New Zealand Yearbook of New Zealand Jurisprudence
Last Updated: 19 April 2015
The Thin End of the Wedge: Executive Detention of
Non-Citizens & the Australian Constitution
Jessie M. Hohmann*
Since Magna Carta’s great pronouncement that ‘no free man shall
be imprisoned ... except by the lawful judgment of his
peers or by the law of
the land’1 the incarceration of individuals only by court order
has been generally assumed to be a cardinal principle of the common law. In
the executive government has always detained certain classes of
persons, absent judicial involvement – whether in wartime camps,
quarantine purposes, or for immigration and refugee processing. It is on this
final aspect of the executive’s power of
detention that this paper
This paper charts the Australian experience of executive detention of asylum
seekers, examining how the High Court has authorised,
through a narrow, textual
interpretation of the Constitution, the mandatory, indefinite detention of such
individuals. This exclusion
of non-citizens2 from Australian legal
protections is tracked through a close analysis of two High Court cases, Chu
Kheng Lim v MILGEA,3 and Al Kateb v Godwin.4
In both, the High Court endorsed the mandatory, executive detention of
asylum seekers. I argue that Al Kateb systematically withdraws the
limitations placed on executive detention in Lim, greatly broadening the
Australian federal government’s power over non-citizens. The purpose of
this paper is to examine the
shift from Lim to Al Kateb,
illustrating the potential implications of such a legal change not only for
asylum seekers who are subject to the current Migration Act, but for
everyone who lives under a system of law where the Courts are prepared to allow
government to diminish protection for certain
groups through narrow
* BA (Guelph) LLB (Osgoode Hall) LLM (Sydney) PhD Candidate, University of Cambridge
Faculty of Law.
1 9 Henry III 1225, as confirmed in 25 Edward I 1297 Cl 29.
2 This paper uses the terms non-citizen and alien interchangeably, as is congruent with current High Court jurisprudence. See Singh v Commonwealth  HCA 43; (2004) 209 ALR 355, per Gleeson CJ, 357 [hereinafter Singh].
3 (1992) 176 CLR 1 [hereinafter Lim].
4  HCA 37; (2004) 208 ALR 124 [hereinafter Al Kateb].
By removing legal protections from vulnerable groups we undermine the fabric
of legal protections to which we are all subject. It
is not only those
individuals who suffer, but all people subject to the law, which is weakened in
its general attitude to the protection
of cardinal common law liberties. It is
this path upon which the High Court has embarked. An examination of the Al
Kateb case shows that a majority of the High Court chose not to adopt
accepted methods of constitutional interpretation that would have
led the Court
to decide the case with regard to the fundamental principles underlying and
imbuing the Constitution, not least of
which is liberty.
ii. The Factual Background
Lim was the High Court’s first endorsement of the Australian
Government’s scheme of mandatory administrative detention for
seekers who had entered the country without lawful permit. The Court was called
upon to consider provisions of the Migration Act 1958 (Cth), which
compelled the mandatory detention of a class of Cambodian boat people. In the
early 1990’s Australia had experienced
a wave of asylum seekers, displaced
by conflict in their home regions, who arrived without visas or other
authorisation. In response
to these uninvited arrivals, the Federal government
introduced a scheme of mandatory detention. The legislation dealt specifically
with the designated Cambodian ‘boat people’. When the detainees
brought actions seeking release in the Federal Court,
the Parliament rushed
through legislative amendments to strengthen the detention scheme. Among these
amendments were provisions specifying
that a ‘designated person’ was
to remain in detention unless and until he or she was granted a visa, left the
or until the maximum time limit of 273 days was reached. (This limit
only included days when the person’s file was under active
by the department).5 Moreover, the legislation attempted to oust
curial review, stating that ‘the Court is not to order the release of a
person.’6 The strong legislative response to the
arrival of such a small number of Asylum seekers is merely one – albeit an
example of the disproportionate political response engendered by
refugee issues in Australia.7
The High Court upheld all aspects of this scheme, save only the fact that the
legislation could not remove judicial oversight: that
would result in a breach
of the separation of powers in the Australian constitution and was therefore
beyond the competence of the
legislature to affect, or the executive to
5 See Migration Act 1958 (Cth) Pt 2 Div 4B [hereinafter Migration Act].
6 Ibid, s54R.
Though the judgment reflects a high level of deference to both the
legislature and executive, it was nonetheless a decision that placed
limits on the government’s power to hold non-citizens through
administrative processes for the purposes of refugee processing
However, when the High Court was called upon to decide the case of Al Kateb
last year, it substantially removed the strict restrictions mandated in the
Mr. Al Kateb was a stateless man of Palestinian origin who fell into a gap in
the Migration Act. While the legislation once again authorised detention
for unlawful non-citizens until removal (either at the request of the detainee,
or upon exhaustion of legal appeals) or the grant of a visa, it was silent on
the position of people like Mr. Al Kateb, who, having
failed in his asylum
claims and subsequently requested removal, could not be deported as no country
could be found that would take
him. Mr. Al Kateb was also one of a
‘wave’ of boat people fleeing to Australia due to international
strife: this time,
conflicts in the Middle East. Once again, Australia’s
reaction to the small number of asylum seekers who arrived by boat without
authorisation was disproportionately hostile, resulting in rushed legislative
changes, the exclusion of boats of refugees from Australian
waters by Executive
order, and high public sentiment against ‘illegal’
Relying both on the distinguishing features of the case from those in Lim, as well as a Full Federal Court judgment favouring release in cases such as his,9
Mr. Al Kateb argued that the Migration Act did not authorise his
continued detention. His argument relied in several respects on the restrictions
discussed above in Lim. He argued that the purpose of the detention had
come to an end, changing the character of the detention from an incident of the
power to expel and deport to incarceration that was punitive in character;
therefore engaging the judicial function of the Commonwealth
and breaching the
separation of powers.
