Indefinite Detention and the HCA Ruling: An end to indefinite immigration detention in Australia?

Guest post by Professor Peter Billings and Dr Anthea Vogl. Dr Peter Billings is a Professor at the School of Law, The University of Queensland, Brisbane, and a Fellow of the Higher Education Academy. His research interests are in particular areas of public law: administrative law, immigration and refugee law, social welfare law and human rights law. He has published widely on crimmigration law, policy and practice in Australia. Dr Anthea Vogl is a Senior Lecturer in the Faculty of Law at the University of Technology Sydney. Her research addresses refugee and immigration law, and racialised forms of regulation of non-citizens and the border. She is currently co-leading an Australian Research Council Discovery Project on privatisation and community refugee sponsorship in Australia. This post is part of a series by members of the Australian and New Zealand Society of Criminology's thematic group on Crimmigration and Border Control, covering the latest High Court of Australia's decision that indefinite immigration detention is unlawful. You can see other projects being undertaken by group members on the ANZSOC_Borders webpage which is now included on the Border Criminologies website. 

In the matter of NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023), the High Court of Australia (‘HCA’) found the applicant’s indefinite immigration detention to be unlawful in circumstances where there was ‘no real prospect of the removal of the plaintiff from Australia becoming practicable in the reasonably foreseeable future.’ The matter overturned a 20-year precedent established in the case of Al-Kateb v Godwin (2004). That precedent established that a stateless man, who had been refused a visa on adverse character grounds, could be kept incarcerated in immigration detention even if his removal from Australia was not reasonably practicable in the foreseeable future. The case of Al-Kateb signalled that certain, deportable non-citizens, whose removal prospects were remote, could possibly spend the rest of their life in detention.

However, in NZYQ the HCA was persuaded that Al-Kateb was wrongly decided. Following the  hearing on 8 November 2023 the Chief Justice delivered a succinct ex tempore judgment, ruling that sections 189(1) and 196(1) Migration Act 1958 were “beyond the legislative power of the Commonwealth”. Therefore, the detention laws were unconstitutional in their particular application to the plaintiff – a stateless Rohingya man from Myanmar, held in detention after having served gaol time for child sex offences. Lawyers for the Minister for Immigration told the Court that the Australian government had attempted to deport him to six countries and that it was ‘impossible to predict…with confidence’ whether he could ever be deported. An order for habeas corpus was issued requiring his release, and subsequently over 140 others were freed from detention, including non-citizens detained on adverse character or national security grounds.

The first part of this blog explores the key reasons for the High Court’s ruling, which were recently published in full. The second part of the blog canvasses the importance of the decision, its immediate impact and implications for immigration law and policy in Australia.

NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs

The outcome in NZYQ turned on the High Court’s contemporary understanding and application of principles established in Chu Kheng Lim’s case (1992) in conjunction with more recent authorities addressing constitutional limits on executive detention. In Lim the High Court decided that, exceptionally, the executive had legislative power under the Constitution to detain an ‘alien’ (foreign national), without judicial warrant, for limited purposes relating to admission, deportation, or expulsion. Because the purpose of immigration detention was so limited, it was determined not to be punitive. This meant it did not infringe the separation of powers – it did not trespass upon the courts’ exclusive power to punish people.

Additionally, the Court in Lim recognised that the legislature had power to make laws for the expulsion and deportation of non-citizens, and for their restraint in custody, to the extent necessary to make deportation effective (Lim, 1992, pp. 30-31). In Lim’s case the Court concluded that the particular detention laws (in force at that time) met this condition. They were “reasonably capable of being seen as necessary for the purposes of deportation or for the making and consideration of an entry application” (Lim, 1992, p. 34, emphasis supplied) and were, therefore, non-punitive and consistent with the separation of powers.

Later, in Al-Kateb, a majority of the HCA decided the authority to detain certain aliens under a revised legislative scheme (ss 189 and 196 of the Migration Act) was not limited to cases where there was a real prospect of the detainee being removed to another country within the reasonably foreseeable future. The majority in Al-Kateb focussed their attention on the permissible purposes of detention as the criterion on which to assess the constitutional validity of detention. The salience of the Lim condition that laws be “reasonably capable of being seen as necessary for the purposes of deportation…” was not grasped and applied by the majority of the HCA in Al-Kateb.

Al-Kateb has stood for 20 years until a suitable matter, with the right fact matrix, was brought before the Court. Several other cases before the High Court (e.g., Plaintiff M47/2012, M76/2013, and AJL20) have invited critical discussion of Al-Kateb but these cases were not found to necessitate the re-opening and re-visiting the correctness of Al-Kateb. In the intervening years since Lim, legal authority has evolved and illuminated the meaning and significance of Lim.

So, for example, in Plaintiff M76/2013, three members of the High Court explained that:

“The necessity referred to in that holding in Lim is not that detention itself be necessary for the purposes of the identified administrative processes but that the period of detention be limited to the time necessarily taken in administrative processes directed to the limited purposes identified” (emphasis supplied).

