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Common(wealth) Knowledge #28: Immigration Detention in the 1990s

Updated: Apr 7, 2023

3 decades on from a major constitutional law case.

Thursday 8 December marked 30 years since the High Court of Australia handed down its ruling in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992), an important constitutional law case that preluded the raft of court cases involving Australia’s strict border control and migration policies of the 2010s. As the title of the defendant suggests, the Minister for Immigration, Local Government and Ethnic Affairs, this case is from a time when border control and migration were less important electoral issues. It was also heard during 1992, which means it is often overshadowed by Mabo (No 2), but nonetheless it is an important case on the ability of the government to detain people without a trial.

Chu Kheng Lim and other refugees had fled Cambodia in 1989 and 1990, during a period of intense instability in the country. They sought to travel to Australia by boat; however, they did not have visas or other entry permits, so were detained by the Commonwealth government when they arrived. In 1992, Minister Gerry Hand rejected their application for refugee status. However, they challenged this decision by seeking judicial review through the Federal Court of Australia, of the kind discussed in Common(wealth) Knowledge #20. They challenged the fairness of this decision, and the court ruled in their favour, asking the Minister to reconsider his decision.

However, the Commonwealth government threw a spanner in the works by amending the Migration Act 1958 (Cth) to prevent this. The amendment inserted Division 4B into the Migration Act, and unlike most amendments it was retrospective, meaning it also applied to the past. Retrospective amendments are usually controversial, and that was true here. Division 4B detained all people who traveled to Australia by boat without a visa or entry permit until they had either been granted a visa or entry permit, or were deported. It also prevented courts from ordering these people to be released from detention, thus preventing further judicial review actions against the Minister’s decisions.

Prior to Division 4B, Section 88 had been used to justify their treatment. Under this provision, people who arrived by boat without a visa or entry permit “being a stowaway or a person whom an authorised officer [the Minister or someone from their department] reasonably believes to be seeking to enter Australia in circumstances in which the person would become an illegal immigrant” may be placed in immigration detention.

The three most important provisions are Sections 54L, 54N, and 54R. 54L said that the arrivals must be kept in custody in immigration detention. 54N authorised the “arrest and detention in custody” of any person not in custody when Division 4B came into effect, even if they had already been released from custody by the court. Finally, 54R prevents the court from releasing any person “lawfully held in custody.”

Lim and the other refugees went to the High Court of Australia to challenge this legislation. Although they couldn’t seek judicial review to challenge their refugee status denial, they could be released under Section 54R if they could prove that the law was unconstitutional, which would mean that they were “lawfully held in custody.” They argued that this legislation gave powers to the executive branch of government that should belong to the judiciary, so therefore it violated the separation of powers. While Australia has a lot of overlap between the executive and legislature, as the Prime Minister and Cabinet are all members of the legislature, the separation of powers between those two branches and the judiciary is much more strict.

Just like in Mabo (No 2), there was no clear majority decision. However, the most important decision is the joint judgment of Brennan, Deane and Dawson JJ, who made up a plurality of the court. They concluded that, prior to Division 4B being added, the detention was unlawful, as Section 88 only applied while the boat that they were ‘stowaways’ on was in Australian waters. Once it left, they had to be released.

The three Justices said that Chapter III of the Australian Constitution, which deals with courts, cannot be used to give judicial power to the Executive government. This means that although Section 51 gives the Commonwealth Parliament the power to make certain laws, it cannot be used to make laws that give the Executive government judicial power in relation to matters covered by Section 51. In paragraphs [22]-[23] of their judgment, they said the following:

“There are some functions which, by reason of their nature or because of historical considerations, have become established as essentially judicial in nature. The most important of them is the adjudgment and punishment of criminal guilt under a law of the Commonwealth. … In exclusively entrusting to the courts designated by Chapter III the function of the adjudgment and punishment of criminal guilt under a law of the Commonwealth, the Constitution’s concern is with substance and not mere form. … The reason why that is so is that, putting aside the exceptional cases to which reference is made below, the involuntary detention of a citizen in custody by the State is penal or punitive in character and, under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt.

