Australian Constitutional Law and Theory - Chp 15 PDF

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Australian Constitutional Law and Theory Chapter 15 – Judicial and Non-Judicial Detention  Together, Chu Kheng Lim and Kable provide the basis for a new constitutional jurisprudence of constraints imposed by Ch III on all laws which diminish individual liberty. The laws tested by the Court against these emergent principles have been addressed to asylum seekers, convicted sex offenders, suspected terrorists and members of organised criminal associations.  While Ch III limits the powers of both the Commonwealth and State Parliaments, the restraint is not identical. This is due to the lack of any doctrine of the separation of judicial power at the State level corresponding to that declared in respect of the Commonwealth in the Boilermakers Case. 2. The Lim Principle  Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs  Deportation – can be held in detention by the executive until either given an entry permit or deported. Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship  Held that laws authorising or requiring the detention in custody by the executive of non-citizens, being laws with respect to aliens within s 51(xix) f the Constitution, will not contravene Ch III of the Constitution, and will therefore be valid, only if [Cheng Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs]: ‘the detention which they require and authorise is limited to what is reasonably capable of being seen as necessary for the purposes of deportation or necessary to enable an application for an entry permit to be made and considered’.  The common law does not recognise any executive warrant authorising arbitrary detention. A non-citizen can therefore invoke the original jurisdiction of the Court under s 75(iii) and (v) of the Consititution on respect of any detention if and when that detention becomes unlawful. What begins as lawful custody under a valid statutory provision can cease to be so. 3. The Kable Doctrine – Incompatibility  In the Boilermakers Case, the High Court and the Privy Council regarded Ch III of the Constitution as excluding any combination of non-judicial power with the judicial power of the Commonwealth.  In Hilton v Wells the majority accepted an exception to the Boilermakers principle: a federal judge can be appointed to the individual as a persona designata and not in a judicial capacity,

 In Grollo v Palmer the court recognises an exception to the exception: the persona designata does not apply if the functions to be performed are ‘incompatible’ with the holding of judicial office. Community Protection Act (1994)  (1) On an application made in accordance with this Act, the Court may order that a specified person be detained in prison for a specified period if it is satisfied, on reasonable grounds.  A majority of the High Court invoked the ‘incompatibility doctrine’, holding that the function conferred on the Supreme Court by the Community Protection Act was ‘incompatible’ with its exercise of federal judicial power (permitted by s 77(iii) of the Constitution). Thus the point was not that the Act was an inappropriate exercise of (State) legislative power, but that the function assigned to the Supreme Court was incompatible with the exercise by that court of (federal) judicial power. Kable v Director of Public Prosecutions  Although it is for the States to determine the organisation and structure of their court systems, they must each maintain courts, or, at least, a court for the exercise of judicial power of the Commonwealth.  They cannot abolish their courts – to this extent, at least, the States are not free to legislate as they please.  State courts are neither less worthy recipients of federal jurisdiction than federal courts.  Another matter which emerges from a consideration of the provisions of Ch III is, that the State courts when exercising federal jurisdiction ‘are apart of the Australian judicial system created by Ch III of the Constitution.  Chapter III requires that the Parliaments of the States not legislate to confer powers on States courts which are repugnant to or incompatible with their exercise of the judicial power of the Commonwealth. New South Wales v Kable  What the High Court did in Kable (No 1) is therefore consistent with the jurisdiction to make a preventive detention order, purportedly conferred on the Supreme Court by the CP Act, being judicial in character, albeit having features which made the conferral of that jurisdiction incompatible with Ch III of the Constitution. 4. Protective Detention  The combined effect of Chu Kheng Lim and Kable suggests that the detention of a person against their will may be constitutionally permissible only when determined by a court, and only when the determination conforms to the traditional procedures and safeguards of the judicial process.

Kruger v Commonwealth (Stolen Generation Case)  Held that even if an exercise of judicial power had been involved, the argument would still fail because Ch III has no application in the Territories.  The power to order involuntary detention is an incident of judicial power. In Chu Kheng Lim v Minister for Immigration it was spoke of that ‘the general proposition that the power to order that a citizen be involuntarily confined in custody is, under the doctrine of the separation of ….. powers enshrined in our Constitution, part of the judicial power of the Commonwealth entrusted exclusively to Ch III courts.  There are qualifications to the general proposition and include detention in cases of mental illness or infectious disease and committal to custody awaiting trial.  In Lim itself the court upheld a law conferring upon the executive authority to detain an alien in custody for the purposes of expulsion or deportation.  It was said in a joint judgement that ‘the citizens of this country enjoy, at least in times of peace, a constitutional immunity from being imprisoned by Commonwealth authority except pursuant to an order by a court in the exercise of the judicial power of the Commonwealth’.  Arrest and custody pursuant to a warrant pending trial, detention by reason of mental illness or infectious disease, and punishment for contempt of Parliament and for breach of military discipline were recognised in lim as exceptions to the immunity which their Honours would there acknowledge.  Involuntary detention can only result from a court order. 5. Immigration Detention Al-Kateb v Godwin  Held that as a matter of statutory construction, the Migration Act authorises detention even if a detainee has no prospect of being removed from Australia in the reasonably foreseeable future and held that the Act was within Commonwealth legislative power.  Chu Kheng Lim and Al-Kateb provide strongly contrasting approaches to determining the validity if ongoing immigration detention. The former emphasised the role of Ch III in providing a broad immunity, admitting of different grades depending upon citizenship, and from which various exceptions were to be drawn. In the latter case, the majority preferred instead to determine any limitation as a matter of characterisation under s 51. 6. Preventive Detention Baker v The Queen

 Baker v The Queen involved an unsuccessful attempt to use the Kable Principle to invalidate State Legislation directed to preventing the release from prison of person earlier convicted of serious offences.  Under s 13A od the Sentencing Act 1989 (NSW), a person who had completed at least 8 years of a sentence of life imprisonment could apply to the Supreme Court from determination of sentence.  A result of the 1997 determination in Crump’s case was the amendment of s13A so that ‘a person who is the subject of a non-release recommendation’ was required to complete 20 years imprisonment before making an application.  As Toohey J put it in Nicholas: ‘There is nothing in the relevant provisions which singles out an individual, as in Kable v DPP, or which singles out a particular category of persons. ...