership of the community' has multiple references and lacks the legal specificity of the above connecting factors. To speak then of 'exclusion' from a 'community' therefore also involves multiple references. The reference to 'exclusion' may also be an Orwellian euphemism.[225]
This is a typical Gummovian understatement: 'exclusion' was used by the majority to hide the reality of the activity to which they were giving legal backing — the fundamental denial of the basic right to personal liberty, potentially for life.[226] And hiding behind 'exclusion', for Gummow J, is legally and logically problematic: unless the entity from which aliens are being excluded (or which is being purportedly 'protected') can be defined, the purpose of exclusion itself becomes meaningless.
It is notable that the highest courts in the UK and the US have similarly and unfailingly rejected a bright line between inclusion and exclusion after entry.[227] By contrast, it is quintessentially part of Australian legal thinking to apply the notion of exclusion internally: after all, the race and aliens powers were created with the specific purpose of providing for the control of the 'other' in our midst.[228] Similarly, the ill-understood notion of Australian 'citizenship' (upon which McHugh J partly relied) was omitted from the Constitution to preclude non-white subjects of the new federation claiming its potential benefits.[229] While our majority judges should not be accused of having the same prejudices which motivated the framers, the decision — and the language used to defend it — relies upon an embedded understanding of exclusion and control that is perhaps more a reflection of Australian culture and history than an inherent incident of sovereignty, let alone a necessary tool of constitutional interpretation.[230]
Finally, how to establish whether a 'purpose' remains on foot fundamentally split the Court, as did whether a purpose can revive once spent.[231] Again, the differences lie in preconceptions about constitutional arrangements. From the minority's perspective, the 'continued viability' of a purpose is not a matter purely for the 'motives or intention'[232] — or 'hope' — of the executive.[233] In this sense, their Honours were concerned that a subjective test would allow the executive to define the limits of its authority.
These criticisms are not refuted by the majority. Indeed, in asserting that the Minister need not harbour a hope, only an intention, of removal Callinan J can be taken as endorsing detention even where removal is, in fact, hopeless.[234] For Callinan J, such matters are no business of the Court. For the minority, there is no function more central to its constitutional function than to guard this line, and only an objective test of purpose can ensure this.
Despite the firmness with which they expressed their views, there are intimations that the majority are uncomfortable with the human consequences of the laws whose validity they uphold. This is best exemplified in McHugh J's opening and closing paragraphs in Al-Kateb in which he bemoaned the 'tragic' consequences of the Court's conclusion. [235]
At a personal level, at least, his Honour mourns the human costs of his own reasoning. At a professional level, he is concerned to avoid creating any inconvenience for the sovereign legislature.
For his Honour, this is a tragedy that the Court is powerless to prevent. It is Hellenic-style fatalism at its very best, generated by the inherent logic and remorseless working of the Constitution,[236] and deepened by the Judge's very consciousness of the role he must play. This is the Constitution which McHugh J leaves us: one that more reflects the prejudices of its framers than contemporary values and the human realities of its operation. By contrast, the Constitution of the minority is informed by certain values — derived in part from our common law heritage — which the Court is mandated to use in order to avert or at least curb the human suffering which an otherwise sovereign Parliament may wreak on citizen and non-citizen alike.
[∗] Lecturer, Faculty of Law, Australian National University. Thanks to Adrienne Stone, John Williams and James Stellios for helpful discussions and comments, to the anonymous referees and the excellent Federal Law Review editors.
[1] There is a potential dispute as to whether the detention should be described as 'indefinite' given the Court's finding that it cannot be said that detention will never end. As most judges use the term uncritically, I have adopted it for the sake of clarity.
[2] Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 ('Lim').
[3] [2004] HCA 37; (2004) 219 CLR 562 ('Al-Kateb').
[4] [2004] HCA 38; (2004) 219 CLR 664 ('Al Khafaji').
[5] [2004] HCA 36; (2004) 219 CLR 486 ('Behrooz').
[6] (2004) 210 ALR 369 ('Woolley').
[7] Al Masri v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1009; (2002) 192 ALR 609.
[8] See, eg, WAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1625 [56] (French J); Daniel v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 20; (2003) 196 ALR 52, 63 [34]–[37] (Whitlam J); Al Khafaji v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1369 [27] (Mansfield J).
[9] Al Masri v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 70; (2003) 126 FCR 54 ('Al Masri').
[10] Although the language of qualification used by Callinan J in describing the facts in Al-Kateb throws doubt on their accepted status.
