NZYQ, Al-Kateb, and the Political Fallout
Days after Stephen Gageler became Chief Justice of the High Court of Australia, the court heard oral arguments for NZYQ v Minister for Immigration [2023] HCA 37. [1] The Commonwealth was caught flatfooted; High Court decisions usually precede orders by months, but NZYQ forced the Commonwealth to accept indefinite immigration detention as unlawful on the same day those oral hearings concluded. Consequently, the plaintiff and over a hundred detainees were released from immigration detention.
NZYQ was born in Myanmar. As a Rohingya Muslim, he sought refuge in Australia and was granted a temporary Bridging visa. In 2016, NZYQ was convicted and imprisoned for child sexual offences. In prison, NZYQ applied for a Protection visa as a refugee fearing persecution in Myanmar. The Government refused his application due to his conviction. After serving his sentence, the Government detained NZYQ in immigration detention as he no longer had a right to remain in Australia owing to the expiry of his visa. As the Government could not deport him, NZYQ remained in detention with no real prospect of release.
Under s 75(v) of the Constitution [2], NZYQ sought a declaration that his detention was not authorised by subsections 189(1) and 196(1) of the Migration Act 1958. NZYQ made two arguments:
On their proper construction, the aforementioned provisions of the Migration Act do not authorise NZYQ’s detention (the interpretation issue);
Notwithstanding the first argument, the Commonwealth breached Ch III of the Constitution by usurping the judiciary’s exclusive power of imposing punitive detention (the constitutional issue).
NZYQ failed on the first issue. On its proper construction, the legislation requires the Commonwealth to detain unlawful citizens until they are removed from Australia or are granted a visa. [3]
On the second issue, the Court relied on Chu Kheng Lim v Minister for Immigration, which held that detaining a person ordinarily constitutes punishment. [4] ‘Punitive detention’ includes the imprisonment of a guilty party. The power to judge guilt and impose punitive detention is a judicial power exclusive to Chapter III courts. [5]
However, there are circumstances where the Executive (a Ch II body) can detain a person, so long as it is reasonably necessary for a legitimate non-punitive purpose. [6] Immigration detention is non-punitive, because its purpose is to prevent non-citizens from entering Australia if their visa is denied.
In Al-Kateb v Godwin, the detention of a stateless Palestinian was found to be lawful and non-punitive despite the cancellation of his visa. [7] Despite having no real prospect of release, he faced the prospect of serving a life sentence without having committed a crime.
In NZYQ, the High Court reversed Al-Kateb: indefinite immigration detention is now considered punitive and thus unlawful. While NZYQ’s detention was lawful following the refusal of his visa upon being paroled, his detention became unlawful once it was apparent that he could not be deported in the reasonably foreseeable future.
The decision resulted in the release of over 100 detainees whose visas were refused and could not be removed from Australia. [8] While some had their visas refused due to criminal convictions, they had served their sentences or were released on parole when they were put in immigration detention.
The optics of releasing immigration detainees and granting them temporary visas (pending their removal) caused a political crisis. In response, the Parliament amended the Migration Act. These amendments allow the relevant Minister to impose curfews and electronically monitor those released. [9] Breaching these conditions is a criminal offence requiring the court to impose a mandatory minimum sentence of one-year imprisonment. [10]
The Parliament also passed the Migration and Other Legislation Amendment (Bridging Visas, Serious Offenders and Other Measures) Act 2023. This effectively creates a preventative detention system that allows the state and territory courts to make detention orders if there is a ‘high degree of probability’ a visa holder convicted of a violent or sexual offence ‘poses an unacceptable risk of seriously harming the community.’ [11]
Whether these amendments are constitutionally valid remains to be seen, but it is highly likely NZYQ will be the defining judgement of the Gageler Court.
[1] NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 (‘NZYQ’).
[2] Australian Constitution s 75(v).
[3] Migration Act 1958 (Cth) s 196(1) (‘Migration Act’).
[4] Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, 27-28 (‘Lim’).
[5] Australian Constitution s 71.
[6] NZYQ (n 1) [48].
[7] Al-Kateb v Godwin (2004) 219 CLR 562 (‘Al-Kateb’).
[8] Brett Worthington, ‘The landmark High Court ruling that’s left Anthony Albanese in a political pincher’, ABC News (News Article, 9 November 2023) <https://www.abc.net.au/news/2023-11-09/twenty-year-detention-laws-overturned-in-high-court/103081400>.
[9] Migration Amendment (Bridging Visa Conditions) Act 2023 Sch 1.
[10] Migration Act (n 3) Section 76DA.
[11] Migration and Other Legislation Amendment (Bridging Visas, Serious Offenders and Other Measures) Act 2023 Sch 2.
This article was originally published under the title ‘NZYQ and the Bridging Visas Bill 2023 (Cth)’ in The Brief Edition 1, 2024 — Through a Glass, Darkly .