Unlawful failure to remove extends lawful detention: A critique of the decision in AJL20
10.03.2023
Introduction and overview of AJL20
In The Commonwealth v AJL20 (‘AJL20’), an unlawful non-citizen (AJL20) argued that his continuing detention in immigration detention was unlawful. AJL20 was a person who engaged Australia’s international non-refoulement obligations. That is, he was a refugee and so, consistently with international law, could not be removed to his own country, Syria. The Australian government had a policy not to breach its international obligations, and so officers of the Commonwealth had not arranged for AJL20’s removal to Syria as soon as reasonably practicable.
At trial, Bromberg J held that AJL20’s continuing detention was unlawful, and ordered that he be released. Bromberg J considered that AJL20’s detention had become unlawful because officers of the Commonwealth had not complied with, and were not taking steps to comply with, the requirement in s 198 of the Migration Act to remove AJL20 from Australia ‘as soon as reasonably practicable’. Bromberg J held that the power to detain under s 189(1) of the Migration Act 1958 was constrained by reference to the purpose it served: removal of the person from Australia. He held that, if the duty to remove was not being pursued, detention was no longer authorised.
The Commonwealth appealed against Bromberg J’s decision, and the Commonwealth Attorney-General removed the appeal into the High Court.
By majority, the High Court allowed the appeal. It was held that AJL20’s detention was, at all times, lawfully permitted and required by the Migration Act, notwithstanding the failure of Commonwealth officers to comply with the duty to remove him as soon as reasonably practicable. The effect of the decision has previously been the subject of a post on this blog by Sangeetha Pillai.
In this post, I offer a critique of one aspect of the reasoning of the majority judges. Essentially, the majority reasoning permits and requires detention by the executive to continue, even though the purposes for which detention can occur are constitutionally limited, and even though the detention exceeds what is reasonably necessary to give effect to the permissible purposes established by the Migration Act. I argue that, in construing the Migration Act in this way, the majority in AJL20 have implicitly given it an operation that authorises and requires continuing executive detention in excess of constitutional limits if officers of the executive have failed to comply with other duties imposed on them by the Act.
Some key provisions of the Migration Act
Key provisions of the Migration Act relating to detention include the following:
(a) Section 189(1) imposes a duty on ‘an officer’ to detain a person in the migration zone (essentially meaning Australia) whom they know or reasonably suspect is an unlawful non-citizen.
(b) Section 196(1) requires (simplifying slightly) that the detention of an unlawful non-citizen who is detained under s 189 must continue until they are removed from Australia, deported, or granted a visa.
(c) Section 198 contains various provisions that require an officer to remove a detainee from Australia as soon as reasonably practicable after some event has occurred (usually the final determination of the last visa-related decision in relation to the person).
(d) Section 197C, as then in force, provided that, for the purposes of s 198, ‘it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen’. (Section 197C has since been amended so that the duty to remove a non-citizen is excluded where there is a ‘protection finding’ in relation to them.)
AJL20 argued that, because his detention had continued and the executive had not removed him as soon as reasonably practicable, his detention was not for the purpose of removal from Australia and was unlawful. AJL20 argued that constitutional limitations on detention by the executive, which had been recognised in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (‘Chu Kheng Lim’), prevented the Act from authorising detention beyond what was reasonably necessary to remove a non-citizen from Australia as soon as reasonably practicable.
The High Court majority held that the operation of ss 189 and 196, in authorising detention, was not conditioned on the actual achievement of the removal of the non-citizen as soon as reasonably practicable by the executive. A person who remained detained, despite it having been reasonably practicable to remove them, or despite the fact that available steps had not been taken to arrange for their removal, could not be released from detention – because the Act required them to continue to be detained until they were in fact removed. The appropriate order to remedy the failure of the executive to pursue the purpose of removal was an order to compel compliance with the duty in s 198 of the Act – the duty to remove – not an order that would release the person from detention into the community (at [73]).
The majority referred to the duties to remove (in s 198) as ‘hedging duties' (at [44]-[45], [48], [52]). It was said that ‘the authority and obligation of the Executive to detain unlawful non-citizens is hedged about by enforceable duties’, which give effect to legitimate non-punitive purposes. The Act is valid because the detention objectively pursues those purposes.