[11] Al-Kateb [2004] HCA 37; (2004) 219 CLR 562, 602 [102] (Gummow J).
[12] Ibid 653 [277] (Callinan J).
[13] Al Khafaji [2004] HCA 38; (2004) 219 CLR 664, 668–9 [7]–[8] (Gummow J).
[14] Ibid 672 [18]–[19] (Gummow J).
[15] Ibid 671 [16] (Gummow J).
[16] Migration Act 1958 (Cth) s 196(1)(a).
[17] Migration Act 1958 (Cth) s 196(1)(b).
[18] Migration Act 1958 (Cth) s 196(1)(c).
[19] Al-Kateb [2004] HCA 37; (2004) 219 CLR 562, 580–1 [31] (McHugh J).
[20] Ibid 581 [33] (McHugh J).
[21] Ibid 662-3 [303] (Heydon J).
[22] Ibid 636 [217] (Hayne J).
[23] Ibid 637 [218].
[24] Ibid.
[25] His Honour used different words to describe the same provision. Thus removal is a 'purpose', 'event' or 'duty'.
[26] Al-Kateb [2004] HCA 37; (2004) 219 CLR 562, 640 [231] (Hayne J).
[27] Ibid 638–9 [226] (Hayne J). See also ibid 639 [227] (Hayne J): 'the duty does not pass until it is reasonably practicable to remove the non-citizen in question'. For a briefer account, see 581 [33] (McHugh J).
[28] As the Solicitor-General noted in oral argument with respect to the eventual creation of a Palestinian state, 'you can never say, in any case, "These events will never occur"': see Transcript of Proceedings, Behrooz v Secretary of the Department of Immigration and Multicultural Affairs [2003] HCATrans 456 (12 November 2003).
[29] Al-Kateb [2004] HCA 37; (2004) 219 CLR 562, 640 [231] (Hayne J).
[30] Ibid.
[31] Ibid 662 [299] (Callinan J).
[32] Woolley (2004) 210 ALR 369, 394–5 [89], 407 [134] (McHugh J).
[33] Uncertainty also had a role to play in the interpretation of Ch III.
[34] Koon Wing Lau v Calwell [1949] HCA 65; (1949) 80 CLR 533 ('Calwell').
[35] Ibid 581, cited in Al-Kateb [2004] HCA 37; (2004) 219 CLR 562, 638 [224] (Hayne J) (emphasis added by Hayne J).
[36] Al-Kateb [2004] HCA 37; (2004) 219 CLR 562, 638 [224].
[37] Ibid 638-9 [225], 640 [231]–[232] (Hayne J).
[38] Ibid 657–8 [288] (Callinan J).
[39] Ibid 662 [299] (Callinan J). See also Woolley (2004) 210 ALR 369, 435 [262] (Callinan J).
[40] International Covenant on Civil and Political Rights ('ICCPR'), opened for signature 16 December 1966, GA Res 2200A (XXI), 999 UNTS 171 (entered into force 23 March 1976; entered into force for Australia 13 November 1980 except art 41 which entered into force on 28 January 1993).
[41] Al-Kateb [2004] HCA 37; (2004) 219 CLR 562, 661 [298] (Callinan J): 'Nor is a presumption, assuming it should be made …' (emphasis added).
[42] Ibid 590 [65] (McHugh J).
[43] [1945] HCA 3; (1945) 70 CLR 60.
[44] [1995] HCA 20; (1995) 183 CLR 273.
[45] [1998] HCA 22; (1998) 195 CLR 337.
[46] Woolley (2004) 210 ALR 369, 402-3 [114] (McHugh J).
[47] Al-Kateb [2004] HCA 37; (2004) 219 CLR 562, 571 [1] (Gleeson CJ) (emphasis added).
[48] Ibid 576 (Gleeson CJ) (emphasis added).
[49] Ibid 572 [1] (Gleeson CJ).
[50] Ibid 576 [18] (Gleeson CJ).
[51] Ibid 575 [13] (Gleeson CJ).
[52] Ibid 576 [18] (Gleeson CJ).
[53] Ibid 577 [21] (Gleeson CJ). See also 575 [13] (Gleeson CJ): 'the provisions … do not address … and do not expressly provide for it'; 575 [14]: 'The Act does not in terms provide for a person to be kept …'; 577 [21]: '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.'
[54] Ibid 577 [19] (Gleeson CJ).
