Gageler CJ
Gordon J
Edelman J
Steward J
Gleeson J
Jagot J
Beech-Jones J
8.
Reopening of the constitutional holding in Al-Kateb
The facts of AJL20 did not raise whether, on the construction of ss 189(1) and 196(1) of the Migration Act adopted in Al-Kateb and endorsed in AJL20, those provisions have valid application to an unlawful non-citizen in respect of whom there is no real prospect of removal from Australia becoming practicable in the reasonably foreseeable future. The majority in AJL20[1] specifically recorded that the correctness of the constitutional holding in Al-Kateb did not arise for consideration.
Twelve years before Al-Kateb and two years before the insertion of Divs 7 and 8 of Pt 2 of the Migration Act, the Court decided Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs.[2] There it was necessary to determine the constitutional validity of two earlier and then recently inserted[3] sections of the Migration Act[4] which authorised and required the detention of a person who was within a category of non-citizens who had entered Australia unlawfully by boat. The detention was required to continue unless and until the person was either removed from Australia or granted an entry permit,[5] but the maximum period of detention was capped at 273 days[6] and the person was required to be removed from Australia "as soon as practicable" if the person asked for that to occur.[7] The impugned sections were held to be supported by s 51(xix) and not to contravene Ch III of the Constitution.
The reasoning of three members of the Court (Brennan, Deane and Dawson JJ), with whom a fourth (Mason CJ) agreed, that the impugned sections
