Australia's radical legal shift

UWS Law School Symposium 15 March 2005
Campbelltown Campus

Introduction

A series of recent decisions by the High Court of Australia upholding, and arguably considerably extending, the power of the executive government to detain people without trial has generated serious concerns about the impact of these rulings on basic democratic rights and civil liberties.
As numbers of scholars have pointed out, the High Court's verdicts and reasoning have ominous implications in the context of the 'war on terrorism'.

This so-called war has produced far-reaching inroads into basic democratic rights, including the granting of powers to the federal government - acting through ASIO and the Australian Federal Police - to detain and interrogate people without charge or trial.(1)

If anything, however, I suggest that some of the scholarly warnings already published may have underestimated the scope of the shift undertaken by the High Court. A further examination of the judicial reasoning involved suggests that it is appropriate to now ask: What, if any, limits exist on executive detention without trial? That question is by no means confined to the immediate context of the mandatory detention of so-called 'unlawful non-citizens'.

In three sets of judgments handed down on August 6, 2004, the High Court declared that the federal government can detain rejected asylum seekers indefinitely--perhaps for life--regardless of their inability to be deported to any other country and irrespective of the intolerable conditions inside the government's immigration detention centres.

In the cases of Al-Kateb(2) and Al Khafaji (3), by a four-to-three majority, the court ruled that the government could use the 'aliens' power (s 51(xix)) of the Australian Constitution) to impose detention for as long as the government deemed it necessary.

The judges held that, even if deportation were not possible, indefinite detention did not unconstitutionally impose punishment without trial. In the third case of Behrooz (4), by six-to-one, the court declared that the conditions of incarceration in the country's remote camps--no matter how harsh and inhumane--could not provide a defence to a charge of escaping from immigration detention.

The underlying thrust of these rulings was reinforced four months later by Re Woolley(5), where the court decided unanimously that, despite the special physical, emotional and legal vulnerability of children and notwithstanding the protections enshrined in international law, children were no exception to the power of detention.

The immediate impact of the decisions in Al-Kateb and Al Khafaji was to throw at least a dozen former detainees into a legal and political back hole.(6)

Often after years of imprisonment, they had been released into the community, subject to certain reporting conditions, by the Federal Court, which ruled in several cases that it was unlawful to hold them for deportation when there was no prospect of any other country accepting them in the foreseeable future.(7)

Likewise, in Re Woolley, the High Court seems to have closed the last door on any hopes raised by earlier decisions of the Family and Federal Courts. In MIMIA and B & Anor,(8) the court had already overturned the Family Court's invocation of its welfare jurisdiction to order the release from immigration detention of members of the Bakhtiyari family.(9)

In Re Woolley, the court ruled that the ongoing incarceration of children was lawful, despite being condemned by the UN Human Rights Committee and the Australian government's own Human Rights and Equal Opportunity Commission for violating international law, including the United Nations Convention on the Rights of the Child and the International Covenant on Civil and Political Rights.(10)

While the cases concerned the imprisonment of asylum-seekers, they have a broader significance for the relationship between state power and democratic rights and freedoms. They represent a departure from established Australian constitutional law concerning the ambit of executive power. They substantially broaden the scope for the Commonwealth government to impose detention without trial. As Kirby J in my view correctly stated in Al-Kateb, the majority view has 'grave implications for the liberty of the individual in this country which this court should not endorse'.(11)

Legal precedents undermined

The High Court rulings undermined or called into question important legal precedents, and suggested a new dismissive approach to international law, including the International Covenant on Civil and Political Rights.

1. A general constitutional limit on executive detention

Since the Magna Carta of 1215, the English constitutional system, which Australia inherited, has curtailed the power of the executive to detain people. A desire to guarantee freedom from arbitrary imprisonment lay at the core of the doctrine of separation of powers.

This principle lay at the heart of the centuries-long struggle to limit the powers of the absolutist monarchy in England.

