Re Woolley; Ex parte Applicants M276/2003

[2004] HCA 49

HIGH COURT OF AUSTRALIA

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

RE KIT WOOLLEY (MANAGER OF THE
BAXTER IMMIGRATION DETENTION CENTRE)
& ANOR  RESPONDENTS

EX PARTE: APPLICANTS M276/2003
BY THEIR NEXT FRIEND GS  PROSECUTORS

Re Woolley;
Ex parte Applicants M276/2003 by their next friend GS

[2004] HCA 49

7 October 2004
M276/2003

ORDER

Application dismissed.

Representation:

G Griffith QC with C J Horan and C M Harris for the prosecutors (instructed by Vadarlis & Associates)

D M J Bennett QC, Solicitor-General of the Commonwealth, with G R Kennett for the respondents and intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)

B W Walker SC with J K Kirk intervening on behalf of the Human Rights and Equal Opportunity Commission (instructed by the 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

Re Woolley;  Ex parte Applicants M276/2003 by their next friend GS

Immigration – Detention – Migration Act 1958 (Cth) ("Migration Act"), ss 189 and 196 – Whether detention of children authorised by Migration Act – Whether children may request release from detention under Migration Act, s 198 – Whether detention valid if children unable to request release – Relevance of international jurisprudence and parens patriae jurisdiction.

Constitutional law (Cth) – Judicial power of the Commonwealth – Immigration detention – Whether Migration Act, ss 189 and 196 validly require detention of children – Whether legislation reasonably capable of being seen as necessary for the purposes of reception, investigation, admission or deportation of aliens – Characterisation of detention as punitive or non-punitive.

Words and phrases – "judicial power", "alien", "decision-making capacity", "community", "membership of the Australian community".

Constitution, Ch III, s 51(xix), (xxvii).
Migration Act 1958 (Cth), ss 5, 189, 196, 198, 252A, 252B.

GLEESON CJ.

Facts and proceedings

1. The applicants are four children, at the time of the proceedings aged 15, 13, 11 and seven respectively, of Afghani nationality, who were brought to Australia by their parents in 2001.  Neither they nor their parents had permission to enter Australia.  The members of the family were all treated as unlawful non-citizens within the meaning of that expression in the Migration Act 1958 (Cth) ("the Act"). Section 189 of the Act provides that if an officer knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen, the officer must detain that person. Pursuant to that requirement, the applicants and their parents were taken into immigration detention. The issue in the case concerns the lawfulness of the detention of the applicants.

2. Soon after the arrival of the family in Australia, the applicants' father applied for protection visas for himself and his family. A delegate of the second respondent refused the application. The Act makes provision for procedures of administrative review of such a decision, and for judicial review of administrative decisions. Such procedures, if they ultimately lead to an appeal to this Court, sometimes involve up to five levels of administrative and judicial decision-making. Years may pass while rights of review or appeal are pursued. The proceedings initiated by the applicants' father remain on foot. Their history to date is set out in the reasons of Callinan J. The applicants and their family were in Baxter Immigration Detention Centre at the time of the hearing of this matter.

3. It is contended for the applicants that the provisions of the Act pursuant to which they are being detained, if and to the extent to which they apply to children, are invalid. The applicants seek, against the Manager of the Baxter Immigration Detention Centre, and the Minister for Immigration and Multicultural and Indigenous Affairs, orders for habeas corpus, prohibition and injunction.

   The legislation

4. The period of the detention required by s 189 of the Act is prescribed by s 196, which must be read together with s 198. Section 198 is in Div 8 of Pt 2, which deals with "Removal of unlawful non-citizens". So far as presently relevant, it provides that, if an unlawful non-citizen detainee has made an application for a visa, the grant of the visa has been refused, and the application has been finally determined, then an officer must remove the non-citizen from Australia as soon as reasonably practicable (s 198(6)). There is also a requirement to remove as soon as reasonably practicable an unlawful non-citizen who asks the Minister, in writing, to be removed (s 198(1)). That additional requirement is relevant to an argument that will be considered below. Section 196, like s 189, is in Div 7 of Pt 2, dealing with "Detention of unlawful non-citizens". Section 196 relevantly provides that an unlawful non-citizen detained under s 189 must be kept in immigration detention until he or she is removed from Australia under s 198 or granted a visa.

5. In brief, the provisions of the Act with which this case is concerned provide for mandatory detention, pending removal from Australia, of unlawful non-citizens. If an unlawful non-citizen applies for a visa, then he or she must be kept in immigration detention pending final determination of the application. If the final outcome is adverse to the non-citizen, he or she is to be removed from Australia as soon as reasonably practicable, and detained pending removal. If the outcome is the grant of a visa, detention comes to an end.

6. The applicants and their family were being detained because the proceedings relating to the visa application made by the father are continuing.  It is not suggested there is any problem of the kind considered in Al-Kateb v Godwin[1].

   [1](2004) 78 ALJR 1099; 208 ALR 124.

   The meaning of the legislation

7. The language of ss 189 and 196 does not distinguish between unlawful non-citizens who are above and those who are below the age of 18 years. Those who are below the age of 18 may range from infants of tender years, totally dependent upon their parents, to young people who have almost reached adulthood, and who may have arrived in this country, or who may be capable of living here, independently of their parents. In s 5 of the Act, "non-citizen" is defined as "a person who is not an Australian citizen". An "unlawful non-citizen" is "[a] non-citizen in the migration zone who is not a lawful non-citizen" (s 14). A lawful non-citizen is a non-citizen in the migration zone who holds a current visa (s 13). It is hardly likely that Parliament overlooked the fact that some of the persons covered by those definitions would be children. Human reproduction, and the existence of families, cannot have escaped notice. People who enter Australia without a visa sometimes bring children with them; and it is not unusual for people who originally held a visa, but whose visa has ceased to be effective, to be members of a family. The Convention on the Rights of the Child[2], in its preamble, describes the family as "the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children".  The potential impact of any system of immigration detention, mandatory or discretionary, upon families, as well as individuals, is obvious.  Conversely, some people who enter Australia as individuals, without permission, may be independent in a practical sense, even though under the age of 18.

   [2]Opened for signature 20 November 1989, 1577 United Nations Treaty Series 3, ratified by Australia 17 December 1990.

8. There is no doubt that the applicants, whether in or out of immigration detention, have the status of unlawful non-citizens. If, for some reason, the provisions of ss 189 and 196 did not apply to them, there would be a gap in the legislation in its application to an obvious and important group of non-citizens. Furthermore, the legislation would have a differential impact on family members. The parents, the primary carers, would be the subject of obligatory detention. Those under their care would be in a kind of legal limbo. In this respect, there is no ambiguity in s 189 or s 196. There is no basis in the text for reading the references to persons, or to unlawful non-citizens, as limited to persons who have attained the age of 18 years.

9. Mandatory detention was introduced in 1992. The practical operation of a system of mandatory detention has consequences for families and children that, no doubt, are considered by some to be a reason to oppose the policy of the Act, but it is not for this Court to set out to frustrate the legislation on the basis of such opposition. It may be added that, given that the Act imposes mandatory detention, it is not self-evident that, by construing ss 189 and 196 as limited to adult non-citizens, the result would be a significant improvement in the position of unlawful non-citizens under the age of 18. They would still be unlawful non-citizens. Those who, in a practical sense, are incapable of living separately from their parents may find themselves in immigration detention in any event. Presumably, those who remained unlawful non-citizens at the relevant time would be placed in detention when they turned 18. Whatever the policy arguments against mandatory detention by reason of its effect on children, reading ss 189 and 196 as applying only to persons of 18 years and over hardly provides a satisfactory solution. The problem of the situation of families and children is inherent in immigration detention itself.

10. Just as it is impossible to interpret ss 189 and 196 as applying only to persons over the age of 18 years, so also it is impossible to read them down in some manner requiring individual assessment of particular unlawful non-citizens, so that in some cases detention would be mandatory, and in others discretionary. The Human Rights and Equal Opportunity Commission, in its submissions to the Court, acknowledged as much. To do so would directly contradict the clear legislative intention.

11. If the scheme of the legislation, expressed in unambiguous language, were to be considered inconsistent with Australia's international obligations under the Convention on the Rights of the Child, that would not justify a refusal by the Court to give effect to the legislation.  Of course, if the statutory language were ambiguous, and if it were possible to give it a fair interpretation consistent with those obligations, different considerations would apply.  But that is not the case.

12. The substantial question to be considered is whether the Constitution provides an impediment to the valid operation of the Act according to its terms.

    Constitutional validity

13. In 1992, a number of Cambodian nationals, who had arrived in Australian territorial waters without an entry permit, and who had subsequently made unsuccessful visa applications on the basis that they were refugees, were in immigration detention.  They were affected by the Migration Amendment Act 1992 (Cth), which came into operation on 6 May 1992. That Act provided for the compulsory detention in custody of certain non-citizens who had arrived in Australia without permission. The Cambodian nationals immediately commenced proceedings in this Court challenging the constitutional validity of mandatory detention. Those proceedings were Chu Kheng Lim v Minister for Immigration[3]. One ground of challenge to the legislation, which is presently irrelevant, concerned its effect upon pending litigation. Another ground of challenge, of direct present relevance, was based upon the contention that mandatory immigration detention was a form of punishment by the Executive, and was contrary to Ch III of the Constitution, and to the separation of powers which is a structural feature of the Constitution. A similar contention forms the basis of the argument for the applicants in the present case. In its application to the wider system of mandatory detention, the contention was rejected. In the present case the contention is repeated in a narrower form, with reference to the operation of the legislation in relation to children. Although it was never made quite clear, presumably the contention is directed to the operation of the scheme in relation to all children.  This is a point of some importance.  As was noted earlier, if children include all persons under the age of 18, then the expression covers a rather diverse class.  They might be treated conveniently as a single group for some purposes, but for the purpose of deciding whether a system of immigration detention is "punitive" (itself a problematic concept) they are quite disparate.  The class would include an infant who could not reasonably be separated from a mother, whether in or out of immigration detention, and perhaps a 17-year-old who is herself a mother.  It may be sufficient for the purposes of the applicants to argue that, if the system is punitive in relation to any children, then the very considerations that make it impossible to read down ss 189 and 196 result in invalidity of the entire system. If that were so, it may mean that the decision in Chu Kheng Lim was wrong, because an argument fatal to the validity of the legislation there in question had been overlooked.  However, the idea that the legislation might operate punitively in relation to some children and not in relation to other children directs attention to the need to be clear about what is meant by punishment in this context.  Furthermore, if the legislation is to be characterised as punitive in its operation in relation to some people, and not in its operation in relation to others, it is hard to see that a dividing line constituted by the age of 18 years would be appropriate.  That would ignore the position of the ill, or the elderly, or others who might suffer as much hardship as some of the young.

