The High Court of Australia is not known for its zealotry in protecting human rights, and certainly not when considering the persuasive pull of international law and conventions.\u00a0 The Australian Parliament is usually given a generous hand in making policies that tend to outrage such conventions, a freedom made that much easier by an absence of any bill of rights.<\/p>\n
A grim example of this was the 2004 High Court decision of Al-Kateb v Godwin<\/em><\/a>, which gave the Commonwealth full assurance that policies on indefinitely detaining unwanted, designated \u201cunlawful\u201d arrivals were entirely within its power.\u00a0 The case concerned the application of various provisions of the Migration Act 1958<\/em> (Cth) requiring an officer of the Commonwealth to detain those reasonably suspected to be unlawful citizens in the migration zone and held in immigration detention till their deportation or grant of a visa.<\/p>\n In such provisions, a pincer movement against such \u201cunlawful citizens\u201d had been enshrined with stunning cynicism. Once detained and having their status determined, such individuals might be found to be refugees.\u00a0 Accordingly, they might receive a visa, though not if they were those undesirables marooned in the offshore concentration camps of Nauru and Manus Island.\u00a0 Since 2013, Australian governments have proclaimed that those undocumented souls seeking refuge in Australia by boat would never be given the chance to settle in the country.\u00a0 Even in the event of being deemed refugees, they might still be refused a visa on character grounds or face the prospect of deportation to a third country, the latter being something of a favourite of Australian policy makers for two decades.\u00a0 (A gaggle of European states have also been impressed by this formula.)<\/p>\n What, then, of stateless citizens found to be refugees and without fault?\u00a0 Or those who would not be accepted by a third country?\u00a0 Or those who, having been convicted of an offence and served time for it, could be placed in a vicious limbo of de facto carceral administration for the rest of their natural lives, undesired by any country, and not allowed out in the Australian community for failing to meet visa requirements and deemed a threat to society?<\/p>\n To answer these questions, the facts of Al-Kateb are worth recounting.\u00a0 Ahmed Ali Al-Kateb was a stateless Palestinian born in Kuwait in 1976, having sought sanctuary in Australia in December 2000 without a passport or visa.\u00a0 He was duly detained under the Migration Act<\/em>.\u00a0 Efforts to gain a protection visa proved futile.\u00a0 The Refugee Review Tribunal and the Federal Court agreed with the decision makers.\u00a0 With Australia having ceased to be an option, Al-Kateb informed the Department of Immigration and Multicultural Affairs that he wished to be transferred to Kuwait or Gaza.\u00a0 Those efforts also came to naught.<\/p>\n Al-Kateb\u2019s cupboard of legal options started looking increasingly threadbare.\u00a0 With little else possible, he resorted to that immemorial principle of Britannic common law that he be released on habeas corpus<\/em> grounds.\u00a0 After all, the Australian authorities surely had no reason to continue detaining him.\u00a0 He had committed no crime, and there was \u201cno real likelihood or prospect\u201d of Al-Kateb\u2019s removal outside the country in the reasonably foreseeable future, a point acknowledged by the Federal Court.<\/p>\n In a granite hard decision, the High Court rejected the claim. For one thing, the discretion was mandatory<\/em> under the legislation, not discretionary.\u00a0 Nor was the exercise of such a detention power punitive, thereby violating the separation of powers.\u00a0 In Chief Justice Gleeson\u2019s words: \u201cA person in the position of the appellant might be young or old, dangerous or harmless, likely or unlikely to abscond, recently in detention or someone who had been there for years, healthy or unhealthy, badly affected by incarceration or relatively unaffected.\u00a0 The considerations that might bear upon the reasonableness of a discretionary decision to detain such a person do not operate.\u201d<\/p>\n Justice McHugh also reiterated the view that the Migration Act<\/em> required \u201cthe indefinite detention of Mr Al-Kateb, notwithstanding that it is unlikely that any country in the foreseeable future will give him entry to that country.\u00a0 The words of the three sections [189, 196, 198] are too clear to read them as being subject to a purposive limitation or an intention not to affect fundamental rights.\u201d\u00a0 With Australia lacking any express constitutional protection of habeas corpus<\/em>, Al-Kateb was doomed.