Al-Kateb v Godwin

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.