High court launches full frontal assault on indefinite immigration detention

November 11, 2023
There are at least 92, possibly as many as 340 non-citizens, in long-term detention who cannot be removed, whose incarceration may be unlawful. Photo: Zebedee Pakes

Led by Chief Justice Gageler, with freshly invested Justice Beech Jones, the “new” High Court of Australia has made quite a splash with its debut decision on the legality of indefinite detention in Australia’s immigration detention regime.

The Full Court’s reasoning in NZYQ will not be known for some time. However, at the conclusion of a two-day hearing, their Honours took the unusual step of announcing immediately that “at least a majority” found the ongoing detention of the stateless Rohingya Plaintiff unlawful.

Equally surprising was the disclosure that the Court is prepared to overturn the 2004 ruling in Al Kateb, choosing a full-frontal assault on the Migration Act instead of distinguishing the earlier precedent.

In Al Kateb, the High Court narrowly upheld the constitutionality of Australia’s mandatory immigration detention regime in cases where a non-citizen has no right to a visa, but yet cannot be removed from the country.

While Judge Michael McHugh described the result as “tragic”, other members of that majority dismissed arguments that the regime could result in truly indefinite detention. Judge Kenneth Hayne famously quipped “You can never say never”.

Twenty years on, the evidence suggests that the Al Kateb majority’s “She’ll be right” assumption was misplaced.

The Department of Home Affairs reports that there were 1079 people in immigration detention on July 31, with the average time spent in custody being 709 days. Of these, 127 individuals, including NZYQ, have been held for more than 5 years.

Welcoming the High Court’s ruling in NZYQ, the local representative of the world’s refugee agency, Adrian Evans, stated: “Only this week, we have visited detention centres (in Australia) and observed the dire effects that detention can have on refugees and stateless persons, some of whom have been detained in excess of 10 years … United Nations High Commission for Refugees hopes this is the first step in creating a system of detention in which people are only deprived of their liberty as a measure of last resort and when absolutely necessary.”

NZYQ is a convicted child sex offender, who was denied a protection visa because of his offending. The Migration Act mandated his detention and removal.

Like Al Kateb, NZYQ is stateless. With no country prepared to accept him, NZYQ faced the prospect of life in immigration detention.

The High Court has found indefinite immigration detention constitutes punishment, making the relevant legislation unconstitutional. This is because the Migration Act’s mandatory provisions vest punitive powers in immigration officials, when Chapter III of the Constitution dictates that such powers can only reside in a court of law.

We are told that there are at least 92, and possibly as many as 340 non-citizens, in long-term detention who cannot be removed, whose incarceration may be unlawful.

Predictably, the Coalition is decrying the High Court’s ruling as a threat to public safety. If politicians have a problem, it is one of their own making.

Mandatory immigration detention has been ruled unconstitutional precisely because it requires incarceration of undocumented non-citizens without discriminating between rapists and murderers on the one hand and blameless men, women and children on the other.

Critically, it is a regime that deliberately excludes judicial officers from both decisions to detain and oversight of detention. The former is the preserve of departmental officials or can even be automated in the black box of computer algorithms. Accountability mechanisms are confined to toothless agencies such as the Commonwealth Ombudsman and the Australian Human Rights Commission.

It was not always like this.

Before 1994, persons suspected of unlawful immigration status could be arrested and detained by migration officials. However, they had to be brought before a magistrate within 72 hours and thereafter every 7 days until their status was determined.

Incarceration had to be for a purpose relating either to determination of their status or their removal from the country. This is the regime that should be restored.

If individuals pose a threat, they should be dealt with under the criminal justice system. This already allows for preventative detention, release on condition and intensive oversight through control orders and the like.

Mandatory immigration detention is a policy that has caused indiscriminate harm, including death, and permanent incapacity.

It has been rightly described as our national shame. The cases of Cornelia Rau and Vivian Solon Alvarez demonstrate how lack of judicial oversight has resulted in wrongful detention and wrongful deportations — with huge compensation payments awarded thereafter.

These cases were not isolated incidents, but part of an on-going problem that needs to be fixed.

Australia can do better. Let’s look at the High Court’s ruling in NZYQ as an opportunity to create a system that strikes a balance between respect for human rights and the rule of law and the rightful protection of the community.

[Professor Mary Crock is Professor of Public Law and member of the Sydney Centre for International Law at the University of Sydney. This article was first published in Pearls and Irritations and has been republished with permission.]

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