NZYQ: Consistency, Continuity, and Human Rights
This post is part of AUSPUBLAW's forum discussing the High Court's recent judgment in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs.
Harry Sanderson and Meghan Malone
5.2.2024
The High Court alone has the power to overrule High Court authority. In NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37, the Court unanimously overruled its prior constitutional holding in Al-Kateb v Godwin (2004) 219 CLR 562 and held that ss 189(1) and 196(1) of the Migration Act, which allowed an unlawful non-citizen to be detained indefinitely, contravened Ch III of the Constitution.
In this respect the decision provides insight into the circumstances in which the Court will elect to reopen, and thereafter overrule, constitutional authority. It reaffirms that, in deciding whether to reopen and overrule a constitutional decision, the 'consistency and continuity' of that decision in light of subsequent jurisprudence will be the Court’s primary consideration. The Court’s reasoning also indicates that while other factors will remain relevant to its assessment of whether a constitutional holding should be reopened, these factors will bear less weight.
Although the human rights impact of the constitutional holding in Al-Kateb was not relied upon by the Court as being one of the factors which influenced it to either reopen or overrule that holding in NZYQ, we argue that this factor remains relevant to the Court’s general greater willingness to reopen constitutional holdings and in this manner, and will continue to be implicitly drawn upon.
How was the constitutional holding in Al-Kateb overruled in NZYQ?
The Court stated that (at [17])
The considerations which inform when it can be appropriate for the Court to reopen and reconsider its own earlier decisions may have different weight, are incapable of exhaustive definition, and have been examined on numerous occasions. The evaluation of such considerations as may bear on the appropriateness of reopening a given decision in given circumstances was said by French CJ in Wurridjal v The Commonwealth to be ‘informed by a strongly conservative cautionary principle, adopted in the interests of continuity and consistency in the law, that such a course should not lightly be taken’.
After concluding that those considerations weighed against the reopening and overruling of the statutory construction of ss 189(1) and 196(1) of the Migration Act adopted by the majority in Al-Kateb, the Court in NZYQ concluded that the constitutional holding in Al-Kateb should be overruled.
First, the Court considered whether Al-Kateb should be reopened. In so doing it examined the tension, as explored by McHugh J in Re Woolley; Ex parte Applicants M276/2003 (2004) 219 CLR 562 at [54]-[77], between its rulings in Al-Kateb and Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1. It was held that ‘the constitutional holding in Al-Kateb has come increasingly to appear as an outlier in the stream of authority which has flowed from Lim’ with the consequence that, based on an ‘evolving understanding of the Constitution’, the holding in Al-Kateb has been ‘weakened’ such that it should be reopened (at [35]).
At [36], the Court also said the following as to the reopening of Al-Kateb:
Having regard to the importance of continuity and consistency in the application of fundamental constitutional principle, the legislative reliance and implicit legislative endorsement which weighed in favour of not reopening the statutory construction holding in Al-Kateb necessarily assumes less significance in considering reopening of its constitutional holding. The same is true is of administrative inconvenience. Adapting what was said by Dixon CJ, McTiernan, Fullagar and Kitto JJ in R v Kirby; Ex parte Boilermakers' Society of Australia, whilst considerations of legislative reliance and administrative inconvenience are appropriately treated as considerations having weight, 'it is necessary to stop short of treating them as relieving this Court of its duty of proceeding according to law in giving effect to the Constitution which it is bound to enforce'.
Second, the Court considered whether the constitutional holding in Al-Kateb, having been reopened, should be overruled. The Court stated that its primary consideration in answering this question was the consistency of Al-Kateb with the Lim principle as stated in Lim and subsequently understood and applied (at [38]).
Thereafter, the six-judge majority held that Al-Kateb, having been reopened, must be overruled on the basis that the Lim principle would be devoid of substance if detention, other than that arising from an exercise of judicial power in the adjudgment and punishment of criminal guilt, were justified with reference to a legislative objective that there is no real prospect of achieving in the reasonably foreseeable future (at [45]).
The majority went on to say that (at [48]):
The purpose of separation of an alien from the Australian community is outside the limited range of legitimate purposes identified in Lim, and repeatedly affirmed in cases following Lim.
And later at ([55]):
For the reasons already given, expressing the constitutionally permissible period of executive detention of an alien who has failed to obtain permission to remain in Australia as coming to an end when there is no real prospect of removal of the alien from Australia becoming practicable in the reasonably foreseeable future follows directly from the principle in Lim.
'Continuity and consistency' - the primary considerations
The decision in NZYQ affirms that there are no concrete principles concerning the circumstances in which the Court will overrule its former constitutional decisions. However, it amounts to a clear acceptance of the principle that exceptional circumstances will be required to overrule a constitutional holding and that caution should be exercised in so doing (see, e.g., Queensland v The Commonwealth (1977) 139 CLR 585 at 599 (Gibbs J), 602 (Stephen J) and 620 (Aickin J)).
Moreover, the Court emphasised that the ‘continuity and consistency’ of its former constitutional holding in light of subsequent jurisprudence are the primary factors to which it will have regard in deciding both whether to reopen and overrule that holding (at [36]-[38]). This is consistent with a line of authority in which the Court has relied upon the identification of ‘error’ in or ‘incompatibility’ of a previous decision, including that which is ‘made manifest by later cases’ or which is revealed by conflict with ‘a definite stream of authority’, as the primary basis for overruling it (Wurridjal v the Commonwealth 237 CLR 309 at [65]-[71] (French CJ) citing, in particular, Queensland v The Commonwealth at 630 (Aickin J) and Attorney-General (Cth) v Schmidt (1961) 105 CLR 361 at 370 (Dixon CJ)).
Relevance of other factors to the decision whether to reopen
Nonetheless, the decision in NZYQ explicitly identified factors other than the consistency and continuity of a constitutional holding, namely ‘legislative reliance’, ‘implicit legislative endorsement’ and ‘administrative inconvenience’, as being relevant to the Court’s decision whether to reopen that holding (at [36]). However, it did not deal with these factors in detail.
Undeniably, the Government had relied upon the constitutional holding in Al-Kateb such that its overruling was associated with considerable, and foreseeable, consequences. A previous post by Laura John, Josephine Langbien and Sanmati Verma outlines the rupture to the existing visa scheme arising out of the decision in NZYQ, which has involved introducing draconian conditions on bridging visas, as well as the criminalisation of breaching visa conditions. The Solicitor-General pointed the Court to these consequences in the course of argument when he submitted that overturning Al-Kateb would result in ‘undefendable damages claims. How many, it remains to be seen’ ([2023] HCATrans 154 (8 November 2023)).
The Court’s minimal discussion of legislative reliance and administrative inconvenience in considering whether to overrule Al-Kateb is unsurprising, since these factors have traditionally been marshalled in deciding not to overrule constitutional authority.
This has been especially apparent where governments have relied on constitutional precedent in a fiscally significant manner. In H C Sleigh Ltd v South Australia (1977) 136 CLR 475 the High Court was asked to overrule two decisions upholding the constitutional validity of certain licenses. Jacobs J referred to the fact that those decisions were preserving a ‘difficult and delicate balance between the Commonwealth and the States on fiscal matters’ such that, in order to overrule those decisions, it was necessary to demonstrate that they were in error and associated with intolerable ‘social, economic or political consequences’ (at 501). Similarly, in Evda Nominees Pty Ltd v Victoria (1984) 154 CLR 311 a six-member majority refused to hear argument on whether to overrule Dennis Hotels Pty Ltd v Victoria (1960) 104 CLR 529 because ‘the States [had] organised their financial affairs in reliance on’ that decision (at 311). Earlier this year in Vanderstock v Victoria [2023] HCA 30, which overturned Dickenson’s Arcade Pty Ltd v Tasmania (1974) 130 CLR 177, Gordon J and Edelman J in dissent both referred to the political and fiscal disruption that would be caused by overruling precedent as militating against the Court doing so (at [439] and [492]).