A notable feature of the majority judgment is its description of the relevant ‘purpose’ of the detention as ‘segregation pending receipt, investigation and determination of any visa application or removal of an unlawful non-citizen’ (at [25]). In previous cases, the statutory purpose has often been described simply as ‘removal’. In AJL20, the purpose of detention was frankly identified as ‘segregation pending … removal’ – which (as I have previously argued) is surely more accurate.
In practical terms, the decision in AJL20 makes clear that, no matter how long it takes to remove someone – and whether it is reasonably practicable to remove them or not – this will not result in their continuing detention ceasing to be lawful. A detainee’s only remedy in a case of unduly extended detention is to seek mandamus to compel their own removal from Australia.
Critique
The intersection of s 189, s 196 and s 198 of the Migration Act
The conclusion of the majority was summed up in [73]:
The conclusion that officers of the Executive have not discharged their statutory duty to remove the respondent from Australia as soon as reasonably practicable affords a basis for orders requiring that they do their duty. Orders to that effect are appropriate to enforce the scheme of the Act. In contrast, to order that the respondent be released into the Australian community because officers of the Executive have not performed their statutory duty to remove him from Australia is to subvert that scheme.
In other words, the scheme of the Act was that an unlawful non-citizen must be detained until, relevantly, they were either removed from Australia or granted a visa. There could be no ‘middle ground’.
However, the scheme of the Act, when viewed as a whole, did not just require that an unlawful non-citizen be detained for however long it took for their removal to occur. The scheme of the Act equally required that officers of the executive remove a person as soon as reasonably practicable. So, when viewed as a whole, the Act only contemplated detention of any person until it was reasonably practicable to remove them. The Parliament must be taken to have intended that the executive would comply with the duties to remove imposed by s 198 of the Act, and thus that persons should in fact be removed in accordance with those duties. Standing back and looking at the scheme of the Act as a whole, the effect of the duty to remove as soon as reasonably practicable is that no-one – if dealt with by the executive in accordance with law – should continue to be detained for longer than the period actually necessary to remove them.
Undoubtedly, the terms of s 196 of the Act could be read as requiring that detention must continue up until the point of actual removal, even if the point of removal in fact was long past the point when removal could reasonably practicably have been effected. Indeed, on its language alone, it seems fair to say that that is the most natural reading of s 196(1).
The issue of statutory construction in AJL20 was this: should the Parliament – not having expressly addressed what should happen in the event of official non-compliance with the relevant duty to remove in s 198 – be understood as having countenanced that detention should continue, even where that duty was not actually being pursued and performed? Alternatively, should the general words of s 196(1) be read down to apply, for example, only where the duty was being pursued? The latter construction would not involve a great stretch, because s 196(1)(a) expressly refers to detention until removal ‘under s 198’. That clearly indicates that what Parliament had in mind in enacting s 196(1) was the situation where the duty in s 198 was being complied with. Section 196 does not appear to contemplate or specifically address a situation where that duty was not being complied with.
Constitutionally permitted purposes of detention and the Migration Act
In Chu Kheng Lim, it was accepted that the constitutional validity of executive detention depended upon whether detention was capable of being seen as being for a particular purpose – namely, the purpose of removal from Australia (and segregation from the Australian community until removal can occur).
Al-Kateb v Godwin involved a situation where it was not reasonably practicable to remove a person in the foreseeable future. The primary question in that case was whether, on its proper construction, the Migration Act required detention to continue until it was reasonably practicable for the person to be removed from Australia – even if that might never be the case. In Al-Kateb, it was held that indefinite detention could occur in that situation. But that was where the purpose of removal was being pursued, albeit that it might never be practicable to achieve removal.
The issue in AJL20 was different. This was a case where it was (or may have been) practicable to remove the person but, nevertheless, steps were not being taken to effect their removal. This was due, it appears, to a conscious choice made by officers of the executive to comply with Australia’s international obligation rather than the domestic law duty imposed by s 198. Properly identified, the question of constitutional law presented by AJL20 was whether the Commonwealth Parliament could validly enact a law that required executive detention to continue in circumstances where the permissible purpose of removal was not in fact being pursued.
‘First order’ and ‘second order’ commands: can detention continue if the Executive fails to perform its duties under s 189?
The well-known case of Project Blue Sky v Australian Broadcasting Authority concerned the question of statutory construction that arises where there has been non-compliance with an apparent precondition to the exercise of a statutory power. That question, a majority of the High Court held, was to be answered by asking ‘whether it was a purpose of the legislation that an act done in breach of its requirements should be invalid’. The identification of that question highlights the fact that a legislature can issue commands (either expressly or as a matter of implication) at different ‘levels'. Not only may legislation impose a primary duty, which is required to be complied with (a ‘first order’ command); it can also make provision for what is to happen in the event that that primary duty is not in fact complied with (a ‘second order’ command).
Applying this to the Migration Act detention regime, it is apparent that, as a ‘first order’ command, it imposes a primary duty on officers of the executive to remove a detainee as soon as reasonably practicable. Of course, the Parliament may be taken to expect that that duty ordinarily will be complied with. But legislation may also address the situation that may arise where, despite a primary duty having been imposed, that duty is not complied with in fact. The legislation may then make a second order command as to what is to occur in the event that its first order command is not complied with.
The construction of the Act accepted by the majority in AJL20 effectively treats the Parliament as having addressed that second order question by providing that, in the event of non-compliance with its first order command, detention must continue until removal in fact occurs.
Constitutional difficulties with the majority’s construction
The constitutional difficulty with the above construction, in my view, is that the regime for executive detention is premised on the basis that it is valid only because it is directed to the purpose of removal from Australia as soon as reasonably practicable. The requirement that detainees be removed from Australia as soon as reasonably practicable, once purposes associated with assessing whether they should be allowed to enter Australia have been exhausted, was previously said to be essential to the validity of the regime (see Plaintiff S4 v Minister for Immigration and Border Protection (‘Plaintiff S4’) at [26]).
If that is so, how can it be open to the Parliament to command that detention is to continue while that purpose is not in fact being pursued? Or – perhaps a slightly different question – how can Parliament authorise detention to continue for a period which exceeds that which is reasonably necessary to achieve that purpose?
The constitutional limitation is that executive detention must be reasonably capable of being seen as serving the non-punitive purpose – in this case, relevantly, removal. But in AJL20, the Migration Act was interpreted as effectively saying that detention was not only to continue for so long as is necessary for that purpose. Instead, if the executive government failed to comply with its duty to pursue that purpose, then the detention was to continue anyway, until removal in fact occurs (if it ever does). The Migration Act does not say that expressly. But I suggest that the effect of the majority position is that that is what Parliament is being taken to have said by implication.
The Parliament could not, consistently with Chu Kheng Lim, enact a law which provided, on the one hand, that persons of a particular class were to be detained until they are removed from Australia, but, on the other hand, that the executive was under no duty to remove them. Such detention would not then be limited to what was necessary for the legitimate purpose of removal. (Indeed, this is exactly why the majority in AJL20 considered it important that the detention was bounded by ‘hedging duties’.)
If that is correct, how could the Parliament validly enact a law that provides that persons of a particular class are to be detained until removed, and the executive is under a duty to remove them, but that if the executive ignores that duty, the detention is to continue notwithstanding that it exceeds what was justifiable by reference to the pursuit of the legitimate purpose?
It was said in Plaintiff S4 that the Migration Act was not to be construed as permitting detention at the discretion of the executive (at [34]). Now, clearly, in one sense, the Act does not permit detention at the discretion of the executive. That is because it requires the executive to remove as soon as reasonably practicable, and compliance with that first order duty will bring detention to an end.
But, according to the AJL20 majority, what the Act does do is to say that if the executive in fact, and contrary to law, does exercise a discretion not to remove, then the detention continues. That is, the Act does not ‘permit’ detention at the lawful discretion of the executive, but it gives legal effect to the de facto exercise of a discretion by the executive, by causing that exercise of discretion to have the effect of extending lawful detention.
Conclusion
Contrary to the insistence of the majority in AJL20 that ‘the rule of law’ required that Parliament’s decision to provide that detention must continue until removal, at another level, the majority’s conclusion seems to fly in the face of the rule of law. It allows the executive to continue a form of detention which is lawfully authorised, and constitutionally can be authorised, only for a particular purpose, despite its failure to purse that purpose. This raises serious concerns as to how the ‘permissible purposes’ of detention identified in Chu Kheng Lim can, in fact, serve as a meaningful check on executive power.
Stephen McDonald SC is a barrister at Hanson Chambers and an Adjunct Associate Professor at the University of Adelaide.
Suggested citation: Stephen McDonald ‘Unlawful failure to remove extends lawful detention: A critique of the decision in AJL20’ on AUSPUBLAW (10 March 2023) <https://www.auspublaw.org/blog/2023/3/unlawful-failure-to-remove-extends-lawful-detention-a-critique-of-the-decision-in-ajl20/>