The Analysis of the Al-Kateb v Godwin - Essay Example

Name: Tutor: Course: Date: Introduction Al-Kateb v Godwin was the High Court of Australia’s decision ruled in 2004 that indefinite detention was lawfully applicable to a stateless person. The case involved a Palestinian man, Ahmed Al-Kateb who had moved to Australia earlier on in 2000 and submitted his application to be issued with a temporary protection visa. Unfortunately, his application was declined by the Commonwealth Minister for Immigration under the support of the Refugee Audit Tribunal and Federal Court. In mid-2002, Mr. Al-Kateb requested the approval of the Minister to be taken away from Australia but the government did not value such arrangements because it was clear that no other country was ready to take him. The accused decided to seek a declaration within the Federal Court, claiming that his prolonged detention was unlawful. This application was also dismissed by Von Doussa J1. Generally, it can be argued that the case for Mr. Al-Kateb is more related to the development of section 189, 196 and 198 as provided in the Migration Act 1958 (Cth). Section (189) states that every unlawful and non-citizen must be detained. Section (196) provides that such individuals have to be detained until their time of removal from Australia or deported a visa. In this case, the law requires an officer to remove provided reasonably practicable person considered as an unlawful non-citizen (1) asked the Minister through in a written form that to be removed or (6) the valid application to be issued with a visa was rejected and finally determined without the accused making other valid application as stated in section (198)2. The fundamental questions that must be considered relevant in addressing the case of Al-Kateb v Godwin in relation to the decisions made by the High Court include, whether if properly construed, the relevant legislation allege authorization for indefinite detention of the guilty non-citizens in situations where no practicable prospects of removing that particular person from Australia are not achievable. If the relevant legislation purports to authorize the detention, then the question to be responded to is whether it was invalid due to the fact that it was considered to be beyond the Commonwealth’s legislative powers3. Based on the analysis of the case, it is quite clear that a majority of the High Court were of the view that relevant legislation against Mr. Al-Kateb’s indefinite detention case was legally acceptable. The majority consider the decision made by the High Court as being within the Commonwealth’s legislative powers. It is important to note that detention can be for the intention of removal only if the removal is reasonably practicable within the foreseeable future. General comments in regard to how the Common Law has been interpreted Based on McHugh’s argument in Al-Kateb v Godwin (2004) 219 CLR 562; 78 ALJR 1099; 2004] HCA 37 that the issue is not about the courts exercising a high level federal jurisdiction in determining whether the legal action taken by Parliament is unjust or against the basic human rights. It is relevant to argue that the major function of the court should be to determine whether if or not the law of the parliament is exercised in the powers conferred on it and as required by the Constitution. Although Al-Kateb’s case is a dismal but a clear reflection on how the common law of Australia has did not take into consideration the value of protecting human rights. It is apparent in Al-Kateb’s case that the High Court held that the mandatory detention system of the Australia legally authorized the consideration of indefinite detection of unlawful asylum-seeker particularly in cases where his or her prospect removal from Australia was not in the practically foreseeable future. It is arguable that such legal action could be tragic for Mr. Al-Kateb, indicating that the majority of the Australian High Courts were not knowledgeable enough to interpret the relevant legislation in a consistent manner as the requirements human rights protection supports. The parliament made it clearly in section 196, 198 and 196(3) that an officer will be allowed to remove unlawful non-citizen to whom the provisions of those sections are apply provided reasonably practicable. However, the provisions also require that the officer will continue to detain the unlawful refugee until the removal is proved to be reasonably practicable4. This implies that albeit the prospects of removal are at a specified time limit or may not exist, it cannot be assumed that the officer will be relieved of that particular obligation to detain the person until the removal is considered reasonably practicable. It can be argued that detention cannot continue to be indefinite without legitimate efforts being taken into consideration to remove the detainee yet the court has the power to authorize the use of reasonable efforts. On the one hand, a substantial difference must existence concerning the level of intrusiveness of assessing whether reasonable efforts have been considered to effect the removal of unlawful non-citizen and on the other hand, reviewing to determine whether the removal is reasonably practicable within the foreseeable future. For the case of Mr. Al-Kateb, it is relevant to mention that his continued detention may not be reasonably necessary for achievement of removal in case no real likelihood is established to enable the removal within the reasonably near future. Therefore, in such a situation continued detention should not have been regarded necessary against Mr. Al-Kateb. It is relevant to argue that indefinite detention of unlawful non-citizen based on removal order is illegal. It can only be lawful if justification is made to consider it as a proportionate measure to determine the person’s removal. However, indefinite detention does not meet the requirements of proportionality test, and thus it can be viewed as an unlawful violation of the rights of non-citizens. A critical analysis of the majority and minority views in Al-Kateb v Godwin (2004) 219 CLR 562 (i) The majority views and judgment