In the result, the High Court dismissed Mr. Al Kateb’s arguments. A
majority of four judges – Justices McHugh, Hayne (with
whom Heydon J
agreed, affording his honour the distinction of writing the leading judgment)
and Callinan – upheld the mandatory,
and in this case indefinite,
executive detention of a non-citizen. They did so based on a combination of
grounds involving principles
of statutory and constitutional interpretation. Of
8 The infamous Tampa incident provides an example in microcosm of the public and governmental panic. See, for example, H Pringle & E Thompson, ‘The Tampa Affair and the Role of the Australian Parliament’ (2002) 13 PubLR 128, and Mary Crock ‘In the Wake of the Tampa: Conflicting Visions of International Refugee Law in the Management of Refugee Flows’ (2003) 12 PacificL&PolicyJ 49.
9 MIMIA v Al Masri  FCAFC 70; (2003) 197 ALR 241.
dissentients, Chief Justice Gleeson confined his decision to an examination
of the Migration Act, Justices Gummow and Kirby wrote dissenting
judgments covering both issues.
iii. The Australian Constitutional Framework
Before turning to the cases, I will outline the constitutional framework in
which the decisions were made. This background is necessary
to understand the
basis on which the High Court arrived at its decision. As my analysis focuses on
the constitutional aspects of
the judgments, rather than on the aspects dealing
with statutory interpretation, it is necessary to set out the relevant aspects
of the Australian Federal Constitution.
The Constitution contains no express power over citizenship. Rather, the
Commonwealth government is empowered in two relevant areas:
These are the powers
to make laws with respect to Immigration and Emigration; under s 51(xxvii) and
Naturalisation and Aliens; under
s 51(xix). Because of this structural emphasis,
the discussion on issues of membership of the Australian community has been
in the negative: not who is an Australian, but who is not, so as to fall
within the ambit of either of the powers. The power over
immigration has been interpreted as relatively restricted,10 and is
not relevant for our purposes. The power over naturalisation and aliens has been
interpreted to have no such inconvenient limitations,
and, as this paper
demonstrates, has recently undergone a widening in its scope.
The other cardinal feature of the Constitution that must be mentioned is the
separation of judicial power. This is a central issue
in any discussion of
executive detention. Chapter III of the Constitution invests the judicial power
of the Commonwealth in the High
Court of Australia. This structural decision
reflected the desire of the Framers to follow the United States model of a High
as final arbiter of the legality of government action.11 The
central motivation for a separate judiciary is to diffuse power and limit its
arbitrary use or abuse. A separation of judicial
Montesquieu’s famous concept ‘there is no liberty, if the judiciary
power be not separated from the legislative
While the High Court in Australia has insisted on a strict separation of
its powers from the two other branches of government,
10 For a summary of the early cases, which continue as good law, see Tony Blackshield
& George Williams, Australian Constitutional Law and Theory 3rd Ed (2002) 854-874 [hereinafter Blackshield & Williams].
11 Ibid, 606; and Leslie Zines, The High Court and the Constitution 4th Ed (2004) 154.
12 Baron de Montesquieu, The Spirit of Laws, T Nugent (trans)
the record of the separation as a check on executive action is less clear, as
the case of Al Kateb illustrates. Nevertheless, the separation of
judicial power remains vital to the operation of the Australian
Inherent in this separation of powers is the idea that the judicial branch alone holds the judicial power of the Commonwealth. This power includes ‘a power to make an adjudication of guilt, fine, imprison or perform similar function’ and must ‘affect traditional (ie criminal or civil) rights.’14 Chief Justice Griffith’s
1909 statement remains the classic definition:
I am of the opinion that the words ‘judicial power’ as used in
... the Constitution mean the power which every sovereign
authority must of
necessity have to decide controversies between its subjects, or between itself
and its subjects, whether the rights
relate to life, liberty or
However, it has been noted that ‘the definitions of what does and does
not constitute “judicial power” are sufficiently
imprecise to allow
a significant measure of pragmatic flexibility.’16 It is this
imprecision that was addressed in the Lim case and it is the increased
scope of the aliens power, coupled with the deferential interpretation to
encroachments of executive
action on the judicial power, that have allowed the
Al Kateb judgment to expand beyond those circumscribed conditions for
executive detention found in Lim, the case to which I will now
iv. THE HIGH COURT AND THE RIGHTS
OF NON-CITIZENS UNDER THE LAW
A. The Case of Chu Kheng Lim
The central principle in Lim revolved around the issue of judicial
power: could the government introduce legislation that explicitly sought to
prevent the Court
from ordering the release of the specified class of persons
held in immigration detention? The majority of the High Court held that
Parliament clearly could not do so. This was an inherent part of the judicial
function of the Court, exercisable only by the
Court. It was not the province of
the executive or legislature to prevent courts from performing their
13 See A.M. Gleeson, The Rule of Law and the Constitution (2000) 76-91 [hereinafter A. M.
14 RD Lumb, Australian Constitutionalism (1983) 105.
15 Huddart, Parker & Co Pty Ltd v Moorehead  HCA 36; (1909) 8 CLR 330 at 357.
16 Blackshield and Williams, supra n 10 at 619.
Despite the ruling on the judicial power, the High Court nevertheless upheld
the bulk of the legislative scheme: mandatory detention
of non-citizens pending
the outcome of their status determinations was constitutionally permissible.
