Al-Kateb v Godwin [2004] HCA 37 | Case summary

HIGH COURT OF AUSTRALIA

GLEESON CJ,

McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ

AHMED ALI AL-KATEB APPELLANT

AND

PHILIPPA GODWIN, DEPUTY SECRETARY, DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS & ORS RESPONDENTS

Al-Kateb v Godwin [2004] HCA 37

6 August 2004

A253/2003

ORDER

Appeal dismissed.
The respondents to pay the appellant's costs in this Court.

Cause removed under s 40 of the Judiciary Act 1903 (Cth)

Representation:

C M O'Connor with A Hamdan for the appellant (instructed by Hamdan Lawyers)

D M J Bennett QC, Solicitor-General of the Commonwealth with H C Burmester QC and S J Maharaj for the respondents (instructed by Australian Government Solicitor)

Interveners:

D M J Bennett QC, Solicitor-General of the Commonwealth with H C Burmester QC and S J Maharaj intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)

D S Mortimer SC with J K Kirk intervening on behalf of the Human Rights and Equal Opportunity Commission (instructed by Human Rights and Equal Opportunity Commission)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Al-Kateb v Godwin

Immigration – Unlawful non-citizens – Detention pending removal from Australia – No real prospect of removal from Australia in reasonably foreseeable future – Whether detention lawful under Migration Act 1958 (Cth) – Whether detention is temporally limited by purpose of removal – Whether requirement to remove as soon as reasonably practicable implies time limit on detention.

Statutes – Acts of Parliament – Construction and interpretation – Where meaning ambiguous or uncertain – Presumption of legislative intention not to invade personal common law rights.

Constitutional law (Cth) – Judicial power of the Commonwealth – Unlawful non-citizen in immigration detention – No real prospect of removal from Australia in reasonably foreseeable future – Whether provision for indefinite detention without judicial order infringes Chapter III of the Constitution – Whether detention involves an exercise of judicial power of the Commonwealth by the Executive – Whether detention is for a non-punitive purpose.

Constitutional law (Cth) – Construction and interpretation – Whether Constitution to be interpreted to be consistent with international law of human rights and fundamental freedoms.

Constitution, Ch III.

Migration Act 1958 (Cth), ss 189, 196, 198.

GLEESON CJ. The Migration Act 1958 (Cth) ("the Act") provides for administrative detention of unlawful non-citizens. For present purposes, unlawful non-citizens are aliens who have entered Australia without permission, or whose permission to remain in Australia has come to an end. In this context, alien includes a stateless person, such as the appellant. Detention is mandatory, not discretionary. It is not a form of extra-judicial punishment. It exists "in the context ... of executive powers to receive, investigate and determine an application by [the] alien for an entry permit and (after determination) to admit or deport"¹. It is an incident of the exercise of those powers. The Act envisages that the detention will come to an end, by the grant of a visa which entitles the alien to enter the Australian community, or by removal of the alien from Australia, either at the request of the alien, or following the conclusion of an unsuccessful attempt to obtain a visa. Applications for visas may involve a lengthy process of decision-making, and administrative and judicial review. The time taken by the process may be difficult to predict. In that respect, the period of administrative detention may be uncertain. Similarly, the process of removal may take some time to arrange. In the ordinary case, however, the period, although uncertain, is finite. Furthermore, as was pointed out in Chu Kheng Lim v Minister for Immigration, in the ordinary case, the detention can be brought to an end upon the alien making a request to be removed². There are, however, exceptional cases, where a visa application has been determined adversely to an alien, or an alien has requested removal, but removal is not possible in the circumstances which prevail at the time and which are likely to prevail in the foreseeable future. What happens then? Is the consequence indefinite, perhaps permanent, detention? The Act does not, in express terms, address that problem³.
The appellant, a stateless person, arrived in Australia without a visa. He was taken into immigration detention, and applied for a visa. His application failed. He wrote to the Minister requesting to be removed. Removal did not take place, not because of any want of trying on the part of the Australian authorities, or because of any personal fault of the appellant, but because attempts to obtain the necessary international co-operation were unsuccessful. The Federal Court found that there was no real likelihood or prospect of removal of the appellant in the reasonably foreseeable future.
In a similar case, Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri, the Full Court of the Federal Court held that a person in the position of the appellant is entitled to be released from immigration detention, if and when the purpose of removal becomes incapable of fulfilment. For the reasons that follow, I agree with that conclusion. A similar problem has arisen, and a similar answer has been given, in the United Kingdom, the United States, and Hong Kong. However, in each country the constitutional and statutory context is controlling, and differs. In particular, while in those jurisdictions provision is made for administrative detention of aliens, such detention is discretionary rather than mandatory, and the courts are concerned with powers, rather than obligations, to detain. Questions of reasonableness in the exercise of administrative powers may give rise to considerations that are not directly relevant to a system of mandatory detention.

"(1) An officer must remove as soon as reasonably practicable an unlawful non-citizen who asks the Minister, in writing, to be so removed.

...

(6) An officer must remove as soon as reasonably practicable an unlawful non-citizen if:

(a) the non-citizen is a detainee; and

(b) the non-citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and

(i) the grant of the visa has been refused and the application has been finally determined;

... and

(d) the non-citizen has not made another valid application ..."

Both sub-ss (1) and (6) apply in the case of the appellant. Removal is not necessarily limited to removal to an unlawful non-citizen's country of nationality. However, it does not include simply ejecting a person physically from Australian territory, and therefore, in a given case, may require international co-operation as mentioned above.
Section 189 provides that, if an officer knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen, the officer must detain the person.
Section 196, dealing with the period of detention, provides:

"(1) An unlawful non-citizen detained under section 189 must be kept in immigration detention until he or she is:

(a) removed from Australia under section 198 or 199; or

(b) deported under section 200; or

(2) To avoid doubt, subsection (1) does not prevent the release from immigration detention of a citizen or a lawful non-citizen.

(3) To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than for removal or deportation) unless the non-citizen has been granted a visa."

The word "detention" in sub-s (3) means "lawful detention". If it were otherwise, the provision would constitute an unconstitutional interference with judicial power⁹. Parliament cannot deprive the courts of the power to order the release of a person from unlawful detention. Consequently, it is the meaning of sub-s (1), understood in its constitutional and statutory context, that is in question.
The appellant was taken into detention under s 189, and was to be kept in detention under s 196 until he was removed from Australia under s 198 or granted a visa. He was not granted a visa, and he requested to be removed. Section 198 required that he be removed as soon as reasonably practicable. He wanted to be removed. The authorities wanted to remove him. But removal was not practicable, and was not likely to be practicable in the foreseeable future.
One of the features of a system of mandatory, as distinct from discretionary, detention is that circumstances personal to a detainee may be irrelevant to the operation of the system. A person in the position of the appellant might be young or old, dangerous or harmless, likely or unlikely to abscond, recently in detention or someone who has been there for years, healthy or unhealthy, badly affected by incarceration or relatively unaffected. The considerations that might bear upon the reasonableness of a discretionary decision to detain such a person do not operate. The Act is expressed in terms which appear to assume the possibility of compliance with the unqualified statutory obligation imposed by s 198. That assumption is made the basis of the specification of the period of detention required and authorised by s 196. The period is expressed to be finite. In cases where the assumption is valid, the period of mandatory detention may be relatively brief, save to the extent that it is prolonged by a detainee's own action in seeking a visa, with the delays that may involve. And, where the assumption is valid, the detention can always be brought to an end by the detainee's own request for removal. As the facts of the present case illustrate, however, compliance with the unqualified statutory obligation may require the co-operation of others, whose co-operation cannot be compelled. Compliance with an obligation defines the period of detention. The obligation, however, in its nature is subject to the possibility that it cannot be fulfilled for reasons unrelated to any fault on the part of the detainer, or the detainee.
The respondents point out that the capacity of a court to investigate, and decide, the practicability of removal in some cases where delicate, and perhaps confidential, matters of international diplomacy are concerned, may be limited. That is true, but if there were an allegation of non-compliance with the obligation imposed by s 198, that would give rise to a justiciable issue, difficult though it may be to resolve. The respondents also point out that international circumstances change, sometimes rapidly and unpredictably, and that it will rarely, if ever, be possible to say that removal will never become practicable. Even so, the provisions of the Act with which we are concerned do not address the possibility of a situation such as has arisen in the present case, and do not expressly provide for it. It should be acknowledged that the same may be said of some statements in past judgments of this Court as to the purpose and character of immigration detention.

"When an infant is brought before the Court by habeas corpus, if he be of an age to exercise a choice, the Court leaves him to elect where he will go. If he be not of that age, and a want of direction would only expose him to dangers or seductions, the Court must make an order for his being placed in the proper custody."

Speaking of an order to discharge under habeas corpus a person unlawfully detained as a lunatic, Coleridge J said, in R v Pinder; In re Greenwood¹⁸, that:

"when, on the affidavits, it appears clear that the party confined is in such a state of mind that to set him at large would be dangerous either to the public or himself, it becomes a duty and is within the common law jurisdiction of the Court, or a member of it, to restrain him from his liberty, until the regular and ordinary means can be resorted to of placing him under permanent legal restraint."

It is not antithetical to the nature of habeas corpus for an order to be made upon terms or conditions which relate directly to the circumstances affecting an applicant's right to be released from detention, and reflect temporal or other qualifications upon that right. The author of Antieau, The Practice of Extraordinary Remedies¹⁹ says, of the practice in the United States, that "[c]ourts can release petitioners on condition that they post bonds to act in indicated manners". Reference is made to United States ex rel Chong Mon v Day²⁰, where, in 1929, a Federal judge ordered the discharge of a petitioner "on his filing bond in the sum of $500, conditioned that he will depart from the United States as a seaman on a foreign bound vessel within 30 days from the date of his release".

The power given by s 22 of the Federal Court of Australia Act, to grant remedies on such terms and conditions as the Court thinks just, so that, as far as possible, all matters in contention between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters avoided, extends to the imposition of conditions designed to ensure an unlawful non-citizen's availability for removal if and when that becomes reasonably practicable.
A more difficult question, which does not arise in the present case, concerns the power of a court to impose conditions or restraints in the case of a person who is shown to be a danger to the community, or to be likely to abscond. It may be that the reason for difficulty in arranging for the removal of a detainee is that the detainee is regarded by his country of nationality, and other countries, as a dangerous person. Whether that could affect the detainee's right to be released from administrative detention, or the terms and conditions of release, is a matter that could arise for decision in another case.
The appeal should be allowed with costs. I agree with the consequential orders proposed by Gummow J.
McHUGH J. The principal issue in this appeal concerns the power of the Parliament to order the detention of an unlawful non-citizen in circumstances where there is no prospect of him being removed from Australia in the reasonably foreseeable future. There is also an important point of statutory construction involved in the case that is anterior to the principal issue. Hence, the appeal raises two issues. First, do ss 189, 196 and 198 of the Migration Act 1958 (Cth) ("the Act"), when properly construed, purport to authorise the indefinite detention of an unlawful non‑citizen in circumstances where there is no real prospect of removing the non-citizen? Second, if they do purport to authorise such detention, are they invalid because they are beyond the legislative power of the Commonwealth? In my opinion, the first issue should be resolved in the affirmative and the second in the negative. As a result, tragic as the position of the appellant certainly is, his appeal must be dismissed.
The material facts of the case are set out in the judgment of Gummow J. I need not repeat them.

First issue

For the reasons given by Hayne J, ss 189, 196 and 198 of the Act require Mr Al-Kateb to be kept in immigration detention until he is removed from Australia. The words of ss 196 and 198 are unambiguous. They require the indefinite detention of Mr Al-Kateb, notwithstanding that it is unlikely that any country in the reasonably foreseeable future will give him entry to that country. The words of the three sections are too clear to read them as being subject to a purposive limitation or an intention not to affect fundamental rights.
Detention under s 196 for the purpose of removal under s 198 will cease to be detention for that purpose only when the detention extends beyond the time when the removal of the non-citizen has become "reasonably practicable". As long as removal of an unlawful non-citizen is not reasonably practicable, ss 196 and 198 require that person's detention to continue until it is reasonably practicable or that person is given a visa. Minimising the time that an unlawful non-citizen must spend in detention was undoubtedly the reason for providing a time limit for removal or deportation. But that does not mean that the detention of an unlawful non-citizen is limited to a maximum period expiring when it is impracticable to remove or deport the person.
The unambiguous language of s 196 – particularly sub-s (3) – indicates that Parliament intends detention to continue until one of the conditions expressly identified therein – removal, deportation or granting of a visa – is satisfied.

Second issue

In Chu Kheng Lim v Minister for Immigration²¹, the Court decided that the power conferred on the Parliament by s 51(xix) of the Constitution extends to authorising the executive government to detain an alien in custody for the purpose of expulsion or deportation. It also decided that detention for that purpose does not infringe the provisions of Ch III of the Constitution. The ratio decidendi of the case is expressed in the following passage in the joint judgment of Brennan, Deane and Dawson JJ²²:

"It can therefore be said that the legislative power conferred by s 51(xix) of the Constitution encompasses the conferral upon the Executive of authority to detain (or to direct the detention of) an alien in custody for the purposes of expulsion or deportation. Such authority to detain an alien in custody, when conferred upon the Executive in the context and for the purposes of an executive power of deportation or expulsion, constitutes an incident of that executive power. By analogy, authority to detain an alien in custody, when conferred in the context and for the purposes of executive powers to receive, investigate and determine an application by that alien for an entry permit and (after determination) to admit or deport, constitutes an incident of those executive powers. Such limited authority to detain an alien in custody can be conferred on the Executive without infringement of Ch III's exclusive vesting of the judicial power of the Commonwealth in the courts which it designates. The reason why that is so is that, to that limited extent, authority to detain in custody is neither punitive in nature nor part of the judicial power of the Commonwealth. When conferred upon the Executive, it takes its character from the executive powers to exclude, admit and deport of which it is an incident."

