Common(wealth) Knowledge #78: Government overhauls indefinite detention after High Court ruling
A second High Court migration case in as many weeks sends the government back to the drawing board.
After the High Court ruled in NZYQ v Commonwealth  on the 8th of November that the indefinite detention of immigrants was unlawful, the Commonwealth government, with the backing of the Opposition, rushed legislation through Parliament to plug the gap.
The Migration Amendment (Bridging Visa Conditions) Act 2023 (Cth) will allow the government to revoke the visa of a person who has committed a criminal offence but cannot reasonably be deported and replace it with a bridging visa that would require the person to wear an ankle monitor and follow curfews.
These visa holders are also required to report to the Department of Immigration about any changes to the members of their household, financial developments, and any work that involves interactions with children, except as a byproduct of their work.
At the request of the Opposition, the government has agreed to impose a mandatory minimum sentence of 1 year for each breach of visa conditions. As this visa cannot be revoked, the Opposition sought to include this provision to more effectively enforce compliance with the conditions.
Since Al-Kateb v Godwin (2004), it has accepted that the Commonwealth government can revoke the visa of a non-citizen who committed a criminal offence. Under Section 501(3A) of the Migration Act 1958 (Cth), any person who committed an offence with a sentence of over 12 months or a child sexual offence would have their visa revoked imemediately.
The revocation of this visa would mean that the offender was no longer lawfully residing in Australia, thus justifying placing them in immigration detention, rather than prison. Al-Kateb had authorised indefinite detention.
Two weeks ago, the High Court handed down its judgment in Benbrika v Minister of Home Affairs , which prevented the Commonwealth government from revoking the citizenship of naturalised Australians, i.e. those who were not citizens by birth, for committing a criminal offence.
The justification used by the High Court was that the revocation of this citizenship was punitive in nature, punishing the citizen for the crime. However, punishment for criminal offences is the exclusive role of the courts, and this action violated the separation of powers, so was unconstitutional.
As Section 51(xix) of the Australian Constitution gives Parliament jurisdiction over ‘naturalization and aliens,’ and non-citizens are ‘aliens,’ this overrides the separation of powers.
However, NZYQ has overturned Al-Kateb, creating further problems for a government that is already having to respond to the ruling in Benbrika.
Although the High Court did not give its reasons when it made its decision in NZYQ, Chief Justice Gageler said that “at least a majority” of the court declared the indefinite detention system unconstitutional.
Detaining unlawful residents in immigration detention is not meant to be indefinite, as the purpose of this detention is to eventually lead to their deportation to their home country.
The reasoning for this comes from Chu Kheng Lim v Minister for Immigration (1992), where it was said that detention for ‘administrative purposes,’ such as arranging for deportation, is lawful. Any punitive effect of this is only ‘incidental; it is not the purpose of the detention, just a secondary effect of it.
However, up to 400 of the immigrants detained at the time of the judgment faced no reasonable prospects of being deported home. Many of these immigrants came to Australia as asylum seekers who fled to escape persecution in their home country.
The likely basis of the court’s reasoning here is that because there is no reasonable possibility for deportation, then the detention can no longer be considered as intended for ‘administrative purposes.’
If deportation is unlikely, then the immigrant whose visa has been revoked will stay in detention indefinitely, potentially for the rest of their life. This cannot be justified in any way other than as a punishment, and as this is not done by the courts, it violates the separation of powers.
This verdict is unlikely to be unanimous.
Chief Justice Gageler and Justice Gordon have a track record of upholding an American-like separation of powers in government. Justice Edelman has, to a lesser extent, agreed. Long-time readers of this series may recall this from the article on Garlett v Western Australia, which dealt with applying the separation of powers at a state level.
Because the Australian Constitution gives each branch of government a separate Chapter, something borrowed from the USA. this has been interpreted as a separation of powers. This constitution binds the federal government.
This does not apply at the state level, where state Parliaments can amend their constitutions on their own. This follows the Westminster tradition of parliamentary sovereignty, where Parliament’s powers are not limited by a constitution, so Parliament has broad powers.
Justice Steward, in contrast to those three judges, is a staunch defender of parliamentary sovereignty, granting even the Commonwealth Parliament broader powers. However, with Chief Justice Kiefel and Justices Bell and Keane retired, he is in the minority now.
The government has reserved the right to amend this legislation when the High Court hands down its reasons, as the full decision may require further changes to be made. It may even go so far as to limit potential bridging visas or threaten the entire asylum seeker scheme.
The Refugee Council of Australia has expressed concern over the bridging visa scheme, meaning that further litigation cannot be ruled out.
However, one thing is for certain, and that is that any immigrant who commits criminal offences will still suffer the same criminal punishments as any other Australian resident who breaks Australian law.
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Al-Kateb v Godwin (2004) 219 CLR 562;  HCA 37.
Benbrika v Minister of Home Affairs  HCA 33.
Chu Kheng Lim and Others v Minister for Immigration, Local Government and Ethnic Affairs and Another (1992) 176 CLR 1;  HCA 64.
Jones v Commonwealth  HCA 34.
Transcript of Proceedings, NZYQ v Commonwealth  HCATrans 154 (8 November 2023).