Liberty, punishment and the power to detain: the fallout from NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs
Laura John, Josephine Langbien and Sanmati Verma
6.12.2023
Late in the afternoon on the final day of the hearing in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs, Chief Justice Gageler announced that the High Court would ‘adjourn momentarily to consider the course it will take’. When the hearing resumed a mere 16 minutes later, the Chief Justice declared that ‘at least a majority of the Court’ considered that the detention of the plaintiff was unlawful.
With that, the High Court overturned an almost 20-year legal precedent established in Al-Kateb v Godwin (2004) (Al-Kateb) that had permitted the Executive Government to detain non-citizens indefinitely. In the aftermath, a political and media furore saw the Albanese Government rush unprecedented laws through Parliament to create a shadow detention regime for those released from immigration detention.
This article charts the road from Al-Kateb to NZYQ, discusses the Parliament’s extraordinary legislative response and offers some thoughts on what might follow as the Government attempts to reformulate its approach to immigration detention. We warn that – in the aftermath of one of the most significant constitutional cases in decades – we should not continue further down a path that punishes people on the basis of their visa status. Instead, we should take this opportunity to overhaul a deeply flawed system.
The road from Al-Kateb to NZYQ
The Executive Government has never had the power to detain migrants for punitive purposes – that is, for the purpose of punishing people who do not hold visas. Yet Australia’s immigration detention policies have pushed that limit since their inception. The constitutional validity of the first mandatory detention laws was challenged in Chu Kheng Lim v Minister for Immigration, Local Government & Ethnic Affairs (1992) (Lim). At that time, the duration of detention was capped at 273 days. While ultimately finding those detention powers lawful, the High Court made a crucial statement of principle which ought to have served as a warning to subsequent governments: that executive detention will contravene Chapter III of the Constitution unless it is reasonably necessary for a legitimate and non-punitive purpose.
After Lim, the Keating Government expanded mandatory detention and removed the maximum time limit on detention as part of sweeping changes enacted under the Migration Reform Act 1992 (Cth). Taking effect in 1994, the changes meant that detention became both mandatory and – for some – indefinite. The indefinite nature of immigration detention was subsequently challenged by a Palestinian man born stateless in Kuwait in Al-Kateb. But despite the Court determining that there was ‘no real likelihood or prospect of removal of the appellant in the reasonably foreseeable future’, the Court held by a 4-3 majority that the Migration Act 1958 (Cth) (the Act) authorised and required Mr Al-Kateb’s ongoing detention, and did not contravene Chapter III of the Constitution because the purpose of his detention was still ultimately to facilitate his removal.
Over the following decades, the decision in Al-Kateb empowered successive Australian governments to detain migrants and refugees for steadily increasing periods. Warehousing people in detention became the government’s sole solution for people whose visas were refused or cancelled but who were stateless, owed non-refoulement obligations, or could otherwise not be removed. The average duration of detention soared to a record of 806 days in January 2023. In March, the Government revealed that it had detained one person for 5,766 days – that is, nearly 16 years.
Several attempts were made to challenge, directly and indirectly, the decision in Al-Kateb.
A direct challenge in Plaintiff M47/2018 v Minister for Home Affairs [2019] failed at the first hurdle, as the High Court concluded that the relevant constitutional questions did not arise on the facts.
The applicant in Commonwealth of Australia v AJL20 (2021) came at the issue from a different angle; he argued that the Minister had failed to carry out the duty in s 198 of the Act to remove him as soon as reasonably practicable, and that this rendered his continued detention unlawful. The High Court concluded that the Minister’s failure was relevant to the lawfulness of executive action, but not to the lawfulness of detention, and that mandamus for the exercise of the duty to remove was the only available remedy.
In AZC20 v Minister for Home Affairs [2021], the applicant, an Iranian man who had been detained for close to a decade, attempted to pursue the only avenue available for his release following AJL20: seeking mandamus to compel his removal to Nauru. He argued that, because of the date of his arrival in Australia by boat in 2013, s 198 of the Act required his removal to a ‘regional processing country'. In addition to mandamus, the applicant applied to the Federal Court to exercise its broad powers under s 23 of the Federal Court Act 1976 and direct that he be detained at the home of a friend until his removal was carried out. Rangiah J of the Federal Court made orders in those terms, recognising that ‘prolonged involuntary detention is deleterious and likely to affect the emotional state and mental health of any person’ (at [167]). (While that decision was reversed by the Full Court, the High Court found that the Full Court lacked jurisdiction to entertain the appeal, in circumstances where the dispute between the parties had been rendered moot by the Minister’s intervening actions.)
In 2022, Tony Sami, who had been detained for nearly a decade, commenced an application for both habeas corpus and mandamus in the Federal Court. Although the Federal Court was bound to follow Al-Kateb, it made important findings of fact which would have allowed the High Court to re‑examine the correctness of that authority on appeal (Sami v Minister for Home Affairs [2022]). Justice Mortimer (as her Honour then was) presciently observed at [53] that:
If the legislative scheme of mandatory detention can be said to have achieved any objective since its introduction in 1992, it has achieved the altogether disgraceful objective of officers who are otherwise no doubt conscientious and honest becoming apparently immunised to the incarceration of individuals like Mr Sami for years.
