CONSTITUTIONAL VALIDITY OF THE PROVISIONS
47 On 4 March 2003, the applicants gave notice pursuant to s 78B of the Judiciary Act that they would contend that, in the light of limits to the relevant heads of legislative power that arise from the exclusive vesting of the judicial power of the Commonwealth in the courts referred to in Chapter III of the Constitution, s 196 must be construed as authorising detention only to the extent that it is reasonably necessary for the purpose of, relevantly, removal from Australia. None of the Attorneys-General has indicated a desire to be heard in relation to that question.
48 In effect, each applicant contends that, in the circumstances presently applying to him, his continued detention is not capable of being authorised by legislation of the Commonwealth. The applicants say that, if s 196 authorise such continued detention, it is invalid as being beyond the legislative power of the Commonwealth because it is not reasonably necessary for the purpose of their removal from Australia. They say that, to avoid that consequence, s 196 must be read down so as not to authorise continued detention in their present circumstances.
49 Each of the applicants, being an unlawful non-citizen, is an alien. Section 51(xix) of the Constitution authorises the Parliament to make laws with respect to aliens and the validity of the relevant provisions of the Act depends upon that provision. If the provisions authorise detention for a purpose that can properly be characterised as being a purpose with respect to aliens, they will be valid.
50 The power of the Parliament to make laws with respect to aliens includes, not only the power to make laws providing for the removal or deportation of aliens by the Executive, but also the power to authorise the Executive to detain an alien in custody to the extent necessary to effect removal or deportation: see Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 30-31. Thus, the provisions presently under consideration will be valid if they are reasonably appropriate and adapted for the purposes of processing and securing deportation or removal of unlawful non-citizens.
51 It is beyond the legislative power of the Commonwealth to invest the Executive with an arbitrary power to detain persons in custody. That is because detention is normally a punitive measure. The function of judging and punishing criminal guilt is a judicial one reserved to the Courts referred to in Chapter III of the Constitution. However, immigration detention of an alien for the purposes of expulsion or deportation is not punitive in nature and, therefore, does not trespass on the judicial power of the Commonwealth: see Chu Kheng Lim at 32. The detention of an unlawful non-citizen for the purpose of his or her removal from Australia, to ensure that the person will be available for removal, is not punitive in character. Accordingly, the power to detain for such purposes can be conferred on a person or body other than a Court exercising the judicial power of the Commonwealth.
52 The applicants contend that a provision authorising continued detention of a person when there is not a real prospect of removing that person to another country in the foreseeable future is not appropriate or adapted for the purpose of securing removal or deportation. They say that detention cannot properly be seen as appropriate and adapted to securing such removal at any given time if, at that time, there is no real prospect of removal in the reasonably foreseeable future. Thus, the question is whether a person can properly be regarded, at a given time, as being detained for the purpose of removal from Australia if, at that time, there is no a real prospect of removing him or her from Australia in the foreseeable future.
53 Whether administrative detention of a person is properly seen as being for the purpose of ensuring that person's removal from Australia will depend upon objective considerations and not upon the subjective purpose that the Minister or an officer has, or claims to have, in a particular case. Similarly, the factual consequences of detention of an individual cannot render s 196 invalid. The length of the detention cannot, of itself, destroy its validity so long as the purpose of the detention is the furtherance of an object that is within the legislative power of the Parliament.
54 Section 196, read with s 198, does not provide for indefinite detention, in the sense of detention unconstrained by any purpose. It provides, relevantly, for detention for the purpose of effecting removal of an unlawful non-citizen. Once it is accepted that the Parliament may make laws authorising the Executive to restrain an unlawful non-citizen in custody to the extent necessary to make the deportation effective, there is no constitutional limit on the power to authorise detention indefinitely, so long as the detention is for the purpose, ultimately, of securing the removal of the unlawful non-citizen. Thus, there is no constitutional reason why s 196(1) cannot be read as conferring an unqualified power to keep an unlawful non-citizen in immigration detention until one of the events specified in the section occurs, however uncertain the event may be, so long as the purpose of the detention is removal.
55 The political situation in various parts of the world changes from time to time. It is possible to conceive of circumstances where, by reason of political upheavals in other parts of the world, the practicability of removal of an unlawful non-citizen to such parts of the world could change very quickly. The change might either facilitate or impede the removal. While humanitarian considerations may render very distasteful the indefinite detention of an unlawful non-citizen, simply because Australia is unable to find a country to whom that person may be removed, that, of itself, does not detract from the fact that continued detention is for the purpose of achieving that object.
56 That is to say, the possibility always remains that it will be practicable to remove the applicants to another country at some time in the future. It may not be feasible at the present time. However, there is a possibility that, at some stage in the future, political circumstances will change such that it will be practicable to remove them. The events contemplated by s 196(1) can still occur at some time in the future.
57 The position could well be different if the events specified in s 196 were such that circumstances could render them incapable of coming about. For example, a provision could provide that an unlawful non-citizen who travels to Australia on board a vessel may be kept in detention until the departure of the vessel from Australia. In such a case, the termination of the detention would be predicated upon the departure of a specified vessel from Australia. If that vessel were to be destroyed, the event upon which termination of detention is predicated could then never occur.
58 It may therefore be possible to read into such a provision a qualification that the period of detention authorised was a transitory one, pending the departure of the relevant vessel. Once it became apparent that the relevant vessel could never depart, the temporary period pending departure, in which a person could lawfully be held in detention pursuant to the provision, would come to an end. The provision would no longer authorise the detention of the person. Those were the circumstances that arose in Chu Kheng Lim: see at 21-22.
59 Such circumstances are to be contrasted with those contemplated by s 196. As I have said, the events upon which detention is to terminate can still occur at some time in the future, albeit that the occurrence might be in the remote future. The position might be different if circumstances arose such that none of the events referred to in s 196(1) could ever occur. In those circumstances, if the true construction of s 196(1) was to authorise continued detention even after the events became impossible of occurrence, there may be some constitutional invalidity. That question, however, simply does not arise in the present case.
60 I do not consider that any constitutional invalidity arises from construing the relevant provisions as authorising continued detention of an unlawful non-citizen at a time when there is no real prospect of removing that person from Australia in the foreseeable future. Accordingly, there is no need to read down the provisions, in the way as claimed by the applicants, in order to ensure constitutional validity. That being so, there is no reason why the provisions should not be given the effect that their clear unequivocal meaning requires.