The Times Australia
The Times World News

.
The Times Real Estate

.

High Court reasons on immigration ruling pave way for further legislation

  • Written by Daniel Ghezelbash, Associate Professor and Deputy Director, Kaldor Centre for International Refugee Law, UNSW Law & Justice, UNSW Sydney

After ruling on November 8 that indefinite immigration detention is unlawful, the High Court today delivered its reasons[1] for the decision that upturned 20 years of precedent. Its ruling has required the release of some 140 people from immigration detention so far, and set off a political scramble to legislate in response to the outcome.

The judgment, the first made by the court under new Chief Justice Stephen Gageler, was unanimous. It largely turned on questions of constitutional law and the limits of executive power.

The court made it clear that a person must be released from detention when there was no real prospect of them being deported in the foreseeable future. Previously, there was no limit to the length of time people could be detained in immigration detention in Australian law. In fact, people could legally be detained for the rest of their lives without ever being found guilty of a crime.

Read more: The High Court has decided indefinite detention is unlawful. What happens now?[2]

The decision overturns the much-criticised 2004 Al-Kateb v Godwin case, where a 4-3 majority ruled that, provided the government maintained an intention to eventually remove a person from Australia, the Constitution allowed them to be detained indefinitely until that removal took place.

The court’s reasons in this case indicated that other laws allowing detention, such as continuing detention orders, could apply to people released because of the decision. Continuing detention orders are a mechanism that enable people to be detained once they have served their sentence for a crime.

However, those orders are only available if the person is considered to pose an “unacceptable[3]” risk of reoffending and only in relation to specific, serious crimes. Such orders can only be made with the support of expert evidence and with judicial oversight, as detailed below.

Implications of the decision

The decision has significant ramifications for the rapidly drafted legislation that was passed by parliament in response to the case, before the High Court had released its reasons.

In response to the release of the reasons for the decision, the federal government indicated[4] it would legislate again before parliament rises for the year.

Laws rushed through parliament earlier this month included curfews, high levels of monitoring of people released from detention and severe mandatory prison sentences for infringements of release conditions. The first package of laws has already been challenged[5] in the courts by a Chinese refugee known as S151, on the basis they are “punitive”. More challenges are anticipated.

With this decision, the court has revealed an intention to exercise much greater scrutiny of the parliament and executive in ensuring constitutional limits on power are respected.

In this way, this judgment can be seen as representing a turn from more permissive approaches to limits on parliamentary legislative power.

The challenge and decision

The challenge was brought by a stateless Rohingya man[6], given the pseudonym NZYQ, who had fled his home country of Myanmar and arrived in Australia by boat in 2012. He spent just over a year in immigration detention on arrival.

Soon after he was released into the community, he was convicted of sexual intercourse with a minor and was sentenced to a maximum of five years imprisonment. While in prison, he applied for refugee status. He was found to be owed protection but, due to his criminal history, was not granted a protection visa. On release from prison, he was immediately re-detained in immigration detention.

Both international and Australian law prohibit sending people back to places where they are at risk of persecution, as NZYQ had been found to be.

The Migration Act[7] requires “unlawful non-citizens” to be held in detention until they are removed from Australia, deported or granted a visa.

NZYQ’s appeal focused on two questions. Did the detention provisions authorise the potential indefinite detention of non-citizens in circumstances where there were no real prospects of removal? If so, was this constitutionally valid?

The High Court answered the first question in the affirmative, in essence agreeing with the majority in Al-Kateb that relevant legislative provisions authorised detention until a detainee was removed, deported or given a visa, no matter how long that might take.

But on the second question, treading a course it said “should not lightly be taken”, the court reopened and overruled the constitutional holding in Al-Kateb, finding that detention provisions contravened the separation of powers in the Constitution. That is, detention is generally punishment, which can only be ordered by courts, not the government.

There are limited exceptions to this rule for immigration detention. Detention will not be punishment as long as it for the purpose of deportation or enabling an application for a visa to be made.

In NZYQ, the High Court stated that ongoing detention – where there is no reasonable prospect of the removal of the plaintiff from Australia in the reasonably foreseeable future – would not meet this test.

What does it mean?

With this judgment, the court unanimously rejected the ability of the parliament to define its own limits for detention. In doing so, it brings Australia into line with international law and practice. No other country allows for, let alone requires, indefinite mandatory immigration detention.

While the court did not engage directly with international law arguments, the outcome and reasoning reaffirm international principles of reasonableness and proportionality, set out in a memo[8] by international refugee law expert Professor Guy S Goodwin-Gill. This formed the basis of Kaldor Centre’s intervention[9] with the Human Rights Law Centre in the case.

In terms of when an individual will be required to be released from detention, the court makes clear that the onus is on the government to show there is real prospect of removal in the reasonable future. This means deportation has to be a real possibility – it is not enough for the government to say it is trying without showing there is a real prospect it can be achieved.

