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LS 220 Constitutional Law

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1
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 person has not been cleared immigration, and that detention will continue until the Refugee Review Commission determines the detention to be unlawful’. Accordingly the first issue to consider in light of the Commonwealth Constitution is the legality of indefinite detention.

II LEGALITY OF INDEFINITE DETENTION OF MIGRANTS

2

To determine the legality, and constitutionality of migrant detention for indefinite time periods it must be considered whether the nature of such detention is punitive or non-punitive.1

Generally detention is a judicial function that can only be processed by a Chapter III court.2 There are exceptions that exist for various purposes such as the detention to quarantine individuals, or to enable an arrest to be made.3 These exceptions are known as non-judicial detention. 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

1

Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562; 208 ALR 124.
R v Kirby; ex parte Boilermakers’ Society of Australia [1956] HCA; (1956) 94 CLR 254. 3
Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562; 208 ALR 124.
4
Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562; 208 ALR 124; Chu Kheng Lim v Minister for Immigration Local Government & Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1. 5
Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562; 208 ALR 124.
2

6

Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562; 208 ALR 124.

3
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 the Australian community then detention cannot be viewed as punitive. Thus it will not attract the provisions of Ch III of the Constitution.11

The Al-Kateb case allows for the application of its findings to a broad range of issues that might be raised in determining the legality of potentially indefinite periods of detention of unlawful non-citizens in regards to the Commonwealth Constitution. The majority of justices distinguished between punitive and nonpunitive detention. It was held that Ch III of the constitution was concerned with punitive punishments only. Thusly, immigration detention did not attract the

7

Migration Act 1958.
Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562; 208 ALR 124.
9
Ibid.
10
Migration Act 1958; Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562; 208 ALR 124. 8

11

Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562; 208 ALR 124.

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provisions of Ch III due to its non-punitive or protective nature.12 Therefore, the potential for indefinite detention of unlawful non-citizens as proposed under the relevant provisions of the Bill are deemed to be constitutionally lawful.

The “migration zone” is a legal boundary in which people arriving without a valid visa are able to apply for asylum,13 in many cases their claim can be processed in Australia rather than at an off shore detention centre. It would appear that the provision within the Bill that states “in or outside of the migration zone” is an attempt to block unlawful non-citizens from potentially lowering the risk of deportation or detention in a less favourable environment than Australia. Effectively, this provision eliminates the migration zone from being used in such a way as discussed.

III CONSTITUTIONAL VALIDITY OF THE REFUGEE REVIEW
COMMISSION’S REGISTRATION & ENFORCEMENT OF DETERMINATIONS

The next issue that needs to be considered in order to advise the MP of the Bill proposal is the constitutional validity of the Refugee Review Commission (RRC), specifically its ability to impose its determinations on the Federal court.

12
13

Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562; 208 ALR 124.
Migration Act 1958 s 5.

5

A. IS THE RRC A CHAPTER III COURT

Australia’s system of government has a rather relaxed application in regards to the separation of powers between the Crown and Parliament,14 however the Judiciary is considered to be a distinct arm of government.15 As such, strict rules exist to ensure that there will be no overlap between the Judiciary and the Executive/Legislature.16

The High Court’s decisions through relevant case law has established principles that pertain to the application of judicial powers within the Commonwealth.17 It has been held that decisions that determine the rights or entitlements of a person is in fact a judicial power and can only be exercised by a chapter III court as described in section 71 of the Constitution. Accordingly18, the High Court rulings in previous cases has found that a non-judicial commission cannot impose decisions on to a Ch III court as it breaches the principle of separation of Commonwealth judicial power.19 The principle of separation is also infringed if parliament attempts to influence a Ch III court’s application of powers.

In the Wheat case Griffith CJ reasoned that according to section 71 of the constitution that judicial power of the commonwealth can only be exercised in the High Court, or other courts that have been invested with federal jurisdiction by

14

R v Kirby;ex parte Boilermakers’ Society of Australia [1956] HCA; (1956) 94 CLR 254. Huddart, Parker and Co v Moorehead [1909] HCA 36; 8 CLR 330. 16
Migration Act 1958.
17
R v Quinn; ex parte Consolidated Food Corporation [1977] HCA 62; (1977) 138 CLR 1. 18
Ibid.
19
Ibid.
15

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the parliament such as federal courts.20 In line with this reasoning Griffith CJ found section 71 to be complete and exclusive, with no room or tolerance to be afforded to a third class of court which lacks federal jurisdiction.21

The Wheat case affirms that the strict separation of judicial power is a fundamental principle of the constitution, and that a commission that has been set up by parliament cannot possess judicial power as it offends the conditions of a Chapter III court.22 Therefore the RRC is not a Chapter III Court as prescribed in the constitution.

B. LAWFULNESS OF RRC DETERMINATIONS BEING IMPOSED ON FEDERAL COURTS

According to the facts of the scenario, Section 181 of the Bill provides that the RRC’s determinations in regard to the lawfulness of the detention of non-citizens that have not been cleared by immigration would only be enforceable after separate proceedings before the Federal court, thus complying with the rule of law as set out in the Wheat case.23 However, this section has been revised during the drafting of the Bill to make the RRC’s determinations effective after transmission to the Federal court if an application for review has not been submitted by any interested party within two weeks from the time of transmission.