This passage does not mean that the power to detain pending deportation is an incidental constitutional power, that is, a power that is merely incidental to the aliens power.
Incidental powers, unlike true heads of s 51 power, operate in a space between the powers expressly granted and those not expressly granted to the Parliament. Incidental powers may only be exercised where they are reasonably necessary to facilitate the making of laws with respect to the head of power of which they are an incident. In a Constitution that grants limited powers to the federal legislature, they are, in a sense, additional to what was granted. Their connection with a head of power is closely scrutinised because they involve the acquisition of additional legislative power, not expressly granted to the Commonwealth by the Constitution.
In using the term "incident" in the above passage, however, Brennan, Deane and Dawson JJ were describing an event that occurs in the course of the executive government's authority to deport or expel. They were not speaking of a measure of constitutional power. They were not speaking of a true incidental power, that is, a power that stands outside the head of constitutional power but can be justified because it is necessary to protect or give effect to a constitutional power. The power to detain aliens is not an incidental power. It is not the same as a power to detain a person suspected of carrying a weapon on an overseas flight regulated under the trade and commerce power. Detaining such a person is not trade or commerce. If the Parliament confers power to detain such a suspect, it can only be justified as incidental to the trade and commerce power if it is necessary to protect persons, property or transactions involved in overseas commerce. A law authorising detention of an alien stands in a different category. It is a law with respect to the subject of aliens in the same way as a law requiring aliens to register with a government official is a law with respect to aliens. Such laws are not incidental to the aliens power. They deal with the very subject of aliens. They are at the centre of the power, not at its circumference or outside the power but directly operating on the subject matter of the power.
Significantly in Lim, the joint judgment of Brennan, Deane and Dawson JJ said of the laws in question in that case²³:

"Their object and operation are, in the words of s 54J, to ensure that 'each non-citizen who is a designated person should be kept in custody until he or she' leaves Australia or is given an entry permit. They constitute, in their entirety, a law or laws with respect to the detention in custody, pending departure or the grant of an entry permit, of the class of 'designated' aliens to which they refer. As a matter of bare characterization, they are, in our view, a law or laws with respect to that class of aliens. As such, they prima facie fall within the scope of the legislative power with respect to 'aliens' conferred by s 51(xix). The question arises whether, nonetheless, their enactment was not authorized by that grant of legislative power by reason of some express or implied restriction or limitation to be found in the Constitution when read as a whole. For the plaintiffs, it is argued that such a restriction or limitation is implicit in Ch III's exclusive vesting of the judicial power of the Commonwealth in the courts which it designates." (emphasis added)

In Lim, I said²⁴ that the power conferred on the Parliament by s 51(xix) is "limited only by the description of the subject matter". In Re Patterson; Ex parte Taylor, I said that "as long as a person falls within the description of 'aliens', the power of the Parliament to make laws affecting that person is unlimited unless the Constitution otherwise prohibits the making of the law"²⁵. In Lim, I also said that a law requiring detention of aliens for the purpose of deportation or processing of applications would not cease to be one with respect to aliens even if the detention went beyond what was necessary to effect those objects²⁶. That is because any law that has aliens as its subject is a law with respect to aliens.
If the power to detain aliens for the purpose of deportation was merely an incidental power, it would be impossible to justify the detention of an alien once it appeared that deportation could not be effected or could not be effected in the foreseeable future. But, as I have pointed out, the power to detain aliens is not a power incidental to the s 51(xix) head of power. It is a law with respect to the subject matter of that power.
The principles expressed in the above passage in the joint judgment of Brennan, Deane and Dawson JJ in Lim do not become inapplicable, therefore, when the alien cannot be deported immediately. The detention of the alien remains a law with respect to the s 51(xix) power.
Nor does the continued detention of a person who cannot be deported immediately infringe Ch III of the Constitution. Chapter III is always infringed where the detention of a person other than by a curial order – whatever the purpose of the detention – is authorised by a law of the Commonwealth and imposes punishment. However, a law authorising detention will not be characterised as imposing punishment if its object is purely protective. Ex hypothesi, a law whose object is purely protective will not have a punitive purpose. That does not mean, however, that a law authorising detention in the absence of a curial order, but whose object is purely protective, cannot infringe Ch III of the Constitution. Even a law whose object is purely protective will infringe Ch III if it prevents the Ch III courts from determining some matter that is a condition precedent to authorising detention.
A law requiring the detention of the alien takes its character from the purpose of the detention. As long as the purpose of the detention is to make the alien available for deportation or to prevent the alien from entering Australia or the Australian community, the detention is non-punitive. The Parliament of the Commonwealth is entitled, in accordance with the power conferred by s 51(xix) and without infringing Ch III of the Constitution, to take such steps as are likely to ensure that unlawful non-citizens do not enter Australia or become part of the Australian community and that they are available for deportation when that becomes practicable. As Latham CJ pointed out in :

"Deportation is not necessarily punishment for an offence. The Government of a country may prevent aliens entering, or may deport aliens ... Exclusion in such a case is not a punishment for any offence. Neither is deportation ... The deportation of an unwanted immigrant (who could have been excluded altogether without any infringement of right) is an act of the same character: it is a measure of protection of the community from undesired infiltration and is not punishment for any offence." (emphasis added)

It is open to the Parliament, therefore, to enact legislation that requires unlawful non-citizens to be detained so as to ensure that they do not enter Australia or the Australian community and can be deported when, and if, it is practicable to do so. To hold that Parliament cannot do so would mean that any person who unlawfully entered Australia and could not be deported to another country could thwart the operation of the Migration Act. It would mean that such persons, by their illegal and unwanted entry, could become de facto Australian citizens unless the Parliament made it a criminal offence with a mandatory sentence for a person to be in Australia as a prohibited immigrant. However, passing such a law is not the only way that the Parliament can achieve the object of keeping unlawful non-citizens from entering the Australian community. If Parliament were forced to achieve its object of preventing entry by enacting such laws, form would triumph over substance. The unlawful non-citizen would still be detained in custody. The only difference between detention under such a law and the present legislation would be that the detention would be the result of a judicial order upon a finding that the person was a prohibited immigrant. In substance, the position under that hypothesis would be no different in terms of liberty from what it is under ss 189, 196 and 198. Under the hypothesis, the only issue for the court would be whether the person was a prohibited immigrant. Under the present legislation, the issue for the courts is whether the person is an unlawful non-citizen. A finding of being a prohibited immigrant or an unlawful non-citizen produces the same result – detention. The only difference is that in one case the detention flows by the court applying the legislation and making an order and in the other it flows from the direct operation of the Act.
I cannot accept that the words "[t]he judicial power of the Commonwealth shall be vested in ... the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction" in s 71 of the Constitution prohibit the Parliament from legislating to require that unlawful non-citizens be detained until they can be deported. By implication, s 71, when read with ss 1 and 61 of the Constitution, prohibits the Parliament of the Commonwealth from exercising the judicial power of the Commonwealth. But to enact legislation that requires the detention of a person who unlawfully enters Australia until he or she is deported from Australia is not an exercise by the Parliament of the judicial power of the Commonwealth. It is no more an exercise of judicial power than is a law requiring enemy prisoners-of-war to be detained in custody until they are deported from Australia²⁸.
Nothing in ss 189, 196 or 198 purports to prevent courts, exercising federal jurisdiction, from examining any condition precedent to the detention of unlawful non-citizens. Nor is it possible to hold that detention of unlawful non-citizens – even where their deportation is not achievable – cannot be reasonably regarded as effectuating the purpose of preventing them from entering Australia or entering or remaining in the Australian community. Indeed, detention is the surest way of achieving that object. If the Parliament of the Commonwealth enacts laws that direct the executive government to detain unlawful non-citizens in circumstances that prevent them from having contact with members of or removing them from the Australian community, nothing in the Constitution – including Ch III – prevents the Parliament doing so. For such laws, the Parliament and those who introduce them must answer to the electors, to the international bodies who supervise human rights treaties to which Australia is a party and to history. Whatever criticism some – maybe a great many – Australians make of such laws, their constitutionality is not open to doubt.

"has reason to believe that any naturalized person is disaffected or disloyal, he may, by warrant under his hand, order him to be detained in military custody in such place as he thinks fit during the continuance of the present state of war".

The validity of that regulation was upheld by this Court in Lloyd v Wallach⁴⁷. The Court unanimously held that the regulation was validly made under the War Precautions Act 1914 (Cth) which was enacted under the defence power. No member of the Court suggested that the regulation infringed Ch III of the Constitution.
During the Second World War, reg 26 of the National Security (General) Regulations 1939 (Cth) provided:

"The Minister may if satisfied with respect to any particular person that with a view to prevent that person acting in any manner prejudicial to the public safety or the defence of the Commonwealth it is necessary to do so make an order ... directing that he be detained in such place and under such conditions as the Minister from time to time determines ..."

This Court unanimously upheld the validity of the regulation in Ex parte Walsh⁴⁸. Starke J said that the application for habeas corpus was "hopeless"⁴⁹. In Little v The Commonwealth⁵⁰, Dixon J held that an order of the Minister under this regulation was not examinable upon any ground other than bad faith.
During the greater part of the period when reg 26 was in force, the relevant Minister was Dr H V Evatt, who had been a Justice of this Court and was later to become President of the United Nations General Assembly. According to a speech he gave in Parliament on 19 July 1944, 6174 persons were detained under this regulation at the time when he became the Minister and 1180 persons were still detained under the regulation in July 1944⁵¹. He does not appear to have thought that, in making orders under reg 26, he was acting in breach of Ch III of the Constitution.
Nor am I aware of anybody else suggesting that detention under these Regulations infringed Ch III of the Constitution. The purpose of the detention was not punitive but protective. I see no reason to think that this Court would strike down similar regulations if Australia was again at war in circumstances similar to those of 1914-1918 and 1939-1945.
Finally, contrary to the view of Kirby J, courts cannot read the Constitution by reference to the provisions of international law that have become accepted since the Constitution was enacted in 1900. Rules of international law at that date might in some cases throw some light on the meaning of a constitutional provision. Interpretation of the term "aliens" by reference to the jus soli or jus sanguinis is an example. But rules of international law that have come into existence since 1900 are in a different category.
The claim that the Constitution should be read consistently with the rules of international law has been decisively rejected by members of this Court on several occasions. As a matter of constitutional doctrine, it must be regarded as heretical. In Polites v The Commonwealth, the Court accepted that, so far as the language of a statute permits, it should be interpreted and applied in conformity with the established rules of international law⁵². That is a rule of construction of long standing. The rationale for the rule is that the legislature is taken not to have intended to legislate in violation of the rules of international law when the legislation was enacted. Accordingly, the law is construed as containing an implication to that effect. But, as decided, the implication must give way where the words of the statute are inconsistent with the implication. No doubt the rule of construction had some validity when the rules of international law were few and well-known. Under modern conditions, however, this rule of construction is based on a fiction. Gone are the days when the rules of international law were to be found in the writings of a few well-known jurists.

"diplomatic correspondence, policy statements, press releases, the opinions of official legal advisers, official manuals on legal questions ... executive decisions and practices, orders to naval forces etc, comments by governments on drafts produced by the International Law Commission, state legislation, international and national judicial decisions, recitals in treaties and other international instruments, a pattern of treaties in the same form, the practice of international organs, and resolutions relating to legal questions in the United Nations General Assembly."⁵⁵

Given the widespread nature of the sources of international law under modern conditions, it is impossible to believe that, when the Parliament now legislates, it has in mind or is even aware of all the rules of international law. Legislators intend their enactments to be given effect according to their natural and ordinary meaning. Most of them would be surprised to find that an enactment had a meaning inconsistent with the meaning they thought it had because of a rule of international law which they did not know and could not find without the assistance of a lawyer specialising in international law or, in the case of a treaty, by reference to the proceedings of the Joint Standing Committee on Treaties. In Minister for Immigration and Ethnic Affairs v Teoh, counsel for the Minister told this Court that Australia was "a party to about 900 treaties"⁵⁶. When one adds to the rules contained in those treaties, the general principles of law recognised by civilised nations and the rules derived from international custom, it becomes obvious that the rationale for the rule that a statute contains an implication that it should be construed to conform with international law bears no relationship to the reality of the modern legislative process. Be that as it may, the rule of construction recognised in Polites was reaffirmed by this Court in Teoh⁵⁷ and by Gummow and Hayne JJ in Kartinyeri v The Commonwealth⁵⁸. It is too well established to be repealed now by judicial decision.
However, this Court has never accepted that the Constitution contains an implication to the effect that it should be construed to conform with the rules of international law. The rationale for the rule and its operation is inapplicable to a Constitution – which is a source of, not an exercise of, legislative power. The rule, where applicable, operates as a statutory implication. But the legislature is not bound by the implication. It may legislate in disregard of it. If the rule were applicable to a Constitution, it would operate as a restraint on the grants of power conferred. The Parliament would not be able to legislate in disregard of the implication. In Polites, Dixon J, after accepting that the implication applied in relation to statutes, said⁵⁹:

"The contention that s 51(vi) of the Constitution should be read as subject to the same implication, in my opinion, ought not to be countenanced. The purpose of Pt V of Ch I of the Constitution is to confer upon an autonomous government plenary legislative power over the assigned subjects. Within the matters placed under its authority, the power of the Parliament was intended to be supreme and to construe it down by reference to the presumption is to apply to the establishment of legislative power a rule for the construction of legislation passed in its exercise. It is nothing to the point that the Constitution derives its force from an Imperial enactment. It is none the less a constitution."

In Kartinyeri, Gummow and Hayne JJ cited that passage with approval⁶⁰. Their Honours went on to point out that in Horta v The Commonwealth⁶¹ the "judgment of the whole Court affirmed that no provision of the Constitution confines the legislative power with respect to 'External affairs' to the enactment of laws which are consistent with, or which relate to treaties or matters which are consistent with, the requirements of international law"⁶². In Kartinyeri, Gummow and Hayne JJ rejected a submission that in essence "sought to apply a rule for the construction of legislation passed in the exercise of the legislative power to limit the content of the legislative power itself"⁶³.
Most of the rules⁶⁴ now recognised as rules of international law are of recent origin. If Australian courts interpreted the Constitution by reference to the rules of international law now in force, they would be amending the Constitution in disregard of the direction in s 128 of the Constitution. Section 128 declares that the Constitution is to be amended only by legislation that is approved by a majority of the States and "a majority of all the electors voting". Attempts to suggest that a rule of international law is merely a factor that can be taken into account in interpreting the Constitution cannot hide the fact that, if that is done, the meaning of the Constitution is changed whenever that rule changes what would otherwise be the result of the case. The point is so obvious that it hardly needs demonstration. But a simple example will suffice to show the true character of what is done if courts take a post-1900 rule of international law into account. Immediately before the rule was recognised, our Constitution had meanings that did not depend on that rule. Either the rule of international law has effect on one or more of those meanings or it has no effect. If it has an effect, its invocation has altered the meaning of the Constitution overnight. As a result, a court that took the rule into account has amended the Constitution without the authority of the people acting under s 128 of the Constitution. It has inserted a new rule into the Constitution. Take this case. The issues are whether ss 189, 196 and 198 are laws with respect to aliens or are exercises by the Parliament and not the federal courts of the judicial power of the Commonwealth. If this Court had to take a rule of international law into account in interpreting those powers, the rule would either confirm what was already inherent in the powers or add to or reduce them. If the international rule is already inherent in the power it is . If it is not, its invocation alters the constitutional meaning of "aliens" or "judicial power of the Commonwealth" or both.

Conclusion

Under the aliens power, the Parliament is entitled to protect the nation against unwanted entrants by detaining them in custody. As long as the detention is for the purpose of deportation or preventing aliens from entering Australia or the Australian community, the justice or wisdom of the course taken by the Parliament is not examinable in this or any other domestic court. It is not for courts, exercising federal jurisdiction, to determine whether the course taken by Parliament is unjust or contrary to basic human rights. The function of the courts in this context is simply to determine whether the law of the Parliament is within the powers conferred on it by the Constitution. The doctrine of separation of powers does more than prohibit the Parliament and the Executive from exercising the judicial power of the Commonwealth. It prohibits the Ch III courts from amending the Constitution under the guise of interpretation.