[55] Ibid 577–8 [21] (Gleeson CJ).
[56] Ibid 578 [22] (Gleeson CJ).
[57] Ibid 604 [108] (Gummow J).
[58] Ibid 599 [88] (Gummow J).
[59] Ibid 607 [117] (Gummow J).
[60] Ibid 608 [121] (Gummow J). Note that his Honour also interpreted the word 'purpose' as having a temporal character; however, the word does not appear in the relevant provisions.
[61] Ibid 608 [122] (Gummow J) (emphasis added).
[62] Ibid 609 [125] (Gummow J).
[63] See above, text accompanying n 28.
[64] The Chief Justice in Al-Kateb [2004] HCA 37; (2004) 219 CLR 562, 576 [17] similarly linked the purposive nature of detention to a conclusion that detention is qualified by an objective test. Indirectly addressing Callinan J (at 662 [299]), his Honour noted that the primary purpose of detention (to facilitate removal) is 'objective', and not dependent upon the subjective intentions of the Minister or an officer of the Department.
[65] See also Al Khafaji [2004] HCA 38; (2004) 219 CLR 664, 674–5 [28] (Kirby J).
[66] Al-Kateb [2004] HCA 37; (2004) 219 CLR 562, 622 [167] (Kirby J).
[67] Ibid.
[68] Ibid.
[69] While other constitutional questions arose, these two categories cover the main issues.
[70] Lim (1992) 176 CLR 1, 27 (Brennan, Deane and Dawson JJ).
[71] Ibid 28–9 (emphasis added).
[72] Ibid 33. Other tests in Lim included McHugh J's 'reasonably necessary' test, ibid 65.
[73] [1906] HCA 58; (1906) 4 CLR 395.
[74] Ibid 404.
[75] Ibid, cited in Al-Kateb [2004] HCA 37; (2004) 219 CLR 562, 632–3 [203] (Hayne J) (emphasis added). His Honour similarly found support in Calwell: see Al-Kateb [2004] HCA 37; (2004) 219 CLR 562, 644 [245] (Hayne J).
[76] Al-Kateb [2004] HCA 37; (2004) 219 CLR 562, 645 [247] (Hayne J). The closest to an authority which his Honour cited was Robtelmes, which he noted at 639 [227] supports the view that the power of removal is a 'corollary to ... the power of exclusion'.
[77] Ibid 648 [255].
[78] Ibid 583 [41] (McHugh J). And it perhaps goes without saying that a law providing 'the power to detain aliens … is a law with respect to the subject matter of that power': at 583 [42].
[79] This issue was discussed in Al Masri [2003] FCAFC 70; (2003) 126 FCR 54, 74 [76], and argued before the High Court. The test is often seen as deriving from Mason CJ in Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1, 33.
[80] Al-Kateb [2004] HCA 37; (2004) 219 CLR 562, 582–3 [38]-[39] (McHugh J).
[81] Ibid 583 [42] (McHugh J).
[82] Ibid 648 [256] (Hayne J).
[83] Ibid 584 [44] (McHugh J).
[84] Ibid (emphasis added).
[85] Ibid 584 [45] (McHugh J).
[86] [1949] HCA 6; (1949) 77 CLR 261, 278. Cited by McHugh J, Al-Kateb [2004] HCA 37; (2004) 219 CLR 562, 584 [45].
[87] Al-Kateb [2004] HCA 37; (2004) 219 CLR 562, 584 [46] (McHugh J). See below for discussion of his Honour's misuse of the term 'deportation'.
[88] Ibid 647 [251] (Hayne J).
[89] [1997] HCA 27; (1997) 190 CLR 1 ('Kruger').
[90] Al-Kateb [2004] HCA 37; (2004) 219 CLR 562, 648 [258] (Hayne J).
[91] Ibid 648–9 [258] (Hayne J) (emphasis in original).
[92] Ibid 586 [49] (McHugh J): 'Neither passage was directed to a case where indefinite detention is necessary to prevent a person from entering Australia or the Australian community.'
[93] Woolley (2004) 210 ALR 369, 384 [58] (McHugh J).
[94] Ibid. See also Al-Kateb [2004] HCA 37; (2004) 219 CLR 562, 646 [251] (Hayne J), who cites Gaudron J in Kruger [1997] HCA 27; (1997) 190 CLR 1, 110.
[95] Woolley (2004) 210 ALR 369, 385 [60] (McHugh J).
