The Reasons the High Court Ruled Indefinite Detention Is Unlawful in Australia

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By Paul Gregoire and Ugur Nedim

The High Court released its full findings into the case NZYQ versus the Immigration, Citizenship and Multicultural Affairs Minister on 28 November, which was a determination that saw the nation’s top court rule that the executive doesn’t have the power to detain asylum seekers indefinitely.

The full bench of the court made the ruling on 8 November, which overturned the precedent set by 2004’s Al-Kateb versus Goodwin in finding that asylum seekers, who are either stateless or can’t be returned to their country of origin due to persecution, cannot be detained on an indefinite basis.

The determination resulted in more than 140 detainees, who’d been locked up with no end in sight, being released into the community.

And this has sent the Albanese government into a tither, as it scrambles this week to legislate a preventative detention regime that would allow for them to be held in detention once more.

With opposition leader Peter Dutton breathing down his neck, Albanese passed laws following the ruling, which have meant the newly-released, some of whom have served time for serious crime, have been placed on parole-like conditional liberty, which includes a curfew and electronic ankle monitoring.

But while ministers and the Coalition opposition have been propagating a climate of fear in relation to the release of multiple detainees who’ve served the time for their crimes, the reasons their Honours provided for the necessary ending of the indefinite detention regime had remained unpublished and unknown.

The stateless can’t be returned

The full bench of the High Court agreed that executive government-imposed indefinite detention is unlawful. The seven judicial officers were Chief Justice Stephen Gageler and Justices Michelle Gordon, James Edelman, Simon Steward, Jacqueline Gleeson, Jayne Jagot and Robert Beech-Jones.

The case dealt with a stateless Rohingya man born in the mid-1990s, who arrived in Australia by boat in 2012, and after was granted a bridging visa in 2014. This man was then convicted over a sexual offence against a child two years later, and on release from prison, he was placed in immigration detention in 2018.

The immigration minister found that the man referred to as NZYQ by the court was a legitimate refugee in 2020. However, in regard to his conviction over a child sex offence, it was determined that he wasn’t owed a protection visa, and rather he should be kept in detention without end.

NZYQ couldn’t be returned to Myanmar as he doesn’t have the right of entry. And the Federal Court went on to reject his request to review the decision to detain him, while the minister also rejected a written request to be returned the man had provided himself.

The Rohingya man then appealed to the High Court, claiming that section 189 and 196 of the Migration Act 1958 (Cth) don’t provide for indefinite detention, and further that the effect of holding him contradicts chapter III of the Australian Constitution: the section that deals with the judiciary.

A question of detention

The full court explained that section 189 of the Migration Act provides that an officer who “knows or reasonably suspects that a person in the migration zone… is an unlawful noncitizen” then that person should be detained for a duration that is determined by section 196 of the Act.

Section 196 maintains that an unlawful noncitizen should be detained until they leave Australia, or they’re taken to a regional processing country, or they’re deported, or they happen to be granted a visa.

And section 198 of the Act provides that an officer must remove such a person “as soon as practicable” and it imposes a duty to remove them if they apply to the minister in writing requesting this to happen, as well as when they’ve applied for but have been refused a visa.

The majority of the highest court found in 2004’s Al-Kateb that the executive could hold an unlawful noncitizen in immigration detention for a period without limit if the government maintained the aim of deporting them at the soonest possible opportunity.

The High Court last month unanimously found that the provisions of sections 189 and 196 of the Act did indeed provide the executive with the ability to detain an unlawful citizen, as was the finding in Al-Kateb, and it also found that it should reopen the constitutional holding involved in that ruling.

The court then noted that a number of rulings flowing from the outcome of 1992’s Chu Kheng Lim versus the Minister for Immigration, Local Government and Ethnic Affairs have been hinting at the fact that the precedent set by Al-Kateb was shaky.

Lim holds that a law enacted by the federal parliament that authorises the detention of a person other than through the exercise of the judicial power of the courts contravenes chapter III of the Constitution, unless it can be justified that the detention is not punitive.

Detention is punishment 

In terms of whether indefinite detention is punitive, their Honours found that holding an unlawful noncitizen in detention when there is no real prospect of their being able to return to their country of origin, cannot be said to be for the purpose of deporting them.

“Therein lies the reason why the constitutional holding in Al-Kateb, having been reopened, must be overruled,” the court found. “The Lim principle would be devoid… were it enough to justify detention” based on “an identified legislative objective that there is no real prospect of achieving”.

With the detention of asylum seeker NZYQ not serving the purpose of deciding whether to deport or allow him to remain in Australia, it shows that he was rather being held to ensure his separation from the Australian community, which then sees the purpose of detainment simply being to detain.

Their Honours then determined that the constitutional limitation to the executive detention of an unlawful noncitizen in order to deport them from Australia becomes apparent when that removal is no longer “practicable in the reasonably foreseeable future”.

And from the 30 May when NZYQ raised his appeal, two important facts further support the illegitimacy of his detention since that date. These involve there being no ability to remove the man from this country, and there being no prospect for such a development in the near future.

The outcome of the appeal

The High Court found that whilst sections 189 and 196 of the Act do provide the executive with the ability to detain a person in order to deport them, this does not extend to a situation where those who there is no prospect for deportation then being held on the off chance that prospect arises.

Their Honours underscored that release for unlawful detention does not equate with permission being given to NZYQ to remain in Australia. And it does not prevent re-detention if the prospect of detention did become foreseeable in the near future.

“Nor would grant of that relief prevent detention of the plaintiff on some other applicable statutory basis, such as under a law providing for preventive detention of a child sex offender who presents an unacceptable risk of reoffending if released from custody,” the High Court justices added.

So, according to the 28 November findings, the section 189 and 196 construction does authorise NZYQ’s detention, but those provisions are also beyond the legislative power of the government. And while this construction continues to hold to the current day, they continue to be invalid.

Their Honours then determined that as there was no real prospect of NZYQ’s deportation from March onwards, his detention, therefore, had been illegal. And the court issued a writ of habeas corpus, which required the immediate release of the subject of the appeal.

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