Refugee Law and the Constitution in Australia - Assignment Example

REFUGEE LAW AND THE CONSTITUTION IN AUSTRALIA STUDENT NAME TUTOR COURSE DATE Legal Framework in Australia The Constitution is the utmost law of any given state and advocates for the rule of law and the doctrine of separation of powers, and in instances where there is an inconsistency between a statute and the Constitution the provisions of the Constitution remain absolute1. According to AV Dicey he stated that the rule of law seeks to show that we are ruled by law and the law alone; and a man can be punished for a breach of law, but for nothing else2. The law also applies equally to citizens as well as officials and the Constitution further states that it shall be binding on the courts, judges, people of every state and part of the commonwealth3. The Australian Constitution provides for the procedure and instances where a non-citizen can be deported or removed4 the procedures for naturalization and aliens5 as well as the issues of the influx or criminals and their deportation6. The relevant immigration laws in Australia are the Migration Act 1958 setting out the detention policy, the Migration Regulations 1994 and the Citizenship Act 2007 which outlines who is a lawful citizen7. Mandatory administrative detention of all unlawful citizens can be considered as the most important feature that makes Australia stand alone in issues of detention. The Migration Act provides that unlawful citizens especially those who are found to be in Australia without permission will continue to remain in detention until the occurrence of either three events; their release from detention upon the grant of a visa, deportation, or removal from Australia at their own request or upon the rejection of their attempt to secure a Visa8. It can only be brought to an end if the alien requests for their own removal. The case shows the various aspects that are used in constitutional interpretation and the role of the judiciary as an interpretative organ, the executive as the implementing institution of government decision while the parliament is the law making body. The court is a guardian of the constitution and it ought to strike out any actions that are inconsistent with the provisions of the law. Brief Facts of the Case The case of Al-Kateb v Godwin9 was determined by the High Court of Australia with seven justices of the High Court, with the case being determined on a majority vote of 4:3. Al-Kateb the (petitioner) was born in Kuwait and moved to Australia 2000 applied for a temporary protection visa from the Australian Government. The Immigration Department however refused to grant the temporary Visa, while an attempt made by Al-Kateb to be deported to either Kuwait or Gaza was denied since no state wanted a stateless person. Australian Authority detained him under the mandatory detention policy. The petitioner argued that he should be accorded the status of a refugee with protective rights. He stated that the interpretation imposed on the Migration Act was only to detain unlawful non-citizens if their removal from the country was reasonably possible and that detention was only valid if the purpose was to remove unlawful non-citizen10. In this case he would not foresee his removal in the near future. The Department of Immigration however stated that Al-Kateb that even though his removal was not foreseeable it would not the change the Migration policy and the he was legally detained since he did not have a valid passport11. A further argument was that detention was not part of the judicial system but was something within the ambit of the government mainly the executive. Is Al-Kateb a refugee or a stateless person? Al-Kateb was a stateless person and according to Haynes J stated that ; “Whether and when it occurs depends largely, if not entirely upon not only the course of events in the Middle East… but also upon the willingness of other countries to receive stateless Palestinian”12 In this case the procedure set out in the Migration Act was clear that a person who is within Australia without permission ought to be detained13. The provision in the law was mandatory and no interpretation would give the law any other meaning than that intended by parliament. In consideration of international law such as the provisions of the 1951 Convention on the Status of Refugee the petitioner would no fall in any of the standards applicable to a refugee14. In applying the principle of precedent and the practice in Australia there is little or no consideration of international law since it does not have a bill of rights within the constitution. It is also possible to deduce from the case that in applying judicial precedents in constitutional interpretation, it becomes part of the law and not afresh every time15. The law needs to be predictable and certain and in this case the certainty of it being mandatory in detaining non-citizens cannot be waived by external factors such as international law or human rights. There