Constitutional Law Case

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LS 220 Constitutional Law
ASSIGNMENT ONE

‘ADVISE THE MP ON THE LEGALITY, IN PARTICULAR, THE CONSTITUTIONALITY
OF THE MIGRATION BILL 2014.’

UNIT CO-ORDINATOR: DR OTTAVIO QUIRICO

WORD COUNT: 1925

I INTRODUCTION
The proposed Migration Bill (hereafter referred to as the Bill) raises a number of issues that must be analysed in order to ascertain the constitutionality of the proposals within the Act. The main considerations arise from sections 180, and
181 which state ‘that an officer must detain a person if he or she reasonably suspects that the person is an unlawful non-citizen in or outside the migration zone’ (S 180). While section 181 provides that ‘an officer must remove an unlawful non-citizen as soon as reasonably practicable if the
Australian courts have found in previous cases that the detention of unlawful citizens is considered as an administrative detention that is effected by the Executive government.4 Such detention is valid for the purpose of processing and removal from Australia of unlawful non-citizens, and immigration detention is not repugnant to the
Commonwealth Constitution.5

It was argued in the case of Al-Kateb v Godwin that stateless unlawful noncitizens that have only remote prospects for removal, or if their removal is deemed to be impracticable for the foreseeable future, then the detention of such persons must contravene Ch III of the constitution as it can no longer be considered that detention is for the purpose of removal.6
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Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562; 208 ALR 124.
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Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562; 208 ALR 124.

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Although it was not expressly authorised under the provisions of the Migration
Act to detain an unlawful non-citizen for an indefinite period of time7, it was held by the majority, in a contested judgment, in the High Court that such a detention was valid.8 McHugh J found that the Migration Act was clear and required AlKateb to be imprisoned until arrangements for deportation can be made, regardless of the prospect of removal.9

In ruling the lawfulness of Al-Katebs detention, consideration in regards to whether the Act offended the separation of judicial and executive powers under
Ch III of the Constitution10 was given by the justices. The majority held that immigration detention is not imposed as a punishment to the detainee, instead it is a form of protective detention. As long as the purpose of detention remains to be for the availability of removal, or to prevent the non-citizen from entering into