Wartime Detention by the Executive
From at least the Magna Carta of 1215, Western legal systems have developed with an aim of protecting individuals from arbitrary and unrestrained exercises of Executive power. This essay focuses upon an apparent exception to this tradition, and aims to assess whether laws authorizing detention by the Executive, and on its opinion alone, are constitutionally valid during a time of war. It is recognised that the Court during both world wars upheld legislation which authorised the Executive to detain according to its own opinion. However, as noted by Kirby J in Al-Kateb v Godwin1, there have been a number of cases since that time which have developed concepts such as the rule of law, separation of powers, judicial review and constitutional interpretation in such a way that, were the wartime detention cases to be revisited again, a very different result could, and should, be elicited from the Court.
Three cases were upheld by McHugh J in Al-Kateb as evidence that detention by the Executive during wartime is constitutionally valid. In Lloyd v Wallach,2 the Court during World War One found valid regulations which stated that if the Minister of Defence "has reason to believe” that any naturalized person is disaffected or disloyal, detention of that person may be ordered for the remainder of the war. Griffith CJ dismissed the view that such detention would be subject to judicial review.3 In Ex parte Walsh,4 the Court during World War Two found valid provisions which stated that the Minister may, if “satisfied” that a detention order was necessary to prevent a person acting in any manner prejudicial to the public safety or the defence of the Commonwealth, make such an order. And in Little v The Commonwealth,5 a case involving the same regulations the subject of Ex parte Walsh, Dixon J held that an order of the Minister under those regulations was not examinable upon any ground other than bad faith. The result was, in the words of Kirby J, the validation of "detention at the will of the Executive, and according to its opinions, actions and judgments.”6
The specific head of power which authorised the respective legislation in each of the three wartime detention cases was the defence power. The defence power is unique in that it varies in scope,7 such that “the character of a war and the state of emergency at a given time may justify measures which at another time may be unwarranted.”8 As it is a purposive power, the measures it authorises must be reasonably adapted for the purpose of the military and naval defence of Australia against enemy aliens.9 It is noted that the cases in question occurred during a time of ‘hot war,’ which not only affected the type of actions which were available to the Executive, but also the response of the Courts to those actions, to be discussed later in this essay.
The Magna Carta originally attempted to protect citizens from arbitrary Executive detention by stating that detention was legitimate only when resulting from "the legal judgment of peers, or by the law of the land." This principle materialized in the Constitution through the separation of powers, which stipulates that only the Courts may exercise judicial power,10 thus ensuring that “the life, liberty and property of the subject is not in the hands of arbitrary judges, whose decisions are then regulated only by their own opinions and not by any fundamental principles of law.”11 The Court in Lim interpreted the separation of powers to mean that, subject to a number of exceptions, only the Court may detain, as “the involuntary detention of a citizen in custody by the State is penal or punitive in character and, under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt.”12 However, when characterizing detention as punitive, the Court has found that the purposeof the detention is the defining feature. If the detention is for a non-punitive purpose, then it will not be an exercise of judicial power and will therefore be open to authorization by the Executive.13 A caveat to this principle was provided for in Lim, which stated that if such detention “goes beyond what is reasonably necessary to achieve the non-punitive object, it will be regarded as punitive in character” (and therefore invalid.) 14 This approach however was criticized by the majority in Al-Kateb, who found that so long as the law authorizing detention was a law with respect to a specified head of power, it would not matter if the detention “went beyond what was necessary” to effect the nonpunitive purpose.15 For this reason, detention which has the defence of Australia as its purpose will likely be accepted by the Court as valid, even (potentially) if extreme and disproportionate measures are utilised. Furthermore, laws which authorise the Executive to detain persons for ‘protective’ purposes have been specifically confirmed by the Court not to breach the separation of powers, even if an ancillary purpose for the detention is deterrence.16 As the detention of persons assumed, in the opinion of the Executive, to be prejudicial to the defence of the nation during war is purportedly for protective purposes, such detention is unlikely to be considered a breach of the separation of powers in this respect, and will therefore likely not be invalidated on this ground.
The ability of the Executive to act according only to its own will was first challenged by the Magna Carta in 1215, which recognised that even the King was subject to the law.17 Early in its history the Australian High Court recognised that the rule of law was equally applicable to the new colonial territory, 18 and this principle has continued to be enforced, with the Communist Party case noting that one of the many traditional concepts implicit in the Constitution is the rule of law.19 Even more recently, McHugh J noted that the rule of law “may legitimately be taken into account” when interpreting the Constitution.20 The rule of law stipulates that all authority, including the Executive, is subject to, and constrained by, the law, and may not act without clear legal authority first permitting its actions.21 In Australia, the source of law-making is the Constitution, and any laws made must be consistent with the Constitution.22 The rule of law is protected by the Constitution in two ways: firstly, by exhaustive, enumerated heads of power, and secondly, by the separation of powers.