is therefore a concept that the rule of law ought to apply to ensure that the law is strictly applied with limited discretion to ensure that the doctrine of separation of powers is applied. Is it lawful for Al-Kateb to Lawfully Detained according to the Australian Immigration Act? The main focus of the case was on the provisions of the Migration Act; (sections 189, 196 and198)16 considered as the relevant legislation in relation to the detention of refugees or asylum seekers. The Act provides that unlawful citizens must be detained in Australia and that they must be detained until they are deported or removed from Australia, or when a protection visa is provided. However a detainee ought to be removed as soon as is reasonably practicable if the Minister authorizes his removal or is granted a visa17. It can be stated that the provisions of the migration Act are clear and unambiguous and that it was straightforward according to Hayne J. The imposition of a temporary meaning under the Act was section 196 that is ‘as soon as is reasonably practicable.’ In Australia to there is no mandatory imposition by the law that the Constitution must be interpreted to conform to rules of international law18. In their interpretation there was no need to consider any provision of international law or common law jurisprudence of any other jurisdiction19. This is based on the fact that the judiciary is not bound by conventional rules or treaties but they do apply to give a court an understanding. It is contended that using the international rules or standard to interpret the constitution allows the change and meaning of the constitution hence precipitating an amendment creating a different meaning in the law20. In this case therefore to give an interpretation of the Act as read with international law rules, then an amendment of the Constitution will be necessary which a preserve of the parliament is. Judicial activism therefore can lead to the derogation of the doctrine of powers hence affecting the rule of law and the supremacy of the constitution. Can an Unlawful citizen be detained without any criminal charged leveled against him? According to Gummow J, he stated that if no criminal charge is imposed the detention of the person would be valid under Constitution, un-lawful citizens do not commit an offence, so they cannot be punished, as punishment is imposed by a court of law. However in strict interpretation of the law the provision was mandatory and any unlawful citizen would be considered to have breached the law. In this case, the issue was whether the indefinite detention that was carried out by the Australian immigration authorities amounted to punishment and therefore should be considered unconstitutional. According to the Migration Act it was a crime to be in Australia illegally and a person would be detained for six months in a prison thereafter depurated prior to 1994. The detention was to be effected by the Executive without the adjudication of criminal culpability in anticipation of deportation and the ascertainment of their status. It was therefore the executive arm of the government to impose the provision of the act and not for the courts to determine whether or not the detention was illegal a clear demonstration of the concept of separation of power. Moreover McHugh J in his approach adopted what is referred to as the punitive/non punitive dichotomy21. In his view it was necessary for Parliament to protect its lawful citizens against any illegal immigrants by detaining them in custody and deterring any further entrants22. Is the Detention a violation of the Australian Constitution? The basic purpose of the courts in this case was to ascertain whether the law enacted by parliament conforms to the provisions of the Constitution. The applicability of the doctrine separation of power is imminent since it acts as a deterrent from amending the Constitution by the judiciary. The main question before the High Court in Al-Kateb v Godwin was whether the indefinite administrative detention infringes the vesting of the judicial power of the Commonwealth exclusively in Chapter III courts of the Constitution. According to McHugh J, “It is not for the courts, exercising federal jurisdiction, to determine whether the course taken by Parliament is unjust or contrary to basic human rights. The function of the courts in this context is simply to determine whether the law of the Parliament is within the powers conferred on it by the Constitution”23 A positive assertion can be made that the common law of Australia fails to protect the fundamentals of Human Rights, since the interpretation of the case was inconsistent with the provisions of human rights. Gleeson CJ stated that the Migration Act provides for the procedures to be applied to an illegal citizen detained within Australia. This case presents a person who has entered into Australia without any permission or instances where the permission granted has ended. In this case Al-Kateb is considered as a stateless person and hence the detention that is given is mandatory and not discretionally and is not one of extra-judicial punishment. Relying on the decision set out in Chu Khen Lim v Minister for Migration it is contended that the process of removal may take time but detention can end upon the request of the detainee to be removed therefore the period being uncertain it can be finite. The judges by a majority decided that the provisions of the Migration Act did not in any way breach the requirements stated under Chapter III of the Constitution since the main reason for its existence is to protect rather than impose any punitive measures24. In issues regarding the interpretation of the c on constitution McHugh J stated that the Constitution is to be read on its own and not referenced to International law25. However it is to be accepted that the courts are to interpret the Constitutional legality of the actions of the state and not for the executive26. In the words of Professor Leslie Zines an eminent constitutional lawyer, he said that; “No law can give power to any person (other than the court) to determine conclusively any issue upon which the constitutional validity of the law depends. The second doctrine sometimes metaphorically summed up in the maxim “the stream cannot rise above its source” Gummow J in using the case of Chu Shoo Hung v The Queen27 where a term of imprisonment was invoked as an additional requirement to deportation, then the punitive/non-punitive distinction is not clear. In essence therefore the Constitution Chapter III was not construed on the basis upon which administrative detention can be enlivened. The issue should not be treated as a matter of the executive since it cannot purport to the boundary of deprivation of liberty from the Constitution. According to Kirby J he agreed with Gummow J that unlimited executive detention would be in contravention of the current notions of rule of law “vigilance and suspicion” and that whether in subsistence of a Federal Bill of Rights the verdict of the case would have been different.28 Hayne J on the other hand in his opinion stated that the provisions in Chapter III were limited in scope in terms of its application and the assumption is that there are only a restricted number of cases in which executive detention would be doubtful29 Is indefinite detention of a stateless person lawful? A minority view held by Gleeson J was that the authority that is provided by the High. In his view in applying the principle of legality one would define whether the act provided for indefinite detention by the executive government was possible. In his words he stated that; “Courts do not impute to the legislature an intention to abrogate or curtail certain human rights or freedoms unless such an intention is clearly manifested by ambiguous language , which indicates that the legislature has directed its attention to the rights and freedoms in question, and has decided upon the abrogation or curtailment”30 In his view a power to detain would be valid if it was discretionary and not mandatory when taking into account the individual circumstances of the person such as whether he is a danger to the community or he poses a real likelihood of absconding. On the other hand Gummow J in relying on the decision of Hamdi v Rumselitizd31, Justice Scalia in the US Supreme Court Decision stated that the ‘core of liberty secured by the Anglo-Saxon System of separation of powers is to determine the indefinite imprisonment of the person at the will of the Executive’. Both Gummow J and Gleeson J sought to interpret the Migration Act in a way that authorized the detention of a person for unlimited time. Gummow. J attacked the notion of the Constitution on the concept of determination of a member of the Australian Community. In his view a member of the Australian Community is determined by checking his domicile, residence, personal presence as well as the nationality, hence exclusion of a person from a community would involve an examination of other preferences (Orwellian euphemism’)32. Practice in other Jurisdictions and International law Dan Meagher in ‘the ‘tragic’ High Court decisions in Al-Kateb and Al-Khafaji’33 positively confirms that it is lawful in the commonwealth to detain an unlawful non-citizen until it becomes reasonably practicable to remove him from Australia. The effect is that if no event occurs in the foreseeable future due to circumstances beyond the party, then the detention will remain lawful as long as the purpose of Chapter III limitation on legislative and executive power is not breached. He further suggests that it may remain lawful until another country is willing to accept a stateless person in this case Al-Kateb, if this then does not occur, then the detention would remain a life sentence. A distinction can be drawn from the US Supreme Court Case of Korematsu v United States that “such cases are now viewed as an embarrassment in the United States and regarded generally as