    [3](1992) 176 CLR 1.

14. In Chu Kheng Lim, Brennan, Deane and Dawson JJ wrote a joint judgment, with which Mason CJ agreed.  The views of those four members of the Court reflect the principles for which the case stands as authority.  Those principles are fatal to the argument of the applicants in the present case.

15. The reasoning in the joint judgment followed a pattern which is significant. Relevantly, it began by construing the grant of power, in s 51(xix) of the Constitution, by which Parliament, subject to the Constitution (and therefore subject to Ch III) was given power to make laws with respect to naturalization and aliens. It was pointed out that Nolan v Minister for Immigration and Ethnic Affairs[4] recognized that the effect of Australia's emergence as a fully independent nation with its own distinct citizenship was that the word "alien" in s 51(xix) had become synonymous with "non-citizen". (Nolan was later, temporarily, in disfavour[5], but its authority has since been restored[6].)  It was then said that the legislative power with respect to aliens prima facie encompasses laws with respect to non-citizens, such as non-citizens who have no visa[7]. Those observations are of particular significance having regard to the present wording of the Act in relation to "unlawful non-citizens". Relating that to the legislation there before the Court, the joint judgment said that a law that required designated non-citizens to be kept in custody until they were either removed or given an entry permit was a law with respect to aliens[8].

    [4](1988) 165 CLR 178.

    [5]Re Patterson; Ex parte Taylor (2001) 207 CLR 391.

    [6]Shaw v Minister for Immigration and Multicultural Affairs (2003) 78 ALJR 203; 203 ALR 143.

    [7]Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 25.

    [8](1992) 176 CLR 1 at 26.

16. The reference to the prima facie effect of s 51(xix) related to the qualification "subject to the Constitution", that is to say, subject to Ch III. The joint judgment then went on to consider Ch III. It stated a number of propositions which were all qualified by reference to the rights of Australian citizens. Subject to certain (or perhaps uncertain) qualifications, it was stated as a general proposition "that the power to order that a citizen be involuntarily confined in custody is, under the doctrine of the separation of judicial from executive and legislative powers enshrined in our Constitution, part of the judicial power of the Commonwealth entrusted exclusively to Ch III courts."[9]  This was because, subject to qualifications, "the involuntary detention of a citizen in custody by the State is penal or punitive in character and, under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt."[10]

    [9](1992) 176 CLR 1 at 28.

    [10](1992) 176 CLR 1 at 27.

17. The proposition that, ordinarily, the involuntary detention of a citizen by the State is penal or punitive in character was not based upon the idea that all hardship or distress inflicted upon a citizen by the State constitutes a form of punishment, although colloquially that is how it may sometimes be described.  Taxes are sometimes said, in political rhetoric, to be punitive.  That is a loose use of the term.  Punishment, in the sense of the inflicting of involuntary hardship or detriment by the State, is not an exclusively judicial function.  On the other hand, the particular form of detriment constituted by the deprivation of liberty usually (although not always) follows adjudgment of criminal guilt, and the circumstances in which deprivation of liberty may be imposed upon a citizen by the State otherwise than by way of judicial punishment are limited.  It is unnecessary, and perhaps undesirable, to seek an exhaustive definition of those circumstances.  The joint judgment went on to demonstrate that mandatory detention of the kind there in question (which was not materially different from the kind presently in question) was not punishment but that, because of the legal characteristics of the persons upon whom it was imposed, and the purpose for which it was imposed, it bore a different character.

18. The next step in the reasoning of Brennan, Deane and Dawson JJ was to deal with the exclusion, deportation and detention of aliens, that is, non-citizens[11].  The joint judgment pointed out that aliens, unlike citizens, are subject to a power of exclusion or expulsion which is an incident of sovereignty over territory.  The supreme power in a State has the right to refuse to permit an alien to enter, either absolutely or subject to conditions, and to expel or deport.  The status of alienage, which was shared by all those subject to the system of administrative detention in question, was a key element in identifying the legal character of the power to detain.  The power to make laws with respect to aliens, which includes a power to expel or deport, also includes a power to restrain an alien in custody to the extent necessary to make the deportation effective[12].  It extends to a power to detain an alien in custody for the purpose and as an incident of the executive power to receive, investigate, and determine an application by the alien to be permitted to enter or remain in Australia.  Their Honours said[13]:

    "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."  (Footnote omitted)

    [11](1992) 176 CLR 1 at 29-32.

    [12]Koon Wing Lau v Calwell (1949) 80 CLR 533.

    [13](1992) 176 CLR 1 at 32.

1. In a footnote to that passage, reference was made to cases in which it was said that the exclusion and deportation of an unwanted alien immigrant is not imposed as punishment for an offence but as a measure to prevent entry into the community of a person whom the State does not wish to accept as a member of the community[14].

   [14]Ex parte Walsh and Johnson; In re Yates (1925) 37 CLR 36 at 60-61, 96; O'Keefe v Calwell (1949) 77 CLR 261 at 278; Koon Wing Lau v Calwell (1949) 80 CLR 533 at 555.

2. Mason CJ, agreeing with Brennan, Deane and Dawson JJ said[15]:

   "I agree with their Honours that the legislative power conferred by s 51(xix) of the Constitution extends to conferring upon the Executive authority to detain an alien in custody for the purposes of expulsion or deportation and that such authority constitutes an incident of executive power. I also agree that 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 and that such limited authority to detain an alien in custody can be conferred upon the Executive without contravening the investment of the judicial power of the Commonwealth in Ch III courts."

   [15](1992) 176 CLR 1 at 10.

3. When Brennan, Deane and Dawson JJ went on to apply the principles they had stated to the particular statutory provisions under consideration they repeated that "the ... sections 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."[16]

   [16](1992) 176 CLR 1 at 33.

4. The following points of relevance to the present case emerge from the above.

5. First, where legislation confers upon the Executive authority to detain an alien in custody, if the exercise of such authority is properly characterised as an incident of executive power, rather than as an exercise of judicial power, it is a law with respect to aliens, and does not offend Ch III or the principle of the separation of powers.

6. Secondly, the capacity of the State (in the international law sense) to exclude and to deport aliens means that the character of a law authorizing detention of an alien may be different from the character of a law authorizing detention of a citizen.  Deprivation of liberty, when applied to a citizen, is ordinarily a form of punishment incidental to the exercise of judicial power.  Detention of an alien for the purpose of exclusion, dealing with an application for permission to enter, or removal bears a different aspect.

7. Thirdly, if a law is reasonably capable of being seen as necessary for the purpose of exclusion, dealing with an application for permission to enter, or removal, then ordinarily it will be proper to regard it as having the character of an incident of the executive power to receive, investigate and determine an application for an entry permit and, after determination, to admit or deport.

8. Fourthly, Brennan, Deane and Dawson JJ referred to detention that was "necessary to enable an application for an entry permit to be made and considered".  Plainly they did not contemplate that it is essential for a person to be in custody in order to make an application for an entry permit, or that it is only possible for the Executive to consider such an application while the applicant is in custody.  They were referring to the time necessarily involved in receiving, investigating and determining an application for an entry permit.  In a particular case, that time may be brief, or, depending upon the procedures of review and appeal that are invoked, it may be substantial.  If a non-citizen enters Australia without permission, then the power to exclude the non-citizen extends to a power to investigate and determine an application by the non-citizen for permission to remain, and to hold the non-citizen in detention for the time necessary to follow the required procedures of decision-making.  The non-citizen is not being detained as a form of punishment, but as an incident of the process of deciding whether to give the non-citizen permission to enter the Australian community.  Without such permission, the non-citizen has no legal right to enter the community, and a law providing for detention during the process of decision-making is not punitive in nature.

9. It was not suggested in Chu Kheng Lim, and would be inconsistent with the decision in that case, that the validity of mandatory administrative detention of aliens seeking visas, pending resolution of the application process, depends upon evidence, case by case, that the applicant is likely to abscond, or upon the individual hardship involved in detention.  The legislation under challenge in Chu Kheng Lim dealt with what are now called unlawful non-citizens, who had entered the country without permission, as a class.  The power of exclusion was held to extend to keeping them separate from the community, in administrative detention, while their visa applications were being investigated and considered.  The possibility of delays in tribunal or court proceedings was acknowledged in the joint judgment[17].  In the legislation there under consideration, there was a maximum period of detention following finalization of such proceedings.  There is no such period in the present legislation.  But, in this case, if there had been such a period, it would not yet have commenced to run.

   [17](1992) 176 CLR 1 at 33.

10. The context in which the power of detention was given, and the purpose for which it existed, was seen as definitive of its character as an incident of executive power.  A vital aspect of that context was that it was given in relation to non-citizens, and that the exclusion of non-citizens is an aspect of territorial sovereignty.

11. Nowhere was it suggested, in the reasoning of Brennan, Deane and Dawson JJ, or Mason CJ, or any member of the Court, that the power of detention conferred by the legislation in that case would take on a different character if, in its application to some particular detainees, or some class of detainees, it was capable of causing particular hardship.  One of the most obvious features of the system of mandatory detention considered in Chu Kheng Lim, as of the system with which this case is concerned, is that it does not address the particular circumstances of individual detainees.  That is the difference between mandatory and discretionary detention.  If the possibility of the severity of the operation of mandatory detention in a particular case or class of case altered the character of the power of detention from an incident of executive power to extra-judicial and unconstitutional punishment, then the system of mandatory detention would have been found unconstitutional.  Furthermore, it is impossible to identify the criterion by which severity of application would be measured.  There is no reason why it would be limited to children, or to some children.  Children might constitute a class whose members would include specially vulnerable people, but so would the elderly, the infirm, and perhaps others.

12. It was not argued that Chu Kheng Lim was wrongly decided, and we were not invited to re-open that decision. An attempt was made to distinguish the case, but that attempt was unconvincing. It was pointed out that, in the joint judgment, some significance was placed upon a feature of the legislation, which remains in the Act in its present form, which permitted a detainee to bring an end to his or her detention by requiring removal from Australia if the detainee requested it[18].  That was regarded as bearing upon the character of the power.  It was seen as part of the legislative context in which the power was conferred.  Unlawful non-citizens are dealt with as a class, and, considered as a class, they have a power to bring their detention to an end by requesting removal.  Nevertheless, it is argued, that is not a power available to some detainees.  The legal incapacity of children was referred to.  Two points may be made.  First, not all persons under the age of 18 would lack the legal capacity to make an effective request for removal.  In Gillick v West Norfolk AHA[19], Lord Scarman pointed out that, subject to any statutory provision, "a minor's capacity to make his or her own decision depends upon the minor having sufficient understanding and intelligence to make the decision and is not to be determined by reference to any judicially fixed age limit."  That principle was applied by this Court in Marion's Case[20]. Some children would have the legal capacity to make (independently of their parents) a request for removal from Australia, and others would not. Secondly, the character of the power conferred by ss 189 and 196 does not vary according to whether a particular unlawful non-citizen in detention has the legal capacity to request removal from Australia. The power takes its character from its legislative context, and it retains that character even if, in the circumstances of an individual case, one of a number of factors relevant to that general context does not apply.

    [18](1992) 176 CLR 1 at 34.

    [19][1986] AC 112 at 188.

    [20]Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218.

13. The special concern of the law for families and children, as evidenced by the Convention on the Rights of the Child and the parens patriae jurisdiction of courts, was invoked in argument. This is unquestionably an important consideration of legislative policy, but it does not lead to any legally relevant conclusion as to the meaning of the Act, or the character for constitutional purposes of immigration detention.

    Conclusion

14. The application should be dismissed.

15. McHUGH J. Two questions arise in this application for a writ of habeas corpus against the first respondent and, against the second respondent, a writ of prohibition or, alternatively, an injunction. First, do ss 189 and 196 of the Migration Act 1958 (Cth) ("the Act") apply to alien children in Australia pending the determination of whether they are entitled to visas under that Act? Second, if they do, are they invalid because they constitute a conferral of the judicial power of the Commonwealth otherwise than in accordance with Ch III of the Constitution?

16. In my opinion, on their correct construction, ss 189 and 196 apply to alien children in Australia and they are valid enactments of the Parliament of the Commonwealth.

    Statement of facts

17. The applicants are children who at the time of the hearing before this Court were aged 15, 13, 11 and seven years old. They are citizens of Afghanistan. They arrived with their parents in Australia in January 2001. Shortly after, officers of the Department of Immigration and Multicultural and Indigenous Affairs took all members of the family to an immigration detention centre at Woomera in South Australia. In February 2001, the applicants' father applied for a protection visa. He included the applicants in the application. The applicants were detained at Woomera until January 2003 when they were taken to the Baxter immigration detention facility in South Australia. After the hearing before this Court, the applicants were granted temporary protection visas and released from detention. The Commonwealth contends that the applicants were lawfully detained because of ss 189 and 196 of the Act.

    Legislative framework

18. Division 7 of Pt 2 of the Act establishes the statutory scheme under which the applicants were detained. Section 189 both authorises and requires the detention of "unlawful non-citizens". Section 196 requires that an unlawful non-citizen detained under s 189 be kept in immigration detention until he or she is:

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

    (b)      deported under s 200; or

    (c)      granted a visa.

19. Section 5(1) of the Act defines "detain" to mean:

    "(a)     take into immigration detention; or

    (b)keep, or cause to be kept, in immigration detention". 

    "Immigration detention" is defined in s 5(1) to mean, among other things:

    "(b)     being held by, or on behalf of, an officer:

    (i)in a detention centre established under this Act; or

    (ii)in a prison or remand centre of the Commonwealth, a State or a Territory; or

    …

    (v)in another place approved by the Minister in writing".

20. Section 13 of the Act declares that a non-citizen in the "migration zone" (essentially, the States and Territories) who holds a visa that is in effect is a lawful non-citizen[21]. Section 14 deems any non-citizen who is in the migration zone who is not a "lawful non-citizen" to be an "unlawful non-citizen". By operation of ss 13 and 14, an "unlawful non-citizen" is a person who is in the migration zone who is not an Australian citizen[22] and who does not hold a valid visa.

    [21]A visa is a permission granted to a non-citizen by the Minister to travel to and enter Australia and/or to remain in Australia:  s 29.

    [22]This Court held by majority in Shaw v Minister for Immigration and Multicultural Affairs that all non-citizens are aliens for the purposes of s 51(xix) of the Constitution: (2003) 78 ALJR 203; 203 ALR 143. Gleeson CJ, Gummow and Hayne JJ held that all persons who entered Australia after 26 January 1949, who were born out of Australia of parents who were not Australian citizens and who had not been naturalised were "aliens" for constitutional purposes: Shaw (2003) 78 ALJR 203 at 210 [32]; 203 ALR 143 at 151. In Singh v The Commonwealth, a majority of this Court held that for constitutional purposes the Parliament could treat as an alien any person born in Australia after 20 August 1986 if neither parent was, at the time of the person's birth, an Australian citizen or a permanent resident, and the person had not been ordinarily resident in Australia for 10 years since his or her date of birth: [2004] HCA 43.

21. Section 189(1) states:

    "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."

22. Section 196 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

    (c)      granted a visa.

    (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.

    (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)."

23. Section 198 of the Act requires an officer "as soon as reasonably practicable" to remove an unlawful non-citizen who requests removal or who has not applied for a visa or whose application for a visa has been refused and the application has been finally determined. Section 199 relevantly provides for the removal of a spouse or dependent child of an unlawful non-citizen at the request of the unlawful non-citizen, where the officer removes or is about to remove that unlawful non-citizen. Section 200 provides for the deportation of non-citizens who have been convicted of crimes or on security grounds.

    Aliens

24. The applicants concede that they are aliens for the purpose of s 51(xix) of the Constitution, which provides that the Parliament of the Commonwealth may "make laws ... with respect to ... aliens". However, they claim that upon its true construction the Act does not authorise their detention pending the determination of their application for visas. If it does, they contend that the Act is invalid because the power conferred by s 51(xix) does not authorise such a law. Alternatively, they contend that if ss 189 and 196 are laws with respect to aliens, Ch III of the Constitution prevents the Parliament from enacting those sections.

25. The power of the Federal Parliament to make laws with respect to aliens is, subject to the Constitution, limited only by the description of the subject matter[23]. Parliament can make laws imposing burdens on aliens that cannot be imposed on Australian citizens. If a law can be characterised as a law "with respect to ... aliens", it is constitutionally valid unless it infringes an express or implied prohibition of the Constitution.

    [23]Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 64 per McHugh J.

26. This Court has consistently recognised that the power to make laws with respect to aliens extends to authorising the Executive to detain an alien in custody to the extent necessary to make the deportation or expulsion of that alien effective[24].  In Chu Kheng Lim v Minister for Immigration, Brennan, Deane and Dawson JJ said that the power of the Executive to detain an alien in custody pending the determination of his or her application for entry is an incident of the Executive powers of detention for the purposes of removal or deportation[25]:

    "[T]he 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." (emphasis added)

    [24]Lim (1992) 176 CLR 1 at 30-31 per Brennan, Deane and Dawson JJ (Mason CJ agreeing), citing Koon Wing Lau v Calwell (1949) 80 CLR 533; Attorney-General (Canada) v Cain [1906] AC 542 at 546; Chu Shao Hung v The Queen (1953) 87 CLR 575 at 589 per Kitto J; Znaty v Minister for Immigration (1972) 126 CLR 1 at 9-10 per Walsh J.

    [25](1992) 176 CLR 1 at 32.

27. Similarly, in the same case, Mason CJ said[26]:

    "[T]he legislative power conferred by s 51(xix) of the Constitution extends to conferring upon the Executive authority to detain an alien in custody for the purposes of expulsion or deportation and ... such authority constitutes an incident of executive power. ... [The] 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". (emphasis added)

    [26]Lim (1992) 176 CLR 1 at 10.

1. The applicants assert that ss 189 and 196 do not apply to children who are aliens. However, nothing in those sections or the Act suggests that they are not intended to apply to alien children who are unlawful non‑citizens. Nothing in the Act provides any ground for reading down the general terms of those sections to exclude children from their operation. Several provisions of the Act refer expressly to children, including children who have been detained. For example, ss 252A and 252B, which are concerned with the "strip search of a detainee", provide for the strip search of detained children. Under s 199, an unlawful non-citizen who is about to be removed may request the removal of a dependent child or children. The irresistible conclusion is that the Act is intended to apply to alien children, including children who are unlawful non-citizens. Sections 189 and 196 confirm what is apparent from the general terms of many provisions of the Act: children who are unlawful non-citizens are among those who must be detained in immigration detention.

2. The applicants' contention that the Act does not authorise the detention of children who are unlawful non-citizens cannot be sustained. The first question must be answered in the affirmative: the challenged provisions apply to alien children who are unlawful non-citizens.

   Judicial power

3. The second question posed by the application is whether, though textually laws with respect to aliens, ss 189 and 196 of the Act are not laws "with respect to" the power conferred by s 51(xix) because they infringe the requirements of Ch III of the Constitution. This question raises for determination the central issue in this case, namely, whether, by enacting ss 189 and 196 of the Act and directing members of the Executive to detain unlawful non-citizens, the Parliament has impermissibly exercised, or has impermissibly authorised the Executive to exercise, the judicial power of the Commonwealth.

4. Section 71 of the Constitution, the first section in Ch III, confers the judicial power of the Commonwealth on this Court, courts created by the Parliament of the Commonwealth and courts invested with federal jurisdiction under s 77 of the Constitution. Section 1, the first section in Ch I of the Constitution, confers the legislative power of the Commonwealth on the Federal Parliament. Section 61, the first section in Ch II of the Constitution, confers the executive power of the Commonwealth on the Queen. It declares that the executive power is exercisable by the Governor-General as the Queen's representative and extends to the execution and maintenance of the Constitution and of the laws of the Commonwealth. This Court and the Privy Council have long held that these sections and this arrangement of Chs I, II and III of the Constitution prescribe the doctrine of the separation of legislative, executive and judicial powers as a constitutional requirement[27].  In Lim, Brennan, Deane and Dawson JJ said[28]:

   "The Constitution is structured upon, and incorporates, the doctrine of the separation of judicial from executive and legislative powers. Chapter III gives effect to that doctrine in so far as the vesting of judicial power is concerned. Its provisions constitute 'an exhaustive statement of the manner in which the judicial power of the Commonwealth is or may be vested ... No part of the judicial power can be conferred in virtue of any other authority or otherwise than in accordance with the provisions of Ch III'. Thus, it is well settled that the grants of legislative power contained in s 51 of the Constitution, which are expressly 'subject to' the provisions of the Constitution as a whole, do not permit the conferral upon any organ of the Executive Government of any part of the judicial power of the Commonwealth." (footnote omitted)

   [27]See R v Kirby; Ex parte Boilermakers' Society of Australia ("the Boilermakers' Case") (1956) 94 CLR 254; Attorney-General (Cth) v The Queen (1957) 95 CLR 529.

   [28](1992) 176 CLR 1 at 26-27, citing Boilermakers' Case (1956) 94 CLR 254 at 270 per Dixon CJ, McTiernan, Fullagar and Kitto JJ.

5. Under the doctrine of the separation of powers, federal judicial power is exercisable only by the judiciary.  Consequently, neither the legislature nor the Executive may exercise the judicial power of the Commonwealth[29].  The doctrine is subject to a number of exceptions, which include the power of a military tribunal to punish for breach of military discipline and the power of the Federal Parliament to punish for contempt[30]. The power of the Parliament to hear and determine charges of contempt of Parliament and to punish contemnors is an exception that is more apparent than real. That power is directly authorised by s 49 of the Constitution. Moreover[31]:

   "[T]hroughout the course of English history there has been a tendency to regard those powers as not strictly judicial but as belonging to the legislature, rather as something essential or, at any rate, proper for its protection."

   The investing of judicial power in military tribunals is, however, a true exception that can be explained only on historical grounds.

   [29]A law that purports to confer judicial power on a person or body other than a Ch III court is invalid.  For example, the imposition of punishment for breaches of the law is an exclusively judicial power.  An attempt to confer such power on the Executive would be invalid as an infringement of Ch III.  See Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 at 355 per Griffith CJ; Boilermakers' Case (1956) 94 CLR 254 at 270 per Dixon CJ, McTiernan, Fullagar and Kitto JJ.

   [30]See Lim (1992) 176 CLR 1 at 28 per Brennan, Deane and Dawson JJ.

   [31]R v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157 at 167.

6. Judicial power is difficult to define:  it resists a definition that is both exhaustive and exclusive[32].  As I pointed out in Lim[33]:

   "The line between judicial power and executive power in particular is very blurred.  Prescriptively separating the three powers has proved impossible.  The classification of the exercise of a power as legislative, executive or judicial frequently depends upon a value judgment as to whether the particular power, having regard to the circumstances which call for its exercise, falls into one category rather than another.  The application of analytical tests and descriptions does not always determine the correct classification.  Historical practice plays an important, sometimes decisive, part in determining whether the exercise of a particular power is legislative, executive or judicial in character." (footnote omitted)

   [32]See my consideration of judicial attempts to define judicial power in Lim (1992) 176 CLR 1 at 66-67.

   [33](1992) 176 CLR 1 at 67.

7. Four Justices of this Court observed in Brandy v Human Rights and Equal Opportunity Commission[34] that, in attempting to define judicial power:

   "It is traditional to start with the definition advanced by Griffith CJ in Huddart, Parker & Co Pty Ltd v Moorehead[35] in which he spoke of the concept of judicial power in terms of the binding and authoritative decision of controversies between subjects or between subjects and the Crown made by a tribunal which is called upon to take action.  However, it is not every binding and authoritative decision made in the determination of a dispute which constitutes the exercise of judicial power.  A legislative or administrative decision may answer that description.  Another important element which distinguishes a judicial decision is that it determines existing rights and duties and does so according to law.  That is to say, it does so by the application of a pre‑existing standard rather than by the formulation of policy or the exercise of an administrative discretion."

   [34](1995) 183 CLR 245 at 267-268 per Deane, Dawson, Gaudron and McHugh JJ.

   [35](1909) 8 CLR 330 at 357.

   Characterisation of the power to detain

8. A proceeding that requires the determination of the guilt or innocence of a person and the imposition of punishment following such a determination is a traditional exercise of judicial power.  Such a proceeding determines a controversy between the Crown and a subject by reference to "rights or obligations arising from the operation of law upon past events or conduct."[36]

   [36]R v Gallagher; Ex parte Aberdare Collieries Pty Ltd (1963) 37 ALJR 40 at 43 per Kitto J.

9. In their joint judgment in Lim, Brennan, Deane and Dawson JJ recognised that the adjudgment and punishment of criminal guilt under a law of the Commonwealth is not only a function which has become essentially and exclusively judicial in character, but also that it is the most important function that is entrusted to Ch III courts.  Their Honours said[37]:

   "The most important of [the functions which have become established as essentially and exclusively judicial in character] is the adjudgment and punishment of criminal guilt under a law of the Commonwealth. That function appertains exclusively to and 'could not be excluded from' the judicial power of the Commonwealth. That being so, Ch III of the Constitution precludes the enactment, in purported pursuance of any of the sub-sections of s 51 of the Constitution, of any law purporting to vest any part of that function in the Commonwealth Executive." (footnotes omitted)

   [37]Lim (1992) 176 CLR 1 at 27.

10. Their Honours also acknowledged[38] that the question whether a law of the Commonwealth purports to confer the function of the adjudgment and punishment of criminal guilt is a question of substance and not mere form.  Accordingly, they said[39] that it would be beyond the legislative power of the Parliament to invest the Executive with an arbitrary power to detain citizens in custody notwithstanding that the power was conferred in terms which sought to divorce such detention in custody from both punishment and criminal guilt.  Their Honours justified this premise on the basis that[40]:

    "[P]utting to one side the exceptional cases ..., the involuntary detention of a citizen in custody by the State is penal or punitive in character and, under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt."

    [38]Lim (1992) 176 CLR 1 at 27.

    [39]Lim (1992) 176 CLR 1 at 27.

    [40]Lim (1992) 176 CLR 1 at 27.

11. From this premise, their Honours drew the conclusion that, apart from some exceptional cases, there exists, for citizens, "at least in times of peace, a constitutional immunity from being imprisoned by Commonwealth authority except pursuant to an order by a court in the exercise of the judicial power of the Commonwealth."[41]

    [41]Lim (1992) 176 CLR 1 at 28-29 (emphasis added).

12. With great respect, the reason given by their Honours does not support their premise.  If no more appears, a law which authorises the Executive to detain a person should be classified as "penal or punitive in character" and a breach of the separation of powers doctrine.  But it is going too far to say that, subject to specified exceptions, detention by the Executive is always penal or punitive and can only be achieved as the result of the exercise of judicial power.  Accordingly, their Honours' conclusion that in times of peace, citizens enjoy a constitutional immunity from being imprisoned by Commonwealth authority except under an order by a court in the exercise of the judicial power of the Commonwealth cannot stand.

13. Whether detention is penal or punitive must depend on all the circumstances of the case.  Logically, the fact that courts punish persons by making orders for detention by the Executive cannot lead to the conclusion – subject to exceptions or otherwise – that detention by the Executive is necessarily penal or punitive.  In Lim, Brennan, Deane and Dawson JJ identified as exceptions to the "constitutional immunity" detention in custody without bail pending the determination of a criminal charge and detention because of infectious disease or mental illness[42].  Detention imposed in these cases has never been and could not be characterised as punitive or penal.  Their Honours also recognised cases of contempt of Parliament and imprisonment by military tribunals as exceptions to the rule that only courts could order detention by the Executive[43].  And their Honours expressly held that detention pending the investigation and determination of an application for a visa is not an exercise of the "judicial power of the Commonwealth"[44].  Although their Honours found it unnecessary to consider the issue, where the nation is at war even a citizen may be detained by the Executive, acting under Parliamentary authority, if, in the opinion of the Executive, the citizen is disloyal or acts in any manner prejudicial to the safety or defence of the Commonwealth[45].  Moreover, from time to time, even courts make orders for the detention of persons by the Executive that cannot possibly be characterised as penal or punitive.  An order committing a person to an institution after acquittal of a criminal charge on the ground of insanity or mental illness is a notable example.  Another example is an order committing a person to be detained without bail pending trial.  At different times, courts have also been given power to order the detention of persons who were adjudged mentally ill[46] or who were debtors[47].

    [42](1992) 176 CLR 1 at 28.

    [43]Lim (1992) 176 CLR 1 at 28.

    [44]Lim (1992) 176 CLR 1 at 32.

    [45]Lloyd v Wallach (1915) 20 CLR 299; Ex parte Walsh [1942] ALR 359; Little v The Commonwealth (1947) 75 CLR 94. See also Al-Kateb v Godwin (2004) 78 ALJR 1099 at 1111-1112 [55]-[61] per McHugh J; 208 ALR 124 at 139-140.

    [46]See, eg, Williamson v Brown (1914) 18 CLR 433.

    [47]See, eg, R v Wallace; Ex parte O'Keefe [1918] VLR 285; Newmarch v Atkinson (1918) 25 CLR 381; Commissioner for Motor Transport v Train (1972) 127 CLR 396; Storey v Lane (1981) 147 CLR 549.

14. In Lim, Gaudron J said that she was[48]:

    "not presently persuaded that legislation authorizing detention in circumstances involving no breach of the criminal law and travelling beyond presently accepted categories is necessarily and inevitably offensive to Ch III." 

    Her Honour expressed herself even more strongly in Kruger v The Commonwealth[49].  She said[50] that "it is not possible to say that, subject to clear exceptions, the power to authorise detention in custody is necessarily and exclusively judicial power."  In Al‑Kateb v Godwin[51], Hayne J, with whose judgment Heydon J agreed on this point, referred to the judgment of Gaudron J in Kruger and was clearly of the same opinion as her Honour.  In my opinion, the statement of her Honour in Kruger was correct and the dictum of Brennan, Deane and Dawson JJ in Lim to the contrary should not be followed.

    [48](1992) 176 CLR 1 at 55.

    [49](1997) 190 CLR 1.

    [50]Kruger (1997) 190 CLR 1 at 110.

    [51](2004) 78 ALJR 1099 at 1146-1149 [257]-[269] per Hayne J, 1155 [303] per Heydon J; 208 ALR 124 at 188-191, 200.

