Australian Constitutional Law

Involuntary detention can be imposed on a person for a number of reasons such as entering Australia's borders without a valid visa, being a terrorist suspect, being associated with a terrorist group, criminal breaches of the law, mental illness, or infectious diseases. Orders for non-punitive detention can be made by either the courts or the Executive and can be for an indefinite period in some circumstances. 1 People entering Australia without the correct documents (aliens) are detained while they are processed for either deportation or an entry permit.

2 People with severe mental illnesses or infectious disease can be subjected to involuntary detention for either their own protection or that of the community. 3 People who are terrorist suspects or are suspected of being associated with terrorist groups can be restrained by a control order (CO) or detained by a preventive detention order (PDO) issued from the Executive4 and/or courts and they can be detained without charge,5 often in solitary confinement,6 pending the investigation of the allegations.

Punitive incarceration is finite as there has either been a sentence handed down or a trial date set. 7 The non-punitive detention of people, such as aliens or terrorist suspects, are often detained, without charge, pending the outcome of numerous issues and investigations. 8 Both the Executive and the courts are constrained by a number of pieces of legislation9 that deal with punitive and non-punitive detention.

These pieces of legislation have been held to be valid by the High Court in various cases10 and they have been found, by the High Court, to be supported by a number of heads of power11 including defence, migration, external affairs and aliens heads of power. The High court has consistently recognised the power of the Parliament to legislate in relation to aliens. This legislative power gives the Executive, not only the power to expel or deport aliens, but also to detain the aliens as long as it takes to perform the deportation if their application for entry has been rejected.

13 There are, however, a number of restrictions inbuilt into the legislation on the requirements and terms of the detention. If a person has been in Australia for two months and does not make an application within that time, then Section 54P(2)14 of the Migration Act 1958 (Cth) (Act) requires that person to be expelled as soon as is possible, or if a person has been denied entry to Australia, Section 54P(3) of the Act requires they be expelled as soon as is possible after their entry has been refused.

15 Also sections 54L and 54N16 of the Act gives the Executive the powers of detention with a limited number of important restraints that are imposed by provisions of Division 4B17. Section 54N, Division 4B18 of the Act permits a maximum of 273 days that a person can be detained for after they have lodged their application for entry to Australia. However, the 273 days does not include time that is lost, outside the control of the department, for things such as delays in transfer of information or delays in hearing dates which would stop the finalisation of the entry application.

19 The limitation that Section 54N and 54L20 of the Act imposes on the executive powers ensures to a great degree that detention is limited to what is necessary for the purposes of processing people for either entry or deportation. 21 While legislation is clear in its coverage of aliens who have applied for entry and have either been accepted or refused entry, or those who have not made an application, it is not clear on the length of time aliens can be held while awaiting deportation once their application has been refused, however, this is displayed in the Al-Kateb22 case.

Al-Kateb23 arrived in Australia without a valid visa and was incarcerated in accordance to s189(1)24 of the Act. He applied for a visa but failed so he asked to be deported in accordance with s198(1)25 of the Act, but it seemed that no other country would accept him so he faced possible life time detention. He went to the courts to try and have his detention ruled unlawful, but both the Federal and High Courts dismissed his application.

26 The majority in the High Court decision "(McHugh, Hayne, Callinan and Heydon JJ) held that, although the legislation did not specifically authorise indefinite detention, it did unmistakably apply to that situation"27 They held that the words of ss 196 and 19828 are unmistakable and required that Al-Kateb remain in incarceration as no other country is likely to allow him entry in the projected future. 

In Wolley30 the High Court held that ss 196 and 198 also applied to alien children31 even though article 9(1) of the International Covenant on Civil and Political Rights32 (ICCPR) that was ratified by Australia (1980) says no child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child has to be in agreement with the law and should be used only as a measure of last resort and for the shortest appropriate period of time,33 which appears not to be reflected in Australian Law.

34 Also the ICCPR35 says in Articles 7, 9(1) and 10(1) that people have a right to be treated in a way that is not cruel, degrading and should not be subjected to torture and inhuman treatment,36 the High Court were of the opinion that s 196 of the Act37 was not in breach of the ICCPR. 38 When aliens are detained, the High Court sees it is as being non-punitive detention in its nature and even if the detention is indefinite, it will continue to be non-punitive. 39 The High Courts has embraced "Gaudron J's view that several grants of legislative power, including the aliens' power, may" support the indefinite detention as being non-punitive.

40 It is clear that the High Court sees the detention of aliens as being legal and that sections 196 and 198 of the Act41 are valid as they are supported by the naturalisation and aliens head of power (s51(xix) Constitution42). While there are restrictions set out in the Act43 in relation to detention while the application for entry is being processed44, it seems to be the agreement of the High Court that an alien can be held indefinitely if an entry visa to Australia is refused and there is no country that the alien can be deported to.