THE EXTENSION OF THE WOTTON APPROACH TO CH III: PREVENTING OR ENCOURAGING HERESY?

• Date: 01 April 2023
• Author: McLeod, Matthew

CONTENTS
                I Introduction
                II The Legislation-Centric Approach to Constitutional Freedoms
                III Constitutional Limits on Executive Detention
                 A Detention as Exclusively Judicial
                 B The Immigration Exception
                 C Habeas Corpus
                IV AJL20
                 A Background
                 B The Majority
                 D Justices Gordon and Gleeson
                 E Justice Edelman
                V Problems with Applying the Legislation-Centric Approach to ch III
                 A Chapter III Affects Legislative and Executive Power
                 B The Constitutional Limit Is Individualised
                 C Unaccountable Detention
                VI How Can the Limits Be Enforced Individually
                 A Improper Purpose
                VII Conclusion
                

I INTRODUCTION

Since its introduction in the 1990s, the uniquely Australian scheme of mandatory immigration detention underpinning the Migration Act 1958 (Cth) ('Migration Act') has been subject to one constitutional challenge after another in the High Court of Australia. In the first such challenge, Lim v Minister for Immigration, Local Government and Ethnic Affairs ('Lim'), (1) a majority of the Court upheld the validity of provisions mandating the detention of non-citizens present in Australia without an effective visa. (2) In doing so, however, the majority also expounded key limitations on detention which derived from ch III of the Constitution. Very broadly, the Court held that the detention of a citizen against their liberty is (usually) an exercise of judicial power which is only capable of performance by a ch III court. (3) The executive may validly be empowered, however, to detain a non-citizen in particular circumstances: namely, if their detention is for a non-punitive purpose which is reasonably capable of being seen as necessary for the purposes of admitting the person to, or removing the person from, Australia. (4) The Court's embrace of Lim has ebbed and flowed over the past three decades. In the early 2000s, Lims influence was diminished in several cases, most notably by the finding of a majority of the Court in Al-Kateb v Godwin ('Al-Kateb') that the likely indefinite detention of a stateless person was constitutionally permissible. (5) Jurisprudence in the 2010s, however, saw a renewed support for Lim which led commentators to anticipate a gradual imposition of stricter limits on indefinite detention by the Court. (6) The Court's most recent decision in Commonwealth v AJL20 ('AJL20'), (7) however, appears to fly in the face of such premonitions.

In AJL20, the Court was asked to determine the consequences of the executive failing to remove a person from Australia 'as soon as reasonably practicable, (8) as required by the Migration Act, for a purpose which the legislation itself expressly stated was irrelevant. (9) Four justices found that the detention was lawful, and that the provisions allowing the detention were constitutionally valid. (10) A key component of their reasoning rested on the application of a conceptual approach never before utilised in the ch III context--what will be referred to as the 'legislation-centric approach' (11) to constitutional limits, or simply, the 'Wotton approach'. (12) This approach dictates that constitutional limits 'operate as direct limits on the scope of legislative power only, and do not directly constrain the exercise of statutory executive powers'. (13) Therefore, these limits will only be relevant in constitutional judicial review proceedings ('constitutional review'). (14) The only limits on (statutory) executive power are statutory in nature, and interpreted without reference to any constitutional limits. (15) Their relevance, the approach dictates, is in proceedings involving judicial review of administrative action ('administrative review') only. (16) The legislation-centric approach had only ever been adopted by the Court in relation to two constitutional freedoms: the implied freedom of political communication ('implied freedom') (17) and the express freedom of interstate trade, commerce and intercourse in s 92 of the Constitution ('s 92'). (18) Scholars have identified various conceptual and practical difficulties with the approach, which members of the Court have acknowledged yet failed to unanimously address. (19) Far from providing clarification, the utilisation of the approach in this new (and very different) constitutional context has raised further uncertainties.