[96] Ibid 385 [59] (McHugh J). See also his statement at 384 [57] that the test 'cannot stand'. That McHugh J may have been somewhat premature in announcing the demise of the Lim test is noted in the Commentary below.
[97] Ibid 390 [76] (McHugh J). Cf Callinan J's endorsement of the Lim test at 434 [260].
[98] Ibid 391 [78] (McHugh J).
[99] HLA Hart, Punishment and Responsibility (1968).
[100] Al-Kateb [2004] HCA 37; (2004) 219 CLR 562, 650 [265] (Hayne J).
[101] Ibid: '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.'
[102] Ibid 650 [266] (Hayne J). As he noted at 633–4 [207]–[208], the term 'unlawful' does not refer to a breach of a law.
[103] Ibid.
[104] Ibid 651 [267] (Hayne J).
[105] Ibid 651 [268] (Hayne J).
[106] Ibid 647 [254] (Hayne J): '[N]othing about the decision making that must precede detention ... bespeaks an exercise of the judicial power'. See also Woolley (2004) 210 ALR 369, 427 [224] (Hayne J) in which his Honour emphasised the mandatory nature of detention.
[107] Woolley (2004) 210 ALR 369, 389 [72] (McHugh J).
[108] Ibid 393 [82] (McHugh J). See also 396 [98], where his Honour cited with approval the full Federal Court in NAMU of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 401; (2002) 124 FCR 589, 597.
[109] Woolley (2004) 210 ALR 369, 414 [165] (Gummow J): 'The effects of detention will be relevant only to the extent that they are indicative of the purpose for which detention is authorised'.
[110] Behrooz [2004] HCA 36; (2004) 219 CLR 486, 559 [218] (Callinan J).
[111] Woolley (2004) 210 ALR 369, 376–7 [29] (Gleeson CJ).
[112] Ibid 419 [184] (Kirby J).
[113] Al-Kateb [2004] HCA 37; (2004) 219 CLR 562, 609 [126], 610 [131], 613 [140] (Gummow J). As Kirby J noted at 615 [144]: 'in giving meaning to the Act, certain constitutional fundamentals must be kept in mind'.
[114] Ibid 609 [126], 610 [131], 613 [140] (Gummow J).
[115] Ibid 610 [132], 611 [133] (Gummow J).
[116] Ibid 612 [136]–[137] (Gummow J).
[117] Ibid: 'Once it is accepted that many forms of detention involve some non-punitive purpose, it follows that a punitive/non-punitive distinction cannot be the basis upon which the Ch III limitations respecting administrative detention are enlivened. … It is primarily with the deprivation of liberty that the law is concerned, not with whether that deprivation is for a punitive purpose.'
[118] [1988] HCA 14; (1988) 164 CLR 465 at 476, cited in Al-Kateb [2004] HCA 37; (2004) 219 CLR 562, 612 [136] (Gummow J).
[119] Al-Kateb [2004] HCA 37; (2004) 219 CLR 562, 612 [137] (Gummow J).
[120] Ibid 613 [139] (Gummow J).
[121] Ibid 609 [126] (Gummow J), restated at 613 [140].
[122] Ibid 613 [140] (Gummow J).
[123] Ibid 609 [126] (Gummow J).
[124] Australian Communist Party v Commonwealth [1951] HCA 5; (1951) 83 CLR 1 ('Communist Party Case').
[125] Ibid 613 [140] (Gummow J).
[126] Ibid 614–5 [144] (Kirby J).
[127] Ibid 616 [150] (Kirby J).
[128] Ibid 616 [148]–[150] (Kirby J).
[129] Ibid 617 [153] (Kirby J).
[130] Justice Michael McHugh, 'Does Chapter III of the Constitution Protect Substantive As Well As Procedural Rights?' (2001) 21 Australian Bar Review 235.
[131] [1988] HCA 18; (1988) 165 CLR 360, 407–409.
[132] Woolley (2004) 210 ALR 369, 419 [184] (Kirby J) (emphasis in original).
[133] Ibid 420 [189] (Kirby J).
[134] Notably, see Kirby J in Newcrest Mining (WA) Ltd v The Commonwealth [1997] HCA 38; (1997) 190 CLR 513, 658.
[135] Al-Kateb [2004] HCA 37; (2004) 219 CLR 562, 616 [150] (Kirby J). For Kirby J, the common law 'presumption in favour of liberty … informs this Court's approach to elucidating the meaning of the Constitution necessary to support the validity of such provisions'.