As the US Supreme Court, by a 6-3 majority, commented in June 2004, in ruling that Guantanamo Bay detainees, including two Australians, David Hicks and Mamdouh Habib, could seek writs of habeas corpus in US courts, at stake were democratic conceptions dating back to the Magna Carta.(12)

The majority judgment, delivered by Stevens J, suggested that:

Executive imprisonment has been considered oppressive and lawless since John, at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed, or exiled save by the judgment of his peers or by the law of the land. The judges of England developed the writ of habeas corpus largely to preserve these immunities from executive restraint.(13)

In the Australian context, that principle today is expressed primarily in the Constitution's separation of the judicial power, which is entrusted exclusively to the courts by Chapter III. To a lesser extent, it is inherent in the notion that the heads of power granted to the Commonwealth by s 51 of the Constitution do not authorise measures, such as punitive or arbitrary deprivation of liberty, unless these measures can be shown to be reasonably necessary to the exercise of those powers.

In previous cases, the High Court has insisted that with rare exceptions (such as mental health committals and quarantine restrictions) deprivation of liberty can only occur by order of a court following a finding of guilt in criminal proceedings. In their joint judgment in Chu Kheng Lim v Minister for Immigration,(14) Brennan, Deane and Dawson JJ stated:

[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.(15)

From this proposition, they drew the conclusion that, apart from the 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.'(16)

By upholding the system of mandatory immigration detention initiated by the Labor government, the High Court, in effect, declined to extend that constitutional immunity to non-citizens. That, in my opinion, was a regrettable discrimination against non-citizens.

But now we find the protection of citizens also being called into question.

In Al-Kateb, Gummow J noted that unless Chapter III was interpreted as relevantly restricting the power of the executive to impose detention without trial, the reasoning of the majority could open the door for wide-ranging use of various heads of Commonwealth legislative power, not just the immigration and aliens powers, to administratively detain people.

[I]t could not seriously be doubted that a law providing for the administrative detention of bankrupts in order to protect the community would be a law with respect to bankruptcy and insolvency (s 51(xvii)), or that a law providing for the involuntary detention of all persons within their homes on census night would be a law with respect to census and statistics (s 51(xi)). If such laws lack validity, it is not by reason of any limitation in the text of pars (xvii) and (xi) but by the limitation in the opening words of s 51, 'subject to this Constitution', which attract any limitation required by Ch III.(17)

Yet, it is precisely this approach that was taken by the majority in Al-Kateb, and underscored by the judgments in Re Woolley. In the latter case, McHugh J explicitly rejected the above propositions cited from Lim. They went 'too far' by stating that detention by the Executive was always penal or punitive. Accordingly, the conclusion that citizens enjoyed a constitutional immunity from executive detention could not stand. 'Whether detention is penal or punitive must depend on all the circumstances of the case,' he suggested.(18) Although it was unnecessary for the decision at hand, McHugh J embarked upon a discussion about the possibilities of laws being characterised as 'protective' rather than punitive:

The most obvious example of a non-punitive law that authorises detention is one enacted solely for a protective purpose... Protective laws ... 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.(19)

This passage has chilling implications in the context of the 'war on terrorism'. It can be read as indicating that the federal government could validly obtain the power to indefinitely detain people on the pretext of combatting terrorism, even if the detention had a 'deterrent' aspect - so long as the relevant legislation asserted that its primary purpose was to protect the community. McHugh J argued that any protection of citizens from executive detention arose not from the separation of the judicial power by Chapter III, but from the fact that, apart from the 'aliens' power, few heads of federal legislative power were expansive enough to authorise executive detention. Yet, he also observed that the defence power--one of the powers that arguably could constitutionally underpin counter-terrorism legislation--was probably an exception to that limitation.(20)

2. Previous rulings on immigration laws

While upholding the legality of detention for the purpose of deportation, two previous High Court authorities had specifically limited such power. In 1949, Koon Wing Lau v Calwell(21) established that the (previous) Migration Act provisions providing for detention were constitutionally valid because they did not create or purport to create a power to keep a deportee in custody for an unlimited period but implied a purpose of deportation. Therefore, the deportee would be entitled to be set free on application for habeas corpus if he were not deported within a reasonable period. Moreover, such purpose was not to be ascertained by resort to legislative or executive opinion as to the attainability of that purpose.

