Page:NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs.pdf/15

Gageler CJ Gordon J Edelman J Steward J Gleeson J Jagot J Beech-Jones J

might also have referred to Subdiv B of Div 7 of Pt 2, which provides for the Minister to make a residence determination permitting a person required to be detained under s 189(1) to reside at a specified place instead of being detained at a place of detention, and Pt 8C, which provides for periodic assessment by the Commonwealth Ombudsman of the appropriateness of detention arrangements for a person who has been in immigration detention for two years or more.

In 2021, the considerations of legislative reliance and implicit legislative endorsement identified by Kiefel and Keane JJ in 2013 were reinforced by the Parliament's assumption as to the correctness of the Al-Kateb construction which informed the insertion of s 197C(3) by the Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth).

To all of those considerations of legislative reliance and implicit legislative endorsement must now also be added the decision in The Commonwealth v AJL20. There the majority (Kiefel CJ, Gageler, Keane and Steward JJ) endorsed key aspects of the reasoning of the majority on the issue of statutory construction in Al-Kateb. The majority did so in referring to the statutory construction holding in Al-Kateb, and saying that the word "until" in conjunction with the word "kept" in s 196(1) indicates that detention under s 189(1) is "an ongoing or continuous state of affairs that is to be maintained up to the time that the event (relevantly, the grant of a visa or removal) actually occurs".

The cumulation of these considerations leads inexorably to the conclusion, reflected in the answers stated in the order made at the end of the hearing of the special case, that leave to reopen the statutory construction holding in Al-Kateb should not be granted.