114-415: (4:1) The detention of non-citizens by the Executive pursuant to ss 189, 196 and 198 did not contravene Ch III of the Commonwealth Constitution, even if the removal of the non-citizen from Australia was not reasonably practicable in the foreseeable future. (per McHugh, Hayne, Callinan and Heydon JJ) Al-Kateb v Godwin , was a decision of the High Court of Australia , which ruled on 6 August 2004 that
228-536: A separation of powers . The original formulation of Griffith, Barton and Kingston provided only that the parliament could establish a court. The draft was later amended at various conventions. In Adelaide the court's proposed name was changed to be the "High Court of Australia". Many people opposed the idea of the new court completely replacing the Privy Council. Commercial interests, particularly subsidiaries of British companies preferred to operate under
342-566: A Full Court of the Federal Court found that a person in a very similar situation to Al-Kateb was entitled to be released. The respondents focused on the case in which this system of exceptions was first articulated, Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs . The concept of detention as an exclusively judicial function was clearly articulated by only three judges out of seven, Brennan , Deane and Dawson , and although in later cases that central concept
456-716: A big detention. And we are all the time worried that they will send us back to detention again... It's like a death punishment." He was granted a permanent visa in October 2007 by immigration minister Kevin Andrews . In a 2005 speech to the Law Society of the University of Sydney , Justice McHugh reiterated his view of the case as a tragic situation and said that it was necessary for "the informed and impassioned" to seek reforms to legislation to protect individual rights since
570-657: A certificate of appeal would be granted by the High Court. In 1986, with the passing of the Australia Act by both the UK Parliament and the Commonwealth Parliament (with the request and consent of the states), appeals to the Privy Council from state supreme courts were closed off, leaving the High Court as the only avenue of appeal. In 2002, Chief Justice Murray Gleeson said that
684-615: A dedicated courtroom was built in Little Bourke Street , next to the Supreme Court of Victoria . That space provided the court's Melbourne sitting place and housed the court's principal registry until 1980. The court also sat regularly in Sydney, sharing space in the criminal courts of Darlinghurst Courthouse , before a dedicated courtroom was constructed next door in 1923. The court travelled to other cities across
798-426: A half years over four non-consecutive terms; this included six years during his own prime ministership. Historically, the attorney-generalship was seen as a stepping stone to higher office – Alfred Deakin , Billy Hughes, and Robert Menzies all became prime minister, while John Latham , H. V. Evatt , and Billy Snedden were leaders of the opposition . Lionel Bowen was deputy prime minister under Bob Hawke in
912-549: A notable controversy when the Constitution was drafted. Section 74 of the Constitution as it was put to voters, stated that there would be no appeals to the privy council in any matter involving the interpretation of the Constitution or state constitutions. The section as enacted by the Imperial Parliament was different. It only prohibited appeals on constitutional disputes regarding the respective powers of
1026-642: A pact Japan had entered with the Axis powers prior to his arrival in Tokyo . Owen Dixon was also absent for several years of his appointment, while serving as Australia's minister to the United States in Washington . Sir George Rich acted as chief justice during Latham's absence. From 1952, with the appointment of Sir Owen Dixon as chief justice, the court entered a period of stability. After World War II,
1140-399: A particular case where it is not now, and has not been, reasonably practicable to effect removal, is that there is now no country which will receive a particular non-citizen whom Australia seeks to remove, and it cannot now be predicted when that will happen. He said that because the removal or deportation of people always involves some degree of uncertainty, then the interpretation of
1254-487: A question of law is raised which is of public importance, involves a conflict between courts or "is in the interests of the administration of justice". Special leave hearings are typically presided over by a panel of two or three justices of the High Court. Parties are typically limited to an oral submission of 20 minutes, in addition to any written submissions. Appeals to the United Kingdom's Privy Council were
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#17328019114511368-583: A range of other subjects. They are responsible for the Australian Law Reform Commission and the Australian Commission for Law Enforcement Integrity . Functions of the state and federal attorneys-general include the administration of the selection of persons for nomination to judicial posts and the authorizing of prosecutions. In normal circumstances, the prosecutorial powers of the attorney-general are exercised by
1482-553: A reaction in London which prevented any serious attempt to implement the bill through the British Imperial Parliament . Another draft bill was proposed in 1880 for the establishment of an Australasian court of appeal. The proposed court would consist of one judge from each of the colonial supreme courts, who would serve one-year terms. However, the proposed court allowed for appeals to the Privy Council, which
1596-402: A situation such as Al-Kateb's, where it became impossible to fulfil the purpose for which he was detained, the law was not clear as to whether the result is that the detention should be suspended until the purpose becomes possible again, or that the detention should continue indefinitely. The Act did not deal with a situation like Al-Kateb's. Gleeson said: In making that choice I am influenced by
1710-604: A sticking point however; with objections made by Secretary of State for the Colonies , Joseph Chamberlain , the Chief Justice of South Australia, Sir Samuel Way , and Samuel Griffith , among others. In October 1899, Griffith made representations to Chamberlain soliciting suggestions from British ministers for alterations to the draft, and offered alterations of his own. Indeed, such was the effect of these and other representations that Chamberlain called for delegates from