In Chu Kheng Lim v Minister for Immigration the High Court ruled that if detention went beyond what was reasonably necessary for deportation, it would assume the character of unconstitutional punishment. The important principle in Lim, for present purposes, was that where the Executive detains (as opposed to a court), the authority to detain 'takes its character' from the parliament's power (such as it has) to exclude, admit or deport aliens, of which detention is an incident. Beyond exercising a power to detain for such incidental purpose, detention exceeds this power. Arguably then, incarceration that is unlimited by some temporal constraint exceed the bounds of executive power, because it cannot objectively be considered as detention for the purpose of removal.

In Al-Kateb, the majority rejected the application of these authorities to Mr Al-Kateb. McHugh J declared that Lim offered no assistance to the appellant, restating his position in Lim that:

[A] law requiring detention of aliens for the purpose of deportation or processing of applications would not cease to be one with respect to aliens even if the detention went beyond what was necessary to effect those objects. That is because any law that has aliens as its subject is a law with respect to aliens.(22)

On this view, the aliens power has few, if any, limits. Indeed, the majority held that so long as the stated purpose of detention was deportation or exclusion from the Australian community there was no temporal limitation. Such detention, irrespective of duration, was for protective purposes (protection of the Australian community) and not punitive.

Callinan J suggested that detention could be used for other purposes, in addition to deportation, in order to prevent non-citizens gaining any benefits or basic rights associated with citizenship.

It may be the case that detention for the purpose of preventing aliens from entering the general community, working, or otherwise enjoying the benefits that Australian citizens enjoy is constitutionally acceptable. If it were otherwise, aliens having exhausted their rights to seek and obtain protection as non-citizens would be able to become de facto citizens.(23)

Hayne J went so far as to argue that even if indefinite detention became punitive, it would nevertheless be constitutional because the detainee had brought the consequences upon himself:

It is essential to confront the contention that, because the time at which detention will end cannot be predicted, its indefinite duration (even, so it is said, for the life of the detainee) is or will become punitive. The answer to that is simple but must be made. If that is the result, it comes about because the non-citizen came to or remained in this country without permission.(24)

This conclusion not only flies in the face of constitutional principle, but also the traumatic and life-threatening conditions in which asylum seekers seek refuge (25), as well as the reality that Al-Kateb could find no other country to enter.

3. The executive cannot judge itself

Since 1951, when the Menzies government attempted to outlaw the Australian Communist Party, the High Court has rejected the proposition that the executive can set the limits of its own power. Against a backdrop of global anti-communism (26), the Communist Party Dissolution Bill's recitals claimed that its measures were required for the 'security and defence of Australia' in the face of a dire threat of violence, insurrection, treason, subversion, espionage and sabotage.(27)

The High Court, however, rejected the use of these recitals to validate the government's claim to be exercising the defence, incidental and executive power of the Commonwealth. The judges invoked the legal doctrine that the Commonwealth government and parliament cannot unilaterally assert constitutional bases for legislation.

In their dissenting judgments in Al-Kateb, Kirby and Gummow JJ emphasised the importance of this proposition. In Kirby J's words: 'As in the Communist Party case, this requirement has proved an important, even vital, protection for individual liberty.' (28) Gummow J stated:

[I]t cannot be for the executive government to determine the placing from time to time of that boundary line which marks off a category of deprivation of liberty from the reach of Ch III. The location of that boundary is itself a question arising under the Constitution or involving its interpretation.(29)

In Al-Kateb and Al Khafaji the government and the Department of Immigration simply asserted that the purpose of their detention was deportation--despite the uncontested fact that deportation was not possible in the foreseeable future. Despite the strong warnings issued by Kirby and Gummow JJ, the majority uncritically accepted this assertion.

