Just Cases | Season 1 | Episode 3 | How you can be detained for life without trial

The story of Ahmed Al-Kateb has far-reaching consequences for individual liberty. Mr Al-Kateb wanted to go home to Palestine, but the High Court decided he could be held indefinitely in Australia despite committing no crime.

One constitutional law expert describes this "shocking case" as one which "shows us how even very clever judges sitting on the High Court can sometimes make terrible mistakes".

Music in this episode:
- 'China Town' by Audiobinger (CC BY-NC 4.0 license)
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Transcript | Just Cases | Season 1 | Episode 3 | How you can be detained for life without trial

Patrick Emerton: [00:00:00] These ideas around executive power and the limits of executive power and the importance of liberty, the tradition of how one reads and applies the law. These are all parts of our constitution, which are fundamental

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Patrick Emerton: The striking thing about the case is that it's as if the majority judges went out of their way to depart from legal tradition to find that the government had the power to detain. Mr.

Al-Kateb,

Melissa Castan: welcome to Just Cases. Melissa Castan with you again today. There's an old adage that if you do the crime, you'll do the time. It's not a legal concept by any stretch of the imagination, but it does reflect [00:01:00] a common understanding that jail time is a form of punishment that flows from committing an illegal act.

But can you be locked up if there's been no illegal act? Patrick Emerton is an associate professor at Monash Law School, and today we'll hear the story of one man who just wanted to go home, but the high court said he could be held for the rest of his life. This is the story of Al-Kateb and Godwin, which was decided in 2004.

Welcome, Patrick.

Patrick Emerton: Pleasure to be here to talk out one of the most important cases the high court has decided.

Melissa Castan: Patrick Emerton. Who is Amed eb?

Patrick Emerton: Mr. Al-Kateb was an asylum seeker who came to Australia. He came from Kuwait, but he wasn't Kuwaiti. He was Palestinian except Palestine inside a country. And so in fact, he was stateless.

He came to Australia. Australia, as it does with all asylum seekers who come to Australia, locked him up. He wasn't found to be eligible for a refugee visa, so he asked to be sent home, but Kuwait wouldn't have him and [00:02:00] no other country in the region would admit him. And he had no right to go anywhere 'cause he was not a citizen of any country.

And so the question came, will he be locked up in Australia forever? And the high court said, yes, that could happen.

Melissa Castan: So this is a quite a shocking case in many ways. The idea that a person with no state to go to and who comes to Australia for refuge and is not accepted in Australia for those purposes can be left trapped in this kind of lacuna of law.

Patrick Emerton: Yeah I think that's all fair. It is a shocking case and it shows. It shows a number of things. One thing it shows is the cruelty of the Australian system of what we call mandatory detention. That all people who come to Australia without visas must be locked up because that meant that no immigration officer had the power not to lock him up.

They were obliged to under the law. It shows how international law and the law of citizenship and nationality can fail. A person, it [00:03:00] reminds us of the still unsettled even more than a decade after this case was argued, still unsettled question of the status of Palestine and Palestinians as an international legal question, I.

And it also shows us how even very clever judges sitting on the high court can sometimes make terrible mistakes.

Melissa Castan: So can you explain to me how this case ended up in the high court and what Al-Kateb's lawyers argued and how did the high court respond to some of those arguments?

Patrick Emerton: So the case ended up in the high court because having indicated his desire to be deported from Australia back home.

And then having been told no one would take him, and so he was going to be faced with the prospect of indefinite and potentially lifetime detention. Mr. Al-Kateb, through his lawyers, was seeking an order that detention was unlawful. This is in our law called an order of habeas corpus, which,

Melissa Castan: Habeas corpus is an interesting old fashioned [00:04:00] concept.

It what does that mean?

Patrick Emerton: So I'm going to. Quote to you, a passage from the dissenting judgment of Chief Justice Gleason. Thanks. The order for habeas corpus is an order that a person who's being detained by a public official be presented before the court so that the legal basis for their detention can be explained and approved or rejected by the court end.