20

New South Wales v Commonwealth (1915) 20 CLR 54.
Ibid.
22
Ibid; R v Quinn; ex parte Consolidated Food Corporation [1977] HCA 62; (1977) 138 CLR 1. 23
New South Wales v Commonwealth (1915) 20 CLR 54.
21

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The facts of the scenario present many similarities to the case of Brandy v Human Rights and Equal Opportunity Commission.24 This case provided that a ‘determination’ made by the Human Rights and Equal Opportunity Commission became effective after a set period of time had lapsed after the ‘determination’ had been registered with the Federal Court, regardless of whether or not the ‘determination’ had been reviewed.25 It was found by the High Court that the determinations of the HREOC were of a judicial nature, and could not be exercised by a non-judicial tribunal such as the HREOC. It was further held that registration of the ‘determinations’ through the High Court did not make them enforceable.26

The transmission of the RRC determinations to the Federal Court, and subsequent enforcement of the determinations are similar to those discussed in the Brandy case. As was found in the Brandy case the registration and enforcement procedures of the determinations made by the RRC are repugnant to the principles of the separation of judicial powers and are invalid.27

IV CONCLUSION

24

Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245. Ibid.
26
Ibid.
27
Ibid.
25

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The scenario gave rise to a number of issues that related to the lawfulness of potentially indefinite period of detention of unlawful non-citizens, as well as the separation of powers between the Legislature, Executive and Judicial arms of government within Australia. Other issues considered included what constitutes a Chapter III court and the capabilities of the RCC to legally impose and enforce its determinations on the federal court. In order to answer the questions raised the paper has been split into two parts, firstly is the indefinite detention of migrants lawful, Which considered the case of Al-Kateb, and secondly, the question was asked whether the RCC can legally impose and enforce determinations with the same authority as a Chapter III Court.

The question of lawfulness in regard to indefinite detention of unlawful noncitizens is relatively straight forward when recent case law is applied. The Al-Kateb case is considered to be a landmark decision and proved particularly useful.

The facts and decision in Al-Kateb v Godwin was applied to the issue of whether or not indefinite detention of unlawful non-citizens is constitutionally legal.28 It was determined that the purpose for the detention of such a person is non-punitive in nature. As long as the purpose remains to make the detainee available for deportation, or to not allow their integration into the Australian community, then it will not attract the provisions of the constitution with regard to the separation of Commonwealth Judicial powers will not apply.29

28

Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562; 208 ALR 124; Chu Kheng Lim v Minister for Immigration Local Government & Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1. 29
Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562; 208 ALR 124.

9
Although the limited facts do not clearly state that the RRC is not a Ch III court, the relevant provisions in the Constitution deems it nearly impossible that such a commission could be categorised as being a Ch III court. There is nothing to suggest that the commission conforms to the requirements specified in s 71 and 72 of the Constitution.30 The Quinn case establishes that a tribunal or judiciary cannot be classified as a Ch III court.31

The third issue regarding the validity of the RCC enforcement of its determinations required the application of the Wheat and Brandy Cases, combined with the rule of law that has been established. The Australian government is set up in such a way that it is impracticable to have a strict separation between the Crown and Parliament, however there is a strict separation of judicial powers and the limitation of influence that can be imposed on a court that has been vested with judicial power by the Commonwealth.32

Cases such as Wheat and Brandy have established that any decisions that determine the rights or entitlements of a person are a judicial power and can only be made by a Chapter III court as outlined in sections 71 and 72 of Ch III of the constitution.33 The RRC is a commission that has implemented by the Executive. Whilst the Executive has the ability to legislate, the rules pertaining to the separation of powers provides that the interpretation and enforcement of law is a judicial feature of a Ch III court.34 In line with these cases a tribunal or commission such as the

30

Commonwealth of Australia Constitution Act.
R v Quinn; ex parte Consolidated Food Corporation [1977] HCA 62; (1977) 138 CLR 1. 32
Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245. 33
Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245; New South Wales v Commonwealth (1915) 20 CLR 54.
34
R v Quinn; ex parte Consolidated Food Corporation [1977] HCA 62; (1977) 138 CLR 1. 31

10
RRC do not have the appropriate power to enforce a determination as if it were delivered by a Federal Court, even in the event that a determination is to be registered by the Federal Court.

11

Bibliography
A. Articles/ Books / Reports
Clarke, Jennifer, Patrick Keyzer, James Stellios, Hanks Australian Constitutional Law: Materials and Commentary (LexisNexis Butterworths Australia, 9th ed, 2012).
Omar, I, Butterworths Questions and Answers: Constitutional Law (LexisNexis Butterworths Australia, 3rd ed, 2010).

B. Cases
Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562; 208 ALR 124.
Brandy v Human Rights and Equal Opportunity Commission (1995). Chu Kheng Lim v Minister for Immigration Local Government & Ethnic Affairs [1992] HCA 64; (1992) 176 CLR 1.
Huddert, Parker and Co v Moorehead [1909] HCA 36; 8 CLR 330. R v Kirby; ex parte Boilermaker’s Society of Australia [1956] HCA; (1956) 94 CLR 254.
R v Quinn; ex parte Consolidated Food Corporation [1977] HCA 62 (1977) 138 CLR 1.

C. Legislation
Commonwealth of Australia Constitution Act
Migration Act 1958.

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