Order

The appeal should be dismissed. I agree with the orders proposed by Hayne J.
GUMMOW J. The first and second respondents are officers of the Department administered by the third respondent, the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister"). On the application of the Attorney-General of the Commonwealth under s 40 of the Judiciary Act 1903 (Cth) ("the Judiciary Act"), this Court ordered the removal of the whole of the cause constituted by the appeal by Mr Al‑Kateb then pending in the Federal Court of Australia.
It is that appeal pending in the Federal Court which has been heard in this Court and is the subject of these reasons. This Court is not exercising the appellate jurisdiction conferred by s 73 of the Constitution. The jurisdiction is that of the Federal Court conferred by Pt III Div 2 (ss 24‑30) of the Federal Court of Australia Act 1976 (Cth) ("the Federal Court Act"); Div 2 is headed "Appellate and related Jurisdiction".
The appeal is brought against a decision of the Federal Court (von Doussa J) delivered on 3 April 2003 and dismissing an application by Mr Al‑Kateb brought under s 39B of the Judiciary Act. The principal relief sought on the appeal is a declaration that the appellant is "unlawfully detained" and an order in the nature of habeas corpus directing the Minister to cause the appellant forthwith to be released from immigration detention.

The facts

There is no dispute between the appellant on one side and the Minister and the Attorney-General on the other respecting the relevant facts. The facts may be stated as follows. The appellant arrived in Australia in mid‑December 2000, by vessel, without a passport or Australian visa. He was born in Kuwait on 29 July 1976 and is a Palestinian. He has lived for most of his life in Kuwait, save for a brief period when he resided in Jordan, it would seem illegally. The appellant submitted, and it was not contested, that he is a "stateless person". That term is defined in Art 1 of the Convention relating to the Status of Stateless Persons ("the Stateless Persons Convention")⁷⁶ as meaning one "who is not considered as a national by any State under the operation of its law"⁷⁷. Long term residency in Kuwait or birth there did not guarantee to Palestinians citizenship or the right to permanent residence⁷⁸.

Statelessness

At the time of the adoption of the Constitution, the phenomenon of "double nationality" was well understood⁷⁹, but that of the "stateless person" achieved significance only in the course of the twentieth century⁸⁰. As late as 1916, the House of Lords reserved the question whether "this country will recognize a man as having no nationality" so as to guard "against appearing to assent to such a proposition"⁸¹. Later developments respecting statelessness are significant for the interpretation of the constitutional term "alien".
Part 2 of the Migration Act 1958 (Cth) ("the Act") (ss 13‑274) is headed "Control of arrival and presence of non‑citizens". This appeal is concerned principally with provisions in Div 7 (ss 188‑197) headed "Detention of unlawful non‑citizens", and Div 8 (ss 198-199) headed "Removal of unlawful non‑citizens".
The appellant answers the statutory description in s 14 of "unlawful non‑citizen"; he is in the migration zone, is not an Australian citizen, and does not hold a visa.
Of s 51(xix), Quick and Garran wrote⁸²:

"In English law an alien may be variously defined as a person who owes allegiance to a foreign State, who is born out of the jurisdiction of the Queen, or who is not a British subject."

Later experience, and the appearance of the class of stateless persons, has shown that these various definitions are not interchangeable. The appellant's status as a stateless person takes him outside the meaning given to the term "alien" in the joint judgment of six members of the Court in Nolan v Minister for Immigration and Ethnic Affairs⁸³. Their Honours said⁸⁴:

"As a matter of etymology, 'alien', from the Latin alienus through old French, means belonging to another person or place. Used as a descriptive word to describe a person's lack of relationship with a country, the word means, as a matter of ordinary language, 'nothing more than a citizen or subject of a foreign state'⁸⁵."

On the other hand, in her dissenting judgment in Nolan⁸⁶, Gaudron J said that "[f]or most purposes" an alien is to be identified by reference to the absence of that criterion, such as citizenship, which determines membership of the community constituting the body politic of the nation state "from whose perspective the question of alien status is to be determined". That appears to assume a relevant logical universe comprising citizens and aliens, and no others, so that all non‑Australian citizens are aliens in the constitutional sense of the term.
In many cases, the distinctions, express or implicit, in previous authorities will be immaterial to the result reached. For example, the applicants in Re Minister for Immigration and Multicultural Affairs; Ex parte Te⁸⁷ and the applicant in Shaw v Minister for Immigration and Multicultural Affairs⁸⁸ were born outside Australia, with Cambodian or Vietnamese, and British nationality respectively, and to parents who were not Australian citizens. But the appellant here is destitute of any nationality. Does that condition deny him the character of a constitutional "alien"? It is unnecessary to decide that question now, particularly in the absence of full argument. That is because, at all events, and as the respondents submitted, the appellant is within the reach of the immigration power in s 51(xxvii) and laws supported by that power⁸⁹.

The history of the legislation

From 1901 to 1994, federal law contained offence provisions respecting unlawful entry and presence in Australia, which was punishable by imprisonment as well as by liability to deportation. The legislation gave rise to various questions of construction which reached this Court⁹⁰. The first of these provisions was made by the Immigration Restriction Act 1901 (Cth) ("the 1901 Act")⁹¹. Section 7 thereof stated:

"Every prohibited immigrant entering or found within the Commonwealth in contravention or evasion of this Act shall be guilty of an offence against this Act, and shall be liable upon summary conviction to imprisonment for not more than six months, and in addition to or substitution for such imprisonment shall be liable pursuant to any order of the Minister to be deported from the Commonwealth.

Provided that the imprisonment shall cease for the purpose of deportation, or if the offender finds two approved sureties each in the sum of Fifty pounds for his leaving the Commonwealth within one month."

As enacted in 1958, s 27 of the Act continued this pattern. That provision eventually became s 77 of the Act, but this was repealed by s 17 of the Migration Reform Act 1992 (Cth) ("the 1992 Act"). It has not been replaced⁹².

The legislation has also provided for detention by the executive branch of government and without adjudication of criminal guilt pending deportation and pending determination of status. For example, s 8C of the 1901 Act⁹³ authorised the keeping in custody, "pending deportation and until he is placed on board a vessel for deportation from Australia", of any person ordered by the Minister to be deported. Similar provisions were construed by this Court in Koon Wing Lau v Calwell⁹⁴. The Court rejected the submission recorded by Latham CJ that they were invalid for permitting "unlimited imprisonment"⁹⁵. The legislation escaped invalidity because it "[did] not create or purport to create a power to keep a deportee in custody for an unlimited period"⁹⁶ and, rather, implied a purpose such that "unless within a reasonable time [the deportee] is placed on board a vessel he would be entitled to his discharge on habeas"⁹⁷. These statements are important for the construction of the provisions of the Act relied on to continue the detention of the appellant.
In saying in Calwell that in the statute "the words 'pending deportation' imply purpose"⁹⁸, Dixon J was not reading the statute as imposing legal consequences purely on a legislative or executive opinion as to the attainability of that purpose. Such a construction would have invited an attack on validity of a similar nature to that which shortly after Calwell was to succeed in Australian Communist Party v The Commonwealth⁹⁹. (That case is authority for the basic proposition that the validity of a law or of an act of the executive branch done under a law cannot depend upon the view of the legislature or executive officer that the conditions requisite for validity have been satisfied.) Rather, Dixon J went on in Calwell to describe the purpose as one to be attained within "a reasonable time", to be assessed, if need be, by a court on an application for habeas corpus¹⁰⁰. Consistently with that reasoning, the Court in the present case should be slow to construe the Act as if all that were requisite is an executive opinion as to the continued viability of a purpose of deportation.

The Australian community

In R v Forbes; Ex parte Kwok Kwan Lee, Barwick CJ said¹⁰¹:

"It scarce needs saying that a prohibited immigrant may not by any means become a member of the Australian community whilst he is a prohibited immigrant. By the very description he is not a person having any title to remain in the country."

It is hardly to be supposed that, in speaking of the denial to prohibited immigrants of acquisition of "membership" of "the Australian community", Barwick CJ was giving support to the notion that the legislative powers with respect to such persons would support a system of segregation by incarceration without trial for any offence and with no limit of time or a limit fixed only by an executive opinion as to the ultimate possibility of their removal from Australia.
Rather, the use of the term "Australian community" in such statements reflects the rejection in vigorous terms in Robtelmes v Brenan¹⁰² of the submission that the legislative power with respect to aliens was one of exclusion from entry only and did not extend to expulsion after entry¹⁰³. At issue in Robtelmes was the validity of the Pacific Island Labourers Act 1901 (Cth) and of orders for deportation made by magistrates exercising federal jurisdiction.
Nevertheless, it does not gainsay the power of expulsion that the appellant is within the Queen's peace as that notion applies in Australia. Australian domestic law is consistent with the requirement in Art 16.1 of the Stateless Persons Convention that such persons have "free access to the Courts of Law on the territory of all Contracting States". Chu Kheng Lim v Minister for Immigration¹⁰⁴ indicates that the appellant has the standing or capacity, among other things, to invoke the intervention of a domestic court of competent jurisdiction to determine whether he is unlawfully detained by the Commonwealth and that valid statutory provision is required to authorise or enforce his detention in custody.
The issue here is not the amenability of the appellant to removal; indeed, he has sought, unsuccessfully, his removal by the Minister. It is the construction of the laws under which his detention may continue.
Reference was made by the respondents to the decision, by majority, of the Supreme Court of the United States in Shaughnessy v Mezei¹⁰⁵. An appreciation of the issue in Robtelmes assists an understanding of the point on which the United States case turned. The statute applied in Shaughnessy had permitted the removal of the alien Mr Mezei from the Île de France on its arrival in New York and his detention on Ellis Island, but specified that his presence there "shall not be considered a landing", so that he was to be treated "as if stopped at the border". This deemed state of affairs was critical, for the majority distinguished between the denial of entry and the expulsion of aliens "who have once passed through our gates, even illegally"; to the latter class of case there applied "traditional standards of fairness encompassed in due process of law". Later, in , the majority of the Supreme Court, with reference to , said that there runs throughout immigration law "[t]he distinction between an alien who has effected an entry into the United States and one who has never entered".

The appellant's case

Undoubtedly, the continuing absence for persons in the position of the appellant of any right or title to remain in Australia complements and gives further effect to the well‑established constitutional power to legislate for exclusion or denial of entry¹¹⁰. But these considerations are not determinative of the issues in this case. In or out of detention the appellant lacks any right or title to remain in Australia. However, the point on which the appellant's case turns is his susceptibility under federal law to continued detention, outside any operation of the criminal law requiring that detention, and where the prospects of removal to another country are so remote that continued detention cannot be for the purpose of removal. The appellant submits that his situation answers that case. He contends that, on the proper construction of the Act indicated by authorities such as Calwell and consistently with the Constitution, his further detention was not authorised by the time of the proceeding before von Doussa J. Those submissions should be accepted.

The litigation

On 6 January 2001, the appellant lodged an application for a protection visa within the meaning of s 36 of the Act. At the relevant time, a criterion for such a visa was that the applicant for the visa was a non‑citizen in Australia to whom Australia has protection obligations under the Refugees Convention¹¹¹. It should be noted that the definition of the term "refugee" in Art 1 of the Refugees Convention includes one "who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it". The reference by the phrase "such fear" is to the "well‑founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion". Indeed, one of the objectives of the Refugees Convention was to deal with the particular difficulties encountered by the stateless refugee¹¹². However, the Preamble to the Stateless Persons Convention makes the point that there are many stateless persons who are not covered by the Refugees Convention. The appellant has been shown to be one of those persons.
A delegate of the Minister refused the application for a protection visa and that refusal was upheld by the Refugee Review Tribunal. Proceedings in the Federal Court for administrative review were unsuccessful, culminating in the dismissal of an appeal on 21 May 2002. In those circumstances, s 198(6) of the Act operated to require "[a]n officer [to] remove as soon as reasonably practicable an unlawful non‑citizen". The term "officer" is widely defined in s 5(1) so as to include not only officers of the Department and Customs officers, but members of the federal, State and Territory police forces.
It should be noted that s 198 first appeared as s 54ZF and was introduced by s 13 of the 1992 Act. The analogous provision considered in Lim (but the validity of which was unchallenged) was s 54P(1). This did not use the word "reasonably" which now appears in s 198(6) and other sub‑sections of s 198. Rather, the obligation placed by the previous section upon an officer to remove from Australia was to do so "as soon as practicable".
On 19 June 2002, the appellant himself indicated to the Department that he wished to leave Australia and to return to "Kuwait, and if you cannot please send me to Gaza". He later, on 30 August 2002, signed a form addressed to the Minister stating "I wish voluntarily to depart Australia, and ask the Minister to remove me from Australia as soon as reasonably practicable". Section 198(1) of the Act requires removal of such unlawful non‑citizens "as soon as reasonably practicable".
The second respondent was an officer entrusted with that task. She considered that the appellant might be eligible for the provision of a visa or travel authority to enable his removal from Australia to Egypt, Kuwait or the Palestinian territories and that his repatriation to Syria might be possible. It appears that any return to Gaza, a preferred destination by the appellant, would require the co‑operation of the authorities of the State of Israel. Inquiries also were undertaken with the Jordanian authorities but, like approaches to other States, were unsuccessful. Von Doussa J considered that these efforts made by the second respondent were reasonable steps to comply with s 198(1) and that there were no grounds for relief in the nature of mandamus.

"However, the possibility of removal in the future remained, and officers of [the Department] and the Minister were continuing to make enquiries. In this case ... I am not satisfied that [Department] officers, including the second respondent, are not taking all reasonable steps to secure the removal from Australia of the [appellant]. However, I consider the evidence does establish that removal from Australia is not reasonably practicable at the present time as there is no real likelihood or prospect of removal in the reasonably foreseeable future." (emphasis added)

The evidence before von Doussa J of the efforts made by officers of the Department to bring about the removal of the appellant from Australia is to be understood against the background of customary international law. It is said that the State of nationality is under a duty towards other States to receive its nationals back onto its territory¹¹³. That position does not apply to the appellant. Nor is the Stateless Persons Convention of any immediate assistance to him. Article 31 obliges the Contracting States not to "expel a stateless person lawfully in their territory save on grounds of national security or public order" (emphasis added).
It should be added that the appellant is presently not in immigration detention. By consent order of the Federal Court (Mansfield J) made on 17 April 2003¹¹⁴, and subject to further order and pending the hearing of this appeal, the appellant was released from detention forthwith. Various conditions were attached to that order and these were variable by agreement between the solicitors for the parties. By such an arrangement, which includes reporting conditions, the appellant moved to live in Sydney. Thus, there is no present occasion for the making of an order in the nature of habeas corpus. The substance of the relief which the appellant seeks appears to be a final injunctive order without the conditions attached to the interlocutory order of Mansfield J, or declaratory relief to similar effect.
The key to the resolution of the appellant's case lies in the construction of ss 189, 196 and 198 of the Act. That construction should allow for what was said in Calwell concerning the duration of purposive powers such as those involved here. It also should allow for what was decided in Lim. To that I now turn.

