Federal Court (Full Court). The primary judge held that term “detain” when employed in ss 189 and 196 meant "lawfully detain", instead of “detain in fact”. In AJL20, the majority judgement of the High Court rejected "the view that the detention of an unlawful non‑citizen ceases to be authorised by the Act immediately, where there has been a delay in the Executive’s performance of the duty imposed by s 198". Did AJL20 foreclose the path of reasoning applied by the primary judge?
Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:
Question 1: The primary judge held as follows: "Any construction of the term “detain” when employed in ss 189 and 196 to simply mean “detention in fact” – rather than “lawful detention” – is thus a construction which should only prevail if the statutory language clearly dictates that such was the presumed intent of the Commonwealth legislature. In the absence of such a clearly expressed legislative intent, it would be difficult to reach a conclusion that the Commonwealth legislature intended to authorise continued detention which was “unlawful”". In AJL20, the majority judgement of the High Court rejected "the view that the detention of an unlawful non‑citizen ceases to be authorised by the Act immediately, where there has been a delay in the Executive’s performance of the duty imposed by s 198". Did AJL20 foreclose the path of reasoning applied by the primary judge?
Question 2: Can it be said that AJL20 "did not apply to a case where the Minister had commenced to consider whether to exercise a non-compellable power such as that contained in s 195A"?
The FCAFC answered those questions as follows: