Mandatory Detention of Stateless Asylum Seekers in Australia: Would a Bill of Rights Make a Difference?

Abstract

The Australian Federal Government's policy of mandatory detention of asylum seekers has had a particularly grave impact on stateless persons in immigration detention in Australia because, following the High Court decision in Al Katebv Godwin, they may be detained indefinitely at the will of the Executive. This article examines whether a nonentrenched Bill of Rights such as the New Zealand Bill of Rights Act (NZBORA) 1990 would have changed the outcome of the Al Kateb case. Application of New Zealand case law on immigration detention shows that the threshold of 'arbitrary' would be met in the Al Kateb case. However, despite the prohibition on arbitrary detention in the Bill of Rights, it can be argued that the relevant provisions of Australia's Migration Act specifically authorise indefinite detention of asylum seekers, which cannot be overridden by invoking the protections of a Bill of Rights. Yet, it is also possible that a Court would construe that Parliament could not have intended to have legislated for indefinite detention of stateless persons and accordingly that a Bill of Rights-consistent meaning of the statute must be adopted.

Keywords: New Zealand Bill of Rights Act, Migration Act, stateless, asylum seekers, arbitrary detention, statutory interpretation

JEL Classification: K33