Justice Gleason and his judgment referred to the remedy of habeas corpus as a basic protection of liberty, and he quoted an earlier judge saying that this is the greatest and the oldest of all prerogative Ritz, and he's quite capable of adapting itself to the circumstances of the times. And that was the argument that Mr.

Al-Kateb's lawyers were making, that the circumstances of the times were different from when habeas corpus was invented in England hundreds of years ago. He wasn't a person suspected of a [00:05:00] crime who was being detained, or he wasn't a political prisoner who was being detained. He was a stateless man, being detained under a system of mandatory detention for the purpose of deportation.

And Mr. Al-Kateb's lawyers were saying. When he can't be deported because no one will have him, then he can't be detained for the purpose of deportation 'cause that purpose has failed and therefore there's no other lawful basis to detain him. So he must be freed.

Melissa Castan: This really takes me to a question that I get asked sometimes.

Yes. Which is, can you lock someone up prior to them having a court case that determines their innocence or guilt?

Patrick Emerton: The answer to that is mostly no, but sometimes yes.

Melissa Castan: And when would the Yes come back? So the

Patrick Emerton: yes would come in. So very common case of yes, which a lot of listeners would've heard of is if you've been arrested for a crime and you have a court case pending, you can be held on remand and that's where the law of bail.

And the law of remand intersect. And indeed, [00:06:00] before the modern law of bail, the law of habeas corpus was the way that judges gave bail. So someone who was on remand would say, I'm not a sufficiently dangerous person to be held while I'm awaiting trial. I'll put up a bond if you. And promised to turn up to my trial if you give me freedom.

So habeas corpus is connected to that law, the history of the law of remand and bail. And

Melissa Castan: are there other forms of preventative detention that are legitimate?

Patrick Emerton: There are other ways you can be locked up. So the government has the power to put people into compulsory quarantine in some circumstances for public health reasons.

Prisoners of war can be. Locked up while the conflict is ongoing. And there is legislation which lets certain people connected to national security investigations be locked up, although the constitutionality of that legislation is doubtful. And another time I'll perhaps explain to you and to our listeners why I think that's the case.

Melissa Castan: I'd love to hear about [00:07:00] it.

Patrick Emerton: But in Australia, probably the most important category is the one that. Mr. Al-Kateb was affected by that. It's well established in Australian law that because the Commonwealth government. Can make laws about aliens, about foreigners. That can include laws which lock foreigners up who are in Australia without a visa so that they can either be processed for the issuing of a visa or processed for deportation.

And and the logic I say the logic of locking them up is to make sure that they don't enter Australia in a way. That sits outside those processes of either being granted a visa or alternatively being denied entry and so deported.

Melissa Castan: And so if I was to put it at its most simplest, Mr. Al-Kateb's situation was he could neither be deported nor be processed.

Patrick Emerton: That's right. He couldn't be processed for a visa or those avenues had run out and he was no longer seeking a visa. He wanted to be deported, but he couldn't be deported either. So he, if you like, he fell between the two [00:08:00] stools that the law contemplated and that was what the argument was.

Melissa Castan: So how did the court respond to those arguments,

Patrick Emerton: perhaps?

Surprisingly, it all turns on the word until, as these things sometimes do, as these things sometimes do. So the relevant law was section 196 of the Migration Act.

Melissa Castan: Okay, so take us to that section.

Patrick Emerton: Section 196 says that a person who's in Australia unlawfully that means here without a visa, must be kept in immigration detention until removed or deported, or granted a visa.

And the majority of the high court said, Mr. Al-Kateb is not, and has not going to be Grant, is not going to be granted a visa and isn't seeking a visa. They said the government is intending to remove him at his request and they're busy negotiating with Kuwait and other countries to see if anyone will take him and therefore he can be detained while they do that.[00:09:00]

Melissa Castan: And so that, that's where until, comes into it, it's still to happen.

