High Court of Australia

Al-Kateb v Godwin [2004] HCA 37

219 CLR 562; 78 ALJR 1099; 208 ALR 124

6 Aug 2004

Case Number: A253/2003

Before

Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan, Heydon JJ

Catchwords

Immigration – Unlawful non-citizens - Detention pending removal from Australia - No real prospect of removal from Australia in reasonably foreseeable future - Whether detention lawful under Migration Act 1958 (Cth) - Whether detention is temporally limited by purpose of removal - Whether requirement to remove as soon as reasonably practicable implies time limit on detention.

Statutes – Acts of Parliament - Construction and interpretation - Where meaning ambiguous or uncertain - Presumption of legislative intention not to invade personal common law rights.

Constitutional law (Cth) – Judicial power of the Commonwealth - Unlawful non-citizen in immigration detention - No real prospect of removal from Australia in reasonably foreseeable future - Whether provision for indefinite detention without judicial order infringes Chapter III of the Constitution - Whether detention involves an exercise of judicial power of the Commonwealth by the Executive - Whether detention is for a non-punitive purpose.

Constitutional law (Cth) – Construction and interpretation - Whether Constitution to be interpreted to be consistent with international law of human rights and fundamental freedoms.

Constitution – Ch III.

Migration Act 1958 (Cth) – ss 189, 196, 198.

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