The Error of the Indeterminate Detention Decision of the High Court

The inheritors of the parliamentary system of government, of magna carta and the writ of habeas corpus ought to be stalwart defenders of the principles of English liberty which blesses the citizens of our Australian Commonwealth, it is these principles which are sacred to the birthright of Australians to be protected from the arbitrary abuses of power of the state. However, there is a thread of error to be found in the recent decision of the high court that indeterminate detention is unlawful for aliens.

The recent decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 makes findings that are built upon the authority of many judgements, principally stemming back to the decision in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 in which the court affirmed that an alien to the Commonwealth was protected from the executive authority detaining him without the authority of parliament through legislation (and by extension, for an indefinite period), as Justices Brennan, Deane and Dawson affirm in their judgement:

“Under the common law of Australia and subject to qualification in the case of an enemy alien in time of war, an alien who is within this country, (as to the position of an excluded alien), whether lawfully or unlawfully, is not an outlaw. Neither public official nor private person can lawfully detain him or her or deal with his or her property except under and in accordance with some positive authority conferred by the law” The earliest decision for this case which is appealed to for authority is the case of Lo Pak (1888) 9 LR (NSWR) L 221.

The error we find in this thread of thinking, is that the decision of Lo Pak did not grant an unconditional right of protection for aliens to the writ of habeas corpus, this was a decision where the executive government of NSW was acting contrary to the rights conferred to a Chinese man who had been granted a license to re-enter the Colony after having been a resident of the colony, and had gone for a return visit to China. The judgement of Justice Windeyer in the case was as follows:

“Lo Pak had been previously a resident in this colony, and that, being desirous of leaving it, he obtained an exemption certificate under the provisions of the Influx of Chinese Restriction Act of 1881, 45 Victoria No 11 s9 …. The question now raised was whether the captain of a British ship coming here with Chinese passengers, and coming, as we must presume, under the provisions of this Act, and whether the passenger so brought, and who is ready to obey the law by paying the poll tax demanded of him, or producing an exemption certificate, has a right to land.”

“The question for our determination is, is this Chinese passenger, who comes here under the provisions of an Act which ratifies his right to come, provided that he obeys the law in certain respects, in lawful custody or not? To my mind it is clear beyond all doubt that his detention on board the ship, where he is now, is perfectly illegal.”

“Several arguments have been advanced before us upon which we are asked to say that this detention of the Chinaman is not illegal, and the first argument advanced is the sovereign power of every state to deny foreigners coming to it. … Whatever may be the inherent prerogative of the crown with regards to matters of this sort, the question here is whether, in the absence of any royal proclamation (legislation), the executive of the country has the right … to set aside that law [which says foreign passengers may come subject to certain conditions, such as a license or poll tax in this case].”

“It has been held over and over again that foreigners coming here and being amendable to our laws are also entitled to the protection of our laws.”

1888 ‘EX PARTE Lo PAK. THE AFGHAN’S PASSENGERS.’, The Sydney Morning Herald (NSW : 1842 – 1954), 19 May, p. 10.

On review of the judgement in Lo Pak, Justice Charles Windeyer set in motion concepts of law, upon which the High Court has now based its recent decision. To be consistent with the ratio of his decision, in determining whether or not an alien has the right to protection from indeterminate detention, it ought to be a finding of fact that they (1) Had come to Australia under a right conferred by the Commonwealth legislature, ie, the Migration act and (2) They were amendable to our laws.

Further to this, the judgement in Lim leans on the judgement in Yates, in which, Justice Higgins affirms that Aliens have no legal right enforceable in the Courts to come to or to remain in a country to which they do not belong (Affirming Musgrove v Chun Teeong Toy[1891] AC 272 ). – Can then, an alien, who has shown contempt for our laws – walk freely among the population? notwithstanding the fact there is no viable deportation option – Had the Justices of the High Court not been raised in such an outrageously ridiculous cosmopolitan society, they would struggle to even fathom the argument. As the Privy Council affirmed in Musgrove; “There is no absolute and unqualified right of action on behalf of an alien refused admission to British territory”

On the limited facts we know about those who were in indeterminate detention in Australia, they were not here lawfully, and/or they have been shown to not be amendable to our laws. As such, they should not have been granted the writ of haebus corpus, as the detention was not unlawful. The detention fits comfortably within the right of the Sovereign to deal with aliens, who are not here lawfully, or amenable to our laws. Let us hope that the Commonwealth takes the necessary remedial actions to see these people, who have been shown by a court of law to have contempt for our laws, once again be restored to detention or deported as soon as possible.

M. K. Grant
ANA Governor, Canberra