AustLII Home | Databases | WorldLII | Search | Feedback

University of Western Sydney Law Review

UWS Law Review (UWSLR)
You are here:  AustLII >> Databases >> University of Western Sydney Law Review >> 2004 >> [2004] UWSLawRw 7

Database Search | Name Search | Recent Articles | Noteup | LawCite | Help

Head, Michael --- "High Court Sanctions Indefinite Detention Of Asylum Seekers" [2004] UWSLawRw 7; (2004) 8(1) University of Western Sydney Law Review 154

Case Commentary


Michael Head[*]

Al-Kateb v Godwin [2004] HCA 37 (6 August 2004)

Minister for Immigration and Multicultural and Indigenous Afairs 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)


In three sets of judgments handed down simultaneously in August 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[1] and Al Khafaji[2] , 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[3] , 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 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.[4] 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.[5]

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. Members of the minority in Al-Kateb and Al Khafaji warned that the logic of the decision could be extended to other federal powers, not just immigration. Kirby J said the majority view had ‘grave implications for the liberty of the individual in this country which this court should not endorse’.[6] Gummow J noted that the government could potentially now lock up bankrupts, for example, supposedly to protect society.[7]

The three cases

Ahmed Ali Al-Kateb, a stateless Palestinian, arrived in Australia without valid papers in December 2000. He sought asylum because he suffered persecution in Kuwait, where he had lived most of his life. Long term residency or birth in Kuwait did not create a right of citizenship or permanent residence there. His application for a protection visa was rejected and, having exhausted his rights of appeal, he applied to be removed from Australia in August 2002. However, neither Kuwait nor Israel would allow him to enter (he sought to be removed to Gaza, but Israel refused this request). As a result, he had been incarcerated for four years by the time the High Court heard his case.

Al-Kateb challenged the legality of his continued detention, seeking a writ of habeas corpus. He argued that, as he could not be removed to another country, his incarceration had become punitive and was therefore beyond the scope and purpose of the Migration Act 1958 (Cth), which requires, by ss 189 and 196, that all refugee applicants be detained until they are either granted a visa or deported. In addition, he argued that his detention was unconstitutional, as a usurpation of judicial power, because only courts could order punitive imprisonment.

Similar arguments were mounted by Abbas Mohammad Hasan Al Khafaji, an Iraqi who was recognised as a refugee fleeing persecution in Iraq, but refused a protection visa on the ground that he had a right to reside in Syria, where he once lived. However, that supposed right proved to be a chimera for Al Khafaji, because Syria refused to admit him, leaving him in a legal limbo.

Mahran Behrooz, an Iranian refugee, had been detained at the Woomera Detention Centre in the South Australian desert for nearly two years when he escaped, along with two others. After he was captured, he was charged with escaping from immigration detention, a criminal offence carrying a maximum sentence of five years. Behrooz justified his actions on the basis that the conditions of his incarceration were so gross, harsh and inhumane that they were an illegal form of imprisonment, under the Constitution and international law. In his trial, the government blocked the admission of evidence regarding conditions at Woomera, insisting it was irrelevant.

Nevertheless, the evidence placed on the record included a report by Professor Richard Harding, Inspector of Custodial Services in Western Australia, condemning the detention centres as an ‘absolute disgrace’. Harding’s report said the centres were ‘in the middle of no-where’ involving ‘gross overcrowding, broken toilets, unprivate conditions, lack of medical and dental facilities’. He described Curtin Detention Centre as ‘almost intolerable’, adding that, ‘such evidence as exists indicates things are little better at the other centres’.[8] Advice had been given to the immigration minister to close Woomera ‘to help avert a human tragedy of unknowable proportions’. A psychiatric nurse stated in a report ‘that the detainees felt that they were treated like animals, medication was fed through wire mesh to detainees and there was a pervasive belief that suicide was the only way out’.[9]

With only Kirby J dissenting, the High Court ruled 6-1 that the harshness of conditions was irrelevant to the validity of the detention, and therefore provided no defence. Kirby J held that the circumstances of the appellant’s detention could be a form of punishment not sanctioned by a court of law and therefore unconstitutional. He also considered that his detention could be in breach of international law. If his detention was unlawful, the appellant had a defence available to him in answer to the criminal charge of escaping. In rejecting this proposition, Gummow, McHugh and Heydon JJ cited with approval an opinion by Scalia J in Wilson v Seiter[10] in which the US Supreme Court overturned earlier decisions that a prison inmate was constitutionally entitled to medical treatment.

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. 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.[11] 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.[12]

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[13] , 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.[14]

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.’[15] By upholding the system of mandatory immigration detention initiated by the Labor government, the High Court in Lim, in effect, declined to extend that constitutional immunity to non-citizens. Nevertheless, Lim provided ample authority for the statement made by Kirby J in his dissenting judgment in Al-Kateb that: ‘Indefinite detention at the will of the Executive, and according to its opinion actions and judgments, is alien to Australia’s constitutional arrangements.’[16]

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]

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[18] 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, Gummow J summarised this aspect of the decision in Lim as follows:

A majority of the court in Lim accepted the proposition that the power of the Parliament to authorise, and that of the Executive to implement, the detention of aliens is limited by reference to the purpose of that detention. In their joint judgment, Brennan, Deane and Dawson JJ held that laws authorising the administrative detention of aliens will only be valid ‘if the detention which they require and authorize is limited to what is reasonably capable of being seen as necessary for the purposes of deportation or necessary to enable an application for an entry permit to be made and considered.’[19]

However, the majority, and in particular McHugh and Callinan JJ, 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 top 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.[20]

On this view, the aliens power has no, 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.

