Ashiana Humanitarian Network’s Director, and Barrister at Sir Clifford Grant Chambers, Robert Lindsay, has highlighted the importance of recent High Court decisions on indefinite detention as upholding the rule of law.
The release of detainees which has followed those decisions is an essential limitation on unchecked power by the executive and reinforces the separation of powers under the Australian Constitution. In this way, it benefits us all in the Australian community.
It was reported that over 140 people were released from immigration detention in the wake of the High Court’s decision in NZYQ v Minister for Immigration Citizenship and Multicultural Affairs [2023] HCA 37 in November 2023. As at 30 November 2023, 878 people were held in immigration, for an average of 620 days, with 74 held for more than 5 years according to the Department of Home Affairs. There followed multiple pieces of legislation aimed at restricting and monitoring movements of those who had been released and penalising each breach, with mandatory periods of further detention being imposed. The legislation has been roundly criticised by legal experts as ‘extraordinary’ and disproportionate. So too has been the degree of alarm expressed in the media.
As noted by A. Professor Mary Anne Kenny at a recent seminar co-hosted by Ashiana in March 2023, in the same quarter (December 2023) over 17,000 people were released from prison in Australia according to the Australian Bureau of Statistics, without generating a similar response. A Prof Kenny argued that the mandatory nature of detention for unlawful non-citizens must change, and there must be an initial and ongoing opportunity to independently review any decision to detain an unlawful non-citizen to determine whether detention is or remains reasonable and necessary. Such an approach is properly taken in the context of criminal matters, with the courts exercising oversight.
It is critical that the public is provided with appropriate context when considering migration matters, and that the media and political leaders ensure that their words, and the laws they develop, are premised on facts, proportionality, and the defence of the rule of law, our institutions of justice and the Constitution. It is in the interests of the whole community and all those who arrive in Australia that this occurs.
Background on recent cases
In NZYQ v Minister, the High Court handed down a unanimous decision that the executive lacks the power to detain asylum seekers indefinitely and in doing so reversed a 2004 decision in Al-Kateb v Godwin (2004) 219 CLR 562. The case involved a stateless Rohingya man who arrived in 2012 and was convicted in 2016 of a sexual offence. He was given 5 years with parole, and then was put back in detention.
The High Court held that detention of non-citizens where there was no prospect of removing them to another country was penal by nature and therefore unconstitutional in that the executive did not have power to exercise such an exclusively judicial power under Chapter III of the Constitution.
Under s 196(1) of the Migration Act 1958 (Cth) an asylum seeker must either be granted a visa, deported, or removed to another country. However, here there was no reasonable prospect of any other country in the foreseeable future accepting the applicant.
In a still more recent case, ASF17 v Commonwealth of Australia [2024] HCA 19, the High Court unanimously rejected an Iranian man’s application for release from detention. The applicant, who arrived in 2013 as an unlawful non-citizen, and had exhausted his application for a visa and related appeals, had been held in detention since around 2014 after a brief period on a bridging visa. He advised the Australian authorities he would not voluntarily return to Iran. Although this had not been his contention before the delegate, his writ of habeas corpus alleged that he feared harm if sent to Iran because of his alleged bisexuality. He was prepared to be sent to another country but it seems no other country was ready to accept him. Iran itself would only accept those willing to voluntarily return.
The Court said the relevant time to assess whether there is a reasonable prospect of removal is at the time of making the habeas corpus application. It would be penal and punitive to hold a person in detention thereafter where there is no reasonable prospect of removal, but continuing detention for a migrant for a non-punitive purpose because of the migrant’s refusal to assist with his or her removal would not be unconstitutional.
The Court also referred to s.197C(3) which operates to prevent involuntary removal to another country where a tribunal or court has made protective findings in relation to a country, but no such findings had been made here and the applicant’s claim failed.
Both NZYQ and ASF17 derived their principles from what the High Court said in Lim v Minister for Immigration (1992) 176 CLR 1 about the nature of exclusive judicial power: that involuntary detention by the executive, save in exceptional cases such as those held on account of mental or other illness, is to be treated as penal or punitive and as such is only exercisable by a court. Even if “the power was conferred in terms which sought to divorce such detention in custody from both punishment and criminal guilt” (at para 23 per Mason CJ), it is beyond legislative power to do so because involuntary detention is an incident of the judicial power to judge and punish criminal guilt. As a result, “Ch. III of the Constitution precludes the enactment, in purported pursuance of any of the sub-sections of the Constitution, of any law purporting to vest any part of that function in the Commonwealth Executive” (at para 22 per Mason CJ).
It was recognised in Lim that there is, however, scope, in relation to the ‘aliens’ power under s51(xix) of the Constitution, to empower the executive “to detain an alien in custody for the purposes of expulsion or deportation and that such (limited) authority constitutes an incident of executive power… to receive, investigate and determine an application by that alien for an entry permit and (after determination) to admit or deport … without contravening the … judicial power (vested in)… Ch. III courts” (at para 2 per Mason CJ).
The Lim principle meant also that the Minister’s exercise of their power under the Australian Citizenship Act 2007 (Cth) to revoke the dual citizenship of an Algerian/Australian citizen sentenced for terrorist offences for which he had already served 15 years and that expired in 2020, on the basis that he had thereby repudiated his Australian allegiance, was held to be an improper exercise of judicial power and therefore only to be done by a court in accordance with legal process (Benbrika v The Minister [2023] HCA 33). The Court in Benbrika further explained the principle in Lim as: “The effect of Ch III of the Constitution is to make punishment of criminal conduct exclusively judicial even if the punishment is separated from the adjudication of that criminal guilt. Consistently with Ch III, the Commonwealth Parliament cannot repose in any officer of the Commonwealth Executive any function of sentencing persons convicted by Ch III courts of offences against Commonwealth laws. Nor can the Commonwealth Parliament vest in any officer of the Commonwealth Executive any power to impose additional or further punishment on persons convicted by Ch III courts of offences against Commonwealth laws. Section 36D(1) purports to vest such a power to impose additional or further punishment in the Minister” (at para 41).
Likewise a Turkish dual citizen Alexander joined an Islamic group, and the High Court found that s.36B of the Australian Citizenship Act 2007 was invalid in reposing in the Minister the exclusive judicial power of effectively punishing criminal guilt in enabling the Minister to revoke citizenship for conduct perceived as reprehensible to Australian values, when there was no guarantee that procedural fairness would be extended by the Minister to the dual citizen (Alexander v Minister for Home Affairs [2022] HCA 19).
Learn more and support our work
To learn more about World Refugee Day 2024, please follow this link.
To donate to our current appeal to help us continue our work with those from refugee and humanitarian backgrounds, please follow this link. As a registered charity and public benevolent institution, all your donations are tax deductible. Thank you for your support! #WithRefugees