15. That persons are ordinarily detained by the Executive only as the result of an order made in judicial proceedings is by itself an indication that a law that authorises detention without a judicial order is, as a matter of substance, punitive in nature.  However, the object for which the law authorises or requires the detention of a person is an even stronger indication of whether the detention is penal or punitive in nature.  If no more appears than that the law authorises or requires detention, the correct inference to be drawn from its enactment is likely to be that, for some unidentified reason, the legislature wishes to punish or penalise those liable to detention without the safeguards of a judicial hearing.  It would nevertheless be a rare case where nothing more appears to throw light on whether the law is punitive or penal in nature.  The terms of the law, the surrounding circumstances, the mischief at which the law is aimed and sometimes the parliamentary debates preceding its enactment will indicate the purpose or purposes of the law.  As Callinan J made plain in Al-Kateb[52], it is the purpose of the law that authorises detention that is the "yardstick" for determining whether the law is punitive in nature.  Hence, the issue of whether the law is punitive or non-punitive in nature must ultimately be determined by the law's purpose, not an a priori proposition that detention by the Executive other than by judicial order is, subject to recognised or clear exceptions, always punitive or penal in nature.  Indeed, leaving aside the cases of punishment for contempt of Parliament or breach of military law, the so-called exceptions to the "constitutional immunity" rule can be explained only by the fact that the purpose of the detention in those "exceptional" cases is not punitive or penal in nature.

    [52](2004) 78 ALJR 1099 at 1153 [294]; 208 ALR 124 at 198.

16. The most obvious example of a non-punitive law that authorises detention is one enacted solely for a protective purpose.  Thus, detention may be necessary to protect the detainee (as in the case of mental illness), to protect others (as in the case of infectious disease) or to protect the community (as in the case of those suspected of being disloyal during wartime).  A power will not be regarded as purely protective, however, if one of its principal objects or purposes is punitive.  The dividing line between a law whose purpose is protective and one whose purpose is punitive is often difficult to draw.  This is particularly so where a protective law has acknowledged consequences that, standing alone, would make the law punitive in nature.  Protective laws, for example, may also have some deterrent aspect which the legislature intended.  However, the law will not be characterised as punitive in nature unless deterrence is one of the principal objects of the law and the detention can be regarded as punishment to deter others.  Deterrence that is an intended consequence of an otherwise protective law will not make the law punitive in nature unless the deterrent aspect itself is intended to be punitive.

17. Accordingly, it cannot be said that detention by the Executive in circumstances involving no breach of the criminal law is necessarily penal or punitive in nature, and therefore involves an exercise of judicial power.  Nor does it follow that at least in times of peace, citizens enjoy a constitutional immunity from being imprisoned by Commonwealth authority except under an order made by a court in the exercise of the judicial power of the Commonwealth.  Rather, it is necessary to characterise the law that authorises or requires detention and to consider all the circumstances of the case.  In particular, the purpose of a law that authorises or requires the detention of a person by the Executive is determinative.  If the purpose of such a law is purely protective, detention by the Executive under that law will not be regarded as penal or punitive in nature.

    The scope of Commonwealth legislative power with respect to the detention of aliens

18. The foregoing discussion has assumed that, but for Ch III of the Constitution, a federal law that authorises the Executive to detain a person without a judicial order would be a valid law. In many – probably most – cases of federal laws that authorise Executive detention without a judicial order, however, a Ch III question does not arise. That is because most heads of federal legislative power do not authorise the making of such laws. The Federal Parliament has no general power to make laws with respect to imprisonment or detention. Furthermore, with the exception of the powers relating to naturalisation and aliens, race, marriage, divorce, bankruptcy and the influx of criminals, the subject matters with respect to which the Parliament may make laws do not intrinsically refer to human beings. Consequently, in most cases, a federal law that authorises or requires detention without a judicial order can be supported only if the detention is incidental to the subject matter of the grant of federal legislative power. Given the doctrines of the separation of powers and the rule of law and the decisions in Australian Communist Party v The Commonwealth[53] and Nationwide News Pty Ltd v Wills[54], justifying such laws as being incidental to a s 51 grant of power will prove difficult. The defence and quarantine powers are probably exceptions. As a result, most heads of federal legislative power do not seem expansive enough to justify a law that authorises or requires detention divorced from a breach of law. In Kruger, Gaudron J said, correctly in my opinion, that the immunity from involuntary detention does not derive from Ch III, but rather that[55]:

    "subject to certain exceptions, a law authorising detention in custody, divorced from any breach of the law, is not a law on a topic with respect to which s 51 confers legislative power. The defence power may be an exception to that proposition. And the proposition does not extend to laws with respect to quarantine or laws with respect to aliens and the influx of criminals. It may be that an exception should also be acknowledged with respect to the race power." (footnotes omitted)

    [53](1951) 83 CLR 1.

    [54](1992) 177 CLR 1.

    [55](1997) 190 CLR 1 at 111.

1. The applicants acknowledge that the aliens power in s 51(xix) extends to the making of laws that authorise the Executive to detain an alien for the purposes of excluding, admitting or removing that alien. However, the applicants argue that this power is subject to certain limits implied by the separation of judicial power from legislative and executive power. They contend that, if a law authorises detention by the Executive beyond that which is reasonably capable of being regarded as necessary to effect the purposes of exclusion, admission or removal of an alien[56] or to enable an application for an entry permit to be made and considered[57], the law is punitive and therefore unconstitutional.

   [56]Lim (1992) 176 CLR 1 at 65-66 per McHugh J.

   [57]Lim (1992) 176 CLR 1 at 33 per Brennan, Deane and Dawson JJ.

2. In Lim, five Justices of this Court expressed the view that the power to detain aliens, although authorised by s 51(xix) of the Constitution, is not at large. They held that, despite the scope of the aliens power, the detention of aliens must comply with the limitations imposed by Ch III. Brennan, Deane and Dawson JJ said[58]:

   "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." (footnote omitted)

   Mason CJ said that[59]:

   "[S]uch limited authority to detain an alien in custody can be conferred upon the Executive without contravening the investment of the judicial power of the Commonwealth in Ch III courts."

   I said[60]:

   "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.  Thus, imprisonment while awaiting trial on a criminal charge is not punitive in nature because the purpose of the imprisonment is to ensure that the accused person will come before the courts to be dealt with according to law.  Similarly, imprisonment of a person who is the subject of a deportation order is not ordinarily punitive in nature because the purpose of the imprisonment is to ensure that the deportee is excluded from the community pending his or her removal from the country[61].  Likewise, the lawful imprisonment of an alien while that person's application for entry is being determined is not punitive in character because the purpose of the imprisonment is to prevent the alien from entering into the community until the determination is made.  But if imprisonment goes beyond what is reasonably necessary to achieve the non‑punitive object, it will be regarded as punitive in character."

   [58]Lim (1992) 176 CLR 1 at 32.

   [59]Lim (1992) 176 CLR 1 at 10.

   [60]Lim (1992) 176 CLR 1 at 71.

   [61]Ex parte Walsh and Johnson; In re Yates (1925) 37 CLR 36; Shaughnessy v United States ex rel Mezei 345 US 206 (1953); Jean v Nelson 727 F 2d 957 (1984).

   The test for assessing the validity of legislation authorising Executive detention of aliens

3. What, then, is the appropriate test or principle for determining whether a law of the Parliament infringes Ch III of the Constitution when it authorises the Executive to detain an alien – or for that matter a citizen – without an order made in the exercise of judicial power? The applicants contend that the test for assessing the validity of a law that authorises the Executive to detain an alien requires a two-stage process:

   1.identify a legitimate non-punitive objective to which the law is directed; and

   2.if such an objective can be identified, determine whether the law that authorises detention is "reasonably necessary" or "reasonably capable of being seen as necessary" or "appropriate and adapted" to achieve that purpose or objective.

   They argue that this test involves considerations of proportionality.

4. Dicta in cases such as Lim and Kruger suggested that the test for validity was whether the impugned provisions are "reasonably necessary" for or "reasonably capable of being seen as necessary" for the achievement of a non-punitive purpose.  In Lim, Brennan, Deane and Dawson JJ held that a law that authorises the detention of an alien is valid[62]:

   "if the detention which [the law] require[s] and authorize[s] 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." (emphasis added)

   [62](1992) 176 CLR 1 at 33. Although Mason CJ agreed with Brennan, Deane and Dawson JJ with respect to the scope of legislative power, his Honour did not identify an applicable test.

5. I applied a "reasonably necessary" test, finding that "if imprisonment goes beyond what is reasonably necessary to achieve the non-punitive object, it will be regarded as punitive in character."[63] As I have indicated, Gaudron J thought that the validity of a detention law did not depend on Ch III but on whether it could be characterised as a law with respect to a s 51 power. In that context, her Honour applied a form of an "appropriate and adapted" test, saying[64]:

   "[A] law imposing special obligations or special disabilities on aliens, whether generally or otherwise, which are unconnected with their entitlement to remain in Australia and which are not appropriate and adapted to regulating entry or facilitating departure as and when required, is not, in my view, a valid law under s 51(xix) of the Constitution." (emphasis added)

   [63]Lim (1992) 176 CLR 1 at 71 (emphasis added).

   [64]Lim (1992) 176 CLR 1 at 57.

6. In Kruger, when considering the Executive's power of detention generally, Gummow J used the "reasonably capable of being seen as necessary" test in the following passage[65]:

   "The question whether a power to detain persons or to take them into custody is to be characterised as punitive in nature, so as to attract the operation of Ch III, depends upon whether those activities are reasonably capable of being seen as necessary for a legitimate non-punitive objective[66]." (emphasis added)

   His Honour held that the executive power to detain was not punitive in nature if it was "reasonably capable of being seen as necessary for a legitimate non-punitive objective", adding that the categories of non-punitive, involuntary detention were not closed[67].

   [65](1997) 190 CLR 1 at 162.

   [66]Lim (1992) 176 CLR 1 at 33 per Brennan, Deane and Dawson JJ, 46 per Toohey J, 58 per Gaudron J, 65, 71 per McHugh J.

   [67]Kruger (1997) 190 CLR 1 at 162.

7. None of the other Justices who considered the point in Kruger used the "reasonably capable of being seen as necessary" test[68].

   [68]Dawson J considered whether the actions in that case "may legitimately be seen as non-punitive":  Kruger (1997) 190 CLR 1 at 62, McHugh J agreeing at 141-142. Toohey J did not express a test. Gaudron J repeated the view she expressed in Lim: at 110-111.

8. Until the decison of the Court in Al-Kateb, the weight of judicial dicta, therefore, favoured the "reasonably capable of being seen as necessary" test.  In Al-Kateb, the Court had to determine whether ss 189 and 196 of the Act infringed Ch III of the Constitution by requiring the continued detention of an alien who could not be deported in the reasonably foreseeable future. A majority of Justices held that, although the sections required the detention of Mr Al-Kateb until he could be deported, they were valid because they had the non-punitive purposes of facilitating his deportation and segregating him from the Australian community[69].  None of the Justices in the majority in that case applied the "reasonably capable of being seen as necessary" test as the determinative test for ascertaining whether the purpose of the detention was punitive.  I said that "[a]s 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."[70] Because the purpose of the provisions authorising detention was to prevent Mr Al-Kateb from entering the Australian community until he could be deported, they did not infringe Ch III of the Constitution.

   [69]Al-Kateb (2004) 78 ALJR 1099 at 1110 [49] per McHugh J, 1148 [268] per Hayne J, 1152 [289] per Callinan J, 1155 [303] per Heydon J; 208 ALR 124 at 137, 190-191, 196, 200.

   [70]Al-Kateb (2004) 78 ALJR 1099 at 1109 [45]; 208 ALR 124 at 136 (emphasis added).

9. Hayne J also agreed that ss 189 and 196 did not infringe Ch III. Central to his Honour's reasoning was that "nothing about the decision making that must precede detention ... bespeaks an exercise of the judicial power."[71]  His Honour said that[72]:

   "[T]o 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."

   Furthermore, his Honour said that he would not identify the relevant power in quite so confined a manner as is implicit in the joint reasons in Lim[73].  Hayne J pointed out that the "aliens" and "immigration" powers extend to preventing aliens from entering or remaining in Australia[74].  On that hypothesis, 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."[75]  His Honour went on to say[76]:

   "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."

   [71]Al-Kateb (2004) 78 ALJR 1099 at 1146 [254]; 208 ALR 124 at 188.

   [72]Al-Kateb (2004) 78 ALJR 1099 at 1146 [253]; 208 ALR 124 at 187-188.

   [73]Al-Kateb (2004) 78 ALJR 1099 at 1146 [255]; 208 ALR 124 at 188.

   [74]Al-Kateb (2004) 78 ALJR 1099 at 1146 [255]; 208 ALR 124 at 188.

   [75]Al-Kateb (2004) 78 ALJR 1099 at 1146 [255] per Hayne J; 208 ALR 124 at 188 (original emphasis).

   [76]Al-Kateb (2004) 78 ALJR 1099 at 1146 [256]; 208 ALR 124 at 188.

10. His Honour found that ss 189 and 196 did not impose punishment because[77]:

    "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."

    [77]Al-Kateb (2004) 78 ALJR 1099 at 1148 [267]; 208 ALR 124 at 190.

11. Heydon J agreed with this part of his Honour's judgment[78].

    [78]Al-Kateb (2004) 78 ALJR 1099 at 1155 [303]; 208 ALR 124 at 200.

12. Callinan J referred to the joint judgment in Lim[79].  But nothing in his Honour's judgment suggests that he took the view that the validity of a law that authorises detention depends on whether the law is "reasonably capable of being seen as necessary" to achieve a legitimate non-punitive end.  His Honour said[80]:

    "In their joint judgment in Lim, Brennan, Deane and Dawson JJ acknowledged the breadth of the aliens power as well as the lawfulness of detention for purposes other than punitive ones.  In particular it was accepted there that the Parliament might make laws reasonably capable of being seen as necessary for the purposes of deportation.  The yardstick, and with respect rightly so, was 'purpose', the existence, that is the continuing existence of the relevant purpose of deportation." (footnotes omitted)

    [79]Al-Kateb (2004) 78 ALJR 1099 at 1152-1153 [286]-[287], [290], [294]; 208 ALR 124 at 195, 196, 198.

    [80]Al-Kateb (2004) 78 ALJR 1099 at 1153 [294]; 208 ALR 124 at 174.

13. This statement and other passages in his Honour's judgment[81] indicate that, like Hayne J and Heydon J and myself, he saw the validity of the detention authorised by ss 189 and 196 as depending simply on whether its purpose was to impose punishment on the detainee.

    [81]See, eg, Al-Kateb (2004) 78 ALJR 1099 at 1152-1154 [290]‑[291], [295]; 208 ALR 124 at 196-198.

14. The reasoning in Al‑Kateb is therefore inconsistent with the applicants' argument that the issue of punitive purpose must be determined by reference to whether the law itself is "reasonably necessary" for or "reasonably capable of being seen as necessary" for the achievement of a non‑punitive purpose.  A law that authorises detention will not offend the separation of powers doctrine as long as its purpose is non-punitive.  As I indicated in Lim[82]:

    "[T]he lawful imprisonment of an alien while that person's application for entry is being determined is not punitive in character because the purpose of the imprisonment is to prevent the alien from entering into the community until the determination is made.  But if imprisonment goes beyond what is reasonably necessary to achieve the non-punitive object, it will be regarded as punitive in character."

    [82](1992) 176 CLR 1 at 71.

15. Thus, if a law that authorises the imprisonment of an asylum seeker also has the purpose of keeping the detainee in solitary confinement without justification or otherwise has a purpose of subjecting the detainee to cruel and unusual punishment, it would go beyond what was necessary to achieve its non-punitive object.  It would have a punitive purpose.  It would go beyond what is necessary to prevent the detainee from entering the Australian community while his or her application for a visa is being determined.  As questions of proportionality do not arise in the Ch III context, tests such as whether the impugned law is "reasonably necessary" for or "reasonably capable of being seen as necessary" for the achievement of a non-punitive purpose have no application when assessing whether the law infringes Ch III.

    Proportionality

16. Once it is accepted that the test of punitive purpose is not whether the law is "reasonably necessary" for or "reasonably capable of being seen as necessary" for the achievement of a non-punitive purpose, questions of proportionality do not arise.  Proportionality may often be an appropriate concept where there is a constitutional limitation on legislative power, for example, the implied constitutional freedom of political communication[83].  In Cunliffe v The Commonwealth and Leask v The Commonwealth, Brennan CJ held that proportionality is relevant where legislative power is restricted by a constitutional limitation[84].  His Honour described the concept of proportionality as[85]:

    "a condition of, if not a synonym for, the criterion of 'appropriate and adapted' which is employed to ascertain whether the means adopted by a law achieve a validating purpose or object, that is to say, a purpose or object that is reasonably connected to a head of power."

    In Leask, Dawson and Toohey JJ also accepted that proportionality is relevant where a legislative power is subject to a constitutional limitation[86].  Thus, when assessing the validity of a law where the relevant head of legislative power is subject to a constitutional limitation, the Court may inquire into the proportionality of the means adopted by the law to achieve the object of the law[87]. 

    [83]Cunliffe v The Commonwealth (1994) 182 CLR 272 at 296-298 per Mason CJ, 323‑325 per Brennan J, 350-357 per Dawson J; Leask v The Commonwealth (1996) 187 CLR 579 at 593-595 per Brennan CJ, 606 per Dawson J, 614 per Toohey J. Dawson and Gummow JJ in Leask admitted to having some difficulties with the abovementioned passage of Mason CJ's judgment in Cunliffe: (1996) 187 CLR 579 at 603-605 per Dawson J, 624 per Gummow J.

    [84]Cunliffe (1994) 182 CLR 272 at 323-325 per Brennan J; Leask (1996) 187 CLR 579 at 593-595 per Brennan CJ.

    [85]Cunliffe (1994) 182 CLR 272 at 321.

    [86](1996) 187 CLR 579 at 606 per Dawson J, 614 per Toohey J.

    [87]Cunliffe (1994) 182 CLR 272 at 324-325 per Brennan J.

17. In such cases, the question for resolution is whether a law that directly or in effect conflicts with the constitutional limitation is nevertheless valid because its operation is proportionate to some legitimate end compatible with the limitation.  The separation of judicial power and the prohibition on the legislature conferring judicial power on any body other than a Ch III court are constitutional limitations on legislative power.  But questions of proportionality cannot arise in the context of Ch III.  A law that confers judicial power on a person or body that is not authorised by or otherwise infringes Ch III cannot be saved by asserting that its operation is proportionate to an object that is compatible with Ch III.  The judicial power of the Commonwealth can be exercised only by courts that conform with the requirements of Ch III.  It cannot be invested in non-judicial tribunals even if such investiture would be a reasonable and appropriate or proportionate means of achieving an end that is compatible with Ch III.

    Purpose of the ss 189 and 196 detention regime

18. The respondents contend that the detention regime authorised by ss 189 and 196 serves several legitimate non-punitive purposes:

    1.The regime has the purpose of excluding unlawful non-citizens from the community (for the purposes of investigating and determining visa applications).  Detention in these circumstances is "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"[88].

    2.The purpose of the imprisonment of an alien while that person's application for entry is being determined "is to prevent the alien from entering into the community until the determination is made."[89]

    3.As a sovereign nation, Australia has the capacity to decide which aliens shall become members of the community[90].  As a corollary, the Commonwealth is entitled (under the aliens power) to determine that people who have not been accepted for entry into Australia should not be allowed to live in the Australian community (and become absorbed into the community) pending the grant or refusal of permission to enter.

    4.The regime has the purpose of ensuring that unlawful non-citizens are available for prompt location and removal from Australia if their applications are unsuccessful.  The need promptly to be able to locate and remove an unlawful non-citizen arises because in some instances there is only a short window of opportunity for the removal of that person.

    [88]Lim (1992) 176 CLR 1 at 32 per Brennan, Deane and Dawson JJ.

    [89]Lim (1992) 176 CLR 1 at 71 per McHugh J (emphasis added).

    [90]See, eg, Robtelmes v Brenan (1906) 4 CLR 395 at 400, 404 per Griffith CJ, 415 per Barton J; Pochi v Macphee (1982) 151 CLR 101 at 106 per Gibbs CJ; Lim (1992) 176 CLR 1 at 29 per Brennan, Deane and Dawson JJ; Re Minister for Immigration and Multicultural Affairs; Ex parte Te (2002) 212 CLR 162 at 170 [21] per Gleeson CJ, 192-193 [110]-[111] per Gummow J, cf 217-218 [200] per Kirby J, 229 [229] per Callinan J.

1. The applicants' contentions, which emphasised their status according to Australian domestic law as persons not of full age and capacity, were ultimately directed to characterising the impugned sections as "punitive in nature".  (Whether some or all of the applicants would have that status according to the law of their domicile was not explored in evidence or in argument.)  Both the undoubted "vulnerability" of children and the attribution, by the law or international instruments, of a special status or position to children were said to lead to, or reinforce, the conclusion that the sections are punitive.  Thus, it was said that "by reason of their special position and vulnerability, any law that purports administratively to deprive children of their liberty for anything but the most strictly limited time will be punitive in character" (emphasis added).