<\/p>\n Efforts to challenge this ghastly precedent over the years faltered.\u00a0 In the meantime, periods of lengthy immigration detention ballooned.\u00a0 Currently, the average period of time individuals held in immigration detention<\/a> by Australian authorities is 708 days.\u00a0 In May 2022, the detention period reached a dubious peak of 736 days, with 138 having spent time in detention for over five years.<\/p>\n All this has changed.\u00a0 On November 8, the High Court handed down a stunning decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor<\/em>, thereby archiving Al-Kateb<\/em> as a dark, judicial episode.<\/p>\n NZYQ was a stateless Rohingya applicant who had fled Myanmar and journeyed to Australia by boat in September 2012.\u00a0 He received a bridging visa in September 2014.\u00a0 In January 2015, he was arrested and charged with a child sexual offence, his visa cancelled, and prison term imposed.\u00a0 Despite receiving parole in May 2018, he was immediately thrown into immigration detention.\u00a0 As a person regarded as stateless by Myanmar and facing a genuine risk of persecution on his return, NZYQ also faced the prospect of perennial detention for not having a visa. \u00a0On character grounds, Australian authorities could continue to refuse granting it.\u00a0 It also seems that no third country option arose as a serious possibility, though this will only be known with certainty once the judgment is published.<\/p>\n Much to the surprise of those present, NZYQ\u2019s legal team received the news after two days of oral argument that it was unconstitutional to detain a person where there was no real prospect of being removed from Australia.\u00a0 As a consequence, the court held that provisions under the Migration Act<\/em> obliging the authorities to detain \u201cunlawful non-citizens\u201d for such inordinate periods should be read as beyond the immigration power of the Commonwealth.\u00a0 NZYQ\u2019s administrative detention, being deemed unlawful, necessitated his release.<\/p>\n The decision immediately affects 92 people in immigration detention.\u00a0 But as the Australian Human Rights Commission reminds us<\/a>, the perverse cruelties of Australia\u2019s detention system has, over the last two decades, affected \u201cthe lives of tens of thousands of people, most of whom came to this country seeking protection as refugees.\u201d<\/p>\n Panicked, the Albanese government has tried dousing the fires of concern, though some of these have been lit by a few parliamentarians prone to pyromania.\u00a0 Public safety, it has been suggested, might be compromised by these reprobates newly found with their freedom in the Australian community.\u00a0 Instead of acknowledging the human rights dimension of the case, the Home Secretary Claire O\u2019Neil came close to slighting<\/a> the High Court.\u00a0 \u201cIf I had any legal power to do it, I would keep every one of those people in detention.\u201d\u00a0 This was irrespective of the fact that they had served time for any offences they had committed.<\/p>\n A government spokesperson was also quick to point<\/a> out in the immediate aftermath of the High Court decision that, \u201cIndividuals released into the community from immigration detention may be subject to certain visa conditions.\u201d\u00a0 But instead of waiting for the decision\u2019s full publication, the government has cobbled a mash of legislative measures in a paroxysm of populism.<\/p>\n On November 16, Immigration Minister Andrew Giles introduced laws<\/a> applicable to 83 released detainees, among them three murderers and a number of unspecified sex offenders.\u00a0 \u201cThe Australian community reasonably expects that all non-citizens in Australia will obey Australian laws.\u201d\u00a0 Some would, for instance, be electronically tagged.\u00a0 Curfews could also be imposed.\u00a0 Attached visa conditions could also include notification requirements for changes of address, any illegal activities or change of address. \u201cThese measures,\u201d Giles stated<\/a>, \u201care consistent with the legitimate objective of community safety and the rights and interests of the public.\u201d\u00a0 How these objectives square with such savage punishments as five-year prison terms in violation is hard to see.<\/p>\n The opposition leader, Peter Dutton, was left unsatisfied by the proposals.\u00a0 As a proud, demagogic hater of civil liberties, he feels that prolonged punishment is the preferred formula.\u00a0 How this will be done constitutionally is not something that bothers his minute, vengeful imagination. But he proved enough of a fantasist to link the release of the detainees to the threat of rising antisemitism in Australia, a cavalier effort verging on the imbecilic.<\/p>\n