Contents I Introduction II Constitutional Context A Executive Detention of Aliens and ch III: The Lim Principle B Regional Processing and ch III: The Decision in M68 1 Background: The Regional Processing Arrangements in Nauru 2 The Facts and Issues in M68 3 Decision III Habeas Corpus and Offshore Detention A Habeas Corpus in the High Court 1 Jurisdiction and Availability 2 Constitutional Grounds of Review Procedure B The Extraterritorial Reach of Habeas Corpus 1 The English Authorities: The Proper Respondent and a 'Vehicle for Inquiry' 2 The United States Authorities: Issues of Standing and Territoriality 3 The Position in Australia C A 'Vehicle' for Testing the Constitutional Validity of Offshore Detention? IV Offshore Detention and ch III, Revisited A Amenability to Habeas Corpus: Testing the Evidence B Engagement of Lim on an Application for Habeas Corpus 1 The Application of Lim outside Australia 2 'Detention in Custody by the Commonwealth' 3 'Actual Constraint': Governmental Power and Security Contractors 4 The Nexus between Detention in Custody by the Commonwealth and s 198AHA(2) of the Migration Act 5 Postscript: Habeas Corpus and the Preliminary Holding in Lim C The 'Open Centre Arrangements' V Conclusion I Introduction
Many of our fundamental freedoms are guaranteed by ancient principles of the common law or by ancient statutes which are so much part of the accepted constitutional framework that their terms, if not their very existence, may be overlooked until a case arises which evokes their contemporary and undiminished force. (1) 'This is such a case, Brennan J in Re Bolton; Ex parte Beane ('Re Bolton') continued, 'and ... habeas corpus ... [is one] such [law]'. (2) These remarks define this article, their own force remaining undiminished. The concern is with the offshore detention of 'aliens' under the Commonwealth's regional processing arrangements. A re-examination of the foundational legal protections of individual liberty is necessary within this setting, because 'all else' has failed. (3) Indeed, legal challenges to the regional processing arrangements have proved unsuccessful' (4) The decision of the High Court in Plaintiff M68/2015 v Minister for Immigration and Border Protection ('M68') (5) was 'one more nail in the coffin', (6) and is the central focus herein. There, the Court, by majority, rejected an argument that the principle in Lim v Minister for Immigration, Local Government and Ethnic Affairs ('Lim.') (7) applied to detention under the regional processing arrangements. (8) Lim holds that a law conferring authority upon the executive to detain aliens is valid, so long as the authority conferred is reasonably necessary for a permitted purpose. (9) So limited, such a law does not confer upon the executive the judicial power of the Commonwealth, and so does not offend ch III of the Constitution. (10)
This article is a response to the decision in M68, and in particular the plurality's holding that 'Lim has nothing to say' about detention under the regional processing arrangements. (11) The fundamental argument herein is that Lim may apply to such detention. It is not suggested that M68 was wrongly decided, however; rather, it is argued that a different result should be reached on an application for a writ of habeas corpus, with which the Court in that case was not concerned. By advancing a positive claim in response to the decision in M68, this article builds on the limited existing commentary on that case, which has rested largely on notions of form and substance in reviewing detention arrangements. (12)
Part II of this article provides an account of the Lim principle, and discusses its application in M68. Noting the importance of the law of habeas corpus in the reasons of Gageler J in that case, (13) as well as the increasing number of applications for habeas within the migration setting, (14) Part III discusses the High Court's jurisdiction and power to direct the issue of habeas, and in particular the writ's extraterritorial reach. (15) The different approaches to this issue in England and Wales and the United States are considered in turn, after which a suggested Australian position is offered. Finally, Part IV engages with the question whether Lim may apply on an application for habeas corpus in respect of detention under the regional processing arrangements. Given that the focus is on Lim in the context of the decision in M68, this article does not consider any potential administrative law grounds of habeas review in this setting. It is emphasised, however, that the discussion of the extraterritorial reach of habeas corpus would be equally relevant to applications raising such grounds.