Patrick Emerton: That's right. But the minority said that. This was to ignore what they called the temporal dimension of the word. Until that until contemplates an endpoint, it contemplates that something will come to pass.

Melissa Castan: So until is not actually an indefinite type of until

Patrick Emerton: yeah.

So it doesn't mean the same mess if, for example, so detained if not given a visa. And not yet deported. Until they said has a temporal dimension. It implies a thing is going to happen. And they said in this case, his removal wasn't going to happen. That. The federal court, so a lower court in the hierarchy who'd heard aspects of the matter on its way up.

A lower court had found that there were no reasonable prospects of his removal because he was stateless and no one would have him. [00:10:00] And so the minority said that word until then had, if you like to use lawyers language, being spent the until wasn't gonna happen anymore.

So they said he had fallen into a gap in the law.

Because it was no longer that it was being held until deportation. 'cause that had fallen over. He wasn't seeking a visa. And they said there's a gap. And in our system of law, if there's a gap, the government can't hold you. And that's a fundamental premise in our system of law that the government can't keep you a prisoner.

Is that something written in

Melissa Castan: our constitution?

Patrick Emerton: The answer is yes, but an invisible ink.

Melissa Castan: There's a few clauses in our Constitution that might be written in invisible ink. And there's a few that are there that we might wish were written in invisible ink.

Patrick Emerton: So when I say it's there in invisible ink, our constitution says that the Commonwealth government has what the Constitution calls executive power.

And executive power is two words, and that encompasses [00:11:00] about 400 years of legal and political history. And. Perhaps most important in that is it encompasses what happened in the English Civil War and the Revol revolution of that, which established that the government of its own power has no right to take people and detain them, and in the, perhaps the stereotypical.

Conflict between the English self-conception of law and justice, and a rather sneering attitude towards the French system. This has been expressed by saying in English law, unlike in pre-revolutionary France, there was no letter of cachet, no warrant issued by the king to hold someone in the Bastille at the King's pleasure.

Melissa Castan: So the king couldn't do that in England. So the king in England, and likewise, the executive couldn't do that in Australia

Patrick Emerton: because those two words, executive power that appear in our constitution, bring with them this vast amount of historical baggage and meaning, which includes stuff the government can do and stuff that by [00:12:00] heritage it can't do.

And one of the things it can't do is lock people away at its own pleasure. It has to have some sort of law, some valid law to authorize that. And here, the minority judges, in my view quite correctly said that Mr. Al-Kateb found himself in a gap between those two parts of the law, visa and deportation. So the law had ceased to speak.

And when the law is silent, the government has no power. Independent of that. To take people and lock them up, and

Melissa Castan: thus the writ of habeas corpus. Thus the

Patrick Emerton: writ of habeas release, the prisoner should have issued, he should be released. And he could be released on terms such that he can report to plea or to immigration authorities on a regular basis.

So in case they can deport him, they can find him. It wouldn't necessarily be complete freedom. It will be similar to bail. But he wouldn't have been liable to detention.

You are listening to just Cases from Monash Law School. On today's episode, Melissa's talking to Patrick Emerton [00:13:00] about how the high court got it wrong in a case called Al-Kateb and Godwin, and some of the consequences that decision might continue to have another case involving A pretty serious mistake by the courts is featured in episode one of just cases.

A dagger at the heart of society. It's the middle of World War I and the Australian government launches a stinging attack on an international extremist network of German sympathizers. When an Aussie policeman is murdered in a small country town, the stage is set for a showdown between the cops, killers, and a political system with everything to lose.

Check it out@justcasespodcast.com. Back to Melissa Castan and Patrick Emerton on the high courts decision in Al-Kateb and Godwin.

Melissa Castan: So the majority in this case found that the government was entitled to hold Mr. Al-Kateb in detention. The minority found that [00:14:00] the government had to release him. So for his personal situation, that means he remains liable to detention. Was he kept in detention.