1824-418: A system in which all people were prevented from entering Australia without permission at all. Justice McHugh also emphasised that immigration detention was not punitive, saying: 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
1938-652: A unanimous judgment rejecting the authority of the House of Lords decision in DPP v Smith , writing, "I shall not depart from the law on this matter as we have long since laid it down in this Court and I think that Smith's case should not be used in Australia as authority at all." The Privy Council overturned this by enforcing the UK precedent upon the High Court the following year. Thirteen High Court judges have heard cases as part of
2052-408: A visa had been rejected, be removed from the country "as soon as reasonably practicable". However, those applications were dismissed. Al-Kateb then sought writs of habeas corpus and mandamus on the basis that he was being unlawfully detained, and although the judge found that "removal from Australia is not reasonably practicable at the present time as there is no real likelihood or prospect of removal in
2166-556: A visa was rejected, he was classified as an unlawful non-citizen. Section 196 of the Migration Act provides that unlawful non-citizens can only be released from immigration detention if they are granted a visa, deported, or removed from Australia. Section 198(6) of the Act requires immigration officials to "remove [from Australia] as soon as reasonably practicable an unlawful non-citizen". One possible interpretation of these provisions
2280-438: Is also valid. In this situation, the court had decided in previous cases that immigration detention, for the purposes of processing and removal, did not infringe on Chapter III. Al-Kateb argued that if indeed the provisions of the Migration Act extended as far as to allow the indefinite detention of people like him, then it would have gone beyond those valid purposes and would infringe Chapter III. That is, non-judicial detention
2394-411: Is apt to mislead", and emphasised the purpose of detention as the fundamental criterion by which non-judicial detention was allowed in previous cases. He said that "it 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." In addition to the substantive issues in the case, there
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#17328019114512508-501: Is determined by sections 75 and 76 of Australia's Constitution. Section 75 confers original jurisdiction in all matters: Section 76 provides that Parliament may confer original jurisdiction in relation to matters: Constitutional matters, referred to in section 76(i), were conferred on the High Court by section 30 of the Judiciary Act 1903 . Whilst it may seem that the inclusion of constitutional matters in section 76 means that
2622-428: Is divided in its exercise between constitutional and federal cases which loom so largely in the public eye, and the great body of litigation between man and man, or even man and government, which has nothing to do with the Constitution, and which is the principal preoccupation of the court The broad jurisdiction of the High Court means that it has an important role in Australia's legal system. Its original jurisdiction
2736-462: Is empowered by section 73 of the Constitution to hear appeals from the supreme courts of the states and territories; as well as any court exercising federal jurisdiction. It may also hear appeals of decisions made in an exercise of its own original jurisdiction. The High Court's appellate jurisdiction is limited by the Judiciary Act , which requires special leave to be granted before the hearing of an appeal. Special leave may only be granted where
2850-467: Is perceived to be a significant risk that prosecutions of a political nature may be embarked upon. The attorney-general also generally has the power to issue certificates legally conclusive of certain facts (e.g., that the revelation of certain matters in court proceedings might constitute a risk to national security); the facts stated in such certificates must be accepted by the courts and cannot legally be disputed by any parties. The attorney-general also has
2964-447: Is permitted for the purposes of facilitating the removal of unlawful non-citizens, and if the prospects of removal are remote or impracticable for the reasonably foreseeable future, then the detention can no longer be considered to be for the purpose of removal. Al-Kateb's argument in this respect relied on a decision of the Federal Court in another case, Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri , in which
3078-481: Is that unlawful non-citizens should be kept in detention for as long as necessary to remove them, and that if removing them never became practicable, that they would be detained until death. In contrast, Al-Kateb argued that the provisions only allowed unlawful non-citizens to be detained while removal was a practical possibility, and that if removal was not a practical possibility, then they should be released from detention, at least while it remained impractical. Much of
3192-571: The Constitution Alteration (Retirement of Judges) 1977 , which upon its commencement on 29 July 1977 amended section 72 of the Constitution so as require that all justices appointed from then on must retire on attaining the age of 70 years. Attorney-General of Australia The attorney-general of Australia ( AG ), also known as the Commonwealth attorney-general , is the minister of state and chief law officer of
3306-801: The Australian Border Force , and the Australian Security Intelligence Organisation. This meant the transfer of ASIO away from the Attorney-General's Department , although the Attorney-General would remain responsible for approving ASIO warrants. This move was somewhat criticised, with John Blaxland from the Australian National University warning against tampering with a system that was "arguably