The conclusion is that Lim would apply on an application for habeas corpus in respect of detention under the regional processing arrangements, such that the constitutional validity of s 198AHA(2) of the Migration Act 1958 (Cth) ('Migration Act'), the law authorising the Commonwealth's involvement in regional processing, would arise for determination. This ultimate question is beyond the scope of this article, the engagement of Lim being a more pressing concern in light of the majority view in M68. (16) However, if s 198AHA(2) were found to be invalid under the Lim principle, the result would be that the detention would be unlawful and habeas would issue to compel release. (17) Such a result would have broader implications for the Commonwealth's regional processing arrangements. (18)
II Constitutional Context
A Executive Detention of Aliens and ch III: The Lim Principle
The starting point in respect of ch III of the Constitution is the first limb of the decision in R v Kirby; Ex parte Boilermakers' Society of Australia ('Boilermakers' Case'): 'No part of the judicial power can be conferred ... otherwise than in accordance with ... Chap III.' (19) To the exclusion of the legislature and executive, therefore, ch III vests the judicial power of the Commonwealth in the courts it designates. (20) Of the functions forming 'part' of the judicial power, '[t]he most important ... is the adjugment and punishment of criminal guilt'. (21) It is exclusively for a ch III court, therefore, to order the punitive detention of a person. (22) Thus, Deane J in Re Bolton said: 'The common law ... knows no ... warrant pursuant to which either citizen or alien can be deprived of [their] freedom by mere administrative ... action.' (23) This proposition is subject to exceptions. Parliament may authorise executive detention of citizens in those circumstances that are 'not seen by the law as punitive, such as detention on remand. (24) As to aliens, however, Brennan, Deane and Dawson JJ in Lim (with whom Mason CJ agreed) recognised a principled exception, based upon the interaction between the 'aliens' power in s 51(xix) of the Constitution and ch III. (25)
Their Honours in Lim first determined that any executive detention of an alien must be authorised by a law of the Commonwealth Parliament (the 'preliminary holding'), (26) then expounding a principle of constitutional validity applicable to such laws (the 'seminal holding'). (27) It was held that, although s 51 is expressed as being 'subject to' the Constitution and, concomitantly, the separation of judicial power mandated by ch III, s 51(xix) 'encompasses the conferral upon the Executive of authority to detain ... an alien in custody for the purposes of expulsion or deportation. (28) To these permitted purposes, their Honours added 'to receive, investigate and determine an application by [an] alien for an entry permit'. (29) Provided that the authority conferred 'is limited to what is reasonably ... necessary for [those] purposes', (30)
[s]uch limited authority to detain an alien in custody can be conferred on the Executive without infringement of Ch III ... [T]o that limited extent, authority to detain in custody is neither punitive in nature nor part of the judicial power of the Commonwealth ... [I]t takes its character from the executive powers to exclude, admit and deport of which it is an incident. (31) The operation of this principle in the context of detention challenges was recently explained by the majority of Kiefel CJ, Gageler, Keane and Steward JJ in Commonwealth v AJL20 ('AJL20'):
If the statute, properly construed, can be seen to conform to constitutional limitations upon legislative competence without any need to read it down to save its validity, then it is valid in all its applications, and no further constitutional issue arises. The question then is whether the executive action in question was authorised by the statute, with that question to be resolved by reference to the statute as a matter of administrative law. (32) Their Honours proceeded to decry 'the heresy' that the conduct of a particular instance of detention by the executive 'can take the law [authorising that detention] outside Parliament's competence'. (33) This reasoning has the effect of drawing attention, in most cases, to questions of administrative law. But that will not always be so. The decision in Al-Kateb v Godwin ('Al-Kateb') is one such example. (34) There, an additional purpose for which a law may confer upon the executive authority to detain aliens in custody, in point of constitutional principle, was embraced by a majority of the High Court--namely, 'exclusion from the Australian community'. (35) It might be noted that, unlike the purposes identified in Lim, this purpose is an end in itself, and is not 'connected' to any administrative processes. (36) In this respect, it is a 'continuing purpose! (37 On the basis of the decision in Al-Kateb, therefore, it has been observed that the list of permitted purposes 'may not be closed'. (38)
Although '[t]he validity of immigration detention was upheld in ... Lim, (39) and notwithstanding that the list of permitted purposes may yet be expanded further, the authority of the Lim principle remains undiminished, (40) as an...