McHugh J concluded: ‘Under the aliens power, the Parliament is entitled to protect the nation against unwanted entrants by detaining them in custody.’[21] Although McHugh J conceded that the outcome of the particular case was ‘tragic’, his judgment was more akin to a political speech in favour of indefinite detention in general, drawing pointed analogies between the detention of ‘aliens’, prisoners-of-war and people considered to be a threat to national security during war time, and using language such as ‘protection of the community from undeserved infiltration’.[22] In a similarly political tone, 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 (with whom Heydon J agreed) bluntly observed that immigration detention could easily be equated with punishment because detention centres had ‘many, if not all, of the physical features and administrative arrangements commonly found in prisons’.[24] Hayne J attempted to distinguish immigration detention from punishment by drawing on Hart’s definition of punishment, which suggests that it must be imposed for an offence against legal rules.[25] Hayne J concluded that as immigration detention was not imposed for an offence, it was not truly punitive. This line of reasoning is entirely circular, given that the scheme of administrative detention embodied in the Migration Act is designed to make it unnecessary for the immigration authorities to bring alleged ‘unlawful non-citizens’ before a court and prove that they have committed an offence.

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.[26]

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[27] , 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[28] , 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.[29] 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.’[30] 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.[31]

In Al-Kateb and Al Khafaji the government and the Department of Immigration simply asserted that the purpose of the 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.[32]

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 his dissenting judgment, Gleeson CJ explained the foundation of the legal principle as follows:

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 or freedoms in question and has consciously decided upon abrogation or curtailment.
In 1908, in this court O’Connor J ... stated ... ‘It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness.’ A statement concerning the improbability that Parliament would abrogate fundamental rights by the use of general or ambiguous words is not a factual prediction, capable of being verified or falsified by a survey of public opinion. In a free society, under the rule of law, it is an expression of a legal value, respected by the courts, and acknowledged by the courts to be respected by Parliament.[33]

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.[34]

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:

The Australian Constitution was understood and applied in 1945 in a completely different international context from that prevailing today.... Whatever may have been possible in the world on 1945, the 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.[35]

It is not possible to deal at length with those questions in this case note, but it must be noted that the majority rejected the approach taken by Kirby J. Indeed, McHugh J devoted a large portion of his judgment to stridently criticising Kirby J’s reasoning. McHugh J not only denounced 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’.[36]


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.[37] 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.

While couched in purely legal terms, the rulings objectively represent the judiciary’s imprimatur for the re-alignment of legal and political power sought by the Howard government, which has already exploited the ‘war on terror’ to introduce unprecedented measures of a police-state character. These include detention 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.[38] Nothing in the judgments in Al-Kateb would stand in the way of the establishment of Guantanamo Bay-style prison camps in Australia.

The plight of stateless detainees also throws into sharp relief the fundamental contradiction between national-based legal systems and the global transformation of social and economic life. The cases reveal the increasingly intolerable barrier to human freedom—including the basic democratic right to live and work wherever one chooses — represented by the continued existence of the nation-state system.[39]

[*] Dr Michael Head teaches law at the University of Western Sydney and is a member of the Australian editorial board of the World Socialist Web Site. Comments are welcome via

[1] Al-Kateb v Godwin [2004] HCA 37 (6 August 2004).

[2] Minister for Immigration and Multicultural and Indigenous Afairs v Al Khafaji [2004] HCA 38 (6 August 2004).

[3] Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous [2004] HCA 36 (6 August 2004).

[4] 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).

[5] In Minister for Immigration and Multicultural Afairs and Indigenous Afairs v Al Masri [2003] FCAFC 70; (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.

[6] [2004] HCA 37 at [148].

[7] Ibid at [133].

[8] Per Kirby J, [2004] HCA 36 at [96].

[9] Ibid at [97].

[10] [1991] USSC 104; 501 U.S. 294 (1991).

[11] Rasul v Bush; Al Odah v United States (2004) 542 U.S. (Cases no. 03-343, 03-334)

[12] Quoting Jackson J in Shaughnessy v. United States ex rel. Mezei, [1953] USSC 38; 345 U.S. 206, 218—219 (1953) (dissenting opinion).

[13] (1992) 176 CLR 1.

[14] Ibid at 27.

[15] Ibid at 28-29.

[16] [2004] HCA 37 at [146].

[17] Ibid at [133].

[18] [1949] HCA 65; (1949) 80 CLR 533.

[19] [2004] HCA 37 at [128].

[20] Ibid at [41].

[21] Ibid at [74].

[22] Ibid at [47], [55-61]. The phrase is from a White Australia-era case, O’Keefe v Calwell [1949] HCA 6; (1949) 77 CLR 261 at 278.

[23] Ibid at [289].

[24] Ibid at [264].

[25] HLA Hart, Punishment and Responsibility (1968) p. 5.

[26] [2004] HCA 37 at [260].

[27] M. Head, ‘Refugees, Global Inequality and the Need for a New Concept of Global Citizenship’ [2002] Australian International Law Journal 57.

[28] 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.

[29] Communist Party Dissolution Act 1950 (Cth) Preamble.

[30] [2004] HCA 37 at [155].

[31] Ibid at [140].

[32] Liversidge v Anderson [1941] UKHL 1; [1942] AC 206 at 245.

[33] [2004] HCA 37 at [19-20].

[34] Ibid at [21].

[35] Ibid at [174-175].

[36] Ibid at [63].

[37] F. Kafka, The Trial, New York, Alfred A. Knopf, 1957.

[38] M. Head, ‘Another threat to democratic rights: ASIO detentions cloaked in secrecy’ (2004) 29 AltLJ 127.

[39] M. Head, ‘Refugees, Global Inequality and the Need for a New Concept of Global Citizenship’ [2002] Australian International Law Journal 57.

AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback