In the period 2004-2007, the highest courts of Australia, the United Kingdom and Canada handed down judgments on the legality of the indefinite detention of non-citizens, specifically non-citizens subject to a removal order whose removal was frustrated. Each of the governments claimed that its intention to remove the non-citizens if and when it became viable to do so sufficed to establish that their detention fell within an ‘immigration’ exception to non-citizens’ rights. The cases thus raised fundamental questions about the relationship between non-citizens’ rights and governments’ power to control national borders.
I argue that the indefinite detention of a non-citizen subject to a removal order is illegal. The detention of a non-citizen subject to a removal order is lawful if it can be justified as a proportionate measure to effect his or her removal. Indefinite detention fails this proportionality test and as such is an unlawful violation of a non-citizen’s rights. I develop my argument through case studies from the three jurisdictions.
I argue that the law of all three jurisdictions contained ample resources to support a ruling that indefinite detention was unlawful. The question then arises as to why this view did not prevail in every jurisdiction. I demonstrate that, taking into account variations in legal frameworks and doctrines, a judge’s response to indefinite detention is at base determined by his or her answer to the question ‘does a non-citizen, against whom a valid removal order has been made, retain a right to liberty?’ The judge’s answer to this question flows through his or her adjudication on the scope of ‘immigration’ exceptions to legal protections of the personal liberty of non-citizens considered in the case studies.
I consider the best justification for the view that a removal order revokes a non-citizen’s right to liberty, provided by John Finnis. I argue that it rests on questionable understandings of citizenship, and in operation inevitably undermines the values of community solidarity it seeks to promote.
| Identifer | oai:union.ndltd.org:LACETR/oai:collectionscanada.gc.ca:OTU.1807/26248 |
| Date | 17 February 2011 |
| Creators | Thwaites, Rayner Bartholomew |
| Contributors | Dyzenhaus, David |
| Source Sets | Library and Archives Canada ETDs Repository / Centre d'archives des thèses électroniques de Bibliothèque et Archives Canada |
| Language | en_ca |
| Detected Language | English |
| Type | Thesis |
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