The High Court and Mr Ahmed Al-Kateb

Recently the High Court of Australia determined that a stateless person, who had committed no offence against any law of Australia and who had requested deportation following the failure of his request for refugee status, could be detained here indefinitely, and if necessary for life, if no foreign country were willing to receive him. This is a decision that shocks the conscience.

The case received almost no attention in the national press. Yet, it was one that disclosed bitter division in the Court and it may also suggest a profound shift in the Court’s perception of its role in the protection of fundamental human rights. It is worth examining it more closely.

The stateless person in question was Mr Ahmed Al-Kateb. Mr Al-Kateb had been born in Kuwait of Palestinian parents. This was insufficient to accord him citizenship of Kuwait. In the absence of a Palestinian state, therefore, he was left as a ‘stateless person’. After having spent considerable time wandering the Middle-East in search of a home, Mr Al-Kateb arrived in Australia by boat in December 2000, without a passport or a visa. Upon landing he was detained pursuant to the Migration Act 1958.

The provision most relevant to his case was section 196. This states, in summary, that a person who is an ‘unlawful non-citizen’ must be kept in immigration detention until either the person is removed from the country, deported, or granted a visa. Mr Al-Kateb’s problem, after three years in detention, was that he had been refused a visa but could not be removed or deported because no country had been found that was willing to receive him. He was sick at heart, sick of incarceration, wished to leave Australia — but had absolutely nowhere to go.

The decision in the case, then, concerned two principal questions.

First, how should s.196 of the Act be interpreted? And, secondly, did the Constitution provide any foundation upon which Mr Al-Kateb’s continuing detention might be challenged?

The majority in the case, Justices McHugh, Hayne, Callinan and Heydon, decided that s.196 was unambiguous. The provision states that a person must continue to be detained until a visa is issued or removal is effected. If that meant, in the absence of a capacity to remove him, that Mr Al-Kateb’s detention would be for life then that was the consequence that must follow as a matter of law. The words, as Justice Hayne put it, were ‘intractable’.

The minority, Justices Gleeson, Gummow and Kirby, disagreed fundamentally. s.196, they believed, rested upon an underlying assumption that the purpose of the provision — i.e. a person’s removal — was capable of fulfilment. However, if Mr Al-Kateb could not be removed, because no other country would admit him, the provision’s purpose lapsed. Where the purpose was spent, therefore, detention must be suspended. This result followed from the great statutory and common law presumption in favour of the liberty of the subject.

The Court was equally divided on the principal constitutional question. Speaking generally the Constitution forbids a person’s detention for any punitive purpose unless that detention has been authorised by a court following a judgment of criminal guilt.
Nevertheless, it is recognised that the Executive may detain a person for a non-punitive, administrative purpose in certain special circumstances. The detention of a person under immigration law for the purpose of determining whether they should be permitted to enter Australia is one such recognised exception.

On this question, the majority decided that the purpose of Mr Al-Kateb’s detention was administrative and so, by definition, was non-punitive in nature. As Justice Hayne summarised the matter, the Constitution permitted the ‘segregation’ of aliens from the Australian community. Such segregation was neither penal nor punitive.
The minority responded by asserting that no clear line could properly be drawn between punitive and non-punitive detention. The one might easily merge into the other. Consequently, it was primarily with the deprivation of a person’s liberty that the Constitution and the Court had to be concerned.

In the present case, therefore, as Justice Gummow encapsulated the matter:

It is hardly to be supposed that in speaking of the denial to prohibited immigrants of membership of the Australian community (this Court) was giving support to the notion that legislative power with respect to such persons would support a system of segregation by incarceration without trial for any offence and with no limit of time.

Yet it is this, precisely, that has been the outcome of the case. How then should the Court’s reasoning be assessed?
It should be said first, of course, that the legislation is not the creation of the Court. It is the responsibility of the Government and the Parliament. The Court’s role is to interpret the legislation, not to make or reformulate it. So, if the Parliament makes it clear and unambiguous that the lifelong executive detention of those seeking asylum is contemplated explicitly, there is nothing that the Court can or should do to undermine that purpose.

It is incidentally a source of disgrace that during the course of these proceedings the Government amended the Migration Act to make it absolutely clear that lifelong detention could not be excluded as one consequence of the Act’s operation.

Next, however, as the disagreement between the judges reveals so clearly, the statute was plainly open to competing interpretations. In that circumstance, it is difficult to understand why those in the majority chose to regard the words as intractable, particularly when the consequences for Mr Al-Kateb and those like him, were so tragic and draconian.
The majority’s literal stance left no room for a consideration of the presumption of liberty. It shut the gate on numerous prior judicial decisions to the effect that, in case of doubt, laws should not be interpreted in a way that is prejudicial to individual liberty. In the most influential of these statements, a prior Court stated that:

the rationale of the presumption is to be found in the assumption that it is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law without expressing its intention with irresistible clarity.

The choice not to infringe Mr Al-Kateb’s fundamental rights was open. The majority chose not to exercise it.
Its conclusion on the constitutional question of punitive versus non-punitive detention is even more difficult to comprehend, let alone justify. Only in the most rarefied of atmospheres could it be said that a lifetime of incarceration does not constitute punishment.

Justice Hayne was the single judge who chose to confront this issue directly. His response to it says as much about the personal values that may have informed his judgment as it does about the proper position of the law. He said that:

It is essential to confront the contention that, because the time at which detention will end cannot be predicted, its indefinite duration (even, so it is said, for the life of the detainee) is or will become punitive. The answer to that is simple but must be made. If that is the result, it comes about because the non-citizen came to or remained in this country without permission.

In other words, if lifelong detention is the outcome of the case, it is neither the fault of the law nor of the authorities. The fault resides with the individual who sought to land here seeking refugee status in the first place. Further, it remains a complete mystery how this judicial allocation of blame contributes anything whatsoever to a sensible justification or explanation of the initial proposition — that lifelong detention does not constitute punishment.

The principal implications of the case, however, lie far deeper than this. The Court has adopted a very literal, semantically founded interpretation of both statute and Constitution. This suggests a measure of deference to the will of the Executive that is likely to narrow significantly its role as a guardian of individual rights and liberties and expand governmental power correspondingly.
The focus on ‘words’ rather than on tragic outcomes has led the Court to adopt some very questionable propositions, the most absurd of which is that life detention cannot constitute punishment.

Particular, prejudicial words deployed in some judgments also have most unfortunate connotations. The reintroduction of the idea of ‘segregation’ into the legal and political lexicon, for example, is deeply troubling. On this theme too, one looks in vain through the majority judgments for any words suggestive of wisdom or compassion. But words like these, as the philosopher Raimond Gaita pointed out in a recent address, appear to be going dead on us. If that is so, it is a profoundly dispiriting reflection on our language and our thought. The Court, regrettably, has contributed to this degradation.

Finally, in his recent Boyer lectures, Chief Justice Gleeson pointed out correctly that:

Those for whose rights we need to be zealous are the unpopular, those against whom campaigns of public vilification may be waged, those whose activities, even though lawful, are sought to be made the object of public disapproval.

Consistently, and to his credit, Chief Justice Gleeson abandoned his traditional judicial allegiance to the majority in this case and joined the minority. Those in the majority, by contrast, failed awfully to meet the criterion he set down. And so, Mr Al-Kateb’s life seeps away.

Upcoming articles by Spencer Zifcak will include:

The High Court on Punishment in Detention Camps
The High Court on Children in Detention
The High Court on Indefinite Detention of Sex Offenders

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