2. In part, the argument proceeded from a premise that children of the applicants' ages could not choose, for themselves, whether to ask to be returned to the country of their nationality. This meant, so the argument proceeded, that they could not choose to bring their detention to an end by asking to be removed under s 198(1) of the Act. Even accepting that the applicants are too young to make a choice about returning to their country of nationality, the corollary would be that the decision to attempt to stay or to return would be a decision for their parents or guardians. The parents or guardians could, therefore, bring the detention to an end. If the children cannot do so, that is not significant in deciding whether the impugned provisions are invalid. Rather, attention must be directed to the applicants' central contention that the impugned provisions are punitive.

3. My reasons in Al‑Kateb sought to demonstrate[275] that the line between detention which, because it is "penal or punitive in character"[276], can be imposed only in the exercise of the judicial power, and detention which is not of that character, is difficult to draw[277].  For present purposes, it is important to recognise that Chu Kheng Lim v Minister for Immigration[278] decided that mandatory detention of unlawful non‑citizens can validly be provided without contravention of Ch III.  It follows that unlawful non‑citizens have no unqualified immunity from detention and attention must then be focused upon the purpose of the detention.  Once it is accepted, as I do, that the aliens and immigration powers support a law directed to excluding a non‑citizen from the Australian community (by segregating that person from the community) the effluxion of time, whether judged alone or in the light of the vulnerability of those who are detained, will not itself demonstrate that the purpose of detention has passed from exclusion by segregation to punishment.

   [275](2004) 78 ALJR 1099 at 1146‑1147 [252]‑[262]; 208 ALR 124 at 187‑189.

   [276]Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 27 per Brennan, Deane and Dawson JJ.

   [277]cf Kruger v The Commonwealth (1997) 190 CLR 1 at 109‑110 per Gaudron J.

   [278](1992) 176 CLR 1.

4. For these reasons, and the reasons I gave in Al‑Kateb, the challenge to the validity of ss 189 and 196 of the Act fails. The application should be dismissed.

5. CALLINAN J. The applicants are children who, at the time of hearing, were living at the Baxter Immigration Detention Facility ("Baxter") with both of their parents. They were subsequently granted temporary protection visas on 5 July 2004 and released from detention. The issues which they seek to raise in these proceedings which are brought by their father as next friend are whether ss 189 and 196 of the Migration Act 1958 (Cth) ("the Act"), under which they are detained, are valid in so far as those provisions relate to them as children.

   Facts and previous proceedings

6. The applicants, aged 15, 13, 11 and 7 years respectively, are Afghan nationals.  Their parents and they entered Australia unlawfully[279] on 15 January 2001. Upon their arrival they were detained pursuant to ss 189 and 196 of the Act. The family was first detained at the Woomera Immigration Reception and Processing Centre. On 2 January 2003 they were transferred to Baxter.

   [279]The applicants' parents did not hold visas on entry to Australia (s 42 of the Act) and have not become entitled to remain in Australia as refugees holding protection visas (s 36 of the Act).

7. The first respondent is the manager of Baxter.  The second respondent is the Minister for Immigration and Multicultural and Indigenous Affairs. 

8. The relief sought is a writ of habeas corpus directed to the first respondent requiring the applicants' release from immigration detention, and a writ of prohibition, or alternatively an injunction, prohibiting or restraining the second respondent from detaining or continuing to detain the applicants.

9. The applicants' family has, since their arrival in Australia, been involved in several proceedings designed to secure for its members Australian residence.  On 21 February 2001 the applicants' father applied for a protection visa on behalf of the family.  The application was refused on 20 April 2001 by a delegate of the second respondent.

10. Review of the delegate's decision was sought, and on 23 July 2001 the decision was affirmed by the Refugee Review Tribunal.  The applicants' father applied to the Federal Court for judicial review of the Tribunal's decision on 14 August 2001.  On 8 February 2002, the Federal Court made orders by consent setting aside the Tribunal's decision and remitting the matter for reconsideration.  On 28 June 2002, the Tribunal again affirmed the delegate's decision to refuse to grant protection visas to the applicants' family.

11. The applicants' father applied to the Federal Magistrates Court for judicial review of the Tribunal's June 2002 decision.  The application was dismissed by Driver FM on 20 September 2002.  An appeal against the magistrate's decision was commenced in the Federal Court.  On 14 February 2003 Mansfield J allowed the appeal and remitted the matter for re-hearing by Driver FM.

12. On 28 May 2003, Driver FM again dismissed the application for review.  The applicants' father has appealed against that decision to the Federal Court.  The appeal is pending.

13. On 16 May 2002, a Memorandum of Understanding was entered into between Australia and the Afghan Interim Government.  The Understanding provides a framework for the return of those Afghan citizens to Afghanistan who seek voluntary repatriation.

14. On 3 June 2003 the applicants' family was invited by the second respondent to return to Afghanistan pursuant to the Understanding.  The invitation included an offer of financial assistance of as much as $10,000, counselling, assistance in obtaining passports, arrangement of air travel to Kabul, reception upon arrival, accommodation in Kabul for up to a week if required, assistance with transport from Kabul to other destinations within Afghanistan, the provision of vocational training in Kabul, and accommodation there for the duration of training if required.

15. Afghans in immigration detention may voluntarily return to Afghanistan at any time.  The second respondent will pay all costs associated with their return, including transportation, travel documents, and the cost of transport of personal effects.

16. By 29 October 2003, 60 persons had been repatriated to Afghanistan from Australia under the Understanding.  Removal from Australia to Afghanistan was effected within 56 days of a person's signification of willingness to return.  It is the second respondent's expectation that in the event of the family's agreeing to return to Afghanistan, removal could be effected within about 30 days of the provision of travel documents from the Embassy of Afghanistan.  The time for the provision of these documents would depend on the family's cooperation in providing information to assist the relevant authorities in Afghanistan to establish their identity.

17. There is currently no agreement between the governments of Australia and Afghanistan for the involuntary return of Afghan nationals to Afghanistan.

18. If the applicants' father's appeal fails, and if he continues to resist the second respondent's offer of repatriation to Afghanistan, and no agreement be made with Afghanistan for the involuntary return of Afghans whose applications for the status of refugees have failed, the applicants will continue to be detained until such time as other arrangements can be made for their removal elsewhere from Australia.  There is no suggestion here that the second respondent would in these circumstances detain the family otherwise than for their deportation when that can be effected.

19. Because the applicants' submissions claim that the detention is punitive, not only because of its uncertainty as to duration but also by its very nature, including its particular nature here, something needs to be said with respect to the actual circumstances of the detention, the evidence as to which is uncontradicted and which I will quote:

    "The ... children attended school whilst the family were located at the Woomera [detention centre], initially on-site and from November 2001, at the vacant premises of St Michael's school in the township of Woomera.

    Following the family's relocation to Baxter, the ... children commenced school at the Baxter Education Centre within Baxter on 28 January 2003.

    At the time, the ... children attended the school on-site at Baxter, the school employed an equivalent of six full time teachers.  The school also employed one educational coordinator and two recreational/activities officers fulltime, as well as a teacher of dance, drama and music.

    Baxter's education centre makes provision for a kindergarten, as well as primary and secondary education to children resident in the facility.  Education ... is delivered by qualified teaching staff contracted through East Gippsland College of TAFE and is well resourced with books, stationery and computers.  Children are taught in English appropriate to their individual levels and follow the South Australian curriculum. 

    Children aged from six to seven years attend Junior School from 9am to 3pm.  Children aged between 8 and 12 attend primary school from 9.00am to 3.15pm, and High School is available for children aged between 12 and 18 from 9am to 3.15pm. 

    Special education programmes are also available at Baxter, including Information Technology Certificates 1, 2 and 3. 

    In addition to the school curriculum, during the normal school term there is an activity program operating seven days per week including ball sports, pottery and games.

    The [second respondent's] policy is that all children should be given the opportunity to participate in an external school environment subject to satisfaction of three requirements regarding health, education level (so that their educational levels in English are taken into account) and behaviour.  To this end the [second respondent] is working with both the state education authorities and on site staff at Baxter to achieve this outcome.  It is also the [second respondent's] policy that the children who attend these schools are to participate fully in the extra-curricular activities offered by the school such as after-school sport and school camps.

    On 31 March 2003, [two of the applicants] commenced at Willsden Primary School in Baxter township, with [another of the children] commencing at that school on 16 May 2003.

    On 16 September 2003, [one of the children] commenced at the Seaview Campus of Port Augusta Secondary School."

    Relevant legislative provisions

20. It is convenient at this point to set out the relevant provisions of the Act. Section 4 should be noted first:

    "Object of Act

    (1)The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.

    (2)To advance its object, this Act provides for visas permitting non-citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non-citizens to so enter or remain.

    (3)To advance its object, this Act requires persons, whether citizens or non-citizens, entering Australia to identify themselves so that the Commonwealth government can know who are the non-citizens so entering.

    (4)To advance its object, this Act provides for the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by this Act."

21. Section 5 defines what it means to "detain" a person:

    "detain means:

    (a)      take into immigration detention; or

    (b)      keep, or cause to be kept, in immigration detention;

    ..."

22. The same section defines "immigration detention" as follows:

    "immigration detention means:

    ...

    (b)      being held by, or on behalf of, an officer:

    (i)in a detention centre established under this Act; or

    ...

    (v)in another place approved by the Minister in writing;

    ..."

23. Section 176 refers to detention, but not to detention under Div 7 of the Act and therefore need not be set out. Section 182, which refers to periods of detention, has no application to these applicants.

24. Section 189 in Div 7 of the Act is expressed in mandatory language:

    "Detention of unlawful non-citizens

    (1)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.

    (2)If an officer reasonably suspects that a person in Australia but outside the migration zone:

    (a)is seeking to enter the migration zone (other than an excised offshore place); and

    (b)would, if in the migration zone, be an unlawful non-citizen;

    the officer must detain the person.

    (3)If an officer knows or reasonably suspects that a person in an excised offshore place is an unlawful non-citizen, the officer may detain the person.

    (4)If an officer reasonably suspects that a person in Australia but outside the migration zone:

    (a)is seeking to enter an excised offshore place; and

    (b)would, if in the migration zone, be an unlawful non-citizen;

    the officer may detain the person.

    (5)In subsections (3) and (4) and any other provisions of this Act that relate to those subsections, officer means an officer within the meaning of section 5, and includes a member of the Australian Defence Force."

