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Source: The Conversation (Au and NZ) – 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 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.

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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” 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 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 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, 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 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 by international refugee law expert Professor Guy S Goodwin-Gill. This formed the basis of Kaldor Centre’s intervention 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.

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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.

The Conversation

Daniel Ghezelbash receives funding from the Australian Research Council and the NSW Government. He is a member of the management committee of Refugee Advice and Casework Services and a Special Counsel at the National Justice Project. He is the Deputy Director of the Kaldor Centre for International Refugee Law, which was given leave to intervene in the NZYQ case as amicus curiae.

Anna Talbot receives funding from the Australian government as a PhD scholar at the Kaldor Centre for International Refugee Law, University of NSW, Sydney, which was given leave to intervene in the NZYQ case as amicus curiae.

ref. High Court reasons on immigration ruling pave way for further legislation –