Nicholson neutered

News flash!! The High Court has just unanimously allowed an appeal by the Immigration Minister against a heavily-publicised decision of the Full Family Court which had ordered the release of some asylum seeker children from mandatory immigration detention. See Minister for Immigration and Multicultural and Indigenous Affairs v B 1 HCA 20 (29 April 2004).

The Family Court case had in part been the result of some entrepreneurial judicial marketing by recently-retired Chief Justice Alistair Nicholson, who had earlier spruiked a fairly bizarre line of reasoning claiming that the Family Court had jurisdiction to order the release of children in detention, through a combination of its parens patriae jurisdiction and a novel approach to statutory interpretation whereby Nicholson reasoned that recent very general amendments to the Family Law Act had effectively given the Family Court jurisdiction to order release of children of a marriage held in immigration detention, notwithstanding that the very specific provisions of the Migration Act clearly established a scheme of mandatory and universal detention and vested decisions about release in the Minister.

The mandatory detention provisions have repeatedly been held by the High Court to be constitutionally valid (e.g. Chu Kheng Lim v Minister for immigration, Local Givernment & Ethnic Affairs in 1992), so I for one regarded the Family Court decision orchestrated by Nicholson as dubious in the extreme, and unlikely to survive High Court scrutiny. So it turned out. All 7 Justices allowed the Minister’s appeal. Not even that fearless judicial activist Kirby J could bring himself to endorse Nicholson’s adventurism:

Mandatory detention of unlawful non-citizens who are children is the will of the Parliament of Australia. It is expressed in clear terms in ss 189 and 196 of the MA. Those sections are constitutionally valid. In the face of such clear provisions, the requirements of international law (assuming it to be as the respondents assert and as the UNHRC, in part, has found) cannot be given effect by a court such as this2. This Court can note and call attention to the issue. However, it cannot invoke international law to override clear and valid provisions of Australian national law. The Court owes its duty to the Constitution under which it is established. Pursuant to the Constitution, all laws made by the Parliament of the Commonwealth are “binding on the courts, judges, and people of every State and of every part of the Commonwealth”. Those laws must be obeyed and enforced, whenever they are valid and their obligations are clear and applicable. They cannot be ignored or overridden, least of all by this Court.

I do not regard it as arguable that the detention of the respondent children under the MA was permanent or indefinite. True, it lasted a long time before their release by order of the second Full Court. However, under the MA, the period of detention had a clear terminus. This (putting it broadly) is the voluntary election of the children (through their parents) to leave Australia or the completion of the legal proceedings brought by the parents on the children’s behalf, with necessary consequences for the status of the children. …

So far as Australian law was concerned, the respondent children were therefore lawfully detained under the MA. In such circumstances, by the language of that Act, they had to be detained until one of the provisions in s 196(1) was fulfilled, ie until removal or deportation from Australia or the grant of a visa. Even if a point might ultimately be reached where the loss of liberty of an “unlawful non-citizen” in proved conditions falls outside the statutory expression “immigration detention” (or would invite constitutional invalidity as amounting to unauthorised punishment), that point had not been reached in the case of the respondent children at the time of their release.

If there was protracted duration of the detention of the respondent children, as there clearly was, it was solely because of the operation of the MA upon the challenges mounted seriatim before the successive Australian decision-makers by the children’s parents severally and then together. The confinement of the children was not only lawful under the MA. It was obligatory in terms of the provisions of that Act. And, as I have shown, those provisions represent the deliberate and repeatedly reaffirmed will of the Australian Parliament, acting in this case within its constitutional powers.

It follows that it is impossible to interpret the general powers and jurisdiction enjoyed by the Family Court under the FLA as authorising intrusion into the fulfilment of the clear and specific obligations of detention imposed on the Minister and federal officers by the MA. In the face of the specificity, particularity and universality of the application of the MA, requiring detention of persons such as the respondent children, any general powers and jurisdiction enjoyed by the Family Court under the FLA can have no operation to require or permit their release from detention. Given the express command of the Federal Parliament to designated officers to detain the children, it was not permissible for the Family Court, under generally expressed powers, to give the Minister and such officers orders involving contradictory or inconsistent instructions.

Whatever powers are enjoyed by the Family Court under its welfare jurisdiction, they cannot be invoked to oblige contravention of the constitutionally valid legislative scheme of mandatory detention contained in the MA. It is unnecessary in this appeal to consider whether such powers would extend, in some exceptional circumstances, to require the alteration of the conditions of the respondent children whilst in immigration detention. Given that the children are not presently within such detention, that issue is theoretical in this case. On the face of things, however, the general responsibility for such detention is reposed in the Minister and the officers named in the MA. It is not placed in the hands of the judges of the Family Court.

  1. 2004[]
  2. 199[]

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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2024 years ago

“It is unnecessary in this appeal to consider whether such powers would extend, in some exceptional circumstances, to require the alteration of the conditions of the respondent children whilst in immigration detention. Given that the children are not presently within such detention, that issue is theoretical in this case.”

Amateur legal question, Ken. Is this bit (above) saying that if the children were returned to detention that the court would (or could) consider an application to have them removed? Do you think that’s why the govt. has decided for the time being not to return the kids to detention? Or have I got this arse-about?

Ken Parish
Ken Parish
2024 years ago


I haven’t read all the judgments with extreme care yet, but a first reading didn’t indicate a qualification like that of Kirby J by other Justices. Nevertheless, it isn’t all that radical. Kirby isn’t saying that the Family Court’s powers might enable it, even in “exceptional circumstances”, to order children’s release from detention. He’s simply suggesting (on my reading anyway) that those powers might extend to making orders in relation to conditions of detention e.g. schooling, housing conditions, medical care and other welfare issues, while in detention.

I doubt that the Howard government is holding back from putting the currently released children back into detention because of legal uncertainties (leaving aside the injunction to be sought in the Federal Court today). Having succeeded in upholding the Minister’s exclusive legal powers in relation to immigration detention, there’s no reason to rush to put them back in detention. In fact, last time I looked at the question, the Department was examining/trialling various options to enable children/families to live in less constrained situations while being processed/awaiting the outcome of appeals. See . One such scheme is the Residential Housing Projects:

“The government has established Residential Housing Projects (RHPs) in Woomera, Port Hedland and Port Augusta. Participation in the RHPs is voluntary. Each individual family can decide whether to take up the RHP opportunity.

RHPs provide a more domestic environment, enabling more autonomy (for example, in preparing meals). In addition to the usual recreational and social activities, residents are also able to go shopping and participate in community events.”

Similarly, foster placements and other community-care placements are sometimes made in particular situations. So the detention system is slowly evolving into something slightly less universal and inflexible than previously. I would expect that evolution to continue over time, although it may well be put on hold during this election year if Howard decides to try to wedging Latham on the issue. In a broader sense, I think the message of strong border control (and thus deterrence of those who might otherwise be tempted to enlist with people smugglers) is more important than maintaining an utterly inflexible detention regime. At least that’s true while the offshore processing (Pacific Solution) remains in place.

In other words, I wouldn’t necessarily expect the 5 children currently released to necessarily be put back in closed detention at all. Arguably it’s surplus repression once the Minister’s powers have been vindicated, and while people smuggling remains suppressed.

2024 years ago

Thanks Ken, and thanks especially for the previous comments about my recent al Qaeda post. It’s a fascinating area and I’ve got some stuff to come on it.


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