Indefinite Detention and the NZYQ case

November 27, 2023

The case was not an academic exercise. It concerned the fate of numerous foreigners from multiple countries, many of them hardened criminals; exactly how many, the Solicitor-General was unable to say. One thing is sure: indefinite immigration detention was not unlawful when the matter came before the High Court. Its legality was established by the High Court itself 20 years ago in the case of Al-Kateb.

If the High Court were now minded to take the exceptional step of reversing that decision doing violence to the doctrine of precedents which is one of the foundation stones of common law was that not something which should have given the judges pause? Should the court not have explored with counsel the practical implications of NZYQs appeal succeeding before making its determination?

Why the hurry in making a determination? Considering the time spent in detention for most of those concerned, a small delay giving the court time to hand down its reasons would cause no injustice.

The court reached its determination by a majority, but reasons have yet to be given, so the community is left wondering what those might be. This has led to the government passing emergency legislation to deal with dangerous criminals being released into the community in consequence of the courts ruling. And, not surprisingly, a new challenge to such legislation has now been launched in the High Court. The confusion intensifies.

One can only conclude from this case that the High Court has its head so high in the clouds that its chief concern is black-letter law, not the practical effects of its decisions. In this case the practical effects go to nothing less than the good governance of Australia.