[136] For more on these 'sharp exchanges', see Justice Michael Kirby, 'International Law: the Impact on National Constitutions' (Speech delivered at the Grotius Lecture Series, Washington DC, 30 March 2005) <http://www.hcourt.gov.au/speeches/kirbyj/ kirbyj_30mar05.html> at 19 February 2006.
[137] [2004] HCA 37; (2004) 219 CLR 562, 573 [4] (Gleeson CJ).
[138] Behrooz [2004] HCA 36; (2004) 219 CLR 486, 499 [20] (Gleeson CJ): '[A]n alien does not have a right without permission to enter Australia or to become part of the community'.
[139] Al-Kateb [2004] HCA 37; (2004) 219 CLR 562, 571 [1] (Gleeson CJ).
[140] Woolley (2004) 210 ALR 369, 376 [29] (Gleeson CJ).
[141] Ibid 373 [13] (Gleeson CJ).
[142] Ibid 377 [29] (Gleeson CJ).
[143] Ibid 374 [16]–[17], 375 [24] (Gleeson CJ).
[144] Ibid 375 [21], [25] (Gleeson CJ).
[145] Behrooz [2004] HCA 36; (2004) 219 CLR 486, 499 [20] (Gleeson CJ). See, albeit not as forcefully, Woolley (2004) 210 ALR 369, 374 [17] (Gleeson CJ).
[146] [2001] USSC 16; 533 US 678 (2001) ('Zadvydas').
[147] Al-Kateb [2004] HCA 37; (2004) 219 CLR 562, 654 [284] (Callinan J).
[148] Al Masri [2003] FCAFC 70; (2003) 126 FCR 54, 71 [61].
[149] Zadvydas[2001] USSC 16; , 533 US 678, 705 (2001) (Kennedy J), cited in Al-Kateb [2004] HCA 37; (2004) 219 CLR 562, 656 (Callinan J).
[150] Ibid 712 (Kennedy J), cited in Al-Kateb [2004] HCA 37; (2004) 219 CLR 562, 657 (Callinan J)
[151] Al-Kateb [2004] HCA 37; (2004) 219 CLR 562, 661–2 [298] (Callinan J).
[152] Ibid 616 [149] (Kirby J) and 618 [155] (Kirby J) (on the Communist Party Case). See also Al Khafaji [2004] HCA 38; (2004) 219 CLR 664, 674 [28] (Kirby J); Al-Kateb [2004] HCA 37; (2004) 219 CLR 562, 599 [88], 613 [140] (Gummow J) (on the applicability of the Communist Party Case), and 600 [92], 612 [137] and 613 [140] (Gummow J) (on indefinite detention at the will of the executive).
[153] Ibid 616 [149] (Kirby J).
[154] Notably, R v Governor of Durham Prison; Ex parte Hardial Singh [1983] EWHC 1; [1984] 1 WLR 704, [1984] 1 All ER 983; Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1996] UKPC 5; [1997] AC 97.
[155] Al-Kateb [2004] HCA 37; (2004) 219 CLR 562, 619 [157] (Kirby J).
[156] Ibid 620 [161] (Kirby J).
[157] Ibid 615 [146] (Kirby J).
[158] War Precautions Regulations 1915 (Cth); National Security (General) Regulations 1939 (Cth).
[159] [1915] HCA 60; (1915) 20 CLR 299.
[161] [1947] HCA 24; (1947) 75 CLR 94.
[162] Al-Kateb [2004] HCA 37; (2004) 219 CLR 562, 588–9 [57], [60]–[61] (McHugh J).
[163] Lim (1992) 176 CLR 1, 28 (Brennan, Deane and Dawson JJ): 'It is unnecessary to consider whether the defence power in times of war will support an executive power to make detention orders such as that considered in Little v The Commonwealth.' Cited in Al-Kateb [2004] HCA 37; (2004) 219 CLR 562, 614 [140] (Gummow J).
[164] Korematsu v United States, [1945] USSC 43; 323 US 214 (1944), cited in Al-Kateb [2004] HCA 37; (2004) 219 CLR 562, 621 [164] (Kirby J).
[165] Al-Kateb [2004] HCA 37; (2004) 219 CLR 562, 621 [165] (Kirby J).
[166] Ibid 622 [166] (Kirby J).
[167] See George Winterton's discussion of this aspect of the case in H P Lee and George Winterton (eds), Australian Constitutional Landmarks (2003) 128–129.
