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
1. Appeal dismissed.
2. The respondents to pay the appellant's costs in this Court.
Cause removed under s 40 of the Judiciary Act 1903 (Cth)
Representation:
C M O'Connor with A Hamdan for the appellant (instructed by Hamdan Lawyers)
D M J Bennett QC, Solicitor-General of the Commonwealth with H C Burmester QC and S J Maharaj for the respondents (instructed by Australian Government Solicitor)
Interveners:
D M J Bennett QC, Solicitor-General of the Commonwealth with H C Burmester QC and S J Maharaj intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)
D S Mortimer SC with J K Kirk intervening on behalf of the Human Rights and Equal Opportunity Commission (instructed by Human Rights and Equal Opportunity Commission)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Al-Kateb v Godwin
Immigration – Unlawful non-citizens – Detention pending removal from Australia – No real prospect of removal from Australia in reasonably foreseeable future – Whether detention lawful under Migration Act1958 (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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Al-Kateb v Godwin [2004] HCA 37
Case
[2004] HCA 37
Decision Date
CaseChat Overview and Summary
This case concerned an appeal brought by Mr Al-Kateb, a stateless Palestinian, against a decision of the Federal Court which dismissed his application for a declaration that he was unlawfully detained and for an order in the nature of habeas corpus. Mr Al-Kateb arrived in Australia without a passport or visa and was classified as an "unlawful non-citizen" under the *Migration Act 1958* (Cth). The appeal was heard by the High Court of Australia.
The High Court was required to determine several legal issues. These included whether the *Migration Act* permitted the indefinite detention of an unlawful non-citizen, even where there was no reasonable prospect of removal from Australia in the foreseeable future. The Court also considered whether such detention was temporally limited by its purpose of removal, and whether the requirement for removal "as soon as reasonably practicable" implied a time limit on detention. Furthermore, the Court examined whether the provision for indefinite detention, without a judicial order, infringed Chapter III of the Constitution by involving an exercise of judicial power by the Executive, and whether the Constitution should be interpreted in a manner consistent with international human rights law.
The High Court reasoned that the Parliament, under its constitutional power concerning aliens, is entitled to protect the nation by detaining unwanted entrants for the purpose of deportation or preventing entry. The Court held that as long as the detention served this purpose and was authorised by Parliament, its justice or wisdom was not a matter for judicial review. The Court emphasised that its function was to determine the constitutional validity of the law, not its fairness or consistency with international human rights instruments, which it stated could only be incorporated into the Constitution through amendment. The doctrine of separation of powers was found to prohibit courts from amending the Constitution under the guise of interpretation.
The appeal was dismissed, and the respondents were ordered to pay the appellant's costs in the High Court.
Orders
Orders of the court
1. Appeal dismissed.
2. The respondents to pay the appellant's costs in this Court.
Cause removed under s 40 of the Judiciary Act 1903 (Cth)
Background
Background to the litigation
The appeal is brought against a decision of the Federal Court (von Doussa J) delivered on 3 April 2003 and dismissing an application by Mr Al‑Kateb brought under s 39B of the Judiciary Act. The principal relief sought on the appeal is a declaration that the appellant is "unlawfully detained" and an order in the nature of habeas corpus directing the Minister to cause the appellant forthwith to be released from immigration detention.The facts There is no dispute between the appellant on one side and the Minister and the Attorney-General on the other respecting the relevant facts. The facts may be stated as follows. The appellant arrived in Australia in mid‑December 2000, by vessel, without a passport or Australian visa. He was born in Kuwait on 29 July 1976 and is a Palestinian. He has lived for most of his life in Kuwait, save for a brief period when he resided in Jordan, it would seem illegally. The appellant submitted, and it was not contested, that he is a "stateless person". That term is defined in Art 1 of the Convention relating to the Status of Stateless Persons ("the Stateless Persons Convention")[76] as meaning one "who is not considered as a national by any State under the operation of its law"[77]. Long term residency in Kuwait or birth there did not guarantee to Palestinians citizenship or the right to permanent residence[78].[76]Done at New York on 28 September 1954, which entered into force for Australia on 13 March 1974: [1974] Australian Treaty Series No 20.[77]cf Australian Citizenship Act 1948 (Cth), s 23D.