3420-652: The Australian legal system . It exercises original and appellate jurisdiction on matters specified in the Constitution of Australia and supplementary legislation. The High Court was established following the passage of the Judiciary Act 1903 (Cth) . Its authority derives from chapter III of the Australian Constitution, which vests it (and other courts the Parliament creates) with
3534-512: The Commonwealth Government to have continuously been held since federation, along with the prime minister, the minister for defence and the treasurer . The attorney-general is nearly always a person with legal training, and eleven former attorneys-general have received senior judicial appointments after their ministerial service. Billy Hughes was the longest-serving attorney-general of Australia, serving for thirteen and
Al-Kateb v Godwin - Misplaced Pages Continue
3648-534: The Commonwealth of Australia charged with overseeing federal legal affairs and public security as the head of the Attorney-General’s Department . The current attorney-general is Mark Dreyfus , who was chosen by prime minister Anthony Albanese in June 2022 following the 2022 federal election . By convention, the attorney-general is a lawyer . The attorney-general is one of only four positions in
3762-490: The Director of Public Prosecutions and staff; however, the attorney-general maintains formal control—including the power to initiate and terminate public prosecutions and take over private prosecutions. Statutory criminal law provides that prosecutions for certain offences require the individual consent of the attorney-general. This is generally for offences whose illegality is of a somewhat controversial nature or where there
3876-616: The Family Court and Federal Magistrates Court have been set up to reduce the court's workload in specific areas. In 1968, appeals to the Privy Council in matters involving federal legislation were barred. In 1986, with the passage of the Australia Acts direct appeals to the Privy Council from state Supreme Courts were also closed off. The life tenure of High Court justices ended in 1977. A national referendum in May 1977 approved
3990-533: The Government of Australia to remove Al-Kateb to Egypt , Jordan , Kuwait, Syria , and the Palestinian territories (which would have required the approval of Israel ) failed. Al-Kateb then applied to the Federal Court for writs of habeas corpus and mandamus , demanding that immigration officials comply with section 198 of the Migration Act which required that Al-Kateb, because his application for
4104-527: The Legal Services Commission of South Australia . The question in the case was whether Al-Kateb's continued detention was lawful. That question involved several issues, namely whether the provisions of the Migration Act allow a person to be detained even if they have no prospect of being removed from Australia, and if they did, whether those provisions were then lawful under the Constitution of Australia. Since Al-Kateb's application for
4218-484: The Supreme Court of Nauru in both criminal and civil cases, but not constitutional matters. There were a total of five appeals to the High Court under this agreement in the first 40 years of its operation. In 2017, however, this jumped to 13 appeals, most relating to asylum seekers. At the time some legal commentators argued that this appellate jurisdiction sat awkwardly with the High Court's other responsibilities, and ought be renegotiated or repealed. Anomalies included
4332-462: The executive branch of government. Detention generally is considered to be a judicial function, which can be exercised only by courts, pursuant to Chapter III of the Australian Constitution . However, there are certain exceptions which allow non-judicial detention, such as detention in order to effect an arrest , or detention for quarantine purposes. Courts in Australia have also held that, generally, detention of non-citizens for immigration purposes
4446-676: The indefinite detention of a stateless person was lawful. The case concerned Ahmed Al-Kateb, a Palestinian man born in Kuwait , who moved to Australia in 2000 and applied for a temporary protection visa . The Commonwealth Minister for Immigration 's decision to refuse the application was upheld by the Refugee Review Tribunal and the Federal Court . In 2002, Al-Kateb declared that he wished to return to Kuwait or Gaza. However, since no country would accept Al-Kateb, he
4560-640: The judicial power of the Commonwealth. Its internal processes are governed by the High Court of Australia Act 1979 (Cth). The court consists of seven justices, including a chief justice , currently Stephen Gageler . Justices of the High Court are appointed by the governor-general on the formal advice of the attorney-general following the approval of the prime minister and Cabinet . They are appointed permanently until their mandatory retirement at age 70, unless they retire earlier. Typically,
4674-473: The majority . Chief Justice Gleeson and Justices Gummow and Kirby dissented , finding instead that the Migration Act should not be interpreted to permit indefinite detention. Justice Hayne delivered the leading judgment for the majority. On the question of whether the Migration Act allowed people in Al-Kateb's situation to be detained indefinitely, he said: ...the most that could ever be said in
Al-Kateb v Godwin - Misplaced Pages Continue
4788-454: The "combined effect" of the legislation and the announcement in Kirmani "has been that s 74 has become a dead letter, and what remains of s 74 after the legislation limiting appeals to the Privy Council will have no further effect". Following an agreement between Nauru and Australia signed on 6 September 1976, the High Court became Nauru's apex court. It was empowered to hear appeals from
4902-528: The 1980s. Additionally, four former attorneys-general have won appointment to the High Court – Isaac Isaacs , H. B. Higgins , John Latham, Garfield Barwick , and Lionel Murphy . Isaacs later became governor-general . The attorney-general is the minister responsible for legal affairs, national and public security. The attorney-general also serves as a general legal adviser to the Cabinet, and has carriage of legislation dealing with copyright, human rights and
5016-446: The Act did allow indefinite detention, and that the Act was not unconstitutional. The controversy surrounding the outcome of the case resulted in a review of the circumstances of twenty-four stateless people in immigration detention. Al-Kateb and 8 other stateless people were granted bridging visas in 2005 and while this meant they were released from detention, they were unable to work, study or obtain various government benefits. Al-Kateb