4. Legislation must be interpreted consistently with basic rights

It is an established rule in common law countries that statutes will not be interpreted as abrogating fundamental rights and freedoms unless clearly stated. Where legislation is ambiguous or silent on the issue, it will be interpreted to make it consistent with these rights. Given the fundamental significance of the right to personal liberty, there is a strict common law presumption that imprisonment is unlawful unless there is clear legal authority for the person's detention.(30)

In Al-Kateb, together with Kirby and Gummow JJ, Gleeson CJ said the Migration Act did not contemplate the circumstances of stateless people who could not be deported. Yet, the majority--McHugh, Callinan, Hayne and Heydon JJ--ruled that the Act's wording explicitly authorised such detention.

In the context of the migration legislation it was clear that there was an underlying assumption that the relevant 'unlawful non-citizen' (the language used instead of the old term 'alien') was capable of being deported. In fact, the relevant provisions had not contemplated the circumstance of stateless persons who could not be deported.

The majority circumvented this principle of statutory interpretation by boldly asserting that there was no ambiguity. Such a view is impossible to reconcile with the actual provisions and indeed with the view of the three jurists who dissented. As Gleeson CJ concluded in considering the provisions of the Act:

The Act does not say what is to happen if, through no fault of his own or of the authorities, he cannot be removed. It does not, in its terms, deal with that possibility. The possibility that a person, regardless of personal circumstance, regardless of whether he or she is a danger to the community, and regardless of whether he or she might abscond, can be subjected to indefinite, and perhaps permanent, administrative detention is not one to be dealt with by implication.(31)

5. Respect for international law

In Al-Kateb, the majority signalled a willingness to move away from the now traditional principle that courts will, where possible, interpret legislation in the light of international law. As with basic common law rights, the assumption is that parliament would not violate international law, so that any intention to do so must be clearly and expressly stated in the legislation. In his dissenting judgment, Kirby J made numerous references to the previously-recognised desirability of similarly interpreting the Constitution according to international laws and conventions:

[T]he complete isolation of constitutional law from the dynamic impact of international law is neither possible nor desirable today. That is why national courts, and especially national constitutional courts such as ours have a duty, so far as possible, to interpret their constitutional texts in a way that is generally harmonious with the basic principles of international law, including as that law states human rights and fundamental freedoms.(32)

It is not possible to deal at length with this issue tonight, but the majority rejected the approach taken by Kirby J. McHugh J not only criticised Kirby J's constitutional doctrine as 'heretical' but dismissed even the notion of interpreting ordinary legislation in the light of international law as 'based on a fiction'.(33)

Conclusion

The High Court decisions mark a radical shift in the legal-constitutional framework. Their practical effect assumes a positively Kafkaesque dimension: segregation by incarceration, without trial for any offence, at the will of the state, for an indefinite period, perhaps for life, in harsh, inhuman conditions.(34)

Although three members of the court, including the Chief Justice and Gummow J, whose record is that of customarily being at the core of the court's majority, dissented in Al-Kateb, Gleeson CJ and Gummow J did so primarily on the narrow grounds of statutory interpretation, not on constitutional principle. They found that the Migration Act, as currently drafted, did not specifically support the prolonged detention of an entire class of people.

If it wished, the federal government could overcome these objections by moving amendments to the legislation, and by drafting future legislation in this and other spheres, such as 'counter-terrorism' to explicitly authorise indefinite detention.

This is all the more concerning given the bipartisan agreement that exists between the Liberal-National Party coalition and the Labor Party on these issues. It was the Labor government that first introduced the system of mandatory detention of unlawful non-citizens in 1992. And the Labor Party has supported every piece of so-called anti-terrorism legislation enacted since 2001, including the ASIO detention measures.