Later, in CPCF v Minister for Immigration and Border Protection Gageler J stated:

“a Commonwealth statute which authorises executive detention must limit the duration of that detention to what is reasonably capable of being seen to be necessary to effectuate an identified statutory purpose which is reasonably capable of being achieved. That proposition is supported by authority. I accept it” (emphasis supplied).

Accordingly, drawing upon constitutional principles governing the separation of powers that that have crystallised in a stream of modern cases (including but not limited to the cases cited above) about migration, citizenship-stripping and preventive detention laws, in NZYQ the High Court reasoned that:

“Consistency with the Lim principle accordingly entails that ‘a Commonwealth statute which authorises executive detention must limit the duration of that detention to what is reasonably capable of being seen to be necessary to effectuate an identified statutory purpose which is reasonably capable of being achieved’”(2023, para 41).

Therefore, the critical point of departure between the HCA’s approach in NZYQ and in Al-Kateb stemmed from Al-Kateb’s “incomplete and accordingly inaccurate” statement of principle (NZYQ, para 43), which emphasised the constitutional importance of purposive limits on detention but overlooked temporal constraints and the need for the achievement of a statutory purpose to be a practicable prospect, not a mere possibility.

Consequently, because NZYQ could not be removed from Australia, and the facts were such that there was no real prospect of that occurring in the reasonably foreseeable future, the Migration Act did not validly apply to authorise the continuation of his detention.

NZYQ: Legal Significance, Implications and Aftermath

The decision and its effect on the principles governing the legality of detention in Australia is momentous. One of its immediate effects has been to compel the release of over 140 people held in detention, which took place within the month following the decision. As a consequence of NZYQ, after over 20 years, there is a limit on the executive’s power to detain certain non-citizens, quite plainly, forever. The extreme and deleterious effects of prolonged detention on mental and physical health are well-documented and at least half of the people released had been in detention for over five years, with the average time spent in immigration detention in Australia being 708 days.

The decision powerfully reinforces the limited, lawful purposes of detention, namely either to resolve immigration status or to facilitate deportation. Against this, the purpose of detention has been consistently mispresented by successive Australian governments as a means to ‘protect’ Australians from criminalised non-citizens. The current Labor government’s response to NZYQ has continued the trend of incorrectly casting of immigration detention as both protective and punitive. In response to the decision, Home Affairs Minister Claire O’Neil labelled the non-citizens in detention and their crimes as ‘utterly despicable’. She stated ‘I can tell you that if there was anything in my power to keep these people in detention, I would absolutely do it’ and that following their release, community safety was the Government’s ‘single focus.’

The aftermath of the decision has been marked by alarmist and inflammatory media reporting and political debate, casting the ‘Australian community’ and national security at direct risk as a result of the decision. In response, the Government hastily introduced and passed two new pieces legislation. The Migration Amendment (Bridging Visa Conditions) Act imposes extremely punitive surveillance and control mechanisms on non-citizens released into the community as a result of the decision, and was debated and passed within just one day, roughly one week following NZYQ. The amendments impose a 28 mandatory visa conditions ‘restricting conduct and movement’ for all of those released, alongside a requirement to wear an electronic monitoring device and adhere to a daily curfew unless the Minister is satisfied that no risk to the community is posed. If these conditions are breached, the Act creates a criminal offence of up to five years’ imprisonment with a mandatory minimum of one year. Unlike parole conditions imposed following a criminal sentence, the Act does not create a mechanism for independent oversight or review of these conditions, which may be imposed indefinitely and are an example of the expansion of the carceral state into the community and beyond closed detention settings.

The second reform introduces a new preventive detention regime for those released, which applies only to non-citizens. It allows for the re-detention in prison (not immigration detention) of those recently released, upon the Immigration Minister’s application to a court. Despite a released non-citizen’s criminal sentence being served, the court will assess whether an individual previously convicted of a serious violent or sexual offence poses “an unacceptable risk” of committing another such offence in the future. Although the Government has cast the legislation as non-punitive, it will almost certainly be subject to further challenge before the courts and it explicitly discriminates against non-citizens on the basis of their migration status.

Crucially, the decision does not mean that even non-citizens who are released into the community will be provided with a permanent migration status nor given a pathway to build secure lives in Australia. As the new visa conditions demonstrate, their lives in the community will remain conditional, aggressively surveilled and criminalised. This is the case even though it is likely that many of those released will remain in Australia permanently due to the Government’s inability to deport them.

Finally, while the decision is cast as the end of indefinite detention in Australia, it does not mark the end of prolonged and indeterminate periods of detention. The detention of non-citizens in Australia remains arbitrary and not subject to independent, periodic oversight. Indeed, until a person’s detention in Australia becomes unlawful and the precise circumstances outlined in the judgment are met, detention will remain indeterminate and authorised under the existing legislation.

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