Introduction

The case touched on the detention of the illegal aliens. The issue has raised a lot of controversies
among Australians and the general public. The case challenged whether it was legally right for the
Commonwealth to administratively detain aliens indefinitely as provided in the Migration Act. The high
court was therefore out to determine whether a person with no state who had no foreseeable chance of
removal could be indefinitely held in detention1.

Facts of the case

The case involved Ahmed Ali Al-Kateb who was born in Kuwait despite being a citizen of Palestine. A
better part of Ahmeds life was lived in Kuwait apart from a very short period of time when he resided in
Jordan. He was not entitled to apply for citizenship in Kuwait since the country does not extend the right
of citizenship or permanent residency to Palestinian Citizens1.

In mid- December 2000, Al-Kateb arrived in Australia without a passport or even an Australian Visa by a
vessel. He applied for a protection Visa upon his arrival in Australia. The department of Immigration and
the department of Multicultural and Indigenous affairs rejected his visa application. He appealed the
decision to a tribunal that was in charge of reviewing refugee status and the tribunal upheld the ruling
that had been passed by the immigration department. His appeal to the federal court bore no fruit as
the federal court dismissed the appeal2.

His plea to be removed from Australia proved very difficult since he his status which made him a
stateless person made it impossible for Australia to make arrangements with other countries to accept
him. He sought a writ of mandamus from the Federal Court which required Australia to comply with
s198 of the Migration Act3. His application was dismissed by the immigration minister. Al-Kateb then
sought a prerogative relief against the immigration minister and the Multicultural and Indigenous
Affairs. His prerogative was based on unlawful detention. His prerogative was dismissed. His appeal
against the high court was removed to the high court in line with s40 of the Judiciary Act 1903 following
the request of the Attorney General of the Commonwealth4.

Issues

The high courts main consideration was whether a person with no prospect of removal could be kept in
mandatory detention for an indefinite period of time. The court reviewed sections 189, 196 and 198 of
the Migration Act to determine if they could be interpreted to allow unlawful noncitizens to be detained
indefinitely. The court also examined whether there was a contravention of Chapter 3 of the
Constitution which talks about Judicial power by allowing for indefinite detention without a judicial
order5.

1
LLC Books, High Court Of Australia Cases: Mabo V Queensland, Wik Peoples V Queensland, Al-Kateb V Godwin,
Dietrich V The Queen (Baker & Taylor, 2010).
2
Michael Head and Scott Mann, Law In Perspective (UNSW Press, 2009).
3
Lisa Loechel, Detention of the Stateless (2004).
4
Leslie Zines, the High Court and the Constitution (The Federation Press, 2011).
5
Al- kateb v Godwin(2004) 208 ALR.
Decision

The courts decision was given by a 4-3 majority. The decision reached reflected the divisive nature of
the issue. The decision made was pegged on the premise that the Migration Act allowed for indefinite
detention and that there was no infringement to chapter 3 of the Constitution6. The majority decision
was made on very strict legal grounds. The decision reached by the minority was however made on
purposive grounds.

Majority

The major issue in the case was whether the migration act gave provisions that would allow the
indefinite detention of Mr. Al-Kateb. Section 196 of the Migration Act holds that an unlawful non-
Australian citizen who is detained in Australia under section 189 must be detained until they are either
deported, given a visa or removed from Australia7. Section 198 of the Migration Act, however, holds that
Commonwealth officers must remove an unlawful noncitizen who asks the minister in writing to be
removed as soon as is practically possible. The majority judges interpreted the sections and held the
view that it was valid to detain unlawful noncitizens. In explaining the views held by the majority Judges,
McHugh J explained that there was no any form of ambiguity in section 196 and 198 as they both
required Mr. Al-Kateb to be detained indefinitely. The ruling was based on the fact that there was no
country in the foreseeable future which would grant him entry.