Patrick Emerton: He wasn't kept in detention in the end. So the government had a, an atypical fit of compassion, one could say, and and issued him a visa gratuitously.

If you like. And so he wasn't obliged to stay detention.

And was in the end allowed to remain in Australia. But

Melissa Castan: interestingly, the rule in Al-Kateb's case still stands. So even though he personally was released by the grant of Visa, by the minister, the rule that the majority put forward here about the migration act and the preventative detention remains still part of our law now.

Patrick Emerton: Absolutely. And that's why the case remains of great and in a sense, very tragic significance even though his personal situation was resolved. And that's the nature of these important cases. They deal with a matter for the individual, but they also [00:15:00] established law and interpretations of laws and approaches that have it.

Consequences for potentially decades or longer into the future for other people. And the issue in this case was re argued more recently and one of the original dissenting judges, justice Bill Gumma, was still on the court and he stuck to his guns and re-articulated very powerfully his argument.

The majority of the court on that occasion found another way to duck the issue. So they, so are you're saying

Melissa Castan: that the majority's position in Al-Kateb's case still could be open for re argument at some later time if the right case came along?

Patrick Emerton: I think the case is so controversial and so widely regarded as having been wrongly decided that I think that in the future there's a good chance that and I should say in Australia's.

Policies around immigration detention continue, although at present a lot of that has been off outsourced to [00:16:00] offshore systems. But it seems like within the future, the matter will perhaps be re argued again, and then I think there will be lawyers who will I. Who will tackle it head on because it is such a contentious decision and so widely criticized.

And the striking thing about the case is that it's as if the majority judges went out of their way to depart from legal tradition to find that the government had the power to detain Mr. Al-Kateb. And what I mean by that is that there's a long tradition in our system of law. In high court cases, it goes back to 1,908, which is only five years after the high court came into being.

Where when there's these ambiguities or doubts in a law, one should construe the ambiguity in favor of individual liberty, and this is what. The dissenting judges, the minority judges in Al-Kateb's case did, but the [00:17:00] majority

Melissa Castan: gave more deference to the government. Yeah. So it's

Patrick Emerton: almost, yeah, that's right. So the majority accepted the government's argument about the proper interpretation of the law in a way that almost.

Disregarded this very well established tradition of how the law should be read and was a sort of a type of, almost a type of deference or concession to the government, which is quite different from the tradition of the high court, which has always prided itself on, its on its adherence to legal tradition.

It often describes itself as a court, as strict legalism. It's adherence to legal tradition and it's disregard of political consequences that political consequences are for the government and the parliament to sort out. And we saw this when the court disallowed Ben Chifley's program from bank nationalization.

And we saw this when it disallowed. Bob Menzies program to be in the Communist Party. And we saw this when it upheld Bob Hawke's legislation to save the Tasmanian dams. And we saw this when it struck down Julia Gillard's legislation for the Malaysia solution.

Melissa Castan: So that's quite a [00:18:00] conventional approach in our high.

So sometimes governments

Patrick Emerton: win, but often they lose, and the court doesn't engage with the politics, it just engages with the law. I think Pat's most famously the Marvo case, we are dealing with the politics of native title is the government's problem, not the court's problem. It's job is to do the law.

Melissa Castan: And in, in each of those cases that you've given an example of the government had to come back later with corrected legislation. That's right. And reticulate the political solution in a more. Conventional or more acceptable. Yeah. Legislative framework.

Patrick Emerton: That's right. That's what happens in a country with a constitution.

The government has to obey the law. That's what it's for. I'm shocked. So shocked. So and so that's what's so notorious almost about this case, and therefore that's why I think it seems likely one day that it will be re argued either I mentioned before that. The issue came up and the majority of the court found a way to duck it.

It was interesting that justice Hane, who was in the majority in Al-Kateb, was on the court on that later occasion. On that occasion, [00:19:00] declined to comment either on the correctness or the incorrectness of his previous decision because he could resolve the matter. On other grounds.

Melissa Castan: Patrick, none of the high court judges that sat on Al-Kateb's case are still on the bench now, and there's been a series of cases over the last.

Five to 10 years that have sought to challenge the way Australian law deals with refugees and people who are in immigration detention. Why has there been such a constant flow of cases challenging these laws that have been established by Parliament?

Patrick Emerton: I think the. So the reason why people keep suing, I think is fairly straightforward.

People don't like being in prison unjustly so and people who have been detained under these laws seek their freedom. So I guess why does it keep happening? Because the laws are constitutional and so people lose their cases. But then something new happens about the way someone's in detention. So we get cases where say, children are born in detention, and [00:20:00] the question of their citizenship status arises.

Or you get cases where people have been held offshore but are brought to Australia for medical treatment. And the question of whether that changes their status comes up. So every new utilization, even rather minor. Tweak or variation in someone's circumstances. These people and the lawyers who advise them and help them think maybe there's a way in from this new set of circumstances that will help us find a way to get these people's freedom.

But fortunately on the whole these attempts fail because mostly the the. Detention is lawful. There are two cases that come after Al-Kateb where one was fairly close, one less but I think the court perhaps got it wrong. So one of those cases is a case known by the imaginative name of CPCF.

A lot of these cases the people's names don't appear because they're anonymized to protect their privacy.

Melissa Castan: Yeah. So those cases like M [00:21:00] 69 or. S

Patrick Emerton: 1 57, 1

Melissa Castan: 57. That's just the issuing number that in the court that they're issued in. That's right. So M 69 is the 69th case for that year issued in the Melbourne registry, right?

That's right. But we use those numbers because we don't wanna reveal a name of the person who's fleeing persecution. That's

Patrick Emerton: right. So in a case called CPCF, the question was whether. The Commonwealth government with its patrol boats out on the high seas could intercept asylum seeker vessels and take those people onto the Australian customs or naval vessel.

And carry them off to other places. And, a majority of the court found that there was such power. Interestingly justice Hayne, who was the key member of the majority judgment in. Took the lead in the dissent in CPCF and held that the way that conduct had taken place did amount to an unlawful detention of those asylum seekers

Melissa Castan: because they're held [00:22:00] by the executive in detention.

But not under the migration act in the same way that Al-Kateb had been held under the migration. In that

Patrick Emerton: case, it was under a different law called the Maritime Powers Act. But the key issue for Justice Hane was that the government was taking these people in a little married tour of the Indian Ocean, trying to find somewhere that would take them.

Not unlike Al-Kateb, but he, in that case, he so we talked about until in the migration act. So in. In the CPCF case, there were similar sorts of words around how people could be taken on boats and when they had to be disembarked. Think again on that occasion. Justice Hoehn was sensitive to the temporal element and found that the government in taking people on a married tour, wasn't adhering to the temporal requirement, and so was exceeding its power and therefore, again, locking people up without any lawful authority and therefore.

They should have been freed. So one can look at a [00:23:00] case like that and of, it's very hard to speculate about high court decisions, but one wonders, had Justice Haynes heart softened in some fashion, or did he really think there was an important technical difference in the way the two laws were drafted? If the latter, then one could imagine some drafter somewhere in the Commonwealth government got in trouble for not having drafted the second law as tightly as the first one.

But in any event, that case. Again, the majority found that detention was lawful, but Justice Hayne led a powerful descent. And then the other interesting, again, even more recent case was about detention in Nauru. So again, a majority of the court held that the Australian government, I. Isn't responsible for that 'cause it's the government of Nauru that's doing it.

Melissa Castan: But Patrick is the government of Nauru holding the people in detention or the government of Australia or some private entity?

Patrick Emerton: The majority said it was the government of Nauru using its sovereign power over Nauru to hold people on Nauru. And the Australian government was just helping the delivery

Melissa Castan: vehicle.

