On Wednesday, the High Court delivered a revolutionary result that overturns more than two decades of jurisprudence. After two days of hearing submissions and a brief adjournment, Chief Justice Stephen Gageler announced that ‘at least a majority’ had found that the applicant NZYQ – a Rohingya man with a criminal record who faced the prospect of life imprisonment – was being held unlawfully in immigration detention.
The result overturns the 2004 Al Kateb decision, in which the High Court narrowly upheld the constitutionality of Australia’s mandatory immigration detention regime in cases where a non-citizen is ineligible for a visa but cannot be removed from the country. The judges’ full reasoning will not be available for some time. It’s the first case to be heard by the new High Court following the appointment of Chief Justice Gageler and the introduction of Justice Beech Jones on Monday.
NZYQ is a stateless refugee convicted of a child sex offence whose visa was cancelled on character grounds. The Migration Act mandated his detention and removal, but no country could be found to accept him – a situation similar to that of Al Kateb. The High Court appears to have accepted that NZYQ faced the prospect of life in immigration detention and that this constituted punishment. The court ruled that the Migration Act was unconstitutional because its mandatory provisions were designed to give immigration officials punitive powers that can only be exercised in a court of law.
At least 92 and possibly as many as 340 current non-citizens have been detained for long periods because they cannot be deported. From the perspective of international human rights law, Australia’s use of mandatory immigration detention has long been a sore point. It is a policy that has indiscriminately harmed men, women and many children, causing death, permanent injury and shame. Few areas of public administration in Australia have been the subject of more research, essays, dissertations, books and national and international criticism.
Mandatory immigration detention has been a personal driving force in my now 30-year journey from practice to advocacy and scholarship.
Having diverted from a traditional legal career to help set up an immigration advice service, the arrival of boats carrying refugees from Cambodia in November 1989 changed my life.
The generosity shown to earlier refugees from Vietnam evaporated before the complexities of regional geopolitics. Prime Minister Bob Hawke glowered at the Cambodians, ‘Bob’s not your uncle’, as he wept over the plight of Chinese students displaced by pro-democracy riots in China. The Cambodians were locked up, denied access to lawyers and moved around the country. They became our obsession. The group waited years before their claims for protection were formally rejected. Nearly 40 Cambodian babies were born in the four years. Seeing the little ones deprived of toys (they called it ‘passive deterrence’), walking around the detention centres like little old people, unsmiling, serious and grave, had a searing effect on me as a young mother. Looking back, it seems to me that the Cambodians were at the top of a slippery slope. Until NZYQ, it was pretty much all downhill from the moment they arrived.
In a class action suit named after Dr Chu Kheng Lim, the Cambodians won some points – notably on the constitutionality of a provision that no court could order their release. But they lost the war when the Supreme Court upheld the concept of ‘administrative detention’. Detention by officials without judicial involvement was ruled permissible as long as the measure was to prevent a non-citizen from entering the country – and was not punitive. Chapter III of the Constitution states that only a court can punish.
Lim’s administrative detention was enshrined in amendments to the Immigration Act in 1994 and tested in high-profile cases, including the Tampa litigation in 2001, Al Kateb and related matters in 2004. In Al Kateb and Behrouz, it was argued that mandatory detention changes its character and becomes punitive – as well as physically and emotionally unbearable – when it is indefinite. A narrow majority disagreed, rejecting the contention that detention is necessarily indefinite.
At their core, Chu Kheng Lim, Al Kateb and now NZYQ reflect a longstanding and visceral struggle between the government and the judiciary over immigration control. Always a politically sensitive issue, immigration has been one of the last bastions of closed government, immune from outside scrutiny. When titans clash, the powerless suffer. Witness the years of turmoil in the desert detention centres and the scandal of multiple unlawful detentions and wrongful deportations. If we are serious about protecting the country and respecting human rights, immigration detention should have a purpose and an end point. It should also be overseen by a proper judicial process, as it was before 1994.