5130-484: The Australian community, the detention is non-punitive. McHugh suggested that detention for a non-punitive purpose could still offend Chapter III if it prevented a court "from determining some matter that is a condition precedent to authorising detention." However, that was not the case here. In dissent, Justice Gummow recognised that "the focusing of attention on whether detention is 'penal or punitive in character'
5244-417: The Federal Court that there was no real possibility of Al-Kateb's removal in the foreseeable future, they argued that the test applied to reach that decision "fails to take into account... the difficulties and the fact that things can change." The issue of whether the Act was constitutionally valid revolved around the fact that immigration detention is a form of administrative detention, or detention imposed by
5358-437: The High Court (for example in the 1915 case of Lloyd v Wallach ), and emphasised that at no time had anyone questioned that detention for protective purposes, as opposed to punitive purposes, would conflict with Chapter III. He concluded that although the situation at hand was "tragic", the courts were not at liberty to question the propriety of decisions made by the Parliament of Australia on moral or human rights grounds, given
5472-476: The High Court's original jurisdiction regarding constitutional matters could be removed, in practice section 75(iii) (suing the Commonwealth) and section 75(iv) (conflicts between states) are broad enough that many constitutional matters would still be within its jurisdiction. The original constitutional jurisdiction of the High Court is now well established; the Australian Law Reform Commission has described
5586-611: The High Court. Following a court-packing attempt by the Labor Prime Minister Andrew Fisher In February 1913, the bench was increased again to a total to seven. Charles Powers and Albert Bathurst Piddington were appointed. These appointments generated an outcry, however, and Piddington resigned on 5 April 1913 after serving only one month as High Court justice. The High Court continued its Banco location in Melbourne until 1928, until
5700-515: The Privy Council regularly heard appeals against High Court decisions. In some cases the Council acknowledged that the Australian common law had developed differently from English law and thus did not apply its own principles. Other times it followed English authority, and overruled decisions of the High Court. This arrangement led to tensions between the High Court and the Privy Council. In Parker v The Queen (1964), Chief Justice Owen Dixon led
5814-418: The Privy Council. Sir Isaac Isaacs is the only judge to have sat on an appeal from the High Court, in 1936 after his retirement as governor-general. Sir Garfield Barwick insisted on an amendment to Privy Council procedure to allow dissent; however, he exercised that capacity only once. The appeals mostly related to decisions from other Commonwealth countries, although they occasionally included appeals from
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#17328019114515928-470: The Supreme Court of the United States or the House of Lords in the defence of the fundamental principles of human rights". In response to McHugh's speech, Chief Justice Gleeson said that the issue of whether or not Australia should have a bill of rights was a purely political one and not a matter for the courts. Gleeson said that while he had personal political views on the matter, "It doesn't serve
6042-574: The United Kingdom and the Privy Council for Hong Kong have been, all of which have withheld from the Executive a power of unlimited detention. Referring to the cases in which the High Court had upheld the wartime legislation allowing indefinite administrative detention, Kirby said that equivalent decisions in other countries had come to be regarded as embarrassing and incorrect, and should be likewise regarded in Australia. While conceding that
6156-578: The United States and the House of Lords . Arthur Glass observed that the minority judges began their judgments from the position that indefinite non-judicial detention and the curtailment of personal freedom were troubling consequences, and he noted that "as is not uncommon in statutory construction, where you start from is critical to where you end up". Marr accused the majority of deciding that "saving Australia from boat people counts for more than Al-Kateb's raw liberty". The controversy resulted in pressure on
6270-533: The absence of a bill of rights in Australia. Justice Kirby retorted that "'Tragic' outcomes are best repaired before they become a settled rule of the Constitution." He also drew a historical analogy, referring to the 1951 Communist Party case where the High Court rejected attempts by the Menzies government to outlaw the Australian Communist Party . After noting McHugh's recent praise of
6384-504: The absence of a bill of rights limited the ability of the courts to protect rights. McHugh said that cases in countries such as the United Kingdom, in which courts had found that indefinite administrative detention was not lawful, were based on bills of rights or other instruments, such as the European Convention on Human Rights , and lamented that without such instruments, Australian courts are "not empowered to be as active as
6498-708: The argument for Al-Kateb centred on the fact that he was a stateless man. Kateb's lawyer, O'Connor, noted that the provisions in the Migration Act about refugees were based on the United Nations Convention Relating to the Status of Refugees, both of which overlooked the situation of stateless persons. Several exchanges during the hearings illustrated the way in which the usual processes of the immigration system were not adapted well, if at all, to dealing with stateless people. In one such exchange, O'Connor referred to Al-Kateb both by his name and by