The first question before the High Court required a response as to whether relevant legislation if properly construed, allege to authorize indefinite detention of unlawful non-citizens particularly in circumstances where no practicable prospect of removing the person from Australia? The majority of the High Court held that the relevant legislation considered for the indefinite detection of Mr.Al-Kateb until the time of his removal from Australia was within the requirements of the Commonwealth’s legislative powers. For example, majority such as Callinan, Heydon JJ, Hayne and McHugh had a strong and legalistic approach to the interpretation of the legislation. They argued that no chances of ambiguity were reported in the relevant legislation but the provisions required that continued detention was lawful until removal, deportation or issuing of a visa5. According to these majorities, when relevant legislation was properly construed, it was quite clear that indefinite detention of Mr. Al-Kateb was authorized. In regard to the second question which stated that if the relevant legislation purport to authorize the detention of Mr. Al-Kateb, was it invalid because it did not comply with legislative power or requirements of the Commonwealth? The majority concluded that the relevant legal requirements were under the legislative power of the Commonwealth. They strongly argued that the provisions did violate the Chapter III of the Constitution as their main objective was to protect rather than punish. However, it was not right for them to suggest the Constitution could not be related to the provisions of the international law. This is because the case for Al-Kateb is more or less related to international human rights protection and thus passing judgment by the High Court needed to take into consideration the requirements of international law. (ii) The minority views and judgment The minority judges such as Gleeson CJ, Kirby JJ and Gummow held that there were high incidences of ambiguity in the relevant legislation because it failed to address the possibility the real situation as it occurred in the case for Mr. Al-Kateb6. They suggested two major ways in which the legislation can be interpreted: First, that Mr. Al-Kateb could be kept in detention regardless of how long it took to remove him. In this case, it becomes necessary to argue that if his removal could not be considered practicable, then Mr. Al-Kateb would spend the rest of his life while being held in detention. Second interpretation suggests that Mr. Al-Kateb would still be detained even if his removal was considered a practical possibility. Alternatively, if his removal could be seen as impracticable, then it means his detention would not be considered lawful provided that situation continued. The minority Honours held that such ambiguity could be addressed through a process of statutory development. The preferred views of the majority and minority It would be relevant to mention that the views from one of the majorities-McHugh J should be considered preferable. This is because he seemed to be contradictive when he argued that the provisions of sections 196 and 198 are unambiguous and that they support indefinite detention of Mr. Al-Kateb, albeit that it is not quite clear that any other country within the practicable foreseeable future would offer him entry. It is apparent that even though McHugh considers the provisions of the three sections as the appropriate legal basis for continued detention of Mr. Al-Kateb, he is not quite sure that any other country will be ready to take the accused. Furthermore, the majority Honours held that the legal requirements of the three sections could be easily comprehended, and as such should be used as subject to the purposive limitation or grounds not to affect basic rights. They argued that no considerations of international or jurisprudence related to other common law jurisdictions considerations that were made. This provides the view that majority Honours seemed to criticize the High Court for not taking issues of basic human rights into consideration. The second interpretation of the legislation or the views of the minority Honours that if Mr. Al-Kateb’s removal could be seen as impracticable, then it means his detention would not be considered lawful provided that situation continued is more preferable than the first interpretation. This is because it would make no sense to continue detaining unlawful non-citizen for unknown period of time and whose removal could at the end be considered impracticable. Similarly, Chief Justice Gleeson argued that the main objective to put Mr. Al-Kateb into detention was to enable his removal from Australia. He also held that in cases where that purpose could no longer be achieved, then the court had to make a decision on whether to subject the accused on indefinite detention or suspend the detention. It is preferable in Gleeson CJ’s argument that had the Parliament needed to detain unlawful non-citizens or asylum seekers against the right to human liberty, it would have included that intention within the legislation. Since the Parliament did not consider this intention in the legislation, it would be relevant to point out that suspending detention could be the best alternative over indefinite detention. This is because subjecting Mr. Al-Kateb to indefinite detention would mean violation of his fundamental human rights. The views of Justice Gummow also seem sensible when he supported the idea that detention was basically intended to facilitate the removal of Mr. Al-Kateb from Australia, though not with the delay experienced in his detention and an unlimited time period. Gummow made it clear that if the removal was unlikely to take place, it means that section 198 could no longer hold its primary objective. This clearly suggested that the operation of that particular section was spent. It was prudent enough when Gummow J argued that the court should not encourage the adoption of reading the legislation which recognizes the power of keeping the detainee within custody particularly in situations of unlimited time7. It cannot be doubted that