The Law Library of Victoria Home Menu

Commonwealth of Australia v AJL20 [2021] HCA 21

High Court of Australia
Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward, Gleeson JJ

Commonwealth of Australia v AJL20

Judgment Date: 
23 June 2021

CONSTITUTIONAL LAW (Cth) - Immigration - Tort - False imprisonment - Where respondent "unlawful non-citizen" detained by Executive under ss 189(1) and 196(1) of Migration Act 1958 (Cth) - Whether period of executive detention authorised and required by ss 189(1) and 196(1) ceases when removal of "unlawful non-citizen" from Australia should have occurred had Executive acted with all reasonable despatch in performance of s 198(6) duty to remove, or continues until actual event of removal or grant of visa - Whether Parliament's power to authorise and require detention until actual event of removal or grant of visa limited by implications of Ch III of Constitution - Whether non-performance by Executive of statutory duties erases legitimate non-punitive statutory purposes which those duties support.

WORDS AND PHRASES - "aliens", "deportation", "duty to remove", "exclusive vesting of the judicial power of the Commonwealth", "executive detention", "executive power", "executive purpose", "false imprisonment", "habeas corpus", "hedging duty", "judicial power", "lawful non-citizen", "legitimate non-punitive purposes", "Lim principle", "mandamus", "non-refoulement", "Parliamentary supremacy", "reading down", "removal", "remove as soon as reasonably practicable", "separation of powers", "statutory duty", "statutory purposes", "terminating events", "unlawful non-citizen", "visa".

Constitution - s 51(xix), Ch III.

Migration Act 1958 (Cth) - ss 4, 13, 14, 189, 196, 197C, 198.