The Communist Party case developed significantly the concept of the rule of law. In that case, legislation allowing the Minister to “declare” associations and individuals was considered unconstitutional, as the sole link between the defence power which purported to authorise the legislation, and the declared parties themselves, was the Minister’s personal opinion. The Court found that it had an exclusive duty to determine whether a law falls within a specific head of power, which duty could not be discharged by the Minister’s opinion, for “a stream cannot rise higher than its source.”23 The separation of powers required that as the receptacle of judicial power, only the Court could determine the constitutionality of legislation,24 and for this reason the opinion of the Executive could not be the sole criterion by which a law is declared constitutional, as “a power to make laws with respect to lighthouses does not authorise the making of a law with respect to anything which is, in the opinion of the law-maker, a lighthouse.”25
In order to determine whether or not legislation is constitutional, it is necessary for the Court to make a determination as to certain facts, the existence of which would place the legislation in or outside power. It is in this regard that the Communist Party case is particularly significant, as it developed the doctrine of constitutional fact ascertainment to say that, at least in a time of peace, it was the absolute duty of the Court and not the Executive to determine the existence of constitutional facts. Prior to the Communist Party case the Court had been reluctant, even during peace time, to investigate and declare the existence of constitutional facts, preferring instead to defer to Parliament whom it believed to be “constituted and equipped as to be infinitely more capable than the Court to arrive at a proper conclusion.”26 This preference was exemplified in the defence power cases of both world wars for reasons to be discussed later in this paper. The view in the Communist Party case that “constitutional facts” cannot be declared by the Executive to exist, but must actually exist,27 is relevant to detention cases as it does not allow the Executive to rely solely on its own opinion when detaining an individual for being prejudicial to the defence of the nation. For legislation authorising detention to be valid it is necessary to ensure that the person being detained actually is such a threat, and this constitutional fact may only be determined by the Court.
That only the Court may determine whether legislation is constitutional, flows from the entrenched notion of judicial review. In Plaintiff s157 the Court noted that judicial review is an obvious example of the enforcement of the rule of law over Executive action,28 and upheld the “fundamental constitutional proposition” espoused also by the Communist Party case, that Parliament cannot confer on a non-judicial body (namely, the Executive) the power to conclusively determine the limits of its own jurisdiction.29 Plaintiff 157 then commented further on this separation of powers doctrine, noting that to give the Minister absolute discretion “would appear to lack that hallmark of the exercise of legislative power…, namely, the determination of the content of a law as a rule of conduct or a declaration as to power, right or duty.”30 The implications of this case, in tangent with the Communist Party case, are twofold. Firstly, it appears that, at least in times of peace, the decision of a Minister to detain a person using the defence power would be reviewable by the Courts. And secondly, legislation which purports to make the Minister’s opinion conclusive (and beyond judicial review) would be considered unconstitutional, and a breach of the separation of powers.
During war, however, judicial review has not been so readily proffered by the Court, although a number of World War Two cases have confirmed that a very basic level of judicial review is available. In Reid v Sinderberry,31 the Court found that it was open to the Court to examine the “operation and effect” of the law, and determine whether the law had some “real connection with defence.”32 However, the Court went on to find that if the nexus between the subject of the law and the defence power was “established,” then the regulations would be constitutional.33 This gave the Court a very wide discretion to find that, as Lloyd v Wallach had declared regulations made under the War Precautions Act 1914-1915 valid, the requisite nexus had been established and the Court was not obliged to undertake any deeper analysis. In Dawson v Commonwealth,34 the Court held that judicial review was available if the discretion given the Minister was “directed to purposes foreign to those of the…defence power.”35 However, if a real connection between the subject matter of the legislation and the defence power could “reasonably” be ascertained, then the Court should hold the legislation valid.36 These cases therefore allow only a partial review by the Courts of action based on Executive discretion, limited to a determination as to the subject of the regulations and whether such subject matter is “reasonably connected” to the defence power. Given that control of personal liberty during wartime is traditionally considered central to the defence power,37 it is likely the Court would find the nexus “established” in the legislation pertaining to the wartime detention cases, and would not offer the litigants in the wartime detention cases an alternate verdict on this ground. Neither does the allowance in Little v Commonwealth that review on the grounds of bad faith is possible38 provide adequate judicial review, as the Court is not entitled to enquire into the constitutional facts upon which the decision was based, making the review extremely limited in scope.