Ultimately, Mr Sami’s removal from Australia meant that his appeal could not proceed. It was not until NZYQ was decided that her Honour’s observations about the public acceptance of indefinite detention could be tested.
The end of indefinite detention: the decision in NZYQ
The plaintiff in NZYQ was a stateless Rohingya man who had sought protection in Australia. He was convicted of a criminal offence in Australia and sentenced to five years’ imprisonment with a non-parole period of three years and four months. Upon his release from prison, he was taken into immigration detention.
Because of his conviction, the plaintiff was denied a protection visa despite being found to be a refugee. Review of that decision was unsuccessful. Officers of the Department were accordingly required to remove the plaintiff from Australia as soon as reasonably practicable. The plaintiff also requested to be removed to any country other than Myanmar, where he faced persecution. Despite this, officers were unable to remove the plaintiff, as he had no right of entry to any safe country.
After spending nearly five years in immigration detention with no end in sight (in addition to his previous prison sentence), the plaintiff sought relief in the High Court. He argued that the majority in Al-Kateb had incorrectly interpreted the Act and failed to recognise that indefinite detention contravened the separation of powers protected by Chapter III of the Constitution.
On the plaintiff's interpretation of the Act, a time limit on detention could be implied where removal was no longer possible. In support of his construction, the plaintiff invoked the principle of legality (that in interpreting legislation, courts should not assume that the Parliament intends to curtail fundamental rights or freedoms unless such an intention is clearly expressed in unambiguous language), and the principle that courts ought to favour constructions which accord with international law obligations. The defendants, however, argued the text of the Act was unequivocal. The High Court ultimately declined to revisit the statutory construction findings in Al-Kateb, noting that Parliament had implicitly endorsed them through the passage of subsequent legislation.
The defendants (the Minister for Immigration, Citizenship and Multicultural Affairs and the Commonwealth of Australia) faced a more serious problem in justifying the constitutional validity of indefinite detention. They argued that immigration detention would not contravene Chapter III irrespective of its length, because detention would serve the purpose not just of removing non-citizens, but of segregating them from the community until removal – and that this purpose was capable of being fulfilled even if a person could not presently be removed.
The Court decisively rejected that submission. It found the time was right to re-open Al-Kateb and resolve the longstanding tension between the constitutional findings in that case and Lim (and the line of authority that had followed from Lim through to the present day).
The Court reaffirmed the principle that detention by the Executive will contravene Chapter III unless it is reasonably capable of being seen to be necessary for a legitimate and non-punitive purpose. But the Court departed from Al-Kateb in concluding that a legitimate and non-punitive purpose must be one which is capable of being achieved in fact. Where there is no real prospect of removal becoming practicable in the reasonably foreseeable future, the purpose of removal can no longer justify ongoing detention. The Court was clear that segregation is not a legitimate purpose – the justification for detention cannot be detention itself.
In the plaintiff’s circumstances, it had been agreed between the parties (at least up until the final weeks before the hearing) that there was no real prospect of his removal in the reasonably foreseeable future, but also that his removal was unlikely as a matter of reasonable practicability. The Human Rights Law Centre and the Kaldor Centre for International Refugee Law, appearing as amici curiae, argued that the second formulation ought to represent the legal test for whether the purpose of removal was capable of being fulfilled. The test proposed by the amici would have introduced the well-established civil standard of proof – the balance of probabilities – to assist courts to grapple with the complex factual situations surrounding removal attempts. The formulation was not adopted by the Court, which favoured the higher threshold – that there must be ‘no real prospect’ of removal.
The decision means the Executive Government no longer has the power to detain people indefinitely where there is no real prospect that they can be removed from Australia. People impacted by the judgment fall into three broad categories – people who are stateless, people who are owed protection obligations, and people for whom there is some other practical barrier to their removal (which could include medical barriers to removal, or foreign governments refusing to accept a person’s return, for example). The limits of the third category will no doubt be the subject of future litigation. But this has already enabled the applicant in AZC20, for example, to finally secure his release from detention.
The rushed inception of a new visa regime
Following the orders made in NZYQ, around 140 people were released from immigration detention. The response from political leaders, fuelled by frenzied media coverage, was both inflammatory and inaccurate, invariably portraying those released as posing some (unidentifiable) risk to the community.
In response, during the 3-week period between the High Court pronouncing its orders on 8 November and the publication of its reasons for judgment on 28 November, two Bills were introduced to the Parliament. The first – the Migration Amendment (Bridging Visa Conditions) Act 2023 – was introduced, debated and passed within 12 hours. The second – the Migration Amendment (Bridging Visa Conditions and Other Measures) Bill 2023 – was introduced 11 days later but is still being debated.
