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Implication Of Ch Iii Notes

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6. Detention & Implication of Ch III Arbitrary Detention

HCA has acknowledged that determining whether someone should be detained is generally a question for the courts.

* Theme of these cases: how broad are the exceptions? I.e. where can the executive validly detain?

1. The Constitution , s 51(xix), confers power on the Parliament to legislate with respect to "Naturalization and aliens".

2. The Migration Amendment Act 1992 (Cth) inserted into the Migration Act 1958 (Cth) a new Pt 2, Div 4B, the scheme of which is that a "non-citizen", being also a "designated person" within the application of the Act (s 54K), is to be detained in custody until his application for refugee status or for an entry permit is determined.

3. Pending that determination the person is not to be released, but "must be kept in custody" (s 54L(1)) subject to limited exceptions (s 54L(2)).

4. By s 54N(1), if a designated person is not in custody immediately after the Act's commencement, "an officer may, without warrant: (a) detain the person, and (b) take reasonable action to ensure that the person is kept in custody for the purposes of section 54L".

5. Section 54P(1) stipulates that "an officer must remove a designated person from Australia as soon as practicable if the designated person asks the Minister, in writing, to be removed".

6. Section 54R purported to provide that "a Court is not to order the release from custody of a designated person".

7. On a challenge to the validity of ss 54L, 54N and 54R Substantially upheld the validity of amendments to the Migration Act 1958 (Cth) providing for the detention in custody of two groups of asylum seekers specifically targeted by the amendments.

Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 (1) The power expressed in the Constitution , s 51(xix), extends to conferring authority on the Executive to detain an alien in custody for the purposes of expulsion or deportation, such authority being an incident of executive power. Observations on the relationship between "alien" and "non-citizen". (2) The authority to detain an alien in custody, when conferred in the context of executive powers to determine the alien's application for entry, and thereafter to admit or deport, constitutes an incident of those executive powers and can be conferred without contravening the investment of the Commonwealth's judicial power in courts to which the Constitution , Ch III, applies. Consideration of the doctrine of the separation of judicial from executive and legislative powers. (3) The Migration Act , ss 54L and 54N, are valid and the powers of detention in custody they confer are an incident of executive powers of exclusion, admission or deportation of aliens and are not, of their nature, part of the judicial power of the Commonwealth. Per Brennan, Deane and Dawson JJ --- In the context of the power of a "designated person" to end his detention by invoking s 54P(1) of the Act, the time limitations imposed by other provisions of Pt 2, Div 4B suffice to preclude a conclusion that the powers of detention conferred on the Executive exceed what is reasonably capable as being seen as necessary for the purposes of deportation or for the making and consideration of an entry application. (4) (by majority) Section 54R is not valid, in that it manifestly exceeds Commonwealth legislative power in purporting to remove ultra vires acts of the Executive from the control of the High Court, and is inconsistent with the Constitution , Ch III. It cannot be read down to be brought within power.
Per Brennan, Deane and Dawson JJ --- In terms, the Migration Act , s 54R, is a direction by the Parliament to the courts as to the manner in which they are to exercise their jurisdiction. It is one thing for the Parliament, within the limits of the legislative power conferred upon it by the Constitution, to grant or withhold jurisdiction. It is a quite different thing for the Parliament to purport to direct the courts as to the manner and outcome of the exercise of their jurisdiction.
The provisions would have been invalid if applied to Australian citizens: Brennan, Deane and Dawson JJ formulated a broad constitutional principle that:
*the involuntary detention of a citizen in custody may only be ordered by a court, and in consequence of a finding of criminal responsibility.*
Exceptions where Court order is not required for detention:
*> arrest and detention in custody, pursuant to executive warrant, of a person accused of crime to ensure that he or she is available to be dealt with by the courts. This committal to custody is not seen by the law as punitive or as appertaining exclusively to judicial power.
*> mental illness
*> infectious disease
*> traditional powers of Parliament to punish for contempt and of military tribunals to punish for breach of military discipline
Otherwise, the citizens of this country enjoy, 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. This didn't help the plaintiffs in this case because:

* 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 variety of important respects, the most important being...the vulnerability of the alien to exclusion or deportation.

* The effect is to significantly diminish the protection which Chapter III of the Constitution provides, in the case of a citizen, against imprisonment otherwise than pursuant to judicial process.