There were, however, several
substantial qualifications on the
Government’s use of this power. These included that executive detention
could only operate
with respect to non-citizens; that the purpose of the
detention must be tied to or incidental to the Government’s power over
aliens; and finally, that such executive detention could only apply in a limited
set of circumstances. The subtleties inherent in
these arguments are examined
Citizens’ Rights v Non-Citizens’ Vulnerabilities
It is clear in every respect of the judgment in Lim that administrative detention by the executive government is only authorised in relation to non-citizens. As their Honours Brennan, Deane and Dawson stated in the leading judgment,
‘while an alien who is actually within this country enjoys the protection of our law, his or her status, rights and immunities under that law differ from the status, rights and immunities of an Australian citizen in a variety of respects.’17
Similarly, McHugh J wrote: ‘Parliament can make laws imposing burdens,
obligations and disqualifications on aliens which could
not be imposed on
members of the community who are not aliens.’18 On the other
hand, the Constitution cannot vest legislative power to
‘arbitrarily’ detain citizens in the executive because
‘the involuntary detention of a citizen in custody by the State is penal
or punitive in character and
... exists only as an incident of the exclusively
judicial function of adjudging and punishing criminal
The most important of an alien’s legal disabilities involves his or her
‘vulnerability to exclusion or deportation.’20 According to Lim, this susceptibility flows both from the provisions of the Constitution and from the common law.21 In respect of the common law, the judges appealed to cases regarding a State’s clear power to make laws for the detention or deportation of
‘even a friendly alien.’22 Secondly, the Court
accepted that the Commonwealth power over naturalisation and aliens in s 51(xix)
of the Constitution authorises
the government not only to make laws relating to
determining the status of aliens, but also determining the way in which they may
be treated. The Court was in agreement on the plenary nature of this
Constitutional head of power,
17 Lim, supra n 3, per Brennan, Deane & Dawson JJ, at 29.
18 Ibid, per McHugh J, 64.
19 Ibid, per Brennan, Deane & Dawson JJ, 27.
20 Ibid, 29.
21 Ibid, 29-31.
22 Ibid, per McHugh J, 64; per Brennan, Deane & Dawson JJ,
and the uses to which the Government could turn it,23 although
Justice Gaudron appeared to give the power a more limited reading.24
Thus, Chief Justice Mason stated, for example, 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
Detention as ‘Incidental’ to the Aliens Power?
Despite the legal vulnerabilities of aliens, the majority of the Court did
not interpret the executive power to detain such persons
as otherwise at large.
Rather, the Court interpreted the detention to be attendant on, or tied to, the
power to deport or expel the
Justice Gaudron was careful to point out that the power conferred by s
51(xix) does not permit laws for the detention of aliens ‘merely
they are aliens.’26 Rather, the Constitution authorises the
detention of non-citizens as an incident of the legislative power to deport or
expel an alien
from Australia. In the words of the joint judgment
‘authority to detain an alien in custody, when conferred upon the
in the context and for the purposes of an executive power of
deportation and expulsion, constitutes an incident of that executive
power.’ They continued, stating that such detention ‘takes its
character from the executive powers to exclude, admit
and deport of which it is
an incident.’27 What this means is that if the law is only
incidental to the deportation or expulsion of the non-citizen, then the power of
to sanction the executive’s detention of non-citizens is
limited by the purpose of the detention. Here, the Court clearly held
purpose of the detention was to make non-citizens available for deportation and
to facilitate their processing. As such,
the aliens and naturalisation power
authorised the legislation. Thus, executive detention is necessarily limited by
purpose – a substantial qualification that assumed much
significance in the case of Al Kateb.
The fact that a law must be incidental to the purpose of the power had a
further consequence, and this was that the law must be reasonably
affect the purpose. The joint judgment stated that laws that authorised
administrative detention not only needed to
be for a specific purpose, they
needed to be sufficiently tailored to that purpose: in other words, the
23 Ibid, per Mason CJ, 10; see also Brennan, Deane & Dawson JJ at 25, Toohey J at 44 and
McHugh J at 64.
24 Ibid, per Gaudron J, 55.
25 Ibid, per Mason CJ, 10.
26 Ibid, per Gaudron J, 55.
27 Ibid, per Brennan, Deane & Dawson JJ, 32.
must be ‘reasonably capable of being seen as necessary for [those] purposes.’28
McHugh also appeared to suggest that some sort of proportionality or necessary connection between the law and the purpose must be undertaken by the court. He wrote that ‘if a law authorising detention went beyond what was reasonably necessary to effect the deportation of that person, the law might be invalid because it infringed the provisions of Ch III of the Constitution.’29
Or in Justice Gaudron’s words, legislation only authorises detention that the Court deems ‘reasonably necessary for the purposes of deportation or for the making and consideration of an entry application.’30 These statements provide a potential oversight function for the Court, which gives it a role beyond a mere examination of whether the law is ‘about’ aliens. As Adrienne Stone recently identified, the test of proportionality or necessity employed in Lim meant that
‘even when considering the apparently technical question of whether a
law was “with respect to” a nominated head
of power, the court had
latitude to incorporate rights concerns through closer scrutiny of the means
chosen by Parliament to pursue
a nominated end.’ 31 This
approach allows the Court to undertake a ‘tailoring’ role to ensure
the necessity, or the sufficient connection,
between the aliens power and the
legislation in question.
Having determined that the law must authorise detention for a legitimate
purpose, and must be reasonably necessary, proportionate
or adapted, the Court
went on to state clearly that such conditions would only be met in certain
limited circumstances. Justice Gaudron
stressed that ‘[d]etention in
custody in circumstances not involving some breach of the criminal law ... is
offensive to ordinary
notions of what is involved in a just
society.’32 This sentiment was echoed, albeit less forcefully,
in a majority of the judgments. The joint judgment quoted Blackstone’s
to the effect that ‘the confinement of the person, in any
wise, is an imprisonment.’33
In recognition that liberty is a central principle of the Australian legal
system, their Honours therefore stressed that executive
detention could only
occur in certain delimited circumstances: where the detention was incidental to
the executive power to exclude
or deport, where the detention was non-punitive
so as not to encroach upon the Judicial power of the Court, and where
28 Ibid, 33.
29 Ibid, per McHugh J, 65.
30 Ibid, per Gaudron J, 58.
31 Adrienne Stone, ‘Australia’s Constitutional Rights and the Problem of Interpretive
Agreement’ (2005) 27 SLR 29, 39 [hereinafter Stone].