It was determined that it was an important principle of the law not allow legislations to interfere with
the rights of the common law unless there is an express intent to do so in the legislation. Common law
holds that its the fundamental right of a person not to be held against their will. Callinan J maintained
that the test as to whether the sections still applied was based on whether the minister intended to
remove the Unlawful noncitizen out of the country. A decision was reached that it was not within the
prerogative of the court to determine if the person could be removed given that removal of the unlawful
noncitizen had been rendered unachievable. The executive was therefore granted the right to detain the
unlawful noncitizen indefinitely until it could be demonstrated that the noncitizen could be released
from Australia.

The second major issue in the case was a question of whether chapter 3 gave the executive the power
for indefinite detention. The executive would be in breach of their constitutional powers if chapter 3
were to be followed. The majority relied on the precedent that was set in Chu Kheng Lim in answering
the question. In the case, the executive was given the authority to detain an unlawful noncitizen for
detention purposes or for the purposes of expulsion8. The ruling, therefore, demonstrated that the
executive had the power to detain under the Constitution. However, the power does not reconcile with
the limitations under chapter 3 of the Constitution. The majority decided to demonstrate whether the
detention of the unlawful noncitizens was punitive in nature in order to demonstrate the need for
indefinite detention. The executive would only be in breach of chapter 3 of the Constitution if it could be
proved that their action was punitive. It was determined that migration department is not punitive in

6
Andrew Lynch, Great Australian Dissents (Cambridge University Press, 2016).
7
Migration Act 1958 (Cth) s196.
8
Lim (1992) 176 CLR.
nature since it does not result from an offense committed by an individual. It was determined that the
administrative nature of the immigration detention did not make it punitive. The judge argued that since
the purpose of the detention was to hold the un-lawful noncitizen pending deportation or prevent them
from getting into Australia or the community in Australia, it could not be considered to be punitive in
nature9. One of the judges; McHugh also maintained that it was not within the prerogatives of the
courts exercising federal jurisdiction to determine whether the unlawful noncitizens were to be
detained under the aliens power of the Constitution. His reasoning was based on the fact that it was
not up to the courts to determine the justness of the actions of the executive or how they contravene
the basic human rights10.

Minority

The minority held that the sections 196 and 1989 were ambiguous. The sections were examined by
Gleeson CJ who then made a decision that the circumstances of the stateless persons who could not be
deported were not contemplated in the Migrations Act. The minority begged for a beneficial
interpretation since there was no clarity on what would happen in cases where a person could not be
deported11. It was in line with the principle that Parliament was not in a position to infringe fundamental
civil liberties unless it was possible to infer an express intention. Gummow J held that detention under
section 196 and 198 was only meant to facilitate deportation. Once it was declared that it was not
possible to deport the unlawful noncitizen it was wrong to rely on the sections to continue detaining the
unlawful noncitizen12.

Gummow and Kirby JJ all decided that chapter 3 of the constitution was infringed following the
indefinite detention of the unlawful noncitizen. The judges contended that there was a thin line
between what could be considered punitive and what could not be considered punitive. The minority
agreed with the findings from Lim that the executive did not have the power to detain unlawful
noncitizens as under the Constitution. They, however, maintained that the executive had no right to
indefinitely detain a person unless the judiciary had adjudicated an offense. The indefinite
administrative detention by the executive would be in breach of the constitutional separation of powers
as long as the detention was not for meant to facilitate removal. Once its proven that there is no any
form of adjudication by the judiciary or there is no purpose for removal the executive would be deemed
to have breached chapter 3 of the Constitution. The minority disagreed with the majority that the
detention of the unlawful noncitizens was not punitive in nature8.

Summary Judgement

It was held that the provisions of the migration Act allow an unlawful noncitizen to be indefinitely
detained. The prolonged detention was found not have infringed the provisions of chapter 3 of the
Constitution13. Mc Hugh held that international law could not be used to interpret the Constitution. Al-
Kateb was therefore condemned to remain in detention until a nation that would take him would be

9
Al- kateb v Godwin (2004) 208 ALR.
10
Migration Act 1958 (Cth) s196.
11
Michael Head and Scott Mann, Law In Perspective (UNSW Press, 2009).
12
Anne T Gallagher and Fiona David, the International Law of Migrant Smuggling (Cambridge University Press,
2009. 2014).
13
Francois Crepeau, Forced Migration and Global Processes (Lexington Books, 2006).
found. The minister for immigration and Multicultural and indigenous affairs decided to grant Mr. Al-
Kateb a bridging Visa at her own discretion14.

