Re Woolley; Ex parte Applicants M276/2003

The applicants, children aged between seven and fifteen years and citizens of Afghanistan, sought a writ of habeas corpus, prohibition, or injunction. They had arrived in Australia with their parents in January 2001 and were subsequently placed in immigration detention. Their father applied for protection visas for the family, and they remained in detention until after the hearing before the High Court, at which point they were granted temporary protection visas and released. The Commonwealth contended that their detention was lawful under sections 189 and 196 of the *Migration Act 1958* (Cth).

The High Court was required to determine two principal legal issues. Firstly, whether sections 189 and 196 of the *Migration Act* applied to alien children in Australia while their visa applications were being processed. Secondly, if these sections did apply, whether they were constitutionally valid, particularly in relation to the conferral of judicial power contrary to Chapter III of the Constitution, and whether the detention was reasonably capable of being seen as necessary for the purposes of the reception, investigation, admission, or deportation of aliens. The applicants argued that indefinite detention of children was punitive and thus an impermissible exercise of executive power.

The Court reasoned that sections 189 and 196 of the *Migration Act* validly apply to alien children in Australia. It was held that the provisions requiring the detention of "unlawful non-citizens" until removal, deportation, or grant of a visa were constitutional enactments. The Court acknowledged the significance of international jurisprudence and the *parens patriae* jurisdiction concerning children but concluded that these considerations did not alter the legal interpretation of the Act or the constitutional characterisation of immigration detention. The Court found that the detention was not punitive in a manner that would render the legislation invalid.

The application was dismissed.