The decision in Lim

Considerable attention was given in argument to Lim and the reasoning which supported the outcome in that case. In looking at that reasoning, it should be kept in mind that the Court construed the removal provisions of the Act upon a particular footing as to the conduct of international relations. The case concerned Cambodian nationals, not stateless persons. It appears to have been assumed in Lim, as it had been in Calwell, that, once the status of an illegal immigrant was established, then expulsion or deportation would be a practicable course and that the country of nationality could be expected to discharge its international responsibilities. The evidence in this case demonstrates that, at least as far as stateless persons are concerned, such assumptions cannot be made. That strand in the reasoning in Lim, which assumed that the detainees, by requesting their removal, had it in their own power to bring their detention to an end, can play no part in this case.
For the purposes of the present case, it is sufficient to treat Lim as authority for the following: (i) valid statutory provision is required to authorise and enforce the custodial detention by the State of aliens¹¹⁵; (ii) such an exercise of legislative power is subject to such operation as Ch III has upon the subject-matter; (iii) but legislatively conferred authority to detain aliens in custody for the purposes of receiving, investigating and determining applications for entry permits and, upon rejection and exhaustion of review processes, to detain aliens pending their removal from Australia, is not essentially and exclusively judicial in character; (iv) when conferred by statute law upon the Executive rather than a court the authority identified in (iii) "takes its character" from the legislative powers to exclude, admit and deport of which it is an incident¹¹⁶; and (v) otherwise a law to authorise and enforce the detention of aliens in custody will be invalid; this may be because the detention for which it provides is but an incident of the essential judicial function of adjudging and punishing criminal guilt¹¹⁷ or, for the reasons developed by Gaudron J in Kruger v The Commonwealth¹¹⁸, the law is not on a topic with respect to which s 51 of the Constitution confers legislative power.
The reasoning supporting the two bases outlined in (v) may be reserved for consideration later in these reasons. The immediate issues are of construction of the Act against the background of the constitutional propositions drawn from and stated above in (i)‑(iv). The references in those propositions to "aliens" should be understood as also applying to stateless persons in the position of the appellant. The contrary has not been suggested.

The legislative text

Section 189(1) provides:

"If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non‑citizen, the officer must detain the person."

However, that detention is not without limit of time or with an absence of purpose. These are supplied by s 196.

"(1) An unlawful non‑citizen detained under section 189 must be kept in immigration detention until he or she is:

(a) removed from Australia under section 198 or 199; or

(b) deported under section 200; or

(2) To avoid doubt, subsection (1) does not prevent the release from immigration detention of a citizen or a lawful non‑citizen.

Section 196(3), consistently with the reasoning in Lim of Mason CJ¹¹⁹, with whom Toohey J agreed¹²⁰, and of McHugh J¹²¹, should be construed as applying only to those who are held in lawful detention pursuant to the Act. Habeas corpus will secure the release from detention of a person no longer in such lawful detention.
Reference should also be made to the balance of s 196, being sub‑ss (4)‑(7):

"(4) Subject to paragraphs (1)(a), (b) and (c), if the person is detained as a result of the cancellation of his or her visa under section 501, the detention is to continue unless a court finally determines that the detention is unlawful, or that the person detained is not an unlawful non-citizen.

(4A) Subject to paragraphs (1)(a), (b) and (c), if the person is detained pending his or her deportation under section 200, the detention is to continue unless a court finally determines that the detention is unlawful.

(5) To avoid doubt, subsection (4) or (4A) applies:

(a) whether or not there is a real likelihood of the person detained being removed from Australia under section 198 or 199, or deported under section 200, in the reasonably foreseeable future; and

(b) whether or not a visa decision relating to the person detained is, or may be, unlawful.

(5A) Subsections (4) and (4A) do not affect by implication the continuation of the detention of a person to whom those subsections do not apply.

(6) This section has effect despite any other law.

(7) In this section:

visa decision means a decision relating to a visa (including a decision not to grant the visa, to cancel the visa or not to reinstate the visa)."

Sub-sections (4)-(7) of s 196 were added by the Migration Amendment (Duration of Detention) Act 2003 (Cth). Those amendments commenced on 24 September 2003, that is to say, before the hearing of this appeal. Given the nature of the appeal provided by the Federal Court Act, which differs from that provided by s 73 of the Constitution¹²², the amendments, if otherwise applicable in their terms, would require consideration. However, the appellant is neither detained as a result of a visa cancellation under s 501, nor is he being detained pending deportation under s 200. For this reason, sub‑ss (4) and (4A) of s 196 do not apply to the appellant, and the qualifications in sub‑ss (5) and (5A) also do not apply. As a result, this case does not require the Court to consider the construction or constitutional validity of those sub‑sections. In particular, it should be noted that the Court need not decide whether a provision providing for continued detention where there is no "real likelihood of the person detained being removed from Australia under section 198 or 199, or deported under section 200, in the reasonably foreseeable future" would be valid.
Two sub‑sections of s 198 are material, sub‑ss (1) and (6). These state:

"(1) An officer must remove as soon as reasonably practicable an unlawful non‑citizen who asks the Minister, in writing, to be so removed.

...

(6) An officer must remove as soon as reasonably practicable an unlawful non‑citizen if:

(a) the non‑citizen is a detainee; and

(b) the non‑citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and

(i) the grant of the visa has been refused and the application has been finally determined;

(iii) the visa cannot be granted; and

(d) the non‑citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone."

In considering these provisions, it 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.

Conclusions as to legislative construction

This appeal is to be determined upon the construction of the legislation. In the somewhat similar situation that was presented in Zadvydas¹²³ the Supreme Court of the United States also took that course.
It will be apparent that, in the circumstances of the present case, the legislation placed upon an officer two obligations of removal of the appellant. The first (s 198(6)) arose upon exhaustion of the steps leading to the refusal of the protection visa application and the failure on 21 May 2002 of the Federal Court litigation respecting that refusal. Had the visa application succeeded, then par (c) of s 196(1) would have discharged the requirement of further detention of the appellant. The second obligation of removal arose later, from the written request for his removal made by the appellant in his letter of 30 August 2002 to the Minister.
The requirement imposed upon the appellant by s 196 was to suffer immigration detention for the purposes of facilitating discharge of the various obligations placed upon an officer to remove the appellant from Australia under s 198. Section 196 speaks also of removal under s 199 and deportation under s 200. However, the terms of s 199 and s 200 are not applicable to the appellant¹²⁴.
There are several temporal elements in the provisions under consideration. There is the requirement in s 196(1) to keep the appellant in detention "until he or she is ... removed from Australia under section 198" (emphasis added). There is also an element of process or outcome which is attainable or achieved under s 198. What then is the significance for a removal under s 198 of a failure to do so "as soon as reasonably practicable"? (emphasis added) Here, too, there is a temporal element, supplied by the phrase "as soon as". The term "practicable" identifies that which is able to be put into practice and which can be effected or accomplished. The qualification "reasonably" introduces an assessment or judgment of a period which is appropriate or suitable to the purpose of the legislative scheme. The term "purpose" identifies "the object for the advancement or attainment of which [the] law was enacted"¹²⁵. This involves the detention of the appellant to facilitate his availability to removal from Australia but not with such delay that his detention has the appearance of being for an unlimited time.
If the stage has been reached that the appellant cannot be removed from Australia and as a matter of reasonable practicability is unlikely to be removed, there is a significant constraint for the continued operation of s 198. In such a case s 198 no longer retains a present purpose of facilitating removal from Australia which is reasonably in prospect and to that extent the operation of s 198 is spent. If that be the situation respecting s 198, then the temporal imperative imposed by the word "until" in s 196(1) loses a necessary assumption for its continued operation. That assumption is that s 198 still operates to provide for removal that section.

The scope of legislative power

The question appears to have been raised in several of the other judgments in this case whether administrative detention of aliens and their segregation thereby from the Australian community for a purpose unconnected with the regulation of their entry, investigation, admission or deportation might be authorised by a law which was compatible with Ch III of the Constitution. The position also appears to be adopted that legislation may validly authorise the indefinite detention of an unlawful non‑citizen, even where that person has requested removal under a provision such as s 198(1) of the Act, provided that, in the view of the executive government, which may be contrary to the fact, such removal remains a matter of reasonable practicability.
Lest silence be taken as any assent to these propositions, I should state my disagreement with them. To do so, it is necessary to return to what earlier in these reasons was marked as proposition (v) to be derived from Lim¹²⁶.
A majority of the Court in Lim accepted the proposition that the power of the Parliament to authorise, and that of the Executive to implement, the detention of aliens is limited by reference to the purpose of that detention. In their joint judgment, Brennan, Deane and Dawson JJ held that laws authorising the administrative detention of aliens will only be valid¹²⁷:

"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".

Their Honours went on to explain that, were laws authorising immigration detention not so limited, the authority of the Executive to detain could not properly be characterised as being an incident of the power to exclude, admit and deport¹²⁸. In these circumstances, the detention would properly be characterised as punitive and would thereby offend against the principle that the judicial power of the Commonwealth can only be vested in Ch III courts¹²⁹.

In a separate judgment in Lim, McHugh J expressed a similar view, and one which likewise focused on the purpose of detention as the criterion upon which the constitutional validity of the detention was to be assessed. His Honour said¹³⁰:

"If a law authorizing the detention of an alien went beyond what was reasonably necessary to effect the deportation of that person, the law might be invalid because it infringed the provisions of Ch III of the Constitution. Similarly, if a law, authorizing the detention of an alien while that person's application for entry was being considered, went beyond what was necessary to effect that purpose, it might be invalid because it infringed Ch III."

McHugh J later added¹³¹:

"Although detention under a law of the Parliament is ordinarily characterized as punitive in character, it cannot be so characterized if the purpose of the imprisonment is to achieve some legitimate non‑punitive object. … But if imprisonment goes beyond what is reasonably necessary to achieve the non‑punitive object, it will be regarded as punitive in character."

Gaudron J analysed the issue not in terms of the limitations on legislative power imposed by Ch III, but rather as an issue of characterisation and the scope of that legislative power. In her Honour's view, which was further developed in Kruger¹³², a law that was not appropriate and adapted to regulating the entry of aliens or facilitating their departure could not be characterised as a valid law with respect to naturalisation and aliens under s 51(xix)¹³³.
Although it proceeds on a different basis, the result of Gaudron J's analysis is consistent with the view expressed by Brennan, Deane, Dawson and McHugh JJ that the power of the Parliament to authorise the administrative detention of aliens is not at large and that the power does not extend to authorise detention for any purpose selected by the Parliament.
There may be situations in which a law authorising the detention of aliens is "so insubstantial, tenuous or distant" in its connection with aliens that "it ought not to be regarded as enacted with respect to the specified matter falling within the Commonwealth power"¹³⁴. However, between the reasons dictating invalidity in Lim, those advanced by Brennan, Deane, Dawson and McHugh JJ are to be preferred.
Consistently with McHugh J's analysis in Lim¹³⁵, it could not seriously be doubted that a law providing for the administrative detention of bankrupts in order to protect the community would be a law with respect to bankruptcy and insolvency (s 51(xvii)), or that a law providing for the involuntary detention of all persons within their homes on census night would be a law with respect to census and statistics (s 51(xi)). If such laws lack validity, it is not by reason of any limitation in the text of pars (xvii) and (xi) but by the limitation in the opening words of s 51, "subject to this Constitution", which attract any limitation required by Ch III.
In considering any limitation required by Ch III, it is not to the point that if no such limitation applies persons may be deprived of their liberty and detained without commission of and conviction for any offence, so that to require of the Parliament that it attain its objective of detention by means of the criminal law is to allow form to triumph over substance. That which the Constitution may require is an expression of supreme authority in the Australian system of government.

The nature of the Ch III limitation

The respective submissions in the present case fixed upon the question whether the detention authorised by the Act was punitive or non‑punitive in character. This reflects the general discussion in Lim and Kruger of the Commonwealth's power to impose administrative detention. However, there is often no clear line between purely punitive and purely non‑punitive detention. So much is clear from this Court's decision in Chu Shao Hung v The Queen¹³⁶. That case concerned s 5(6) of the 1901 Act as it then stood, which provided that any person deemed to be a prohibited migrant by virtue of s 5 was guilty of a criminal offence. The last sentence of the sub‑section read:

"Penalty: Imprisonment for six months, and, in addition to or substitution for such imprisonment, deportation from the Commonwealth pursuant to an order made in that behalf by the Minister."

Kitto J, with whom Fullagar J agreed¹³⁷, noted that, although an offence under s 5 was criminal in nature¹³⁸,

"there may be no purpose to be served by the imprisonment except that of keeping the 'offender' available for immediate deportation in the event of the Minister's deciding upon that course, and it is quite right, therefore, to say that the provision for imprisonment is ancillary to the provision with respect to deportation".

Accepting this, it is clear that imprisonment under s 5(6) had both punitive and non‑punitive aspects. The imprisonment provided for by the sub‑section was imposed as a "penalty"; in that sense, it was penal or punitive in character. Yet, as Kitto J noted, the purpose of the imprisonment also included a non‑punitive element; namely, the facilitation of deportation.

This coincidence of punitive and non‑punitive purposes is not uncommon. In Veen v The Queen [No 2]¹³⁹, this Court recognised that among the purposes which inform a criminal sentence are not only the punitive purposes of deterrence, retribution and reform, but also what may be seen as the non‑punitive purpose of protection of society. 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.
Accordingly, the focusing of attention on whether detention is "penal or punitive in character" is apt to mislead. As Blackstone noted, in a passage quoted by Brennan, Deane and Dawson JJ in Lim¹⁴⁰, "[t]he confinement of the person, in any wise, is an imprisonment" and one which, subject to certain exceptions, is usually only permissible if consequent upon some form of judicial process. It is primarily with the deprivation of liberty that the law is concerned, not with whether that deprivation is for a punitive purpose. The point is encapsulated in the statement in Hamdi v Rumsfeld by Scalia J (with the concurrence of Stevens J), made with reference to Blackstone and Alexander Hamilton¹⁴¹, that¹⁴²:

"The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive."

In Witham v Holloway, Brennan, Deane, Toohey and Gaudron JJ observed¹⁴³:

"[N]othing is achieved by describing some proceedings as 'punitive' and others as 'remedial or coercive'. Punishment is punishment, whether it is imposed in vindication or for remedial or coercive purposes. And there can be no doubt that imprisonment and the imposition of fines, the usual sanctions for contempt, constitute punishment."

It is convenient here to return to the joint judgment in Lim. Having established that the involuntary detention of a citizen can generally only exist as an incident of the exclusively judicial power of adjudging and punishing criminal guilt, Brennan, Deane and Dawson JJ noted that the protection afforded by Ch III to aliens was not so far reaching¹⁴⁴. The principal reason for this is that, absent some authority conferred by statute, aliens have no right to enter or reside in Australia¹⁴⁵. The aliens power (s 51(xix)) and the immigration power (s 51(xxvii)) empower the Parliament to establish the conditions upon which aliens enter, reside in and leave Australia¹⁴⁶. It has long been recognised that this includes the power to deport aliens on such terms as the legislature thinks fit¹⁴⁷. As a consequence of this, the Parliament has the power to authorise the Executive to detain aliens for the purposes of "deportation or expulsion", and as an incident to the executive powers to "receive, investigate and determine an application by that alien for an entry permit"¹⁴⁸.
However, the purposes are not at large. 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 Case¹⁴⁹. 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. To that latter proposition there should be entered the caveat expressed by Brennan, Deane and Dawson JJ in Lim as follows¹⁵⁰:

"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 Commonwealth¹⁵¹."

