Page:NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs.pdf/16

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

Reopening of the constitutional holding in Al-Kateb

The facts of AJL20 did not raise whether, on the construction of ss 189(1) and 196(1) of the Migration Act adopted in Al-Kateb and endorsed in AJL20, those provisions have valid application to an unlawful non-citizen in respect of whom there is no real prospect of removal from Australia becoming practicable in the reasonably foreseeable future. The majority in AJL20 specifically recorded that the correctness of the constitutional holding in Al-Kateb did not arise for consideration.

Twelve years before Al-Kateb and two years before the insertion of Divs 7 and 8 of Pt 2 of the Migration Act, the Court decided Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs. There it was necessary to determine the constitutional validity of two earlier and then recently inserted sections of the Migration Act which authorised and required the detention of a person who was within a category of non-citizens who had entered Australia unlawfully by boat. The detention was required to continue unless and until the person was either removed from Australia or granted an entry permit, but the maximum period of detention was capped at 273 days and the person was required to be removed from Australia "as soon as practicable" if the person asked for that to occur. The impugned sections were held to be supported by s 51(xix) and not to contravene Ch III of the Constitution.

The reasoning of three members of the Court (Brennan, Deane and Dawson JJ), with whom a fourth (Mason CJ) agreed, that the impugned sections