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THE ADMINISTRATIVE DETENTION OF NON-NATIONALS PURSUANT TO IMMIGRATION CONTROL: INTERNATIONAL AND CONSTITUTIONAL LAW PERSPECTIVES

Published online by Cambridge University Press:  17 January 2008

Abstract

Fortunately it is still startling, in this country, to find a person held indefinitely in executive custody without accusation of crime or judicial trial. Executive imprisonment has been considered oppressive and lawless since John, at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed, or exiled save by the judgment of his peers or by the law of the land, (per Jackson J, Shaughnessy v United States ex rel Mezei 345 US 206 (1953))

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Articles
Copyright
Copyright © British Institute of International and Comparative Law 2004

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References

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86 See FAR Benion Statutory Interpretation (3rd ednLondonButterworths 1997) at 645–8.Google ScholarLiversidge v Anderson [1942] AC 206 is viewed as an aberration and was criticized in the later House of Lords decision in Khawaja v Secretary of State for the Home Department [1983] 1 All ER 765.Google Scholar

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89 ‘[A] person … may be detained…pending a decision to give or refuse him leave to enter’ (para 16(1) Schedule 2); ‘a person may be detained … pending the giving of directions and pending his removal in pursuance of any directions given’(para 16(2) Schedule 2) and ‘Where a deportation order is in force against any person, he may be detained … pending his removal or departure’(para 2(3) Schedule 3).Google Scholar

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120 Ibid at para 32.

121 Brennan, Per, Deane, and Dawson, JJ, para 34.Google Scholar

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129 S 103(1).Google Scholar

130 S 103(6).Google Scholar

131 S 103(3).Google Scholar

132 S 103(6).Google Scholar

133 ‘Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.’Google Scholar

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137 S 103.1(1) refers to the grounds of inadmissibility in s 19(1).Google Scholar

138 S 103.1(5).Google Scholar

139 S 103.1(10).Google Scholar

140 The High Court of Australia held that the ouster clause in Lim was unconstitutional because it deprived the courts of a power to review even this issue, thus giving the executive a truly arbitrary power to detain anyone, including Australian citizens.Google Scholar

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144 See Part I para 18: ‘Today's result will ensure these dangerous individuals, and hundreds more like them, will remain free while the Executive Branch tries to secure their removal.’Google Scholar

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