Al-Kateb V Godwin - Consequences

Consequences

As a result of the decision, Al-Kateb had to return to immigration detention. Claire O'Connor, Al-Kateb's lawyer, said that "The effect of this decision is that will be locked up until a state of Palestine is created or some other Middle Eastern state is willing to have him. It's taken 51 years so far. I'm not holding my breath."

The decision sparked much controversy about the scope of the mandatory detention laws. Along with the two other immigration detention decisions handed down on that day, the case prompted several political leaders, including the then Federal President of the Australian Labor Party Carmen Lawrence, and Australian Democrats leader Senator Andrew Bartlett, to call for an Australian bill of rights. The executive director of the Sydney Institute, Gerard Henderson, said that the case demonstrated "the need for empathy in public policy".

However, the case also aroused controversy about the court itself. David Marr described the four to three decision as indicating a new division in the composition of the court, the "liberty divide", and noted that the result on the liberty question moved the court in the opposite direction to the contemporary trends of the Supreme Court of the United States and the House of Lords. Arthur Glass observed that the minority judges began their judgments from the position that indefinite non-judicial detention and the curtailment of personal freedom were troubling consequences, and noted that "as is not uncommon in statutory construction, where you start from is critical to where you end up." Marr accused the majority of deciding that "saving Australia from boat people counts for more than Al-Kateb's raw liberty."

The controversy resulted in pressure on the new Immigration Minister Amanda Vanstone, who agreed to review the cases of twenty-four stateless people in immigration detention, and ultimately granted bridging visas to nine people including Al-Kateb, allowing them to be released into the community. However, the conditions of the bridging visas did not permit holders to work, study, obtain social security benefits or receive healthcare from Medicare, and Al-Kateb remained entirely dependent on donations from friends and supporters to survive. Al-Kateb said of his situation, "We just walking in a big detention. And we are all the time worried that they will send us back to detention again… It's like a death punishment."

In a 2005 speech to the Law Society of the University of Sydney, Justice McHugh reiterated his view of the case as a tragic situation, and said that it was necessary for "the informed and impassioned" to seek reforms to legislation to protect individual rights, since the absence of a bill of rights limited the ability of the courts to protect rights. McHugh said that cases in countries such as the United Kingdom, in which courts had found that indefinite administrative detention was not lawful, were based on bills of rights or other instruments such as the European Convention on Human Rights, and lamented that without such instruments, Australian courts are "not empowered to be as active as the Supreme Court of the United States or the House of Lords in the defence of the fundamental principles of human rights."

In response to McHugh's speech, Chief Justice Gleeson said that the issue of whether or not Australia should have a bill of rights was a purely political one, and not a matter for the courts. Gleeson said that while he had personal political views on the matter, "It doesn't serve the community for a serving Chief Justice to enter that arena."