Introduction from 'The Liberty of Non-Citizens: Indefinite Detention in Commonwealth Countries'

Abstract

The attached chapter introduces a book on the legality of indefinite detention pending removal, centred on Australia, the United Kingdom and Canada. The cases discussed in the book raise fundamental questions about the nature and extent of immigration powers, the legal position of non-citizens and counter-terrorism law and policy. The book speaks to a more general interest in determining the scope of liberty rights in democratic societies. Who can be interned to protect who from what and for what reasons?

In the introduction I outline two opposing judicial positions that define the fault lines of the debate on the legality of indefinite detention. I argue that these two models of immigration detention supply the jurisprudence with a constant pattern in the face of a diverse range of legal contexts and circumstances. This pattern amid diversity grounds the claim that more than any particular rights framework what matters are judicial understandings of the legal position of non-citizens, understandings available in each of the jurisdictions considered. I consider a developed, and influential, attempt to justify a marked hierarchy of liberty rights between citizens and non-citizens, offered by John Finnis in an article in the Law Quarterly Review. Finnis’ account makes explicit an evaluation of the judicial positions at odds with my own, providing a foil. I explain my choice of jurisdictions and introduce some of the basic differences and commonalities between them.

Keywords: Indefinite detention, immigration detention, preventive detention, national security, Zadvydas, rights of non-citizens, equality, statutory purposes, proportionality, the Commonwealth, John Finnis, comparative public law, Australia, United Kingdom, Canada, Al-Kateb, Belmarsh, Charkaoui

JEL Classification: K10, K30, K33