Uncertainty and Exclusion: Detention of Aliens and the High Court

Federal Law Review, Vol. 34, p. 127, 2006

ANU College of Law Research Paper No. 07-02

35 Pages Posted: 24 Apr 2007

Abstract

In a series of judgments in late 2004, the High Court found that the Migration Act 1958 (Cth) unambiguously provides for the indefinite detention of unlawful non-citizens, and that such a law is constitutionally valid. The cases are significant not only for reflecting different approaches to statutory construction, the aliens power and the potential protections offered by Ch III - the manifest issues before the Court - but for the broader perspectives of Australia's constitutional arrangements and the control of public power. With specific reference to the judgments in Al-Kateb and Re Woolley, this paper argues that the majority were inherently informed by a largely unstated assumption about the Court's constitutional role that relies upon an unprecedented deference to the other branches of government, as well as an attitude towards aliens as a category - reflected in the rhetoric of control, exclusion and unlawfulness - that echoes a regrettable part of Australia's constitutional inheritance. By neglecting to state or address these assumptions upfront, and by failing to present a coherent test to stand in the stead of the protection which earlier case law had promised, the majority's reasoning loses both its moral authority and legal coherency.

Suggested Citation

Zagor, Matthew, Uncertainty and Exclusion: Detention of Aliens and the High Court. Federal Law Review, Vol. 34, p. 127, 2006, ANU College of Law Research Paper No. 07-02, Available at SSRN: https://ssrn.com/abstract=982010

Matthew Zagor (Contact Author)

ANU College of Law ( email )

Canberra, Australian Capital Territory 0200
Australia

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