While couched in purely legal terms, last year's High Court rulings objectively represent the judiciary's imprimatur for the re-alignment of legal and political power sought by the Howard government, which, with Labor's support, has already exploited the 'war on terror' to introduce unprecedented measures of a police-state character.

These include detention of non-suspects without trial for interrogation, jail terms for 'associating' with alleged terrorists and wide-ranging and subjective definitions of terrorism that cover many traditional forms of political dissent. (35)

Nothing in the judgments in Al-Kateb would stand in the way of the establishment of Guantanamo Bay-style prison camps in Australia.

Notes

T. Penovic, 'The separation of powers: Lim and the 'voluntary' detention of children' (2004) 29 AltLJ 222; M. Groves, 'Immigration Detention vs Imprisonment: Differences explored' (2004) 29 AltLJ 228; A. Reilly, 'Immigration detention: Pushing the boundaries' (2004) 29 AltLJ 248.
Al-Kateb v Godwin [2004] HCA 37 (6 August 2004)
Minister for Immigration and Multicultural and Indigenous Affairs v Al Khafaji [2004] HCA 38 (6 August 2004)
Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous [2004] HCA 36 (6 August 2004)
Re Woolley; Ex parte Applicants M276/2003 by their next friend GS [2004] HCA 49 (7 October 2002).
After a brief review, following the High Court decisions, the immigration minister used her discretionary power under the Migration Act to grant Mr Al-Kateb and Mr Al Khafaji bridging visas, giving them temporary permission to live in Australia. However the claims of 13 others, including an asylum seeker who had been held in detention for six years, were rejected. See M. Shaw, 'Stateless detainees get bridging visas in review', The Age, 1 September 2004, p. 7. See also Parliamentary Library, Research Brief no. 1 2004-05, 'The High Court and indefinite detention: towards a national bill of rights?' (accessed 14 January 2005).
In Minister for Immigration and Multicultural Affairs and Indigenous Affairs v Al Masri (2003) 126 FCR 54, the Full Federal Court held that the continued detention of an unlawful non-citizen was unlawful where that person had requested removal from Australia, but there was no real likelihood or prospect of that person's removal in the reasonably foreseeable future.
Minister of Immigration and Multicultural and Indigenous Affairs and B & Anor (2204) 206 ALR 130.
Se A. Sifris and T. Penovic, 'Children in Immigration Detention: The Bakhtiyari family in the High Court' (2004) 29 AltLJ 217.
Bakhtiyari v Australia, Human Rights Committee Communication No 1069/2002 (2003); Human Rights and Equal Opportunity Commission, A Last Resort? National Inquiry into Children in Immigration Detention, (2004).
[2004] HCA 37 at [148].
Rasul v Bush; Al Odah v United States (2004) 542 U.S. (Cases no. 03-343, 03-334)
Quoting Jackson J in Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 218--219 (1953) (dissenting opinion).
(1992) 176 CLR 1.
Ibid at 27.
Ibid at 28-29.
Ibid at [133].
[2004] HCA 49 at [58].
Ibid at [61].
Ibid at [63].
(1949) 80 CLR 533.
Ibid at [41].
Ibid at [289].
[2004] HCA 37 at [260].
M. Head, 'Refugees, Global Inequality and the Need for a New Concept of Global Citizenship' [2002] Australian International Law Journal 57.
See K. Lindsay, The Australian Constitution in Context, LBC, Sydney, 1999, p.72-76. For the political and social context of the Communist Party case, see G. Winterton, 'The Significance of the Communist Party Case,' (1992) 18 Melbourne University Law Review, pp. 630-58.
Communist Party Dissolution Act 1950 (Cth) Preamble.
[2004] HCA 37 at [155].
Ibid at [140].
Liversidge v Anderson [1942] AC 206 at 245.
Ibid at [21].
Ibid at [174-175].
Ibid at [63].
F. Kafka, The Trial, New York, Alfred A. Knopf, 1957.
M. Head, 'Another threat to democratic rights: ASIO detentions cloaked in secrecy' (2004) 29 AltLJ 127.