6612-683: The attorney-general are listed below. In 2022, Matt Thistlethwaite was titled the Assistant Minister for the Republic and was tasked with promoting the Albanese government 's policy of establishing of a republic . However, he was also formally the Parliamentary Secretary to the Attorney-General. The Australian states each have separate attorneys-general, who are state ministers with similar responsibilities to
6726-399: The case demonstrated "the need for empathy in public policy". However, the case also aroused controversy about the court itself. David Marr described the 4–3 decision as indicating a new division in the composition of the court, the "liberty divide", and noted that the result on the liberty question moved the court in the opposite direction to the contemporary trends of the Supreme Court of
6840-421: The case of foundlings (Article 3). For this reason Al-Kateb did not acquire Kuwaiti citizenship at birth, and was thus considered a stateless person. Al-Kateb left his country of birth after Kuwaiti authorities pressured nearly 200,000 Palestinians to leave Kuwait . In December 2000, Al-Kateb, travelling by boat, arrived in Australia without a visa or passport , and was taken into immigration detention under
6954-482: The case to the Supreme Court "differently constituted, for hearing according to law". On Nauru's 50th anniversary of independence, Baron Waqa declared to parliament that "[s]everance of ties to Australia's highest court is a logical step towards full nationhood and an expression of confidence in Nauru's ability to determine its own destiny". Justice Minister David Adeang said that an additional reason for cutting ties
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#17328019114517068-602: The case were all members of the Government of Australia, including two officials in the Department of Immigration, Multicultural and Indigenous Affairs , and the then Minister for Immigration, Phillip Ruddock , and were represented by the Solicitor-General of Australia , David Bennett . The first named respondent, Philippa Godwin, was Deputy Secretary of DIMIA. Al-Kateb was represented by Claire O'Connor, from
7182-499: The case, and previous legislation which had authorised indefinite administrative detention, such as the arrangements under the War Precautions Act 1914 . Regulations made under that and other acts allowed the internment of several thousand people, including German Australians during World War I and Japanese Australians during World War II . McHugh noted that those arrangements had been challenged, and upheld, in
7296-480: The colonies to come to London to assist with the approval process, with a view to their approving any alterations that the British government might see fit to make; delegates were sent, including Deakin, Barton and Charles Kingston , although they were under instructions that they would never agree to changes. After intense lobbying both in Australia and in the United Kingdom, the Imperial Parliament finally approved
7410-604: The colonies, an 1849 report from the Privy Council suggested a national court be created. In 1856, the Governor of South Australia , Richard MacDonnell , suggested to the Government of South Australia that they consider establishing a court to hear appeals from the Supreme Courts in each colony. In 1860 the South Australian Parliament passed legislation encouraging MacDonnell to put the idea to
7524-412: The community for a serving Chief Justice to enter that arena." In academic circles, the case is generally seen as an example of the court taking two different approaches to statutory interpretation , with the legalistic approach of the majority judges contrasting with the purposive approach of the minority judges. High Court of Australia The High Court of Australia is the apex court of
7638-456: The country that they want to avoid," to which Al-Kateb's lawyer replied, "That is correct, but, of course, with Mr Al-Kateb there is no country." The respondents argued that the provisions required that unlawful non-citizens be detained until their removal, and that the purpose of removal, on which the detention was founded, did not cease to exist just because it was not practicable in the foreseeable future to carry out that purpose. They made what
7752-578: The country, where it would use facilities of the respective supreme courts. Deakin had envisaged that the court would sit in many different locations, so as to truly be a federal court. Shortly after the court's creation, Chief Justice Griffith established a schedule for sittings in state capitals: Hobart in February, Brisbane in June, Perth in September, and Adelaide in October. It has been said that Griffith established this schedule because those were
7866-441: The court operates by receiving applications for appeal from parties in a process called special leave . If a party's application is accepted, the court will proceed to a full hearing, usually with oral and written submissions from both parties. After conclusion of the hearing, the result is decided by the court. The special leave process does not apply in situations where the court elects to exercise its original jurisdiction; however,
7980-766: The court typically delegates its original jurisdiction to Australia's inferior courts. The court has resided in Canberra since 1980, following the construction of a purpose-built High Court building , located in the Parliamentary Triangle and overlooking Lake Burley Griffin . Sittings of the court previously rotated between state capitals, particularly Melbourne and Sydney , and the court continues to regularly sit outside Canberra. The High Court exercises both original and appellate jurisdiction . Sir Owen Dixon said on his swearing in as Chief Justice of Australia in 1952: The High Court's jurisdiction
8094-426: The court's workload continued to grow, particularly from the 1960s onwards, putting pressures on the court. Sir Garfield Barwick , who was attorney-general from 1958 to 1964, and from then until 1981 chief justice, proposed that more federal courts be established, as permitted under the Constitution. In 1976 the Federal Court of Australia was established, with a general federal jurisdiction, and in more recent years
8208-551: The court. Opponents instead proposed that the court should be made up of state supreme court justices, taking turns to sit on the High Court on a rotation basis, as had been mooted at the Constitutional Conventions a decade before. Deakin eventually negotiated amendments with the opposition , reducing the number of judges from five to three, and eliminating financial benefits such as pensions. At one point, Deakin threatened to resign as Attorney-General due to
