On 8 November 2023, the High Court of Australia’s recently elevated Chief Justice made a brief order dismantling one of the most controversial principles in Australian immigration law for the last two decades: That non-citizens who had been denied entry to the Australian community but who could not be removed to any other country could be lawfully detained indefinitely (NZYQ).
In the days and weeks that followed the Court’s announcement there was a flood of media attention given to the Court’s decision, which had the effect of obliging the Australian government to release around one hundred people from detention into the community, including many who had been convicted of serious criminal offences. However, beyond the public commentary, little of which reflected the Court’s reasons for overturning a precedent that had stood for 20 years, the case and the High Court’s reasons bring into sharp focus the question at the centre of all aspects of public law (constitutional law, administrative law and judicial review generally): Is this government action lawful?
The sections of the Migration Act in question, sections 189 and 196, do not just authorise indefinite detention, but require it:
- Section 189 obliges any and every immigration officer to detain any and every person they suspect of being an unlawful non-citizen (that is, any non-citizen not holding valid visa).
- Section 196 requires that detention to continue until the non-citizen is either (a) granted a visa (making them a ‘lawful non-citizen’), or (b) removed (deported) from Australia.
However, some non-citizens cannot be removed, including those who are stateless or would be at real risk of serious, if not fatal, harm if they were returned to their country of citizenship. While most non-citizens who are stateless or have been found to be owed ‘protection obligations’ are granted visas and allowed to enter or remain in the Australian community, a small minority are refused visas, usually on the basis that their presence in the community poses an unacceptable risk of harm. As these people have been refused visas but are unable to be removed, sections 189 and 196 appear to authorise their detention indefinitely.
However, Australia’s Constitution places limits on what actions of government Parliament can authorise or require. One of those limits is that the exercise of judicial power can only be exercised by Courts, and not any Minister or other member of the executive arm of government, including immigration officers. Further, the deprivation of a person’s liberty via detention is usually considered punitive and only Courts have the power to punish criminal guilt. However, the Executive arm of government has the power to admit, exclude and deport non-citizens from Australia and, in consequence, can be given the power to detain people in ‘administrative’ (that is, non-punitive) detention to maintain the practical ability to admit (including through the grant of a visa) or deport non-citizens.
The question faced by the High Court in NZYQ was whether indefinite detention caused by an inability to admit or deport was ‘administrative’ in nature, such that it did not infringe on the exclusive jurisdiction of Courts to administer punishments, including detention.
The question had been determined by the High Court 20 years earlier in the 2004 case of Al-Kateb v Godwin. In that case, the High Court, by a 4:3 majority, found that indefinite detention under ss 189 and 196 was for the purpose of making a non-citizen available for deportation or separating them from the Australian community and was therefore not punitive in nature. As a result, it found that indefinite detention under ss 189 and 196 did not infringe on the Court’s exclusive power to punish criminal guilt. And so, for the next two decades, indefinite detention was a lawful and obligatory part of Australia’s migration system.
However, in the recent case of NZYQ the Court looked deeper at both earlier precedents and the practical realities of indefinite detention. The Court drew on a case that was determined by the High Court 12 years before Al-Kateb: Lim v Minister for Immigration, Local Government and Ethnic Affairs. In that earlier case, the High Court held that the involuntary deprivation of liberty ordinarily constitutes punishment unless the detention is necessary for the purposes of deportation or necessary to enable a visa application to be made and processed.
In NZYQ, the High Court found that, applying the test in Lim, indefinite detention cannot be described as being necessary for the purpose of deportation (as there was no reasonably foreseeable likelihood of deportation), or to enable a visa application to be made (as no further visa application could be made under the Migration Act). As a result, the High Court found that there was no connection between indefinite detention and the valid purpose of facilitating the processing of a visa application or a non-citizens removal from Australia. Therefore, indefinite detention is assumed to be punitive and so can only be imposed by a Court, not the Minister for Immigration or any other government employee.
The Court’s decision meant that there was no lawful basis for the government to continuing detaining any non-citizen who could not make any further application for a visa and who could not be removed or deported to another country and, quickly, about 100 non-citizens were released from immigration detention.
This case of NZYQ highlights the vital role Courts play in ensuring that the government acts within its powers. In the case of NZYQ, that involved finding that the indefinite detention of non-citizens was inconsistent with the Constitution’s prescription that only Courts may impose punitive measures. In other circumstances, it involves making sure that any decision-makers tasked with deciding whether to grant, refuse or cancel any visa abide by the law and act within powers when the do so.
Hannan Tew – About Us
At Hannan Tew Lawyers we have a dedicated judicial review team that is experienced in making sure decisions made and actions taken by the Minister for Immigration, an immigration officer or the Administrative Appeals Tribunal are valid and lawful.
We offer a free, 20 minute judicial review consultation with our Special Counsel Joel McComber, who has extensive experience acting in judicial review applications of migration decisions before the Circuit Court, Federal Court and even High Court of Australia. At this consultation Joel will provide you with advice about the limitation period applying to your case, the Court that has the power to hear and determine your case, and the process of applying for judicial review.
Unfortunately we cannot provide you with advice regarding potential grounds of review or your prospects of success at a free initial consultation, but we do offer an assessment of judicial review prospects for a fixed fee of $2,000 (GST exclusive).
