NAMU of 2002 v Secretary, Department of Immigration Indigenous & Multicultural Affairs [2002] FCA 907

NAMU of 2002 v Secretary, Department of Immigration Indigenous & Multicultural Affairs [2002] FCA 907

Section 196 of the Migration Act 1958 (Cth), read in its statutory context with provisions for detention, visa grant, removal and deportation, authorises detention of unlawful non-citizens only as incidental to visa processing, removal or deportation and is not punitive or penal. Section 196(3) does not direct or...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
04 July 2002
Procedural Posture
Application Under S 39 B of the Judiciary Act 1903 (cth) for Declaratory Relief / Separate Determination of Constitutional Validity Question
Outcome
The separate question was answered Yes; s 196 of the Migration Act 1958 (Cth) is a valid law of the Commonwealth.
Legal Topics
['validity of S 196 of the Migration Act 1958 (cth)' 'immigration Detention of Unlawful Non Citizens' 'aliens Power' 'judicial Power' 'bill of Rights Construction Argument']
['migration Law' 'constitutional Law'] ['validity of S 196 of the Migration Act 1958 (cth)' 'immigration Detention of Unlawful Non Citizens' 'aliens Power' 'judicial Power' 'bill of Rights Construction Argument']

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Procedural Posture

Application Under S 39 B of the Judiciary Act 1903 (cth) for Declaratory Relief / Separate Determination of Constitutional Validity Question

Legal Issues

  1. 1 ['Whether s 196 of the Migration Act 1958 (Cth) is a valid law of the Commonwealth.' 'Whether s 196(1) and s 196(3) are beyond legislative power as an impermissible interference with judicial power.' 'Whether s 196 should be characterised as punitive or penal.' 'Whether Art 10 of the Bill of Rights 1688 (UK) assists in construing Division 7 of the Migration Act 1958 (Cth).']

Ratio Decidendi

Section 196 of the Migration Act 1958 (Cth), read in its statutory context with provisions for detention, visa grant, removal and deportation, authorises detention of unlawful non-citizens only as incidental to visa processing, removal or deportation and is not punitive or penal. Section 196(3) does not direct or control the exercise of judicial power; it makes clear that a court has no jurisdiction to release a person lawfully detained as an unlawful non-citizen, while leaving courts able to determine the lawfulness of detention. Accordingly s 196 is a valid law of the Commonwealth supported by the aliens power.

Court Disposition

The separate question was answered Yes; s 196 of the Migration Act 1958 (Cth) is a valid law of the Commonwealth.

Orders

  • ['The separate question "Is s 196 of the Migration Act 1958 (Cth) a valid law of the Commonwealth?" should be answered "Yes".']