keeping the detainee in custody for unlimited period of time significantly shows how the court had failed to protect the personal liberty of Mr. Al-Kateb. It is arguable in Justice Kirby’s view that the relevant sections of the Migration Act 1958 (Cth) were not very much applicable to Mr. Al-Kateb’s case. Therefore, it would be important to regard them as not sustainable for his continued detention. Based on the considerations of the international law as well as the presumptions of the common law that supports the protection of personal liberty, it would be significant if the relevant provisions from the Migration Act were simply to be read in relation to such abiding values. Generally, the minority judges provide a solution to the first issue by making clear that relevant legislation did not give the court power to subject Mr. Al-Kateb to indefinite detention. Since it was quite clear that the relevant legislation did not grant the court legal power to exercise indefinite detention on the accused, then it was irrelevant to consider the second issue about Constitution. From the statutory interpretation point of view and as provided under the Victorian Charter, it can be noted that the concept of human rights has been defined clearly in section 3 to reflect the civil and political rights stated in Part 2. Furthermore, section 32(2) gives the courts and tribunals legal power to consider international law, domestic and foreign as well as international courts when reading and deciding on the statutory provision. In section 32(1), it has been provided that where the law is ambiguous the courts of Australia are required to work in support of the obligations of international human rights. It is relevant to mention that the courts and tribunals should adopt a human-rights-compatible approach to the interpretation of all the provisions of the law. As a result, relevant use of section 32(1) will imply that the courts will no longer strain to interpret the legislation in order to displace the intended purpose of the Constitution8. Importance of adopting a human-rights-compatible to interpretation of the statutory provisions In adopting the approach, it would be essential for the court to determine whether the relevant requirements of the Migration Act in their case, were consistent with those of the human rights documented in Part 2 of the Victorian Charter9. As it has been discussed previously, the views of the majority indicated that the legislation authorized the indefinite detention of Mr. Al-Kateb. It is worthy mentioning that the idea of indefinite detention greatly influences the several other rights protected under the Victorian Charter. For example, section 21(2) provides the right to freedom from the arbitrary detention as the most common human right. Others that could be triggered in line with the concept of human rights include the right to protection against inhuman, torture and cruel10. The question of whether indefinite detention is considered compatible with such rights or not should be addressed in reference to the international law as well as the domestic and foreign, international courts and tribunals’ judgments. It is quite clear from section 21 of the Victorian Charter that a person must be entitled to free arbitrary detention. This section is separated into other subsections which provide: (1) the right to liberty as well as security of an individual person, (2) a person must not be subjected to detention or simply arbitrary arrest and (3) a person need not to be deprived of his or her liberty but only in cases that are in accordance with the established law. Based on the above legal provisions, it is important in reference to the Al-Kateb’s case to argue that the High Court would have considered it appropriate to hold that the relevant provisions of the Migration Act as authorized for indefinite detention for Mr. Al-Kateb, were not compatible with the human rights protection provided in section 21 of the Victorian Charter. In doing so, the identified provisional incompatibility would trigger a consideration of the provisions of section 32. This could be used to interpret the relevant provisions of the law more effectively and compatibly with the human rights. In conclusion, the international law as well as the domestic laws of nations clearly sets limits on governmental detention. It is important to note that detention will be permissible only if can be reasonably justified. Therefore, it becomes necessary to mention that in certain circumstances, the indefinite detention may infringe the human rights protected under section 10, for example, the right to be free from torture, degrading treatment, cruel and inhuman. Based on the concepts of a human-rights-compatible approach to the interpretation of section 196 and 198 of the Migration Act, it is quite clear that a compatible approach restricts the detention of unlawful non-citizens whose removal time period is unlimited. Basically, this is to favour the personal liberty of such groups of people as reflected in the case of Mr. Al-Kateb whose detention should have been suspended until the time when his removal becomes reasonably practicable and his detention relevant for that purpose. Works Cited Australian Citizenship Act 1948 (Cth). Al-Kateb v Godwin (2004) 219 CLR 562 at 604 (Gummow J) and 614 (Kirby J); 78 ALJR 1099; [2004] HCA 37. Al-Kateb v Godwin (2004) 219 CLR 562 at 602-604 (Gummow J); 78 ALJR 1099; [2004] HCA 37. Mr Al-Kateb appealed first to the Refugee Review Tribunal and then to the Federal Court. Al-Kateb v Godwin (2004) 219 CLR 562 at 581 (McHugh J), 643 (Hayne J), 661 (Callinan J) and 662 (Heydon J); 78 ALJR 1099; [2004] HCA 37. Rules against Torture, Cruel, Inhuman or Degrading Treatment, 10 December 1984, 1465 U.N.T.S. 85. Convention on the Status of Stateless Persons, 28 September 1954, 360 U.N.T.S. 117. Charter of Human Rights and Responsibilities 2006 (Vic), ss 36(6), Explanatory Memorandum, p 23. Human Rights Law Resource Centre, n 41 at [6.1] citing Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287 (Mason CJ and Deane J); 69 ALJR 423. Migration Act 1958 (Cth). Read More