The Court generally has found that detention by the Executive during ‘hot war’ fits into a category of its own, and is exempt from judicial review as outlined above. Furthermore, the Court has tended to allow the Executive, in times of ‘hot war,’ to validly declare the existence of constitutional facts. The reasons for granting this very significant exemption include confidentiality,39 the superior knowledge and experience of Parliament,40 the inability of the Court to take into account, when determining constitutional facts, material beyond that of which it may take judicial notice (namely, specific intelligence and policy information regarding the war),41 and a general “presumption” of deferral to the Executive during wartime.42 Any enquiry into regulations or the effect of regulations was to be confined to whether the measures “tended or might reasonably be thought conducive or relevant” to the prosecution of the war, in which case the Court should, and would, defer to the wisdom of Parliament as to their means.43
Even the Court in the Communist Party case found it “beyond doubt” that during ‘hot war’ the Executive could validly declare the existence of constitutional facts linking Executive detention to the defence power, relying upon the authority of Lloyd v Wallach and ex parte Walsh in making the exemption.44 However, those particular decisions have been justifiably criticized as “surely being weaker”45 than stated by the Court. The constitutional implications of Executive detention were not central to Lloyd v Wallach and were therefore not addressed, and both Ex parte Walsh46 and Little v Commonwealth47 merely stated Lloyd v Wallach as authority for the ability of the Executive to detain on its own opinion during war, and failed to discuss any potential constitutional constraints that may be engaged.
It is not doubted that “the necessities of war require adaptation of the Constitution and specifically of the power to make laws with regard to defence.”48 This is reflected by the flexibility inherent in the scope of the defence power, which waxes and wanes according to the circumstances faced by the nation. However, as Gaudron J noted in Kruger, even the defence power is “subject to the Constitution” and the requirements of Chapter III.49 It was recognised as early as Gratwick v Johnson, a World War Two case, that no matter how extensive the defence power was, it could not override section 92, as even the defence power was “no exception” to being “subject to the Constitution.”50 McHugh’s admission that the rule of law should be taken into account when interpreting the Constitution51 further supports the view that the defence power should not be exempt from the restraints of Chapter III. The Court has provided neither legal analysis of nor adequate explanation regarding why the particular exigencies of war justify such an extreme measure as to override the Constitution; rather, it has merely relied on concepts such as ‘confidentiality’ and the ‘greater wisdom to Parliament,’ and left the reader “guessing as to the rationale.” 52 As a power rightfully subject to the Constitution, the defence power should also be subject to the constraints of Chapter III, namely, that the Executive may not self-declare the constitutionality of legislation; that the existence of constitutional facts may only be determined by the Courts and not the Executive; and that Executive action and discretion is subject to judicial review. This being the case, the regulations in the wartime detention cases which gave the Minister power to conclusively declare the existence of constitutional facts, and in doing so authorised the Executive to determine the constitutionality of legislation and put such determination beyond judicial review, would be considered to be in breach of the separation of powers, as well as the rule of law, and thus invalid.
There has been some suggestion, largely by Kirby J, that the Constitution should be read consistently with international law.53 Arbitrary detention is expressly prohibited under the International Convention on Civil and Political Rights,54 although a signatory state may derogate from the ICCPR upon official proclamation that the life of its nation is threatened, and such derogation is “strictly required by the exigencies of the situation.”55 Although the Court found in Teoh that persons could expect the government to act in accordance with a treaty once ratified, it noted that the judiciary could not "by the backdoor" incorporate an international treaty (even one ratified by Australia) as part of Australian law where Parliament had not done so by legislation.56 Enforceability of international law therefore depends upon specific domestic legislation being enacted.57 At the present time the use of international law as a tool of constitutional interpretation remains controversial and a view considered acceptable only by a minority of the Court.58 For this reason it alone is unlikely to offer a strong footing for an alternative finding in the wartime detention cases.
To conclude, there have been a number of significant legal developments with regard to the rule of law, separation of powers and judicial review since the wartime detention cases referred to by McHugh J, which developments impact directly upon the constitutionality of those cases. Were those cases to be revisited, it would be open to the Court to find that regulations authorizing detention solely on the personal opinion of the Minister violate the rule of law and are in breach of the separation of powers. As a result, the Court could, and should, find that arbitrary detention at the will of the Executive is unconstitutional, even during wartime.
1 Al-Kateb v Godwin  HCA 37, 165 (Kirby J) (‘Al-Kateb’)
2 (1915) 20 CLR 299
3 Ibid., 29 (Griffith CJ)
4  ALR 359
5 (1947) 75 CLR 94
6  HCA 37, 55 (McHugh J, quoting Kirby J)
7 Favey v Burvett (1916) 21 CLR 433, 441 (Griffith CJ)
8 Stenhouse v Coleman (1944) 69 CLR 457, 471 (Dixon J)
9 Australian Communist Party v The Commonwealth  HCA 5, 225 (Williams J) (‘Communist Party
10 R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254
11 Dias, Eloise. Punishment by another name? Detention of non-citizens and the separation of powers.
(2004) 15 PLR 17
12 Chu Kheng Lim and Others v The Minister for Immigration, Local Government and Ethnic Affairs and
Another (1992) 176 CLR 1, 23 (Brennan, Deane and Dawson JJ) (‘Lim’)
13 Re Wooley; Ex parte Applicants M276/2003 (by their next friend GS) (2004) 210 ALR 369, 28, 30
(Gleeson, CJ), 60 (McHugh, J), 150 (Gummow, J), 227 (Hayne, J), 270 (Heydon, J, agreeing), and 260–
263 (Callinan, J); see also Alec Kruger & Ors v The Commonwealth of Australia; George Ernest Bray &
Ors v The Commonwealth of Australia  HCA 27, 161 (Gummow J) (‘Kruger’)
14 (1992) 176 CLR 1, 39 (McHugh J)
15  HCA 37, 41 (McHugh J)
16 Ibid., 61 (McHugh J)
17 The Committee on Federal Courts. The indefinite detention of “enemy combatants”: balancing due
process and national security in the context of the war on terror. (2004) 59 The Record 41.
18  HCA 5, 262 (Fullagar J), quoting Marbury v. Madison, 5 U.S. 137, 163 (1803)
19 Ibid., 35 (Dixon J)
20 Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104, 196 (McHugh J)
21 Tomkins A, Public Law (2003) p 78.
22 Gleeson, Murray. Courts and the Rule of Law. The Rule of Law Series, Melbourne University, 7
November 2001. <http://www.hcourt.gov.au/speeches/cj/cj_ruleoflaw.htm>
23  HCA 5, 14 (Fullagar J)
24 D’Emden v Pedder (1904) 1 CLR 91, 117 (Griffith J)
25  HCA 5, 14 (Fullagar J)
26 Jumbunna Coal Mine, NL v Victorian Coal Miners’ Association (1908) 6 CLR 309, 376 (Isaacs J)
27 Winterton, George. The Significance of the Communist Party Case. (1991-1992) 18 Melbourne
University Law Review 634.
28 Plaintiff S157/2002 v Commonwealth (2003) 77 ALJR 454 (‘Plaintiff S157’), quoting Church of
Scientology v Woodward (1982) 154 CLR 25, 70 (Brennan J)
29 (2003) 77 ALJR 454, 463 (Gaudron, McHugh, Gummor, Kirby and Hayne JJ)
30 Ibid. at 474 (Gaudron, McHugh, Gummor, Kirby and Hayne JJ)
31  HCA 15
32 Ibid., per Starke J
33 Ibid., per Rich J
34  HCA 41
35 Ibid., per Dixon J
36 Ibid., per Latham J
37  HCA 5, 195 (Dixon J); (1947) 75 CLR 94, 102-104 (Dixon J); (1915) 20 CLR 299;  ALR
38 (1947) 75 CLR 94 (Dixon J)
39 Farey v Burvett (1916) 21 CLR 433, 443 (Griffiths CJ), 448-449 (Barton J) and 460-461 (Higgins J);
Stenhouse v Coleman (1944) 69 CLR 457, 469 (Dixon J); see also Lloyd v Wallach (1915) 20 CLR 299
40 (1916) 21 CLR 433, 455-6 (Griffiths CJ).
41 (1944) 69 CLR 457, 469 (Dixon J)
42 Ibid., per Dixon J
43  HCA 5, 43 (Dixon J)
44 Ibid., 15 (Fullagar J)
45 Winterton, above n.27
46  ALR 359 (Latham CJ and Starke J; Rich, McTiernan and William JJ agreeing)
47 (1947) 75 CLR 94 (Dixon J)
48  HCA 37, 163 (Kirby J)
49  HCA 27, 109 (Gaudron J)
50 Gratwick v Johnson  HCA 7
51 (1994) 182 CLR 104, 196 (McHugh J)
52 Kenny, Susan. Constitutional Fact Ascertainment. (1990) 1 PLR 134
53 For example, see Kirby J in Newcrest Mining (WA) Ltd v. Commonwealth  HCA 38; Kartinyeri v.
Commonwealth  HCA 22; and Al-Kateb v. Godwin  HCA 37
54 Article 9(1) of the International Covenant on Civil and Political Rights, opened for signature Dec. 16,
1966, 999 U.N.T.S. 171 (“ICCPR”). Australia ratified the ICCPR on 13 August 1980.
55 ICCPR Article 4(1)
56 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 288 (Mason CJ and Deane J)
57  HCA 37, 179 (Kirby J)
58 For example, see Kartinyeri v. Commonwealth  HCA 22; AMS v. AIF and AIF v. AMS 
HCA 26; Western Australia v. Ward; Attorney-General (NT) v. Ward; Ningarmara v. Northern Territory
 HCA 28; and Al-Kateb v. Godwin  HCA 37
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