[168] [2001] USSC 16; 533 US 678, 712 (2001) (Kennedy J).
[169] Al-Kateb [2004] HCA 37; (2004) 219 CLR 562, 657 [285] (Callinan J).
[170] Al-Kateb [2004] HCA 37; (2004) 219 CLR 562, 584–5 [46] (McHugh J). Note that McHugh J set out several consequentialist arguments, including a 'form over substance' argument of doubtful merit. See the short response of Gummow J at 611 [134].
[171] Ibid 580 [31] (McHugh J); Al Khafaji [2004] HCA 38; (2004) 219 CLR 664, 668 [4] (McHugh J).
[172] See Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427; Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543, especially 562–3 [43] (McHugh J); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, 492 [30] (Gleeson CJ).
[173] Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, 492 [30] (Gleeson CJ). See also Electrolux Home Products Pty Ltd v Australian Workers' Union [2004] HCA 40; (2004) 209 ALR 116, 123–4 [21], citing with approval Lord Steyn's description of the presumption in R v Home Secretary; Ex parte Pierson [1997] UKHL 37; [1998] AC 539, 587, 589 as governing the relations between Parliament, the executive and the courts.
[174] See, eg, Chief Justice Murray Gleeson, 'Legality — Spirit and Principle' (Speech delivered at The Second Magna Carta Lecture, Sydney, 20 November 2003) <http://www.hcourt.gov.au/speeches/cj/cj_20nov.html> at 7 March 2006 in which his Honour argues that the principle of legality 'extends to the effective limitation of power'. Cf use of the term by Kirby J in Daniels Corporation v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543, 582 [106], and by French J in his excellent decision in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228; (2002) 123 FCR 298, 417 [448].
[175] Al-Kateb [2004] HCA 37; (2004) 219 CLR 562, 577 [19]–[20] (Gleeson CJ), citing with approval R v Secretary of State for Home Department; Ex parte Simms [1999] UKHL 33; [2000] 2 AC 115, 131 (Lord Hoffman).
[176] See, eg, Dawn Oliver, Constitutional Reform in the UK (2003) 98–9; TRS Allan 'The Common Law as Constitution: Fundamental Rights and First Principles' in Cheryl Saunders (ed), Courts of Final Jurisdiction — The Mason Court in Australia (1996) 148 (who notes that English courts no longer view individual liberty as 'solely residual', and that '[t]he common law … has its own set of constitutional rights, even if these are not formally entrenched against legislative repeal'). See also Conor Gearty, Principles of Human Rights Adjudication (2004), ch 4 who rejects the substantivist approach of Allan; George Winterton 'Constitutionally Entrenched Common Law Rights: Sacrificing Means to Ends?' in Charles Sampford and Kim Preston (eds), Interpreting Constitutions: Theories, Principles and Institutions, (1996) 121.
[177] Although note Sir Owen Dixon's view that the Constitution is informed by the 'anterior operation' of the common law: see Sir Owen Dixon, 'Sources of Legal Authority' in Judge Severin Woinarski (ed), Jesting Pilate (1965) 198, 199; see also Michael Wait, 'The Slumbering Sovereign: Sir Owen Dixon's Common Law Constitution Revisited' [2001] FedLawRw 3; (2001) 29 Federal Law Review 57, 68–70; Winterton, above n 176.
[178] Al-Kateb [2004] HCA 37; (2004) 219 CLR 562, 616 [150], 620 [161] (Kirby J).
[179] See, eg, ibid 607 [117] (Gummow J).
[180] See, eg, Transcript of Proceedings, Woolworths Ltd v Fels (High Court of Australia, Callinan J, 18 June 2002): To apply the principle of legality, the Court would 'suffer the opprobrium of obstructing the regulator. That is the legislative approach, is it not?'.
[181] Al-Kateb [2004] HCA 37; (2004) 219 CLR 562, 632–3 [203] (Hayne J).
[182] Ibid 640 [231]–[232] (Hayne J).
[183] McHugh J recognises that this was the purpose of the relevant provisions: ibid 581 [34] (McHugh J).
[184] Ibid 590 [63] (McHugh J).
[185] Corporate Affairs Commission (NSW) v Yuill [1991] HCA 28; (1991) 172 CLR 319, 346 (McHugh J). Kirby J has also been a vocal critic of the fiction. See, eg, State of New South Wales v Taylor [2001] HCA 15; (2001) 204 CLR 461, 484 [74] (Kirby J). See also Byrnes v The Queen; Hopwood v The Queen [1999] HCA 38; (1999) 199 CLR 1, 34 [80] (Kirby J): 'subjective intentions, even those that may reasonably be imputed to the makers of legislation, are irrelevant. The purposes of a legislature must be ascertained from the language of the legislation which it enacts. This is a cardinal rule.' On the status of legal fictions more generally, see Justice P W Young, 'Current Issues: Legal Fictions' (2000) 74 Australian Law Journal 795, 796–7 where it is argued that despite sustained judicial criticism, legal fictions are alive and well, and arguably growing in judicial discourse.
[186] Al-Kateb [2004] HCA 37; (2004) 219 CLR 562, 648 [258] (Hayne J). A position he maintained in Woolley (2004) 210 ALR 369, 428 [227] (Hayne J).
[187] Kruger [1997] HCA 27; (1997) 190 CLR 1, 110 (Gaudron J).
[188] Woolley (2004) 210 ALR 369, 383–4 [56] (McHugh J).
[189] Kruger [1997] HCA 27; (1997) 190 CLR 1, 110 (Gaudron J), cited in Woolley (2004) 210 ALR 369, 385 [59] (McHugh J).
[190] For instance, the Solicitor-General intimated that the 'huge variety of exceptions' could conceivably include children at boarding school: Transcript of Proceedings, Woolley [2004] HCATrans 2 (3 February 2004).
[191] European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 222 (entered into force 3 September 1953).
[192] Woolley (2004) 210 ALR 369, 384 [58] (McHugh J).
[193] A (FC) and others (FC) v Secretary of State for the Home Department [2004] UKHL 56.
[194] See, eg, Woolley (2004) 210 ALR 369, 386 [62] (McHugh J): 'the purpose of a law that authorises or requires the detention of a person by the Executive is determinative.'
[195] Ibid 389 [71] (McHugh J).
[196] See, eg, ibid 434 [260] (Callinan J).
[197] See Adrienne Stone, 'The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political Communication' [1999] MelbULawRw 26; (1999) 23 Melbourne University Law Review 668.
[198] Woolley (2004) 210 ALR 369, 391 [78] (McHugh J); see also 384 [58]: 'Whether detention is penal or punitive must depend on all the circumstances of the case.'
[199] Al-Kateb [2004] HCA 37; (2004) 219 CLR 562, 583 [42] (McHugh J).
[200] Woolley (2004) 210 ALR 369, 376 [29] (Gleeson CJ).
[201] Ibid 414–5 [165]–[166] (Gummow J).
[202] Ibid 419 [184] (Kirby J) (emphasis omitted).
[203] Al-Kateb [2004] HCA 37; (2004) 219 CLR 562, 651 [268] (Hayne J).
[204] See Leo Zaibert, 'Prolegomenon to a Theory of Punishment' (2005) 1(2) Law, Culture and the Humanities 221.
[205] HLA Hart, Punishment and Responsibility (1968) 5.
[206] A parallel example of the Court accepting a simplistic version of Hart as authority for a jurisprudential point, with equally disastrous results, is Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2002) 214 CLR 422, 442 [41] (Gleeson CJ, Gummow and Hayne JJ).
[207] Al Kateb [2004] HCA 37; (2004) 219 CLR 562, 647 [254] (Hayne J): '[N]othing about the decision making that must precede detention ... bespeaks an exercise of the judicial power.'
[208] This view of the separation of powers doctrine is a relatively new development in the Australian context. See Fiona Wheeler 'Original Intent and the Doctrine of the Separation of Powers in Australia' (1996) 7(2) Public Law Review 96.
[209] Al-Kateb [2004] HCA 37; (2004) 219 CLR 562, 651 [268] (Hayne J).
[210] Ibid 661–2 [298], [301] (Callinan J). His Honour's reference to Mr Al-Kateb's 'litigious endeavours' (at 653 [277]) similarly echoes the negative stereotype of asylum-seekers abusing the legal system by clogging the court with unmeritorious claims.
[211] Ibid 584–5 [45]–[47] (McHugh J): 'to enact legislation that requires the detention of a person who unlawfully enters Australia … is not an exercise by the Parliament of the judicial power of the Commonwealth.'
[212] Woolley (2004) 210 ALR 369, 427 [223] (Hayne J): 'it is their status of alienage which provides the critical connection with constitutional power'.