8322-467: The criminal law and travelling beyond presently accepted categories is necessarily and inevitably offensive to Ch.III. The respondents also noted that Gaudron made similar comments in the Stolen Generations case , which also considered non-judicial detention in the context of Aboriginal children who were forcibly removed from their parents' care . For this reason and others, they argued that
8436-482: The decision in a speech, Kirby said: We should be no less vigilant than our predecessors were. As they did in the Communist Party Case , we also should reject Executive assertions of self-defining and self-fulfilling powers. We should deny such interpretations to federal law, including the Act... This Court should be no less defensive of personal liberty in Australia than the courts of the United States,
8550-538: The design of the court as it was. Inglis Clark took the view that the possibility of divergence was a good thing, for the law could adapt appropriately to Australian circumstances. Despite this debate, the draft's judicial sections remained largely unchanged. After the draft had been approved by the electors of the colonies, it was taken to London in 1899 for the assent of the British Imperial Parliament. The issue of Privy Council appeals remained
8664-407: The difficulties he faced. In his three and a half hour second reading speech to the House of Representatives , Deakin said, The federation is constituted by distribution of powers, and it is this court which decides the orbit and boundary of every power... It is properly termed the keystone of the federal arch... The statute stands and will stand on the statute-book just as in the hour in which it
8778-403: The draft constitution. The draft as passed included an alteration to section 74, in a compromise between the two sides. It allowed for a general right of appeal from the High Court to the Privy Council, but the Parliament of Australia could make laws restricting this avenue. In addition, appeals in inter se matters were not as of right, but had to be certified by the High Court. The High Court
8892-613: The envy of the world", saying "I have yet to see any compelling evidence that what we have is not working, or that there is a compellingly better option out there." The following individuals have been appointed as attorney-general for Australia: Notes The following individuals were appointed as Minister for Justice, or any of its precedent titles: While previously there existed informal titles for junior ministers, since 1980 they have been officially designated parliamentary-secretaries . They have also been titled assistant minister and minister assisting . Parliamentary-secretaries to
9006-403: The general community, working, or otherwise enjoying the benefits that Australian citizens enjoy is constitutionally acceptable." The second issue was whether indefinite detention for migration purposes infringed on Chapter III of the Australian Constitution. While every judge discussed this issue, only three judges, Justices McHugh, Hayne and Heydon, found it necessary to make a final decision on
9120-401: The general principle of interpretation stated above. I am also influenced by the consideration that the detention in question is mandatory, not discretionary. In a case of uncertainty, I would find it easier to discern a legislative intention to confer a power of indefinite administrative detention if the power were coupled with a discretion... Accordingly, he found that a proper construction of
9234-482: The identifier used on the formal documents, "SHDB" (in matters concerning asylum seekers , names are usually suppressed in order to prevent persecution should they return to their country of origin). After some debate about whether to suppress Al-Kateb's name, Justice Kirby said that "there often is a very good reason... because people suffer great risks if their name goes on the Internet that that will become known to
9348-405: The inclusion of constitutional matters in section 76 rather than section 75 as "an odd fact of history". The 1998 Constitutional Convention recommended an amendment to the constitution to prevent the possibility of the jurisdiction being removed by Parliament. The word "matter" in sections 75 and 76 has been understood to mean that the High Court is unable to give advisory opinions. The court
9462-437: The issue. They all reached the same conclusion, that the detention scheme was constitutional. Justice Hayne concluded that the detention scheme in the Migration Act did not contravene Chapter III because, fundamentally, it was not punitive. The Act did not make being in Australia without a visa an offence (although it had been in the past), and in reality he considered the mandatory detention scheme to be not that different from
9576-400: The language of the sections was not ambiguous, and clearly required the indefinite detention of Al-Kateb. He said that the requirement that people be removed "as soon as reasonably practicable" was directed at limiting the duration of detention to as little as necessary, but it did "not mean that the detention... is limited to a maximum period expiring when it is impracticable to remove or deport
9690-416: The need to apply Nauruan law and customary practice, and that special leave hearings were not required. Nauruan politicians had said publicly that the Nauru government was unhappy about these arrangements. Of particular concern was a decision of the High Court in October 2017, which quashed an increase in sentence imposed upon political protestors by the Supreme Court of Nauru. The High Court had remitted
9804-567: The new Immigration Minister Amanda Vanstone , who agreed to review the cases of twenty-four stateless people in immigration detention and ultimately granted bridging visas to nine people including Al-Kateb, allowing them to be released into the community. However, the conditions of the bridging visas did not permit holders to work, study, obtain social security benefits or receive healthcare from Medicare , and Al-Kateb remained entirely dependent on donations from friends and supporters to survive. Al-Kateb said of his situation, "We [are] just walking in