[78]Takkenberg, The Status of Palestinian Refugees in International Law, (1998) at 158‑162.Statelessness At the time of the adoption of the Constitution, the phenomenon of "double nationality" was well understood[79], but that of the "stateless person" achieved significance only in the course of the twentieth century[80]. As late as 1916, the House of Lords reserved the question whether "this country will recognize a man as having no nationality" so as to guard "against appearing to assent to such a proposition"[81]. Later developments respecting statelessness are significant for the interpretation of the constitutional term "alien".[79]Cockburn, Nationality or the Law Relating to Subjects and Aliens, (1869) at 183‑187.[80]Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 278‑279.[81]Ex parte Weber [1916] 1 AC 421 at 424 per Lord Buckmaster LC. Part 2 of the Migration Act 1958 (Cth) ("the Act") (ss 13‑274) is headed "Control of arrival and presence of non‑citizens". This appeal is concerned principally with provisions in Div 7 (ss 188‑197) headed "Detention of unlawful non‑citizens", and Div 8 (ss 198-199) headed "Removal of unlawful non‑citizens". The appellant answers the statutory description in s 14 of "unlawful non‑citizen"; he is in the migration zone, is not an Australian citizen, and does not hold a visa. Of s 51(xix), Quick and Garran wrote[82]:"In English law an alien may be variously defined as a person who owes allegiance to a foreign State, who is born out of the jurisdiction of the Queen, or who is not a British subject."Later experience, and the appearance of the class of stateless persons, has shown that these various definitions are not interchangeable. The appellant's status as a stateless person takes him outside the meaning given to the term "alien" in the joint judgment of six members of the Court in Nolan v Minister for Immigration and Ethnic Affairs[83]. Their Honours said[84]:"As a matter of etymology, 'alien', from the Latin alienus through old French, means belonging to another person or place. Used as a descriptive word to describe a person's lack of relationship with a country, the word means, as a matter of ordinary language, 'nothing more than a citizen or subject of a foreign state'[85]."[82]The Annotated Constitution of the Australian Commonwealth, (1901) at 599.[83](1988) 165 CLR 178.[84](1988) 165 CLR 178 at 183.[85]Milne v Huber 17 Fed Cas 403 at 406 (1843) (US).
Eminent lawyers who have studied the question firmly believe that the Australian Constitution should contain a Bill of Rights which substantially adopts the rules found in the most important of the international human rights instruments[75]. It is an enduring – and many would say a just – criticism of Australia that it is now one of the few countries in the Western world that does not have a Bill of Rights. But, desirable as a Bill of Rights may be, it is not to be inserted into our Constitution by judicial decisions drawing on international instruments that are not even part of the law of this country. It would be absurd to suggest that the meaning of a grant of power in s 51 of the Constitution can be elucidated by the enactments of the Parliament. Yet those who propose that the Constitution should be read so as to conform with the rules of international law are forced to argue that rules contained in treaties made by the executive government are relevant in interpreting the Constitution. It is hard to accept, for example, that the meaning of the trade and commerce power can be affected by the Australian government entering into multilateral trade agreements. It is even more difficult to accept that the Constitution's meaning is affected by rules created by the agreements and practices of other countries. If that were the case, judges would have to have a "loose-leaf" copy of the Constitution. If Australia is to have a Bill of Rights, it must be done in the constitutional way – hard though its achievement may be – by persuading the people to amend the Constitution by inserting such a Bill.[75]See, eg, Williams, The Case for an Australian Bill of Rights, (2004).Conclusion Under the aliens power, the Parliament is entitled to protect the nation against unwanted entrants by detaining them in custody. As long as the detention is for the purpose of deportation or preventing aliens from entering Australia or the Australian community, the justice or wisdom of the course taken by the Parliament is not examinable in this or any other domestic court. It is not for courts, exercising federal jurisdiction, to determine whether the course taken by Parliament is unjust or contrary to basic human rights. The function of the courts in this context is simply to determine whether the law of the Parliament is within the powers conferred on it by the Constitution. The doctrine of separation of powers does more than prohibit the Parliament and the Executive from exercising the judicial power of the Commonwealth. It prohibits the Ch III courts from amending the Constitution under the guise of interpretation.Order The appeal should be dismissed. I agree with the orders proposed by Hayne J. 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.