[213] Callinan J's fears about devious litigants creating the circumstances which would lead to their own release was addressed by the Al Masri test: see Al Masri [2003] FCAFC 70; (2003) 126 FCR 54, 88 [137], 97 [176].
[214] Stanley Cohen, States of Denial: Knowing About Atrocities and Suffering (2001) 7–8. For McHugh J's statement that using the description 'indefinite detention' is a half-truth, see Woolley (2004) 210 ALR 369, 394 [89] (McHugh J).
[215] Al-Kateb [2004] HCA 37; (2004) 219 CLR 562, 662 [301] (Callinan J). Such denial was also apparent in the eventual refusal by McHugh J in Woolley to endorse the term 'indefinite', despite its common sense usage: see above n 32.
[216] Al-Kateb [2004] HCA 37; (2004) 219 CLR 562, 651 [269] (Hayne J); 662 [301] (Callinan J); see also Al Khafaji [2004] HCA 38; (2004) 219 CLR 664, 678–9 [49] (Callinan J).
[217] Woolley (2004) 210 ALR 369, 385 [61], 403 [115] (McHugh J).
[218] Al-Kateb [2004] HCA 37; (2004) 219 CLR 562, 647 [253], 648 [256], 649 [259] (Hayne J).
[219] Ibid 648 [255] (Hayne J) (emphasis added), although these words are not used when the same purposes are formulated again at 650–1 [267] (Hayne J).
[220] Ibid 645 [247]; see also 650 [266] (Hayne J).
[221] See, eg, ibid 650 [48] (McHugh J).
[222] Ibid 586 [49] (McHugh J). See also above n 92.
[223] Al-Kateb [2004] HCA 37; (2004) 219 CLR 562, 600 [92] (Gummow J); Woolley (2004) 210 ALR 369, 407 [136] (Gummow J).
[224] Woolley (2004) 210 ALR 369, 407 [136] (Gummow J).
[225] Ibid 407 [137] (Gummow J).
[226] His Honour noted in Woolley (2004) 210 ALR 369 that the phrase has been used judicially to refer to the self-governing communities within the British Empire, concluding at 409 [146]: 'Here is a political idea whose time has come and gone. Still less is it sound constitutional doctrine to construe the aliens' power by reference to notions of "protection" of the "Australian community" by excluding aliens from "membership" of that community.'
[227] See, eg, Zadvydas[2001] USSC 16; , 533 US 678, 693 (2001) (Breyer J), in which the Court drew a distinction between the legal position of a migrant who had passed into US territory and one who had yet to enter. This is a distinction which Callinan J rejected, preferring to follow Scalia J's view that an alien who has 'totally extinguished' any right of presence in the country is in no different position than an 'inadmissible alien at the threshold of entry' — neither have a right to be released into the country: see Al-Kateb [2004] HCA 37; (2004) 219 CLR 562, 654–5 [284] (Callinan J).
[228] See Kim Rubenstein, 'Citizenship in the Constitutional Convention Debates: A Mere Legal Inference' (1997) 25 Federal Law Review 295.
[229] See, eg, Helen Irving, To Constitute a Nation: A Cultural History of Australia's Constitution (revised ed, 1999) ch 9.
[230] For an analysis of contemporary trends and how they may affect legal reasoning, see Hilary Charlesworth et al, 'Deep Anxieties: Australia and the International Legal Order' [2003] SydLawRw 21; (2003) 25 Sydney Law Review 423, 425.
[231] For the view that the purpose can be in 'suspense', see Al-Kateb [2004] HCA 37; (2004) 219 CLR 562, 576 [18], 578 [22]–[23] (Gleeson CJ).
[232] Ibid 576 [17] (Gleeson CJ).
[233] Ibid 599 [88], 600 [92], 609 [125], 613 [140] (Gummow J); 615 [146], 616 [149], 622 [167] (Kirby J). Cf McHugh J's retort at 588 [55].
[234] Ibid 662 [299], [301] (Callinan J).
[235] This marries neatly with his Honour's view that an indefinite detention law could not be justified if it fell within the incidental power (see above n 81), and his apparent amenability to a constitutional bill of rights: Al-Kateb [2004] HCA 37; (2004) 219 CLR 562, 594 [73] (McHugh J).
[236] See Alfred Whitehead, Science and the Modern World (first published 1926, 1946 ed) 13: 'the essence of dramatic tragedy … resides in the solemnity of the remorseless working of things.'
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