Table of Contents

TOPIC TESTS:
Topic 1- Foundational Concepts
Topic 2 - Relationships and Structures
Topic 3 - The Origins/Evolution of Australian Public Law
Topic 4 - Parliament
Topic 5 - The Executive
Topic 6 - The Court and Judicial Power
Topic 7 - Executive Detention Of Asylum Seekers (Essay Topic)

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ESSAY GUIDE CONTAINING BREAKDOWN AND CRITIQUE OF CASES
(MAJORITY AND MINORITY JUDGMENTS) FROM TOPIC 7: EXECUTIVE
DETENTION OF ASYLUM SEEKERS

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STATUTORY INTERPRETATION GUIDE

Within the Statutory Interpretation Guide is a breakdown of Ch’s 9 and 10 of the Public
Law textbook.

Included within this guide is

(i) Text
(ii) Context
(iii) Purpose
(iv) Statutory Presumptions — Syntactical (e.g. Ejusdem Generis) and Legal (Charter /
Principle of Legality)

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 Topic 1 – Foundational Concepts
1.1 What is Public Law

• Public law is an umbrella concept that governs the relationship between the State and
its citizens
• Normally exercised by public bodies (eg Dept of Immigration, Administrative Appeals
Tribunal) but also, increasingly, by private bodies — outsourcing of detention of
prisoners and asylum seekers to corporations)
• Themes: accountability, transparency, review
• Public law may be described as the body of legal principles that apply to public
power.
• Public law principles determine the scope of public power — its nature, its limitations
and the procedures by which it can be exercised — as well as who can exercise it.

The exercise of public power determines how a legal system — and a nation —
operates.

Examples:
The exercise of public power will determine:
(i) who can and cannot enter the country
(ii) who is entitled to important licences and permissions (such as permission to mine
for precious minerals, or develop land, or operate businesses)
(iii) how much we are taxed, and on what basis;
(iv) what the money raised by taxation is spent on, and relatedly, the operation of many
vital public institutions such as schools and hospitals and public transport;
(v) who is entitled to welfare payments, and on what basis; and when our armed forces
are deployed to take part in international conflicts.

• Underpinning values of freedom, equality and community

• Underpins almost every other legal discipline because its principles determine the
scope of governments power to make, administer and adjudicate laws in every area
(e.g. criminal law)

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 Question 1: Public Law v Private Law

Difference one: Definitions

Public law typically regulates the relationship between those exercising public power, or
those exercising public power and the people, whereas private law typically regulates the
relationship between 'private' actors.

Difference two: Requirement of Legal Authority to Act

Ordinary people can typically do a lot of things without some law specifically authorising
them to do so. We can enter a contract to buy a house, or start up a new business, or
make any other number of decisions. When we do these things, we have to comply with
the law, but we do not need legal authority to do them in the first place. In general terms,
we can do whatever we want, unless and until the law prohibits us from doing so.

Public power is said to differ because (at least in our legal system), no one person
enjoys inherent public power. Rather, public power must be conferred by law, and
exercised in accordance with the law.

The distinction is not always clear.

• Public power can be much more coercive than private power

Difference three: Laws about imprisonment

- For example, there are public powers to arrest and detain people, and keep
them in prison or other forms of detention against their will. But, generally,
ordinary people cannot do these things: the law forbids them from doing so.

Difference four: Laws about taxation where ordinary person are not
empowered to take taxes

Another good example of coercive public power was introduced above: it is the power to
create laws with respect to taxation, and collect taxes accordingly. An ordinary person
cannot take away someone else's money. That would generally be unlawful.

• Individuals are free to act until the law prohibits this = public power cannot be enjoyed
inherently, it must be conferred by and exercised in accordance with the law

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 Sample Essay Guide Notes

Indefinite Executive Detention: Al-Kateb v Godwin (‘Al-Kateb’)

! This was a case which explored the issue of indefinite executive detention and
whether the Migration Act could allow it.
! A study of ruthless liberalism and victory of form over substance (Juliet Curtin 2005)

Facts:

Al-Kateb was a Palestinian asylum seeker coming from Kuwait who did not qualify for an
Australian visa so was detained. However, as Palestine nor Kuwait would accept him, he
was deemed stateless and couldn’t leave either. Al-Kateb was stuck between his inability
to be granted a visa and the refusal of other countries to accept him for deportation; he
faced potential indefinite detention (Crawford, 2017).

The HC interpreted S 196 of the Migration Act, which stated ‘an unlawful, non-citizen
detained must be kept in immigration detention until they are
(1) deported: the person was removed from Australia, either voluntarily or following an
unsuccessful attempt to obtain a visa OR
(2) are granted a visa which entitled them to enter Australia.

As both these options were inapplicable to Al-Kateb, a gap in the law emerged (Castan
and Emerton, 2018).

Al Kateb argued that the provisions only allowed unlawful noncitizen to be detained while
removal was a practical possibility, and that if removal was not a practical possibility, then
they should be released from detention.

The respondents argued that the provisions required that unlawful non-citizens be
detained until their removal, and that the purpose of removal, on which the detention was
founded, did not cease to exist just because it was not practicable in the foreseeable
future to carry out that purpose
Section 198 states that an officer of the Commonwealth must remove, as soon as is
reasonable practicable, an unlawful non-citizen who asks the Minister, in writing, to be
so removed

A detainment of aliens is for the eventual deportation or expulsion of aliens (there is a link
between these). Therefore, if the deportation and expulsion are not possible, should the
detainment be allowed?

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 Held: Majority (McHugh, Hayne, Callinan, Heydon JJ)

The decision of the majority was made on strict legalistic grounds whereas the minority
judges decided the case on more purposive grounds (Boyle, 2005 in Executive
detention : A law unto itself? A case study of Al-Kateb v Godwin.)

! Found the government was entitled to detain Al-Kateb, until removal to another
country was 'reasonably practicable.’

It was for non-punitive purposes (the exclusion of Al-Kateb from Australian society not
punishment) and therefore not a judicial power. This mean’t the separation of the judicial
power had not been violated and legislation was valid.

…….

Held: Minority (Gleeson CJ, Gummow, Kirby J)

The Migration Act did not permit the executive to detain Al-Kateb in these
circumstances.

SS 1196 and 198 were ambiguous

Ratio:

Principle of Legality

The minority applied the principle of legality, stating if the law intended to interfere
with fundamental rights, it would do so unambiguously.

The minority favoured individual liberty to resolve the ambiguity in this case; finding
the government had to release him.

……

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 Statutory Interpretation Guide
Process of Statutory Interpretation (Project Blue Sky)

(i) Text (Ordinary Natural Meaning) (Alcan, Evans v NSW) — Literal text of the Act, eg
definitions and dictionary
(ii) Context — Look at the other sections of the Act; what does the Act as a whole do?
(iii) Purpose — What is the problem the Act is trying to solve? Intrinsic then extrinsic
(iv) Statutory Presumptions — Syntactical/Legal (Charter / Principle of Legality)
(v) Apply

Conclude:
X would argue …; Y would counter-argue …; X might rebut … conclude with which
interpretation. Court would consider best, and apply…

Within each of these categories argue both sides:

1. (On one hand) A would (further) argue/point out…construed (broadly/narrowly)
2. (On the other hand,) B would argue…construed (broadly/narrowly)

Introduction:

To interpret a statute, consideration is given to ‘… the [legal] meaning that the legislature
is taken to have intended them to have. … the grammatical meaning of the provision …
the context of the words, the consequences of a literal or grammatical construction, the
purpose of the statute [and]… the canons of construction’ (Project Blue Sky). This must
be done with reference to s 35 of the Interpretation of Legislation Act 1984 (Vic) (‘ILA’)
which states that the interpretation that best achieves the Act’s purpose should be used
as well as s 35(b) ILA which allows for the use of extrinsic materials in limited
circumstances. Headings to sections and parts are part of the Act (ILA s 36(2A) and (1A),
respectively). Further consideration should be given to s 32(1) of the Charter of Human
Rights and Responsibility Act 2006 (Vic) which states ‘so far as it is possible to do so
consistently with their purpose, all statutory provisions must be interpreted in a way that is
compatible with human rights’ as well as the principle of legality (Coco v The Queen). Any
section which is mentioned, unless specified otherwise, is said to be a section of [the Act
being interpreted]’

X would argue …; Y would counter-argue …; X might rebut … conclude with which

interpretation Court would consider best, and apply…
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 STEP 1 – Ordinary Natural Meaning of the (Text)
The starting point of the process of statutory interpretation is the words on the page and
statutes must be interpreted in a way that is consistent with the language used in that
statute (per McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky).

“The duty of the court is to give the words of a statutory provision the meaning that the
legislature is taken to have intended them to have” (Project Blue Sky). First, the court will
ask what the ordinary, natural meaning of the words and phrases is.

Model sentence:
- ‘On it’s ordinary natural meaning, this is very broad/narrow.’
Q’s to ask:
- Is there an absurdity that follows when a certain interpretation occurs?
General Interpretation rules:
! All words in a statute have meaning and effect (Project Blue Sky) ‘a court construing
a statutory provision must strive to give meaning to every word of the provision’.
! Dictionaries not conclusive of meaning: Re Mark
! Dictionaries seem to be a sensible place to look for confirmation of the ordinary
meaning (Evans v NSW)

TEXT
Project Blue Sky This case represents the modern
approach to statutory interpretation,
whereby:
1) ’Every word serves a purpose’
2) ’All words in a statute have
meaning and effect’ (Project Blue
Sky)
3) ’a court construing a statutory
provision must strive to give meaning
to every word of the provision’.
Alcan Alumina v Commissioner To understand the purpose of a
statute, ‘statutory interpretation must
first begin with the consideration of
the text itself’
CIC Insurance v Bankstown Each statute read in light of its
context’

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