However, considerations like legislative reliance and administrative inconvenience have occasionally been relied upon by the Court to justify overruling previous constitutional holdings, rather than exclusively for upholding them. In Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513 Gummow J in holding that Teori Tau v The Commonwealth (1969) 119 CLR 564 should be reopened and overruled, made reference to the fact that the decision had not ‘been significantly acted upon by the Parliament or territorial legislatures’ (at 614). This raises the question of what his Honour would have considered ‘significant’ reliance, a point the Court in NZYQ did not address.
Although the Court did not offer a detailed examination of factors like administrative inconvenience and legislative reliance, it did make explicit that they are relevant only to an assessment of whether constitutional precedent should be reopened, rather than whether it should ultimately be overruled (at [36]-[38] and [45]). This may be in contrast with some former decisions of the Court where the line between those considerations relevant to whether a decision should be reopened and thereafter overruled has been more blurry.
Weight to be given to other factors in constitutional matters
The Court in NZYQ held that less weight should be given to factors pointing against reopening a constitutional holding, such as legislative reliance, implicit legislative endorsement and administrative inconvenience, than in relation to a decision whether to reopen statutory or other common law holdings (at [36]). This is consistent with comments made by Kirby J in Newcrest to the effect that although reliance or inconvenience might be a reason for ‘hesitation’ in departing from authority (at 651), an application to reopen past constitutional authority should not be ‘controlled by the reliance which … Parliament has placed upon past authority’ on the basis that there ‘can be no estoppel against the Constitution’ (at 646-7).
The minimal weight placed in NZYQ on factors other than the ‘continuity and consistency’ of authority is also consistent with the notion that, as speculated by Kirby J extra-judicially, the threshold for reopening, and thereafter overruling, constitutional precedent may be lower than in respect of other categories of High Court precedent.
The Court in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 seems to have suggested that this may be because ‘[e]rrors in constitutional interpretation are not remediable by the legislature’. A lower threshold for reopening constitutional precedent may also be premised on the fact that, as put by Isaacs J in Australian Agricultural Co v Federated Engine-Drivers and Firemen’s Association of Australasia (1913) 17 CLR 261 at 278, the ‘sworn loyalty’ of the justices of the High Court is to the ‘Constitution first of all’ rather than the doctrine of stare decisis such that, in constitutional cases especially, it is ‘not … better that the Court should be persistently wrong than that it should be ultimately right’.
The role of rights
The Court in NZYQ did not expressly refer to principles of liberty and morality as being relevant to its decision to either reopen or ultimately overrule the constitutional holding in Al-Kateb. This is in stark contrast to the reasoning of the Justices in Al-Kateb itself, as well as public discourse following NZYQ. The choice not to advert to the dire human consequences of the holding in Al-Kateb may have helped to clearly position NZYQ as a decision based in law, in anticipation of the kind of political backlash against activism which has followed several High Court decisions giving rise to constitutional developments.
Yet there is authority which indicates that human rights may be an independent influence on the Court’s decision to overrule its own constitutional authority. In Street v Queensland Bar Association (1989) 168 CLR 461 a New South Wales barrister was refused admission by the Queensland Bar unless he guaranteed he would practise principally in Queensland. He claimed that this infringed s 117 of the Constitution, an argument which required the High Court to overrule Davies and Jones v Western Australia (1904) 2 CLR 29 and Henry v Boehm (1973) 128 CLR 482 which held such requirements were constitutional as they applied equally to all persons. Mason CJ decided to overrule the two precedents as they supported an incorrect interpretation of ‘an important provision in the Constitution dealing with individual rights central to federation’ (at 489) Similarly, Brennan J stated that ‘the doctrine of stare decisis… is least cogent in its application to those few provisions which are calculated to protect human rights and fundamental freedoms’ (at 518-519).