1 6. Detention & Implication of Ch III

The power of the parliament includes authorising the Executive to detain an alien in custody to the extent necessary to make the deportation effective.
This authority is neither punitive nor part of the judicial power of the Commonwealth.
The legislative power is conferred on the executive by s 51(xix) of the Constitution, allowing to deport, and detain for the purpose of expulsion or deportation.
DETAINING SOMEONE PRIOR TO DEPORTATION = NON-PUNITIVE Protective Detention

In Chu Kheng Lim v Minister for Immigration (1992), Brennan, Deane and Dawson JJ saw 'involuntary detention of a citizen in custody by the State as penal or punitive in character', arising 'only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt', they noted a number of exceptions, including involuntary detention in cases of mental illness or infectious disease. In Kable v DPP (1996), where the uniquely targeted provisions of the Community Protection Act were contrasted with what might have been acceptable as "a system of preventative detention with appropriate safeguards, consequent upon or ancillary to the adjudication of guilt".
The combined effect of Lim and Kable suggests that the detention of a person against their will may be constitutionally permissible only when determined by a court, and only when the determination conforms to the traditional procedure and safeguards of the judicial process.

1. Under the Constitution , s 122, the Parliament may make laws "for the government of any territory", the Northern Territory being within the section's application.The Aboriginals Ordinance 1918 (NT), s 6(1), conferred on the Chief Protector a power "to undertake the care, custody, or control of any aboriginal or halfcaste" subject to his holding the opinion that it was "necessary or desirable in the interests of the aboriginal or half-caste for him to do so".

2. Section 67 conferred on the Administrator of the Territory a regulation-making power "for the effectual carrying out of this Ordinance".

3. Argued that the removals by the Chief Protector, as authorised under the
[Aboriginals Ordinance 1918 (NT)] had involved 'involuntary detention' of a kind that, according to Lim and Kable, could only be ordered by a court, and hence that they had entailed an exercise of Commonwealth judicial power otherwise than by a Chapter III court. The whole Court rejected the challenge.

* Plaintiff 's argument rejected on the grounds that the ostensible concern of the Ordinance with Aboriginal welfare precluded any finding that the forced removal and institutional confinement of Aboriginals was 'punitive'.
Thus, any finding that it fell within the constitutionally sensitive category of 'involuntary detention' which requires the decision of a [Ch III] court was also precluded.

Kruger v Commonwealth (Stolen Generations) (1997) 190 CLR 1 Whether Ch III has application in the Territories?
s 122, conferred unrestricted legislative power, and thus the challenge to the validity of the Ordinance failed Whether the Ordinance is punitive in nature?
Toohey J

* In Lim, Brennan, Deane and Dawson JJ spoke of

* the general proposition that the power to order that a citizen be involuntarily confined in custody is, under the doctrine of the separation of powers enshrined in our Constitution, part of the judicial power of the Commonwealth entrusted exclusively to Ch III courts.
The point is that there are qualifications to the general proposition such that it cannot be said in absolute terms that the power to detain in custody is necessarily an incident of judicial power.

* Judged by current standards, the involuntary detention of an Aboriginal pursuant to such a provision as s 16 of the Ordinance could hardly be brought within any of the recognised exceptions to the general proposition. Conscious of this, the Commonwealth submitted that the welfare and protection object of the legislation must be judged by the values and standards prevailing at the time.
The powers conferred by the Ordinance are not of themselves punitive and necessarily involve the exercise of judicial power. Gummow J Reasonably capable of being seen as necessary for a legitimate non-punitive purpose (the welfare and protection of those persons) rather than the attainment of any punitive objective. These people are northern territory, Cha 3 operates to federal level, does not apply to territorial level. Immigration Detention

The amendments to the Migration Act now has been effectively changed to refine the situations in the following case. For example, detention that is indefinite is not acceptable, children will not be detained in an immigration detention centre.

2 1. The appellant was a stateless unlawful non-citizen.

2. Being an unlawful non-citizen, he was detained upon arrival in Australia as mandated by the Migration Act 1958 (Cth) (the Act), s 189.

3. He exhausted all judicial avenues for obtaining a protection visa.

4. Eventually, because of a request he made to be removed from Australia, s 198(1) of the Act required his removal 'as soon as reasonably practicable'.

5. Attempts to gain international cooperation and the removal of the appellant were unsuccessful.

6. Because of the requirement in s 196 of the Act that he be detained 'until' removed, his detention was continued.

7. The appellant applied to the Federal Court of Australia for a declaration that he was being unlawfully detained. A single judge dismissed the application but declared that there was no real prospect of removal in the foreseeable future. The High Court had to determine, amongst other issues, whether the Migration Act , ss 189, 196 and 198, when properly construed, authorised the indefinite detention of an unlawful non-citizen in circumstances where there is no real prospect of removing the noncitizen. Held

* The Act was within Commonwealth legislative power and hence valid.