This means that Section 54R, which prevents the court from ordering the release of those placed in custody by Division 4B, is unconstitutional. It interferes with the exclusive jurisdiction of the courts. In a separate judgment, Gaudron J reached the same conclusion. Mason CJ, Toohey and McHugh JJ, all in separate judgments, saw it as valid, the latter drawing comparisons between it and bail.

However, all 7 judges upheld the validity of the rest of Division 4B, including Sections 54L and 54N. The final sentence of the above quote, taken from paragraph [23] of the joint judgment, is the important one here. Cases involving ‘aliens’ or ‘non-citizens’ fall unto the ‘exceptional cases’ category. In paragraph 29, they said that the aliens power includes laws about “expulsion or deportation” and “custody to the extent necessary to make the deportation effective.” Once the refugee status is resolved, the person is to be either released, if they are classified as a refugee, or deported if not. At [35], the judges said:

“The conclusion [is] that the powers to detain in custody are conferred by Division 4B are an incident of the executive powers of the exclusion, administration and deportation [of aliens].”

These duties are that of the Executive, not the courts, and they could not be effectively carried out without detaining the illegal immigrants until their refugee status is determined. Importantly, this detention is “not punitive,” as it is not a punishment.

Only one Justice, Gaudron, differed from the rest of the court on this topic. Her Honour is known for taking a more restrictive approach to defining ‘aliens,’ and so she said that the rest of Division 4B is only valid as long as it applies to someone who meets the normal definition of an ‘alien.’ This statement is quite important now, because in Love v Commonwealth [2020] the High Court said that Aboriginal and Torres Strait Islander peoples cannot be classified as ‘aliens’ for the purposes of Section 51(xix), the constitutional provision that authorised Division 4B. For more about Love, check out Common(wealth) Knowledge #6.

Although Division 4B is no longer in effect, as it only applied until 1 December 1992, Lim has been used as justification for the strict border and migration policies of the 2010s, as it can be used against any person considered to be an ‘alien.’ The only people exempt are citizens and, since 2020, Aboriginal and Torres Strait Islander peoples.

However, although detaining illegal immigrants was upheld, detention without a trial, referred to as ‘involuntary detention,’ in general was said to be unconstitutional. Quoting the great British lawyer A.V. Dicey, the joint judgment said, at [23], “[e]very citizen is ‘ruled by te law, and by the law alone’ and ‘may with us be punished for a breach of law, but he can be punished for nothing else.’ While custody before trial, i.e. when bail is denied, is allowed if the court has ‘supervisory jurisdiction’ over it to ensure that nothing goes wrong, the same cannot be said for involuntary detention.

The final conclusion of the joint judgment was that detention could not be open-ended; it had to expressly apply to only a limited group of people, in this case ‘aliens.’ When it comes to lawful detention they said, at [32], “the detention which they require and authorise is limited to what is reasonably capable of being seen as necessary for the purposes of deportation or necessary to enable an application for an entry permit to be made and considered.” In other words, they cannot be detained for more time than is reasonably necessary to come to a decision about their refugee status. This has been a topic of contention in recent years, following the prolonged detention and processing of asylum seekers by the government.

Although not fully appreciated at the time, Lim has become an important constitutional law case on Chapter III of the Constitution. The ‘Lim principle’ that there is a general constitutional immunity against involuntary detention by the government would go on to be influential four years later in Kable v Director of Public Prosecutions (NSW) (1996), with the ‘Kable doctrine’ being used to prevent state and territory governments from using the courts to detain criminals after their sentence had ended. As seen in Common(wealth) Knowledge #24, this is a debate that is still going on today.

Stuart Jeffery is the host of Between Parkes Place and Capital Hill on 6 News. His views on personal social media pages are his & his only, and do not reflect the views of 6 News or our journalists. He abides by 6 News' editorial standards relating to fairness & accuracy.

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Mabo v Queensland (No 2) (1992) 175 CLR 1; [1992] HCA 23.


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