Similar reasoning was used by Gummow J in Newcrest. His Honour held that when an issue before the Court relates to ‘an important provision of the Constitution which deals with individual rights ... the ... Court has a responsibility to set the matter right’ (613). That decision had concerned an application to overrule Teori Tau v Commonwealth (1969) 119 CLR 564 which had held, with significant implications for rights, that the territories power in the Constitution allowed for the making of laws for the acquisition of property without providing in those laws for terms of acquisition which could be seen as just.
It is clear from these decisions that the Court has been more willing to reconsider constitutional precedent where matters of rights are involved. Yet there are valid questions as to whether that consideration is neutral as to the effect that the prior decision has on rights. As Boeddu and Haigh have questioned:
Once it is accepted that a hierarchy of constitutional decision-making might affect overruling, a further question arises: is overruling only more appropriate where it will increase an individual right or does the same higher standard apply where it would restrict it?
While there is no reason that the Court would only be willing to reopen precedent in order to expand rather than contract rights, those authors note that the tenor of High Court decisions suggests it is more ready to ensure the protection of rights by overruling itself. Given that the constitutional holding in Al-Kateb was one with grave implications for the liberty of people, NZYQ would thus seem an apt case for human rights to have been raised as a significant factor pointing towards reopening precedent.
In light of the Court’s previous references to human rights as a factor relevant to its decision to reopen and thereafter overrule constitutional authority, the lack of reference to human rights in NZYQ leaves open a number of possibilities.
It may be that the decision in NZYQ amounts to an explicit rejection of the independent relevance of human rights as a factor in assessing whether a constitutional holding should ultimately be overruled. Even if this is the case, we would argue that there is a deep affinity between rights and the Constitution such that the need to protect human rights is one element of the Court’s general greater willingness to reopen its former holdings in constitutional cases. In this respect, the protection of human rights may remain a factor implicit in the Court’s future decisions whether to reopen, and ultimately overrule, constitutional precedent.
In light of the Court’s comments in NZYQ as to continuity and consistency being the primary, if not sole, considerations in determining whether a constitutional holding should be overruled, it would seem that if the protection of human rights remains an expressly relevant factor in future decisions like NZYQ, it is a factor relevant only in respect of the Court’s decision whether to reopen a constitutional holding. Even so, the Court’s comments in NZYQ at [36] as to the weight to be given to factors other than continuity and consistency of principle in deciding whether to reopen a constitutional holding would suggest that even if an independently relevant factor, less weight would be attributed to human rights.
Conclusion: What lessons can be learned?
NZYQ has affirmed much of what was already known about the High Court’s approach to the reopening of its former constitutional holdings - primacy will be given in the Court’s analysis to the consistency and continuity of precedent but the exercise retains a level of indeterminacy. As put by Gibbs CJ, ‘in the end the Court is required to make a discretionary judgment, and to do so with the caution, and the sense of responsibility, that the gravity of the matter requires’ (Commonwealth v Hospital Contribution Fund (1982) 150 CLR 49 at 55).
The judgment in NZYQ also raises questions to be answered in future cases. Importantly, although the Court was clear that less weight will be given to factors like legislative reliance and administrative inconvenience in deciding whether to reopen constitutional holdings, the role of human rights in these determinations remains opaque.
Harry Sanderson is a tipstaff at the New South Wales Court of Appeal.
Meghan Malone graduated from the Australia National University in 2022 and is the Research Director to the Chief Justice of New South Wales.
Suggested citation: Harry Sanderson and Meghan Malone, ‘NZYQ: Consistency, Continuity, and Human Rights’ (5 February 2024) <https://www.auspublaw.org/blog/2024/2/nzyq-consistency-continuity-and-human-rights>