Yeah,

Patrick Emerton: the delivery vehicle, [00:24:00] but not the legal detainer. Ah, there were three judges who I think. Three out of the seven. So again, a minority who saw the situation in a way that you are, I might think is more realistic, but two judges said the detention nevertheless was permissible because it was permissible for Australia to participate in a regional regime for trying to resolve asylum claims.

But one Judge, justice Gordon, the, at that time, the newest judge on the court and the wife of Justice Hane, because there'd been so few women on the high court and because same sex marriage isn't lawful in Australia, this is the first time a sort a spouse has been appointed following the retirement of her husband.

So Justice Gordon found that the Australian government was doing the detaining 'cause. It was the one providing all the money and resources and that it was unlawful for the Australian government to hold. Foreigners in prison, in a foreign country. 'cause that wasn't connected to keeping them out of Australia.

Melissa Castan: So in all of the cases [00:25:00] that you've spoken about today, there's actually been a division in the high court. Not everybody has been in agreement that the government's approach is legal and constitutional and correct. In each of the cases there's been amongst a very. Esteemed and expert bench of judges dissent amongst them about the legality or the constitutionality of the particular laws.

The other day, the minister for immigration said that it was an Australian foot lawyers to keep prosecuting cases to assist asylum seekers and refugees on the basis that he was. Going against, the Australian legal system. Yeah. I found that a very confounding thing for a minister to say about lawyers and the court process.

Patrick Emerton: I'm prepared to go beyond confounding is outrageous and ridiculous. The right of personal liberty in our system, but in any contemporary and half decent legal system's, fundamental, which means if you're locking people up, a huge burden. Falls on the government to justify that.

Melissa Castan: And it's quite a conventional concept.

And so [00:26:00] that's not a radical concept in any way?

Patrick Emerton: Not remotely, no. The idea that liberty is fundamental, that could come from the lips of Bob Menzies, right? And so the idea that lawyers who seek the writ of habeas corpus for their clients who are being locked up because they. Believe that the detention's unlawful, the idea they're doing something un Australian is just absurd.

They're upholding the greatest traditions of the Australian legal system, which draws upon a much broader heritage and is part of a modern constitutional movement and understanding about the centrality of. And the centrality of law as the way of regulating how governments deal with people and deprive them of liberty.

And if the government doesn't wanna be challenged for locking people up, then the solution's pretty easy. Let them out.

Melissa Castan: That's probably not the solution that they were thinking of. Do you think it's real that the government really thinks that lawyers shouldn't challenge the legality of the government's laws?

Or is it just really [00:27:00] a kind of political game that they're engaging in?

Patrick Emerton: Yeah, I'm not a political commentator and so it's hard to judge.

Melissa Castan: Oh it's hard to judge.

Patrick Emerton: But I guess the majority of Australians, I think, dunno. We have a constitution, so I'm not in that category. A majority of Australians who know we have a constitution think it's deeply flawed in a lot of ways and unusually for.

Has the constitutional law academic in Australia. I'm not in that category either. I'm in the unusual category of course our constitution has some deep and significant flaws and more importantly, some deep and significant gaps, which one hopes are soon going to be remedied, at least in some fashion.

But I'm one of relatively small group. We think our constitution also has a number of really valuable elements and these ideas around. Executive power and the limits of executive power and the importance of liberty, the tradition of how one reads and applies the law. These are all parts of our constitution, which are fundamental.

And so it becomes [00:28:00] so as someone who in, in that way might get characterized as a constitutional conservative in some ways not in all ways, but in some ways. It's particularly galling to see ostensibly conservative political actors in effect treat the system with disdain or trash. It.

Melissa Castan: It's unusual times we live in.

Thank you very much, Patrick.

Patrick Emerton: It's been a great pleasure.

Just Cases is a production from Monash Law School. Music in today's episode from Audio Binger, you can check out the back catalog of Just Cases online, just cases podcast.com and subscribe on iTunes, Stitcher, and SoundCloud. While you're on iTunes, check out some other great law podcasts. The Scarlet Letter is a podcast that looks at law from a woman's perspective.

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