The new legislation creates an unprecedented visa regime for persons released from indefinite detention, importing measures traditionally used to monitor and restrict people still serving a custodial sentence. It is extraordinary both in the swiftness with which it was introduced and the severity of the restrictions it imposes on a group of people whose only common distinguishing factor is their visa status.
The legislation creates a new mechanism for the Minister for Home Affairs to grant a Subclass 070 (Bridging (Removal Pending)) visa (BVR) – without application – to those people for whom there is no real prospect of removal from Australia becoming practicable in the reasonably foreseeable future. There are two key features of the new BVR regime:
First, the imposition of 28 restrictive visa conditions, most of which apply mandatorily to all BVR holders. The new conditions require the visa holder to notify the Department of Home Affairs of a broad range of their personal circumstances, including the details of the people they live with, their interstate or overseas travel, their associations and membership of organisations and their financial position. Visa holders cannot work in certain industries and must obtain the Minister’s approval for any work involving more than incidental contact with a minor or ‘vulnerable person’ – a term which is not defined.
Significantly, unless the Minister is satisfied that the person does not pose a risk to the community, the person must also wear an electronic monitoring device at all times and is subject to a curfew between 10pm and 6am each day (or another period up to 8 hours). Despite the appearance of an individualised risk assessment, these restrictions have been imposed on 138 out of 141 people released.
These extraordinary conditions borrow from State and Territory parole schemes for people still subject to a custodial sentence. But unlike conditions imposed on parolees, these conditions are imposed by a public servant through the unilateral grant of a visa, with no periodic review and no assessment of necessity, effectiveness or impact on the person. And because this group cannot be removed from Australia, the restrictions are likely to be in force for the remainder of their lives.
Second, for the first time, breach of a visa condition has been criminalised. Three new criminal offences prohibit breach of a monitoring condition, a condition relating to electronic monitoring or a curfew condition, with a mandatory minimum sentence of 1 year imprisonment and a maximum penalty of five years imprisonment or 300 penalty units (or both). Further offences are proposed in the second Bill currently before the Parliament. By virtue of s 4K of the Crimes Act 1914 (Cth), each day during which a person fails to comply with the relevant visa condition is a separate offence. Yet the extent and vagueness of some of the conditions will make strict compliance near impossible.
This criminalisation of non-citizens reflects an alarming acceleration of Australia’s increasingly punitive approach to migration. But it is not a crime to be a migrant or refugee, and immigration detention is not prison. People who have been released following the High Court’s decision in NZYQ were not held in immigration detention to serve a criminal sentence; they were in immigration detention because they did not have a visa. The purpose of detention was their removal from Australia, despite there being no real prospect that they would be removed in the reasonably foreseeable future. Every person released following the High Court’s decision had, like the plaintiff in NZYQ, already completed any custodial sentence imposed by an Australian court before being taken into immigration detention.
In this context, the Parliament’s legislative response is wholly disproportionate to its stated objective of keeping the community safe. Whether it is also punitive and therefore invalid under Chapter III of the Constitution will shortly be tested, as litigation has already been commenced in the High Court challenging the imposition of the curfew and electronic monitoring conditions (in proceedings S151, AUK15 and RVJB). The High Court’s recent consideration of citizenship cessation laws suggests that the Court will carefully scrutinise any laws that purport to repose in the Minister the power to impose further punishment for past criminal offending (see Benbrika v Minister for Home Affairs [2023] and Alexander v Minister for Home Affairs (2022); cf Jones v Commonwealth [2023]; see also Thomas v Mowbray (2007)).
The next frontier
While most other refugee-receiving countries have already invested in alternatives to held detention and grappled with policy responses to the small number of non‑citizens who cannot be deported, the Australian default of mandatory and indefinite immigration has precluded similar discussions here. With the High Court’s decision in NZYQ, we have an opportunity to finally acknowledge the significant harm caused by detention and move beyond the wholesale criminalisation of non-citizens. But the immediate legislative response has left little doubt that our political leaders remain stuck in a punitive default.
In addition to the new BVR regime, a further legislative response has already been foreshadowed. The Labor Government will seek to introduce a preventive detention regime to enable the re-detention or ongoing supervision of people recently released, to be administered by a court on the basis of future risk rather than as part of a sentencing decision. If it does, the result will be the substitution of one punitive regime (indefinite immigration detention) for another (preventive detention) that perpetuates discrimination against one group based solely on their visa status. The constitutional validity of any such regime will almost certainly be challenged, and the High Court will once again be called upon to enforce the permissible limits on the detention of non-citizens.
Laura John is a Senior Lawyer at the Human Rights Law Centre working to defend the rights of migrants and refugees.
Josephine Langbien is a senior lawyer at the Human Rights Law Centre.
Sanmati Verma is Acting Legal Director of the Human Rights Law Centre.
Suggested citation: Laura John, Josephine Langbien and Sanmati Verma, ‘Liberty, punishment and the power to detain: the fallout from NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs’ (6 December 2023) <https://www.auspublaw.org/blog/2023/12/liberty-punishment-and-the-power-to-detain-the-fallout-from-nzyq-v-minister-for-immigration-citizenship-and-multicultural-affairs>