9918-460: The other colonies. However, only Victoria considered the proposal. At a Melbourne inter-colonial conference held in 1870, the idea of an inter-colonial court was again raised. A royal commission was established in Victoria to investigate options for establishing such a court, and a draft bill was put forward. This draft bill, however, completely excluded appeals to the Privy Council, causing
10032-429: The person." Chief Justice Gleeson, in dissent, said that in interpreting legislation, the 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". He concluded that the provisions requiring that unlawful non-citizens be detained were ambiguous in that in
10146-469: The power to detain people for the purposes of criminal trial and punishment (as opposed to detention generally) was clearly a judicial function, but there is no general rule and other powers to detain may not offend Chapter III. The ultimate decision, reached by a majority of four judges to three, was that the Migration Act did permit indefinite detention. Each judge delivered a separate judgment with Justices McHugh , Hayne , Callinan and Heydon forming
10260-482: The power to issue a nolle prosequi with respect to a case, which authoritatively determines that the state (in whose name prosecutions are brought) does not wish to prosecute the case, so preventing any person from doing so. In July 2018, then-Prime Minister Malcolm Turnbull announced the creation of the Department of Home Affairs - a new ministry to include the Australian Federal Police ,
10374-506: The protection of due process rights as implicit constitutional rights, in the absence of an explicit bill of rights. As a result of the decision, Al-Kateb had to return to immigration detention. Claire O'Connor, Al-Kateb's lawyer, said, "The effect of this decision is that [Al-Kateb] will be locked up until a state of Palestine is created or some other Middle Eastern state is willing to have him. It's taken 51 years so far. I'm not holding my breath." The decision sparked much controversy about
10488-626: The provisions of the Migration Act 1958 . In January 2001, Al-Kateb applied for a protection visa, on the grounds that the United Nations 1954 Convention Relating to the Status of Stateless Persons obliged Australia to protect him. His application was rejected, a decision upheld by the Refugee Review Tribunal and the Federal Court of Australia. In June 2002, Al-Kateb stated that he wished to voluntarily leave Australia and be sent to Kuwait or to Gaza . However attempts by
10602-435: The provisions of the Act would not permit Al-Kateb's detention to continue indefinitely. Justice Callinan, also discussed the purpose of detention, in obiter dicta . He said that detention of non-citizens for the purposes of deportation may not be the only form of detention that would be within the federal parliament's aliens power , rather "it may be the case that detention for the purpose of preventing aliens from entering
10716-529: The reasonably foreseeable future", his application was dismissed. However, a case with substantially identical facts, decided twelve days later by a Full Court of the Federal Court, resulted in the release of another detainee, Akram Al Masri. Finally, Al-Kateb appealed the decision against him to a Full Court of the Federal Court, hoping that the reasoning applied in the Al Masri case (which was factually similar to his situation) would be applied to him. The appeal
10830-419: The relevant provisions in the Migration Act could not proceed on the assumption that removal is always possible. He concluded that: ...even if, as in this case, it is found that 'there is no real likelihood or prospect of [the non-citizen's] removal in the reasonably foreseeable future', that does not mean that continued detention is not for the purpose of subsequent removal. Justice McHugh stated simply that
10944-532: The scope of the Parliament's powers with respect to defence will be greater in wartime than in peacetime, Kirby said that they could not extend so far as to displace fundamental constitutional requirements such as those in Chapter III. Finally, Kirby also suggested that there was much scope for expanding the reach of the limitations on legislative and executive power imposed by Chapter III, and drawing on another paper by McHugh, argued that this ought to extend to
11058-645: The scope of the mandatory detention laws. Along with the two other immigration detention decisions handed down on that day, the case prompted several political leaders, including the Federal President of the Australian Labor Party , Carmen Lawrence , and Australian Democrats leader, Senator Andrew Bartlett , to call for an Australian bill of rights. The executive director of the Sydney Institute , Gerard Henderson , said that
11172-479: The states and the Commonwealth (" inter se " matters), except where the High Court certified it appropriate for the appeal to be determined by Privy Council. This occurred only once, and the High Court has said it would never again grant a certificate of appeal. No certificate was required to appeal constitutional cases not involving inter se matters, such as in the interpretation of section 92 (the freedom of inter-state commerce section). On non- inter se matters,
11286-499: The supreme court of an Australian state. Section 74 allowed parliament to prevent appeals to the Privy Council. It did so in 1968 with the Privy Council (Limitation of Appeals) Act 1968 , which closed off all appeals to the Privy Council in matters involving federal legislation. In 1975, the Privy Council (Appeals from the High Court) Act 1975 closed all routes of appeal from the High Court; excepting for those in which
11400-786: The times of year he found the weather most pleasant in each city. The tradition of special sittings remains to this day, although they are dependent on the court's caseload. There are annual sittings in Perth, Adelaide and Brisbane for up to a week each year, and sittings in Hobart occur once every few years. Sittings outside of these special occurrences are conducted in Canberra. The court's operations were marked by various anomalies during World War II . The Chief Justice, Sir John Latham , served from 1940 to 1941 as Australia's first ambassador to Japan; however, his activities in that role were limited by
