The Al-Kateb Case
The decision of the High Court in
[1]Al-Kateb v Godwin
[2004] HCA 37 provoked great controversy about the interplay between Internaitonal law and Australia law, in particular, the fierce conflicting judgement between Justice McHugh and Justice Kirby.
[2]The case of Al-Ketab concerned the power of the Australian Parliament, and Executive, to detain indefinitely a stateless person who, as an alien, had entered the country unlawfully.
Another major issues in this case is whether legislation should be interpreted consistenly with international law.
In this case, the Court by a 4:3 majority dismissed the appeal, and
[3]ruled that the indefinite, and perhaps permanent, detention was permissible under Australian Law.
The Facts
The appellant, Al-Ketab, was a stateless Palestinian, arrived in Australia without a visa
. He was placed in immigration detention and his application for a protection visa was refused.
[4] This decision was upheld
by the Refugee Review Tribunal, and his appeal to the Federal Court was also unsuccessful. The appellant wrote to the Minister asking to be removed from Australia but the Government was unsuccessful in making these arrangements. He then sought from the Federal Court a writ in the nature of habeas corpus and a writ in the nature of mandamus requiring compliance with s198 of the Mirgration Act. Selway J dismissed the application.
Then,
[5]Al-Kateb sought prerogative relief against two officers of the Department of Immigration and Multicultural and Indigenous Affairs and the Minister, declaring that his detention was unlawful, a writ of mandamus directing his removal, and a writ in the nature of habeas corpus.
This was dismissed by von Doussa J, the appeal against this decision was removed to the High Court under s40 of the Judicury Act 1903(Cth) at the request of the Commonwealth Attorney-General.
The Australian Position
Among the many countries in the world, Australia is one of the few in the world without a constitutional or legislative enactment on the protection of fundamental rights. In fact, even Justice McHugh admitted in Al Ketab case that:
[6]It is an enduring - and many would say a just - criticism of Australia that it is now one of the few countries in the Western world that does not have a Bill of Rights. Further than that,
[7]Australia is also the only Western nation to pursue a policy of mandatory administrative detention of all ‘unlawful non-citizens’, that is, non-citizens who have entered Australia without permission.
In accordance with the
[8]Migration Act 1958 (Cth) (the ‘Act’), all unlawful non-citizens will remain in detention until the occurrence of either one of three events:
(i) release from detention upon the grant of a visa;
(ii) deportation; or,
(iii) removal from Australia at their own request or upon the rejection of their attempts to secure a visa.
The UN Human Rights Committee has considered mandatory detention under the Migration Act on four separate occasions and in each instance has found the detention to be arbitrary in violation of
[9]Article 9(1) of the International Covenant on Civil and Political Rights, which provides:
Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
The absence of a legal enactment on the protection of fundamental rights in Austrlia deeply affects the nature of legal argumentation in cases where the rights of an individual
are directly implicated.
In many previously decided cases, such as:
[10]Polites v The Commonwealth,
[11]Western Australia v Ward. The position that the legislative powers of the Commonwealth are not to be read down to conform to international law has received enumerous support, to a degree that is difficult to overrule.
Judicial Reasoning
In the current case, except Heydon J, each judge in this case has delivered a separate judgment. The judgements of Justice McHugh and Justice Kirby are particularly worth noting, as they are drastically different from each other. Justice McHugh, in his leading judgement for the majority, suggested the direction of international law is irrevelant to the domestic legal context, wherares Justice Kirby, of dissenting, advocated the
[12]‘interpretive principle’:
[13] ‘so far as possible, to interpret their constitutional texts in a way that is generally harmonious with the basic principles of international law, including as that lawstates human rights and fundamental freedoms.’
Few points were made by McHugh J to elaborate his opinion, and subsequently, Kirby J
responsed most points in his judgement. We will examine the relatively significant judicial reasoning in the following:
Justice McHugh
First one all, per McHugh J,
[14]“Given the widespread nature of the sources of international law under under modern conditions”. This is to suggest the scope of international is vague and omnipresent, which causes certain difficulty for its perception.
Secondly, McHugh J suggested that, when using international law in consititutional interpretation, a special capability is required:
[15]“No doubt the rule of construction had some validity when the rules of international law were few and well-known. Under modern conditions, however, this rule of construction is based on a fiction. Gone are the days when the rules of international law were to be found in the writings of a few well-known jurists.” He further stated that:
[16]“Legislators intend their enactments to be given effect according to their natural and ordinary meaning. Most of them would be surprised to find that an enactment had a meaning inconsistent with the meaning they thought it had because of a rule of international law which they did not know and could not find without the assistance of a lawyer specialising in international law or, in the case of a treaty, by reference to the proceedings of the Joint Standing Committee on Treaties.”