Orders

The appeal should be allowed with costs and the orders of von Doussa J set aside. The interlocutory regime established by the consent order of Mansfield J depended upon the outcome of the appeal and will be spent. As it now stands, the Act itself does not authorise the imposition upon the appellant of restraints, whether by reporting arrangements or otherwise, upon his freedom of movement and action whilst he is not detained under the legislation.
However, with respect to the exercise of jurisdiction by the Federal Court in every "matter" before it, s 22 of the Federal Court Act enjoins the Court to grant the appropriate remedies "either absolutely or on such terms and conditions as the Court thinks just". This provision is in the well‑known Judicature form and does not operate at large¹⁵². However, I agree that the section supports orders of the type described by the Chief Justice in his reasons in this case. I agree also with the observations in the penultimate paragraph of those reasons.
In place of the orders made by von Doussa J, it should be declared that the appellant presently is not liable to detention under the provisions of Pt 2, Div 7 of the Migration Act 1958 (Cth). In addition, (a) there should be liberty to any party to apply to a judge of the Federal Court on two days notice for any further or other relief (including injunctive relief¹⁵³) as may be appropriate to give effect to the reasons of this Court and (b) the respondents should pay the costs of the appellant of the application determined by von Doussa J.
KIRBY J. I agree, for the reasons given by Gummow J¹⁵⁴, that this case, referred into the Court under the Judiciary Act 1903 (Cth)¹⁵⁵, is to be decided primarily on the basis of the construction of the applicable legislation. Relevantly, this is the Migration Act 1958 (Cth) ("the Act"), ss 196 and 198. Most of the larger questions of law raised in argument, including possible constitutional questions concerning the status of stateless persons as "aliens" within s 51(xix) of the Constitution and the operation of Ch III, do not need to be decided. However, of necessity, in giving meaning to the Act, certain constitutional fundamentals must be kept in mind.

Construing the Act to accord with basic rights

On the uncontested facts of this case, Mr Ahmed Ali Al-Kateb (the appellant) is a stateless person. By definition, he therefore cannot be removed from Australia to a country of nationality. Despite the very long interval involved in this litigation, no other country has been found by Australia willing to accept him. As a matter of reasonable practicality, therefore, it is proper to infer that he will be unlikely to be removed in the foreseeable future. In these circumstances, I agree in the reasons of Gummow J¹⁵⁶ that ss 196 and 198 of the Act do not apply, in terms, to the appellant's case as it now stands. It follows that these sections do not sustain his continuing detention¹⁵⁷.
As Gummow J points out¹⁵⁸, the law-making power with respect to aliens, upon which McHugh J relies for his contrary opinion¹⁵⁹, is granted to the Federal Parliament subject to the Constitution¹⁶⁰. That includes, relevantly, subject to Ch III of the Constitution. Indefinite detention at the will of the Executive, and according to its opinions, actions and judgments, is alien to Australia's constitutional arrangements.
This Court should be no less vigilant in defending those arrangements – and their consequences for the meaning of legislation and the ambit of the judicial power – than the United States Supreme Court has lately been in responding to similar Executive assertions in that country¹⁶¹. The constitutional norms are not the same in each country. We have no equivalent to the Fifth Amendment in our Constitution. The United States Constitution contains no express subjection of the legislative power to Art III. Its notions of the judicial power have developed somewhat differently. But the result of each Constitution is similar in this respect.
I dissent from the majority view in this case. Potentially, that view has grave implications for the liberty of the individual in this country which this Court should not endorse.
"Tragic"¹⁶² outcomes are best repaired before they become a settled rule of the Constitution. As McHugh J observed in recent extracurial remarks:

"[I]t is difficult to believe that Australia would have been as politically free a country as it is today if the High Court had upheld the validity of the legislation challenged in the Communist Party Case¹⁶⁴. If that legislation had survived, its legacy must have influenced the way that we give effect to political rights and freedoms."

We should be no less vigilant than our predecessors were. As they did in the Communist Party Case¹⁶⁵, we also should reject Executive assertions of self-defining and self-fulfilling powers. We should deny such interpretations to federal law, including the Act. Unlike Callinan J¹⁶⁶, I would not have this Court surrender the power of unlimited executive detention to a Minister's "intention" any more than to an open-ended interpretation of the Parliament's command that removal from Australia be "as soon as reasonably practicable". This Court should be no less defensive of personal liberty in Australia than the courts of the United States¹⁶⁷, the United Kingdom¹⁶⁸ and the Privy Council for Hong Kong¹⁶⁹ have been, all of which have withheld from the Executive a power of unlimited detention.

Gummow J's conclusion is further supported, in my view, by considerations of international law and the common law presumption in favour of personal liberty. In my opinion, the Constitution and the Act are to be read in the light of these abiding values. The conclusion of Gummow J is one defensive of individual liberty. It is also in conformity with the obligations binding upon Australia under international law¹⁷⁰. The common law has a strong presumption in favour of liberty, and against indefinite detention¹⁷¹. That presumption informs the way provisions of an Australian statute, such as ss 196 and 198 of the Act, are to be construed by an Australian court. It also informs this Court's approach to elucidating the meaning of the Constitution necessary to support the validity of such provisions¹⁷².
I agree with Gummow J¹⁷³ that this conclusion, of itself, does not cast doubt on the lawfulness of the appellant's earlier detention while his application for a protection visa was viable and was being determined according to law. But it does entitle the appellant to relief in these proceedings at the stage that they have now reached.

Construing Australian law to accord with international law

Response to the criticism: I cannot agree with much of what McHugh J has written in his reasons¹⁷⁴, including that part responding to the foregoing reasons of my own. There will be other occasions where I will have written a more substantial exposition of the contested issues than in this case and where it will therefore be more appropriate to enter debate over such matters. However, it is necessary to respond to McHugh J's specific criticisms. Otherwise, it might be thought that they are unanswerable; and that is far from the case.
Detention under the Constitution: The express subjection of the legislative power to the judicial power in the Australian Constitution is not a mere formality. The existence and predominance of the judicial power necessarily implies constitutional limitations on the use of the heads of legislative power in Ch I (or the powers of the Executive under Ch II) of the Constitution in providing for unlimited detention without the authority of the judiciary. This is because such a power of detention can turn into punishment in a comparatively short time. And punishment, under the Constitution, is the responsibility of the judiciary; not of the other branches of government¹⁷⁵.
In another extracurial paper, with which I respectfully agree, McHugh J has pointed to the implications that may exist in Ch III in order that the judiciary, as there provided, should be effective¹⁷⁶. Many of these implications remain to be elaborated. His Honour suggested that there would be a "[g]radual acceptance that Ch III protects due process rights"¹⁷⁷. In my opinion, impeccable and persuasive views such as this should be given effect within the Court in legal and constitutional exposition. They should not be confined to papers for the academy and the profession. If the opinion is sound, it applies to judicial decisions, unless binding authority coerces a judge to a different conclusion.
The Communist Party Case: Contrary to the suggestion of McHugh J¹⁷⁸, the Communist Party Case¹⁷⁹ is of substantial assistance to Mr Al-Kateb. This is so for the reasons that Gummow J has identified. It is inconsistent with a basic proposition of Australian constitutional doctrine, at least since 1951, that the validity of a law or of an act of the Executive should depend on the conclusive assertion or opinion of the Parliament (eg expressed in recitals to an Act) or the assertion or opinion of an officer of the Executive (eg that the preconditions for the exercise of power have been satisfied). This is why the is such an important statement of the rule of law as it operates in Australia. It remains for the judiciary in each contested case to interpret the applicable law. As in the , this requirement has proved an important, even vital, protection for individual liberty, as McHugh J has himself acknowledged.

"At stake in this case is nothing less than the essence of a free society. Even more important than the method of selecting the people's rulers and their successors is the character of the constraints imposed on the Executive by the rule of law. Unconstrained Executive detention for the purpose of investigating and preventing subversive activity is the hallmark of the Star Chamber.¹⁸⁸"

Although Stevens J and his colleagues were in dissent in Padilla, on a technical point concerning the availability of habeas corpus in the circumstances, their substantive opinion was adopted by the Supreme Court of the United States on the same day in Rasul v Bush¹⁸⁹. There the claim of the United States Executive to a power to detain persons accused "of terrorist connections without access to lawyers or the outside world and without any possibility of significant review by courts or other judicial bodies"¹⁹⁰ was decisively rejected. The resistance of the judiciary to such notions was reaffirmed. These are not, therefore, rare and atypical cases. They are legion. And, in recent times, they have been largely consistent.
Approach to statutory construction: The holding in Zadvydas v Davis¹⁹¹, that the statute there in question could be construed so as to avoid an interpretation authorising or requiring indefinite detention of an alien, grew out of the same judicial resistance to the notion of unlimited powers of executive detention. The assumption that the proceedings were "nonpunitive"¹⁹² arose specifically because, had it been otherwise, "a serious constitutional problem" would have arisen¹⁹³. The reasoning therefore follows the approach that Gummow J has adopted in this case, with which I agree. Thus, Zadvydas is highly relevant to the decision in this case. Although the applicable statutory and constitutional provisions are different, the approach that we should take is precisely the same.
The same can be said of R v Governor of Durham Prison; Ex parte Hardial Singh¹⁹⁴. An arguably open-ended legislative provision was read down to avoid affront to notions that lie deep in the common law which it was assumed Parliament would wish to observe in the absence of clear law demonstrating the contrary. That this is done in England, without the support of a constitutionally stated and entrenched judicial power, makes the force of the judicial resistance to an untrammelled executive power of detention all the more striking.
Likewise, in the approach to the judicial function of statutory interpretation adopted by the Privy Council in a Hong Kong appeal can only be explained by reference to the same judicial resistance to unlimited executive detention. In different courts the resistance leads to different techniques of decision-making and to different powers and outcomes. But 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.

"This is the destiny of a democracy – she does not see all means as acceptable, and the ways of her enemies are not always open before her. A democracy must sometimes fight with one arm tied behind her back. Even so, a democracy has the upper hand. The rule of law and individual liberties constitute an important aspect of her security stance. At the end of the day, they strengthen her spirit and this strength allows her to overcome her difficulties."

I do not doubt that if Australia were faced with challenges of war today, this Court, strengthened by the post-War decision in the Communist Party Case²⁰² and other cases since, would approach the matter differently than it did in the decisions which McHugh J has cited with apparent approval. Respectfully, I regard them as of doubtful authority in the light of legal developments that occurred after they were written.
The actions of Attorney-General Evatt, referred to by McHugh J²⁰³, have been described by a biographer as a "cancer" which greatly damaged his reputation²⁰⁴. According to the biographer, the initial arrests of wartime detainees were authorised by the Minister of the Army, on a military submission, not by Dr Evatt, who sought to have most of the detainees freed²⁰⁵. However that may be, the instances hardly amount to a proud moment in Australian law. Nor are they ones that should be propounded as a precedent and statement of contemporary legal authority.
Subjective versus purposive interpretation: In his reasons, McHugh J appears to adopt an interpretation of detention legislation that implies that the subjective intentions of the legislators must prevail (eg their knowledge and views at the time of enactment about international law²⁰⁶). I would reject such an approach. Today, legislation is construed by this Court to give effect, so far as its language permits, to its purpose²⁰⁷. This is an objective construct. The meaning is declared by the courts after the application of relevant interpretive principles. It is an approach that has been greatly influenced by McHugh J's own decisions²⁰⁸.
The purposive approach accommodates itself readily to an interpretive principle upholding compliance with international law, specifically the international law of human rights. This is 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 jurisdiction²⁰⁹. In exercising municipal or domestic jurisdiction, such courts give effect to interpretive principles defensive of basic rights as recognised in local law. In exercising international jurisdiction, they likewise give effect to interpretive principles defensive of basic rights upheld by international law.

"Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom."

This shift in approach to deriving the meaning of a national constitution has attracted both support²⁴⁸ and criticism²⁴⁹ in the United States. In the Supreme Court itself, in Atkins²⁵⁰ and in Lawrence²⁵¹, Scalia J voiced for the dissenters opinions not dissimilar to those expressed by McHugh J in this case. However, the majority view in the United States now appears to favour the interpretive principle that I have accepted. When such a court, in a legal culture traditionally less open to outside legal ideas than ours has been, accepts the relevance for its reasoning of the jurisprudence emerging from a "wider civilization"²⁵², it is time for this Court to do likewise.
It is incorrect to say, as McHugh J does²⁵³, that Lawrence merely used "European case law" to reject a premise in an earlier decision. That is only half the story²⁵⁴. The opinion of Kennedy J in Lawrence expressly refers to an amicus brief filed by Professor Mary Robinson, past United Nations High Commissioner for Human Rights. As Professor Koh has pointed out²⁵⁵, that brief referred to a wide range of materials in international law – including a decision of the United Nations Human Rights Committee in Toonen v Australia²⁵⁶. In any event, the "European case law" itself relies upon rules expressed in the European Convention on Human Rights that have exact equivalents in the international law of human rights and fundamental freedoms. If Lawrence involved such an inconsequential step in reasoning, as McHugh J appears to think, it has obviously deceived Scalia J²⁵⁷ and many commentators²⁵⁸ who have thought, and said, otherwise.

"Questions of construction are notorious for generating opposing answers, none of which can be said to be either clearly right or clearly wrong."

These words apply equally to constitutional construction.

It is for these reasons, and others that must await later exposition, that I disagree with what McHugh J has written.
Conclusion: interpretive principle: In my view, this Court should read ss 196 and 198 of the Act in a way that restricts any assertion that a purely literal construction might otherwise sustain, that unlimited executive detention was there enacted. It should do so because that construction is available in the language of the Act and the assumptions disclosed by that language. It should do so because, in that way, a "serious constitutional problem"²⁶⁹ that would otherwise be raised is avoided. And it should do so because that interpretation is consistent with the principles of the international law of human rights and fundamental freedoms that illuminate our understanding both of the provisions of the Act and of the Constitution applicable to this case.

Orders

I agree in the orders proposed by Gummow J.
HAYNE J. The appellant, born of Palestinian parents in Kuwait, is stateless. In December 2000 he arrived, by boat, in Australia. He had no visa permitting him to enter or remain here. He was taken into immigration detention and applied for a protection visa. His application was refused and his applications for review of that refusal failed. In August 2002, he wrote to the Minister asking to be removed from Australia as soon as reasonably practicable. He has not been removed.
In 2003, he commenced two proceedings in the Federal Court of Australia. Attention need be given only to the proceeding commenced on 12 February 2003 in which he sought a declaration that his continued detention was unlawful, habeas corpus and prohibition to achieve his release from that detention, and mandamus directing the Minister, among other things, to remove him from Australia. That application was dismissed and he gave notice of appeal to the Full Court of the Federal Court. That appeal has been removed into this Court by order made under s 40 of the Judiciary Act 1903 (Cth). It was heard at the same time as Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs²⁷⁰ and Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji²⁷¹.
At the trial of the appellant's application to the Federal Court, the primary judge was not satisfied that officers of the Department were "not taking all reasonable steps to secure the removal from Australia" of the appellant. The primary judge did find, however, that "removal from Australia is not reasonably practicable at the present time as there is no real likelihood or prospect of removal in the reasonably foreseeable future". That finding is not challenged.
The central issue in the appeal is whether, in those circumstances, the continued detention of the appellant is lawful. These reasons will seek to demonstrate that it is.