32 Lim, supra n 3, per Gaurdon J, at 55.
33 Ibid, per Brennan, Deane & Dawson JJ, 28. See also McHugh J at
was reasonably necessary for the purpose of the detention. Each of Justices
Brennan, Deane and Dawson and Chief Justice Mason pointed
out that the detention
of aliens was only available when these criteria were met.34
What ‘limited’ circumstances included, was not spelled out. It is
possible that the High Court did not consider that any
existed. However, it is
more likely that the Court did not deem it wise to speculate beyond the narrow
factual situation in issue.
However another inherent limitation arising from the
factual situation did exist. This was the question of ‘voluntary’
detention raised by Justice McHugh. His Honour noted that ‘a designated
person may release himself or herself from the custody
enforced.’35 In this case, liberation could be achieved by the
detainee requesting return to his or her home country. While McHugh J noted that
a person applying for refugee status might not consider this a ‘real
choice,’ he maintained that as a matter of law,
it was. The qualification
that detention by the executive is therefore voluntary has become a cornerstone
of both judicial and governmental
rationales for the legitimacy of that
The judgment in Lim proceeded on a wide reading of the legislative
power over aliens, and a narrow reading of incursions into the judicial power
will allow the High Court to scrutinise the detention of non-citizens. It
was itself narrow and textual in focus; and was criticised
on this basis by the
United Nations’ Human Rights Committee in A v Australia,37
a compliant later brought before the UN by the Lim plaintiffs.
However, the judgment did include significant qualifications on the
executive’s power to authorise administrative
detention. These limitations
and qualifications were put under severe pressure in the case of Al
B. The Case of Al Kateb
The case of Al Kateb gave the High Court the opportunity to re-examine
Lim in light of different facts, and to determine what the earlier
decision meant for future challenges to involuntary executive detention.
major legal effect of the decision (other, that is, than the personal
consequences for Mr. Al Kateb) was to roll back the main
on executive detention by the Court in Lim. I will address the attack on
the limitations in turn: detention as ‘incidental’ to the aliens
power; the limited circumstances
34 Ibid, per Brennan, Deane & Dawson JJ, 32; per Mason CJ, 10.
35 Ibid, per McHugh J, 72.
36 See, for example, Tania Penovic, ‘The Separation of Powers: Lim and the ‘Voluntary’ Immigration Detention of Children’ (2004) 29 AltLJ 222.
37 Communication No 560/1993, UN Doc CCPR/C/59/560/1993 (30 April
in which detention may occur; the ‘reasonable necessity’ of the
detention; and finally the essential qualification in
Lim that executive
detention can only operate in the case of non-citizens.
Detention as an ‘Incident’ of the Aliens Power?
The majority in Al Kateb backed away from the idea of detention as
‘incidental’ to the power to deport or process an asylum seeker.
This was done
in various ways, to which not all majority judges subscribed.
Among the arguments put forward by their Honours, were: reformulating
in Lim; following a previous dissenting opinion; expanding the
characterisation of ‘legitimate purposes’; and moving the
from one of judicial power to one of ‘connection’ with
the relevant head of power.
Re-opening the Ratio in Lim
McHugh J opened his discussion of the constitutional issue by quoting the ratio in Lim to the effect that the power to detain takes its character from the executive powers to exclude, admit and deport of which it is an incident. However, he wrote, ‘this ... does not mean that the power to detain pending deportation is an incidental constitutional power, that is, a power that is merely incidental to the aliens power.’38 Such a characterisation would limit the power in several ways, including the necessity of scrutinising the proportionality between the head of power and the law. Justice McHugh rather interpreted the statement from Lim to mean that the joint judgment had been discussing
‘an event that occurs in the course of the executive government’s
authority to deport or expel. They were not speaking
of a measure of
constitutional power.’39 In McHugh’s judgment, laws
relating to the detention of aliens:
are not incidental to the aliens power. They deal with the very subject of
aliens. They are at the very centre of the power, not at
its circumference or
outside the power but directly operating on the subject matter of the
In this way, McHugh J’s reasoning potentially expands the circumstances
in which the executive can detain. This is achieved
by removing one important
test available to the Court in scrutinising the rational connection or necessity
between the law and the
head of power.
38 Al Kateb, supra n 4, per McHugh J, at 134.
39 Ibid, 134 -35.
40 Ibid, 135.
Justice Hayne ambiguously stated in his judgment that ‘I would not
identify the relevant power in quite so confined a manner
as is implicit in the
joint reasons in Lim.’41 While he was careful to stress
that a connection with the relevant head of power was necessary to validate a
law authorising detention
of non-citizens, his judgment suggests that almost any
law with such a connection will be valid, and that certainly, ‘these
in their exclusionary operation have that connection.’42 Thus,
it is not just laws that are incidental to the power to exclude, admit and
deport that are authorised as held in Lim, but also laws aimed at
segregating aliens from the community and excluding them from the benefits of an
Australian way of life.
Preferring a Previous Minority Opinion
Justice McHugh’s reinterpretation of the ratio, set out above, is
perhaps not surprising given that he had advanced that interpretation
aliens power in Lim. As the only member of the Court common to both
judgments, it could be argued that his Honour had a particular insight into what
the majority meant in the earlier case. However, it is more persuasive to note
that his Honour did not agree on this issue with the
majority in Lim, and
that here he has held with his earlier interpretation. It is not clear that his
current position can be reconciled with the
majority decision in the 1992 case;
rather, his Honour’s judgment exhibits a coherent line of reasoning
developed from his
Expanding the Characterisation of the ‘Legitimate Purpose’ of the
In Lim, the legitimate purpose of the law was expressed as being
incidental and necessary to affect processing or deportation of the asylum
seeker. No purposes beyond this were expressly contemplated in the judgment.