25. Section 196 is as follows:

    "Duration of detention

    (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

    (c)      granted a visa.

    (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.

    (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)."

26. Section 198 is comprehensively expressed and provides for the mandatory removal of unlawful non-citizens, a statutory appellation applicable to the applicants, "as soon as reasonably practicable". It need not be set out here.

    The applicants' argument

27. The applicants put their argument in different ways. First, it was said that the Commonwealth Parliament has no power to enact a law that provides for the prolonged administrative detention of alien children: that in particular, indefiniteness as to its duration is of itself plainly punitive. In the result, ss 189 and 196 of the Act or any other sections of it purporting to authorise the detention of the applicants are invalid.

28. A number of arguments are urged in support of the proposition that the Commonwealth lacks legislative power to detain alien children indefinitely:  that detention of children in any circumstances is not reasonably capable of being seen as necessary for the purposes of processing, deportation or removal of unlawful non-citizens; that such detention is not an incident of the executive power to exclude, admit and deport, or remove them; and, that, because the detention is punitive in nature, it is an impermissible exercise by the executive of the judicial power of the Commonwealth.  The detention was said to be punitive not only because it inhibited the applicants' freedom, but also because it was not reasonably necessary to achieve, or was not reasonably adapted to the removal of the applicants especially as they were only children.

29. The applicants' sought to invoke a parens patriae jurisdiction exercisable by the Court as a Commonwealth Court.  The special vulnerabilities of children were repeatedly pressed as reasons why the prolonged detention of children should be seen as  punitive.  The fact that a child may not have the capacity to bring about the end of his or her detention, by requesting removal from Australia, also gives a child's detention a punitive complexion.

30. The applicants' submission, although dwelling on the special vulnerabilities of children, failed unfortunately to deal adequately with the hard and inescapable reality that their vulnerability could well be greater if they were to be separated from their parents, a result which the applicants' application invites.  Nor did the applicants' submissions grapple with another practical reality, that children's lives are constrained by their parents' wishes and control over them:  indeed it was this very circumstance that brought the applicants to this country as aliens who have been unable to establish an entitlement to the status of refugees to whom obligations of protection are owed; and further, that now the applicants' father could bring their detention to an end by accepting the second respondent's offer of repatriation[280].

    [280]In Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 33-34 Brennan, Deane and Dawson JJ thought it relevant that a person could under the legislation there terminate detention by seeking repatriation.

    The respondents' arguments

31. The respondents and the Attorney-General of the Commonwealth as intervener, argued that the proper approach is to ask whether the impugned provisions provide for detention as punishment in fact, or for some legitimate non-punitive purpose.  It was accepted that if the former were the case, the relevant provisions would be seen as purporting to confer a judicial power on the executive arm of government, and are likely to be invalid.  If the latter be the case however, the provisions do not purport to confer judicial power, and will therefore be valid provided they are supported by a Constitutional head of power.  A test of that kind is consistent with the reasoning and decisions of this Court in Chu Kheng Lim v Minister for Immigration[281] and Kruger v The Commonwealth[282].

    [281](1992) 176 CLR 1.

    [282](1997) 190 CLR 1.

1. The respondents submitted that the relevant provisions of the Act clearly serve the legitimate non-punitive purpose of facilitating the orderly determination of visa applications, and the removal of persons who are denied visas from Australia.

2. The respondents argued that there is no relevant distinction between children who are unlawful non-citizens and adults who are unlawful non-citizens. The test remains, of the purpose for which the detention is effected. A purpose will be a valid purpose if the relevant provisions are reasonably capable of being seen as necessary for a non-punitive constitutional purpose, here, of regulating the entry and presence of aliens, and immigration under s 51(xix) and (xxvii) of the Constitution. The fact that the applicants are children has nothing to do with these questions. If relevant at all, it could only go to the wisdom and desirability of the provisions which are not questions for this Court.

3. The respondents also contended that the argument that a child may not be able to bring about an end to his or her detention does not assist the applicants.  In any event, older children may well have the capacity to understand the nature and consequences of their actions and be able to request removal.  The truth is that many, indeed most children have little say over events concerning them as they are within the control of their parents. 

4. As to the suggestion that the parens patriae jurisdiction of the Court may apply to the applicants, it was submitted by the respondents that the jurisdiction has always been subject to legislative interventions and argument: if ss 189 and 196 of the Act are provisions which the community think unpalatable, then their reversal or re-adjustment is for the Parliament and not the courts. The Act here provides a clear indication of Parliament's intention with regard to unlawful non‑citizens, including children, and the exercise of whatever parens patriae jurisdiction exists or remains in the Court should not interfere with the implementation of that intention.

   The validity of ss 189 and 196 of the Act

5. There is no doubt that the detention to which these applicants are subject, despite the measures undertaken by the second respondent with respect to their education and otherwise, involves some significant restraints on their freedom.  Its character for constitutional purposes however, is not to be determined by reference simply to that.  The relevant question is whether the restraint as mandated or authorized by the governing legislation is reasonably capable of being seen as necessary for a valid non-punitive purpose, here of removing aliens who have no right to reside in Australia, from the country.  So far as adults are concerned, that question has recently been affirmatively answered by this Court in Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs[283], and any distinction between adults and children in these circumstances is not easy to discern.  But first some general principles should be restated.

   [283](2004) 78 ALJR 1056; 208 ALR 271.

6. Detention for purposes other than punitive ones has traditionally been constitutionally acceptable.  Chu Kheng Lim v Minister for Immigration[284], which is relied upon by the applicants, acknowledges that, as does, more recently, Al-Kateb v Godwin[285].  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.

   [284](1992) 176 CLR 1.

   [285](2004) 78 ALJR 1099; 208 ALR 124.

7. Detention of aliens, certainly for the purpose of determining rights of entry into, or arranging deportation from, Australia, equally falls within an exception traditionally and rightly recognised as being detention otherwise than of a punitive kind[286].  As I pointed out in Al-Kateb[287], it would only be if the respondents formally and unequivocally abandoned that purpose that the detention could be regarded as being no longer for that purpose.  And as to that, here it should be kept in mind that the status of these applicants as aliens or refugees remains to be finally determined because that depends on the outcome of an appeal instituted by their father.  It may even be therefore, that the correct view is that the time for the effecting of the purpose has not yet arrived, let alone reached anything like a point of possible abandonment, actual or inferable.

   [286]cf Kruger v The Commonwealth (1997) 190 CLR 1 at 110-111 per Gaudron J.

   [287](2004) 78 ALJR 1099 at 1153 [291]; 208 ALR 124 at 196-197.

8. Does it make a relevant legal difference that the applicants are children?  The answer, as I have foreshadowed, is "no".  The purpose of the detention remains the deciding factor.  Arguments to the contrary dissolve ultimately into questions about the wisdom of the policy behind the detention of children, or perhaps the nature of it.  These are difficult questions involving matters of social, humanitarian and migration policy and are ones to which the courts cannot provide the answers.

9. As I noted in Al-Kateb[288], for reasons which need not be fully restated, it may be that detention for some other purpose under the aliens or indeed the immigration power would be constitutionally permissible.  It may be the case that detention for the purpose, not only of preventing aliens from entering the general community, working, or otherwise enjoying the benefits that Australian citizens enjoy, but also for the purpose in the case of children, of detaining them so as not to fragment an alien family before removal, is constitutionally acceptable.  Alien children have legal rights just as do alien adults[289]. But those rights, so far as removal from this country and detention for that purpose is concerned, are no different from the rights of adults which are governed by those sections of the Act to which I have referred, including ss 189 and 196.

   [288](2004) 78 ALJR 1099 at 1153 [291]; 208 ALR 124 at 196-197.

   [289]See Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs (2004) 78 ALJR 1056 at 1097 [219]; 208 ALR 271 at 326.

10. The applicants' contention that the potential term of their detention and the fact that they may lack the capacity to bring it to an end takes their detention outside what may be regarded as a non-punitive purpose must also be rejected.

11. The issue of a child's capacity to act, even if it were relevant,  would only be determinable on a case by case basis.  The level of capacity of the child can however have no relevance to the question whether detention can be characterized as punitive.  Recognition of a parent's practical right to make decisions on behalf of a child or otherwise has nothing to say about the purpose of detaining unlawful non-citizen children.

12. Some further observations about the applicants' argument as to the invocation of the court's parens patriae jurisdiction should be made.  It is open to question whether the Commonwealth or its courts, in particular this one, have a parens patriae jurisdiction, except in the case of children of a marriage[290], or perhaps as an incident of, or because of a relationship with another head of Commonwealth power such as, for example, external affairs. For present purposes let me however assume such a jurisdiction. The applicants did not submit that the Parliament lacks all power to enact provisions for the administrative detention of non‑citizen children, but rather that by reason of their special position and vulnerability, any law that purports administratively to deprive children of their liberty for anything but the most strictly limited time will be punitive in character, and will offend exclusivity of the exercise by the courts of judicial power derived from Ch III of the Constitution. Accordingly, it was put, any legislative scheme for the detention of children must give due recognition to their special status and vulnerability. If the applicants' submission were correct, it would mean that the court would have a supervisory power over, for example, the details of the conditions and duration of detention of minors for quarantine purposes pursuant to s 51(ix) of the Constitution enabling it to order their release because, in its opinion, the conditions do not in some way pay proper deference to the special status and vulnerability of children. I cannot accept that there is any Constitutional justification for the contention that a parens patriae jurisdiction may limit the legislative power of the Commonwealth.  The content of the jurisdiction has conventionally always been seen as capable of legislative control[291]. 

    [290]See Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 78 ALJR 737 at 776 [215]; 206 ALR 130 at 184.

    [291]Minister for the Interior v Neyens (1964) 113 CLR 411; cf Carseldine v Director of Department of Children's Services (1974) 133 CLR 345; Johnson v Director-General of Social Welfare (Vict) (1976) 135 CLR 92.

13. The nature and details of that content are for Parliament not the courts. Sections 189 and 196 of the Act are valid in their application to the applicants. Their detention, being as it is, for the purpose of their removal from Australia is not unlawful.

14. The application should be refused.

15. HEYDON J. Subject to reserving any decision about whether s 196 of the Migration Act 1958 (Cth) should be interpreted in a manner consistent with treaties to which Australia is a party but which have not been incorporated into Australian law by statutory enactment, I agree with the reasons stated by Hayne J for his conclusion that the continued detention of the applicants is not unlawful and for the orders he proposes.