Re Woolley; Ex parte Applicants M276/2003 by their next friend GS [2004] HCA 49

HIGH COURT OF AUSTRALIA

GLEESON CJ, McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ

RE KIT WOOLLEY (MANAGER OF THE BAXTER IMMIGRATION DETENTION CENTRE) & ANOR RESPONDENTS

EX PARTE: APPLICANTS M276/2003 BY THEIR NEXT FRIEND GS PROSECUTORS

Re Woolley; Ex parte Applicants M276/2003 by their next friend GS [2004] HCA 49 7 October 2004 M276/2003

ORDER

Application dismissed.

Representation:

G Griffith QC with C J Horan and C M Harris for the prosecutors (instructed by Vadarlis & Associates)

D M J Bennett QC, Solicitor-General of the Commonwealth, with G R Kennett for the respondents and intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)

B W Walker SC with J K Kirk intervening on behalf of the Human Rights and Equal Opportunity Commission (instructed by the Human Rights and Equal Opportunity Commission)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Re Woolley; Ex parte Applicants M276/2003 by their next friend GS

Immigration – Detention – Migration Act 1958 (Cth) ("Migration Act"), ss 189 and 196 – Whether detention of children authorised by Migration Act – Whether children may request release from detention under Migration Act, s 198 – Whether detention valid if children unable to request release – Relevance of international jurisprudence and parens patriae jurisdiction.

Constitutional law (Cth) – Judicial power of the Commonwealth – Immigration detention – Whether Migration Act, ss 189 and 196 validly require detention of children – Whether legislation reasonably capable of being seen as necessary for the purposes of reception, investigation, admission or deportation of aliens – Characterisation of detention as punitive or non-punitive.