Mandatory detention

The appellant is detained pursuant to ss 189 and 196 of the Migration Act 1958 (Cth). Section 189(1) requires "an officer" who knows or reasonably suspects that a person in the migration zone is an unlawful non‑citizen to detain that person. Section 196 provides that an unlawful non‑citizen detained under s 189

"must be kept in immigration detention until he or she is:

(a) removed from Australia under section 198 or 199; or

(b) deported under section 200; or

The appellant is not eligible for deportation under s 200. That provision deals with the deportation of non‑citizens who are convicted of certain crimes (ss 201 and 203) and the deportation of non‑citizens upon security grounds (s 202). Section 199 deals with the dependants of removed non‑citizens. Section 198 provides that in certain circumstances an officer must remove an unlawful non‑citizen "as soon as reasonably practicable". One of those circumstances is if the unlawful non‑citizen asks the Minister in writing to be removed (s 198(1)). The appellant has done that. He is eligible for removal under s 198.

To understand the issues which now arise, it is necessary to examine some of the history of the regulation of immigration to Australia.

Some matters of history

Since before federation, control of immigration to Australia has had a prominent place in Australian law and politics. In the first year of federation, the Parliament passed the Immigration Restriction Act 1901 (Cth) "to place certain restrictions on Immigration and to provide for the removal from the Commonwealth of prohibited Immigrants". For more than 90 years, legislation prohibited various classes of person from entering the Commonwealth²⁷² and made it a criminal offence to enter, or to be found within, the Commonwealth as a prohibited immigrant²⁷³. For many years²⁷⁴, the dictation test was used to exclude persons, or classes of person, whom the government of the day deemed undesirable immigrants. The operation of that test was considered by this Court many times²⁷⁵.
The statutory provisions, by which it was made an offence to enter or be found within the Commonwealth as a prohibited immigrant, provided for the imprisonment of the offender and for deportation, pursuant to an order of the Minister, during or after the term of imprisonment²⁷⁶. Some aspects of the operation of provisions of this kind were considered in Chu Shao Hung v The Queen²⁷⁷, but the validity of such provisions was established much earlier in this Court's history.
In one of its earliest decisions²⁷⁸, the Court held that it is an attribute of sovereignty that every nation state is entitled to decide what aliens shall or shall not become members of its community. It further held that the grant to the federal Parliament of power to make laws with respect to aliens (s 51(xix)) and with respect to immigration (s 51(xxvii)) validly authorised the enactment of a law permitting the deportation of an alien to a place other than the state from which the alien came. That power was held to extend to permitting the detention of the alien and, because of Australia's geographical position, it necessarily permitted the imprisonment, beyond the territorial jurisdiction of Australia, of the person deported. Griffith CJ said²⁷⁹:

"The power to make such laws as Parliament may think fit with respect to aliens 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. I cannot, therefore, doubt 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."

The Migration Reform Act 1992 (Cth)

In 1992, a radical change was made to the legislative scheme for dealing with those who entered Australia without entitlement. The Migration Reform Act 1992 (Cth) repealed those provisions of the Migration Act by which it was made an offence for a prohibited immigrant to enter or be found within the Commonwealth²⁸⁰. Instead, the Act, as amended²⁸¹, divided non‑citizens into two categories: one described as "lawful non‑citizens" and the other described as "unlawful non‑citizens". The former category was defined as non‑citizens in the migration zone who held a visa (s 14). (Certain other kinds of non‑citizen and allowed inhabitants were also included in this class.) The latter category, of unlawful non‑citizens, was defined as those non‑citizens in the migration zone who were not lawful non‑citizens.
The Act, again as amended²⁸², obliged "officers" to detain all who were known or suspected of being unlawful non‑citizens. An "officer" was then defined, in effect, as an officer of the Department, a person who was an officer for the purposes of the Customs Act 1901 (Cth), a federal, State or Territory police officer, or a protective service officer under the Australian Protective Service Act 1987 (Cth). The definition of "officer" has since been amended but nothing was said to turn on its details.
The Act further required²⁸³ that unlawful non‑citizens be kept in detention until they were removed or deported from Australia, or were granted a visa which would entitle them to remain. The Act obliged²⁸⁴ officers to remove unlawful non‑citizens as soon as reasonably practicable after the final determination of any application for a visa, or upon the request of the unlawful non‑citizen concerned²⁸⁵. The criminal law was engaged only by providing (see now, s 197A) that it was an offence to escape immigration detention.
These provisions for the mandatory detention of unlawful non‑citizens applied regardless of whether the person concerned was seeking permission to remain in Australia (whether as a refugee or otherwise). They applied even if the person concerned had entered Australia with permission but that permission had later terminated. All who did not have a valid permission to enter and remain in Australia were "unlawful non‑citizens" and were to be detained.

The scheme of the current provisions

It will be necessary to consider some issues about the proper construction of the particular provisions in question. Before doing that, however, it is convenient to say something further about the scheme which those provisions reveal. It is a scheme having three principal features. First, non‑citizens may enter Australia if they have permission (a visa) to do so; they may remain in Australia for so long as they have permission (again in the form of a visa) to do so. Secondly, if a non‑citizen has entered Australia without permission, or no longer has permission to remain here, that non‑citizen must be detained. Thirdly, the detention of a non‑citizen is to end only upon that person's removal or deportation from Australia or upon the person obtaining a visa permitting him or her to remain in the country. Removal or deportation must occur "as soon as reasonably practicable" after the conclusion of any attempts the non‑citizen has made to procure a visa, or after that person has made a written request to be removed.
The hypothesis for consideration of all of the arguments advanced in this and the other matters heard with it must be that the person whose detention is in question is someone who does not have permission to remain in Australia. Often, but not invariably, those detained will be persons who arrived in Australia without permission to enter the country. (None of the non‑citizens in these cases had permission to enter.) But whether or not that is so, each must be a person who has no permission to remain in the country.

The underlying questions

At the base of the arguments advanced in this matter, and the other two matters heard with it, lie questions about whether, and to what extent, the statutory scheme requiring mandatory detention of unlawful non‑citizens is consonant with the long‑established principle that "[n]o part of the judicial power [of the Commonwealth] can be conferred in virtue of any other authority or otherwise than in accordance with the provisions of Chap III"²⁸⁶. In particular, given that deprivation of liberty is the harshest form of punishment now exacted for wrongdoing in Australia, is there a point at which detention of an unlawful non‑citizen could validly be required only in the exercise of the judicial power? Are the circumstances in which unlawful non‑citizens are detained relevant to deciding whether the law permitting or requiring such detention is valid? Are these considerations which shed light on the proper construction of those provisions of the Migration Act under which the non‑citizens who are parties to these proceedings are or have been held? Can an unlawful non‑citizen be detained without a judicial determination of wrongdoing accompanied by imposition of a sentence of imprisonment? Does there come a point when continued detention without judicial determination becomes unlawful?

The application of the criminal law

It must be noted that, since the 1992 amendments, the criminal law has been engaged at a later point than was previously the case. Under the legislation which operated between 1901 and the 1992 amendments, the act of entering or being found within Australia without permission was made a criminal offence. In many cases, persons who contravened the relevant legislation would be made available for removal or deportation because they would be imprisoned. But the administrative assumption which lay behind this system was that any question about permission to enter Australia would ordinarily be decided at the point of entry. And if entry was refused it would be for the vessel which brought the applicant to Australia to remove that person. Where the applicant would be taken in such a case was not a matter to which the legislation directed attention. It was treated as a matter for the applicant and the carrier.
Where a person was "found within" Australia as a prohibited immigrant, arrangements necessary for that person's deportation or removal could be made during the person's period of imprisonment. And at least in the earlier part of the 20th century, the assumption that such arrangements could readily be made might have been thought to be well founded.
Since the 1992 amendments, the criminal law is engaged only to impose a sanction for escaping from detention. Standing alone, that shift in the point at which the criminal law is engaged does not demonstrate that the detention which the Act required raises a Ch III question about the validity of the provisions which required detention. To make it an offence to leave the customs and immigration controlled area at a point of entry to Australia, like an airport, without first having obtained permission to do so would not, standing alone, suggest that the restraint on freedom of movement which is implicitly required could validly be imposed only in the exercise of the judicial power. And it is this reasoning which underpins the Court's decision in Chu Kheng Lim v Minister for Immigration²⁸⁷.
In Chu Kheng Lim, the Court held that the legislative power given by s 51(xix) of the Constitution with respect to aliens extended to conferring, upon the Executive, authority to detain an alien in custody for the purposes of expulsion or deportation. The terms in which that authority was then conferred on the Executive were held not to contravene Ch III. In considering the various issues that have been raised in this matter it is essential, therefore, to bear steadily in mind that Chu Kheng Lim established that the deprivation of liberty of a non‑citizen who seeks permission to enter or remain in this country does not, of itself, require the conclusion that the legislation permitting the detention is constitutionally infirm. It will be necessary to say more about the decision in but it is desirable to come to that case only after considering a number of other matters. First, what is it about the appellant's detention to which attention was drawn?

The critical features of detention

The arguments advanced in this and the other matters against the validity of the provisions for mandatory detention of unlawful non‑citizens proceeded from the identification of two critical features of the provisions. First, the detention required is for an indeterminate length of time. Its duration is bounded by the occurrence of events which, if they happen, will happen at a time which cannot be identified at the start of the period of detention. Secondly, it is now recognised that 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. It is this uncertainty, about whether or when detention will cease, that is said to present issues about the proper construction of the provisions, and to engage consideration of Ch III.
It is important to examine why there is that uncertainty. Detention comes to an end upon removal or deportation or the granting of a visa. Removal or deportation may occur only when the non‑citizen's attempts to obtain permission to remain in Australia have come to an end. To that extent the period of detention is under the control of the non‑citizen. He or she will be available for removal or deportation as soon as he or she wishes to be available. But what more recent events, concerning some non‑citizens who have asked to be removed, have revealed is that removal to a country requires the co‑operation of the receiving country, and of any countries through which the person concerned must pass to arrive at that destination. That co‑operation is not always freely made available. In such a case the period of detention will come to an end only upon the relevant authorities, in one or more countries other than Australia, agreeing to receive the person being removed, or, where it is necessary, agreeing to allow that person to travel through their territory. Australia can seek that co‑operation; it cannot demand it. Detention will continue until that co‑operation is provided.
It is then necessary to notice one further matter about the detention of an unlawful non‑citizen. It is not suggested that the alternative to detention is unconditional admission to Australia. The debate assumed that there could be no objection to a legislative scheme that would curtail a non‑citizen's freedom of movement within Australia, whether by requiring the non‑citizen to report regularly or even, perhaps, by requiring the person to live at a particular place. (How such a provision could fit with s 92 of the Constitution was not explored²⁸⁸.) And if the non‑citizen were to be prevented from working, and were not to be eligible for social security benefits, there would be many cases where the non‑citizen would depend upon the charity of others to survive while living subject to restrictions not applicable to citizens or lawful non‑citizens. The questions which arise about mandatory detention do not arise as a choice between detention and freedom. The detention to be examined is not the detention of someone who, but for the fact of detention, would have been, and been entitled to be, free in the Australian community.

Construction of the relevant provisions

Division 7 of Pt 2 of the Migration Act (ss 188‑197) provides for the detention of unlawful non‑citizens. Division 7A of that Part (ss 197A and 197B) provides for certain offences relating to immigration detention. Division 8 (ss 198‑199) provides for removal of unlawful non‑citizens and Div 9 (ss 200‑206) provides for deportation of certain non‑citizens. The text of relevant provisions has been sufficiently described earlier. Most attention must be directed to the three provisions I identified earlier: s 189 (providing for the detention of unlawful non‑citizens), s 196 (dealing with the period of detention) and s 198 (providing for removal from Australia of unlawful non‑citizens).
It was submitted that, properly construed, these provisions did not authorise the appellant's detention. They do not authorise, so it was submitted, the continued detention of unlawful non‑citizens where s 198 could not be complied with.
Questions about the construction of these provisions, and about their validity, must be considered having regard to the way in which the provisions interact. That is, these questions must be considered having regard to the three principal features of the scheme identified earlier in these reasons: provision for the grant of permission to enter and remain in Australia; imposition of an obligation to detain those who do not have that permission; and the detention of those who do not have permission to enter and remain in Australia until they either gain that permission or are removed.
The provisions requiring detention of unlawful non‑citizens do not expressly refer to the purpose of detention. Rather, s 189 requires officers to detain unlawful non‑citizens and s 196 identifies the period of detention. In this respect, however, the legislation does not differ in any fundamental respect from the provisions considered in Koon Wing Lau v Calwell²⁸⁹. The War‑time Refugees Removal Act 1949 (Cth), considered in that case, provided for the deportation of aliens who had entered Australia during the Second World War. It provided (s 7(1)(a)) that a deportee might "pending his deportation and until he is placed on board a vessel for deportation from Australia" be kept in such custody as the Minister or an officer directed. Of these provisions Dixon J said²⁹⁰ that they "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" (emphasis added) 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".
The present legislation, prescribing the period of detention as it does, may therefore be read as providing for detention for the purposes of processing any visa application and removal. But that does decide the point of how long that detention may persist. It does not decide when that purpose (of detention for removal) is spent. It does not decide that the time during which a person may be detained is "a reasonable time". Here the period of detention is governed by the requirement to effect removal "as soon as reasonably practicable".

Al Masri

The consideration of this set of reasons may begin by examining the criterion identified by the Full Court of the Federal Court in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri²⁹⁴. There, the Full Court held²⁹⁵ that the power to detain a person was impliedly limited to detention only in circumstances where "there is a real likelihood or prospect of the removal of the person from Australia in the reasonably foreseeable future".
This formulation of the limitation appears to present some substantial difficulties of application. What is meant by "real likelihood or prospect"? In particular, what is to be done in cases where negotiations for receiving particular non‑citizens are continuing, but are at a stage where it cannot be said when they will conclude, or how they will conclude? Is the lawfulness of detention to turn only upon whether the detaining authority can point to some request that it has made of another country that it receive the non‑citizen concerned and which it can show has not finally been rejected by that other country? All of these are questions which would ultimately find an answer. Other questions are more difficult.
If the statutory command in s 196 (that an unlawful non‑citizen must be kept in immigration detention until he or she is removed) is to be read subject to this or some similar limitation, so too must the statutory command in s 189 (requiring an officer to detain unlawful non‑citizens). But presumably the duty imposed by s 198 would remain unaffected. And unless the obligations under both ss 189 and 196 were to be regarded as wholly exhausted upon it being found that there is no real likelihood of removal in the reasonably foreseeable future, upon what event would a duty to detain re‑emerge? How would that event be defined? Is it the renewed possibility of removal, or is it something more concrete?
The process of construction of the words used in ss 189, 196 and 198 yields no ready answer to these questions. Rather, what the questions reveal is that the limitation on the operation of ss 189 and 196 identified in Al Masri is a limitation which depends upon taking the temporal element of the legislative command in s 198 (to remove as soon as reasonably practicable) and converting that into a different temporal limitation on the operation of s 196 and, by inference, on the operation of s 189. The limitation imposed is not simply transferred from one section to the others (a process which can readily be justified by the need to read the provisions together). It is transformed from "as soon as reasonably practicable" to "soon" or "for so long as it appears likely to be possible of proximate performance". That transformation cannot be effected by any process of construction, at least not by any process divorced from considerations of Ch III.

Limitation by reference to international obligation?

In particular the transformation just identified cannot be effected by reference to international instruments, whether the International Covenant on Civil and Political Rights ("the ICCPR"), to which the Full Court referred²⁹⁶ in Al Masri, or other relevant instruments or principles. Let it be assumed that, as was said²⁹⁷ in Al Masri, "s 196 should, so far as the language permits, be interpreted and applied in a manner consistent with established rules of international law and in a manner which accords with Australia's treaty obligations" (emphasis added). There must, at least, be doubt about whether the mandatory detention of those who do not have permission to enter and remain in Australia contravenes Art 9 of the ICCPR when the detention is in accordance with a procedure established by law (Art 9(1)) and the lawfulness of that detention can readily be tested in a court (Art 9(4)) (as is the lawfulness of the appellant's detention). There would appear to be circularity of reasoning in asserting that the detention is not lawfully authorised by s 196 because, if it were not lawfully authorised by that section, it would breach the obligations undertaken by Australia in Art 9 of the ICCPR that "[n]o one ... be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law".
But be this as it may, the root question is whether the language of s 196 will yield the construction asserted. For the reasons given earlier, it will not. It will not because "as soon as reasonably practicable" does not mean "soon" or "for so long as it appears likely to be possible of proximate performance". It is, therefore, not necessary to examine what weight, if any, should be given to the opinions expressed by the Human Rights Committee established under Art 28 of the ICCPR.

Limitation by reference to decisions of other courts?

Nor can the transformation be made by resort to decisions of other courts, even final courts, about the construction of legislation framed in different ways. Particular reference was made in argument to R v Governor of Durham Prison; Ex parte Hardial Singh²⁹⁸ and to what was said, in that case, about the power of detention given by the Immigration Act 1971 (UK). Woolf J said²⁹⁹ that:

"as the power [of detention] is given in order to enable the machinery of deportation to be carried out, I regard the power of detention as being impliedly limited to a period which is reasonably necessary for that purpose."

But two aspects of what was said in Hardial Singh must be noticed. First, what was said concerned a discretionary power to detain, not a mandatory requirement to do so until one of three specified events occurred. Secondly, the construction adopted was described as being reached by a process of implication. It may readily be accepted that to make the implication in that case accorded with applicable principles of statutory construction. But contrary to what was submitted in this and the other two matters heard with it, the resulting implication in that legislation is not itself some principle which finds application beyond the particular legislative context. It is necessary to consider and apply the language of the sections with which we are concerned, not other forms of legislation on the same general subject. That is why no useful assistance is gained by considering Hardial Singh or the other decisions of overseas courts to which we were taken³⁰⁰.

Protection of fundamental rights and freedoms

There is a relevant general principle to which effect must be given in construing the provisions now in question: legislation is not to be construed as interfering with fundamental rights and freedoms unless the intention to do so is unmistakably clear³⁰¹. General words will not suffice. Reading the three sections together, however, what is clear is that detention is mandatory and must continue until removal, or deportation, or the grant of a visa. The relevant time limitation introduced to that otherwise temporally unbounded detention is the time limit fixed by s 198 – removal as soon as reasonably practicable after certain events. No other, more stringent, time limit can be implied into the legislation. (That is why the reasoning in Hardial Singh finds no application here.) But more than that, the time limit imposed by the Act cannot be transformed by resort to the general principle identified. The words are, as I have said, intractable.

Conditional release?

There is one other aspect to notice about the contention that the legislative requirement to detain is limited to detention for so long as there is a real likelihood or prospect of removal of the non‑citizen in the reasonably foreseeable future. This limitation of the requirement to detain appears to have been understood as permitting courts to make orders releasing a non‑citizen from detention but imposing conditions on the non‑citizen such as conditions requiring the non‑citizen to report to authorities periodically or to live in a particular place. The final orders made at first instance in Mr Al Masri's case³⁰² took that form.
Presumably these conditions have been imposed on an assumption that the requirement to detain and remove might revive at some time in the future. That assumption is, as I said, open to doubt. But there is a more fundamental difficulty. There is no statutory or other basis for making any such order. If the detention is not lawful, it must end. It is not to be replaced with some other set of limitations on the person's freedom. If the detention is unlawful, the only order which a court may make is an order requiring the person to be discharged from detention.
It is because the words of the Act will not yield the construction for which the appellant contended that I earlier described the underlying questions in this and the other two matters as being about the application of Ch III of the Constitution. It is that issue to which I now turn. I will deal with the issue by the following steps. First, it will be necessary to say something further about the ambit of the aliens and the immigration powers. Secondly, it will be convenient to deal with the decision in Chu Kheng Lim. Thirdly, it will be necessary to examine some questions about punishment.

The aliens and the immigration powers

A law which permitted or required detention for the purpose of effecting the removal of an unlawful non‑citizen from Australia would be a law with respect to aliens and a law with respect to immigration. So much follows from Koon Wing Lau. The provisions now in question, however, are not confined to providing for detention for the purpose of removal. An unlawful non‑citizen who is seeking the grant of a visa must be detained. Nonetheless, in that operation, too, the provisions can be seen to be laws with respect to aliens and laws with respect to immigration. That is, in so far as the provisions now in question provide for detention both during the period in which a non‑citizen's application for a visa remains unresolved, and thereafter for the purpose of removing the non‑citizen from Australia, they are laws with respect to aliens and with respect to immigration.
If, after final resolution of a non‑citizen's application for a visa, it appears either immediately, or after some time has elapsed, that removal cannot be effected promptly, and it cannot be said when removal might be effected, would the provisions requiring detention no longer be laws with respect to aliens or immigration? Would the connection with either of those subject‑matters be so tenuous or insubstantial as to deny that characterisation?
The conclusion that a law requiring detention for the purpose of processing a visa application and, if that application is unsuccessful, for the purpose of removing the non‑citizen from Australia is a law with respect to aliens and with respect to immigration, does not necessarily entail that a law requiring detention of aliens in other circumstances, or for other purposes, is beyond power. In particular, a law which requires the exclusion from Australia of non‑citizens who do not have permission to enter or remain in Australia would fall within those powers. And 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. The question would then be whether the legislation requiring detention would be at odds with the constitutional requirement that no part of the judicial power of the Commonwealth be conferred otherwise than in accordance with the provisions of Ch III. The intersection between the aliens power and Ch III was considered in Chu Kheng Lim.

Chu Kheng Lim v Minister for Immigration

The plaintiffs in Chu Kheng Lim (other than an infant born in Australia) arrived in Australia, by boat, on 27 November 1989 or 31 March 1990. None held a valid entry permit. All were detained upon arrival, and remained in custody thereafter. In 1992, Parliament passed the Migration Amendment Act 1992 (Cth) which, among other things, provided for the detention of the plaintiffs (who were within the class referred to in that Act as "designated persons"). Section 54R of the Migration Act 1958 (as amended by the Migration Amendment Act 1992) provided that "[a] court is not to order the release from custody of a designated person". By majority, the Court held³⁰³ s 54R invalid as a direction by the Parliament to the courts as to the manner in which they were to exercise their jurisdiction and thus an impermissible intrusion into judicial power.
Sections 54L, 54N and 54P, added to the Migration Act 1958 by the Migration Amendment Act 1992, made provision for the detention of designated persons in terms which were not substantially different from what now appears in ss 189, 196 and 198. (Section 54P required removal of a designated person "as soon as practicable", if the person asked, in writing, to be removed, but I do not think that the addition of the word "reasonably", in the provisions now found in s 198³⁰⁴, assists the appellant in any way.) All members of the Court held³⁰⁵ that s 54L (requiring designated persons to be kept in custody, and to be released if and only if removed from Australia under s 54P or given an entry permit) and s 54N (permitting an officer to detain a designated person without warrant and "take reasonable action to ensure that the person is kept in custody for the purposes of section 54L") were valid in their application to the plaintiffs. That is, all members of the Court agreed that, in their operation in respect of the plaintiffs, the laws did not infringe Ch III.
Section 54Q of the Act, also added by the Migration Amendment Act 1992, provided for ss 54L and 54P to cease to apply to designated persons seeking entry permits after the designated person had been in custody for 273 days. (That time did not run during periods where the determination of the application for a permit was delayed for reasons beyond the control of the Department.) This time limit played no, or at least no significant, part in the decision in Chu Kheng Lim.
One of the arguments advanced in Chu Kheng Lim against validity was that, being enacted after the plaintiffs had been taken into custody, the provisions requiring their detention were Bills of Attainder or Bills of Pains and Penalties. Those arguments, which then had only recently been considered by the Court in (), were rejected. But two other important elements are to be seen in the reasoning in . First, Gaudron J, in her separate reasons, pointed out that legislation authorising detention in circumstances involving no breach of the criminal law was not "necessarily and inevitably offensive to Ch III". As her Honour later said in , the categories of cases in which such detention may validly be authorised may not be closed. But whether or not that is so, legislation permitting detention, without judicial intervention, of an alien who has no permission to enter or remain in Australia, can be valid. In their joint reasons, Brennan, Deane and Dawson JJ said that ss 54L and 54N:

"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. On the other hand, if the detention which those sections require and authorize is not so limited, the authority which they purportedly confer upon the Executive cannot properly be seen as an incident of the executive powers to exclude, admit and deport an alien. In that event, 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."

In so far as the distinction which was drawn by their Honours depends upon the identification of the purpose of detention, what has been said earlier in these reasons about when that purpose is spent would require the conclusion that the sections now in issue would meet the test of validity which they posit. For the reasons given earlier, the purpose of detention for removal would not be spent until it had become reasonably practicable to remove the non‑citizen concerned.

The line which was drawn in the joint reasons was a line between detention "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" and detention not so limited. The former was said not to contravene Ch III; the latter was said to be punitive and contrary to Ch III. Three points may be made about this division.
First, to ask whether the law is limited to what is reasonably capable of being seen as necessary for particular purposes may be thought to be a test more apposite to the identification of whether the law is a law with respect to aliens or with respect to immigration. No doubt account must be taken of the fact that the provisions now in question impose the obligation to detain upon the Executive. If the relevant power is identified (as their Honours appear to have identified³¹⁰ it) as the executive power to deport or exclude, it may readily be accepted that the legislative conferral of authority to detain in custody for the purposes of an executive power identified in that way would be an incident of that power.
It is important to notice, however, that the sections now in question (like the provisions under consideration in Chu Kheng Lim) require, rather than authorise, detention. True it is that the requirement is made of the Executive: an "officer" must detain. But the provision is mandatory; the legislature requires that persons of the identified class be detained and kept in detention. No discretion must, or even can, be exercised. No judgment is called for. The only disputable question is whether the person is an unlawful non‑citizen. And the courts can readily adjudicate any dispute about that. There is, therefore, nothing about the decision making that must precede detention which bespeaks an exercise of the judicial power. Nor is there any legislative judgment made against a person otherwise entitled to be at liberty in the Australian community. The premise for the debate is that the non‑citizen does not have permission to be at liberty in the community.
Secondly, for my part, I would not identify the relevant power in quite so confined a manner as is implicit in the joint reasons in Chu Kheng Lim. The relevant heads of power are "aliens" and "immigration". The power with respect to both heads extends to preventing aliens entering or remaining in Australia except by executive permission. But if the heads of power extend so far, they extend to permitting exclusion from the Australian community – by prevention of entry, by removal from Australia, and by segregation from the community by detention in the meantime.
That is why I do not consider that the Ch III question which is said now to arise can be answered by asking whether the law in question is "appropriate and adapted" or "reasonably necessary" or "reasonably capable of being seen as necessary" to the purpose of processing and removal of an unlawful non‑citizen. Those are questions which it is useful to ask in considering a law's connection with a particular head of power. For the reasons given earlier, the sections now in question are laws with respect to aliens and with respect to immigration. In part that is because a law to exclude a non‑citizen from joining the Australian community is a law with respect to those two heads of power.

"Punishment" and judicial power

Because Immigration Detention Centres are places of confinement having many, if not all, of the physical features and administrative arrangements commonly found in prisons, it is easy to equate confinement in such a place with punishment. It is necessary, however, to notice some further matters.
Punishment exacted in the exercise of judicial power is punishment for identified and articulated wrongdoing. H L A Hart identified the standard or central case of punishment in terms of five elements³¹⁵:

"(i) It must involve pain or other consequences normally considered unpleasant.

(ii) It must be for an offence against legal rules.

(iii) It must be of an actual or supposed offender for his offence.

(iv) It must be intentionally administered by human beings other than the offender.

(v) It must be imposed and administered by an authority constituted by a legal system against which the offence is committed."

That is not to say, of course, that it may not be appropriate to identify treatment of persons as punitive where those persons are not offenders³¹⁶. But punishment is not to be inflicted in exercise of the judicial power except upon proof of commission of an offence.

Two features of the immigration detention for which the Migration Act now provides, and which have been identified earlier in these reasons, are then important. First, immigration detention is not detention for an offence. There is now no offence of entering or being found within Australia as a prohibited immigrant. Yet the law permitting detention otherwise than for an offence is a law with respect to a head of power. Secondly, where a non‑citizen has entered or attempted to enter Australia without a visa, detention of that person excludes that person from the community which he or she sought to enter. Only in the most general sense would it be said that preventing a non‑citizen making landfall in Australia is punitive. Segregating those who make landfall, without permission to do so, is not readily seen as bearing a substantially different character. Yet the argument alleging invalidity would suggest that deprivation of freedom will after a time or in some circumstances become punitive.
Only if it is said that there is an immunity from detention does it become right to equate detention with punishment that can validly be exacted only in exercise of the judicial power. Once it is accepted, as it was by all members of the Court in Chu Kheng Lim, that there can be detention of unlawful non‑citizens for some purposes, the argument from the existence of an immunity must accept that the immunity is not unqualified. The argument must then turn to the identification of those qualifications. That must be done by reference to the purpose of the detention. Neither the bare fact of detention nor the effluxion of some predetermined period of time in detention is said to suffice to engage Ch III. And because the purposes must be gleaned from the content of the heads of power which support the law, it is critical to recognise that those heads of power would support a law directed to excluding a non‑citizen from the Australian community, by preventing entry to Australia or, after entry, by segregating that person from the community.
It is essential to confront the contention that, because the time at which detention will end cannot be predicted, its indefinite duration (even, so it is said, for the life of the detainee) is or will become punitive. The answer to that is simple but must be made. If that is the result, it comes about because the non‑citizen came to or remained in this country without permission. The removal of an unlawful non‑citizen from Australia then depends upon the willingness of some other country to receive that person. If the unlawful non‑citizen is stateless, as is Mr Al‑Kateb, there is no nation state which Australia may ask to receive its citizen. And if Australia is unwilling to extend refuge to those who have no country of nationality to which they may look both for protection and a home, the continued exclusion of such persons from the Australian community in accordance with the regime established by the does not impinge upon the separation of powers required by the Constitution.