* As a matter of statutory construction, the Migration Act authorises detention even if a detainee has no prospect of being removed from Australia in the reasonably foreseeable future.

1. The appellant was charged with escaping from immigration detention contrary to the Migration Act 1958 (Cth), s 197A.

2. s 197A provides "a detainee must not escape from immigration detention. Penalty: Imprisonment for 5 years".

3. In his defence, Behrooz sought to argue that "if the conditions of detention were so obviously harsh as to render them punitive, then the detention went beyond that which was authorised by the Act".

4. On this basis, the appellant argued that he was not in 'immigration detention' for the purposes of the Migration Act and therefore did escape within the meaning of s 197A. The HC (Majority, Kirby dissenting) held that , while inhumane conditions may attract the criminal law and entitle a person to remedies in tort, they do not affect the legality of the immigration detention.

1. The applicant children (aged 15, 13, 11 and 7) were detained pursuant to the Migration Act 1958 (Cth), ss 189 and

196. 2. Argued that the regime of mandatory detention set out in the Migration Act did not apply to children.

* The Court held it was impossible to construe the phrase 'non-citizens' in ss 189 and 196 as applying only to persons over the age of 18 years.The Act therefore authorised the detention of children.

* And further, Sections 189 and 196, so far as they authorised and required the detention of the applicants in immigration detention, did not prescribe an impermissible exercise of judicial power by the Executive.The provisions were therefore valid.

6. Detention & Implication of Ch III

Al-Kateb v Godwin (2004) 219 CLR 562 Whether the act is valid?
A law requiring the detention of the alien takes its character from the purpose of the detention.
As 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.
The Parliament is entitled, in accordance with the power conferred by s 51(xix) and without infringing Ch III of the Constitution, to take such steps as are likely to ensure that unlawful non-citizen do not enter Australia or become part of the Australian community and that they are available for deportation when that becomes practicable.

Whether the indefinite detention is reasonable when a detainee has no prospect of being removed from Australia in the near future?
As a matter of statutory construction, the Migration Act authorises detention even if a detainee has no prospect of being removed from Australia in the reasonably foreseeable future.

* The statutory language is clear and unambiguous. It requires the detention of aliens until such time as they are granted a visa or removed from Australia. There is certainly no basis for an implication to the effect that the ability to detain aliens in accordance with the Migration Act is limited to detention for a 'reasonable' period. Nor is a presumption, assuming it should be made, against legislation that is contrary to an international obligation, sufficient to displace the clear and unambiguous words of Parliament. It is a matter for the Australian Parliament to determine the basis on which illegal entrants are to be detained. So long as the purpose of detention has not been abandoned, a statutory purpose it may be observed that is clearly within a constitutional head of power, it is the obligation of the courts to ensure that any detention for that purpose is neither obstructed nor frustrated Difference between Chu Keng Lim & Al-Kateb: The Al-Kateb is stateless --> physically impossible to be sent to home. Whether it is reasonable to keep him indefinite detention? --> The majority did not answer this question. Query the purpose of the detention. --> As long as the purpose is not punitive, the executive can validly perform the detention. Unrelated to short or long period. Dissenting: Cannot presume the parliament intend to impute this disaster to a person unless expressly speaks that. Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs (2004) 219 CLR 486
There is no warrant for concluding that, if the conditions of detention are sufficiently harsh, there will come a point where the detention itself can be regarded as punitive, and an invalid exercise of judicial power.

* For an alien, the detention is an incident of the exclusion and deportation to which he is vulnerable.
However, an alien does not stand outside the protection of the civil and criminal law.

* An assault in a detention centre may give rise to criminal or tortious liability, however it does not change the nature of the detention, which is still not for a punitive purpose.
Whether or not the conditions were punitive was irrelevant and did not assist the appellant's argument that his detention was constitutionally invalid Don't deny we escaped, but we challenge the valid of the detention, because it is punitive. Court: Purpose is for deportation, even if the conditions are so harsh against the people organising the detention, that will not affect the detention. Woolley confirms that the power to exclude unlawful aliens extends to keeping them separate from the community while their visa applications are being investigated, and that this constitutes non-punitive, administrative detention. However, this may not extend to detention of citizens. Re Woolley; Ex parte Applicants M276/2003 (2004) 225 CLR 1 3

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