Thirdly, McHugh J consider it to be a violation of the legitmate role of judiciary to use international law in consititutional interpretation. He stated in the judgement:
[17]“But, desirable as a Bill of Rights may be, it is not to be inserted into our Constitution by judicial decisions drawing on international instruments that are not even part of the law of this country. It would be absurd to suggest that the meaning of a grant of power in s 51 of the Constitution can be elucidated by the enactments of the Parliament.”
Lastly, McHugh J is of the opinion that international law is
[18]ill-adapted to the domestic context, and therefore is not a relevant influence on the domestic legal system. As per McHugh J:
[19] “those who propose that the Constitution should be read so as to conform with the rules of internationla law are forced to argue that rules contained in treaties made by the executive government are relevant in interpreting the Constitution. It is hard to accept, for example, that the meaning of the trade and commerce power can be affected by the Australian government entering into multilateral trade agreements. It is even more difficult to accept that the Constitution’s meaning is affected by rules created by the agreements and practices of other countries.”
Justice Hayne
Despite the fact that Hayne J indicated that in this particular case, it is
[20]not necessary to examine what weight, if any, should be given to the opinions expressed by the Human Rights Committee established under Art 28 of the ICCPR.’ He nevertheless suggested in earlier of his judgement that:
[21]In particular the transformation just identified cannot be effected by reference to international instruments, whether the International Covenant on Civil and Political Rights ("the ICCPR"), to which the Full Court referred in Al Masri, or other relevant instruments or principles. Let it be assumed that, as was said in Al Masri, "s 196 should, so far as the language permits, be interpreted and applied in a manner consistent with established rules of international law and in a manner which accords with Australia's treaty obligations" (emphasis added). There must, at least, be doubt about whether the mandatory detention of those who do not have permission to enter and remain in Australia contravenes Art 9 of the
ICCPR when the detention is in accordance with a procedure established by law (Art 9(1)) and the lawfulness of that detention can readily be tested in a court (Art 9(4)) (as is the lawfulness of the appellant's detention). There would appear to be circularity of reasoning in asserting that the detention is not lawfully authorised by s 196 because, if it were not lawfully authorised by that section, it would breach the obligations undertaken by Australia in Art 9 of the
ICCPR that "[n]o one ... be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law".
Hayne J considered that, the Constitution, in the event of an ambiguity, should not be presumed to be consistent with international law. That’s why he said:
[22]These submissions cannot be accepted. The statutory language is clear and unambiguous. It leaves no room for any implications of the kind found by the House of Lords and the Privy Council.
Chief Justice Gleeson
Gleeson CJ of dissenting, relied upon a common law principle of statutory interpretation which he expressed:
[23]In exercising their judicial function, courts seek to give effect to the will of Parliament by declaring the meaning of what Parliament has enacted. Courts do not impute to the legislature an intention to abrogate or curtail certain human rights or freedoms (of which personal liberty is the most basic) unless such an intention is clearly manifested by unambiguous language, which indicates that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment. That principle has been re-affirmed by this Court in recent cases.
Justice Kirby
Strongly conflicting to McHugh J’s view, Kirby J concluded :
[24]They do not bind as other "rules" do. But the principles they express can influence legal understanding. In which he established that the principles of international law are an appropriate influence on the meaning of constitutional provisions.
In response to McHugh J’s opinion on use international law in consititutional interpretation would be a violation of the legitmate role of judiciary, Kirby J said:
[25]McHugh J objects to the use of the "rules" of international law to inform the interpretive principle that I favour. "Rules" is a word I have not used, preferring as I do "principles" or "basic principles". International law, including as it declares universal human rights and fundamental freedoms, exists in the form of "rules" and discourse. This is the tangible manifestation. "[P]olitical, social or economic developments", which McHugh J accepts can throw light on the meaning of the Constitution, generally appear in other forms. But if they can have their influence in the form in which they exist, so can the "rules" of international law in the form in which they manifest themselves.
Consequences of the Court’s decision
The Court’s decision in this case still renders Australia in breach of its obligations under the ICCPR. On top of that, it is also upsetting to see
[26]the court’s unwillingness to engage with the principles of international human rights law in circumstances which so clearly brought them into play.
