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[↩]