This decision also will have broader ramifications for habeas corpus in Australian courts. This is the requirement that any person detained by the government has the right to challenge that detention. When challenged, the government must demonstrate the basis for the detention. With this judgment, the court has made it clear that inquiries will be rigorous, not merely considering the surface arguments made by detaining authorities.

Read more: Grattan on Friday: A government in a big hurry gives opposition some wins on ex-detainees[10]

Preventive detention

The court acknowledged that people released from immigration detention because of its decision could be re-detained under other laws, such as continuing detention provisions. These allow for the ongoing detention of people who are considered to pose an unacceptable risk of reoffending. This would need to be for reasons exclusively connected to the risk that is posed, not to their immigration status.

Such provisions already exist for some sex or terrorism crimes. However, for such orders to be made, there must be clear evidence the individual poses an unacceptable risk; merely having committed a crime before is not adequate. Most importantly, these decisions are generally made by the courts, and not the government.

The High Court’s decision was clear – only the courts have the power to deal out punishment. The risk is that any further blanket restrictions on individual liberty that are not subject to judicial oversight will be similarly overturned by the courts.

References

  1. ^ reasons (eresources.hcourt.gov.au)
  2. ^ The High Court has decided indefinite detention is unlawful. What happens now? (theconversation.com)
  3. ^ unacceptable (www.legislation.gov.au)
  4. ^ indicated (www.theage.com.au)
  5. ^ already been challenged (www.theguardian.com)
  6. ^ stateless Rohingya man (theconversation.com)
  7. ^ Migration Act (www5.austlii.edu.au)
  8. ^ memo (www.kaldorcentre.unsw.edu.au)
  9. ^ intervention (www.hcourt.gov.au)
  10. ^ Grattan on Friday: A government in a big hurry gives opposition some wins on ex-detainees (theconversation.com)

Read more https://theconversation.com/high-court-reasons-on-immigration-ruling-pave-way-for-further-legislation-218699

The Times Features

Itinerary to Maximize Your Two-Week Adventure in Vietnam and Cambodia

Two weeks may not seem like much, but it’s just the right time for travelers to explore the best of Vietnam and Cambodia. From the bustling streets of Hanoi to the magnificent te...

How to Protect Your Garden Trees from Wind Damage in Australia

In Australia's expansive landscape, garden trees hold noteworthy significance. They not only enhance the aesthetic appeal of our homes but also play an integral role in the local...

Brisbane Homeowners Warned: Non-Compliant Flexible Hoses Pose High Flood Risk

As a homeowner in Brisbane, when you think of the potential for flood damage to your home, you probably think of weather events. But you should know that there may be a tickin...

Argan Oil-Infused Moroccanoil Shampoo: Nourish and Revitalize Your Hair

Are you ready to transform your hair from dull and lifeless to vibrant and full of life? Look no further than the luxurious embrace of Argan Oil-Infused Moroccanoil Shampoo! In a...

Building A Strong Foundation For Any Structure

Building a home or commercial building can be very exciting. The possibilities are endless and the future is interesting. You can always change aspects of the building to meet the ...

The Role of a Family Dentist: Why Every Household Needs One

source A family dentist isn’t like your regular dentist who may specialise in a particular age group and whom you visit only when something goes wrong. A family dentist takes proa...

Times Magazine

"Eternal Nurture" by Cara Barilla: A Timeless Collection of Wisdom and Healing

Renowned Sydney-born author and educator Cara Barilla has released her latest book, Eternal Nurture, a profound collection of inspirational quotes designed to support mindfulness, emotional healing, and personal growth. With a deep commitment to ...

How AI-Driven SEO Enhancements Can Improve Headless CMS Content Visibility

Whereas SEO (search engine optimization) is critical in the digital landscape for making connections to content, much of it is still done manually keyword research, metatags, final tweaks at publication requiring a human element that takes extensiv...

Crypto Expert John Fenga Reveals How Blockchain is Revolutionising Charity

One of the most persistent challenges in the charity sector is trust. Donors often wonder whether their contributions are being used effectively or if overhead costs consume a significant portion. Traditional fundraising methods can be opaque, with...

Navigating Parenting Arrangements in Australia: A Legal Guide for Parents

Understanding Parenting Arrangements in Australia. Child custody disputes are often one of the most emotionally charged aspects of separation or divorce. Parents naturally want what is best for their children, but the legal process of determining ...

Blocky Adventures: A Minecraft Movie Celebration for Your Wrist

The Minecraft movie is almost here—and it’s time to get excited! With the film set to hit theaters on April 4, 2025, fans have a brand-new reason to celebrate. To honor the upcoming blockbuster, watchfaces.co has released a special Minecraft-inspir...

The Ultimate Guide to Apple Watch Faces & Trending Wallpapers

In today’s digital world, personalization is everything. Your smartwatch isn’t just a timepiece—it’s an extension of your style. Thanks to innovative third-party developers, customizing your Apple Watch has reached new heights with stunning designs...

LayBy Shopping