Keeping Infiltrators in Custody
- In the case of a person, this court is required to rule in connection with the previous incarnation of the Prevention of Infiltration Law – Amendment No. 3. I presented there various approaches in the comparative sentence regarding placement in custody, with an emphasis on the United States (paragraph 7 of my opinion). What all approaches have in common is that it is possible to justify keeping an infiltrator in custody for a period that is not long. Custody - yes, a long period - no. In other words, the detention can be justified on the administrative level, but not on the criminal level, since it is not a punishment. From this I concluded in the case of the High Court of Human Justice, and thus I joined the opinion of my colleagues that the upper threshold set in Amendment No. 3 – custody for three years – is unconstitutional.
- It should be noted that in the case of Adam, my colleagues, with the exception of me and the President, did not express an explicit or even general position regarding the reasonable threshold of custody, but at the same time they did not express sweeping and clear reservations about the use of the tool of placement in custody. It emerges, therefore, that the argument is about the duration of the custody – and not about the placement in custody itself. What, then, is the desirable upper standard for custody? An unequivocal answer – there is none, but there is a general outline. For this purpose, the comparative theorem can be used.
A reading of Justice Vogelman's opinion gives the impression that six months is the highest accepted standard in the world. In my understanding, this is not the case. Many countries pass the six-month threshold. Canada and the UK don't have a legal upper limit. In Britain, in particular, about 10% of infiltrators are held for a period of more than a year. In Europe, the situation is not significantly different, and many countries there deviate from the six-month mark. Thus, for example, Switzerland and Italy set a period of 18 months. In other Western countries such as Denmark, Finland, Ireland and New Zealand, there is no upper standard. Nose In Australia There is no upper limit, and infiltrators are often held in custody for a period exceeding a year (Migration Act 1958, §198; Al-Kateb v. Godwin, [2004] 219 CLR 562; For more on the countries mentioned here, see: Global Detention Project, Country Profiles ( http://www.globaldetentionproject.org/countries.html)). It should be noted that a judgment handed down a few days ago by the Supreme Court of Australia also did not rule out in principle and sweeping the possibility of keeping an infiltrator in custody, but noted that custody is not an end in itself. It was determined that detention is permitted only if its purpose is to examine the infiltrator's eligibility for a visa or the possibility of deporting him, and only for the period of time necessary to make a decision in his case. It was also ruled that the deportation process must be carried out - "as soon as reasonably practicable", that is, as quickly as possible from a reasonable practical point of view (Plaintiff S4/2014 v. Minister for Immigration and Border Protection, [2014] HCA 34 (11.9.2014)).