However, in Al Kateb, the majority did not confine itself to these
qualified purposes. Justice Hayne, for one, stated that:
the conclusion that a law requiring detention for the purposes of processing
a visa application and ... for the purpose of removing
the non-citizen from
Australia is a law with respect to aliens and with respect to
immigration, does not necessarily entail that a law requiring detention of
in other circumstances, or for other purposes, is beyond
In fact, all the majority judges were prepared to look beyond the purposes
that were set out in Lim.
41 Ibid, per Hayne J, 188.
42 Ibid, 189.
43 Ibid, 185-86.
In Justice McHugh’s view, the detention did not need to be tied to the purpose of the legislation in the same way the majority in Lim had advanced. Instead, it could extend beyond these purposes to the purpose of segregating an alien from the Australian community,44 and to protecting the Australian community from the alien.45 Neither of these purposes would render the law punitive so as to attract court scrutiny. This necessarily expands those situations in which the aliens power could authorise executive detention beyond those delimited by the majority in Lim. Justice Hayne also set out further legitimate purposes, stating that ‘it is plain that unlawful non-citizens have no general immunity from detention otherwise than by judicial process’46 and that they can therefore be detained for a variety of legitimate purposes, including excluding a non-citizen from the Australian community, preventing entry to Australia, or, after entry, by segregating that person from the community.47
Callinan J voiced similar sentiments. Without finding it necessary to decide
the issue, he hypothesised that detention could extend
to segregating aliens
from the community, excluding them from the right to work or ‘otherwise
enjoying the benefits that Australian
citizens enjoy... If it were otherwise ...
non-citizens would be able to become de facto citizens.’48 He
also provided an obiter statement to the effect that detention for the purposes
of deterrence49 might be constitutionally acceptable.
The change in the reasoning between Lim and Al Kateb on this issue is one of purpose versus effect. In Lim, the question was whether the law was one that could be seen as being for the purpose of bringing about a legitimate end
– refugee detention for the purpose of status determination
and/or removal. In Al Kateb, the legitimate end was not the focus.
Rather, the purpose of the law became a question tied up with the applicability
of Ch III
and the separation of powers, in that laws with a punitive purpose
will attract Ch III scrutiny, while laws with a punitive effect
will not, at
least not solely on that basis.50
Framing the Question as Connection with the Head of Power
The central concern of the Court in Lim was the question of how to
reconcile executive detention with the key principles of separation of judicial
power; principles which
44 Ibid, per McHugh J, 136.
46 Ibid, per Hayne J, 189.
47 Ibid, 190.
48 Ibid, per Callinan J, 196.
49 Ibid, 197.
50 For an analysis of this issue, see Arthur Glass, ‘Al Kateb and
Behrooz’ paper presented at 2005 Constitutional Law
February 2005) available at:
In a federal system the absolute independence of the judiciary is the bulwark
of the constitution against encroachment whether by
the legislature of the
executive. To vest in the same body executive as well as judicial power is to
remove a vital constitutional
Unlike Lim, however, the majority judgments in Al Kateb
demonstrate insignificant attention to this question and certainly no soul
searching over any implications arising from it. Rather,
attention has shifted in focus to the connection between the legislation and the
head of power. This has the effect
of skipping over questions of fundamental
principles of constitutionalism and proceeding directly to questions of
and characterisation. It represents a method of constitutional
interpretation lacking sufficient attention to the context in which
interpretation takes place.
As an example, take the following statement by Justice Hayne. After deciding
that the executive was not confined by the purposes set
out in Lim, but
could generally make any law ‘with respect to the head of power’ he
stated that the legislation suggested ‘a
test more apposite to the
identification of whether the law is a law with respect to aliens’ than a
question of whether or
not the law breached the separation of powers.52
This statement illustrates that his Honour’s approach proceeds from
the specific head of power as the first point of consideration,
rather than from
any overriding sense of the Constitution’s function or context. Secondly,
it allows his Honour to sidestep
the issue of the separation of judicial power
completely. This re-characterisation of the issue enables the Court, as Steven
has written, to ‘move the debate away from the possible
restrictions inherent in Chapter III.’53 In other words, by
focussing on the plenary nature of the power and the non-discretionary nature of
the legislation, his Honour neatly
minimised the argument on the Ch III issue
that was so much the focus of the judgments in Lim.
However, Ch III issues are fundamental to the Australian system of
government, and the protection of the people subject to it. Cheryl
illustrates the far-reaching importance of the separation of powers:
A principle purpose of a division of power ... is to protect liberty by
checking a concentration of authority that is likely to be
harmful to it. ... A
separation of judicial power, in a common law context, has the additional effect
of protecting judicial independence,
shielding courts from undue interference by
the legislature or executive. It protects the perception of judicial
well, thus encouraging public confidence in the integrity and
51 Attorney-General (Commonwealth) v R; Ex parte Australian Boilermakers’ Society (1957
 HCA 12; 95 CLR 529, 540-41.
52 Al Kateb, supra n 4, per Hayne J, at 187.
53 See Steven Churches, (Oct 2004) Law Soc Bulletin 30, 31 [hereinafter
of judicial decisions. Institutionally, these purposes are ends in
themselves. But they also serve a wider good, structuring a system
to meet the needs of the people, for whom, in a democracy, government is deemed
Accordingly, the significance of a judicial shift in focus from underlying
issues dependent on Ch III goes beyond the confines of
immigration and refugee
issues. If, as Justice Deane stated, ‘the most important [express or
implied right, guarantee or immunity]
is the guarantee that the citizen can be
subjected to the exercise of Commonwealth judicial power only by the
designated by Ch III,’55 then any
minimisation of the issues arising from this cardinal doctrine has the real
potential to weaken the constitutional protections
Limited Circumstances of Detention?