11514-525: The unified jurisdiction of the British courts, and petitioned the conventions to that effect. Others argued that Australian judges were of a poorer quality than those of the English, and than the inevitable divergence in law that would occur without the oversight of the Privy Council; would put the legal system at risk. Some politicians (e.g. George Dibbs ) supported a retention of Privy Council supervision; whereas others, including Alfred Deakin , supported
11628-424: Was also more general historical and theoretical issues involved. During Justice McHugh 's final years on the court, he and Justice Kirby expressed differing views on constitutional interpretation , and particularly on the role of international law and principles of human rights in that process. In this case, the two judges continued that debate. Justice McHugh drew analogies between the legislation at issue in
11742-475: Was assented to. But the nation lives, grows and expands. Its circumstances change, its needs alter, and its problems present themselves with new faces. [The High Court] enables the Constitution to grow and be adapted to the changeful necessities and circumstances of generation after generation that the High Court operates. Deakin's friend, painter Tom Roberts , who viewed the speech from the public gallery, declared it Deakin's " magnum opus ". The Judiciary Act 1903
11856-410: Was declared stateless and detained under the policy of mandatory detention . The two main issues considered by the High Court were whether the Migration Act 1958 (the legislation governing immigration to Australia ) permitted a person in Al-Kateb's situation to be detained indefinitely, and if so, whether this was permissible under the Constitution of Australia . A majority of the court decided that
11970-549: Was disliked by some of the colonies, and the bill was abandoned. The idea of a federal supreme court was raised during the Constitutional Conventions of the 1890s. A proposal for a supreme court of Australia was included in an 1891 draft. It was proposed to enable the court to hear appeals from the state supreme courts, with appeals to the Privy Council only occurring on assent from the British monarch . It
12084-504: Was finally passed on 25 August 1903, and the first three justices, Chief Justice Sir Samuel Griffith and justices Sir Edmund Barton and Richard O'Connor , were appointed on 5 October of that year. On 6 October, the court held its first sitting in the Banco Court in the Supreme Court of Victoria . On 12 October 1906, the size of the High Court was increased to five justices, and Deakin appointed H. B. Higgins and Isaac Isaacs to
12198-566: Was generally agreed with, their list of exceptions was not. The respondents focused on Justice Gaudron 's decision in Lim , in which she said: Detention in custody in circumstances not involving some breach of the criminal law and not coming within well-accepted categories of the kind to which Brennan, Deane and Dawson JJ refer is offensive to ordinary notions of what is involved in a just society. But I am not presently persuaded that legislation authorizing detention in circumstances involving no breach of
12312-465: Was granted a permanent visa in October 2007. In 2023, a subsequent High Court case, NZYQ v Minister for Immigration , overturned this decision. Ahmed Al-Kateb was born in Kuwait in 1976, the son of Palestinian parents. Kuwait's Nationality Law is based on the citizenship of the parents, jus sanguinis , (Article 2) and does not provide for citizenship based on place of birth, jus soli , except in
12426-487: Was not enough work for a federal court to make it viable. The then Attorney-General Alfred Deakin introduced the Judiciary Bill to the House of Representatives in 1902. Prior efforts had been continually delayed by opponents in the parliament, and the success of the bill is generally attributed to Deakin's passion and persistence. Deakin proposed that the court be composed of five judges, specially selected to
12540-427: Was not immediately established after Australia came into being. Some members of the first Parliament , including Sir John Quick , then one of the leading legal experts in Australia, opposed legislation to set up the court. Even H. B. Higgins , who was himself later appointed to the court, objected to setting it up, on the grounds that it would be impotent while Privy Council appeals remained, and that in any event there
12654-460: Was proposed that the Privy Council be prevented from hearing appeals on constitutional matters. This draft was largely the work of Sir Samuel Griffith , then the Premier of Queensland . The attorney-general of Tasmania Andrew Inglis Clark also contributed to the constitution's judicial clauses. Clark's most significant contribution was to give the court its own constitutional authority, ensuring
12768-421: Was referred to as "the 'never say never' proposition", that although securing a person's removal or deportation from Australia may be difficult, and "often it takes years of diplomatic negotiation before a country is prepared to accept someone... it is very hard to imagine a case where the purpose of removal or deportation is one that can never occur." Although the respondents did not challenge the finding of fact in
12882-493: Was removed into the High Court at the request of the then Attorney-General of Australia Daryl Williams , under provisions of the Judiciary Act 1903 . Pending the appeal, Al-Kateb was released in April 2003, by an interlocutory consent order of the Federal Court. The case was argued alongside two other cases which also concerned immigration detention and hearings were held on 12 November and 13 November 2003. The respondents in
12996-478: Was the cost of appeals to the High Court. Nauru then exercised an option under its agreement with Australia to end its appellate arrangement with 90 days notice. The option was exercised on 12 December 2017 and the High Court's jurisdiction ended on 12 March 2018. The termination did not become publicly known until after the Supreme Court had reheard the case of the protesters and had again imposed increased sentences. Following Earl Grey 's 1846 proposal to federate
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