Sarah Gall is a political data scientist and membership secretary for the UK’s Conservative Friends of Australia. She previously headed up political and policy research for the Prime Minister of Australia.
Earlier this month, the High Court of Australia put an end to indefinite immigration detention. The ruling has resulted in the immediate release into the community of more than 80 detainees who have previously been convicted of rape, child sex offences, and murder.
The case concerned a stateless man, referred to as NZYQ. NZYQ arrived unlawfully by boat in 2012 and was placed in immigration detention until he was granted a temporary protection visa.
Within a few months of his release, NZYQ raped a ten-year-old boy. He was convicted of child sex offences and his visa was cancelled on the grounds of failing the character test – a requirement of all visa holders and applicants.
Once NZYQ was released on parole in 2018, he was placed into mandatory immigration detention where he has remained ever since.
Under the Migration Act 1952 (Cth), an unlawful non-citizen must be detained until he or she is deported or granted a visa. NZYQ is, however, from the persecuted Rohingya people and is therefore not recognised as a citizen of Myanmar, leaving him stateless and unable to be deported from Australia.
NZYQ, along with 92 other detainees in a similar position, has therefore been in indefinite detention, which he has successfully challenged in the High Court.
The court viewed that the relevant provisions within the Migration Act had gone “beyond the legislative power of the Commonwealth insofar as they applied to the plaintiff”. It had therefore declared that the continued detention of NZYQ was unlawful and ordered his immediate release.
While the court has taken the unusual step of announcing its decision prior to publishing its reasons, it declared that “at least the majority” of the High Court agrees that NZYQ’s detention was unlawful “by reason of there having been and continuing to be no real prospect of the removal of the plaintiff from Australia becoming practicable in the reasonably foreseeable future”.
This decision overturns a 2004 High Court ruling which held that people who are stateless could be held in indefinite detention as long as there was intent from the minister to eventually deport the unlawful non-citizen from Australia.
The majority view of this case was that it is not up to the courts to decide whether deportation is permanently unachievable based on the fact that removal is currently unachievable. This is in stark contrast to the reason provided in the case of NZYQ.
Additionally, the 2004 case reviewed whether the government had used judicial power for indefinite detention. The majority held that the government was authorised to detain unlawful non-citizens under legislative powers (section 51(xix) of the Constitution) and that detention was not punitive (a judicial power).
They took the view that the purpose of the detention was not as a punishment but to prevent the unlawful non-citizen from entering Australia without a visa or to prepare them for deportation from the country.
In the NZYQ case, the High Court has rejected this 2004 view and instead characterised immigration detention as punishment, thus making the relevant legislation unconstitutional.
The decision to overturn a 20-year precedent has left the Labor Government in a precarious position, legally and politically.
Among the 84 detainees who have already been released following the High Court’s ruling was Sirul Azhar Umar, a convicted murderer who was sentenced to death by a Malaysian court in 2015 after he shot a pregnant woman and dismembered her body with military-grade explosives.
Before Sirul was sentenced, he fled to Australia where he sought asylum. Prior to the High Court’s decision, Sirul had been held in immigration detention for nine years as Australia was unable to deport him due to non-refoulement obligations.
In response, the Government rushed through emergency legislation in the space of 12 hours. This legislation included a range of measures such as the wearing of electronic ankle bracelets, imposing curfews, and criminalising any breaches of visa conditions.
The Coalition pushed through its own amendments which made the bridging visa conditions mandatory for all detainees that were released – unless the minister is satisfied that the detainee poses no risk to the community – and imposing a mandatory minimum sentence for visa condition breaches, with each day of a breach being considered a separate offence. (Labor is usually against mandatory sentencing but has made an exception to pass this legislation.)
The Coalition’s amendments also further expanded the conditions of the released detainees, including stipulating that they are not able to go within 150 metres of a school or childcare facility.
The legislation has been criticised by the Greens, human rights groups, and some legal experts, who have described the measures as “draconian“, “detention by another name”, and claimed that it may be unconstitutional.
Until the High Court releases its reasons for their decision however, both Labor and the Coalition are in the dark about what they are able to do to mitigate any risks to the Australian community.
In the meantime, the Government is preparing for potential claims for compensation for false imprisonment from the released detainees while also taking repeated hits from the Coalition for lacking in preparedness for the ruling.
The issue of what can be done about unlawful non-citizens who cannot currently be deported and have committed serious crimes is something that is not unique to Australia. This will be an issue that many countries, including the UK, will have no choice but to confront in the years ahead.