As noted above, Lim consciously curtailed the circumstances in which
the executive could detain. While these were not defined, it is not clear that
judges contemplated that there were any circumstances, other than
those addressed, in which the executive could detain a non-citizen without
encroaching on the judicial power.
The judges were careful to point out the
negative impact such detention had on liberty. The Al Kateb judgment
explicitly rejected these inherent limitations.
Rather than beginning from the Lim premise that an alien at common law
was not an outlaw, Justice Hayne states that ‘it is plain that unlawful
non- citizens have
no general immunity from detention otherwise than by judicial
process.’56 Even more explicitly, he states that the assumption
that there is a limited class of circumstances in which executive detention is
authorised ‘is open to doubt.’57 Likewise, Justice McHugh
expresses the view that the power is ‘unlimited unless the Constitution
otherwise prohibits the making
of the law.’58 In other words,
there is no limitation within the aliens power. This differs from the position
espoused in Lim. There, while all the judges recognised that
constitutional heads of power are plenary, they did not draw as a mechanical
the fact that there were no limitations on such powers. And in fact,
the High Court has interpreted many such ‘plenary’
heads of power as
having limitations inherent upon their use, above and beyond merely that the law
54 Cheryl Saunders, ‘The Separation of Powers’ in Brian Opeskin & Fiona Wheeler (eds.), The Australian Federal Judicial System (2000) 33.
55 Street v Queensland Bar Association  HCA 53; (1989) 168 CLR 461, 521.
56 Al Kateb, supra n 4, per Hayne J, at 189.
58 Ibid, per McHugh J, 135.
‘with respect to’ the subject matter of the power. This is
evident based on an examination of the jurisprudence interpreting
Commonwealth’s power over defence, for example.59
The majority judgments in the current case also differ from Lim in
their approach to the context in which the constitutionality of legislation is
determined. Churches notes the ‘curious passivity’
Hayne’s leading judgment. He notes its acceptance of the legislation
‘at face value’ with ‘only
a fleeting glance at the ...
protection of core common law sacred cows, but ... no reflection on the leader
of that herd: liberty.’60 Similarly, Juliet Curtin has
identified this as a ‘blinkered approach to the text of the
legislation.’61 This is a significant change from the judgment
in Lim, which, however limited in its recognition of constitutional
protections, nonetheless focussed the core of its judgment around exceptions
the rule that no person may be detained without due process of law provided by
courts exercising separate judicial power.
The ‘voluntary’ nature of the detention had been a key
qualification on the government’s power in Lim. But in Al
Kateb, Justice McHugh’s statement that the possibility of ending
one’s detention by requesting return to one’s home country
seem like a ‘real choice’ had proved all too true. The issue was
precisely that the detention was, if not in
its term, in its effects,
indefinite. The detainee could not, through his own actions, bring his
incarceration to an end. However,
the characterisation of the detention as
self-imposed survived, most notably when Justice Callinan stated:
by their manner of entry, repetitive unsuccessful applications and litigation
founded on unsubstantiated claims, or, if and when it
occurs, escape from
immigration detention, some aliens may attract so much notoriety that other
countries will hesitate or refuse
to receive them. In those ways they may
personally create the conditions compelling their detention for prolonged
This carry-through of a judicial sense that the detention was of the asylum
seeker’s own making suggests a blurred line between
the idea that
executive detention is of a non-discretionary, administrative character and the
impermissible imposition of punishment
by the executive.
59 Section 51(xi). See, e.g., Australian Communist Party v Commonwealth (1951) 83 CLR
60 Churches, supra n 53 at 31.
61 Juliet Curtin ‘Never Say Never: Al Kateb v Godwin’ (2004) 27 SLR 355, 364.
62 Al Kateb, supra n 4, per Callinan J, at 196.
Must the Detention be Reasonably Necessary?
In line with the interpretation of detention as incidental to the aliens
power, the Court in Lim held that there must be some test of
reasonableness, proportionality or necessity between the law and the detention.
Such a test was
unequivocally rejected in Al Kateb.
According to McHugh J:
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 reasonably necessary to effect those
objects. That is because any law that has
aliens as its subject is a law with
respect to them.63
Hayne J also explicitly rejected any suggestion that the law must be subject
to a test of reasonable necessity, that it must be appropriate
and adapted, or
that it must be reasonably capable of being seen as
The assertions of the majority in this respect directly contradict Justice
Gaudron’s statement in Lim that the power conferred by s 51(xix)
does not permit laws for the detention of aliens solely because of their status
as aliens. However,
it should be noted that in Re Woolley, handed down
shortly after Al Kateb, McHugh J noted that the majority ruling in Al
Kateb had overruled Lim on this point.65 Therefore, it
appears clear from the reasoning in Al Kateb that provided the law is a
law with aliens as its subject matter, it will be within the power of parliament
The approach adopted in the recent case may illustrate part of a wider trend.
As Stone notes:
For most of its history, the High Court has employed rather deferential tests
of application in the interpretation of grants of legislative
example, when interpreting incidental powers, the court showed a high level of
deference to the means employed by the
Parliament to pursue ends within its
power. But for a brief period in the 1990s, the court sometimes used a test of
to apply closer scrutiny to Commonwealth
63 Ibid, per McHugh J, 135.
64 Ibid, per Hayne J, 188.
65 Re Woolley; Ex parte Applicants M276/2003 (2004) 210 ALR 369,  [hereinafter Re Woolley]. Again, the case concerned the legality of executive detention, but focused on the detention of Children.
66 Stone, supra n 31 at 38-39 (footnotes omitted).
Stone, then, regards the proportionality test as a short lived experiment in
constitutional interpretation. I would argue that attention
to the defence power
and the external affairs power, as well as other clauses of the Constitution,
such as the limitation on Commonwealth
power to interfere with religious choice,
illustrates a long and thriving history for such tests of rational connection,
a brief flowering in the final decade of the twentieth century. For
example, in the 1943 case of Adelaide Company of Jehovah’s Witnesses v
Commonwealth, the Court used what amounted to an archetypal test of
proportionality, balancing the freedom of religion against reasonable
limits.67 As such, the test should not be so easily laid
to rest by the Court. Such an enquiry into the reasonableness or rationality of
by the Court provides a necessary safeguard for the rule of law, and
illustrates that the Court’s role as the guardian of the
alive and well.
May the Executive Detain Citizens?
While the clearest holding in Lim might have been the Court’s
explicit statement that executive detention of individuals is only authorised
with regard to aliens:
those people who do not enjoy the rights of liberty that
inhere to citizens, making their detention other than by court order inherently
punitive and thus illegal, even this limitation was under attack in Al
Interestingly it was Justice Gummow, a dissenter in the case, who flagged the potential for the current interpretation of Commonwealth heads of power to authorise the executive detention of citizens. In the context of arguing that
‘the administrative detention of aliens is not at large’ his
Honour illustrated the way in which an interpretation of
heads of power as not
only plenary, but as therefore having no inherent limitations, opened up the
scope of executive power to detain.
Thus, adopting McHugh J’s analysis in
the case, Gummow J wrote:
it 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(xxvii) 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
This reasoning is consciously employed to illustrate the enormous breadth of
the Commonwealth heads of power if the Court interprets
those powers as being,
indeed, ‘at large.’ The consequences of this reasoning are equally
applicable to heads of power
that have no particular operation over aliens or
immigrants, but everyone within the power of the Australian law.
67  HCA 12; (1943) 67 CLR 116 per Latham CJ, 131; Starke J, 155.
68 Al Kateb, supra n 4, per Gummow J, at 158.
I am conscious of the High Court’s oft quoted aphorism, stated most straightforwardly in a recent judgment by Kirby J, that ‘Australian constitutional interpretation cannot take place in an environment in which horrible and extreme instances are imagined to frighten the decision maker.’69
But I would suggest that this is not such a situation. In fact, McHugh J went
on in the case of Re Woolley,70 handed down shortly after
Al Kateb, to state that detention of citizens by the executive was not
always penal or punitive. Any statement to this effect in Lim had gone
‘too far.’71 It appears, therefore, that McHugh J at
least is now prepared to accept that the executive could detain citizens without
of a court.
v. WEAKENING THE AUSTRALIAN CONSTITUTIONAL FABRIC
Justice McHugh’s acceptance that there exist instances when the
executive government can detain citizens without the involvement of a
court illustrates clearly that there are implications for all Australians in the
High Court’s current
approach to the interpretation of heads of power
under the Constitution. The Court has turned down an opportunity of adopting
and accepted techniques of Constitutional interpretation that would
better protect the liberty of individuals. Instead, the Court
has preferred to
read the text in isolation from its context.
The shift occurring between the arrival of the Cambodian asylum seekers in
Lim, and the attempted removal of the stateless Mr. Al Kateb has been
far- reaching. There are many reasons to which the shift can be
Reilly identifies the changed composition of the High Court and a possible
change in judicial attitude to the presence
of aliens in the community in the
context of the ‘war on terror’.72 Justice Ronald
Sackville has pointed to the acute political sensitivity to judicial review of
refugee decisions in recent years.73 However, at heart the issue is
one of a shift in how the Court reads the Constitution.
The approach taken in Al Kateb has several elements, which have been
touched on in the discussion of the case. First is the issue of the meaning of
Second is the issue of reading the text of the Constitution
divorced from the context of the document, which includes the choice
fundamental principles of constitutionalism that should inform
69 Singh, supra n 2 at 431.
70 Re Woolley, supra n 65.
71 Ibid, per McHugh J, 384.
72 Alex Reilly, ‘Pushing the Boundaries’ (2004) 29 AltLJ 248, 249.
73 Ronald Sackville, ‘Refugee Law: The Shifting Balance’
(2004) 26 SLR 37.
Plenary Power as Inherently Unlimited
Justice Gummow’s analogy of the breadth of the aliens power to the
power over bankruptcy and insolvency and the power over census
neatly illustrates the implications of approaching plenary heads of power as
When called upon to interpret the Constitution, many High Court judges begin
by noting that the powers under s 51 are ‘plenary.’ The word is defined as
‘complete, entire, perfect, not deficient in any element or respect;
absolute, unqualified.’74 However, the judges are careful to
note that those plenary powers are nevertheless ‘subject to this
past jurisprudence, the plenary nature of the heads of
power has not ‘trumped’ the requirement that the power be subject
the Constitution. This can be illustrated by the settled use of tests of
proportionality. It can also be illustrated by the recognition
that when a law
rests upon an incidental footing, it too must be appropriate and adapted in
order to be within power.75 More fundamentally, this statement
accords with the concept that the Constitution must be read in light of the
common law principles
which underlie and inform it. In the context set out,
these are not radical or contested forms of interpretation. They operate to
provide a further mechanism for judicial scrutiny of a law’s
What has occurred in Al Kateb is that the question of the plenary
nature of the power has become the primary, perhaps only question. If a
begins from the assumption that a head of power has no
limitation other than the necessity that the law can be characterised as with
respect to that power; and only then proceeds to examine the question of what
‘subject to this Constitution’ means, it
is likely the judge will
end up at a different place than had she begun from the position of examining
the fundamental principles
underlying the constitution, counting any principle
of liberty contemplated by its structure – including the separation of
powers: it is not inventive to suggest that the choice of where one starts
one’s inquiry may determine where one ends it. Recall
the parable of the
blind man who was asked to describe an elephant after grasping only its tail.
Like that man, the High Court judges
may have seized the Constitution only by
the tail, and identified it as a very thin object
74 The New Shorter Oxford English Dictionary (1993).
75 See Blackshield & Williams, supra n 10 at 691.
The Constitution in Context
The Constitution is Australia’s founding deed. A document of structural and legal complexity, it conveys little of the fervour and patriotism of many other written constitutions that appeal to the rights of man, the inherent liberties of the citizen and the sanctity of freedom. Rather, it concerns itself with establishing a governmental framework and creating a practical skeleton on which to build a nation. This does not mean, however, that the Australian Constitution was created in a vacuum of principle. As Joseph & Castan note,
‘Australian Constitutional law is ... imbued with many fundamental
doctrines and assumptions about government which find their
origin in the
British legal tradition.’76 Important among these doctrines and
assumptions are the rule of law, and the separation of powers. Both these
doctrines have been
important in the development of the common law, and both are
designed to safeguard the rights of the subject as against the power
state. As has been set out earlier in this essay, the separation of powers does
this by dispersing power among various entities,
who can only act in their own
legitimate spheres and who oversee the actions of each other. The rule of law,
though a disputed concept,
is commonly appealed to as a mechanism that
‘restrains and civilises power.’77 These two underlying
principles are crucial to a full interpretation of the Constitution.
Mary Crock has noted that the High Court has always tended to a narrow textual focus in refugee cases. Indeed, she cites the Lim case as an example in itself.78
It is my argument that the High Court need not depart from its chosen legalistic, textualist role in order to give regard to the rule of law and the separation of powers which are inherent in the Constitution. Even the Engineers Case79
– the seminal statement of legalism – recognised the importance
of these principles. There, the Court stated that legitimate
interpretation is ‘founded on the words of the Constitution or on [a]
recognised principle of the common law
underlying the expressed terms of the
Constitution.’80 Thus, while the dominant method of
constitutional interpretation in Australia has so often been accepted as
‘a strict and complete
legalism’81 this has not resulted
in a constitutional jurisprudence devoid of attention to the principles upon
which the Constitution rests. Writing
extrajudicially, Chief Justice Gleeson has
analogised the Australian Constitution to the Canadian, where
76 Joseph & Castan, Federal Constitutional Law (2001) 4.
77 Gleeson, supra n 13 at 1.
78 Crock, ‘Judging Refugees’ supra n 7at 61-65.
79 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd  HCA 54; (1920) 28 CLR 129.
80 Ibid, per Knox CJ, Isaacs, Rich and Starke JJ, 142.
81 Swearing in of Sir Owen Dixon as Chief Justice (1952) 85 CLR xi,
fundamental principles, which, although unstated in the text ... breathe life
into it, govern its interpretation, define the role
of the nation’s
political institutions and guide the evolution of the [nation’s] system of
Reading principles into the Constitution has, however, become unfashionable
under the Gleeson Court, and since there is very little
agreement on the exact
content of those concepts that are said to underlie the document, they have not
been much appealed to in recent
jurisprudence. Stone identifies Al Kateb
as a clear example of cases ‘which might have lent themselves to
arguments based on fundamental common law rights [but] were
decided without any
reference to the idea.’83 But it cannot be accepted that the
Court is ready to consider that fundamental principles of the common law, such
as liberty, are
anything but fundamental. The principle of interpretation that
holds that the Constitution should be interpreted – so far as
its text and
structure permit – in a way that favours rights and freedoms has not gone
out of favour. The Chief Justice, writing
in dissent in Al Kateb,
appealed in strong language to the fact that:
Courts do not impute to the legislature an intention to abrogate or curtail
certain human rights or freedoms (of which personal liberty
is the most basic)
unless such an intention is clearly manifested by unambiguous language, which
indicates that the legislature has
directed its attention to the rights and
freedoms in question, and has consciously decided upon abrogation or
Though written in the context of statutory interpretation, this passage
clearly recognises the basic importance of liberty in Australian
indicates the serious consideration it should be afforded in judicial decision
making. This again raises the worrying shift
illustrated by Al Kateb’s
lack of attention to the context of the case, and the questions underlying
the purpose of the doctrine of the separation of judicial
power; not to mention
any of the other principles of constitutionalism discussed here.
Constitutional provisions are constantly subject to contested
interpretations, their words picked apart and put back together again
different contexts for different purposes. The Australian Constitution is no
stranger to this process, nor are these methods unfamiliar
to the judges whose
calling it is to uphold it and pronounce upon it.
82 A M Gleeson, supra n 13 at 4.
83 Stone, supra n 31 at 35.
84 Al Kateb, supra n 4, per Gleeson CJ, at 130.
But it is precisely because of these attempts to pull the Constitution in one
way or another, to suit the current needs of a government,
or group that judges must keep one eye firmly on the principles which provide
the foundation of the document.
Without these principles, the Constitution is
The High Court of Australia’s judgment in Al Kateb illustrates the inadequate regard which the current Court bestows upon these foundational principles. The judgment is a prime example of constitutional interpretation devoid of considerations of the key triumphs of constitutional democracies: liberty of the individual and protection against the abuse of executive power not least among them. The Lim case illustrates, on the other hand, the way in which judges can uphold these principles in conformity with a strict and conservative constitutional interpretation. In the short term, the Al Kateb judgment may only impact upon a small group of stateless detainees. In the long run, such an approach to constitutional interpretation will weaken the very foundations upon which the Australian Constitution is laid.