incorrect. We should not be less embarrassed by local equivalent. In the Blemarch case Lord Nicolls declared “that detention or indefinite imprisonment without a charge or trial is ‘anthema in any country which does observe rule of law and that ‘wholly exceptional circumstances must exist before the extreme step can be justified34. In comparison with international law a legislative Bill of rights would provide a structure to allow for the articulation of Human Rights issues in Al-Kateb to be considered. In essence the plight of a stateless person in Australia in seeking removal was futile since the human rights amendments are incompatible with international law practices35. At a crossroad in the case was the common law doctrine of habeas corpus and other common law presumptions in favour of personal liberty vied with the statutory provisions. In essence and according to majority view in the case, in reading the Constitution, a proper understanding of the intention of our law makers should be taken into account and not with rules made by others. Rules that are established under international law are not enshrined in the Constitution hence they are independent and irrelevant and if they are considered, they would change the meaning intended by the Constitution36. Justification for Detention The justification of detention in Australia as opposed to other states that recognize human rights is that; it protects the community from the dangers of unlawful arrivals, prevent unlawful arrivals disappearing into the community, facilitate the speedy processing of any asylum claims, ensure failed asylum seekers are available for removal and the deter of potential unlawful migrants from coming into Australia In 2005 however there was a change in Australia laws since it no longer considered it necessary to detain all asylum seekers merely based on the fact that they arrived without visas37. The rules of interpretation in Australia of Constitutional issues is that the role of the judiciary is to interpret the law and not to seek to change the Constitution as this is not the power vested for it. According to Kirby J international law did not bind the Australian Court in the way in which conventional rules might apply but can only influence the decision of the court38. Which of the Views do I prefer? The case was held on a ratio of 4: 3 and I would prefer the minority view of the case. This is based on the fact that Australia Constitution fails to meet the position held by international law on the treatment of stateless persons. However, the interpretation of the Constitution should be on the basis of the law as it is and that the courts are not to alter the law but to interpret it, however they ought to be informed by better practices and the recognition of the rights of a person. Further, subjecting a stateless person as a mandatory detention policy in Australia without the commission of a crime for failure of proof of their nationality can be considered as a curtailment of their inherent right especially for the Palestinians. It seeks to prove that there is no good in being a stateless person and hence one cannot expect any representation, leniency as far as the law is concerned. References Al-Kateb v Godwin, HCA 37, High Court of Australia (2004) Andrew, B , Charlesworth, H., & McKinnon,G. Bill of Rights in Australia: History, Politics and Law (New South Publishing Sydney, 2009) Constitution of Australia Crock, M.E., Saul, B. ,&Dastayri, A. Future Seekers: Refugees and Irregular Migration in Australia (Federation Press,2006) Curtin, J., Case and Comment: Never Say Never: AL-Kateb v Godwin. 27 Sydney Law Review ( 2005) 355 I Omar, Constitutional Law: Butterworths Questions & Answers (LexisNexis Butterworths, 3rd ed, 2010), George Winterton, H P Lee, Arthur Glass, and James A Thomson, Australian Federal Constitutional Law: Commentary and Materials (Thomson Reuters, 2nd ed, 2007) J Clarke, P Keyzer, and J Stellios, Hanks’ Australian Constitutional Law: Materials And Commentary (LexisNexis Butterworths, 9th ed, 2013) K Booker, A Glass and R Watt, Federal Constitutional Law: An Introduction (LexisNexis Butterworths, 2nd ed, 1998) L Zines, The High Court and the Constitution (LexisNexis Butterworths, 4th ed, 1997) Leslie Zines , 2008, The High Court and the Constitution (Federation press 5thednRiverwood NSW) Meagher, D. ‘The ‘tragic” High Court decisions in Al-Kateb and AL-Khafaji: the triumph of the “plain fact” interpretive approach and constitutional form over substance’ (2005) 7 (4) Constitutional Law and Policy Review 69 at 77 Migration Act 1958 (Cth) P Hanks, F Gordon, and G Hill, Constitutional Law in Australia (LexisNexis Butterworths, 3rd ed, 2012) T Blackshield and G Williams, Australian Constitutional Law And Theory: Commentary And Materials (Federation Press, 5th ed, 2010) Slomanson, William R., Fundamental Perspectives on International Law, (California, Thomson-Wadswiorth Pub.5th ed., 2007). 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