Analysis of Al-Kateb Decision and Legal Positivism

This assignment delves into the Al-Kateb decision, exploring its implications for Australian public law. The document also examines legal positivism, including Hart's concept of law and the rule of recognition. A critical analysis of the Hart-Fuller debate is presented, highlighting the distinction between positivist and natural obligation perspectives. The assignment concludes with a summary of key findings, emphasizing the importance of understanding these concepts in public law.

Public Law

TABLE OF CONTENTS
Table of Contents.............................................................................................................................2
INTRODUCTION...........................................................................................................................1
FACTs..............................................................................................................................................1
ISSUES............................................................................................................................................1
Natural Law Theory: Gleeson CJ....................................................................................................2
Legal Positivism: Hayne J...............................................................................................................2
CONCLUSION................................................................................................................................3
REFERENCES................................................................................................................................4

INTRODUCTION
Public law is considered as that part of law which is been governs relationships among
individuals, government and those people which are of direct concern with the society. This
project aimed at provided all the legal facts, issues and theory those are associate with the public
law is discussed under this report (Levinson and Sachs, 2015).
FACTs
Al-Kateb v Godwin (2004) 219 CLR 562
It was an effective decision making by the high court of Australia which ruled as on 6
August, 2004. It indefinite proper detention of a stateless person as lawful. The commonwealth
minister of immigrations decision in order to refuse the application which was temporary
protection of visa. The major issues were found by the court is related with migration act 1958,
whether it permit an individual in Al-Kateb’s situations to be mentioned indefinitely.
Migration Act 1958 (Cth) ss 189, 196 and 198
The plaintiffs “Oswald Otto” in any of the legal case mostly migration act is taken into
account. As it classified under unlawful non-citizen which is having arrived in Australia at an
eliminated offshore place. Section 189(3) of MA need officers of the department of immigration
to quickly detain person. As well as under Section 196(1), person need to remain immigrated
until that “Oswald Otto” remove from Australia, deported or granted. Section 198(2) of the
migration act required to remove “Oswald Otto” from Australia as soon as reasonably
practicable provided that he would ether has not too made a valid application for their
substantive visa (McConville, 2017).
ISSUES
Ambiguity: Australia stands alone as the primary nation that pursues as a policy of
mandatory management detention of every unethical non-citizen. According to migration act,
one who comes to Australia without taking prior permission would remain in detention until the
occurrence of any events. However, as per the majority of High court in Al-Kateb, constituted
through McHugh, there is no any kind of provision of consideration of either global law or the
jurisprudence of other nation law. There is no any chance of ambiguity in the migration act
(Loughlin, 2016).
Statutory interpretation: It has been clearly found that the legislation is clearly and
legally provided for the plaintiffs to unlimited detention until his elimination from the nation. It
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was henceforth not a problem of statutory construction, but rather of the structure legitimacy of
public law.
Gleeson CL summary of Judgement: According to the section 93(8AA) which was
held to be constitutionally invalid as per the majority of 4:2 of the High court of Australia. The
court found that there is nothing correct to vote in the commonwealth constitution.
Hayne J summary of Judgement: Under this, the court has found valid reason that can
prove the plaintiff the victim. Only certain Rowe case concerned as of the primary which
includes earlier closure of the commonwealth electoral roll disentitle, disqualified and who were
basically entitled to make vote (Ranjan, 2014).
Natural Law Theory: Gleeson CJ
Majority of justices were of the view that unlikelihood of removal in the foreseeable
future which would draw overall attention to an ambiguity in section 196, it could be resolved by
a process of statutory construction. According to Gleeson CJ, the migration act cannot provide
for an individual to keep administrative detention always. There is certain natural theory taken
into account by the Gleeson CJ which are discussed below:
Thomas Aquinas: It is said to be types of moral theory as well as a type of legal theory,
but the essential claims of both types of theory are rationally considered as independent. This
theory is focuses on overlap among natural law moral and legal theories. It prompts that a
plaintiff is need to act in accordance to attain his aims and governs mans that sense of correct or
wrongs. Being rational is relies on specific reason and it put action by freely which will work
toward the attainment of main religious aims and objectives (Von Glahn and Taulbee, 2017).
Legal Positivism: Hayne J
It is philosophy of law which is highlights the conservative aspects of the legislation.
Positivism arose in opposition to classical natural norms theory. According to the legal
positivism, law is synonymous with positive aspects that is made by court or taken into account
as a common law. There is certain limitation which were found by Hayne those are authorize as
detention of an alien for the objective of the case. The justice Hayne delivered the leading
decision for the overall majority. According to him the removal or deportation of individual can
always consists of certain degree of uncertainty, then the analysis of the relevant act under the
migration act which would not be continue on the statement that removal is always possible.
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 Hart: It is said to be Anglo English legal theory which is been follows Kelsen quite
logically. Hart says that laws that differ from the commands of sovereign, because they
can apply to those individual those are enacted with them and not related with other
individuals (H.L.A. Hart’s. The Concept of Law, 2017).
 Rule of recognition: According to this rule which arises out of a convention between
various officials whereby people can accept the rules situation as in standard manner that
empower and govern all the related actions as decided by the officials.
 Hart-Fuller debate: It is said to be conversion among Fuller and Hart based on morality
and legal norms. It demonstrates the division among positivist and natural obligation.
Hart takes all the positivist aspects that arguing that morality and law both are separated
at their respective places.
CONCLUSION
From the above case law, it has been concluded that the Al-Kateb decision is been study in
cruel literalism are showed according the section mentioned under the migration act with
international law. The result as an entire project represents a valuable form over substance, text
over context.
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REFERENCES
Book & Journal
Levinson, D. and Sachs, B. I., 2015. Political Entrenchment and Public Law. Yale LJ. 125. p.400.
Loughlin, M., 2016. Reflections on the idea of public law. In Public law and politics (pp. 55-74).
Routledge.
McConville, M. ed., 2017. Research methods for law. Edinburgh University Press.
Ranjan, P., 2014. Using the public law concept of proportionality to balance investment
protection with regulation in international investment law: A critical appraisal.
Cambridge J. Int'l & Comp. L. 3. p.853.
Von Glahn, G. and Taulbee, J. L., 2017. Law among nations: an introduction to public
international law. Routledge.
Online
H.L.A. Hart’s. The Concept of Law. 2017. [Online]. Available through: <
http://www.angelfire.com/md2/timewarp/hart.html >.
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