However, despite the dismissal of Mr. Al- Ketab’s appeal by the court, the High Court decision provides certain assistance for the government’s position that the mandatory detention regime is in compliance with international human rights standards,
[27] the Minister for Immigration and Multicultural and Indigenous Affairs, granted Mr Al-Kateb bridging visa, in the exercise of her discretion, thereby granting him respite from the High Court’s effective life sentence.
Subsequent to this exercise of discretion, the government has announced the creation of ‘Removal Pending Bridging Visa’, which is a new temporary visa that would enable the release of asylum seekers in long-term detention who have been refused refugee status but are unable to return to their country of origin.
Legitimate Expectation
It is actually interesting to see that the contradictory views could be found and supported in the judgements:
[28]international law may not be used in the interpretation of the Constitution;
the Constitution, in the event of an ambiguity, should not be presumed to be consistent with international law
and that:
international law may be used in the interpretation of the Constitution;
the Constitution, in the event of an ambiguity, should be presumed to be consistent with international law
Set aside this paradox, it’s not an understatement to say that Kirby J had almost successfully
[29]"amend[] the Constitution under the guise of interpretation" in this case.
[30]The case saw the High Court divided 4:3, taking a strict legalistic approach by the majority to the legislation and the minority a purposive approach defensive of individual liberty and consistent with the principles of international human rights law. Quoting Kirby J:
[31]the lawfulness of the detention was upheld by the narrowest margin.
With regard to using international law in constitutional law interpretation, it’s extreme significance lies on the fact that Kirby J gave a detailed discussion when delivering his judgement, which set out the following principles:
He has rejected McHugh J’s approach of using subjective interpretation, but purposive interpretation instead :
[32] Today, legislation is construed by this Court to give effect, so far as its language permits, to its purpose. This is an objective construct. The meaning is declared by the courts after the application of relevant interpretive principles.
[33]The purposive approach accommodates itself readily to an interpretive principle upholding compliance with international law, specifically the international law of human rights. This is because, as Professor Ian Brownlie has explained, municipal or domestic courts when deciding cases to which international law is relevant, are exercising a form of international jurisdiction. In exercising municipal or domestic jurisdiction, such courts give effect to interpretive principles defensive of basic rights as recognised in local law. In exercising international jurisdiction, they likewise give effect to interpretive principles defensive of basic rights upheld by international law.
He also said:
[34]And it should do so because that interpretation is consistent with the principles of the international law of human rights and fundamental freedoms that illuminate our understanding both of the provisions of the Act and of the Constitution applicable to this case.
In accordance with this principle, Constitution should be read in the light of norms of international law,
whilst this interpretive principle is not yet in vogue with a majority of the High Court, it is predictable that as the understanding of the Constitution evolves this principle will inevitably gain currency.
[1] http://www.austlii.edu.au/au/cases/cth/high_ct/2004/37.html
[2] http:// www.hcourt.gov.au/speeches/kirbyj/kirbyj_30mar05.
[3] p.403, International Law, Donlad K Anton, Penelope Mathew & Wayne Morgan
[4] Never say never, Julian Curtin, www. austlii.law.uts.edu.au/au/journals/SydLRev/2005/16.html
[5] Ibid n.4
[6] Ibid, n.1 at 65
[7] On the subject of AL-KATEB v GODWIN, www.ucl.ac.uk/laws/event/al-kateb_godwin.pdf
[8] http://www.austlii.edu.au/au/legis/cth/consol_act/ma1958118/
[9] http://www.unhchr.ch/html/menu3/b/a_ccpr.htm
[10] (1945) 70 CLR 60
[11] [2003] FCAFC 124
[12] Ibid, n.1 at 193
[13]Ibid, n.1 at 175
[14] Ibid, n.1 at 65
[15] Ibid, n.1 at 63
[16] Ibid, n.1 at 65
[17] Ibid, n.1 at 73
[18] A tale of two systems: The use of international law in consititutional interpretation in Australia and South Africa, Devika Hovell
,George Williams,www.austlii.edu.au/au/journals/MULR/2005/3.html
[19] Ibid, n.1 at 71
[20] Ibid, n.1 at 239
[21] Ibid, n.1 at 238
[22] Ibid, n.1 at 298
[23] Ibid, n.1 at 19
[24] Ibid, n.1 at 173
[25] Ibid, n.1 at 173
[26] Ibid, n.4
[27] Ibid, n.3
[28] Ibid, n.18
[29] Ibid, n.1 at 191
[30] Ibid, n.4
[31] Ibid, n.2
[32] Ibid, n.1 at 167
[33] Ibid, n.1 at 168
[34] Ibid, n.1 at 193