The minority reasoning was more appropriate. This is because section 196 and 19815 of the Migration
Act existed for a very clear purpose of facilitating deportation. There was, therefore, a great error by the
majority when they stated that the sections were unambiguous. The minority were therefore right in
calling for a more beneficial interpretation of the sections. This was justified since the Migration Act did
not contemplate that there would be stateless people who would not be able to be deported. To,
therefore, give sanity to the entire ordeal, it was only necessary that a beneficial interpretations of the
sections be made. The decision that was reached that the immigration detention was not punitive was
purely based on the means rather than the ends of the immigration detention. Despite the fact that Al-
Kateb did not commit an offense he was detained for breaching a legal rule under the provisions of the
Migration Act. This, therefore, makes it clear that there are elements of punishment in the immigration
centers which would be in breach of chapter 3 of the Constitution.

Significance of the case

The case set a precedent for the Federal and High Court decisions. For instance, in the case of Re
Woolley16, the majority judgment of Al-Kateb was upheld. The case, therefore, provided a platform
upon which similar decisions would be made in future without the need to make a lot of constitutional
interpretation.

Political or social significance

The majority decision was mainly political in nature. The judges were not empathetic with Al-Kateb. The
case sparked a lot of controversies and rebellion that have threatened a review of the Migration Act.
However, the decision to allow for indefinite detention under the Migration Act has not changed. The
decisions made by the majority, therefore, give the executive the power to detain unlawful noncitizens
indefinitely.

The decision is still valid law in giving the executive the power to detain unlawful noncitizens
indefinitely. However, the decision is still under a lot of contention and should not be taken as settled
law. There were a lot of flaws in the reasoning that was held by the majority. The migration Acts
provision are not unequivocal in giving the right to detain people indefinitely.

There are contentions that the decision has not resolved the contention of whether the executive has
the power to detain unlawful noncitizens indefinitely. The flawed decision given by the majority and the
questionable political climate gives clear indication that the decision should be exercised with a lot of
caution. A ruling that was made in 2013 seemed to clearly contrast the ruling made in the case of Al
Kateb thereby setting limits to indefinitely detain asylum seekers17.

14
Al- kateb v Godwin (2004) 208 ALR.
15
Migration Act 1958 (Cth) s196.
16
Re Wooley (2004) 225 CLR.
17
Joyce Chia, High Court Verdict Spells the End for Australian Immigration Detention as We Know It | Joyce
Chia (2013) the Guardian <https://www.theguardian.com/commentisfree/2014/sep/11/high-court-verdict-spells-
the-end-for-australian-immigration-detention-as-we-know-it>.
Bibliography

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Godwin, Dietrich V The Queen (Baker & Taylor, 2010)

Head, Michael and Scott Mann, Law in Perspective (UNSW Press, 2009)

Zines, Leslie, The High Court And The Constitution (The Federation Press, 2011)

Al- Kateb v Godwin (2004) 208 ALR

Migration Act 1958 (Cth) s196.

Migration Act 1958 (Cth) s198.

Lim (1992) 176 CLR

Re Wooley (2004) 225 CLR

Chia, Joyce, High Court Verdict Spells the End for Australian Immigration Detention as We Know It |
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verdict-spells-the-end-for-australian-immigration-detention-as-we-know-it

Loechel, Lisa, Detention of the Stateless (2004)

Lynch, Andrew, Great Australian Dissents (Cambridge University Press, 2016)

Head, Michael and Scott Mann, Law in Perspective (UNSW Press, 2009)

Crepeau, Francois, Forced Migration and Global Processes (Lexington Books, 2006)

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