Part II of this article tracks the development of the legislation-centric approach in relation to the constitutional freedoms and explains some of the issues identified with its use in that context. Part III sets out the established limitations on executive detention derived from ch III of the Constitution and their application to Australia's immigration detention scheme. In Part IV, the three judgments of the Court in AJL20 are analysed. A slim majority of Kiefel CJ, Gageler, Keane and Steward JJ applied a legislation-centric approach in concluding that the prolonged detention of the respondent was lawful. Justices Gordon and Gleeson, and separately, Edelman J, issued strongly worded dissents critiquing the reasoning of the majority, and ultimately took approaches involving a more direct application of the ch III limits to the particular action taken by the executive. (21)

In Part V, I identify three major problems with the majority's application of the legislation-centric approach to ch III, building on those identified in its application to the constitutional freedoms. First, it fails to recognise that the ch III limits affect both legislative and executive power, rather than merely the former. Second, it fails to recognise the individualised nature of the ch III limits, which ultimately exist to protect the most fundamental individual right recognised by the common law: liberty. Third, the application of the approach creates a dangerous accountability gap for the executive because it allows individual action taken by the executive to go beyond the ch III limits without adequate judicial intervention. Consequently, this article argues that courts conducting administrative review must have the capacity to consider the ch III limits in individual cases. When they find that such limits have been infringed, this should not result in the automatic invalidity of an entire statutory provision. Part VI thus explores how this might be done. Building on the reasoning of Edelman J's dissent, I argue that in many situations similar to AJL20, the ch III limits can be conceptualised within the established administrative law principle that decision-makers must act for the purposes for which their powers and duties are conferred.

II THE LEGISLATION-CENTRIC APPROACH TO CONSTITUTIONAL FREEDOMS

Over the past decade, various majorities of the Court have embraced a legislation-centric approach when dealing with situations raising the implied freedom or s 92. The nature of these constitutional limits is unique in the Australian context. As 'freedoms', the Court has emphasised consistently that they are simply limits on power. (22) They are not, as often characterised in common parlance, akin to American-style constitutional rights belonging to the individual. (23) Mills argues that '[a] right is an individual's moral or legal entitlement to have or to do something, while ' [a] freedom ... is simply the condition of a person who has the capacity to do something'. (24) The implied freedom exists to prevent the political branches from impermissibly burdening political communication to the point that constitutionally mandated free and fair elections are jeopardised. (25) Section 92 exists to prevent such actors from imposing protectionist measures which impermissibly disadvantage one state over another. (26) As this language highlights, these freedoms can lawfully be limited when there are justifications for doing so, regardless of the effect on individuals. (27) The majority in Unions NSW v New South Wales explained that

 [a] ... prohibition or restriction on the [implied] freedom is not
                 to be understood as affecting a person's right or freedom to engage
                 in political communication, but as affecting communication on those
                 subjects more generally. (28)
                

Weis suggests that 'perhaps what the High Court wants to insist upon is that the function of the [implied] freedom is to protect the system of government that is constitutive of popular sovereignty'. (29) Historically, cases concerning the implied freedom and s 92 have usually challenged legislation; however, the early jurisprudence on both indicates that they were intended to limit legislative and executive power. (30)

The legislation-centric approach first arose in the prominent dissent of Brennan J in Miller v TCN Channel Nine Pty Ltd ('Miller') in 1986. (31) The Wireless Telegraphy Act 1905 (Cth) imposed a blanket prohibition on the transmission of messages by wireless telegraphy from a station. (32) The Minister held a wide discretion to issue licences exempting persons from the prohibition. (33) Channel Nine challenged the application of the legislation to its own activities, arguing that it contravened s 92. (34) Given the 'unsophistication' of administrative review in the decades prior to the case, judges had a tendency when dealing with broad discretions which could feasibly contravene s 92 to simply declare them unconstitutional. (35) However, the gradual development of administrative review--through both the development of the common law and enactments like the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act')--'began to ease the Court's concerns' (36) Consequently, in Miller, Brennan J found that a wide discretion

 can be destructive of the validity of the scheme only if the
                 exercise of the discretion conferred by the statute cannot be
                 restrained by judicial review so that its exercise is within
                 constitutional power. (37)
                

Here, his Honour held that an exercise of the discretion which went beyond the limits of s 92 could simply be held invalid in administrative review on the basis that it went beyond statutory, rather than constitutional...