A New Era in Administrative Power over Undeportable Migrants

Guest post by Rebecca Ananian-Welsh. Rebecca in an Associate Professor at the University of Queensland TC Beirne School of Law, where she teaches and researches in public law with a focus on courts, national security and press freedom.

The Australian government’s attempts to curtail the liberty of certain foreign nationals have, once again, been frustrated by the . This post provides a snapshot of a government and apex Court at loggerheads over the management of migrants with no clear pathway to either deportation or release into the Australian community. Specifically, in November 2024, the High Court’s decision in YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs struck down the Labor government’s electronic monitoring and curfew regime. This regime was itself a reaction to NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs which invalidated indefinite immigration detention. YBFZ affirms that significant shifts in constitutional power are taking place, and that future challenges to migration law are all but inevitable.

The Bad Old Days: Indefinite and Inhumane Detention

In the 1994 case of Chu Kheng Lim v Minister for Immigration Local Government & Ethnic Affairs, the High Court upheld the federal government’s first mandatory detention provisions regarding a specific class of migrants. Then, as now, Australia lacked a national Bill or Charter of human rights. Rather than being based on rights, the challenge relied on the separation of powers. Thus, in Lim, the Court held that detention is prima facie punishment and, therefore, can only be imposed by a court following a finding of guilt in a criminal trial. Detention outside this criminal justice paradigm breaches the separation of powers, unless it falls within an (indeterminate) class of exceptions. Relevantly (to that case and to the present discussion), detention for the purposes associated with migration and deportation is an exception to the Lim immunity and can be the subject of valid administrative order.

Ten years later, in the 2004 case of Al-Kateb v Godwin, the High Court took this to an extreme point, holding that even where there was no prospect of removal, such that the person would remain in immigration detention without foreseeable end, the purpose remained within the bounds of legitimate administrative power. Immigration detention forever was, in certain cases, constitutionally valid.

Subsequent High Court cases built on this foundation to give constitutional legitimacy to detention: involving children as well as adults; despite non-compliance with Australia’s international obligations and involving harsh or inhumane conditions; within Australia or externally; and in circumstances where executive officers failed to comply with statutory time constraints. One could say that the High Court had sanctioned Australia’s infamous schemes of severe and prolonged immigration detention.

Turning Points: NZYQ and Response

As explored in a previous post, in November 2023, two-days into the Chief Justiceship of Stephen Gageler AC KC, the High Court unanimously overturned Al-Kateb to hold that, simply put, indefinite detention is punishment and, as such, cannot be imposed outside the criminal trial context. This landmark decision was NZYQ.

The political response was swift, driven by (and driving) public outcry and fear aimed at the ‘NZYQ-cohort’, being 224 individuals who (for reasons usually linked to prior criminal activity) were unlikely to get an Australian visa or be successfully removed to another country. Legislation on-the-run introduced a range of measures to constrain the liberty of this cohort (short of returning them to unconstitutional detention). These measures included continuous electronic monitoring and a ‘curfew condition’ which required them to be at a specified location generally between 10pm and 6am. Breach of the visa conditions attracted criminal penalties.

Liberty Revitalised: YBFZ

The man known as YBFZ was a stateless Eritrean man who arrived in Australia in 2002, aged 14, as the holder of a Refugee Visa. This visa was cancelled following his convictions and imprisonment for serious offences between 2006 and 2017. Upon release prison in 2018, YBFZ was taken into immigration detention.

In 2019, the plaintiff applied for a Protection Visa. In 2020, that application was denied, however, a delegate of the Minister made a ‘protection finding’. The effect of this finding was that, the s198 of the Migration Act (dealing with the removal of non-citizens from Australia) no longer required or authorised YBFZ’s removal to Eritrea. With no real prospect of removal, the case of NZYQ rendered YBFZ’s continued detention unconstitutional and, in November 2023, he was therefore released. This was, however, subject to the new BVR scheme introduced following NZYQ which included, inter alia, enforceable requirements for electronic monitoring and curfews. YBFZ proceeded to challenge these restrictions as another instance administrative punishment (akin to detention) violating the Lim immunity.

In November 2024, just under 12 months after NZYQ, a majority of the High Court (4:2) agreed with YBFZ and struck down the new visa scheme as constitutionally invalid. This decision in YBFZ is of resounding importance constitutionally, politically and practically. In this post, I focus on the joint judgment of Chief Justice Gageler and Justices Gordon, Gleeson and Jagot. Justice Edelman agreed in a separate judgment (adopting his Honour’s own reasoning process which emphasises the blurred distinction between prevention and punishment). Justices Steward and Beech-Jones issued separate dissents.

The Lim immunity applied specifically to detention. More recently, it had been extended to strike down punitive Ministerial citizenship revocation, but this was done on the basis that denationalisation was more severe than detention. So, before YBFZ, there was no indication that administrative constraints on liberty short of detention – even punitive ones – might offend the separation of powers. One momentous aspect of YBFZ is that any ‘non-judicial exercise of power interfering liberty or bodily integrity’ must be reasonably capable of being seen to be necessary for a legitimate and non-punitive purpose.

Getting to this point involved another momentous step, this time at the level of constitutional interpretation. Earlier cases such as Al-Kateb had involved legalistic, ‘black letter’ reasoning, downplaying the role of constitutional values. In YBFZ, we see a majority of the Court strongly emphasising the role of the separation of powers in protecting liberty.

Of fundamental importance for present purposes, however, is that NZYQ represents a specific example of a broader stream of common law and constitutional principle based on the pre-eminent value the law of this country gives to the protection of human life (from arbitrary capital punishment), limb, now called bodily integrity (from arbitrary corporal punishment), and liberty (from arbitrary detention). This reflects the common law's acceptance of the inherent and irreducible status of each human being in the compact between the individual and the state, a compact which this country inherited and within which the Constitution was enacted.

In a country almost entirely lacking constitutional rights, and with a strong history of ‘strict and complete legalism’, statements like this are unusual. That this was said in a majority judgment to directly justify the expansion of a constitutional limit on administrative power, is significant. The joint judgment explored the serious impositions on liberty effected by curfews and monitoring, taking a truly substantive approach to the issues. These laws, they found, were punitive in design and effect, and were not justified by reference to a legitimate non-punitive purpose. They were, therefore, an invalid contravention of the separation of powers.

What Next?

The consequences of YBFZ are playing out in real-time.

While many constitutional and human rights lawyers applauded this development and called on the government to ‘respect the High Court’s decision’, the sentiment was certainly not universal. The immediate government response emphasised the need for rapid measures to protect the community from the threat posed by the NZYQ-cohort. Once again, the cohort was painted as a group of serious criminals warranting continual segregation and punishment, despite the Court’s warnings that some members of the cohort had no criminal history, and the fact that those who did had been prosecuted and had duly served their sentences.

The day after YBFZ, a draft Bill had been released which the Human Rights Law Centre described as “drastically expand[ing] the Government’s powers, allowing it to warehouse people in third countries, reverse protection findings made for refugees, and continue to impose punitive visa conditions on those who remain here.” Particular media attention focused on the government’s supposed plan to pay third party countries to accept deportees. Concerns were raised, including by the Parliamentary Joint Committee on Human Rights, regarding the laws’ impacts on rights, constitutional principle and, more practically, the court system.

The Bill passed with bipartisan support on 28 November and the chances of constitutional challenge are high. Now, however, the High Court has laid the groundwork to robustly test the necessity, practicability and impacts of the new measures, including on the basic rights and liberties of migrants.