In all of the heated, political imbroglio that has surrounded the discussion of the release of some 150 asylum seekers from immigration detention recently, one crucial perspective has passed almost without public discussion. It’s really important. It’s about the relevant constitutional law.
Without a reasonable understanding of the reasons for the High Court’s decision that the affected asylum seekers must no longer be detained, neither the decision nor its implications can fairly be assessed.
Let’s begin at the beginning. The High Court’s decision in the case of NZYQ (November 2023), overturned a prior High Court decision in the case of Al-Kateb, made 20 years earlier in 2004. The Al-Kateb case was the first to contemplate the indefinite detention of people who had fled from their home countries and arrived in Australia by boat.
Mr Al-Kateb arrived in Australia by boat in December 2000, without a passport or a visa. Upon landing he was detained pursuant to the Migration Act 1958. The provision most relevant to his case was section 196. This stated, in summary, that a person who is an ‘unlawful non-citizen’ must be kept in immigration detention until either the person is removed from the country, deported, or granted a visa.
Mr Al-Kateb’s problem, after three years in detention, was that he had been refused a visa but could not be removed or deported because no country had been found that was willing to receive him. He was sick at heart, sick of incarceration, wished to leave Australia – but had absolutely nowhere to go.
NZYQ was a stateless Rohingya Muslim from Myanmar. He arrived in Australia by boat in 2012. He was taken into immigration detention upon arrival. He was granted a bridging visa in 2014. He pleaded guilty in 2016 to a sexual offence against a child and was sentenced to imprisonment for five years with a non-parole period of three years. Upon his release from criminal custody on parole in 2018, he was taken again into immigration detention.
He applied for a protection visa on the ground that he had a well-founded fear of persecution in Myanmar. This ground was upheld. However, the visa was refused because the relevant decision-maker determined that there were reasonable grounds for considering him as a danger to the community.
NZYQ’s problem was that he could not be returned to Myanmar. He had relatives in Saudi Arabia and Bangladesh. But there was no real prospect that he could be provided with a right to enter or reside in either country. Given his criminal conviction there was also little or no chance that any other country would accept him. So, there was no reasonable prospect of his removal from Australia becoming practicable. He was stuck indefinitely, and perhaps for life, in immigration detention.
The decisions in these two cases, then, concerned two principal questions. First, how should s.196 of the Act be interpreted? And, secondly, did the Constitution provide any foundation upon which either person’s continuing detention might be challenged?
As to the first question, the Court in both cases decided that s.196 was unambiguous. The provision stated that a person must continue to be detained until a visa is issued or removal is effected. If that meant, in the absence of a capacity to remove them, Mr Al-Kateb’s and NZYQ’s detention would be indefinite, then that was the consequence that must follow from the terms of the legislation. The constitutional question, however, remained to be answered.
As to this second question, the Constitution forbids a person’s detention for any punitive or penal purpose unless that detention has been authorised by a court following a judgment of criminal guilt. The Court in NZYQ stated that principle as follows.
To be constitutionally valid, a law that authorises the detention of a person is one that must involve the exercise by a court of the Judicial Power of the Commonwealth. The relevant judicial power is that of adjudging and punishing criminal guilt. A law that does not involve the exercise of that power, in other words, for example, a law detaining a person made for an administrative purpose in the exercise of Executive Power, will be constitutionally invalid unless it is capable of being cast as necessary in the pursuit of some other legitimate and non-punitive purpose.
So, it is recognised that the executive may detain a person for a legitimate, and non-punitive purpose in certain special circumstances. The detention of a person under immigration law for the purpose of determining whether they should be permitted to enter Australia was one such recognised exception.
In NZYQ, however, the High Court found that neither the test of legitimacy nor the test as to the impermissibility of the legislating a penal or punitive power was met. The test of legitimacy was not met because the legislatively determined objective, either of enabling the asylum seeker to apply for permission to remain in Australia or to be removed from Australia, could no longer be achieved. Neither of those aims could practicably be attained within any reasonably foreseeable future.
The test with respect to punitive/non punitive detention could not be met either. To incarcerate an individual without visible prospect of release, without any limit of time was held to be punitive by definition. The High Court dismissed the idea that indefinite detention might be non-punitive in one sentence. ‘The statement of principle is concerned with substance and not form and (reflects the reality) that it is the involuntary deprivation of liberty itself that ordinarily constitutes punishment.
And so, in a formidable victory for human rights in Australia, the Court declared that indefinite immigration detention was unconstitutional.
Three other aspects of the decision in NZYQ are worth of note. First, the Court addressed the issue of how long immigration detention could reasonably extend. This question was critical because in the past detainees had been imprisoned for up to ten years. The Court determined that a person could be held only for the period of time that was reasonably necessary for the completion of administrative procedures associated with determining whether or not an entry visa should or should not be granted.
Similarly a person refused a visa can be detained only for so long as it takes to determine whether the person can be deported. If the length of time a person is detained becomes only tenuously connected to the achievement of a person’s removal, detention will be considered as punitive and therefore as constitutionally invalid.
Justice Edelman, secondly, added a gloss to that conclusion. He considered the question of when detention should be considered as ‘prima facie’ punitive. He concluded that detention should be considered as punitive when it is ‘disproportionate’ in the sense that it is not capable of being seen as necessary for the achievement of the legislation’s purpose. In this sense, the law is treated as punitive if it employs means that are disproportionate to its purpose.
These two principles spell the end of indefinite detention because detention must end at the point at which deliberation as to whether to grant or refuse a visa is completed, or when the removal of an applicant from Australia is not practicable in any reasonably foreseeable future.
Finally, I return to recent remarks made by the Minister for Home Affairs, Clare O’Neill. She is quoted as saying that if she had her way, she would immediately re-detain all the asylum seekers who had been freed in consequence of the High Court’s decision in NZYQ.
This is the same as saying that every one of these people, whose right to freedom and liberty has been constitutionally upheld by the High Court of Australia, should be locked up again at the government’s behest, without recourse to judicial review.
She should reflect more deeply on the critical constitutional, legal and human rights issues involved.
Spencer Zifcak is Allan Myers Professor of Law at the Australian Catholic University, a former President of Liberty Victoria, and is the Chair of the Accountability Round Table.
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