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Four to three they've thrown away the key

By Richard Ackland
Sydney Morning Herald
September 17, 2004

How can it possibly be right in a sunny democracy like ours that the Government has the authority and power to keep an alien in detention forever - or, in temporal terms, until the poor wretch dies in captivity? We're not talking of someone who, as a result of breaking the criminal law, has to be incarcerated and punished. The case in question arose because of a stateless Palestinian, Ahmed Ali Al-Kateb, 28, who arrived in Australia in December 2000 and whose application for a protection visa was knocked back all the way up the food chain to the full Federal Court.

This "unlawful non-citizen", as he is characterised bureaucratically, then asked to be sent to Kuwait or Gaza, presumably on the strength that they are the next closest freedom-loving places to Australia. The Kuwaitis didn't want him and to go to Gaza, oddly enough, requires the permission of Israel which, so far, has been unyielding.

The migration law says that our "unlawful non-citizen" must be kept in immigration detention until removed from Australia or granted a visa. Here, uniquely, neither has happened and as one judge lower down the labyrinth said of Mr Al-Kateb, "there is no real likelihood or prospect of removal [from Australia] in the reasonably foreseeable future". So, if the legislation says he stays in detention in theory, if not in practice, this is what must happen, until hell freezes over, or certainly longer than your average murderer would ever be likely to see out.

That's what the High Court thinks, and found so just last month - at least by a bare majority of four of the seven judges. It scarcely seems credible. Something must be wrong with the thinking, surely? There can be little surprise that the Commonwealth's Solicitor-General, David Bennett, and his team of the finest from the Government Solicitor's office, would argue strenuously that this is the only acceptable outcome, but for the High Court to swallow it seems, well, scary.

One particularly fetching body of thought can be found in the reasons provided by Justice Hayne, a leading light of the indefinite incarceration school. He said that no real likelihood or prospect of removal from the country in the reasonably foreseeable future "does not mean that continued detention is not for the purpose of subsequent removal". This sounds awfully close to saying that if you keep him locked up long enough, who knows, one day some country, maybe even Nauru, might take him. Therefore, according to this reasoning, the purpose of the particular section in the legislation is not "spent" just because efforts to find somewhere else for this stateless being to live have so far not been successful.

This is to be contrasted with the leading minority judgement of Justice Gummow, who thought that where, as a matter of practicality, the person cannot be removed from our shores, then there must be a "constraint" in the operation of the law. In fact, the legislation can no longer be said to retain a present purpose of facilitating removal from Australia, "and to that extent the operation of [the legislation] is spent".

Spent or not spent - such is the exquisite finery of the law. The majority of the court thought that the interpretation of the meaning of the legislation does not "yield" the meanings contended by the alien. It was a classic judicial battle between literal and "interpretative" approaches, and in this case it's fascinating to see where the literal approach ends up taking us. At least the minority judges (Gleeson, Gummow and Kirby) contorted themselves modestly enough to arrive at the "spent" conclusion. Kirby went further and piled on plenty of thinking from the US and English courts and international law and questions of the legislation's constitutional validity.

He suggested one way around the problem would be to say that the power of detention can, in a comparatively short time, turn into punishment, and under the constitution punishment is the reserve of the judiciary, not the other branches of government. He didn't adopt that approach in the end, because he found the interpretation of the legislation yielded to Al-Kateb's contentions.

Yet, Kirby got into terrible bother from Justice McHugh for his troubles. McHugh said it is difficult to accept that the constitution's meaning is affected by rules created by the agreements and practices of other countries. If that were so, judges would need a "loose-leaf" copy of the constitution. McHugh was adamant that Kirby was amending the constitution under "the guise of interpretation". Kirby shot back: "My conclusion is no more a judicial attempt to 'amend the constitution under the guise of interpretation' than were the many decisions of this court, in which McHugh participated, where the process of interpretation produced a significant change." Thoughtfully he listed those cases which included Kable, Lange, Mabo and Dietrich.

The case shows the vigour with which the High Court's "culture wars" are being fought, and that arriving at a literal interpretation requires no less an amount of contortion than arriving at an interpretative one.
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