THE CONSTITUTION OF LAW Part 5 docx

anxiety about judicial review of legislation 91

judges, said Willis, invoke their preferred maxims of statutory interpreta￾tion ‘not as a means of discovering an unexpressed intent but as a means

of controlling an expressed intent of which they happen to disapprove’.54

I do not wish to deny that these dangers lurk in any aspirational account

of the rule of law, especially one which asserts that there are unwritten

constitutional values which the legislature must respect. However, there

are dangers which lurk in the judicial stance which I have called consti￾tutional positivism, as well as in the position taken by Willis and those

who follow him in the family of positions that make up the positivist tra￾dition, one which we have seen is deeply sceptical of judicial review, and

which has powerful torch bearers today in all three of the Commonwealth

jurisdictions on which I am focusing.

The dangers should be obvious. Whether such judges operate within a

common law or division of powers constitutional order, they cannot qua

judge distinguish between a statute that permits arbitrary detention and a

statute that regulates the most banal activity one can imagine. They might

bleat about how they love rights as much as the next man, but when push

comes to shove it is the rights of the detainee that are shoved.

But there is worse to come. It is one thing for judges to shy away from

invalidating a statute when they have no explicit textual authority to do

so. But it is quite another for them to refuse to interpret a statute in the

light of unwritten constitutional values because, as Willis suggested, such

interpretation is a means of controlling rather than determining intent.

But this is precisely where constitutional positivism leads, something well

illustrated by the recent decision of the Australian High Court in Al-Kateb

v. Godwin,55 a decision which though not about emergency legislation or

national security is clearly one of a number of decisions by judges in the

Commonwealth which are profoundly shaped by judicial sensitivity to

the world after 9/11.

The appellant, Ahmed Al-Kateb, was a stateless person. Section 189 of

the Migration Act 1958 requires the compulsory administrative detention

of unlawful non-citizens; s. 198 provides that an officer must remove an

unlawful non-citizen ‘as soon as reasonably practicable’; s. 196 stipulates

that an unlawful non-citizen detained under s. 189 must be detained

until removed, deported or granted a visa. Section 196(3) prevents the

release even by a court of an unlawfully detained non-citizen except for

removal or deportation (unless the person has been granted a visa). Al￾Kateb’s case raises the issue that this scheme presumes the compliance of

54 Ibid., 276. 55 Al-Kateb v. Godwin (2004) 208 ALR 124.

92 constituting the legislature

another state (in most cases, obviously, the person’s home state) willing to

take such a person. Diplomatic channels had failed to find another state

willing to accept Al-Kateb, and the question then became whether the

legislation requires his permanent detention given the absence of hope

that his removal will ever be ‘reasonably practicable’. Al-Kateb had lost in

the courts below.

The majority – McHugh, Hayne, Callinan and Heydon JJ – dismissed

the appeal. Separate dissents were written by Gleeson CJ, Gummow and

Kirby JJ. While the judgments are quite different, the majority and the

dissents, as least those of Gleeson CJ and Kirby J,56 divide roughly along

the following fault line. The dissenters tend to see the question as one

of statutory interpretation, an enterprise arguably engaging interpreta￾tive presumptions along the lines of common law rights and compliance

with international law. The majority, for the most part, saw two main

questions: first, the construction of the statute and, second, a consti￾tutional question: did the legislation correctly construed run afoul of

the Constitution’s Chapter III constitutional protection of judicial power

because it conferred a punitive function on the executive? At its most pro￾found, though, the difference between the two sets of judges boils down to

a view of legal authority, constructed around a view of who is the proper

subject of the law’s protection, who is in the legal community and who

is out. For Kirby J and Gleeson CJ, it is sufficient that an individual is

subject to the law for him to get the protection of the rule of law. For the

majority, a non-citizen is an alien who, depending on his status, will get

something less, and in a case like Al-Kateb’s something far less, than the

full protection of the law.

Gleeson CJ read the provisions of the Act as creating a gap since they

made no express provision for indefinite or permanent detention where

the assumption of the reasonable practicability of removal is false. ‘The

possibility that a person, regardless of personal circumstances, regardless

of whether he or she is a danger to the community, and regardless of

whether he or she might abscond, can be subjected to indefinite, and

perhaps permanent, administrative detention is not one to be dealt with by

implication.’57 Thus he reasoned that one had to resort ‘to a fundamental

principle of interpretation’:58

56 The third dissenting judge, Gummow J, sought for the most part to put his dissent on

a purely textual basis, thus evidencing the same urge to take refuge in constitutional

positivism that we saw in the majority judgments in the Communist Party case. 57 Ibid., at 130. 58 Ibid., at 129.