"An alien, who comes to our shores and the ship which bears him, take the chance that he may not be allowed to land. If that chance turns against them, both know, or, if they do not, they are charged with knowledge, that, since the alien cannot land, he must find an asylum elsewhere; or, like the Flying Dutchman, forever sail the seas. When at his urgence we do let him go ashore – pendente lite so to say – we may give him whatever harborage we choose, until he finds shelter elsewhere if he can."

(The decision of the Second Circuit Court of Appeals, from which Judge Hand dissented, was reversed by the Supreme Court of the United States³¹⁸.) To adopt and adapt what Judge Hand said in that case³¹⁹:

"Think what one may of a statute ... when passed by a society which professes to put its faith in [freedom], a court has no warrant for refusing to enforce it. If that society chooses to flinch when its principles are put to the test, courts are not set up to give it derring‑do."

The appeal should be dismissed. Consistent with the terms on which the matter was removed into this Court, the Commonwealth should pay the appellant's costs in this Court.
CALLINAN J. This appeal raises a question as to the legality of the appellant's detention in immigration detention for an indefinite period but for the purpose of his deportation. These reasons should be read with the reasons in Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs³²⁰ and Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji³²¹.

Facts

The appellant claims to be a stateless Palestinian born on 29 July 1976 in Kuwait. His parents are Palestinian and he has lived most of his life in Kuwait except for a brief period of residence in Jordan. He arrived in Australia in mid-December 2000. He said that he did not possess a passport. He was placed in immigration detention pursuant to s 189 of the Migration Act 1958 (Cth) ("the Migration Act").
The appellant made an application for a protection visa to the Department of Immigration and Multicultural and Indigenous Affairs ("the Department") on 6 January 2001. On 22 February 2001, a delegate of the Minister for the Department refused the application. The appellant then applied for a review of the decision of the delegate to the Refugee Review Tribunal ("the Tribunal").
The Tribunal affirmed the decision of the delegate. On 6 June 2001, the appellant applied for judicial review of the Tribunal's decision before the Federal Court. The application was dismissed by the Federal Court on 23 October 2001. He then appealed to the Full Court of the Federal Court. That Court dismissed the appeal on 21 May 2002.
On 19 June 2002 the appellant told the Department that he wished to leave Australia and return to Kuwait, or if not there, Gaza. On 30 August 2002, he signed a document addressed to the Minister asking to be removed from Australia as soon as reasonably practicable.
His next recourse to litigation was by proceedings in the Federal Court for judicial review of the continuation of his detention on 8 January 2003. This matter was, with others, heard by Selway J who dismissed the application³²². An appeal to the Full Court of the Federal Court has been filed but not heard.
The appellant's litigious endeavours were pursued in yet another way. He lodged a further application to the Federal Court on 12 February 2003 seeking a declaration that he was being unlawfully detained, consequential relief by way of habeas corpus, an order in the nature of mandamus directing the first and second respondents, officers of the Department, to remove him from Australia, an order in the nature of mandamus directing the second respondent to make certain inquiries, an order in the nature of prohibition against the third respondent, the Minister, to prohibit the appellant's retention in detention, and an order for costs, on the ground that his detention (from which he has now been released) was unlawful.
On 3 April 2003 the Federal Court (von Doussa J) dismissed the application after hearing evidence from the second respondent. His Honour was not satisfied that the Department was not taking all reasonable steps to secure the removal of the appellant from Australia, although he found that the appellant's removal from Australia was:

"not reasonably practicable at the present time as there is no real likelihood or prospect of removal in the reasonably foreseeable future."

His Honour expressly declined to follow the decision of Merkel J in the case of Al Masri v Minister for Immigration and Multicultural and Indigenous Affairs³²³ which subsequently the Full Court of the Federal Court in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri³²⁴ held to be correct.
On 17 April 2003 the appellant applied for an interlocutory order for his release from immigration detention on conditions. He was then released from immigration detention pursuant to an interlocutory order of Mansfield J made on that day. The appellant is living in South Australia and is complying with the conditions to which I have referred.
On 23 April 2003, he appealed against the decision of von Doussa J. In July 2003 the appellant was served with a notice under s 40 of the Judiciary Act 1903 (Cth) to remove the appeal against the decision of von Doussa J into this Court.
The matter therefore comes before this Court as an appeal to the Full Court of the Federal Court removed under s 40 of the Judiciary Act to be heard and determined, effectively as an appeal to this Court. It was argued at the same time as Behrooz and Al Khafaji. The cases raise the same or some related questions, although this appellant submits that he is in a superior position because he has the advantage of the finding of von Doussa J to which I have referred as to the slightness in fact of his currently foreseeable prospects of removal.
The appellant pressed this Court to adopt the approach of the United States Supreme Court in Zadvydas v Davis³²⁵ in which the majority, Breyer, Stevens, O'Connor, Souter and Ginsburg JJ, applying the Fifth Amendment³²⁶, held the relevant statute there to be subject to a qualification that it did not permit indefinite detention. The conclusion of the majority is stated in this passage³²⁷:

"While an argument can be made for confining any presumption to 90 days, we doubt that when Congress shortened the removal period to 90 days in 1996 it believed that all reasonably foreseeable removals could be accomplished in that time. We do have reason to believe, however, that Congress previously doubted the constitutionality of detention for more than six months. … Consequently, for the sake of uniform administration in the federal courts, we recognize that period. After this 6‑month period, once the alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must respond with evidence sufficient to rebut that showing. And for detention to remain reasonable, as the period of prior post-removal confinement grows, what counts as the 'reasonably foreseeable future' conversely would have to shrink. This 6‑month presumption, of course, does not mean that every alien not removed must be released after six months. To the contrary, an alien may be held in confinement until it has been determined that there is no significant likelihood of removal in the reasonably foreseeable future."

Not only because of the absence of the complication of a constitutional provision in Australia such as the Fifth Amendment, but also because, in my respectful opinion, they were both more orthodox expressions of constitutional principle and practical reality, I would prefer the opinions of the minority Justices. Scalia J (with whom Thomas J joined) said this³²⁸:

"Like a criminal alien under final order of removal, an inadmissible alien at the border has no right to be in the United States. … In Shaughnessy v United States ex rel Mezei³²⁹, we upheld potentially indefinite detention of such an inadmissible alien whom the Government was unable to return anywhere else. We said that 'we [did] not think that respondent's continued exclusion deprives him of any statutory or constitutional right.'³³⁰ While four Members of the Court thought that Mezei deserved greater procedural protections (the Attorney General had refused to divulge any information as to why Mezei was being detained³³¹), no Justice asserted that Mezei had a substantive constitutional right to release into this country. And Justice Jackson's dissent, joined by Justice Frankfurter, affirmatively asserted the opposite, with no contradiction from the Court: 'Due process does not invest any alien with a right to enter the United States, nor confer on those admitted the right to remain against the national will. Nothing in the Constitution requires admission or sufferance of aliens hostile to our scheme of government.'³³² Insofar as a claimed legal right to release into this country is concerned, an alien under final order of removal stands on an equal footing with an inadmissible alien at the threshold of entry: He has no such right.

...

We are offered no justification why an alien under a valid and final order of removal – which has totally extinguished whatever right to presence in this country he possessed – has any greater due process right to be released into the country than an alien at the border seeking entry. Congress undoubtedly thought that both groups of aliens – inadmissible aliens at the threshold and criminal aliens under final order of removal – could be constitutionally detained on the same terms, since it provided the authority to detain both groups in the very same statutory provision ... Because I believe Mezei controls these cases, and, like the Court, I also see no reason to reconsider Mezei, I find no constitutional impediment to the discretion Congress gave to the Attorney General. Justice Kennedy's dissent explains the clarity of the detention provision, and I see no obstacle to following the statute's plain meaning." (original emphasis)

Kennedy J, with whom Rehnquist CJ joined, and with whom Scalia J and Thomas J joined as to the second and third of the paragraphs reproduced below, said this³³³:

"The Court says its duty is to avoid a constitutional question. It deems the duty performed by interpreting a statute in obvious disregard of congressional intent; curing the resulting gap by writing a statutory amendment of its own; committing its own grave constitutional error by arrogating to the Judicial Branch the power to summon high officers of the Executive to assess their progress in conducting some of the Nation's most sensitive negotiations with foreign powers; and then likely releasing into our general population at least hundreds of removable or inadmissible aliens who have been found by fair procedures to be flight risks, dangers to the community, or both. Far from avoiding a constitutional question, the Court's ruling causes systemic dislocation in the balance of powers, thus raising serious constitutional concerns not just for the cases at hand but for the Court's own view of its proper authority. Any supposed respect the Court seeks in not reaching the constitutional question is outweighed by the intrusive and erroneous exercise of its own powers. In the guise of judicial restraint the Court ought not to intrude upon the other branches. The constitutional question the statute presents, it must be acknowledged, may be a significant one in some later case; but it ought not to drive us to an incorrect interpretation of the statute. The Court having reached the wrong result for the wrong reason, this respectful dissent is required.

...

The 6-month period invented by the Court, even when modified by its sliding standard of reasonableness for certain repatriation negotiations … makes the statutory purpose to protect the community ineffective. The risk to the community exists whether or not the repatriation negotiations have some end in sight; in fact, when the negotiations end, the risk may be greater. The authority to detain beyond the removal period is to protect the community, not to negotiate the aliens' return. The risk to the community survives repatriation negotiations. To a more limited, but still significant, extent, so does the concern with flight. It is a fact of international diplomacy that governments and their policies change; and if repatriation efforts can be revived, the Attorney General has an interest in ensuring the alien can report so the removal process can begin again.

...

The majority's interpretation, moreover, defeats the very repatriation goal in which it professes such interest. The Court rushes to substitute a judicial judgment for the Executive's discretion and authority. As the Government represents to us, judicial orders requiring release of removable aliens, even on a temporary basis, have the potential to undermine the obvious necessity that the Nation speak with one voice on immigration and foreign affairs matters. … The result of the Court's rule is that, by refusing to accept repatriation of their own nationals, other countries can effect the release of these individuals back into the American community. … If their own nationals are now at large in the United States, the nation of origin may ignore or disclaim responsibility to accept their return. … The interference with sensitive foreign relations becomes even more acute where hostility or tension characterizes the relationship, for other countries can use the fact of judicially mandated release to their strategic advantage, refusing the return of their nationals to force dangerous aliens upon us. One of the more alarming aspects of the Court's new venture into foreign affairs management is the suggestion that the district court can expand or contract the reasonable period of detention based on its own assessment of the course of negotiations with foreign powers. The Court says it will allow the Executive to perform its duties on its own for six months; after that, foreign relations go into judicially supervised receivership."

It follows that I would reject the submission of the appellant that this Court should regard the period of 273 days referred to in s 182 of the Migration Act and discussed in Chu Kheng Lim v Minister for Immigration³³⁴, or any other arbitrarily fixed period, in the same way as the majority in the Supreme Court of the United States did six months, in Zadvydas, as the outer limit of any reasonable period of detention for the purposes of deportation.
It was not, and could not be contested that detention for purposes other than punitive ones has been traditionally constitutionally acceptable. Lim³³⁵ itself acknowledges that. Examples are arrest and detention pending trial, detention of the mentally ill or infectiously diseased, and for the welfare and protection of persons endangered for various reasons. Here the appellant accepts that the power to detain exists in respect of him but contends that it cannot be exercised for too long, indefinitely, or indeed unless the respondents can demonstrate that within some relatively brief period, a country which will receive him has been, or will be found. Whatever may be said about its limits, the existence of the power to detain was not and could not be denied³³⁶.
Koon Wing Lau v Calwell³³⁷ was also referred to by the appellant in argument, especially the passage in which Dixon J, after referring to "purpose [of detention]" said that "unless within a reasonable time [the detainee] is placed on board a vessel he would be entitled to his discharge on habeas."³³⁸ There, his Honour was not discussing the ambit of the constitutional power with respect to aliens but was construing the language of the enactment as it was at that time. The statement was also made in an entirely different situation, in which immediate deportation was feasible.
I do not need to decide, but would not necessarily accept that detention for the purpose of deporting an alien is the only purpose which may be effected under the aliens power. It may be the case that detention for the purpose of preventing aliens from entering the general community, working, or otherwise enjoying the benefits that Australian citizens enjoy is constitutionally acceptable. If it were otherwise, aliens having exhausted their rights to seek and obtain protection as non-citizens would be able to become de facto citizens. It is also important to keep in mind the related fact that the appellant, having been shown not to qualify as a refugee, has no particular rights under the United Nations Convention relating to the Status of Refugees except perhaps under Art 32(1), and only then to the extent if any that s 36 of the Act does not provide otherwise, and the relevant person is lawfully present. Another practical consideration is that by their manner of entry, repetitive unsuccessful applications and litigation founded on unsubstantiated claims, or, if and when it occurs, escape from immigration detention, some aliens may attract so much notoriety that other countries will hesitate or refuse to receive them. In those ways they may personally create the conditions compelling their detention for prolonged periods. And, so far as conditions are concerned, aliens entering this country should be taken to know and accept, to adopt the language of Griffith CJ in , "as a term of … admission to [it]" that restraint to the extent necessary to enable deportation to be effected as and when it can be, may be imposed upon them if they are not qualified for refugee status.

Footnotes

Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 10 per Mason CJ. ↩
(1992) 176 CLR 1 at 34 per Brennan, Deane and Dawson JJ. ↩
Amendments to s 196 of the Act in 2003 apply to certain classes of detainee, not including the appellant. ↩
(2003) 126 FCR 54. ↩
R v Governor of Durham Prison; Ex parte Hardial Singh [1984] 1 WLR 704; [1984] 1 All ER 983. ↩
Zadvydas v Davis 533 US 678 (2001). ↩
Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97. ↩
Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 10 per Mason CJ. ↩
Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 50-51 per Toohey J. ↩
Coco v The Queen (1994) 179 CLR 427; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 492 [30]. ↩
Potter v Minahan (1908) 7 CLR 277 at 304. See also R v Secretary of State for the Home Department; Ex parte Pierson [1998] AC 539 at 587-589 per Lord Steyn; R v Secretary of State for the Home Department; Ex parte Simms [2000] 2 AC 115 at 131 per Lord Hoffmann.

Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562; 208 ALR 124; 78 ALJR 1099

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Al-Kateb v Godwin

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